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[2008] ZASCA 166
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S v Mavinini (224/2008) [2008] ZASCA 166; 2009 (1) SACR 523 (SCA) ; [2009] 2 All SA 277 (SCA) (1 December 2008)
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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case number: 224/2008
In the matter between:
NHLANHLA WISEMAN MAVININI Appellant
and
THE STATE Respondent
Neutral citation: State v Mavinini (224/2008)
[2008]
ZASCA 166
(1 December 2008)
BEFORE: Cameron JA, Kgomo AJA and Mhlantla AJA
HEARD: Thursday 20 November 2008
DELIVERED: Monday 1 December 2008
SUMMARY
: Evidence –
proof – beyond reasonable doubt – moral certainty of
guilt – Sentence – maximum sentence
imposed under Act 105
of 1997 – inappropriate
ORDER
On
appeal from
: High Court, Pietermaritzburg
(Patel and Moleko JJ), sitting on appeal from the regional court at
Newcastle.
1. The
appeal against conviction is dismissed.
2. The
appeal against sentence succeeds.
3. The sentence imposed by the magistrate is set aside.
In its place there is substituted:
‘
The accused is sentenced to fifteen (15) years’
imprisonment.’
JUDGMENT
CAMERON JA (Kgomo AJA and Mhlantla AJA concurring)
[1] When does a question about a witness’s
evidence give rise to a doubt? And what makes a doubt become
reasonable? And
when does reasonable doubt point to acquittal? This
case invites these reflections. The appellant was convicted of
robbery in
the Newcastle Regional Court (Mr TCL Colditz) and
sentenced to twenty years’ imprisonment. His appeal to the
High Court
in Pietermaritzburg (Patel J, with whom Moleko J
concurred) was dismissed, as was his application for leave to appeal
to this court,
which later, however, itself granted the necessary
leave.
[2] On Friday evening 25 August 2000, the Pritraj
family was travelling from Gauteng to KwaZulu-Natal. As night fell
they checked
into the Amajuba Lodge in Newcastle with their fourteen
month-old baby. Shortly after they took occupation of room 15, there
was
a knock at their door: ‘Room service’. But it was
not. It was a robbery. When Mr Surjan Pritraj opened the door,
three men burst in, two brandishing firearms. His wife and baby were
made to lie on the bed. He was forced to the floor. A blow
to the
back of his head with one of the robber’s firearms later
required medical stitching. And the robbers proceeded to
take
everything. The family was not just robbed, but ‘robbed clean’
– as the magistrate noted in passing sentence,
they were left
with just about only the clothes on their backs. The robbers took
their luggage, clothes, shoes, watches, wedding
rings, jewellery,
mobile phones (complete with chargers) and cash. They even nabbed
the hotel’s television set and telephone
apparatus. Then they
made off in the family’s 1996 green Audi A4 motor vehicle with
registration number DRP 053GP.
[3] The very next evening, the South African Police
Service’s crime intelligence centre in Newcastle received
information
that led the police to house 2892 in Section 3 of
Madadeni, Newcastle’s township. There they found two men
sleeping in a
room in which they also discovered much of the loot.
The rest was elsewhere in the house. The two men were later
arraigned with
the appellant as accused 1 and 2. Accused 1 died in
the course of the trial. Accused 2, who the arresting officer
conceded was
charged (like accused 1) only because he was found in
the same room as the stolen property, was given the benefit of the
doubt
and acquitted.
[4] The appellant though was convicted. During the same
raid, his identity document, or a copy of it, as well as a logbook
for
a bakkie registered in his name were found. At the trial, one of
the occupants of house 2892, Ms Ntombikababa Charity Tshabalala,
testified that he had been staying there with his girlfriend.
[5] But that is not why he was convicted. His
conviction arose from the green
1996 Audi A4.
Evidence was led at
the trial that the appellant was seen driving a green Audi A4 (its
front adorned with a false number plate,
and the back bearing the
number ‘DRV 053GP’) just outside house 2892, shortly
before it was raided – but that
when he saw the police he sped
away, eluding pursuit. Ms Tshabalala testified that earlier that
same evening a vehicle, whose
make she could not identify, but green
in colour, was at the house. Less than a week later, the
complainant’s Audi was recovered
in Springs, Gauteng. When he
identified it to the police, it had false number plates.
[6] The magistrate accepted that the appellant had been
driving the complainant’s vehicle, and inferred from the
proximity
in time (less than 24 hours) that the appellant’s
possession was so closely connected to the robbery itself that in the
absence
of other explanation he must have been one of the robbers.
The appellant does not attack this part of the magistrate’s
reasoning,
for if he was indeed seen in the Audi so soon after the
robbery, such recent possession, together with his elusive conduct,
and
the false front number plate, overwhelmingly suggests criminal
involvement in the robbery. What he disputes is the preceding
premise:
that he was seen in the Audi at all.
[7] This requires us to consider in detail the pivotal
evidence leading to his conviction, that of Superintendent Mahash
Singh Ragunanan.
He testified that on the evening after the robbery
an informer’s evidence led him to house 2892. Contrary to the
information
given, the stolen green Audi was not there, but after
questioning a group of females standing opposite, he got back into
his state
vehicle and waited outside the house. While so seated, he
noticed two vehicles approaching from the rear. The front vehicle
slowed
next to his, as if to turn into house 2892. Ragunanan
alighted. He saw that it was a green Audi with front registration
number
Mthambo ZN (his informer had given him the names of the
suspects connected with the stolen Audi as that of the appellant and
one
Thami Mthambo, whose name featured frequently during the trial as
part of the accused’s version). He was one and a half metres
away, and noticed the appellant was the driver. He shouted to him to
stop, and drew his firearm – but could not fire because
of the
women opposite. The vehicle sped off. He observed its rear
registration was DRV 053GP. He got back into his vehicle and
set off
in pursuit, but in vain.
[8] Two questions arise from Ragunanan’s
evidence. The first is whether the incident to which he deposed took
place at all,
or whether (as was argued at the trial, and again on
appeal) it was a later fabrication. The second is whether, if the
incident
happened, his identification was reliable. These questions
must be considered separately.
Was Ragunanan’s identification of appellant
fabricated?
[9] Doubt arose about the authenticity of the incident
for the following reasons. As mentioned earlier, the first two
accused were
arrested when house 2892 was raided on the night of
26/27 August, the day after the robbery. Accused 3 and 4 were
arrested in
Gauteng less than a week later in the events that lead to
the recovery of the complainant’s Audi. But the appellant
(accused
5) was arrested only in May of the following year. That was
because Ragunanan made a formal statement for the docket only on 22
March 2001, seven months after the incident at house 2892 (the delay
until the May arrest seems to have been because the appellant
was in
custody in Volksrust on other charges, which were later dropped).
[10] Probed in cross-examination, Ragunanan stated that
he told the officer in charge of the scene at house 2892, inspector
Fouché,
that very evening that he had spotted the appellant in
the vehicle, but ‘unfortunately I left for special duties away
from
town, and only returned in March’.
[11] Perhaps surprisingly, this statement was left
hanging: Ragunanan was not cross-examined about it at all. The
lawyer who elicited
this answer (who had been representing three of
the accused from the outset of the trial, and stepped in also for
accused 5 when
his predecessor left during the earlier
cross-examination of Ragunanan) did not challenge the authenticity of
the ‘special
duties’. He did not ask what they were,
where they had to be performed, when they started, when they ended,
or what they
entailed so as to inhibit making an earlier statement.
[12] Before the high court and in this court,
appellant’s counsel sought to impugn Ragunanan’s claim as
inherently improbable.
The obvious objection is that no basis was
laid for this in cross-examination. The imputation is that Ragunanan
was lying, that
there was in truth no reason why he could not make a
statement immediately, and that the seven-month delay pointed to
fabrication.
This is not only speculative; it is unfair. A
cross-examiner who later suggests that a witness is lying on a
particular point
must generally confront the witness with the
imputation.
1
If a single question had been asked, Ragunanan might have been able
to explain his ‘special duties’ in detail and
with
perfect conviction.
[13] But this is not a civil trial between Ragunanan and
the appellant, and it is not Ragunanan’s rights that are at
issue
here. It is the appellant’s. His right not to be
wrongly convicted must trump Ragunanan’s right not to have his
evidence
unfairly impugned ex post facto. The general requirement
that a witness must be confronted with damaging imputations
2
is not a formal or technical rule. It is a precept of fairness.
That means it must be applied with caution in a criminal trial:
if,
despite the absence of challenge, doubt arises about the plausibility
of incriminating evidence, the accused should benefit.
[14] One exception to the confrontation requirement is
where a witness’s tale is so far-fetched and improbable that it
can
be rejected on its own standing without the need for
cross-examination.
3
That exception should clearly be applied with greater liberality in
determining whether the state has proved its case against
an accused
beyond reasonable doubt.
[15] But are there circumstances here to suggest that we
should doubt Ragunanan’s unchallenged evidence that he was
called
away on special duties and that this was why he did not make a
statement immediately? There should be at least some basis for
rejecting the witness’s unchallenged evidence out of hand –
whether it arises from some intrinsic feature of the evidence
itself
or from other evidence at the trial. Here there is no basis at all.
It is not inherently implausible that a policeman
is called away on
special duties. Nor is it inherently implausible that this could
delay his statement.
[16] Alert to possible doubt arising from Ragunanan’s
evidence, the magistrate recalled both Fouché and Van Zyl (the
investigating officer, to whom Fouché handed the case docket
on the Monday). Fouché confirmed that Ragunanan had
told him
that he had seen the appellant driving the Audi.
4
He affirmed that this was
before
he handed the docket over to Van Zyl, although he could not remember
whether it was during the events at house 2892 itself or on
the
Sunday. His evidence thus corroborated that of Ragunanan. As the
magistrate pointed out in his judgment, it was admissible
and highly
relevant to the imputation of recent fabrication.
[17] Though his evidence was more equivocal, Van Zyl on
being recalled likewise confirmed that after the incident Ragunanan
told
him that he had seen the appellant in the vehicle that evening.
He also explained that he asked Ragunanan for a statement, but
that
as Ragunanan’s junior he could not insist on one.
5
It further appeared that Van Zyl first wanted a sworn statement, so
as to procure a warrant of arrest, before arresting the appellant:
hence the delay.
[18] One detail should be added to all of these. It
transpired during the trial that the police officers were from
differing units.
Those who combed the scene and effected the arrests
were from the dog unit. Fouché and Van Zyl were from the
murder and
robbery unit. Ragunanan was from the intelligence
division. Because of the lack of cross-examination on the relevant
point, the
difficulties this may have created for coordination and
communication were not explored.
[19] In these circumstances the fabrication claim cannot
in my view be sustained. The evidence as a whole, fairly considered,
indicates
that Ragunanan went away on special duties, and that this
triggered the delay in his statement. The magistrate, who was alert
to the doubt, and saw all the witnesses, accepted the honesty and
reliability of Ragunanan, Fouché and Van Zyl on this point.
In my view, despite some attempt on the appellant’s behalf to
suggest that the latter two conspired dishonestly to corroborate
Raguanan’s evidence, he was correct to do so.
[20] It should perhaps be added that there has been no
complaint about the quality of the appellant’s legal
representation.
6
Indeed, while the cross-examination was not of Kentridgean stature,
its deficiencies did not impair the appellant’s right
to a fair
trial.
7
Was Ragunanan’s identification reliable?
[21] The next question is whether the requisite degree
of credence can be attached to Ragunanan’s identification of
the appellant.
As already indicated, Ragunanan caught no more than a
quick night-time glimpse of the driver of the Audi A4. But it was at
a
close span (about 150cm), directly under a street-light; and he
added when the magistrate questioned him that the interior light
of
the vehicle was on. This detail, too, was not challenged in
Ragunanan’s cross-examination, and much was sought to be
made
of it on appeal, leading to speculative debate about reasons and
likelihood;
8
but in my view without challenge there is simply no warrant for
subverting Raguanan’s evidence on this point.
[22] More important to the reliability of his
identification is the fact that Ragunanan testified that he had known
the appellant
for some five years before the incident. This detail
was raised in cross-examination, though the challenge was
ineffectual. The
cross-examiner sought to probe by way of follow-up
whether Ragunanan knew where the appellant lived. This boomeranged
when Ragunanan
proceeded to itemise knowledge of the appellant’s
‘various residences’, in sections 1 and 3 Madadeni, plus
‘unconfirmed
information in Johannesburg as well’.
Ragunanan also stated that on the night in question he had been to
both the appellant’s
Newcastle residences. His knowledge of
the appellant and his likely whereabouts was therefore established.
Indeed, it emerged
from the evidence of other police officers that
they too knew the appellant and had had dealings with him because of
his involvement
in other cases and charges (and that they had been to
look for him on previous occasions at house 2892).
[23] Against this background, despite the fleeting
opportunity and night-time conditions, Ragunanan’s
identification was
not without inherent plausibility. It certainly
called for an answer. Yet the appellant countered it with nothing.
He chose
not to testify. That was his right.
9
Yet he must bear the consequences of exercising it. His choice to
remain silent in the face of evidence clearly implicating him
in
criminal conduct suggests that he had no answer to it.
10
For Ragunanan’s evidence was pre-eminently (as Heher JA put it
in
S v Chabalala
)
11
‘capable of being neutralised by an honest rebuttal’.
The rebuttal void clinches the impact of Ragunanan’s evidence.
This leads to the inference that the appellant was driving the green
Audi A4 on the night after the robbery, with false number
plates, and
that he fled when the police confronted him. That conduct,
unexplained, together with the evidence linking the appellant
with
the place where the stolen goods were recovered, results in the
overwhelming conclusion that he was himself involved in the
robbery.
[24] I should add that before us counsel for the
appellant sought to make something of differing references in the
record to the
Audi’s registration number. The exhibit list,
confirmed by the complainant, indicated that it was DRP 053GP. In
Ragunanan’s
evidence, the number is rendered as ‘DRV
053GP’. It is plain that this must have been either a slip of
the tongue
or a transcription error. This was however compounded
when the magistrate in his judgment referred to the registration
number
as ‘VLV 053GP’. Before us, counsel sought to make
capital of this, but was unable to offer any rational basis, other
than mis-speaking or a transcription error, for where ‘VLV’
came from. It is clear that the magistrate intended to
refer to the
same vehicle, identically registered, as the one stolen from the
complainant, which Ragunanan saw the night after,
and which was
recovered in Springs less than a week later. The error has no
significance.
[25] It follows that despite the somewhat curious
features of the case the appellant’s conviction was correct.
Especially
having regard to the fact that he chose not to testify,
the features raise doubt, but not reasonable doubt, about his guilt.
[26] It is sometimes said that proof beyond reasonable
doubt requires the decision-maker to have ‘moral certainty’
of
the guilt of the accused. Though the notion of ‘moral
certainty’ has been criticised as importing potential confusion
in jury trials,
12
it may be helpful in providing a contrast with mathematical or
logical or ‘complete’ certainty. It comes down to this:
even if there is some measure of doubt, the decision-maker must be
prepared not only to take moral responsibility on the evidence
and
inferences for convicting the accused, but to vouch that the
integrity of the system that has produced the conviction –
in
our case, the rules of evidence interpreted within the precepts of
the Bill of Rights – remains intact. Differently put,
subjective moral satisfaction of guilt is not enough: it must be
subjective satisfaction attained through proper application of
the
rules of the system.
[27] In my view that level of certainty exists about the
appellant’s guilt.
Sentence
[28] The magistrate sentenced the appellant to twenty
years’ imprisonment. This was the maximum sentence for robbery
under
the applicable legislation.
13
The magistrate was clearly right in considering that the minimum
sentence provisions applied, since there were aggravating
circumstances
(firearms were used) and since a motor vehicle was
taken.
14
There has been no attack on his conclusion that there were no
substantial and compelling circumstances justifying a lesser sentence
than fifteen years.
[29] In terms of the proviso to s 51(2) of Act 105 of
1997 (which applied when the appellant was sentenced on 15 March
2002),
15
‘the maximum sentence that a regional court may impose in terms
of this subsection shall not be more than five years longer
than the
minimum sentence that it may impose in terms of this subsection’.
The magistrate considered the maximum appropriate.
He pointed out
that the family had suffered the fright of intrusion and been robbed
‘clean’, and that the complainant
had received a blow to
the head.
[30] These circumstances, while serious, do not justify
the maximum sentence. They constitute reasons why the minimum
sentence
of fifteen years, and not a lesser sentence, was
appropriate. The circumstances did not call for an exemplary
sentence, which
the maximum entails. That in my view would be
disproportionate to the circumstances of the offence (see
Vilakazi
v The State
[2008] ZASCA 87
;
[2008] 4 All SA 396
(SCA),
(576/07)
[2008] ZASCA 87
(2 September 2008)).
[30] Recounting the circumstance of the robbery, the
magistrate in referring to the appellant remarked that ‘‘People
like that don’t deserve any mercy’. That was wrong.
Although the appellant was not a first offender, his previous
convictions (for theft in 1989 and 1992, when he was aged 20 and 23,
both resulting in sentences of strokes with a light cane)
were a
decade and more old at the time of sentencing. He deserved a measure
of mercy. That meant the minimum, and not the maximum,
should have
been imposed.
[29] In the result:
1. The
appeal against conviction is dismissed.
2. The
appeal against sentence succeeds.
3. The sentence imposed by the magistrate is set aside.
In its place there is substituted:
‘
The accused is sentenced to fifteen (15) years’
imprisonment.’
E CAMERON
JUDGE OF APPEAL
Appearances:
For
the appellant: Mr PJ Loubser
Instructed
by:
Southey,
Steyn & Mphela Attorneys, Newcastle
Mphobole
& Ishmail Attorneys, Bloemfontein
For
the respondent: Ms D Barnard
Instructed
by:
Director of Public Prosecutions, Pietermaritzburg &
Bloemfontein
1
President of the Republic of South Africa v
South African Rugby Football Union
2000 (1) SA 1
(CC) para 61.
2
President of the Republic of South Africa v
South African Rugby Football Union
2000 (1) SA 1
(CC) para 64-65.
3
President of the Republic of South Africa v
South African Rugby Football Union
2000 (1) SA 1
(CC) para 64.
4
‘COURT Okay. So what did Ragunanan tell
you? – He told me that when the vehicle had driven past he had
seen who the
driver was, and that he had recognised the person as
accused 5.
Was a statement taken
from Ragunanan? – Not immediately then, he was asked for a
statement, but I, due to something that
only he can explain, the
statement was only obtained at a later stage.’
5
‘Vir my as [‘n] junior offisier kan
ek seker nie vir ‘n senior offisier dwing om – vir hom
te sê
wanneer om ‘n verklaring te maak nie. By my is hy
verre my senior, ek kan nie vir hom sê … wanneer –
daar is wel verskeie kere vir hom gevra vir ‘n verklaring,
maar …’
6
The Bill of Rights s 35(3) guarantees every accused person the right
to choose and be represented by a lawyer.
7
See
S v Tandwa
2008 (1) SACR 613
(SCA) para 7 (the right to
legal representation is a right of substance, not form; it entails a
right to competent representation
– that is, of a quality and
nature that ensures that the trial is in substance fair).
8
Patel J in the high court, for instance, thought
it was not unlikely that a driver of a stolen car, unfamiliar with
its instrumentation,
would have the interior light on.
9
Bill of Rights s 35(3)(h) – every accused
person has the right to a fair trial, which includes the right ‘to
remain
silent, and not to testify during the proceedings’.
10
See
S v Tandwa
2008 (1) SACR 613
(SCA) paras 53-56.
11
2003 (1) 134 (SCA) para 21.
12
See the decision of the Supreme Court of the United States of
America in
Victor v Nebraksa
(92-8894),
511 US 1
(1994),
accessed on 27 November 2008 at
http://www.law.cornell.edu/supct/html/92-8894.ZO.html
.
13
Criminal Law Amendment Act 105 of 1997
.
14
Section 51
of Act 105 of 1997, read with Part II of Schedule 2.
15
See now the
Criminal Law (Sentencing) Amendment
Act, 38 of 2007
.