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[2016] ZAGPPHC 281
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Lekgau v S (A191/15) [2016] ZAGPPHC 281 (9 March 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: A191/15
DATE:
09 MARCH 2016
In the matter
between:
DIALE PHILIP
LEKGAU
................................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT
SIKHWARI, AJ
[1] This matter came
by way of an appeal from the Regional Court for the regional division
of Gauteng, held at Pretoria, the court
a quo. The appellant is
approaching this court with the leave of the court a quo. The appeal
is against the conviction only on
counts 1,3,6,7,9,10,11 and 12.
[2] The appellant
was sentenced to the effective term of imprisonment of four years in
respect of each of count 1, 3 and 6 for housebreaking
with intent to
steal and theft. The appellant was sentenced to three years
imprisonment in respect of count 7 for
theft. The appellant
was sentenced to two years jn respect of each of counts 10,11 and 12
for kidnaping. The appellant was further
sentenced to twelve (12)
years imprisonment in respect of count nine for robbery with
aggravating circumstances. The court a quo
ordered that all the
sentences will run concurrently with the sentence of 12 years in
count 9.
[3] The appellant
wad granted leave to appeal against the conviction by the court a
quo. There is no appeal against the sentences.
During argument this
court has intimated to counsel of both parties, and counsel agreed,
that if the appeal may succeed against
the conviction in count 9,
then the matter will be remitted to the court a quo to revisit
sentences in view of the fact that all
the sentences are running
concurrently with the sentence of 12 years imprisonment in count 9.
[4] This appeal is
concerned with the probative value of fingerprints evidence which
formed the basis for the conviction of the
appellant on various
counts stated above. The main issues to be adjudicated are; firstly,
whether the presence of the appellant’s
fingerprints at various
crime scenes justifies the only inference that he has participated in
the commission of the offences for
which he was convicted; secondly,
whether the finger prints found on various scenes of crime are those
of the appellant or one
Aaron Phasha (or Paga); thirdly, if the above
two issues are decided in the affirmative, then the last issue is
whether the appellant’s
version is reasonably possibly true.
[5] At the court a
quo and in his notice to appeal, the appellant disputed expertise and
comparisons made through various fingerprints
that were lifted from
various crime scenes. However, in paragraph 8.2 of the heads of
argument, the appellant withdrew the dispute
and admitted that “no
fault and real criticism can be leveled against their comparison and
eventual findings with regard
to the various identification processes
and the comparison of the fingerprints to that of the appellant”
This court accepts
this concession and will not take that point any
further.
[6] The only
criticism which the appellant has still maintained is that there was
no sound explanation as to why the same fingerprints
were initially
linked to one Aaron Phasha who is allegedly a known offender. Captain
David Nkuna of the South African Police Service
who testified as the
police expert has testified that he made the comparison between
fingerprints of the appellant and that of
Aaron Pasha. On comparison
of the said fingerprints, the police expert made an opinion that
Aaron Phasha and the appellant is the
same person.
[7] The expert’s
opinion and conclusion in this regard was not challenged by the
appellant during cross-examination. Therefore,
his version should be
taken as true. The appellant cannot complain about the admissibility
of the evidence to the effect that Aaron
Phasha and the appellant is
one person. The appellant has missed the opportunity to do so at the
trial court. In the case of S
v Ndlovu
2002 (2) SACR 325
(SCA) the
court has correctly summed up the legal position when it held that
“cross- examination was an integral part of
the armoury placed
at the disposal of an accused person to test, challenge and discredit
evidence tendered against him or her”.
It is unfortunate that
the appellant has not made use of this armoury at the trial court a
quo.
[8] Appellant’s
counsel has submitted during argument that there is an inferential
possibility that the person who committed
offences is one Aaron
Phasha and for that he relied on the fact that the opinion of the
police expert was wrong due to the fact
that there was no court chart
prepared by the expert. This submission cannot stand in view of the
above decision in S v Ndfovu.
[9] The submission
by counsel is contradicted by the evidence of Captain Nkuna in (page
303 lines 8-9) who testified that 7 have
prepared a court chart which
I will also like to give in as an exhibit”. He went further to
testify that the said court chart
is marked with police reference
number LCRC 1388/02/2002 and it is exhibit 11. This exhibit is indeed
appearing in page 710 of
the appeal record. This crucial evidence was
not challenged by the appellant at the court a quo by way of
cross-examination.
[10] In passing
judgment, the court a quo stated that the court has accepted the
evidence of police expert(s) that Aaron Phasha
and the appellant is
the same person (see page 587 lines 21-23) of the transcribed record.
[11] The court a quo
cannot be criticized for accepting this crucial piece of unchallenged
evidence. In the case of President of
the Republic of South Africa &
Others v South African Rugby Football Union & Others
2000 (1) SA
1
(CC) at page 37B-C the court held that “the institution of
cross-examination not only constitute a right, it also imposes
certain obligations. As a general rule it is essential, when it is
intended to suggest that a witness is not speaking the truth
on a
particular point, to direct the witness’s attention to the fact
by questions put in cross-examination showing that the
imputation is
intended to be made and to afford the witness an opportunity, while
still in the witness box, of giving any explanation
open to the
witness and of defending his or her character. If a point in dispute
is left unchallenged in cross-examination, the
party calling witness
is entitled to assume that the unchallenged witness’s testimony
is accepted as correct. This rule was
enunciated by the House of
Lords in Browne v Dunn and had been adopted and consistently followed
by our courts.
“The rule in
Browne v Dunn is not merely one of professional practice but is
essential to fair play and fair dealing with
witnesses....’’
[12] The court held
further in the SARFU case that “the precise nature of the
imputation should be made clear to the witness
so that it can be met
and destroyed, particularly where the imputation relies upon
inferences to be drawn from other evidence in
the proceedings. It
should be made dear not only that the evidence is to be challenged
but also how as to be challenged...”
[13] In the case of
S v Fortuin
2008 (1) SACR 511
(C) at page 516G-H, Dlodlo J stated
that:
“Zeffert,
Paizes & Skeen, in their work The South African Law of Evidence”
(LexisNexis Butterworths, Cape Town 2003),
give the following
formulation, in my view, is of cardinal importance:
If a party wishes to
lead evidence to contradict an opposing witness, he or she should
first cross- examine the witness upon the
fact he or she intends to
prove in contradiction, so as to give the witness an opportunity for
explanation. Similarly if the court
is to be asked to disbelieve a
witness, he or she should be cross-examined upon the matters which it
will be alleged make his or
her evidence unworthy of credit. In Small
v Smith
1954 (3) SA 434
(SWA) at 438, Claassen J said: ‘It is
grossly unfair and improper to let a witness’ evidence go
unchallenged in cross-examination
and afterwards argue that he must
be disbelieved.' Failure to cross-examine may therefore prevent a
party from later disputing
the truth of the witness’s
evidence...”
[14] Dlodlo J went
further to align himself with the above formulation and confirmed the
trite law that failure to cross-examine
a witness does not preclude a
party from disputing the truth of the evidence but such a failure may
often be decisive in deciding
upon the guilt of the accused (see page
S v Fortuin, supra, at page 517A- B). The above position was also
confirmed in an earlier
case of S v Boesak
[2000] ZASCA 112
;
2000 (1) SACR 633
(SCA).
This court aligns itself with the above views and also accepts the
conclusion of the police experts as it was never challenged.
[15] This appeal
will be decided on circumstantial evidence and possible inferences
which could be drawn. According to the cardinal
rules stated in R v
Blom
1939 AD 202
, the enquiry before the court is whether the court a
quo, on the evidence before it, could reasonably have to come to the
conclusion
that it was indeed the appellant who perpetrated the
crimes in question. This involves the determination of the two
cardinal rules
of logic; being: Firstly, the inference must be
consistent with all proven facts. If it is no, that inference cannot
be drawn.
Secondly, the proved facts should be such that they exclude
every reasonable inference except that it was the appellant who was
the perpetrator.
[16] Appellant
relied on the decision in Mana v $
[2009] 7 All SA 143
(SCA) where
the Supreme Court of Appeal held that the presence fingerprints alone
is not sufficient proof that the depositor of
the fingerprints is the
perpetrator of the crime. This is trite law. Evidence still has to be
evaluated in its totality. In the
Mana v S the fingerprints were
found in the cardboard box which could have been touched by anyone in
the course of life. There
was no any other further evidence to
justify a conviction, ev
[17] The difference
between the case of Mana v S and the appellant’s case is that
the in this case there are further evidence
which point to the
appellant. Fingerprints herein were not found in the cardboard
box-type of an item. Appellant’s fingerprints
were found in the
scene of crimes. In count 1 the appellant’s right thumb print
was found on a painting found standing against
the wall of the main
bedroom. On count 3 the appellant’s fingerprint was lifted from
an alarm sensor found ion the passage
of the house immediately after
the housebreaking, in count 6 the appellant’s fingerprint was
lifted from the sliding door
frame approximately 1.32 meters from the
ground immediately after the housebreaking. Finally, in count 9 the
appellant’s
palm print was lifted from slightly above the right
rear door handle of the Pajero motor vehicle which was parked at the
garage
of the complainant.
[18] The presence of
the fingerprints of the appellant, which has also been conceded in
the heads of argument by the appellant,
resolves the first leg of the
R v Blom test. This concession places the appellant on the scene of
the crime where his fingerprints
were found. The question whether or
not he is one of the perpetrators or the sole perpetrator would
depend on the exclusion of
other possible inferences, more
particularly the exclusion of Aaron Phasha.
[19] in his heads of
argument and also during oral submission before this court, the
appellant did not say much about the fingerprints
in respect of
counts 1, 3 and 6. He concentrated much in the Pajero palm print in
respect of count 9. This court is persuaded beyond
reasonable doubt
that the above circumstances, taken in totality with the
fingerprints, they all point to the appellant as the
perpetrator.
[20] In S v Reddy
1996 (2) SACR 1
AD at page 8C-D, the court has correctly stated that
“in assessing circumstantial evidence one needs to be careful
not to
approach such evidence upon a piece-meal basis and to subject
each individual piece of evidence to a consideration of whether it
excludes the reasonable possibility that the explanation given by the
accused is true. The evidence needs to be considered in its
totality.
It is only then that one can apply the often quoted dictum in Rex v
Blom
1939 AD 188
at 202-203..
[21] The
circumstances in this case call for the evaluation of similar facts
evidence. It is trite law that the admission or exclusion
of similar
facts evidence involves the theory of relevance in order to determine
the probative value of certain circumstantial
evidence. The ultimate
test is the relevance of such similar fact evidence. Similar facts
may be admitted if the same condition
will produce the same results.
[22] In S v Gakool
1965 (3) 465 NPD at 475 d-f, Harcourt J said that “it is clear
that each count brought against an accused
person must be considered
separately and that the admissibility of evidence on each count must
be tested as if that count had been
the only count against such'
accused - R v Buthelezi
1944 TPD 254
, but this does not prevent
material, which could be admissible under the rules relating to
similar fact evidence from being received
merely because a plurality
of counts is involved in a case”.
[23] The Supreme
Court of Appeal has stated in the case of R v Mathews
1960 (1) SA 752
(A) at 758B-C that “relevancy is based upon a blend of logic
and experience lying outside the law. The law starts with the
practical or common sense relevancy and the adds material to it or,
more commonly, excludes material from it, the result being
what is
legally relevant and therefore admissible...Katz's case is authority
for asking oneself whether the questioned evidence
is only, in common
sense, relevant to the prosperity of the appellants to commit crimes
of violence, with the impermissible deduction
that they for that
reason were more likely to have committed the crime charged, or
whether there is any other reason which, fairly
considered, supports
the relevancy of the evidence”
24] It is unlikely
that ail crimes for which the appellant was convicted were committed
through the same modus operandi and where
the fingerprints of the
appellant are found in various scenes of crimes. This could not be a
coincidence. The only inference which
could be drawn is that the
appellant is the perpetrator in all the offences for which he was
convicted.
[25] The appellant’s
main contention is that the fingerprints could be that of one Aaron
Phasha. The State has entered evidence
that the fingerprints of this
fictitious Aaron Phasha are similar to that of the appellant. The
State’s expert finding is
that Aaron Phasha and the appellant
is one and the same person. This version of the state was not
challenged in material respect
with a counter-expert opinion. This
court accepts the opinion of the police expert. The fingerprints
evidence is incriminating
to the appellant. Therefore, the appellant
should have dealt with it and discredit its probative value; or
rather create sufficient
doubt by way of cross-examination.
[26] The version of
the appellant is not reasonably probably true. The appellant is
relying on the lapse of time from the date of
the commission of the
crimes to the trial date. The admissibility of the fingerprints
evidence does not shift the burden of proof
to the appellant. All it
does is to constitute prima facie incriminating evidence; albeit
circumstantial; which if unchallenged,
the appellant may be
convicted. Therefore, the appellant must create reasonable doubt in
order for him to enjoy the benefit of
doubt. In this case, this court
finds that the appellant has failed to do so. Reliance on his
lapse of memory does
not constitute a valid defence in light of prima facie incriminating
evidence.
[27] In view of the
above, the following order is made:
The appeal is
dismissed. The convictions and sentences of the court a quo in counts
1,3,6,7,9,10,11 and 12 are confirmed.
DATED IN PRETORIA
ON THIS THE 08™ DAY OF MARCH 2016
SIKHWARl, AJ
ACTING JUDGE OF
THE HIGH COURT, PRETORIA
I agree.
ISMAIL, J
JUDGE OF THE HIGH
COURT, PRETORIA