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[2015] ZAGPPHC 38
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Chanduke v S (A854/2013) [2015] ZAGPPHC 38 (30 January 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE NO: A854/2013
DATE: 30 JANUARY
2015
In the matter
between:
Sydney
Chanduke
.........................................................................................................
Applicant
And
State
....................................................................................................................
First
Respondent
JUDGMENT
Maumela J.
1.
This is an appeal with leave of the court a
quo,
against
both conviction and sentence. Before the Regional Court for the
Division of Gauteng, sitting in Klerksdorp, the appellant,
who was
legally represented, throughout the proceedings, was charged with two
counts of Robbery with Aggravating Circumstances.
He pleaded Not
Guilty to both counts.
2.
The original record of proceedings before the court a
quo
is
not available due to the fact that the relevant tapes got damaged.
Instead of re-constructing the record the court a
quo
re-called
witnesses who had already testified. The appellant pleaded Not Guilty
to both counts. The state led evidence. The appellant
was convicted
on count 1. On count 2, he was found Not Guilty and discharged.
3. The allegations
in count 1 were that upon or about 15
th
of February 2010
and at or near the N12 road in Klerksdorp in the Regional Division of
Gauteng, the accused did unlawfully and
intentionally assault Antony
Mbewe, and did then and with force take the following items from him
to wit an Agosy Truck with 33
tons of lime worth R 1 3 60 000-00,
Molera worth R 800 000, R120 -00 in cash and a cell phone; his
property or property in his
lawful possession; the aggravating
circumstances being that a fire arm was used.
4. The state led
evidence. Antoni Mbewe was the first witness to be called by the
state. He told court under oath that before the
incident in issue in
this case, he did not know the accused. He works as a Truck driver
for a company called Rubica Carriers. On
the 15
th
of
February 2011, at around 22h00 in the night, he was driving a truck
with two trailers.
He was with his
assistant, Morgan Changa Changa. He was driving along the N12 from
Danielskuil; heading towards Johannesburg, through
Olifantsfontein.
Upon stopping at a robot, he noticed a person standing near the
truck. This person pointed a firearm at him. He
saw three other
people approaching. The one standing near the truck opened the
driver’s door, which was not locked. That
person shoved him
leftwards, away from the driver’s seat. He then took over the
driver’ seat. As he strove to respond,
he was hit on the head
with the butt of the firearm.
5. Owing to the
darkness, he could not see his attacker properly. The person who took
over the driver's seat took out some cable
tiers out of a small bag,
which were used to tie his hands behind his back. His legs were also
tied. His and his assistant’s
faces were covered with pieces of
cloth. For two hours, their assailants strove in vain to establish
the location of the tracking
device of the truck.
6. At threat of
death the attackers demanded of him to show them where the tracking
device of the truck is fitted. He told them
that he is newly employed
and does not know where the tracking device is fitted. He negotiated
successfully and the robbers gave
him back his passport. They then
took him and his assistant into the bush where they were made to lie
on the ground, on a blanket.
They were covered with another blanket.
After a while they heard the engine of the truck start and drive off.
He managed to uncover
and loosen himself.
He and his colleague
found out that they were at a distance of about 10 kilometres outside
Potchefstroom. After an effort, the two
of them found their way to
the police station in town.
7. A person sent by
his boss eventually picked them up at the police station. Due to
considerations of jurisdictional delimitations,
the place where the
crime happened dictated that the case be reported at Krugersdorp
Police Station.
They heeded advice
to do so. His boss triggered the applicable tracking company into
action. Later at around 06h00 of the same morning
the truck was
recovered and he saw it.
8.
He said that the truck had been transporting lime. He does not know
the value of the lime he was transporting. His assistant
has since
returned to Zambia. It was admitted on behalf of the accused that he
was found driving the truck in issue on the 16
th
of February 2010, at 5h00 in the morning. It was also admitted that
the truck was recovered in the area of Johannesburg and Pretoria
and
that it was stopped somewhere near Midrand, just before the Centurion
offramp. An affidavit by Morgan Changa Changa, the witness’s
assistant on the day of the incident, was admitted and marked as
“
Exhibit 82”.
9. The defence
admitted the contents of the affidavit. The state then closed its
case. The appellant testified under oath in his
own defence. He told
court that on the 15
th
of February 2010 at about 8h00 in
the morning, he received a call from one Gilbert, who told him that
he obtained his cell number
from a Zambian lady known as Catherine.
Gilbert said that he is in need of a truck driver because he is not
satisfied with the
performance of the one he had. Besides; the same
driver was reported to be sick. Gilbert offered him a temporary job
to transport
a truck load to Polokwane.
10. He later met
Gilbert at the Shoprite-Checkers parking area. Gilbert verified his
driver’s licence and assessed his experience
in driving. He was
to be remunerated at an amount of R15 000-00 for the temporary job as
a driver. Gilbert phoned the driver repeatedly.
He said that the
latter was already driving towards Johannesburg and he would meet
him, (the driver), at 17h00.
11. It was arranged
for Gilbert to pick him up from his home once the truck would have
arrived within the vicinity of Johannesburg.
He was picked up from
home as arranged.
He and Gilbert met
up with the truck along the N12, at a place called Randjiesfontein,
between 4h00 and 5h00 in the morning of the
16
th
February
2010. Gilbert gave him a brief, as he handed the truck over to him.
He also alerted him to aspects that warranted his
attention. He,
(Gilbert), gave him about R2 500-00 for toll gates and fuel. He was
told to drive towards a Total Garage where he
would be given more
money for diesel. He was also to be given instructions concerning
offloading.
12. Gilbert, who was
driving behind him later, disappeared. Somewhere near Centurion, two
vehicles sandwiched his.
He was then
signalled to a stop with hazards. He initially mistook the people
stopping him for Gilbert, but he eventually realised
that it is some
gun-wielding police. The police literally hurled him off the truck
asking him what he was doing in a hijacked truck.
By then Gilbert was
nowhere to be seen anymore, much as he has never seen him again. He
heard rumours that Gilbert might be in
Rustenburg.
13. The witness said
that on the day of the incident he had no idea whatsoever that the
truck was stolen. He met the people who
gave the truck to him between
3h00 to 4h00 in the morning. He drove along the N12. He used the
money Gilbert had given him to pay
for his legal representation. He
said that he became gullible because Gilbert sounded very convincing.
He told the police about
Catherine. The appellant stated that the
police stopped him at 6h00 in the morning. The police on the other
hand said that they
stopped him at 5h30.
14. It was submitted
on behalf of the appellant that the trial court erred in finding him
guilty. It was submitted that the state
did not prove its case beyond
a reasonable doubt. That the appellant was convicted on the mere
basis that he was found driving
a stolen truck while no evidence
placed him at the scene of the hijack. It was argued that the
appellant was therefore wrongfully
convicted on the basis of
circumstantial evidence.
15.
In the case of R v Blom
1
,
the court set down criteria on the basis of which circumstantial
evidence can constitute conclusive proof of the fact sought to
be
proven. In that regard where reliance is sought to be placed on
circumstantial evidence, the following two criteria apply, namely:
(a). The inference
sought to be drawn must be consistent with all the facts, secondly;
(b). The proved
facts should be such that they exclude every reasonable inference
from them save the one sought to be drawn.
16.
On behalf of the appellant, it was submitted that the inference that
the court drew finding the appellant guilty does not exclude
the
possibility that things could have happened in line with the
appellant’s version. In the case of S v Shocked
2
,
the court stated the following:
[“the
accused’s version can only be rejected on the basis of inherent
improbabilities; not because it was merely improbable,
but because it
was so improbable that it could not be reasonably possibility true’].
It
was submitted on behalf of the appellant that in this case, there are
no tangible grounds on the basis of which to reject his,
(the
appellant’s) version.
17. It is not in
dispute that the appellant was found driving a stolen truck. It is
not in dispute that the complainant and his
assistant were robbed of
a truck with 33 tons of lime on board, money and cell a phone. What
is in dispute is whether or not the
appellant participated in the
robbery and whether he drove the truck knowing that it was hijacked,
in which case the accused would
be either a perpetrator; an
accomplice or an accessory after the fact.
18.
The version of the appellant and that of the state are in
contradiction to each other. In the case of S v Chabalala
3
,
the court stated that in instances of this sort, where the court has
to deal with mutually destructive versions, then the court
has to
look at the totality of the evidence and should avoid the temptation
to rely on to one obvious aspect without assessing
the entire picture
painted by the available evidence.
19. The victim in
the incident, Mr Mbewe, told the trial court that the incident
happened in the dark of night. He said he was not
able to make out
the identity of his attackers. For that reason, the appellant was
arrested on the mere basis of the fact that
he was found driving the
truck that was hijacked. The appellant states that he was found
driving the truck merely because through
a contact called Catherine,
he was hired on a temporary basis to drive the said truck to
Polokwane to deliver a load. He has a
permanent job from which he
often takes leave in order to augment his monthly income by taking on
temporary jobs as a truck driver.
20. He had worked
with Catherine before and he had no reason to disbelieve Gilbert.
Upon learning that Catherine is the one who
referred Gilbert to him
he let his guard down only to find that he inadvertently involved
himself in a criminal act. He had no
idea that the truck he had to
drive could be stolen because he was presented with all documents
pertaining to it. Whoever hijacked
the truck ensured that all
necessary documents are at hand.
21. In my view, the
inference that the court drew in convicting the appellant, is not the
only reasonable inference that could be
drawn from the available
facts.
In particular, the
inference that the court drew does not exclude the version of the
Appellant. In the result, I view that the appeal
against conviction
and sentence stands to succeed. The following order is made:
ORDER.
1. The appeal is
upheld.
2. The conviction
and sentence are set aside.
T. A Maumela
Judge of the High
Court of South Africa
I agree.
V.V. Thlapi
Judge of the High
Court of South Africa
1
1939
AD 188.
2
2001
(4) SA 1
(SCA).
3
2003
(1) SACR 134
(SCA), at page 140 a to b.