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[2007] ZASCA 81
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S v Dlepu (567/06) [2007] ZASCA 81; [2007] SCA 81 (RSA) (1 June 2007)
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case No: 567/06
NOT REPORTABLE
In the matter
between:
NORMAN
DLEPU
...............................
APPELLANT
and
THE
STATE
...............................
RESPONDENT
Coram: Farlam,
Mlambo JJA et Hancke AJA
Heard: 7 May 2007
Delivered: 1 June
2007
Summary: Criminal
law – appeal against conviction and sentence – regional
court contrasting accused’s versions –
incorrect test –
appellant’s version on correct test reasonably possibly true –
appeal upheld.
Neutral
citation: This judgment may be referred to as
Dlepu
v The State
[2007]
SCA 81 (RSA).
_____________________________________________________________________
JUDGMENT
___________________________________________________________
MLAMBO JA
[1] The appellant
was convicted with two others on one count of robbery with
aggravating circumstances, one count of possession of
a firearm and
ammunition respectively, in contravention of the Arms and Ammunition
Act no 75 of 1969, by the Port Elizabeth Regional
Court on 11
February 2003. He and his co-accused were thereafter each sentenced
to 15 years imprisonment on the robbery count.
He was sentenced
to 18 months imprisonment on the unlawful possession of a
firearm count and to a fine of R1 200 or 6 months
imprisonment
on the unlawful possession of ammunition count. The 18 months
sentence was ordered to run concurrently with the 15 year
sentence.
[2] The appellant
and his co-accused then lodged appeals against their convictions and
sentences to the Eastern Cape Division of the
High Court. The appeals
were heard by the Grahamstown High Court (Jennett and Chetty JJ) on 3
February 2004 which upheld the appeals
against the unlawful
possession counts but dismissed the appeals against the robbery
conviction and sentence of 15 years.
[3] On 10 February
2004 the Grahamstown High Court heard and dismissed the appellants’
application for leave to appeal to this
court against the remaining
conviction and sentence. In this appeal the appellant appeals, with
special leave from this court, against
that conviction and sentence.
[4] The facts
briefly are that in the early afternoon on 1 March 1999 Albert
Henry Collin Moorcroft (Moorcroft) was robbed of
his Isuzu bakkie in
which was his briefcase with his identity document, a Nokia cell
phone, a set of keys, letters and R40 cash,
by two young men, just
after he had left the Standard Bank, at a shopping centre in Newton
Park, Port Elizabeth.
[5] It is not in
dispute that Inspector Vosloo and Sergeant Kruger, who were busy with
crime prevention and other police duties, received
the report of the
robbery on their radio requesting them to be on the lookout for the
bakkie. They were in private clothes and driving
an unmarked Toyota
Venture vehicle (Venture). They continued with their duties and at
Fourth Lane in Newton Park they came across
a gold Audi sedan (Audi)
with a number of passengers inside and became suspicious. They
followed the Audi into Bruce Street until
it stopped in front of a
house in that street. Vosloo and Kruger drove past and momentarily
lost sight of the Audi. They made a U
turn and when the Audi came
into sight (it had also turned to face the opposite direction) they
noticed a male person, carrying an
object they could not identify,
run from the house the Audi had parked in front of, and get into the
back seat of the Audi.
[6] The Audi drove
off and after following it for some time they pulled it off, ordered
the four passengers and driver out and proceeded
to search them and
the Audi. At the back seat they found a briefcase and searching it
they found a .38 Rossi revolver with its serial
number tampered with,
with three live rounds of ammunition. They also found chequebooks,
letters, a Nokia cell phone and Moorcroft’s
identity document
inside the briefcase. Vosloo and Kruger decided to arrest all the
occupants of the Audi for the unlawful possession
of a firearm and
ammunition. They impounded the Audi for further investigation. A set
of motor vehicle keys were also found on the
grass next to where the
Audi was standing. They called for backup and Sergeant Weyers
responded and on arrival at the scene Vosloo
and Kruger gave him the
vehicle keys with a request that he conduct an investigation at the
house the Audi had stopped in front of.
[7] On searching the
house Weyers discovered, in one of the garages, Moorcroft’s
Isuzu bakkie. He was also able to start it
with the keys given to him
by Vosloo and Kruger. When he touched the bonnet, he found that it
was still warm. A robbery charge was
added on the finding of the
bakkie. The day after the Audi was impounded the police found a piece
of paper under one of its sun visors
with a number of names including
Moorcroft’s.
[8] It is common
cause that the appellant was one of the back seat passengers in the
Audi when it was stopped by Vosloo and Kruger.
It is also common
cause that he was not the driver nor the person seen running from the
house and getting into the back seat of the
Audi.
[9] The background I
have sketched represents the evidence led by the State, it being
common cause that Moorcroft had failed to identify
any of the five
accused in an identification parade.
[10] The trial
proceeded against the appellant and two co-accused as the driver of
the Audi, Elliot Ndlovu (accused 5) and one of
the backseat
passengers Jongikaya Nconco (accused 1) had skipped bail and were
never rearrested. The regional court pointed out a
number of
differences in the versions and evidence presented by the appellant
and his two co-accused. At the conclusion of the trial
the regional
court found that the appellant and his two co-accused had given
different versions and that their credibility was for
that reason in
tatters (‘is aan flarde’). The court viewed these as
contradictions hence the view that their credibility
was in tatters.
[11] The regional
court concluded on the facts proved by the State that the Audi was
the ‘pick up’ or ‘back up car’,
a conclusion
based on the finding of Moorcroft’s name in a piece of paper
under one of the Audi’s sun visors, as well
as the fact that
one of the robbers knew Moorcroft and addressed him by a name under
which he was known.
[12] The regional
court also concluded that in the light of all the material
contradictions amongst the accused and their versions
it could come
to only one inference: that the passengers in the Audi were not
coincidental (‘toevallig’) passengers;
that accused no 4
(Xolani Ngcayisa) who was light complexioned was one of the robbers
based on Moorcroft’s evidence that one
of the robbers had a
light complexion; that based on its finding that everyone in the Audi
were not coincidental passengers, it meant
that they were all deeply
involved (‘kop en mus’) in the robbery; that the two
robbers who robbed Moorcroft were part
of the five arrested by Vosloo
and Kruger, although it could not be said who they were.
[13]
It is clear from the regional court’s reasoning that it found
that the occupants of the Audi, who it had found had not
taken part
in the actual robbery had acted in a common purpose with the actual
robbers. It is for this reason that the regional court
found that the
Audi was the so-called ‘back up’ or the ‘pick up
car’, as also found by the court
a
quo
.
It is also clear that in finding that there were contradictions
amongst the accused the regional court had treated them as if they
had presented a unified defence, hence the emphasis on contradictions
amongst their versions and evidence.
[14] The nature of
the evidence led by the State in this nature is circumstantial in its
entirety, save perhaps regarding the link
between Moorcroft’s
briefcase and accused no 2 (Ralo) who was seen by the police running
from the house into the Audi carrying
it. Therefore the regional
court concluded that the only inference it would draw from all that
evidence was that the appellant and
the other accused were the ‘back
up’ to the robbery.
[15]
Indeed circumstantial evidence can be relied upon with or in the
absence of direct evidence to prove the guilt of an accused
person.
Where circumstantial evidence is relied on one enters the realm of
inferential reasoning as done by the regional court. It
is settled
law that where an inference is sought to be drawn all the proved
facts taken together must exclude every other reasonable
inference
from them save the one sought to be drawn. It is not each proven fact
that must exclude all other inferences but ‘all
the facts as a
whole must do so’.
S
v Reddy
1996
(2) SACR 1
(A) at 8c-e;
R
v De Villiers
1944
AD 492
at 508.
[16] It is also
settled law that in the assessment of circumstantial evidence to
determine whether the only inference justified by
the evidence is one
of guilt, the court must, in the same assessment, consider the
version presented by the accused. This is so for
the simple reason
that a court must be in a position to say that in the light of all
the evidence the version of the accused is not
reasonably possibly
true hence the only inference to be drawn from all that evidence is
one of guilt.
[17]
The test is that an accused must be convicted if the evidence
establishes his guilt beyond reasonable doubt and that he must
be
acquitted if it is reasonably possibly true that he might be
innocent.
S v
Van Aswegen
2001
(2) SACR 97
at 101a-e. In arriving at either conclusion all the
evidence must have been taken into account.
[18] The issue
before us therefore is whether the evidence led before the trial
court justified a rejection of the appellant’s
version and the
conclusion that the only inference was that the appellant was part of
the ‘back up’ to the robbery as
such and was therefore
equally guilty. In considering this issue it is prudent to consider
the version presented by the appellant.
[19] The appellant’s
version was that he was in the Audi for an innocent reason and was
not involved in anyway in and knew nothing
about the robbery. His
version was that he ran a shebeen business and a café from his
house. On the day in question Ndlovu,
accused no 5, came to his house
driving the Audi at about 10 in the morning accompanied by Ngcayisa
(accused no 4). Ndlovu was known
to him but not Ngcayisa whom he was
meeting for the first time. He requested permission to use Ndlovu’s
Audi to buy stock for
his café and shebeen businesses
something which he had done in the past. Ndlovu agreed that he could
use the Audi after 14h00
when he reported for duty.
[20] The two stayed
in his house for some time until the early afternoon when all three
left as Ndlovu said he wanted to go past a
place called Kabega before
going to work at 14h00. The appellant stated that he went along in
order to take the Audi from Ndlovu
at his place of employment. At
Kabega, Ndlovu left them in the Audi and went into the premises and
returned after some time, saying
he had gone there to make some
payment. Thereafter, they drove off and Ndlovu received a call on his
cell phone after which he told
them that there were people he had to
pick up at Newton Park. Ndlovu also made some calls to some unknown
persons. They then proceeded
to a house in Newton Park where Nconco
(accused no 1) and Ralo (accused no 2) got into the Audi. Ralo
had come from the house
they had parked in front of and had a
briefcase with him and Nconco had come from a neighbouring yard. He
did not know them either.
They drove away and were stopped by the
police in a white Venture vehicle, which he had seen before they
picked up Nconco and Ralo.
[21] The trial court
reasoned that it was very (‘uiters’) strange that Ndlovu,
the owner of the Audi, would go with complete
strangers to pick up
his co-conspirators, ie the actual robbers. On this reasoning the
regional court concluded that all the accused
were involved in the
robbery. Regarding no 3’s version of having agreed with Ndlovu
to use the Audi, the trial court found
that he had contradicted
himself on whether he was going to use the Audi or had hired another
car and whether Ndlovu took R150 from
him to put petrol in the Audi
or not.
[22] It is clear
that the reasoning of the regional court was first that the
appellant’s version and those of his co-accused
were so
contradictory and therefore improbable that he was justified in
rejecting them and secondly that it was improbable for Ndlovu
to take
innocent passengers when he went to pick up the robbers after they
deposited the bakkie in Newton Park.
[23] The regional
court viewed the appellant’s version and those of the other
accused as being one, and concluded that these
versions differed,
that all the accused had contradicted each other, hence his finding
that their credibility was in tatters. The
regional court thereafter
found that the appellant’s version was improbable, ie he was
not in the Audi for an innocent reason
but was part of the robbery
enterprise, so to speak. This was in my view a clear misdirection.
The appellant, though charged with
others, presented an individual
version. The regional court erred when it took the appellant’s
version and contrasted it with
the versions of the other accused. The
regional court was required to view the appellant’s version on
its own and to investigate
whether in the light of all the evidence,
it was reasonably possibly true. The regional court did not do this.
[24]
Having found that the regional court applied the incorrect test we
are enjoined to conduct the investigation, applying the correct
test
of course. This is by no means an easy task as we, on appeal, are
called upon to do, on paper, what a trial court should have
done with
the benefit of observing and hearing witnesses at first hand.
R
v Dhlumayo
1948
(2) SA 677
(A) at 696. Because we lack the advantages a trial court
possesses in doing this we are limited in the extent to which we can
conduct
the investigation successfully. Nevertheless I proceed to do
so as constrained as I am.
[25] The appellant’s
version is that he only knew Ndlovu amongst all the accused. He also
testified that he was in the Audi
because he was going to use it
after Ndlovu had reported for work and that he had used the Audi in
the past for purchasing stock
for his businesses. This evidence was
not contradicted by the State witnesses nor by the other accused. He
testified that Ndlovu
made a number of calls on his cell phone and
also received a call whereafter he (Ndlovu) stated that there were
people he had to
collect. It is this evidence that bolstered the
regional magistrate’s reasoning that that the Audi was the
‘pick up’
car.
[26] It is common
cause that appellant was not the driver/owner of the Audi when the
police followed it and stopped it. He was also
not the person who had
Moorcroft’s briefcase and was seen running from the house where
the bakkie was located. Clearly the
‘pick up’ of Ralo in
particular fits in with the appellant’s version that Ndlovu
received a call to pick up certain
people. The evidence about a call
to pick up some people and his evidence that the briefcase was not in
the Audi before Ralo was
picked up supports the State’s case
about the Audi being a ‘pick up’ car, it was clearly
incriminating, but he
gave it. More than anything this was a powerful
demonstration that he was unaware what Ndlovu was up to.
[27] The evidence
regarding the finding of a piece of paper with Moorcroft’s name
amongst others, was a strong indication that
the Audi was used for a
criminal purpose. However, appellant was not the driver nor the owner
of the Audi, from whom an explanation
was called for. That fact on
its own cannot be relied on as showing the appellant’s
complicity.
[28] Counsel for the
State, Mr Robinson, submitted that the appeal had to fail also on two
grounds ie that the appellant was in the
company of Ndlovu and
another co-accused for the better part of the day. This, it was
submitted proved that the appellant was part
of the planning of the
robbery. The second basis was submitted to be the appellant’s
evidence of stating that he did not see
where the briefcase was in
the backseat when the police stopped them. It was submitted that by
testifying in this manner the appellant
had supported the case of the
other accused against the State. It was submitted that this showed
the appellant’s complicity
in the robbery.
[29] This argument
is misguided. In the first place it seeks the acceptance of only
those two facts as proving the appellant’s
guilt. The law as I
have stated earlier does not countenance a piecemeal approach to
evidence. All the evidence taken as a whole
shows in my view that
whilst the regional court might have been correct that the Audi was
the ‘pick up’ car, this does
not necessarily mean that
the appellant was involved. That finding was more appropriate against
whoever was in charge of the Audi
and Ralo and Nconco who were
implicated by direct evidence as being the persons who ran out of the
house where the bakkie was found
with Moorcroft’s briefcase. On
the record I am of the view that this finding cannot be made against
the appellant.
[30]
Evidence was necessary direct and/or circumstantial to find that the
appellant was involved in the robbery plot based on the
common
purpose doctrine, which the regional court also relied on. No such
evidence was led, the only evidence being that he was a
passenger. If
he was, as the regional court found, acting in common purpose with
the robbers, the regional court had no evidence
to make this finding.
The law is clear that certain requirements are necessary before a
finding of common purpose can be made. In
this regard no evidence was
led to show how the appellant was causally connected to the robbery,
there was no evidence that he was
present at the scene of the
robbery, that he was aware of the robbery, that he showed a common
purpose with the robbers. Without
this evidence there is no basis for
the finding that he was connected to the robbery.
S
v Mgedezi
1989
(1) SA 687
(A) at 705I-706B and
S
v Thebus
[2003] ZACC 12
;
2003
(6) SA 505
(CC) at 521D-E.
[31]
It is clear from the above that on the record before us and on a
proper analysis of all the evidence, particularly the proved facts,
that the appellant’s version that he was innocently in the Audi
was reasonably possibly true and should have been accepted
as such by
the regional magistrate. The fact that he may have contradicted
himself in one or two respects cannot in itself found
a basis to say
he was also involved. In the final analysis I am persuaded that
taking the totality of the evidence into account and
considering the
probabilities and improbabilities on the State’s and on the
appellant’s side that the balance weighs
heavily in favour of
the appellant that his version is reasonably possibly true and he
should have been acquitted. In
S
v Shackwell
2001
(2) SACR 185
(SCA) this court cautioned against the rejection of an
accused’s version simply because it is improbable. There Brand
AJA said
at 194g-i:
‘
It
is a trite principle that in criminal proceedings the prosecution
must prove its case beyond reasonable doubt and that a mere
preponderance
of probabilities is not enough. Equally trite is the
observation that, in view of this standard of proof in a criminal
case, a court
does not have to be convinced that every detail of an
accused’s version is true. If the accused’s version is
reasonably
possibly true in substance the court must decide the
matter on the acceptance of that version. Of course it is permissible
to test
the accused’s version against the inherent
probabilities. But it cannot be rejected merely because it is
improbable; it can
only be rejected on the basis of inherent
probabilities if it can be said to be so improbable that it cannot
reasonably possibly
be true.’
See
also
S
v M
2006
(1) SACR 135
(SCA) at 183h-l.
[32] Based on the
aforegoing I would uphold the appeal. The following order is made:
1. The appeal
succeeds.
2.
The order of the court
a
quo
is
set aside and replaced by the following:
‘
(i)
The appeal succeeds.
(ii) The conviction
and sentence of the appellant are set aside and replaced by the
following:
Accused no 3 is
found not guilty and discharged.’
________________
D MLAMBO
JUDGE OF APPEAL
CONCUR:
FARLAM
JA
HANCKE
AJA