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[2015] ZAFSHC 61
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Malebo v S (A226/2014) [2015] ZAFSHC 61 (19 March 2015)
FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A226/2014
DATE: 19 MARCH 2015
In the appeal between:-
MALEBO, LEHLOHONOLO
EMMANUEL
........................................................................
Appellant
And
THE
STATE
...........................................................................................................................
Respondent
CORAM: MOCUMIE, J et DAFFUE, J
HEARD ON: 16 MARCH 2015
JUDGMENT BY: DAFFUE, J
DELIVERED ON: 19 MARCH 2015
INTRODUCTION
[1] Appellant and two other accused
were arraigned in the regional court held in Bloemfontein on a charge
of robbery with aggravating
circumstances. Their first appearance
was on 11 January 2010 and appellant was convicted as charged on 1
Augustus 2013, his 36th
appearance – three years and seven
months later. The magistrate mentioned in his reasons that this was
due to a change in
legal representatives and absence of the accused
on several occasions. The fact of the matter is that delays are
prevalent in
our lower courts and something should be done soon to
see to it that delays of this kind are eliminated. Justice delayed
is justice
denied. The State is also entitled to finalization of
criminal trials within a reasonable time.
[2] Appellant was convicted as
mentioned whilst his two co-accused were acquitted. He was sentenced
to 12 years’ imprisonment.
[3] On 12 December 2013 leave to appeal
against his conviction was granted by the court a quo.
II GROUNDS OF APPEAL
[4] The following grounds are relied
on:
4.1 The court a quo erred in finding
that the only reasonable deduction to be drawn from the proven facts
is that the appellant
had committed the offence.
4.2 The court a quo erred in rejecting
the appellant’s version as not reasonably possibly true.
III LEGAL PRINCIPLES
[5] The court a quo convicted the
appellant based on the applicable principles applying to
circumstantial evidence. It is required
to consider the relevant
case law again.
[6] The locus classicus is R v Blom
1939 AD 188
at 202 – 203.
“In reasoning by inference there
are two cardinal rules of logic which cannot be ignored: (1) The
inference sought to be drawn
must be consistent with all the proved
facts. If it is not, the inference cannot be drawn. (2) The proved
facts should be such
that they exclude every reasonable inference
from them save the one sought to be drawn. If they do not exclude
other reasonable
inferences, then there must be a doubt whether the
inference sought to be drawn is correct.”
[7] In R v De Villiers
1944 AD 493
at
508 – 509 the appeal court referred to the above test and
pointed out that not each proved fact must exclude all other
inferences, but the facts as a whole must do so and continued as
follows:
“It must carefully weigh the
cumulative effect of all of them together, and it is only after it
has done so that the accused
is entitled to the benefit of any
reasonable doubt which it may have as to whether the inference of
quilt is the only inference
which can reasonably to drawn.”
See also S v Ntsele
1998 (2) SACR 178
(SCA) at 182b – f; S v Boesak
[2000] ZASCA 112
;
2000 (1) SACR 633
(SCA) at para
[13]
and S v Reddy and Others
1996 (2) SACR 1
(AD) at 8e – h
and especially the following dictum:
“A number of circumstances, each
individually very slight, may so tally with and confirm each other as
to leave no room doubt
for doubt of the fact which they intend to
establish … Not to speak of greater numbers, even two
articles of circumstantial
evidence, though each taken by itself
weigh but as a feather, join them together, you will find them
pressing on a delinquent with
the weight of a millstone.”
The State does not have to prove the
guilt of the accused beyond a shadow of doubt.
[8] Inherent probabilities and
improbabilities may be considered in evaluating the evidence in
totality. See S v Chabalala
2003 (1) SACR 134
(SCA) at para [15].
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 the inherent
probabilities if it can be said
to be so improbable that it cannot be
reasonably possibly true. See S v Schackell
2001 (2) SACR 185
(SCA)
at para [30].
[9] The oft-quoted dictum of Malan JA
in R v Mlambo
1957 (4) SA 727
(AD) at 738A – C is worth
repeating:
“‘In my opinion, there is
no obligation upon the Crown to close every avenue of escape which
may be said to be open
to an accused. It is sufficient for the Crown
to produce evidence by means of which such a high degree of
probability is raised
that the ordinary reasonable man, after mature
consideration, comes to the conclusion that there exists no
reasonable doubt that
an accused has committed the crime charged.”
[10] Where an appeal is lodged against
a trial court’s findings of fact, the court of appeal must take
into account that the
court a quo was in a more favourable position
than itself to form a judgment. When inferences from proven facts
are in issue,
the court a quo may also be in a more favourable
position than the court of appeal, because it is better able to judge
what is
probable or improbable in the light of its observation of
witnesses who have appeared before it. Therefore, where there has
been
no misdirection of fact a court of appeal assumes that the court
a quo’s findings are correct and will accept these findings
unless it is convinced that the trial court is wrong – See R v
Dhlumayo and Others
1948 (2) SA 677
AD at 705 – 706.
[11] Therefore, in order to interfere
with the court a quo’s judgment, it has to be established that
there were misdirections
of fact, either where reasons on their face
are unsatisfactory, or whether the record shows them to be such. See
also S v Monyane
and Others
2008 (1) SACR 543
(SCA) at para [15]
where the SCA stated that it is only in exceptional cases that it
will be entitled to interfere with the trial
court’s evaluation
of oral evidence and concluded as follows:
“This court's powers to interfere
on appeal with the findings of fact of a trial court are limited. …
In the absence
of demonstrable and material misdirection by the trial
court, its findings of fact are presumed to be correct and will only
be
disregarded if the recorded evidence shows them to be clearly
wrong (S v Hadebe and Others
1997 (2) SACR 641
(SCA) at 645e-f).”
[12] “Although courts of appeal
are slow to disturb findings of credibility, they generally have
greater liberty to do so
where a finding of fact does not essentially
depend on the personal impression made by a witness’ demeanour,
but predominantly
upon inferences and other facts, and upon
probabilities. In such a case a court of appeal, with the benefit of
the full record,
may often be in a better position to draw
inferences.” See Minister of Safety and Secutiry and Others v
Craig & Others
NNO
2011 (1) SACR 469
(SCA) at para [58].
IV EVALUATION OF COURT A QUO’S
JUDGMENT
[13] The court a quo was fully aware of
the fact that it had to apply the test applicable to circumstantial
evidence. It evaluated
the evidence in a coherent manner and decided
to acquit appellant’s two co-accused based on its
dissatisfaction with the
evidence produced by the State.
[14] Many facts were common cause. On
14 September 2009 at about 05h30 the complainant’s Quantum
motor vehicle (“Quantum”)
was robbed in Bloemfontein by
three unidentified men. One of them was armed with a firearm. The
complainant was forced to the
back of the Quantum and pressed down to
the floor of the vehicle. He could not see in which direction they
were going. One of
the robbers mentioned at a stage that they were
travelling in the direction of Thaba Nchu.
[15] The Quantum got a flat tyre which
could not be changed as the vehicle did not contain a spare wheel.
The robbers blindfolded
and handcuffed complainant where after he was
taken to the veld and dropped into a hole. They took his wedding
ring and wallet.
[16] Complainant eventually freed
himself and hitch-hiked to the Tweespruit Police Station. Together
with members of the South
African Police Service they searched for
the Quantum and eventually found it in the vicinity of
Tweespruit/Westminister close to
the N8 national road. The SAPS
members decided to keep the Quantum under observation.
[17] A red bakkie arrived which later
appeared to be that of a local farmer who rendered assistance through
his employees. The
tyre was changed and the Quantum was driven
further along the N8 in the direction of Ladybrand.
[18] The SAPS followed the Quantum in a
clearly marked police vehicle. A BMW vehicle of the tracking agency
which had installed
a tracking device in the Quantum approached from
the front, made a u-turn and thereafter both the SAPS vehicle and the
BMW followed
the Quantum for a distance of about 5 kilometres. The
Quantum stopped suddenly close to Westminister. Three men
disembarked and
started to run in different directions.
[19] One of the persons ran towards a
nearby hill where he hid himself underneath a rock. A Police
helicopter – clearly marked
– was summoned to the scene
and that person was eventually traced to his hiding place and
arrested. This person was on his
own admission the appellant.
[20] Appellant confirmed that he was
duly identified by the farm worker, Mr Sabata Abraham Mogete, whose
employer arranged for the
rendering of assistance with his red
bakkie. Appellant was one of the three persons that approached this
State witness for help
at about 07h00 that same morning. The farm
owner arrived on the farm at about 07h30 and the required assistance
was rendered.
[21] I have read and considered the
version of the appellant presented to the trial court and shall not
repeat it in full. It is
so far-fetched and improbable that the
court a quo was correct in rejecting it as false in the light of the
totality of the evidence.
Anyone who believes appellant’s
version will also believe in fairies.
[22] On appellant’s version, he
and one George attended a tavern in Bloemfontein from the Sunday
night to the early hours
of Monday morning, the 14th September 2009.
Someone called George on his cellphone, asking for assistance with a
flat tyre. The
two of them went with George’s vehicle to
Westminister where they found Tebogo who was unknown to appellant at
that stage.
These two gentlemen, i.e. George and Tebogo, were not
arraigned as accused before the trial court if appellant is to be
believed
as it is his case that he met his two co-accused for the
first time at court.
[23] According to appellant they could
not change the tyre as the spare wheel of George’s Microbus did
not fit. George left
in his vehicle to seek help from a nearby
garage. Eventually the appellant and Tebogo decided to hitch-hike in
order to look for
help as George, with whom they had cellphone
communication at the time, was apparently not getting the necessary
assistance. Another
hitch-hiker, totally unknown to appellant,
arrived on the scene whilst they were busy hitch-hiking and took them
to a nearby farm
where they met the State witness and farm employee,
Mr Sabata Mogete, whose employer eventually arrived and assisted them
by making
his red bakkie available and providing them with two tyres.
Once the flat tyre had been changed, appellant, Tebogo and the
unknown
hitch-hiker drove off in the Quantum in the direction of
Ladybrand. At that stage appellant’s friend, George, was
completely
out of the picture. In fact, appellant was now on his way
with Tebogo to Ficksburg and did not seem to bother to arrange with
George to get back to Bloemfontein.
[24] Suddenly Tebogo, the driver of the
Quantum, shouted “ghost, ghost” and brought the vehicle
to a stand-still. Shots
were allegedly fired at them and this caused
appellant to run to a nearby hill where he hid himself. He was under
the impression
that they were attacked by taxi owners.
[25] As indicated by the court a quo,
appellant contradicted himself several times, did not answer
questions and came up with an
improbable and clearly fabricated
version. He made a bad impression as a witness. His version was
rejected as false and I am
in full agreement with the court a quo’s
reasoning.
[26] The fact that an accused is a liar
does not mean he is guilty. People lie for various reasons and
sometimes based on pure
habit. The court must be satisfied that the
State has proved its case beyond reasonable doubt. In casu many
facts are common
cause. The only issue is whether or not appellant
was one of the robbers. On his version he was in Bloemfontein during
the early
hours of the particular morning, but then left for
Westminister with his friend, George, to render assistance to one
Tebogo who
was unknown to him. Co-incidentally, he found himself in
the Quantum that had been robbed in Bloemfontein a couple of hours
earlier.
Instead of explaining his innocent presence to the Police,
he took off to a nearby hill and hid himself notwithstanding the fact
that the SAPS in a marked police vehicle and later on in a marked
SAPS helicopter were on the scene. The appellant’s version
was
correctly rejected as false and the only reasonable deduction to be
drawn from the proved facts is that he was one of the robbers.
[27] One may even consider the matter
based on the so-called “doctrine” of recent possession.
See S v Parrow
1973 (1) SA 603
(AD) at 604B – E; S v Skweyiya
[1984] ZASCA 96
;
1984 (4) SA 712
(AD) at 715C – D and S v Mavinini
2009 (1) SACR
523
SCA para [6]. The accused does not have to be in actual
possession of the thing robbed or stolen at the time of his arrest if
he was seen in possession thereof soon after the commission of the
crime of robbery or theft. It was however not necessary to follow
this line of thought. It would lead the court a quo to the same and
just conclusion. There is no merit in the appeal.
ORDER
[28] The following order is issued:
The appellant’s appeal against
his conviction is dismissed.
J.P. DAFFUE, J
I concur.
B. C. MOCUMIE, J
On behalf of appellant: Me S. Kruger
Instructed by: Legal Justice Centre
BLOEMFONTEIN
On behalf of respondent: Adv M.
Strauss
Instructed by: Director: Public
Prosecutions
BLOEMFONTEIN