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  • Mfundisi v S (A634/13) [2014] ZAGPPHC 244 (31 …

Mfundisi v S (A634/13) [2014] ZAGPPHC 244 (31 March 2014)

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Criminal Law
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Brief Summary

Criminal Law — Appeal against conviction — Appellant convicted of robbery with aggravating circumstances and sentenced to 15 years imprisonment — Appellant contended that the state failed to prove its case beyond reasonable doubt and that inconsistencies in the evidence of state witnesses undermined the conviction — Court found that the evidence did not establish guilt beyond reasonable doubt and that there was a reasonable possibility of the appellant's innocence — Appeal against conviction upheld.

Comprehensive Summary

Summary of Judgment


Introduction


This matter was an appeal to the High Court of South Africa, Gauteng Division, Pretoria, against a conviction and sentence imposed by the Benoni Regional Court. The appellant, Kato Shadrack Mfundisi, had been convicted of robbery with aggravating circumstances and sentenced to 15 years’ imprisonment. The respondent was the State.


Leave to appeal was granted on both conviction and sentence. The appeal concerned whether the State’s evidence had established the appellant’s guilt beyond reasonable doubt, particularly in light of contradictions within the State’s case and the appellant’s alternative explanation for his possession of the complainant’s cell phone.


The dispute was situated within the criminal law of robbery with aggravating circumstances and, more specifically, the assessment of whether the evidentiary record justified the conviction when evaluated against the standard of proof and the requirement to consider the totality of the evidence.


Material Facts


The charge arose from an incident at Barcelona on 10 February 2012. It was common cause that an altercation occurred involving the appellant, the complainant N.T., and another witness J.T. The State’s version was that the appellant (together with two friends) assaulted N.T. and J.T. and took a cell phone from them while using a knife and a firearm. The appellant was later apprehended by members of the community, assaulted, and then arrested by the police.


A material factual dispute concerned how and where the complainant’s cell phone was recovered. The State witnesses (including the complainant and T.) advanced a version that the appellant offered to show where the cell phone had been hidden and that the police recovered two cell phones in the grass at a place where the appellant had been hiding. In cross-examination, the complainant denied that the phone was found on the appellant’s person and stated that the police would be lying if they said it was found on the appellant.


By contrast, the arresting police officer testified that he arrested the appellant while members of the public were assaulting him and that the complainant’s cell phone was found in the appellant’s possession.


Another factual feature was the State’s failure to call certain witnesses, particularly M. and V., who were said to have been involved in events surrounding the pursuit and/or knowledge of the appellant’s whereabouts. The record reflected an affidavit by the investigating officer to the effect that neither witness could be found despite attempts to locate them, while the evidence of T. suggested that he knew where these individuals stayed or could identify their addresses.


The appellant’s version was that he came into possession of the cell phone as security for a loan. He claimed that during a dice game the complainant lost money and borrowed R100 from him, giving him the phone as security on the understanding that it would be returned when the money was repaid. The appellant further stated that, as evening approached and he decided to leave, the complainant became aggressive, whereupon the appellant ran off with the phone.


Legal Issues


The central legal questions were whether, on the totality of the evidence, the State proved the appellant’s guilt beyond reasonable doubt, and whether the appellant’s explanation for possession of the phone was reasonably possibly true so as to require an acquittal.


The dispute primarily concerned the application of law to fact, namely the correct approach to evaluating evidence in criminal trials, the significance of contradictions within the State’s case, and whether adverse inferences could properly be drawn from the appellant’s conduct, including the absence of an exculpatory statement at the time of arrest or during earlier stages.


A further issue was whether the regional court’s reasoning amounted to a misdirection, particularly if it failed to weigh the evidence holistically and instead relied on isolated factors such as the appellant’s failure to make an exculpatory statement or the absence of cash found on him.


Court’s Reasoning


The High Court reiterated the established principle that the State bears the onus to prove guilt beyond reasonable doubt, and that the corollary is that an accused must be acquitted if there is a reasonable possibility that the accused’s explanation may be true. The judgment treated these standards as inseparable aspects of the criminal burden and standard of proof.


In evaluating the evidentiary record, the court emphasised the approach that requires weighing all elements pointing towards guilt against those indicative of innocence, taking account of strengths, weaknesses, probabilities, and improbabilities, and avoiding a piecemeal assessment. Within that framework, the court identified the contradictions within the State’s evidence as material. The conflict regarding whether the cell phone was found in the grass or on the appellant’s person was treated as significant, especially because the complainant had explicitly denied that the phone was found on the appellant and stated that police evidence to that effect would be false, while the arresting officer maintained the opposite.


The court also considered the difficulties arising from the absence of corroborating witnesses, particularly M. and V., given that the evidence suggested these individuals were relevant to the State’s narrative of pursuit and reporting and that T. appeared able to identify their whereabouts. The inability to secure their testimony, viewed alongside the inconsistencies between the State witnesses, contributed to the assessment that the State’s case did not reach the requisite standard.


The regional court had drawn a negative inference from the appellant’s failure to make an exculpatory statement at the time of his assault by members of the community or at arrest, and from his failure to explain possession of the phone earlier. The High Court held that this reasoning was erroneous insofar as it treated the absence of such a statement as supporting the inference that the only explanation was robbery. The High Court further criticised the regional court’s reasoning that rejected the appellant’s version because no money was found on him, reflected in the comment questioning where the appellant’s “winnings” were. The appeal court stressed that subjective disbelief of the accused is not the test and that an acquittal is required if the accused’s version is reasonably possibly true, even if it is unsatisfactory or contradicted, provided the State’s case does not exclude it beyond reasonable doubt.


Having regard to the totality of the evidence, the High Court concluded that the State witnesses’ evidence was “riddled with inconsistencies,” that some evidence was unreliable or appeared false, and that the contradictions were not mere memory lapses. On that basis, the court found that the State’s evidence did not establish guilt beyond reasonable doubt and that there was a reasonable possibility that an innocent explanation might be true. The regional court was found to have misdirected itself by not properly considering the totality of the evidence.


Outcome and Relief


The appeal against conviction was upheld. The High Court set aside the conviction by upholding the appeal on conviction.


The judgment recorded no separate, express costs order, and it did not set out a separate dispositive order dealing with sentence. The practical consequence of the successful appeal on conviction was that the sentence imposed in consequence of that conviction could not stand.


Cases Cited


S v Van Der Meyden 1999 (2) SA 79 (W)


S v Tshabalala 2003 (1) SACR 134 (SCA)


S v Kubeka 1982 (1) SA 534


Legislation Cited


No legislation was expressly cited in the judgment.


Rules of Court Cited


No rules of court were expressly cited in the judgment.


Held


The High Court held that the State failed to prove the appellant’s guilt beyond reasonable doubt due to material contradictions in the State’s evidence, particularly regarding where the complainant’s cell phone was recovered, and due to deficiencies in the overall reliability and coherence of the State’s case when assessed as a whole. It further held that the regional court misdirected itself by drawing impermissible inferences from the appellant’s failure to make an exculpatory statement and by not properly applying the standard requiring acquittal where the accused’s version is reasonably possibly true. The appeal against conviction was accordingly upheld.


LEGAL PRINCIPLES


The State must prove an accused’s guilt beyond reasonable doubt, and an accused is entitled to an acquittal where there is a reasonable possibility that the accused’s explanation may be true; these are correlatives that must be applied together in determining criminal liability.


In evaluating guilt, a court must consider the totality of the evidence, weighing elements indicative of guilt against those indicative of innocence, with proper regard to probabilities and improbabilities, and must avoid an approach that isolates a single feature of the evidence without placing it in the broader evidentiary context.


A conviction cannot properly be sustained where material contradictions and unreliability in the State’s evidence mean that the State’s case does not exclude, beyond reasonable doubt, an explanation consistent with innocence, and subjective disbelief of the accused’s evidence is not in itself determinative where the reasonable-possibility threshold is not displaced by the State’s proof.

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[2014] ZAGPPHC 244
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Mfundisi v S (A634/13) [2014] ZAGPPHC 244 (31 March 2014)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA
CASE
NUMBER: A634/13
DATE:
31__/03___/2014
In
the matter between:
KATO
SHADRACK
MFUNDISI                                                                             APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
MOSEAMO
AJ
[1]
Appellant was charged in the Benoni Regional Court on a charge of
Robbery with aggravating circumstances.  He was convicted
and
sentenced to 15 years imprisonment.
[2]
Appellant was granted leave to appeal on both conviction and
sentence.
[3]
The charges arose out of an incident that took place at Barcelona on
the 10
th
February 2012.  The appellant together with
two friends unlawfully and intentionally assaulted N. T.and J. T.
He took
from them a cell phone using a knife and a firearm. The
appellant was caught by members of the community and assaulted.
He
was later arrested by the police.
[4]
Appellant submits that the state did not prove its case beyond
reasonable doubt and as such the court a quo should have given
him
the benefit of the doubt as his evidence is reasonably possibly true.
[5]
Appellant further submits that failure by the state to call further
witnesses, particularly one Mthembu who was informed about
the
robbery weakened the state’s case.
[6]
The appellant further points to the contradictions between the
evidence of complainant and Thusi on the one hand that the cell
phone
was found in the grass and the evidence of the Police Officer who
testified that the cell phone was found in the possession
of the
appellant.
[7]
According to the appellant the court
a quo
erred in finding
that: (a) by failing to explain the reason for his possession of the
cell phone in his warning statement or in
his plea explanantion; (b)
The fact that no money was found in this possession when he was
searched, presupposes that the evidence
by the appellant was false.
[8]
The appellant’s counsel submits that the appellant did not have
to prove his innocence but it was for the state to prove
its case
beyond reasonable doubt.
[9]
The version of the appellant is that T. gave him the phone as
security for a loan.  According to the accused T. lost money
in
a game of dice and he borrowed R100.00 (Hundred Rand) from the
accused.  The appellant took the phone with the understanding

that once T. will have raised the R100.00 (Hundred Rand) he will pay
back and the accused would return the phone.  When evening
was
approaching the appellant decided to leave.  The complainant
became aggressive.  Then the appellant ran off with
the phone of
the complainant.
[10]
At the hearing of this appeal, counsel for the respondent conceded
that if there is any doubt to the guilt of the appellant
then the
appellant should be given the benefit of the doubt.
[12]
In convicting the appellant, the court
a
quo
considered the fact that the
appellant did not at any point in time, either during the assault by
members of the community or during
his arrest make an exculpatory
statement to the effect that he did not rob the appellant.  The
court
a quo
drew a negative inference from his failure to explain how he came to
possess the complainant’s cell phone.
[13]
It is trite that the state has to prove its case beyond reasonable
doubt.
In
S v Van Der Meyden 1999(2) SA 79
(W)
it was stated that
the corollary to the abovementioned onus of proof is that the accused
is entitled to be acquitted if it is reasonably
possibly true that he
might be innocent.
The
court further held that:
“
In
order to convict, the evidence must establish the guilt of the
accused beyond reasonable doubt, which will be so only if there
is at
the same time no reasonable possibility that an innocent explanation
which has been put forward may be true.  The two
are
inseparable, each being the logical corollary of the other”
[14]
The version of the state witnesses as to where the cell phone was
found was contradictory.
[14.1] According to the
complainant, the appellant offered to show them where he had hidden
the cell phone and as they were going
back they came across the
police.  The appellant took the police to a place where they
initially found him hiding and there
the police found two cell phones
in the grass.
[14.2] Under cross
examination, the complainant denied that the phone was found on the
appellant’s person.  He even said
the police would be
lying if they were to come and say that the phone was found on the
person of the appellant.
[14.3] According to T. he
reported the incident to one M. who also chased after the appellant
and his friends but turned back after
one of the fiends the friend
fired a shot.
[14.4] Despite having
stated that M. turned back, T. mentions that later when they got to
the Appellant’s home, M. suggested
that they should take the
appellant back to where the incident took place and then call the
police.
[14.5] T. further
testified that the appellant said he was going to show the police
where his friends were but they did not find
them.  He then told
them that the cell phone is where he was hiding and the cell phone
was recovered there.  They recovered
two cell phones from the
grass.
[15]
The evidence of T. contradicts with the evidence of the complainant
regarding where they went after the police arrested the
appellant.
[16]
When confronted with his statement made at the police station, Thusi
changed and confirmed that the phone was found in the
appellants’
possession.
[17]
The reason for the postponement was for the state to subpoena V. who
allegedly alerted T. about the appellant’s whereabouts
and for
M. who allegedly turned back after a shot was fired.
[18]
It appears from the record that on the 18
th
of September
2012 when the case resumed, an affidavit was produced where the
Investigating Officer states that neither V. nor M.
could be found
despite his attempts to look for them.  The affidavit confirmed
that the complainant was approached and he
indicated that he knew
them facially and he does not know where they reside.
[19]
It is clear from the evidence of T. that he knew where V. stays; On
page 19 of the record T. was asked:
“
Do
you know V.’s addresss?”
Answer:  “No I
do not”
“
Would
you be able to point out the address to the police?”
Answer:  “Yes
I can”
It
is also clear from the evidence of T. that he knew where M. stays. “I
took another street; I told Qanisela that I will
inform Mr M. about
the incident first.”
[20]
From the above it can be inferred that M. is someone that the
complainant and his brother knew very well.
[21]
In my view, the evidence of the two state witnesses is riddled with
inconsistencies.  Some of the evidence is unreliable
and some of
the evidence seems to be false.
[21]
The court called the arresting officer, Figile Eric Motha.  He
testified that he arrested the appellant after he found
him being
assaulted by members of the public who told him, the appellant and
his friends had robbed people of their cell phones.
He then
took him to the Police Station.  The complainant’s cell
phone was found in his possession.
[22]
The version of the Police Officer contradicts the version of the
state’s witness that the cell phone was found in the
grass.
[23]
The contradictions in the state’s case are material and cannot
be attributed to mere lapses of memory.
[24]
The Appellant’s version is that he took the phone from the
complainant as security for the R100.00 (Hundred Rand) that
he lent
to him during a game of dice.  To his credit, the appellant
corrected his attorney who had put it to the complainant
that the
phone was returned to him.  The appellant indicated to his
attorney that the phone was found in his possession.
[25] In
S v Tshabalala
2003 (1) SACR 134
SCA
it was stated that in
determining the guilt of the accused the correct approach is to
“weigh up all elements
which point towards the guilt of the
accused against all those which are indicative of his innocence,
taking proper account of
inherent strengths and weaknesses,
probabilities and improbabilities on both sides and, having done so,
decide whether balance
weighs so heavily in favour of the state as to
exclude any reasonable doubt about the accused’s guilt.
The court cautioned
against wrongly latching on to one obvious aspect without assessing
it in the context of the full picture presented
in evidence.
[26] In my view the court
a quo
erred in finding that because the appellant did not make
an exculpatory statement, then the only inference was that he robbed
the
complainant.
[27] The court
a quo
also found the version of the accused not to be reasonably possibly
true because: “there is no indication that any money
was found
on him.  Where are his winnings”
[28]
In
S v Kubeka
1982 (1) SA 534
at 537 F-H Slomowitz AJ
,
stated that “The accused’s evidence did not impress me.
It contained various unsatisfactory features.
Whether I
subjectively disbelieve him is however not the test.  I need not
even reject the state’s case in order to
acquit him.  It
is not enough that he contradicts other acceptable evidence.  I
am bound to acquit him if there exists
a reasonable possibility that
his evidence may be true.  Evidence ought not to be looked
piecemeal and in isolation.
All of it should be analysed and
weighted together in determining whether the state has proved its
case beyond reasonable doubt”
[29]
In considering the totality of the evidence the following
deficiencies emerge in the state’s:
[29.1] It is questionable
why the two state witnesses lied about where the phone was found,
when the appellant was adamant that
it was found in his possession.
[29.2] Why were there no
other witnesses to confirm their version of events, especially M. and
V.?
[29.3] Is it probable
that  complainant and his friend, would chase three suspects
suspect armed with a firearm and a knife
while they were not armed.
[29.4] There were many
people there, but it appears that members of the community
apprehended the appellant on the information they
obtained from the
complainant and T.
[29.5] Despite clear
evidence that T. knew where to find V. and M., both of them could not
be located by the Investigating Officer
when they were required to
give evidence.
[30] Considering the
totality of the evidence, the evidence of the state witnesses
does not in my view establish the
guilt of the appellant beyond
reasonable doubt.  There is a reasonable possibility that an
innocent explanation which has
been put forward might be true.
[31]
In my view, the court
a quo
misdirected itself as it did not consider the totality of the
evidence in convicting the appellant.  As a result the appeal

against conviction should succeed.
The following order is
made:
1.
The appeal against conviction is upheld.
__________________________
P
D MOSEAMO
ACTING
JUDGE OF THE HIGH COURT OF PRETORIA
I
agree,
___________________________
T
A  MAUMELA
JUDGE
OF THE HIGH COURT OF PRETORIA
It
is so ordered.

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