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[2014] ZAFSHC 80
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Mokubeng and Others v S (A15/2011) [2014] ZAFSHC 80 (12 June 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No. : A15/2011
In
the matter between:-
THABO
VALENTINE
MOKUBENG
..............................................................................
First
Appellant
MDUDUZI
JOSHUA
NKOSI
.......................................................................................
Second
Appellant
ANDRIES
KHUMALO
....................................................................................................
Third
Appellant
and
THE
STATE
.............................................................................................................................
Respondent
CORAM:
RAMPAI, AJP
et
VAN
DER MERWE, J
et
MBHELE,
AJ
HEARD
ON:
2 JUNE 2014
JUDGMENT
BY:
RAMPAI, AJP
DELIVERED
ON:
12 JUNE 2014
[1]
This was an appeal. The first appellant, Mr Thabo Valentine Mokubung,
was tried together with two others, namely Mr Mduduzi
Joshua Nkosi
and Mr Andries Khumalo, as accused number 1, 2 and 3 respectively. At
the end of the trial they were all convicted
as charged. Following
their conviction they were all sentenced to an effective 12 year
imprisonment.
[2]
The first appellant came to us on appeal with the leave of the court
below granted on 13 July 2010. His two erstwhile co-accused
were not
before us in these appeal proceedings. Initially all three of them
were aggrieved by their convictions and sentences.
Originally
they all signalled their intention to appeal, but accused number 2
and accused number 3 did not prosecute their appeals
to their logical
conclusion. I shall revert to this aspect later on. From now on
I shall refer to the first appellant simply
as the appellant. On 30
July 2010 the appellant, after appointing new attorneys, filed a
fresh notice of appeal in which he indicated
that he would pursue his
appeal only as regards his conviction.
[3]
The three gentlemen were tried in the Phuthaditjhaba Regional Court.
There were three charges against them. The first was robbery
with
aggravating circumstances; the second unlawful possession of firearms
and the third unlawful possession of ammunition. They
pleaded not
guilty on 22 July 2008. All of them were legally represented. The
first appellant was represented by a certain Attorney
P.S. Mokoena, a
local public defender. Adv Mokoena appeared for the respondent.
[4]
Notwithstanding his plea, the appellant was found guilty on 2 April
2009. On the same day he was sentenced as follows:
·
In respect of robbery with aggravating
circumstances – 12 years imprisonment;
·
In respect of unlawful possession of
firearms – 10 years imprisonment;
·
In respect of unlawful possession of
ammunition – 5 years imprisonment.
The
trial magistrate made an order in terms of section 280(2) Act No 51
of 1977. He directed that the last two sentences run
concurrently with the first. Moreover, the trial magistrate
also declared the Volkswagen Golf 1600 TBS 278 GP forfeited to
the
State. The motor vehicle belonged to Mr Andries Khumalo,
accused number 3.
[5]
As regards his conviction, ten grounds of appeal were listed in the
appellant’s notice of appeal. Among others,
the appellant
contended that the regional magistrate erred in finding that he was
involved in the violent dispossession of the
victims, namely Mr Obed
Nhlapo and Mr Pieter Simpson –
vide
2 notice of appeal; that the appellant was in possession of a firearm
and ammunition –
vide
6 notice of appeal and that the evidence proved his guilt beyond
reasonable doubt –
vide
4 notice of appeal.
[6]
The version of the prosecution was narrated by eight witnesses.
They were
·
Mr Leputla Michael Ramasilo – the
owner of the house at Tsirela where the stolen goods were recovered.
·
Ms Selina Ramasilo – the
daughter-in-law of the aforesaid Mr L.M. Ramasilo.
·
Mr Pieter Simpson – the first victim
and driver of a cash carrier owned by Coin Security Services.
·
Mr Obed Nhlapo – the second victim, a
crew member of the cash carrier in the employ of Coin Security
Services.
·
Captain Lisbeth Makhabanyane – the
police officer in the forefront of the arrests of the suspects.
·
Constable Andries Molefe – the police
officer who found the firearms.
·
Mr Michael Pitout – the proprietor of
Coin Security Services and employer of the victims.
·
Inspector Mahlomola Mothapo – the
police officer who arrested accused number 3.
[7]
I deem it necessary to briefly deal with the prosecution version.
The undisputed facts were: that the two victims were
in the employ of
Coin Security Services; that they were at Setsing, the central
business district of Phuthaditjhaba, on 17 September
2007; that they
were attacked, assaulted and robbed of R114 756,49 and firearms,
among others; that the actual scene of the
crime was between the food
outlet known as Hungry Lion and the Capitec Bank; that Captain
Makhabanyane received a radio report
of the incident; that she
ascertained that a white sedan VW Golf was apparently involved.
[8]
The undisputed facts further showed that the police witnesses, acting
on a tip-off, proceeded to the house of the first state
witness, Mr
L.M. Ramasilo at Tsirela, where a white VW Golf 1600 with
registration number TBS 278 GP was found parked in an open
garage;
that inside the house an amount of R73 140,00 cash, briefcase,
bag containing firearms, 4 x firearms, 2 x receipt
books, keys were
found; that partially burned money bags were found outside the house,
but still on the property; that a young
man who was busy burning
those plastic bags was the son of state witness number 1, the owner
of the residential property; that
one firearm, two receipt books,
keys and plastic money bags were identified as goods stolen from the
victims at Setsing earlier
on that same day; that the appellant was
also found on the premises; that the appellant and accused number 2
had been staying there
for a few weeks as patients of state witness
number 1, who was a traditional healer; that accused number 2 was not
on the premises
at the time of the police raid.
[9]
The crisp issue in the case was the identity of the robbers.
The following factors were of utmost importance in that regard.
None of the eight prosecution witnesses positively identified the
appellant as one of the armed robbers on the scene. The
two
victims did not know what happened on the scene of the crime.
Mr Simpson could not identify the appellant as the man
who robbed him
or his fellow workman, Mr Nhlapo. The converse was also true.
Mr Nhlapo could not identify the appellant
as the man who robbed him
or his fellow workman, Mr Simpson. None of the remaining six
witnesses actually witnessed the robbery
incident at Setsing.
Over the radio, police Captain Makhabanyane received information
relayed from the radio control centre
about the incident.
[10]
The next radio message she received, came from Inspector Mothapo.
He told her that he had just seen a white Golf driven
at a high
speed. Besides that description, no further identificative
details concerning the provincial suffix letters, which
would
normally indicate the province in which the suspect car had been
officially registered, the prefix letters or the middle
number of the
registration plate of the suspect Golf were given to the captain or
seen by the inspector. Those three components
of a vehicle
registration plate are collectively designed to define and identify a
motor vehicle. The information given and
obtained by the police
was, therefore, materially unreliable to make a proper identification
of the vehicle involved. The
information was, therefore,
inadequate for the police to reliably identify the car used by the
robbers, if at all they did, to
get away from the scene of the crime
at Setsing.
[11]
There was absolutely no evidence tendered to show that accused number
3’s car, VW Golf 1600 TBS 278 GP, was indeed on
the scene of
the crime. The police were clearly not hot on the heels of the
getaway car at all times material to the incident.
It was clear
that they never saw the car involved. They made inquiries about
a white Golf. The only common features
between accused number
3’s car and the suspect car were the colour and the made.
That was where the descriptive similarities
ended. The police
were tipped off about accused number 3’s car, which had already
been parked in a garage. There
was certainly a clear passage of
time between the parking of the car and its discovery by the police.
In the absence of cogent
evidence that accused number 3’s car
was in fact actually seen on the scene at Setsing and that it was in
fact used by the
robbers to flee from the scene, a reasonable doubt
must have existed whether a similar car found parked at Tsirela, some
distance
from the scene, was in fact involved.
[12]
It was also significant to bear in mind that accused number 3 was
alone when he arrived back and parked the car. There
were no
passengers. Neither the appellant, or accused number 2 were
seen inside his car by any witness. Virtually nothing
incriminating was found inside his car or in his possession.
The evidence of Mr Ramasilo that the police were chasing the
appellant’s car was inconsistent in many respects with the
testimonies of all the police witnesses. The evidence of
Mr
Ramasilo represented the high watermark of the prosecution’s
case against accused number 3. Unlike the appellant
and accused
number 2 there was no allegation that accused number 3 was seen
carrying any plastic money bag.
[13]
Mr Ramasilo alleged that he saw the appellant and accused number 2 in
his bedroom. He saw them taking the money out of
the bags –
yet he did nothing and said nothing about it. His evidence in
court that he did not venture to enter his
bedroom was pathetically
unconvincing. Questioned by the police about the money and all
the highly incriminating goods found
in his bedroom, he was very
evasive. The gentleman was an important witness in the
case. Not so much for what
he said to the world in court but
rather for what he did not say to the police on his property at the
time he was confronted about
the hot potatoes found in his bedroom.
He withheld information. He did not inform the captain despite,
repeated questions,
that the appellant and accused number 2 had
just arrived carrying bags; that they took those bags into his
bedroom and that
he saw them together with accused number 3 in his
bedroom shortly before the police arrived. At one stage during
the course
of the trial he claimed that his memory was poor and that
he was visually impaired in one eye. The uncertainty thickens
when
it is borne in mind that he had been consuming intoxicating brew
shortly before the police arrived.
[14]
On the residential property of Mr Ramasilo, the police found a man
busy burning plastic money bags belonging to Coin Security
Services.
The man turned out to be Mr Ramasilo’s son, Mr Teboho
Ramasilo. Teboho was found in possession of goods
identical to
those stolen from the victims less than an hour earlier at Setsing.
Worst still, he was caught red-handed deliberately
destroying deadly
incriminating pieces of evidence. In
S
v Rama
1966 (2) SA 395
(A) at 400A
– E the court held that when a person is found in possession of
recently stolen goods he is presumed to have
acquired possession
thereof through direct participation in the actual stealing of such
goods, unless he can give a reasonably
innocent explanation for his
possession. Mr Teboho Ramasilo and his father certainly had a
far stronger case to answer, than
the appellant in order to explain
their possession. We know now that none of them could give any
contemporaneous and innocent
explanation at the time they were
interrogated.
[15]
There was a strong connective tissue between the scene of the robbery
at Setsing and the scene of the recovery at Tsirela.
Mr
Ramasilo Snr was the lawful owner of the residential property where
the loot was recovered soon after the robbery. As
such he was
presumed by law to be the possessor of the loot found on his property
unless he could give a reasonably innocent explanation
as to how he
acquired possession of such stolen goods – the firearm(s), the
keys, the receipt books, the briefcase, the guns
bag, and plastic
money bags all of which were identified as goods belonging to Coin
Security Services. The principle in
S
v Rama
supra
applies to him as well with equal force.
[16]
The evidence seemed to indicate that father and son were very
culpable. I have a feeling, and it is a very strong feeling,
that Mr Ramasilo Snr probably had a motive to falsely incriminate the
appellant and his erstwhile co-accused in order to protect
Mr
Ramasilo Jnr and to diminish the role he himself probably played in
this criminal enterprise. For some inexplicable reasons,
Mr
Ramasilo Jnr was never charged. So was Mr Ramasilo Snr.
Mr Ramasilo Snr was in fact a single witness. In my view
his evidence
was of a very poor quality. It was unsatisfactory in many
material respects. He was an untrustworthy witness.
The
two counsel before us were
ad idem
that he should have been
charged and perhaps offered the protection in terms of section 204.
It was not done.
[17]
Mr Van der Merwe, counsel for the appellant, submitted that the
salient principle of inferential reasoning was misapplied by
the
trial magistrate. The inference drawn by the regional
magistrate from the circumstantial evidence was not the only
inference
that could reasonably be drawn from the proven facts.
The proven facts did not exclude every other possible and reasonable
inference other than that drawn by the regional magistrate. I
am in respectful agreement with counsel’s submission
–
R
v Blom
1937 AD 188
[18]
To sum up: I have to stress that there was no evidence: that the
firearms were used to rob the victims; that the appellant
ever had
any firearm in his possession anywhere on the day in question; and
that accused number 2 who was arrested in the nearby
mountain was the
same topless fugitive who was seen running away from the scene where
the incriminating goods were recovered.
Finally the admission
of accused number 3 that he owned the car in question did not take
the prosecution case anywhere. Whether
he was arrested on Mr
Ramasilo’s property, like the appellant, or in the nearby
mountain like accused number 2 – was
of no moment. None
of the three was, without any reasonable doubt, proven to have
actually participated in the criminal enterprise.
Their
convictions were shrouded by heavy clouds of doubt. The prime
suspects were let off the hook by the police.
[19]
Certainly there is a lingering cloud of suspicion that the three
gentlemen, in collaboration with Mr Ramasilo Snr and his son,
Mr
Teboho Ramasilo, were involved. But it always has to be borne
in mind though, that suspicion of guilt, however strong,
can never be
enough to secure proper conviction –
S
v Ralukukwe
2006 (2) SACR 394
(SCA).
[20]
Ms Bester, counsel for the respondents, submitted that she could not
support the conviction of the appellant or any of his
erstwhile
co-accused. I have already covered all the reasons she advanced
in support of her stance. I am indebted to her
for her responsible
attitude.
[21]
On the facts, I am persuaded that no cogent reasons existed to
justify a conclusion that the state had succeeded in establishing
the
guilt of the appellant beyond a reasonable doubt. The same
applies equally well to his erstwhile co-accused, Mr Nkosi
and Mr
Khumalo. To the extent that the regional magistrate concluded
otherwise, it is my respectful view that he erred.
There was no
credible and reliable evidence, direct or indirect, to sustain the
inference drawn by the regional magistrate.
In my view none of
them could have been correctly convicted on the strength of the
doctrine of recent possession or the cardinal
rules of logic that
underpin the principle of inferential reasoning. The relevant
principles were, with respect, misapplied.
Such misapplication
constituted material and appealable misdirection. I would therefore
uphold the appeal. The grounds of
appeal earlier enumerated are
hereby sustained.
[22]
By virtue of the inherent powers vested in us as a court with
appellate jurisdiction, I am inclined to extend a similar relief
to
the appellant’s erstwhile co-accused even though they were not
before us in these appeal proceedings.
[23]
There remains one more aspect to deal with. The vehicle of
accused number 3 was declared forfeited to the state.
In view
of the conclusion I have reached on the substantive merits of the
appeal, it follows that the forfeiture order cannot be
allowed to
stand. It was not shown beyond reasonable doubt that accused
number 3’s vehicle was used as an instrument
for the
furtherance of the criminal activity we had to wrestle with in this
appeal. That being the case, I am inclined to
set aside the
forfeiture order relating to the vehicle.
[24]
Accordingly I make the following order:
24.1
The appellant’s appeal against his
conviction succeeds.
24.2
The conviction and sentence of the
appellant in respect of all the charges are set aside.
24.3
The convictions and sentences of accused
number 2 and 3 are likewise also set aside.
24.4
The order whereby the motor vehicle
belonging to accused number 3, Mr Andries Khumalo was declared
forfeited to the state is also
set aside.
_________________
M.
H. RAMPAI, AJP
I
concur.
________________________
C.
H. G. VAN DER MERWE, J
I
concur.
________________
N.
M. MBHELE, AJ
On
behalf of appellant: Adv R. van der Merwe
Instructed
by:
Zehir
Omar Attorneys
SPRINGS
c/o
Ben van der Merwe Attorneys
BLOEMFONTEIN
Ref:
PW/dg/BR1531
On
behalf of respondent: Adv A. Bester
Instructed
by:
Director
Public Prosecutions
BLOEMFONTEIN