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[2014] ZAFSHC 157
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Molefe v S (A6/2014) [2014] ZAFSHC 157 (11 September 2014)
THE
HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No. A6/2014
In
the matter between:
TEBOHO
JOSHUA MOLEFE
…............................................................................................
Appellant
versus
THE
STATE
…........................................................................................................................
Respondent
CORAM
:
NAIDOO, J
et
WRIGHT
AJ
JUDGMENT
BY
:
NAIDOO,J
HEARD
ON
:
28
JULY 2014
DELIVERED
ON:
11 SEPTEMBER 2014
NAIDOO,
J
[1]
The appellant faced a charge of Robbery with Aggravating
Circumstances, read with the relevant provisions of Act 105 of 1997
(the Minimum Sentences Act) in the Sasolburg Regional Court and was
convicted as charged on 30 March 2010. He was sentenced to
ten (10)
years’ imprisonment. His application for leave to appeal
against his conviction and sentence was refused by the
Regional
Court, as a result of which he petitioned the Judge President of this
Division for leave to appeal against such conviction
and sentence.
The petition was granted, and he now appeals to this court. Mr R van
Wyk, who appeared for the appellant, indicated
that the appeal lay
only in respect of the conviction. Mr Chalale appeared for the State
in this court.
[2]
The background in this matter, briefly, is that the complainant,
Petrus Gauta Lethoba (Lethoba) was a security guard in the
employ of
Springbok Fuel Company but was deployed to Siyaya Fuel where he
worked at the time of this incident. In the early hours
of 26 May
2008, he was attacked by four men who stormed the guardroom where he
was. Two of the assailants wore "cappa”
hats or similar
head gear making it impossible for him to see their faces. He did not
see the faces of the other two. He was severely
assaulted and lost
consciousness. When he regained consciousness, two tankers, laden
with fuel, one with petrol and one with diesel,
were missing. It
seems that the men who attacked him managed to get hold of the keys
for the two vehicles and drove off with them.
His evidence was that
he was unable to identify any of his assailants. He was stabbed and
also appears to have been threatened
with a firearm. He also knew the
appellant well because the latter worked as a driver for the same
company. Lethoba did not see
the appellant there at the time he was
attacked and assaulted.
[3]
The manager of Siyaya Fuel, JP Dorfling, confirmed the theft of the
two trucks with tankers, and provided details of the registration
numbers, the amount of fuel in each truck and the value thereof. He
confirmed that the accused was a driver in the employ of Siyaya
Fuel,
but at the time of this incident, he had been suspended from work for
reasons unrelated to this incident. Dorfling
also testified
that a private investigator was engaged to trace and recover the
trucks. Both trucks, with the tankers were recovered,
the one with
diesel was empty and the one with petrol had about 2000-3000 litres
of petrol still in the tanker. It originally carried
over 45000
litres of petrol.
[4]
Daniel Jakobus Day confirmed that he was the private investigator
that was engaged to track down the missing trucks. Using
the records
of the tracking company, he identified the premises of a company
called Risco Fuels in Benoni, Gauteng where the diesel-laden
truck
had stopped for a long time. After keeping the premises under
surveillance, he approached two men, Som Padayachee and Nizam
inside
the premises who confirmed that they had earlier that day received
diesel from a driver who worked for Siyaya or Springbok
Fuel
Company. Padayachee and Nizam were advised that the fuel they
received was stolen. They then returned 26 000 litres
of fuel to
Siyaya Fuel. This witness was not involved in the physical recovery
of the vehicles.
[5]
The Investigating Officer, Isaac Tshabalala, acting on the
information given to him by the private investigator, made contact
with Som Padayachee and Nizam, and obtained statements from them. He
then took Padayachee, (who was accompanied by his brother
Krish) to
the premises of Siyaya Fuel, and while there, Padayachee saw the
appellant and pointed him out as the person who was
pumping the
diesel into his tank. The accused was arrested, and a few days later
an identification parade was held at which Som
Padayachee and Nizam
identified the appellant.
[6]
Tshabalala also testified that he obtained the cellular telephone
records of the appellant, which showed that he and Nizam as
well as
he and Padayachee had been in contact with each other. The telephone
records also showed that the appellant was around
the Sasolburg area
at the time of the commission of the offence. Tshabalala also said
that the appellant had told him that he had
received the truck from
somebody, but did not furnish him with the name or names of such
persons. This particular bit of evidence
was not contained in
Tshabalala’s statement which was handed up as an exhibit.
[7]
Somasurand Padayachee testified that he and his brother Krish
Padayachee owned a business called Risco Fuels. Nizam was employed
by
him to run the fuel depot. Padayachee confirmed that he had seen the
appellant previously, when the latter delivered fuel to
his depot in
the early hours of 26 May 2008. The appellant was in the company of
another man who Padayachee did not see too well
on account of the bad
weather. After the diesel was pumped into his tank, the appellant and
this other person climbed into the
truck that delivered the fuel and
left. Padayachee also indicated that he had telephonic contact with a
person called “Josh”
who had initially offered the diesel
to him, and then the following morning “Josh” called him
to ask if everything
is ok. The initial contact was in the early
hours of the morning of 26 May 2008, before the delivery of the
diesel to his fuel
depot. He provided his cellular telephone number
to the court. It is noted that the appellant’s middle name is
Joshua. Apart
from his vehicle and the truck belonging to Siyaya
Fuel, Padayachee did not see any other vehicle on his premises. He
also confirmed
that he pointed the appellant out at an identification
parade.
[8]
After the appellant’s application for a discharge in terms of
section 174 of the Criminal Procedure Act (the Act) was
refused, the
appellant testified in his defence. His version was that he was
contacted by a person called Sibali, who was employed
as a driver by
Siyaya Fuel, to assist with directions to the premises of Padayachee.
The appellant then offered to take him there,
which he did. Upon
finding the gate locked when they arrived, he telephoned Nizam, who
subsequently arrived and opened the gate
for him. He was driving his
own vehicle at this stage, which he drove into the yard. He denied
making contact with Padayachee or
concluding any transaction with
him. He also indicated that Sibali had used his mobile telephone that
day. He denied leaving the
premises in the truck that delivered the
diesel, alleging that he drove away in his own vehicle.
[9]
After the defence closed its case, the court called Amanda Fourie, a
Forensic Liaison Supervisor employed by Vodacom, the cellular
telephone service provider. Part of her duties is to supply data to
the police, attorneys and civil organisations and to assist
in
interpreting call data in court. She was asked to shed more light on
the records relating to the accused’s cellular telephone.
She
testified that the records reflected that the SIM card of number
belonging to the appellant was used in two different handsets
during
the period 24 May to 27 May 2008. Ms Fourie also indicated that there
was telephonic contact at various times of the day
and at night
between the appellant’s cellular telephone number and that of
the state witness Padayachee since 24 May 2008.
Her further evidence
was that the call data records presented in court did not reflect any
missed calls to the telephone number
of the appellant. The court
recalled Padayachee to explain the new evidence that had come to
light. The latter testified that his
cellular telephone was also used
by his manager Nizam, so he is unable to say if there was contact
between Nizam and the appellant.
The court gave the state and defence
the opportunity to reopen their cases in the light of the new
evidence introduced by Ms Fourie
and the explanation by Padayachee,
but both declined to do so. The appellant was thereafter convicted
and sentenced.
[10]
The appellant correctly did not pursue the ground of appeal that the
magistrate entered the arena by virtue of calling witnesses
after the
state and defence closed their cases. The judgment of the court a quo
was assailed on a number of grounds, one being
that there is clear
evidence that the appellant was not one of the people that attacked
the complainant, Lethoba. Although the
complainant was not able to
identify his assailants and specifically said that he did not see the
appellant when he was attacked,
it appears that the magistrate
considered the evidence as a whole, for example,
a.
the relevant telephone records, which were admitted by the
appellant, indicate that he was in the Sasolburg area at the
time of
the attack upon the complainant,
b.
the photograph album which was also admitted by the appellant and
handed in by consent indicates (on photo1) that Siyaya Fuel
is
situated in Sasolburg. The contention in the appellant’s Heads
of Argument that there is no evidence about where Siyaya
Fuel is
situated is therefore not sustainable,
c.
the appellant confirmed the evidence of Padayachee that he was at the
latter’s fuel depot just hours after the two trucks
were stolen
from the premises of Siyaya Fuel,
d.
Daniel Day’s evidence was not challenged at all and he was able
to track the stolen vehicles’ movements via the records
of the
tracking company. On investigating the premises where the diesel
laden vehicle had stopped for a long time, he uncovered
the sequence
of events described above. The magistrate was correct in finding that
the truck that was stolen from Siyaya’s
premises was in fact
the one that offloaded diesel at Padayachee’s premises,
e.
the telephone records handed in showed numerous telephonic
interactions between the appellant’s telephone and Padayachee’s
telephone days before the incident, as well as shortly before, during
and after the incident, negating his version that the driver
Sibali
is the person who contacted Padayachee and that he (the appellant)
had no contact with Padayachee.
In
addition, it is noteworthy that the appellant’s version was not
put to any of the state witnesses, except Padayachee. Lethoba
and
Dorfling would have been eminently in a position to confirm whether
or not there was a person called Sibali employed by Siyaya
Fuel at
the time and whether he was assigned to driving a vehicle on the
night in question.
[11]
I do not, however agree with the magistrate’s acceptance of
Tshabalala’s, evidence regarding the statement that
the
appellant allegedly made to him indicating that he had received the
truck from some other person, but would not furnish that
person’s
name or contact details. Although this evidence was elicited in
cross-examination, I am of the view that no reliance
can be placed on
it, given that it was not mentioned by Tshabalala in his written
statement, which was handed in as an exhibit
or in his evidence in
chief. Had the appellant made such a statement to Tshabalala, it
would have constituted an important bit
of evidence indicating the
appellant’s complicity in the commission of the offence.
Tshabalala would have been unlikely
to have omitted this from his
statement. Having said that however, I am of the view that even if
that evidence is excluded, the
magistrate’s reasoning regarding
all the other evidence cannot be faulted.
[12]
I am, therefore satisfied that the magistrate correctly convicted the
appellant on the basis of the evidence referred to in
paragraph (10).
I do not agree with Mr Van Wyk’s contention that Lethoba’s
evidence that he did not see the appellant
during the attack on him
proves that the appellant was not present. Two of the assailants wore
head gear that obscured their faces.
The magistrate correctly held
that it was entirely possible for one of those two people to have
been the appellant, whose face
Lethoba could not see. When this is
considered in the light of the telephonic records, the possibility of
the appellant being one
of the assailants is greatly increased, as he
was clearly in the Sasolburg area at the time of the attack. The
telephone records
also indicate contact between the appellant and
Padayachee and/or Nizam days prior to the incident, shortly before,
during and
shortly after the incident, as well as a day after the
incident. This points to the fact that the appellant had contact with
the
buyers over an extended period, from which it can reasonably be
inferred that the appellant was involved in or had knowledge of
the
intended robbery, with which he actively associated himself. The fact
that there were no missed calls recorded in the call
data also
disproves the appellant’s version that any calls he made
to Padayachee’s telephone would have been
in response to missed
calls he received on his telephone. His failure to react to Ms
Fourie’s evidence, at the invitation
of the magistrate, is also
telling. He would have been able to give an explanation for the
number of calls and the reasons therefor
to substantiate his claim of
innocence. His confirmation that he was at the premises of
Risco Fuels shortly after the robbery
is a strong indication that his
involvement in the incident goes beyond merely providing directions
to Sibali. In any event, I
am of the view that if Sibali does exist,
he was simply a pawn in the game, where the appellant was one of the
main players. The
fact that the appellant’s version was not put
to the two witnesses who were able to confirm Sibali’s
existence indicates
that Sibali may well have been a figment of the
appellant’s imagination.
For
these reasons, I am satisfied that the appellant was correctly
convicted by the court
a quo
.
[13]
In the circumstances, the following order is made:
1.
The appeal is dismissed;
2.
The conviction and sentence are confirmed.
___________
S.
NAIDOO, J
I
agree.
________________
G.J.M.
WRIGHT, AJ
Counsel
for Appellant:
Mr K. Pretorius
Instructed
by:
Bloemfontein Justice Centre
Counsel
for the Respondent:
Mr L Zweni
Instructed
by:
The State