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[2013] ZAKZPHC 35
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Qwabe v S (AR 102/2012) [2013] ZAKZPHC 35 (24 June 2013)
IN
THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
(REPUBLIC
OF SOUTH AFRICA)
Case
No: AR 102/2012
In
the matter between:
NDUMISO
QWABE
...........................................................................................
APPELLANT
and
THE STATE
..................................................................................................
RESPONDENT
JUDGMENT
HARTZENBERG,
A.J
:
The Appellant (who was Accused No 2
at the trial) along with one Sphelele Shobede (who was Accused No 1
at the trial) were convicted
in the Regional Court at Eshowe on 5
March 2010 of Robbery with aggravating circumstances in that they
had robbed one Khulekane
Bhengu on 9 February 2008 of several items,
including a Toyota Tazz motor vehicle, two mobile telephones, a
men’s gold
necklace and a wrist watch. The Appellant, after
the learned Regional Magistrate found that he had committed the
offence under
peer pressure from Accused No 1 and that this
constituted “substantial and compelling circumstances”
as contemplated
in terms of s 51(3) of Act 105 of 1997, was
sentenced to 12 years’ imprisonment.
The circumstances giving rise to the
Appellant’s conviction and sentence were briefly as follows:
The complainant, who was
at the time employed as a security guard
with Coin Security, and his girlfriend were in the complainant’s
house, in the
bedroom during the night of 9 February 2008. The
complainant saw two people storm into the room, having kicked open
the door.
The one intruder wore a balaclava, and the other a hat.
The face of the latter intruder was however sufficiently visible to
the
complainant for him to identify the person by his facial
features. One of the intruders carried an object looking like a
small
axe, while the other carried an object resembling a firearm.
The electric light which illuminated the area outside the house,
shone into the room, with the door open. Outside the house the area
was lit. The intruders forced the complainant to hand over
his motor
vehicle keys. They also demanded his firearm but, since he did not
have his firearm (used for his employment) with
him, he was unable
to comply with such demand. He was then pulled to his motor vehicle.
They demanded that he show them how to
operate the motor vehicle,
which was a Toyota Tazz. He had purchased the vehicle in terms of an
instalment sale agreement. The
purchase price of the vehicle was R
52 000. With the addition of finance charges, his indebtedness in
respect of the vehicle
was some R 78 000. One of the assailants at
that stage busied himself with starting the vehicle, while the other
proceeded to
remove a number of items from the bedroom. These items,
together with certain items removed from the motor vehicle itself,
are
listed in the charge. Certain events took place during the early
morning of Sunday, 10 February 2008, implicating both the Appellant
and Accused No 1 in the robbery. These events will be dealt with
later. The Appellant and Accused No 1 were however only arrested
during November 2008. The vehicle, it must be mentioned, was however
recovered on 11 February 2008 when an unsuccessful attempt
was made
to arrest Accused No 1. Some of the other movable items which are
mentioned in the charge were however only recovered
subsequently.
The complainant, in his evidence in
chief, identified several of the items which he lost during the
robbery. These included a
motor vehicle sound system speakers
(including two so-called sub-woofers inside the speakers) (Exhibit
1), a Nokia N70 mobile
telephone (Exhibit 2A), a necklace which the
complainant recognised by the “small squares” on the
design thereof
(Exhibit 2B), as well as a total of 8 CD’s or
DVD’s, which included 5 CD’s or DVD’s which the
complainant
recognised as his property (Exhibit 2C). It must be
mentioned that the mobile telephone was identified by the
complainant with
reference to a scratch he purposefully made on the
telephone casing, which he identified. He also said that when the
mobile telephone
was returned to him, it still had his telephone
numbers which he stored on the so-called “phonebook” of
the instrument,
and also had some of his personal photographs stored
in it. The complainant’s evidence with regard to the recovery
and
identification of the mobile telephone was corroborated by the
evidence of Detective Constable Porter. His evidence was that
although both Accused were only arrested some 9 months after the
events described above, he, shortly after the happening of the
events, traced both accused and on Monday 11 February 2011, made an
attempt to arrest Accused No 1. Accused No 1 however escaped
and
fled. When doing so, Accused No 1 dropped the mobile telephone as he
was running away. When Porter picked up the mobile telephone
he saw
photographs of both Accused No 1 (then being a suspect) and the
complainant on the mobile telephone. The so-called IMEI
number on
the mobile telephone matched the IMEI number which was given to him
by the complainant. Accused No 1 eventually handed
himself over at
the Eshowe Police Station during November 2008.
Constable Porter arrested the
Appellant, on 12 November 2008. The Appellant was arrested at the
same place where Accused No 1
had fled to. Constable Porter said
that the speakers were recovered by him from one of the prosecution
witnesses, one Mr Emmanuel
Zibane, who confirmed that he, on 12
February 2008, purchased the speakers for an amount of R 600 from
two persons, one of whom
he identified as the Appellant. He paid the
Appellant R 100 and said that he, that is the Appellant, should
return for payment
of the balance of the purchase price, later. The
Appellant never returned. On 13 November 2008 Mr Zibane was
approached by the
Police when he handed the speakers to them. This,
according to Mr Zibane happened in the presence of the Appellant. In
this regard
we point out that there is a conflict between the
evidence of Mr Zibane on the one hand, and that of Constable Porter.
The latter
said that the Appellant was not present when the speakers
were recovered from Mr Zibane. In my view, this conflict between the
evidence of these witnesses, however, is the type of conflict one
may expect, where witnesses, though completely honest and reliable
otherwise, may have forgotten certain details, more especially,
having regard to the fairly long period of time which had elapsed
between the happening of the relevant events and the time when they
gave their evidence.
Constable Porter also testified that
when he recovered the speakers, the Appellant was at the Police
Station. None of the items
mentioned in the charge were recovered
from the Appellant himself. What shall be explained, more fully
later, is that the evidence
implicating the Appellant in the
robbery, is largely confined to him having been seen in the early
hours of the morning of 10
February 2008, in the motor vehicle in
the company of Accused No 1 and, having sold the speakers to Mr
Zibane. One of the important
prosecution witnesses, upon whose
evidence the conviction of the Appellant vitally depended, was one
Mr Ntutuko Sikwazi Mkhize.
He was referred to in the evidence and in
the judgment of the Magistrate as Sikwazi. I shall refer to him as
Mr Mkhize. According
to Mr Mkhize, the Appellant and Accused No 1
arrived at his home at approximately 04h00 on the morning of Sunday
10 February
2008. Mr Mkhize knew both of them. In fact, the
relationship between Mr Mkhize on the one hand, and both Accused No
1 and the
Appellant, appeared to have been a close one. Mr Mkhize
described Accused No 1 as a friend. He referred to the Appellant as
his
neighbour. In order to complete the factual background, it must
further be mentioned that when the vehicle was recovered, it was
damaged. It had been driven into a drain or a ditch. It had
sustained frontal and other damage, including a broken windscreen
and damage to the roof. At the time of its recovery, the movable
items referred to in the charge had been removed. The speakers
had
also been removed from the vehicle. The speakers formed part of the
sound system of the vehicle.
Counsel for the Appellant submitted
that the case against him was based on circumstantial evidence and
that in large measure the
case for the prosecution rested on the
evidence of Mr Mkhize who was essentially a single witness. He
criticised the evidence
of Mr Mkhize on a number of grounds and
contended that such evidence was not sufficiently reliable to
sustain the Appellant’s
conviction.
With regard to the applicable legal
principles I make the following observations:
Watermeyer JA (as he then was) in
R
v BLOM
1
made the following statement which
has been firmly embedded in our jurisprudence:
“
In reasoning by inference
there are two cardinal rules of logic which cannot be ignored:
The inference sought to be drawn
must be consistent with all the proved facts. If it is not, the
inference cannot be drawn.
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 doubt whether the inference sought to
be drawn is correct.”
2
Where a suspect, or accused who is
confronted with having possessed part of the goods stolen or robbed
from the complainant
falsely denies such possession altogether, or
gives a false explanation as to how he obtained such possession,
the Court, in
an appropriate case, is entitled to draw an inference
against the accused that he had stolen or robbed the goods or all
of
the goods lost by the complainant, even if the accused is proven
to have had possession of only some of the goods lost by the
complainant. In this regard I draw attention to the following
statement by Rumpff JA (as he then was) in
S
v RAMA
3
:
“
The
appellant was charged with theft and he falsely denied possession of
the stolen watches. In my view the trial Court was entitled,
in all
the circumstances of the case, to draw the extreme inference, namely
that of theft of the two boxes. In this connection
the remarks by
Malan, JA, in a minority judgment in the case of
R
v MLAMBO,
1957(4) SA 727 (AD) at p 737, are,
mutatis
mutandis
,
appropriate. Having dealt with the facts of that case, a murder
charge, he stated:
‘
If
an assault – using the term in its widest possible acceptation
– is committed upon a person which causes death either
instantaneously or within a very short time thereafter and no
explanation is given of the nature of the assault by the person
within whose knowledge it solely lies, a court will be fully
justified in drawing the inference that it was of such an aggravated
nature that the assailant knew or ought to have known that death
might result.’
I prefer, on the facts
of that case, the view set out above to the view expressed in the
majority judgment. In my opinion this Court
should not have held that
the trial Court was wrong, even though this Court, as the original
judex facti
, might not have arrived at the trial Court’s
conclusion. Pursuant to that, I also agree with the following
observations at
p 738 by Malan, JA, in that judgment:
‘
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. He must in other words, be morally certain of the guild of
the accused.
Moreover, if
an accused deliberately takes the risk of giving false evidence in
the hope of being convicted of a less serious crime
or even,
perchance, escaping conviction altogether and his evidence is
declared to be false and irreconcilable with the proved
facts a court
will, in suitable cases, be fully justified in rejecting an argument
that, notwithstanding that the accused did not
avail himself of the
opportunity, to mitigate the gravity of the offence, he should
nevertheless receive the same benefits as if
he had done so.”
4
In considering whether an inference
of guilt can or should be drawn against an accused from his “recent
possession”
of goods or movables taken from a complainant in
a theft or robbery, all the relevant circumstances, including the
nature of
the goods or movables, and the time lapse between the
time of the commission of the offence and the time when the accused
was
found to be in possession of the goods or movables, must be
taken into account. Possession of articles of the type which are
usually and easily and rapidly disposed of, within even a
relatively short period of time after the commission of the
offence,
is less likely to give rise to an inference of guilt. On
the other hand, possession of a distinctive article for which
limited
demand exists, even after the lapse of a considerable
period of time following the commission of the offence may, in
appropriate
circumstances, give rise to an inference of guilt,
especially in the absence of a satisfactory exculpatory explanation
for
such possession.
5
Both the Appellant and Accused No 1
were represented by the same attorney in the trial before the
Regional Court. It must be assumed
therefore that the Appellant and
Accused No 1 had made common cause with regard to their versions of
the relevant events. Important
aspects of the Appellant’s
version of what transpired, are the following: First, he denied that
he was implicated in the
robbery. He denied that he was at Mr
Mkhize’s house early during the morning of 10 February 2008.
His version when he gave
evidence was that he sold the speakers to
Mr Zibane for R 600. He claimed however that he did so as agent for
Mr Mkhize.
Accused No 1 at the trial, while
denying that the Appellant was with him during the early morning of
Sunday 10 February 2008,
at Mr Mkhize’s house, said that it
was one Vumani Hadebe who drove the vehicle on that morning.
According to Accused No
1 he was satisfied that Mr Mkhize also saw
Vumani Hadebe driving the vehicle. It is further important to bear
in mind that the
brother of Accused No 1, Vumelani Kingdom Shobede,
who was called by the defence, contradicted the evidence of Accused
No 1 in
that he said that Accused No 1 arrived in the motor vehicle.
According to Accused No 1’s brother, upon enquiry, Accused No
1 first said that the vehicle was his sister’s vehicle but
later said it was a friend’s vehicle. That was the morning
when Constable Mncube made an attempt to arrest Accused No 1. It was
also on that morning that the vehicle was recovered.
In my view, the learned Magistrate
correctly found that, on the evidence, the Appellant was the second
assailant who, alongside
with Accused No 1 perpetrated the robbery
on the complainant. My reasons are as follows: Although there are
certain imperfections
in the evidence of Mr Mhize, the overall
assessment of that part of his evidence, to the effect that both the
Appellant and Accused
No 1 arrived at his house in the vehicle
during the early hours of Sunday 10 February 2008, cannot be
criticised. He was a friend
of Accused No 1 and knew both accused.
The Appellant was his neighbour. According to him, Accused No 1
drove the vehicle. The
Appellant later “went home”.
According to him, the Appellant “came with” the
speakers. In the morning,
which I understand to mean later that same
morning, the Appellant told Mr Mkhize that he left the speakers in a
smaller building
behind the main house. Both he and the Appellant
went and looked at the speakers. The evidence, in my view,
establishes that
these were the speakers which were sold by the
Appellant to Mr Zibane. This part of Mr Mkhize’s evidence is
inherently
probable and no other plausible explanation for him being
involved with the speakers, suggests itself, on the evidence.
Moreover,
I disagree with counsel’s submission that it was
improbable that Accused No 1 and the Appellant would have woken Mr
Mkhize
early on the morning of Sunday 10 February 2008, when they
brought some beers. It seems that Mr Mkhize and Accused No 1 and the
Appellant had a close and longstanding friendship, since about 2001,
and such occurrence was not unusual, as was explained by
Mr Mkhize
under cross-examination. Mr Mkize’s denial with regard to
gambling taking place at the time is understandable.
He said he was
sleeping, suggesting that others may have been gambling, although he
did not see them gambling or participate
in the gambling. The
evidence of the witness Msomi, called by the defence, it must be
pointed out, is vague and on the face of
it, is not to the effect
that Mr Mkhize himself participated in any gambling from about 22h00
during the evening of 9 February
2008 to dawn the next morning.
According to him, one Vumani arrived in the vehicle and participated
in the gambling. Mr Mkhize’s
evidence was merely to the effect
that the Appellant, during the morning of Sunday 10 February 2008
informed him that he had
left the speakers at the premises, in a
toilet building at the rear of the main house.
What in my view, presents an
insurmountable obstacle to the Appellant, is his explanation of how
it came about that he sold the
speakers to Mr Zibane. According to
the Appellant, Mr Mkhize, fabricated his evidence implicating him in
bringing the speakers
to Mr Mkhize’s premises and in
discussing it with him during the morning of Sunday 10 February
2008. When Mr Zibane was
cross-examined by the attorney for the
defence before the Regional Magistrate, it was put to him that the
accused, presumably
being a reference to the Appellant, had
instructed the attorney that Mr Zibane gave to Appellant and amount
of R 300 and not
R 100. When the Appellant gave evidence he said
that Mr Zibane gave the money to Sikwazi, being a reference to Mr
Mkhize. On
the Appellant’s version, it was he, that is the
Appellant, who took Mr Zibane to Mr Mkhize’s house, presumably
to
fetch the speakers after Mr Zibane had bought them from the
Appellant. The Appellant accordingly accused both Messrs Mkhize and
Zibane of fabricating evidence against him. This, despite the fact
that Messrs Mkhize and Zibane did not know each other. The
dilemma
which the Appellant had was that on Accused No 1’s version, it
was Vumani Hadebe who had arrived in the vehicle
at Mr Mkhize’s
home during the morning of 10 February 2008. If, that is not so, as
will be illustrated below, there is
no other explanation on the
evidence, apart from Mr Mkhize’s version, as to how the
speakers came onto his premises. For
the reasons, which follow, I
find that both the Appellant’s denial of Mr Mkhize’s
version with regard to the speakers,
and Accused No 1’s
version in relation to Vumani Hadebe, are false. Accused No 1’s
brother, Vumelani Kingdom Shobede,
who was a defence witness (the
relevant part of the record relating to his evidence having been
reconstructed), contrary to the
evidence of Accused No 1, said that
it was Accused No 1, who on the morning of 10 February 2008, was
driving the vehicle. According
to him, Accused No 1 first claimed
that it was his “sister’s vehicle”, but later said
that it was his “friend’s
vehicle”. The brother
confirmed that the Police chased Accused No 1 on the morning in
question. He said nothing about Vumani
Hadebe’s involvement
with the vehicle. Moreover, another witness called on behalf of the
defence, Mr Msomi, stated that
the person who brought the vehicle to
Mr Mkhize’s house was a “boy”. According to him,
Vumani Hadebe during
the Sunday morning in question, sent Accused No
1 to buy liquor. According to him Vumani Hadebe then was “older”
and was seen driving “different cars”. Against this must
be weighed the evidence of Constable Porter as well as the
evidence
of Ms Bongiwe Hadebe. She is the oldest sister of Vumani Hadebe, who
according to her, is also known as Siyabonga Zulu.
Constable Porter
explained that he investigated the claim by the Appellant that he
received the speakers from Vumani Hadebe.
Constable Porter said in
his evidence under cross-examination on 17 November 2009 that the
Appellant at the bail application
stated that the speakers were
given to him by Vumani Hadebe. When the Court recalled Constable
Porter on 3 February 2010, he
repeated this allegation, and
explained the steps he had taken to investigate this claim by the
Appellant. On this occasion he
reiterated that during the bail
application the Appellant mentioned that he received the speakers
from Vumani Hadebe and that
the Appellant said that Hadebe stayed in
King DiniZulu. He, that is Constable Porter, established that Vumani
Hadebe had been
in prison and was serving a 7 years’ sentence
of imprisonment. He was first detained at the Durban Westville
Prison, and
later transferred to the Ekuseni Prison, in Newcastle.
Constable Porter, under cross-examination, further explained that
the investigations revealed that Vumani Hadebe had been detained
during February 2008, although he could not provide the exact date
when that happened. Bongiwe Hadebe, confirmed much of the
evidence
of Constable Porter. She said that Vumani Hadebe was arrested during
February 2008 in KwaMashu. She confirmed, in particular,
that prior
to that Vumani Hadebe had stayed at home, at House 703, King
DiniZulu. She stated that Vumani Hadebe was arrested
towards the end
of January 2008 at a time when the schools were reopening and
children were “supposed to go back to school”.
Her
evidence on these aspects was not challenged under
cross-examination. I find, as a fact, that it had been proved beyond
reasonable doubt that the Appellant did indeed, during the bail
application, as testified by Constable Porter, refer to Vumani
Hadebe as the person from whom he obtained the speakers. I further
find that the person to whom both the Appellant and Accused
No 1
referred to as Vumani Hadebe, as did Mr Msomi, was indeed the
younger brother of Bongiwe Hadebe. Vumani Hadebe, by 9 and
10
February 2008, on the unchallenged evidence of Bongiwe Hadebe, had
already left the area, and by that time had also been arrested.
The
Appellant himself gave conflicting versions as to the identity of
the person from whom he obtained the speakers. In the bail
application he claimed, as testified by Constable Porter, that it
was Vumani Hadebe. Before the learned Regional Magistrate he
said it
was Mr Mkhize. In my view, it was therefore pure fabrication on the
part of both the Appellant and Accused No 1 to implicate
Vumani
Hadebe, in possessing and driving the vehicle and, particularly
possessing the speakers.
The further question which arises is
what inferences may properly be drawn from the Appellant’s
presence in the company
of Accused No 1 and being in the vehicle, on
Sunday morning 10 February 2008, as well as the Applicant’s
conduct with regard
to selling the speakers. In my view, and
especially having regard to the Appellant’s false denial of
being present in the
vehicle, with Accused No 1, coupled with his
false explanation as to how it came about that he sold the speakers
to Mr Zibane,
the inescapable conclusion is that the Appellant, in
concert with Accused No 1, participated in the robbery of the
complainant.
It must further be inferred, beyond reasonable doubt,
that they in fact robbed the complainant of all the items referred
to in
the judgment of the Regional Magistrate. There are several
factors which support such inference. The motor vehicle and the
speakers
which were identified as having been removed from the
vehicle, are of such a nature that they could not readily and
quickly be
disposed of. It is likely that they remained in the
possession of the assailants who robbed the complainant. On Mr
Mkhize’s
version, which I accept in this regard, the Appellant
and Accused No 1 were seen in the vehicle together, within hours
after
the robbery took place. The Appellant was responsible for
selling the speakers. He offered conflicting but false explanations
as to the identity of the person from whom he obtained the speakers.
These factors, taken together with all the other evidence,
in my
view, unmistakably point to the guilt of the Appellant and Accused
No 1, who were the persons who robbed the complainant
and that they
did so in the furtherance of a common criminal enterprise.
In all the circumstances it has
therefore not been shown that the Magistrate was wrong in his
conclusion regarding the guilt of
the appellant. It follows that
there is no justification for interference on appeal with the
conviction of the appellant.
_______________________
HARTZENBERG,
A.J.
I agree and it is so ordered.
________________________
VAN ZÿL, J.
COUNSEL FOR THE APPELLANT: Adv J.
Butler, instructed by Legal Aid South Africa
COUNSEL FOR THE STATE: Adv W. Smit,
instructed by the Director of Public Prosecutions, Durban
DATE OF THE HEARING OF THE MATTER: 20
June 2013
DATE OF THE JUDGMENT: 24 June 2013
Qwabe.notes
(18 6)
1
1939
AD 188
2
At
202 - 203
3
1966(2)
SA 395 (A)
4
At
400 G – 401 C
5
Cf.
S v SKWEYIYA, 1984(4) SA 712 (A) at 715 C - I