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[2013] ZAKZPHC 57
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Thwala v S (AR 387/12) [2013] ZAKZPHC 57; 2014 (1) SACR 414 (KZP) (5 September 2013)
REPORTABLE
IN THE HIGH COURT OF KWAZULU-NATAL, PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
Case
no:AR387/12
In
the matter between:
SICELO
THWALA
............................................................................................................
APPELLANT
And
THE STATE
.................................................................................................................
RESPONDENT
APPEAL JUDGMENT
MADONDO
J
[1]
This is an appeal against the conviction of the Appellant on the
charges of robbery with aggravating circumstances and murder
by Van
Zÿl J on the evidence which was largely circumstantial. The
counts of robbery and murder against the Appellant had
arisen from
the robbery and murder incident which occurred on 19 March 2011.
[2]
Rasel was operating a shop from a converted garage attached to the
home of Soneni Buthelezi at Ekuvukeni area, Ladysmith. On
19 March
2011 Rasel and Soneni Buthelezi , the complainant in the robbery
count, were robbed of cash, a DVD player, decoder and
cell phone by a
gang of five young men, and during the course of such robbery Rasel,
the deceased, was shot and killed.
[3]
On 1 May 2011 acting on the information given to them by the
complainant, Captain Buthelezi and Constable Mntambo, both stationed
at Ekuvukeni Police Station, arrested Linda Home Thwala who was
accused 1 in the court a
quo.
[4]
Following the information the police officials had received after the
arrest of the said Linda Thwala, they proceeded to the
homestead of
one Zama Thwala. On their arrival there Captain Buthelezi and
Constable Mntambo did not find Zama at home. However,
inside the room
they found the Appellant and a young child. On enquiring about the
whereabouts of Zama ThwalaAppellant told them
that Zama had left
shortly before their arrival.
[5]
Captain Buthelezi then rushed outside to see if he could locate and
apprehend Zama. At that juncture the Appellant attempted
to escape
but Constable Mntambo grabbed him. Whilst outside, Captain Buthelezi
heard the noise of a scuffle inside the room. The
Appellant and
Constable Mntambo wrestled until they came outside the room. Captain
Buthelezi came to the assistance of Constable
Mntambo and they both
managed to subdue and handcuff the appellant. On searching the
Appellant Captain Buthelezi found a .38 special
revolver from the
back pocket of his pair of trousers, containing one live round of
ammunition. The firearm had its serial number
filed off.
[6]
During the scuffle three cellular phones fell from the person of the
Appellant. One of those cellphones, a Samsung, was subsequently
identified by the complainant as her property. The firearm was
ballistically linked to the murder of the deceased. The Appellant
did
not offer any explanation as to how he came in possession of both the
firearm and the cellphone or either of them.
[7]
Subsequently, the Appellant was together with Linda Home Thwala
arraigned before the Circuit High Court sitting at Madadeni
on the
charges of robbery with aggravating circumstances, murder, and
unlawful possession of a firearm and ammunition. Linda Thwala
was
accused 1 and the Appellant accused 2.
[8]
Only accused 1 was directly identified by the complainant as having
participated in the commission of the crimes of robbery
and murder.
The Appellant was convicted of the crimes of robbery with aggravating
circumstances and murder on the basis of circumstantial
evidence and
sentenced to effective twenty (20) years’ imprisonment. In
addition, he was also convicted of unlawful possession
of a firearm
and ammunition and sentenced to fifteen (15) years’
imprisonment which was ordered to run concurrently with
the sentence
in the robbery count. However, the latter conviction is not the
subject of this appeal and, therefore, nothing turns
on it.
[9]
From the fact that the Appellant had been found in possession of a
firearm, the murder weapon, and the cell phone (Samsung)
which was
removed from the possession of the complainant during the course of
robbery coupled with the combination that both those
items had a
connection with the robbery and murder, the learned Judge inferred
that the Appellant participated in the commission
of the crimes of
robbery and murder.
[10]
Ms Khuzwayo for the Appellant has argued that the nature of the items
involved in this case should be considered. These days
both
cellphones and firearms change hands easily and she accordingly
submitted that in itself possession of such items could not
mean that
the Appellant participated in the commission of the crimes of robbery
and murder.
[11]
She argued, further, that the fact that the Appellant was found in
possession of the firearm and cell phone a month and half
after the
robbery and murder incident could not provide sufficient proof of the
Appellant’s participation in the commission
of robbery and
murder, and hence that it could not be the only inference which could
be drawn in the circumstances to the exclusion
of any other
reasonable inference. In support of her submissions she referred us
to the cases of Madonsela v The State 2012(2)
SACR 456 and S v Blom
1939 AD188.
[12]
In addition, Ms Khuzwayo argued that the identification of the cell
phone by the complainant was not satisfactory to such an
extent that
it could point to the Applicant as the culprit in the crimes of
robbery and murder. The complainant failed to give
identifying
features of the cell phone, as there was no serial number, she only
identified it by its model and by wear and that
it had scratches.
This, in Ms Khuzwayo submission, could not provide sufficient proof
of identity.
[13]
The Appellant was convicted of armed robbery and murder on the basis
that he had been found in possession of a firearm, the
murder weapon
and the cell phone removed during the course of robbery. This court
is now asked to decide whether such conviction
was in accordance with
justice. However, before addressing such a question one has to deal
with the contention that the cellphone
was not sufficiently
identified as the property of the complainant. In addition to the
description of the cellphone which the complainant
had earlier on
given in the trial court (Samsung, wear and scratches) she also
stated that her cellphone did not have a battery
cover, and that the
battery cover was at her home. Such evidence was not challenged, and
there was nothing to show that the cell
phone which was then before
court had a battery cover on it. Without much ado, in my view, the
complainant sufficiently identified
the cellphone in question as her
property.
[14]
Circumstantial evidence may furnish proof both of the commission of
the crime and of the person who committed it. See Wills
on
Circumstantial Evidence, 7
th
Edition at p343. The conduct
of the accused in relation to the property cannot be disregarded. See
R v Burton
(1854) 6 Cox C.C 293.
In R v Tshabalala and others
1942
TPD 27
at p. 30, the court held that when the property is proven to
have been stolen, the accused’s conduct and the absence of
explanation
or the giving of a false explanation in relation to such
property are relevant to the question whether his possession was
innocent
or guilty – they constitute circumstantial evidence
from which an inference of guilt may be drawn.
[15]
In cases of this nature inferential reasoning method, commonly
described as the “doctrine” of recent possession
of
stolen goods applies. The doctrine of recent possession, evolved from
decided cases under common law, is simply a common sense
observation
on the proof of facts by reference. See South African Criminal Law
and Procedure, vol 2, by Hunt at p611.
[16]
On the application of the doctrine of recent possession in
S v
Parrow 1973(1) SA 603(A) 604 B-C
Holmes JA said the following:
“
On proof of possession by the accused of
recently stolen property, the court may (not must) convict him of
theft in the absence
of an innocent explanation which must reasonably
be true. This is an epigrammatic way of saying that the court should
think its
way through the totality of the facts of each particular
case and must acquit the accused unless it can infer, as the only
inference,
that he stole the property.”
See also S v Letoba 1993(2) SACR 615(O).
[17]
It is a requirement that the goods must have been recently stolen.
The nature of the stolen article is an important element
in the
determination of what is recent. See R v Mandele
1929 CPD 96
at 98; R
v Morgan 1961(2) SA 377(T) at 378B-D.
[18]
In R v Maseko reported in Justice Summary 5 of 1943, Broome J said:
“…
. Whether in any particular case
the possession may be said to be recent depends upon the nature of
the property stolen and upon
all the circumstances of the case. If
the property is such that it would ordinarily change hands rapidly, a
very short period only
would suffice. If the property is not of a
negotiable character, the period would be longer. Furthermore, the
class of person to
which the possessor belongs must also be taken
into account. It is impossible to lay down precise rules, and even
the giving of
examples may be dangerous. Suffice it to say that the
important point is not the number of hours or days that have elapsed
between
the theft and possession, but the gravity of the suspicion
which the possession, in the circumstances, raises against the
possessor.”
[19]
Whether property can be regarded as “recently” stolen or
not is a question of fact and the court in S v Rama 1966(2)
SA 395
(A) at 400 said that:
“
The court has accordingly to ask itself, is
the article one which could easily pass from hand to hand, and the
lapse of time so
short as to the probability that this particular
article has not yet passed out of the hands of the original thief.”
[20]
In S v Rama,
supra
, two cases containing 189 watches were
stolen. Within 14 days thereafter the appellant was found in
possession of two of the stolen
watches. In concluding that the trial
court could not be faulted for finding that the theft of the two
cases of watches was sufficiently
recent, Rumpff JA placed emphasis
on the fact that:
“
The watch is an unusual and expensive watch
and the learned trial judge found that it would not pass readily from
person to person.”
[21]
In S v Samson 1969(4) SA 158 (RA) at 159C-D Beadle CJ said:
“
It appears from these cases that where,
fairly shortly after a housebreaking, the accused is found in
possession of some of the
articles which were stolen at the time and
does not find the explanation that he received the stolen goods from
a third party who
may have stolen them, the court is perfectly
justified in finding him guilty not only of the housebreaking but
also of the theft
of all the articles stolen at the time when the
housebreaking occurred.”
[22]
A mere caretaker cannot be regarded, for the purposes of the
presumption arising from the doctrine of recent possession, to
be in
possession of the goods which he temporarily has in his care. See S v
Letoba 1993(2) SACR 615(O).
[23]
In
Skweyiya 1984(4) SA 708(A)
where the accused had been found
in possession of a portion of goods which had been burgled 15 days
earlier, the court held that
the conclusion was not justified that it
was the accused who had broken into the premises and stolen the goods
where such goods
were of the type which usually could easily and
rapidly be disposed of.
[24]
In
S v Shabalala[1999]
4 All SA 583(N)
at 587-588
possession
of the stolen vehicle on the day of the robbery or the day
thereafter, was accepted as sufficient for the doctrine of
recent
possession to apply. In
S v Mavinini 2009(1) SACR 523 (SCA)
the Appellant’s possession of the stolen vehicle less than 24
hours after the robbery, taken together with his elusive conduct,
overwhelmingly suggested his criminal involvement in the robbery.
[25]
In the present case it has been argued on behalf of the Appellant
that since he had been found in possession of a firearm,
the murder
weapon, and the cell phone, the robbed items, one and half months
after the robbery and murder incident, he could not
be said to have
been in recent possession of same. In support of the argument that
the Appellant had been wrongly convicted of
robbery and murder on the
basis of such possession reference had been made to S v Madonsela
2012(2) SACR 456 (GSJ). In that case
the Appellant’s conviction
of robbery in the Regional Court had been based on his possession of
the robbed motor vehicle,
eight days after the robbery. The vehicle
was fitted with false plates and he gave a false explanation for his
possession.
[26]
In S v Matola 1997(1) SACR 321(BPD)at 324d-f possession of the stolen
vehicle a month after the theft, together with the further
facts;
that the stolen vehicle had been registered in the Appellant’s
name, with false registration numbers, and that the
original number
plates of the stolen vehicle had been found on the Appellant’s
property, were held to sufficiently prove
that the Appellant had
played a role in the theft.
[27]
In the present case the Appellant was found in possession of a
firearm and a cellphone both of which had connection with robbery
and
murder incident which occurred on 19 March 2011. This, according to
the court a
quo
, constituted an irresistible inference that
the Appellant participated in the commission of robbery with
aggravating circumstances
and murder.
[28]
This court is asked to decide whether the court a
quo
misdirected itself in reaching such a conclusion. In S v Mavinini,
supra
, the Appellant had been seen driving the green Audi A4
right after the robbery with false number plates and when the police
confronted
him he fled. The Supreme Court of Appeal held that such
conduct, unexplained, together with the evidence linking the
Appellant
with the place where the stolen goods were recovered,
resulted in the overwhelming conclusion that he was himself involved
in the
robbery.
[29]
In the present case the Appellant had been found in possession of a
firearm, which had been proved to be a murder weapon, and
the cell
phone which was removed during the course of the robbery on 19 March
2011 without any explanation as to how he came in
possession of same.
It is really hard to believe that it was a sheer coincidence that the
Appellant was in innocent possession
of both items which had strong
connections with the robbery and murder incident. As the learned
Judge pointed out, quite correctly,
that had the Appellant been found
in a possession of one of the items in question, taking into account
the period elapsed after
the robbery and murder, the possibility
could have existed that the Appellant innocently received and
possessed same. In the urban
areas a firearm and the cellphone can
change hands quite quickly since people who need them are financially
able to purchase them.
In such a lengthy period of time they could
have easily changed hands. However, the same cannot be said for the
rural areas, like
Ekuvukeni, where the majority of the population is
poor and unemployed. One is failing to imagine the circumstances
under which
the Appellant could have innocently received and
possessed both items in question. Had there been such circumstances,
surely, the
Appellant would have reasonably beenexpected to disclose.
[30]
The following factors militate against the Appellant’s innocent
receipt and possession of the firearm, the murder weapon,
and the
robbed cellphone. Whilst Captain Buthelezi was trying to locate and
apprehend Zama Thwalaoutside the room, a suspect in
the commission of
the crimes of robbery and murder, the Appellant tempted to bolt out
of the room wherein he was with Constable
Mntambo. This, in my view,
is demonstrative of a guilty conscience on his part. Secondly, the
Appellant was found in possession
of the firearm, a murder weapon,
with its serial number filed off and possession of a Samsung
cellphone which had been removed
from the possession of the
complainant during the course of the robbery and murder, and he
proffered no explanation for such possession.
The combined possession
of items which had connection with the incident of robbery and murder
dispel the inference that the Appellant
could have innocently
received the same from a third party, who might have used the firearm
and received the cellphone during the
course of robbery. Finally, the
Appellant was mendacious in that he claimed to have been subjected to
a severe assault by the police
with the intention to elicit a
confession that he had been in unlawful possession of the firearm and
ammunition, and that during
such an assault he sustained serious
injuries. Such allegations were not supported by the J88, and nor had
any confession statement
been obtained from the Appellant. The
conduct of the Appellant is unlike that of an innocent person.
[31]
The Appellant had been found in possession of the firearm which was
used to kill the deceased as well as the cellphone which
had been
removed during the course of the robbery without explanation of such
possession. The principles that should not be ignored
in evaluating
circumstantial evidence are two cardinal rules of logic referred by
Water Meyer JA in
R v Blom
1939 AD 188
at 202 – 203
. The
first rule, the inference sought to be drawn must be consistent with
all the proved facts. If it is not, then an inference
cannot be
drawn. The second rule, the proved facts should be such that they
exclude every reasonable inference from them save the
one 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.
[32]
In order to justify the inference of guilt, the exculpatory factors
must be incompatible with the innocence of the accused,
and incapable
of explanation upon other reasonable hypothesis than that of his
guilt. See Wills, Principles of Circumstantial Evidence
7ed (1936)
edited by VRN Gattie and M Krishnamachieriat at 320. In
casu
,
the Appellant was one and half months after the robbery and murder
incident, found in possession of a firearm, the murder weapon,
and
the cellphone. Possession of these items which had strong connection
with the robbery and murder incident, after such a long
time,
constitutes an irresistible inference and provided an overwhelming
evidence of the Appellant’s participation in the
commission of
the crimes of robbery and murder.
[33]
The present case is distinguishable from that of Madonsela where
other than the vehicle, none of the robbed items were found.
The
Appellant had been found in an unexplained possession of the firearm,
a murder weapon and a cellphone which was removed from
the
complainant’s possession during the course of the robbery. This
strengthens the gravity of suspicion that the Appellant
participated
in the robbery and murder. In my view, the court a
quo
cannot
be faulted in making such a finding.
[34]
It could reasonably be inferred from the Appellant’s possession
of the murder weapon and the robbed cellphone after one
and half
months from the day of robbery and murder incident that he had been
in such possession since the day of robbery and murder.
This makes it
more improbable than not that the Appellant had received such items
from a third party who might have been present
during the commission
of the crimes of robbery and murder. Had the Appellant innocently
received these items, he could, surely,
have said so.
[35]
All the circumstances of the present case attract as the only
reasonable inference the conclusion that the Appellant was one
of the
participants in the robbery and murder on 19 March 2011.The appeal
against the conviction on both counts must therefore
fail.
[36]
In the result the appeal against a conviction on both robbery and
murder counts fails.
_______________
_______________
KRUGER J I agree, it is so ordered.
_______________
SEEGOBIN J
Judgment
reserved on: 31 July2013
Judgment
handed down: 5 September 2013
Appellants
counsel: Ms Y.N Khuzwayo
Respondents
counsel: Mr D MacDonald