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[2012] ZAGPPHC 4
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Ndlangamandla v S (A731/2010) [2012] ZAGPPHC 4 (20 February 2012)
REPORTABLE
I
N
THE NORTH GAUTENG HIGH COURT, PRETORIA
Date: 2012-02-20
Case Number:
A731/2010
In the matter between:
MDUDUZI COMFORT
NDLANGAMANDLA
.......................................
Appellant
and
THE
STATE
.............................................................................................
Respondent
JUDGMENT
SOUTHWOOD J
[1]
On
8 February 2010 the appellant and his four co-accused were convicted
of the theft of a motor vehicle and various other items
in the Piet
Retief regional court and on the same day the appellant was sentenced
to 7 years imprisonment. (His four co-accused
were each sentenced to
5 years imprisonment.) With the leave of this court, granted on
petition, the appellant appeals against
both his conviction and
sentence.
[2] There was no
direct evidence that any of the accused (including the appellant)
were involved in the theft. The state relied
on circumstantial
evidence to prove that accused numbers 1, 3, 4 and 5 had stolen the
motor vehicle and other items. This consisted
of five sets of
footprints (made by shoes) which the expert was able to follow from
the place where the vehicle was stolen to the
place where the vehicle
was eventually found, which matched the shoes worn by accused numbers
1, 3, 4 and 5. Accused numbers 1,
3 and 4 all admitted that they had
been at the scene and had assisted two other persons to push the
vehicle. Accused number 5
denied that his footprints had been found
at the scene and that he had had anything to do with the vehicle. In
the light of the
footprint evidence the court
a
quo
rejected
their evidence as not reasonably possibly true. As appears from
S
v Mkhabela
1984
(1) SA 556
(A)
at
563B-F evidence of footprints is admissible but the court should be
cautious of relying upon such evidence especially where it
is the
only evidence against the accused. The cogency of such evidence must
depend upon all the circumstances of the case. In
view of the
admissions of accused numbers 1, 3 and 4 that they were physically at
the scene and had helped to push the vehicle
it seems that their
guilt was proved beyond reasonable doubt.
[3] As far as
accused number 5 is concerned the evidence of footprints is of
doubtful reliability and he had disputed throughout,
supported by
accused numbers 1, 3 and 4, that he had been at the scene. I shall
deal with this later.
[4] The appellant
did not admit that he had been on the scene and his footprints were
not found there. The expert witness also
did not place the
appellant’s vehicle at the scene. The only evidence to connect
the appellant to the crime was the fact
that some of the stolen
property was found in his vehicle and that accused numbers 1, 3 and 4
all testified that they had travelled
with the appellant from
Swaziland. This implies that he had been with them at the time of
the theft. The appellant formally admitted
that the stolen property
was found in his vehicle but testified that it must have been put
there by the other accused who he had
picked up next to the road. He
denied having conveyed accused numbers 1, 3 and 4 from Swaziland and
stopping at the farm where
they stole the motor vehicle and other
property.
[5] The court
a
quo
could
not and did not find that the tracks of the appellant’s Camry
motor vehicle were found next to the stolen vehicle and
that these
tracks showed that accused numbers 1, 3, 4 and 5 had entered the
appellant’s vehicle. The court correctly referred
to the fact
that the expert witness was unable to look at the Camry’s tyres
and compare them with what he found at the crime
scene. The court
a
quo
convicted
the appellant on the strength of accused numbers 1, 3 and 4’s
evidence that they had travelled with him and his
vehicle from
Swaziland and had stopped near the farm where the vehicle and other
property was stolen. The court
a
quo
found
that the appellant had probably sat and waited in his vehicle and
that he had probably offloaded the other accused. The court
a
quo
found
that it was clear that the appellant had the lion’s share and
that he made the arrangements. Clearly, in doing so,
the court
accepted the truthfulness and reliability of the other accused.
[6] The court
a
quo
obviously
convicted the appellant on the evidence of accused numbers 1, 3 and
4. In doing so the court was required to take into
account the
cautionary rule relating to the evidence of accomplices which is
equally applicable to the evidence of co-accused –
see
S
v Johannes
1980
(1) SA 531
(A)
at
532H-533C;
S
v Dladla
1980
(1) SA 526
(A)
at
529D-F. In
Rex
v Ncanana
1948
(4) SA 399
(A)
at
405-406 the court summarised the rule as follows:
‘The
rule of practice which it was intended to state and which is
consistent with, if it is not expressly approved in, decisions
of
this court (see
R
v Kubuse
(1945
AD 189)
;
R
v Brewis
(1945
AD 261)
;
R
v Kristusamy
(1945
AD 549))
is
that, even where sec. 285 has been satisfied, caution in dealing with
the evidence of an accomplice is still imperative. The
cautious
Court or jury will often properly acquit in the absence of other
evidence connecting the accused with the crime, but no
rule of law or
practice requires it to do so. What
is
required
is that the trier of fact should warn himself, or, if the trier is a
jury, that it should be warned, of the special danger
of convicting
on the evidence of an accomplice; for an accomplice is not merely a
witness with a possible motive to tell lies
about an innocent accused
but is such a witness peculiarly equipped, by reason of his inside
knowledge of the crime, to convince
the unwary that his lies are the
truth. This special danger is not met by corroboration of the
accomplice in material respects
not implicating the accused, or by
proof
aliunde
that
the crime charged was committed by someone; so that satisfaction of
the requirements of sec. 285 does not sufficiently protect
the
accused against the risk of false incrimination by an accomplice.
The risk that he may be convicted wrongly although sec.
285 has been
satisfied will be reduced, and in the most satisfactory way, if there
is corroboration implicating the accused.
But it will also be
reduced if the accused shows himself to be a lying witness or if he
does not give evidence to contradict or
explain that of the
accomplice. And it will also be reduced, even in the absence of
these features, if the trier of fact understands
the peculiar danger
inherent in accomplice evidence and appreciates that acceptance of
the accomplice and a rejection of the accused
is, in such
circumstances, only permissible where the merits of the former as a
witness and the demerits of the latter are beyond
question.’
Where the court
relies upon the evidence of a co-accused it must be satisfied that
the co-accused is a reliable witness –
see
S
v Dladla supra
at
529G-530C. And where the court relies upon the evidence of a
co-accused as corroboration for another co-accused the court must
be
satisfied that they are both reliable witnesses – see
S
v Johannes supra
at
533H.
[7] In the present
case there is no indication that the court
a
quo
was
aware of the cautionary rule or that the court applied it. The court
pertinently found that the other accused all lied and
that their
evidence was rejected where it was in conflict with the state’s
evidence. The court did not explain how it was
possible to reject
the other accused’s evidence where they testified as to accused
number 5’s innocence and accept
their evidence where they
placed the appellant on the scene. As pointed out in
S
v Johannes
,
before convicting the appellant on the evidence of accused numbers 1,
3 and 4 the court had to find that they were reliable witnesses.
There is no such finding in the judgment.
[8] On appeal, the
appellant’s counsel contends that the court
a
quo
did
not properly take into account the cautionary rule and erred in its
reasoning. The appellant’s counsel also contends
that it
cannot be found that the appellant’s version is not reasonably
possibly true. The state concedes that the evidence
does not clearly
justify a finding that the appellant’s version is not
reasonably possibly true and points out that this
court must consider
whether the court
a
quo
correctly
warned itself with regard to the application of the cautionary rule.
[9] As already
mentioned the court
a
quo
did
not apply the cautionary rule and there is no finding that the other
accused were reliable witnesses and that the appellant
was not. The
court
a
quo
also
did not explain why the appellant’s evidence cannot be
reasonably possibly true – see
S
v Shackell
2001
(2) SACR 185
(SCA)
para
30.
[10
] The
court
a
quo
accepted
that accused number 5’s footprints were found at the scene of
the theft. The court did not explain why it accepted
this. The
court
a
quo
also
found that all the accused (including accused number 5 were in the
same vehicle). The court also did not explain why it made
this
finding in respect of accused number 5. Presumably this finding was
also dependent upon the acceptance that accused number
5’s
footprints were found at the scene of the theft as the court made a
general statement to that effect later in the judgment.
The question
is whether the evidence shows beyond a reasonable doubt that accused
number 5’s footprints were found at the
scene.
[11] In
S
v Mkhabela
1984
(1) SA 556
(A)
at
563B-D the court summarised the legal position relating to
footprints:
‘
In
argument before us counsel referred to various cases dealing with
identification by means of footprints. (See
R
v Modesane
1932 TPD 165
;
R
v Nkele
1933 TPD 36
;
R
v Mabie
1934 OPD 34
;
R
v
B
Louw
1946 OPD 80
.)
I do not think that any general principles are to be derived from
these cases, save that evidence of footprints is admissible,
that the
Court must nevertheless be cautious of relying upon such evidence,
especially where it is the only evidence against the
accused, and
that the cogency of such evidence must depend upon all the
circumstances of the case. In regard to this last-mentioned
point,
the Court may, for example, find it easier to rely on footprint
evidence where it relates to the imprint left by a boot
or shoe that
has some distinctive characteristic or pattern than where it relates
to the imprint made by a naked human foot. Similarly,
it will always
be more satisfactory if the Court is able, by means of a photograph
or a plaster cast or some other visual medium,
itself to make the
necessary comparisons and to assess the cogency of the footprint
evidence.’
[12] The state relied on the evidence
of a single witness, Rudolf Christiaan Uys, to prove that the
footprints found at the scene
of the theft were made by the accused.
Mr. Uys arrived on the scene a few hours after the theft. He found
multiple footprints
(made by shoes) next to the vehicle, which he
followed from the place where the vehicle was stolen to where it was
found. The
footprints disappeared next to the tracks of another
vehicle and Mr. Uys concluded that that vehicle had picked up the
thieves.
Mr. Uys identified and photographed five different
footprints, all made by shoes. He then reproduced the footprints by
means
of plaster of paris. He was then shown the six suspects who
had been arrested in connection with the theft of the motor vehicle.
With their consent he examined their shoes and found that the shoes
of five of the six matched the footprints which he found at
the scene
and reproduced. Mr. Uys photographed each of the suspects with their
shoes. Accused number 5 refused to hand over his
shoes for
examination. According to Mr. Uys a policeman attached accused
number 5’s shoes and they were handed in as exhibits.
However
these shoes were stolen from the exhibits store and were no longer
available for further examination. Uys found that
four suspects’
shoes matched the plaster of paris casts which he had made. One of
these belonged to accused number 2 who
escaped and did not stand
trial. Uys was then left with the footprints of accused numbers 1, 3
and 4. Uys did not complete his
comparison between the plaster of
paris casts and accused number 5’s shoe. He nevertheless
expressed the opinion that the
prints were made by accused number 5’s
shoe. Mr. Uys did not explain why he had not completed the
comparison and why he
had not prepared a court card relating to the
alleged footprint of accused number 5. He clearly was not satisfied
that he had
done everything required. Mr. Uys did not hand in as
evidence the product of his labour and the court was therefore not
able to
make its own comparison.
[13] Accused numbers 1, 3 and 4 all
testified that accused number 5 had not been in the motor vehicle or
at the scene where they
pushed the vehicle.
[14] Accused number 5 testified that
he had not been at the scene of the theft and had been arrested for
something he did not do.
His cross-examination did not demonstrate
that his evidence is not reasonably possibly true.
[15] In these circumstances there is
insufficient evidence to justify the conviction of accused number 5
and the court must exercise
its review powers in terms of section
304(4) of Act 51 of 1977 and set aside his conviction and sentence.
[16] The following orders are made:
In
respect of the appeal
:
The appeal is upheld and the
appellant’s conviction and sentence are set aside.
In
respect of accused number 5, Themba Thabo Mtshali
:
The conviction and sentence of
accused number 5, Themba Thabo Mtshali, for the theft of the Ford
Ranger motor vehicle, two pairs
of binoculars, keys, a cellphone
charger, a vehicle battery and a radio on 23-24 July 2008 are
reviewed and set aside in terms
of section 304(4) of Act 51 of 1977.
____________________
B.R. SOUTHWOOD
JUDGE OF THE
HIGH COURT
I agree
_____________________
S.A.M. BAQWA
ACTING JUDGE OF
THE HIGH COURT
CASE NO:
A731/2010
HEARD
ON: 20 February 2012
FOR
THE APPELLANT: MR. M. JUNGBLUTH
INSTRUCTED
BY: Botha & Van Dyk Inc.
FOR
THE RESPONDENT: ADV. J.J. KOTZE
INSTRUCTED
BY: Director of Public Prosecutions
DATE
OF JUDGMENT: 20 February 2012