Motlohi and Another v S (A130/09) [2009] ZAFSHC 126 (10 December 2009)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2009
>>
[2009] ZAFSHC 126
|

|

Motlohi and Another v S (A130/09) [2009] ZAFSHC 126 (10 December 2009)

FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case
No. : A130/09
In the
matter between:-
ITUMELENG
ISAAC MOTLOHI
First
Appellant (Accused 2
a
quo
)
CHABASEMABETSE
LEAKA
Second
Appellant (Accused 3
a
quo)
and
THE
STATE
Respondent
_____________________________________________________
CORAM:
RAMPAI,
J
et
JORDAAN,
J
et
MOLOI,
J
_____________________________________________________
HEARD
ON:
16
NOVEMBER 2009
_____________________________________________________
JUDGMENT
BY:
RAMPAI,
J
_____________________________________________________
DELIVERED
ON:
10
DECEMBER 2009
_____________________________________________________
[1] These
are appeal proceedings. There are two appellants involved. They
were tried with three others in this court. In the
court
a
quo
the first appellant was accused no. 2 and the second appellant
accused no. 3. Their co-accused, in other words, accused no. 1,
4
and 5, are not before us. About them I shall probably say very
little. They were acquitted on all the charges.
[2] The
appellants were each convicted on all the seven charges and
effectively sentenced to life imprisonment, among others. They
now
come to us on appeal, with the leave of the court
a
quo
,
against all the convictions and sentences.
[3] They
faced seven charges, namely: robbery with aggravating circumstances;
two counts of murder; two counts of attempted murder;
unlawful
possession of firearms and unlawful possession of ammunition. To all
these charges they pleaded not guilty before my
retired brother
Beckley J in the Virginia Circuit Court on 16 July 2004.
[4
] Notwithstanding
such plea, each of them was convicted as charged on 5 August 2004.
The next day, on 6 August 2004, they were
sentenced as follows:
In
respect of the first charge: robbery with aggravating circumstances –
15 (fifteen) years imprisonment;
In respect of the second
charge: murder – life imprisonment;
In respect of the third
charge: murder – life imprisonment;
In respect of the fourth
charge: attempted murder – 12 (twelve) years imprisonment;
In respect of the fifth
charge: attempted murder – 12 (twelve) years imprisonment;
In
respect of the sixth charge: unlicensed possession of a firearms and
in respect of the seventh charge: unlawful possession of
ammunition
which were taken together as one – 8 (eight) years imprisonment.
[5] The
appellants were aggrieved by the convictions as well as the
sentences. Both of them applied and were granted leave to appeal
on
16 September 2005 by the court
a
quo
– hence this appeal.
[6] A
summary of the material facts which formed common cause or which were
not seriously disputed, appears to be necessary. There
were two
security guards in the employ of Mini Price Store, a supermarket at a
suburban shopping centre at Reitzpark in Welkom.
They were armed
with shot guns issued to them by their employer, a security service
provider, for the purposes of rendering protective
services to the
supermarket.
[7] In
the evening of Monday, 16 June 2003, the supermarket was attacked,
the security guards dispossessed of their firearms and
the shop-owner
shot in the ensuing confrontation with an armed group of robbers.
They demanded money. Two policemen rushed to
the supermarket. On
their arrival they too were attacked. One policeman was shot. They
returned fire. In the process one member
of the armed gang of
robbers was fatally wounded. The others looted the shop and escaped,
apparently in a white BMW sedan. Later
that same evening the
shop-owner died. The cause of his death was indicated as a gunshot
wound in the head and that of the robber’s
death as a gunshot wound
in the lungs. The wounded police officer was taken to the hospital.
He survived.
[8] Various
goods, as itemised in the annexure to the indictment, were stolen
during the armed robbery. The total loot was worth
R15 609,39. The
first three accused, including the appellants, were arrested five
days later, on Saturday 21 June 2003, to be
precise. Some of the
stolen goods were later recovered from some of the suspects or
accused. The very next day, on Sunday 22
June 2003, accused no. 4
was arrested at the road block while driving a white BMW sedan and
accused no. 5 was arrested on the same
day. In his room at Bambanani
Gold Mine, a firearm whose serial number had been filed off was found
by the police. Though he
was charged with the rest of the suspects,
the first seven charges were not applicable to him. There were only
two charges brought
against him, namely unlawful possession of a
firearm and ammunition – the eighth and the ninth charge. The
firearm was described
as a semi-automatic pistol, 7.65 mm calibre.
This then completes the historical background of this appeal. I now
turn to the
merits thereof.
[9] The
cardinal issue in the appeal is whether the evidence, as a whole,
established beyond reasonable doubt that the appellants
were among
the perpetrators of the crimes we are concerned with.
[10] On
behalf of the appellants, Mr. Pretorius contended that the court
a
quo
erred in finding that the evidence showed beyond reasonable doubt
that they were indeed involved in the incident. He, therefore,

submitted that they were entitled to have been acquitted.
[11] Ms
Claassens, counsel for the respondent, differed. She contended that
the court
a
quo
correctly rejected the versions of the appellants as false and
improbable. She submitted that, on the strength of the evidence
as a
whole, the identity of each of the appellants as the co-perpetrators
was established beyond reasonable doubt.
[12] As
regards the first appellant, the respondent chiefly relied on the
testimonies of the following witnesses to prove the identity
of the
first respondent as one of the perpetrators: Mr. Roberto Menino, Mr.
Carlos Menino, Inspector David Dlamini and Captain
Motsamai Mabeleng.
[13] The
witness, Mr. Carlos Menino, testified that the shopkeeper had a men’s
wristwatch and that he used to wear it every day
and that the
particular watch went missing after the incident. On 21 June 2003,
Captain Mabeleng showed him a number of items.
Among them was a
Casio men’s wristwatch. The two brothers identified the Casio
watch as that of the late Jose dos Santos de
Esencao.
[14] The
evidence of Inspector Dlamini was that he was present at the time the
first appellant was arrested and that he was wearing
the watch in
question. His evidence was corroborated by the investigating
officer, Captain Mabeleng.
[15] The
first appellant admitted that he was wearing the particular watch as
the two police witnesses had testified, but he specifically
denied
that it belonged to the shopkeeper as the two civilian witnesses had
alleged. He specifically averred that the watch was
his.
[16] It
appears necessary to consider some aspects of the indirect evidence
tendered against the first appellant and to ascertain
what it was
that was so improbable about his alibi as to justify his conviction
by the court
a
quo
.
About him, in particular, Beckley J said:
“
Dieselfde
onwaarskynlikhede geld ook ten opsigte van beskuldigde 2. In
beskuldigde 2 se geval is daar die bykomende onwaarskynlikheid
dat hy
uitgewys word as ‘n betrokkene en dan daarna gevind word in besit
van ‘n horlosie wat soortgelyk is – indien nie identies
nie –
aan die horlosie wat gemis is tydens die rooftog. Daarbenewens die
feit dat hy gepoog het om die horlosie te versteek
op ‘n stadium
nadat hy gearresteer is.”
[1
7] The
evidence showed that a certain woman, whose name was never disclosed,
anonymously contacted the investigating officer about
the armed
robbery we are here concerned with. Her report led the police to a
character known in these proceedings simply as Mojela.
Through him,
the first appellant was identified as one of the possible suspects.
He was tracked down in his house somewhere in
Thabong. Captain
Mabeleng and his police investigation team searched the house but
find nothing incriminating. The captain saw
that the first appellant
was wearing a watch. He inspected the watch but disregarded it
because, as a Casio watch, it did not
interest him. He was on the
lookout for a different type of wristwatch, an Orient watch belonging
to Mr. Roberto Menino, which
was stolen during the armed robbery. At
that time the captain was still unaware that the murdered shopkeeper
was also robbed of
his wrist watch,
viz
a Casio.
[18] Subsequent
to his arrest, the first appellant was taken to the police unit
office for interrogation. There were two other
suspects as well at
the time. With the three suspects in the office were Inspector
Dlamini and Captain Mabeleng. The former’s
evidence was that he
saw the first appellant concealing something; that he quickly
searched him; that he discovered a golden Casio
watch in his
underwear and that he showed the watch, which the first appellant
claimed to be his, to Captain Mabeleng then and
there. Later on the
same day, Saturday 21 June 2003, Captain Mabeleng met Mr. Roberto
Menino and showed him the Casio watch which
was earlier found in the
possession of the first appellant. The same watch the first
appellant averred was his, the witness identified
it as the watch of
the late Jose dos Santos de Escencao.
[19] At
the trial Mr. Carlos Menino also identified the Casio as the watch of
his murdered partner and co-owner of the supermarket.
His younger
brother, Mr. Roberto Menino, again identified the watch likewise in
court. This was not the sum total of the evidence
pertaining to the
identity of the first appellant as one of the perpetrators.
[20] The
police identification parade was held. Mr. Roberto Menino was the
only eyewitness invited to the parade. He identified
the first
appellant as one of the perpetrators. This was the direct evidence
adduced against the first appellant by an eyewitness.
The witness
recognised him as the robber who really gave him a great deal of
agony during the robbery episode.
[21] The
version of the first appellant was narrated by the first appellant
himself. He said that on Monday, 16 June 2003, he was
not in Welkom
where he ordinarily resided but at Bothaville where he had gone to
purchase maize. He was hosted in a shack by an
acquaintance by the
name of Naledi. He returned to Welkom on Friday, 20 June 2003. He
was arrested during that very same night.
The exact whereabouts of
Naledi were unknown to him as on the day he was testifying. He
recognised the Casio watch as his own
property which he had bought in
town in Welkom in 2001 for R499,00. The evidence of Inspector
Dlamini, that he had that watch
in his possession the day he was
arrested, was true. However, he denied that the watch was found
hidden in his underpants. He
maintained that he was normally wearing
it on his arm.
[22] The
court
a
quo
rejected
as false and improbable the first appellant’s version. But his
counsel, Mr. Pretorius, contended that the first appellant’s

version was wrongly rejected and that that of the Menino brothers and
the police witnesses wrongly accepted. In developing his
argument
further he submitted that there was no direct evidence other that
that of a single and unsatisfactory witness which connected
the first
appellant with the incident. The indirect evidence adduced by the
State, he submitted, did not justify the drawing the
inference that
the first appellant was involved in the incident. Ms Claassens
contended that the evidence as a whole justified
the conclusion that
the first appellant was involved. Therefore she submitted that the
court
a
quo
did not commit any material misdirection to justify any interference
with its judgment.
[23] In
his analysis of the evidence Beckley J made a general observation
about all the accused, including the first appellant,
of course. He
phrased the wholesale rejection of their alibis as follows:
“
Byvoorbaat kan
ek sê dat daar geeneen van die beskuldigdes is wie se getuienis
beïndruk het as synde die van ‘n getuie
en wie se getuienis
redelik moontlik waar is nie. Daar is talle aspekte wat
onwaarskynlik is...”
[2
4] The
court
a
quo
dismissed the version of the first appellant. It found that his
evidence concerning the alibi defence and indeed his evidence

concerning his claim of ownership of the Casio watch were not
reasonably and possibly true. The first appellant emphatically
denied that he participated in the robbery and that the watch was
stolen from the fatally wounded shopkeeper. Although he persisted

that he was the rightful owner of the watch, his conduct was not
consistent with that of a lawful and innocent owner, in my view.
His
abortive attempt to conceal the watch, which the police hardly
suspected to be stolen, alerted the police that something was
not
right. The place where the watch was discovered was not only very
suspicious, but very destructive to his claim that he owned
it. The
peculiar conduct of the first appellant strongly militated against
his claim that the watch was his lawful property.
[25] It
is important to note that the first appellant did not deny the
evidence of Captain Mabeleng that he first saw the Casio
watch in the
first appellant’s house. It seems to me that if the police wanted
to give false evidence about the first appellant’s
conduct in
relation to the watch, they would have located such conduct in the
house of the first appellant where they first met
him. It is
improbable that they would have shelved such incriminating conduct
and delayed it until the first appellant was later
in their office.
Something must have happened in the police office which spurred the
police to seize the Casio watch from the
first appellant which they
did not do much earlier in his own house. I am not convinced that
the finding of the court
a
quo
on the ownership of the watch can be disturbed.
[2
6] The
two brothers, namely: Roberto Menino and Carlos Menino readily
identified the watch as the property of the late shopkeeper
which was
discovered missing after the robbery. The evidence of Carlos Menino
was that his late business partner used to wear
his Casio watch
everyday. He added that on two occasions he, at the request of his
partner, repaired the Casio watch. He gave
a satisfactory
description of the watch, but he also made reasonable concession in
favour of the first appellant in connection
with the watch. The
court
a
quo
found that the first appellant’s possession of the watch very
similar to that of the late shopkeeper was an incriminating evidence.

It surely was.
[27] Although
the pointing out of the first appellant by Roberto Menino both at the
parade and at the trial appeared to have been
doubtful – any such
doubt as to the actual involvement of the first appellant or any
doubt as to the identification of the watch
– was effectively
removed and adequately compensated by the highly incriminating
conduct of the first appellant, as previously
outlined. That
conduct, in my view, fortified the direct evidence of Roberto Menino,
that the first appellant was the robber that
actually pushed him
around on the scene and the indirect evidence by the two brothers
that the Casio watch belonged to their deceased
business associate.
[28] If
we accept, as the court
a
quo
did, and I strongly believe that we must, that the Casio watch we are
here dealing with, in truth and in reality, belonged to the
deceased
shopkeeper, then the doctrine of recent possession kicks in and
operates adversely against the first appellant. The doctrine
means
that when a person is found in possession of recently stolen
property, he is deemed in law to have acquired such recent possession

through direct participation in the actual stealing thereof, unless
he can give a reasonably innocent explanation.
[29] In
S
v PARROW
1973 (1) SA 603
(AD) Holmes JA at 604 B – C eloquently said the
following about the aforesaid doctrine:
“
I pause here to
refer briefly to the so-called doctrine of recent possession of
stolen property. In so far as here relevant, it
usually takes this
form: 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 might 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 reasonable
inference, that he stole the property.”
[
30] I
pause to point out that in
S
v RAMA
1966 (2) SA 395
(AD) at 400 C – E per Rumpff JA, the court was
grappling with the issue of a stolen watch, as we are in the instant
case. It
is significant to mention that in that case the appellant
was convicted on the strength of possession of a stolen watch, which
was found in his possession 14 days after the thieving. Here, unlike
there, the first appellant was found in possession of a watch
stolen
merely five days earlier. Before he gave a vague and false
explanation, he tried to hide it in a bid to cover up his unlawful

possession. All these factors strengthened the force of the
presumption that he recently acquired the watch through his actual

participation in the recent stealing and not through lawful and
honourable means.
[31] At
the end of the analysis of the evidence against the first appellant
the court
a
quo
came to the following conclusion:
“
Wat betref die
uitwysing, het dit geblyk uit getuienis van Roberto tydens
kruisondervraging dat hy onseker was toe hy die uitwysing
gemaak het,
en dat hy self in die hof onseker was oor die identiteit van
beskuldigde 2.
Dit volg derhalwe na my mening dat daar ‘n redelike twyfel by die
hof bestaan rakende die betrokkenheid van beskuldigde 2.”
[32]
The
finding that there was a reasonable doubt regarding the involvement
of the first appellant was not borne out by proven evidence,
direct
and circumstantial, which showed beyond reasonable doubt that the
first appellant was indeed involved. The finding did
not really
tally with the preceding trend of reasoning by the court
a
quo
.
This was borne out by the summary of the verdict. At p. 404: 24 –
405: 4 the court
a
quo
correctly, albeit contrary to its earlier finding, concluded:
“
Wat betref beskuldigdes 2 en 3,
meen ek dat dit bo redelike twyfel bewys is dat hulle deel was van
die rooftog en die misdrywe wat
daarmee verband hou, en dat hulle
bygevolg skuldig is aan al die ten laste gelegde misdrywe.”
[
33] At
par. 2.2 of the supplementary heads of argument, filed on behalf of
the appellant, Mr. Pretorius contended that since Beckley
J himself
had found that there existed reasonable doubt concerning the
involvement of the first appellant, the proper verdict should
have
been an acquittal and not conviction. I am not so persuaded. During
argument before us, Mr. Pretorius did not forcefully
pursue this
issue with any conviction. His lame attitude suggested that he
realised and tacitly acknowledged that the court
a
quo
erroneously made a finding it did not mean to make.
[34]
The findings of the court
a
quo
that, the first appellant took the police to a certain spot near
Lehakwe School, where the police, on their second visit, recovered

the shotguns with the aid of another suspect; that exhibit 3 was
correctly identified by two witnesses as the watch of the deceased

shopkeeper; that the first appellant was found in possession thereof
a few days after the robbery; that the first appellant was
caught
red-handed while trying to conceal the watch; that his version was
improbable and not reasonably and possibly true, are
findings which
I, on appeal, cannot hold to be wrong. I would, therefore, not
interfere with the conviction in this regard in
respect of all the
seven charges.
[35] As
regards the second appellant, the respondent’s version was narrated
by five witnesses. With the exception of Ms Dorothea
Londt, four of
them were the same witnesses who had adduced evidence against the
first appellant.
[36] The
second appellant also pleaded not guilty in respect of all the
charges and raised the same defence of an alibi as the first

appellant. Once again the issue was the identity of the second
appellant as one of the perpetrators. Here there was virtually
no
direct evidence against the second appellant. The prosecution
adduced circumstantial evidence which revolved around a certain

cellotape roll and a few bank bags.
[37] The
prosecution evidence was that the police were led to the second
appellant’s dwelling at Moeletsi Hostel in Thabong, Welkom
by a
certain Mr. Mojela. Captain Mabeleng’s evidence was that through
the curtainless window of the house he noticed a male
with a coat on.
The coat-man would simply not open the door, although he was
repeatedly requested to do so. Inspector Dlamini
had to break the
window in order to open the door from inside for his colleagues. The
police searched the house and found one
unoccupied bedroom. The
police searched the house and found the coat-man hiding in a bed in
another bedroom. There was a couple
sleeping in the same bed.
[38] The
coat-man turned out to be the second appellant and the rightful
occupant of an empty bedroom with no curtains. They searched
the
bedroom and found bank bags containing money to the tune of R72,01.
In addition, they also found a cellotape roll. On the
price tag of
the cellotape the words “Mini Price Store” were printed. The
cellotape and the bags were in a pot. Besides the
pot there was also
a concertina in the same locker.
[3
9] The
second appellant was then arrested. On the way to the offices of the
serious and violent crimes unit, he spilled the beans.
The police
and the second appellant turned back to Thabong. On the strength of
the information he gave to the police investigation
team, the third
suspect, accused no. 1, was arrested. The latter led the police
investigation team to a spot in the vicinity of
Lehakwe School where
the two shotguns, stolen from the aforesaid supermarket, were
recovered. The next day accused no. 4 was arrested
at a police road
block. He was driving a white BMW sedan. Still on the same day
accused no. 5 was arrested. He was found among
taxi passengers. In
his room at Bambanani Gold Mine a firearm was found in his locker.
[40] The
witness, Mr. Carlos Menino, identified the cellotape by means of the
price tag with the name of the supermarket and the
red flag as the
roll used in the supermarket for various binding or wrapping
purposes. The particular roll was not for sale although
the same
type of cellotape was stocked on the shelves for sale. He also
identified the bank plastic bags by means of the systematic
manner in
which the money was sorted as money stolen from the supermarket
during the robbery. His evidence was corroborated by
Ms Dorothea
Londt in many material respects.
[
41] The
second appellant denied any involvement in the Reitzpark robbery.
His version was that he was home at Moeletsi Hostel throughout
the
day on Monday, 16 June 2003. He averred that he only left his
dwelling at or about 18h00 to buy bread and that he was back
home a
few minutes later. The cash found in the bank plastic bags was his
money. It consisted of the proceeds of the recent stokvel
party he
had hosted. The cellotape roll was his. He averred that he had sent
a certain lady, Ms Matshidiso Mofokeng, who worked
in the suburb
concerned, to buy him a cellotape. She bought the cellotape, on his
behalf, from Mini Price Store in December 2002.
The lady was his
girlfriend.
[42] Personally
he had never bought anything from the same supermarket. He required
a cellotape to fix his concertina from time
to time. As for the
particular cellotape, he never used it because he discovered that it
was not the right type he preferred.
He denied he tried to hide
himself from the police; that he refused to open the door; that the
police had to break a window to
gain entry into his house or that he
implicated accused 1, accused 4 and accused 5.
[43] He
admitted that Captain Mabeleng visited him at the correctional
facility. He averred that the Captain offered him money
provided he
became a state witness. He rejected the offer. The late Lebohang
Clement Leaka, a member of the gang of robbers who
was fatally
wounded and instantly died on the scene during the cross fire, was
his biological brother, he admitted.
[44] The
court
a
quo
adopted
the correct approach.
“
Daar moet eerstens die vraag
afgevra word of die getuienis van die beskuldigdes – gesien teen
die agtergrond van die Staat se
getuienis – redelik moontlik waar
is al dan nie. Indien enige van die beskuldigdes se getuienis
redelik moontlik waar is, gegewe
dat elkeen se getuienis neerkom op
‘n alibi, is sodanige beskuldigde geregtig op sy vryspraak. Indien
die beskuldigde se weergawe
nie redelik moontlik waar is nie, moet
daar dan oorweeg word of die getuienis van die Staat voldoende is om
sy skuld op elk van
die individuele klagtes bo redelike twyfel te
bewys.”
[45]
No
onus rests on the accused to establish his alibi. He must be
acquitted if his alibi might be reasonably true. See
S
v MHLONGO
1991 (2) SACR 207
(AD) at 210 d - e per Eksteen JA.
[46] The
court
a
quo
rejected the second appellant’s alibi. It found that his version
was not reasonably and possibly true. It then enumerated a
number of
improbabilities inherent in his version. Mr. Pretorius argued that
the circumstantial evidence adduced against the second
appellant did
not justify, as the only reasonable inference, the drawing of the
inference drawn by the court
a
quo
that the second appellant was indeed involved in the incident during
which Mini Price Store was robbed and two persons perished.

Accordingly he submitted that the second appellant was incorrectly
convicted.
[47] Firstly,
the court
a
quo
found it unthinkable that the police would shortly before the
commencement of the trial, have approached a man who has all along

persistently proclaimed his innocence and emphatically denied any
knowledge of the incident to become a state witness. Initially
the
second appellant denied, via his legal representative, that the
police ever dangled a carrot to entice him to become a state
witness.
However, during his cross-examination he admitted, contrary to such
previous denial, that investigating officer did,
in fact, visit him
and even promised him a reward. The significance of this aspect is
twofold. It does not only depict the second
appellant, as
untrustworthy witness, but above that, his admission of the visit
plus the offer supports the argument that he most
probably
co-operated with the police and gave them vital clues about the
incident.
[48] Secondly,
in developing his submission that the court
a
quo
had misdirected itself in convicting the second appellant, Mr.
Pretorius submitted that the finding by the trial court that the

respondent had failed to prove beyond reasonable doubt that accused
1, accused 4 and accused 5 were involved in the aforesaid incident

and accordingly acquitted them, served as clear support for the
submission that the second appellant too was equally entitled to
have
been acquitted. The court
a
quo
found that it was improbable that the police would, but for the
useful information provided by the second appellant, have been
able
to arrest the further suspects. In my view the finding was perfectly
valid.
[49] Thirdly,
the submission was flawed. Beckley J made it clear in his critique
of the investigating officer that there was more
than just a mere
suspicion as far as accused 1, accused 4 and accused 5 were
concerned, particularly accused no. 1. All of them
were implicated
by the second appellant. Of the three, accused no. 1 was the most
highly implicated. He took the police to a
furrow in the vicinity of
Lehakwe School, just as the second appellant had earlier done.
There, in the furrow, two shotguns were
found. Such guns turned out
to be highly incriminating evidence. They were the same shotguns
that were stolen from the security
guards at the supermarket during
the robbery. The evidence against accused no. 1 was formidable. It
is crystally clear to me,
therefore, that accused 1, accused 4 and
accused 5 were acquitted on procedural grounds and not substantive
grounds. However,
the procedural irregularities which led the three
off the hook, were not applicable to the second appellant, hence he
was convicted
and they were acquitted.
[50
] Fourthly,
the overwhelming circumstantial evidence against the first appellant
had adverse impact on the second appellant. Firstly,
the two knew
each other. Secondly, in their respective possessions incriminating
goods which served as connective tissue between
them and the scene,
were found. The circumstantial evidence objectively implicated the
second appellant in a big way. The only
reasonable and ligitimate
inference that could be drawn from the following pieces of
circumstantial evidence is that he was undoubtedly
involved: for
instance his earlier pointing out of the same furrow which accused 1
also later pointed out; his subsequent pointing
out of accused 1; the
recovery of the shotguns through accused no. 1 in the same furrow
that he had earlier pointed out; the ultimate
recovery of the guns
and their positive link to the supermarket; his candid admission that
the robber instantly killed on the scene
was his sibling; his
possession of the partially used cellotape, which he admittedly did
not use and certainly did not buy as a
second hand; the bank plastic
bags containing money sorted and packed in a systematic manner
compliant with the bank requirements;
his admission that he was
illiterate and therefore could not probably have sorted and packed
the notes and the coins in such a
particular and systematic method;
his abortive attempt to hide in a room in the same bed with an
innocent couple; his false claim
that he opened the door for the
police and his false claim that the window of his house was broken
after his arrest by criminal
elements and not the police.
[51] The
inference that he was involved was the one and only exclusive and
legitimate conclusion. There can be no other reasonable
and
conceivable inference as more compelling on such proven objective
facts collectively considered together with the rest of the
evidence.
As I see it, the principles and basic rules of logic pertaining to
inferential reasoning as set out in
REX
v BLOM
1939 AD 188
on 202 – 203 and
S
v MTSHWENI
1985 (1) SA 590
(AD) were correctly complied with by Beckley J. I
am satisfied that the evidence as a whole furnishes sufficient proof
of the
second appellant’s guilt –
REX
v DE VILLIERS
1944 AD 493
on p. 508 – 509. I am therefore inclined to confirm
the convictions in this regard as well.
[52] Ms
Claassens’ submission that there was no misdirection, let alone
material misdirection, to warrant any interference, was
correct. In
the absence of any misdirection we have no reason to interfere. The
alibi of the second appellant was, in my view,
properly considered in
the context of the entire factual matrix and correctly found to be
wanting –
S
v THEBUS AND ANOTHER
2002 (2) SACR 566
(SCA).
[53] Finally,
I turn to the issue of sentence. Mr. Pretorius submitted that he
could hardly argue with any conviction that the
court
a
quo
inappropriately exercised its sentencing discretion in imposing the
sentence on the appellants.
[54] Ms
Claassens supported the sentences imposed on the appellants in
respect of the first five charges. But submitted that the
court
a
quo
committed a misdirection in respect of the last two charges, namely,
charge 6 and 7 seeing that the sentence of 8 (eight) years

imprisonment for unlawful possession of either ammunition or firearm
exceeded the provisions of section 39(2)(b)(i) of Act 75 of
1969
which prescribes a sentence of R12 000,00 fine or 3 (three) years
imprisonment for a first offender. Both appellants were
first
offenders. As regards the sixth and seventh charges, I am persuaded
that the court
a
quo
indeed committed a misdirection in sentencing the appellants as it
did.
[55] I
deem it unnecessary to recite the mitigating factors or the
aggravating factors relevant to the first or the second appellant

respectively. As regards the first to the fifth charges there is no
real issue anymore between the parties. I am satisfied that
each of
them was sentenced in a balanced manner. I would therefore confirm
those sentences.
[56] A
s
far as it is practically possible a separate sentence must be imposed
in respect of each separate charge. Where two charges have
been
taken together as one, the lumping up of the charges and treating
them as one for the purposes of sentence, can create certain
problems
on appeal, for instance, if the appeal succeeds in respect of one
charge but fails in respect of the other.
[5
7] In
the light of the aforegoing misdirection, we are therefore entitled
to interfere. The penal jurisdiction of the court
a
quo
was limited. The sentence of 8 (eight) years imprisonment the court
a
quo
imposed, exceeds the prescribed statutory limit by 5 (five) years.
The two charges should ideally not have been taken as one for
the
purposes of sentence. It seems to me that a sentence of two years
imprisonment in respect of possession of unlawful firearm
and 1 (one)
year imprisonment in respect of unlawful possession of ammunition
would be an appropriate punishment for each of the
appellants.
[58] In
the circumstances the following order:
58.1 The
convictions of the first appellant and the second appellant in
respect of the first, second, third, fourth and fifth charges
are
confirmed.
58.2 The
sentences imposed on the first appellant and the second appellant in
respect of the aforesaid five charges are also confirmed.
58.3 The
sentences of 8 (eight) imprisonment imposed on each of the appellants
in respect of the sixth and the seventh charges are
set aside.
58.4 It
is substituted therefore, the sentence of 2 (two) years imprisonment
and 1 (one) year imprisonment for the unlawful possession
of firearms
and ammunition in respect of the sixth and the seventh charges
respectively.
58.5 I direct that all
the sentences must run concurrently.
________
______
M.H.
RAMPAI, J
I concur.
_______________
A.F. JORDAAN, J
I concur.
____________
K.J. MOLOI, J
On
behalf of
the
appellants: Mr. K. Pretorius
Instructed
by:
The
Justice Centre
BLOEMFONTEIN
On
behalf of respondent: Ms B G Claassens Instructed by:
Director
of Public Prosecutions
BLOEMFONTEIN
/sp