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[2008] ZAWCHC 140
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Mazo and Another v S (A34/2007) [2008] ZAWCHC 140 (15 February 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION')
CASE
NO
:
A34/2007
DATE
: 15
FEBRUARY 2008
In
the matter between
SISWE
MAZO
1
st
Appellant
LUYANDA
KUTA
2
nd
Appellant
and
THE
STATE
Respondent
MATOJANE,
AJ
:
JUDGMENT
[1]
The two appellants were charged (together with three others) in the
Regional Court at Wynberg with one count of housebreaking
with
intent to rob and robbery with aggravating circumstances on 29 June
2004. Both, appellants (and all other accused) were
convicted and
sentenced on 31 July 2006 to an effective term of imprisonment of 15
years each. Leave to appeal was sought and
granted.
[2]
The first appellant now appeals to this Honourable Court against his
conviction and sentence and second appellant appeals
against his
conviction only.
[3]
It is argued on first and second appellants
1
behalf that the Court a
quo
erred
in accepting that the State had proved its case beyond reasonable
doubt in as much as its case was based on circumstantial
evidence.
It is submitted that the Court failed to properly apply the
reasoning mentioned in
R
v Blom
1939 AD at 288.
[4]
The sentence is attacked on the ground that the presiding officer
failed to take into account that the first appellant was
a first
offender who has been in custody since his arrest on 11 February
2003 until sentence was imposed on 31 July 2006.
[5]
Mr David James Chaka (the complainant) testified on the events that
took place on 10 February 2006 at about 12 midnight. He
and his wife
were awoken by four mates rushing into their bedroom and jumped onto
their bed as they lay asleep. Torches were
shone in their eyes as
they woke up. Two males held him down on the bed and the other two
held his wife and tied them up. His
15 year old son was also brought
into the bedroom and tied up. They were covered with blankets. The
complainant was robbed of
the items mentioned in the charge sheet
including, amongst others, R2 000 in R200 notes and two vehicles.
[6]
The arresting officer, Inspector Daniel Tredoux, testified that he
and his partner were on patrol (accompanied by Netstar)
in the early
hours of 11 February 2003 when they received a radio report of a
robbery that had taken place during which two vehicles,
a Volkswagen
microbus and a Volkswagen Golf, had been stolen. They proceeded to a
place in Guguletu, known to them as a place
where previous stolen
vehicles had been recovered. The place is called Malunga Mews.
[7]
The found the stolen Volkswagen Microbus parked at a block of flats
in Malunga Mews and whilst waiting for a tow-truck to
take it to
storage, they heard people approaching the area where the vehicle
was. They concealed themselves behind a wall and
revealed themselves
with their firearms in their hands as soon as they were near the
vehicle.
[8]
Inspector Tredoux said that the five males stood still and while
they were standing there he heard a sound of metal falling.
He and
his
partner
proceeded to search them and found the sum of R1 500 in R200 notes
on first appellant. He then placed the money back in
the pocket
where he had found it. Appellant told him that the money belonged to
his mother and that he was going to buy clothing
with it the
following day. He testified that first appellant, whose hands were
now tied at the back, removed the money from his
pocket and tried to
pass it to one of his co-accused. He proceeded to search the area
and found the keys of the microbus on the
ground.
[9]
It is not necessary at this stage to deal with the evidence of the
other policeman, Inspector Drew Manson, and the fingerprint
expert
Mr Gregory Grieb.
[10]
First appellant said that he had gone to collect the club money on
his mother's behalf at approximately 11 o'clock in the
evening. He
was going to use the money the following day to buy school clothes
for himself. He then went to a certain tavern
in the area where he
remained for two to three hours listening to music. Thereafter he
decided to visit his girlfriend and was
arrested on his way in the
vicinity of the stolen Volkswagen Microbus in NY8, He said that he
explained to the arresting officer
that the money in his possession
was the money he had collected for his mother and was to use the
money to buy clothing for himself
the following day.
[11]
A number of fundamental misdirections appear from the judgment of
the Court a
quo.
First,
the Court applied a wrong standard of proof as appear from the
following passage:
â
My
bevinding met betrekking to beskuldigde nomrner 1 en 4 (Appellant 1
en 2) is dat hulle het tnderdaad daarvan geweet, indien
hulle nie
self deel geneem het nie, het hulle daarvan geweet en hulle
vereenselwig met die optreding van die werklike rowers".
[12]
In regard to the approach followed by the Court
a
quo,
Brand,
AJA
in
S
v Shacked
2001(2) SACR at 185 said:
"It
is trite principle that in criminal proceedings the prosecution must
prove its case beyond reasonable doubt and that
a mere preponderance
of probabilities is not enough. Equally trite is the observation
that, in view of this standard of proof
in a criminal case, a court
does not have to be convinced that every detail of an accused's
version is true. If the accused's
version is reasonably possibly
true in substance, the court must decide the matter on the
acceptance of that version. Of course,
it is permissible to test the
accused's version against the inherent improbabilities. But it
cannot be rejected merely because
it is improbable, it can only be
rejected on the basis of inherent probabilities if it can be said to
be so improbable that it
cannot reasonably possibly be true. On my
reading of the judgment of the Court a
quo
its
reasoning lacks this final and crucial step."
The
test the Court should have applied is whether there is a reasonable
possibility that the evidence of both appellants could
reasonably
possibly be true.
[13]
The judgment of the Court
a
quo
makes
a passing reference to
R
v Blom
1939 AD 288
but surprisingly, it does not follow the "two
cardinal rules of logic" which, according to
Watermever.
JA
,
regulates the evaluation of circumstantial evidence. It is common
cause that the two appellants were arrested as part of a group
of
men who were in the vicinity of the stolen vehicle and first
appellant was found to be in possession of the sum of R1500.
This
was the only evidence against the two appellants. The State's
version testified to by James Chaka (the complainant),
Daniel
Tredoux and Drew Manson (the arresting officers) does not link
the two appellants in any way whatsoever to the
commission of the
crime. The above facts amount to circumstantial evidence and the
Court should have, according to the second
part of the "cardinal
rule of logic" test, have found that the proved facts do not
exclude other reasonable inferences,
especially as the Court had
accepted the evidence of the arresting officer, that first appellant
explained to him that the money
belonged to his mother.
[14]
The Court
a
quo
reasoned:
"Oor
die geld wat in sy besit gevind was het hy
l
n
inkonsekwente verduideliking gegee. Hy se toe die polisieman getuig,
dit word gestel deur midde! van sy regsverteenwoordiger,
hierdie is
geld wat my ma vir beskuldigde 3 se pa geskuld het. In sy getuienis
in hoof kom se hy die geld is gooi-gooi geld.
Dit was nooit gestel
aan die staatsgetuie nie. Later toe stem hy saam met die weergawe
van die polisie."
The
criticism of this evidence is entirely misplaced. The first
appellant explained that he discharged his legal representative
as
she had not carried out his instructions and that he had
communication problems with her. This evidence shows that the
first appellant's version at the time of arrest is consistent with
his testimony in court.
And
in any event, even if first appellant is found to have lied with
regard to his possession of the money, I am not satisfied
that this
is the only reasonable inference that can be drawn that the two
appellants were involved in the commission of the offence
as
charged.
[15]
I accordingly uphold the appellants' appeal and set aside the
convictions and sentences.
MATOJANE,
A J
VELDHUIZEN,
J:
I
agree, it is so ordered.
VELDHUIZEN,
J
1