Mkwananzi and Others v S [2007] ZAFSHC 143 (6 December 2007)

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
>>
2007
>>
[2007] ZAFSHC 143
|

|

Mkwananzi and Others v S [2007] ZAFSHC 143 (6 December 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Appeal
No.: A287/2006
In the appeal between:
MHLUPHEKI
HENRY MKWANANZI
1
st
Appellant
MXILISI
JOSEPH MPONDO
2
nd
Appellant
TSUBASA
SAMUEL MOTSAPI
3
rd
Appellant
WILLIAM
RATAU MOREKE
4
th
Appellant
and
THE
STATE
Respondent
CORAM:
EBRAHIM, J
et
MOCUMIE,
AJ
___
____________________________________________________
JUDGEMENT:
MOCUMIE, AJ
_______________________________________________________
HEARD ON:
3 DECEMBER 2007
_______________________________________________________
DELIVERED ON:
6
DECEMBER 2007
_______________________________________________________
[1] The four appellants
appeared in the Regional Court, Bethlehem on a charge of robbery with
aggravating circumstances. They were
all convicted as charged on 4
May 2004. The second appellant was also convicted of contravention
of section 3 of the Firearms and
Ammunition Act No. 60 of 2000,
possession of unlicensed firearm. They were sentenced to: Count 1,
the first to the fourth appellant,
10 (ten) years imprisonment and
count 2, the second appellant, 5 (five) years imprisonment which was
wholly suspended for 5 years
on certain conditions.
They
were all represented during the trial.
They now appeal against
both convictions and sentences.
[2] Mr. Pretorius who
appeared on behalf of the appellants submitted that the trial court
misdirected itself on amongst others the
following grounds:
2.1 That first appellant
was linked to the commission of the robbery through the car that was
found inside his premises five days
after the robbery;
2.2 That
first appellant was not asked for an explanation on how he came to be
in possession of the said vehicle;
2.3 The
jewelery found in first appellant’s possession was not positively
identified as American Swiss’ property;
2.4 That
there was no sufficient evidence which linked second appellant to the
commission of the robbery and possession of a firearm.
The fact that
he was found inside a house in which jewelery belonging to American
Swiss as well as a firearm were found was not
sufficient evidence to
link him to the commission of the robbery. The house belonged to one
Dan Khambule;
2.5 That
third appellant was identified erroneously at the identity parade.
[3] He however conceded
that in so far as the fourth appellant, evidence of the State was
sufficient to prove him guilty beyond reasonable
doubt.
[4] He submitted further
that the sentence that the trial court imposed cannot be said to be
inappropriate or shockingly inappropriate
in the circumstances.
[5] The four appellants
were arrested in the early hours of 13 May 2004, five days after the
American Swiss Jewellery Store in Welkom
was robbed of an undisclosed
quantity of jewellery and cellphones. The staff of American Swiss
had just reported on duty the day
in question when one man walked in
and made some enquiries and then held them up at gun-point. Only to
be joined by three others.
In this group third appellant was the
most conspicuous due to his striking features: light complexion and a
scar on the cheek as
he was later identified at the identity parade.
[6] Each of the four
appellants were found in possession of American Swiss jewellery and
cellphones. They offered no explanation
why they possessed such
goods. A year later after their arrest first appellant alleged that
the vehicle was brought to the premises
some day before 13 May by one
Captain Twala to repair it as he was a mechanic. The jewellery was
his, none which was found in his
possession belonged to American
Swiss. He could not explain how his sim card was found inside one of
the cellphones, a Samsung stolen
at American Swiss during the armed
robbery.
[7] The second appellant
too alleged that the house he and his girlfriend were arrested in
belonged to a man called Dan Khambule.
His girlfriend who was with
him was found in possession of jewellery inside her handbag. He did
not know about the firearm under
the bed.
[8] Third appellant
simply denied being found in possession of the jewellery and being at
American Swiss. Whereas fourth appellant
just fluffed his lines on
how his finger-prints ended on a cellphone box of one of the
cellphones stolen at American Swiss. All
of them just laid the blame
at the door-step of this Khambule or Captain Twala. As one would
expect all of them did not know the
whereabouts of this man who
trusted them with his house and jewellery and firearm. Furthermore
none of the appellants even suggested
to the police, their legal
representatives and the trial court how these men could not be
brought to court as witnesses. It is not
difficult to see the
creation of these men as a smoke-screen to avert to accept
responsibility.
[9] Mr. Pretorius argued
that the one feature of this case is that apart from the jewellery
and this vehicle, the appellants were
linked to be commission of the
robbery obtained illegally from MTN IBA indicating that the first,
second and third appellants were
communicating with each other but
alleged it was in the ordinary course of their friendship and
business transactions not related
to the robbery.
[10] Apart from the
patent error on the part of the trial court on the MTN number used to
trace calls made between the appellants
on the day of the robbery
with regard to second appellant, counsel did not contend as would
have appeared during the trial, that
the inclusion of the evidence of
the information from MTN operated unfairly against the appellants.
They confirmed that indeed they
made calls to each other but for
their own personal reasons not necessarily linked to the commission
of the robbery.
[11] From Van der Merwe’s
evidence it is clear that, the explanation given to the trial court a
year later was never given to the
police or anyone else for that
matter. Appellants’ insistence that they were not at American
Swiss in Welkom on 13 May 2004, that
they were not found in
possession of large quantities of jewellery with tags of American
Swiss and the vehicle that was seen in the
vicinity of the crime
scene, five days after the robbery is highly improbable. Their lame
excuses that some of the jewellery was
theirs and the vehicle and the
house belonged to some other people is totally unconvincing. The
argument that the trial court misdirected
itself on the grounds
alluded to in para 2
supra
is without substance.
[12] The approach to
adopt in the evaluation of circumstantial evidence in the final
adjudication of a criminal case rests on two
cardinal rules whether
(i) the inference which the State pleads is consistent with all the
proved facts and (ii) no other reasonable
inference can be drawn from
those facts. See
R
v Blom
1939 AD 188
at 202 – 203. The objection is against
“a
piecemeal process of reasoning.
”
The Court must take the totality of facts into account. See
S
v Snyman
1968 (2) SA 582
(A) at 589F,
S
v Ntsele
1998 (2) SACR 178
(SCA) at 189 c – d;
S
v Campos
2002 (1) SACR 233
(SCA).
[13] The court must not
take each circumstance separately and give the accused the benefit of
any reasonable doubt as to the inference
to be drawn from each one
taken. It must carefully weigh the cumulative effect of all of them
together, and only after it has done
so that the accused is entitled
to the benefit of any reasonably doubt which it may have. (
R
v De Villiers
1944 AD 493
at 508).
[14] In my view the
cumulative effect of the evidence presented by the State formed a
network
“so
coherent in its texture that the appellants cannot break through it.”
(
S v
Reddy
1996 (2) SACR 1
(A).
[15] Mr. Pretorius’s
argument that inference which were not reconcilable with the guilt of
the appellants could also be drawn from
the State’s evidence cannot
be correct
Zulman
AJA
in
S
v Reddy
supra
at 10 b
- d stated:
“
The fact that a number of
inferences can be drawn from certain facts, taken in isolation, does
not mean that in every case the state,
in order to discharge the onus
which rests upon it, is obliged to indulge in conjecture and find and
answer to every possible inference
any more than the court is called
on to seek speculative explanations for conduct which on the face of
it is incriminating.”
(Per
Diemont JA in
S
v Sauls and Others
1981 (1) SA 172
(A) at 182 G – H). See also
S
v Rama
1966
(2) 395 (A) at 410 A – C, approving the remarks of Malan JA in a
minority judgment in
R
v Mlambo
1957 (4) SA 727
at 738 A – B).
[16] In my view
appellants’ bear denial of their involvement pales next to the
evidence of Ms Bell and Van der Merwe. There is
no reason for this
Court to interfere with the findings of the trial Court on the
appellants’ guilt in respect of both counts.
[17] On the question of
sentence Mr. Pretorius correctly conceded that the sentence of ten
years imposed by the trial court was appropriate.
This issue will
then not be addressed as in my view the Magistrate was not guilty of
any misdirection. I also do not consider the
sentence to be
startling inappropriate or to induce a sense of chock. If anything
he erred on the side of leniency.
[18]
The
following order is made:
17.1 The appeals of
the appellant against their convictions and sentences are dismissed.
17.2 The
convictions and sentences of the Magistrate dated 4 May 2004 are
confirmed.
_________________
B. C. MOCUMIE, AJ
I concur.
________________
S. EBRAHIM, J
/em