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[2007] ZAWCHC 92
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S v Mhlongo (A378/2005) [2007] ZAWCHC 92 (26 October 2007)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO
:
A378/2005
DATE
:
26
OCTOBER 2007
In
the matter of:
THE
STATE
Versus
FANI
MASUKI MHLONGO
JUDGMENT
GRIESEU
J
The
appellant, accused No 3, together with two co-accused, appeared in
the regional court on five charges of robbery with aggravating
circumstances, as well as illegal possession of firearms and
ammunition.
All
three accused pleaded not guilty to the charges, but the appellant
and accused No 2 were nonetheless convicted as charged. The
former
accused No 1 was acquitted on all charges.
The
various counts were taken together for purposes of sentence and the
appellant and accused No 2 were thereupon sentenced to
effective
terms of 15 years imprisonment each.
The
appellant noted an appeal against his convictions.
The
events giving rise to the prosecution took place shortly after 10:00
p.m. on Sunday evening, 12 November 2000, at the Silverado
Spur
restaurant in Hout Bay. The evidence of the State witnesses
establishes beyond doubt that on that occasion four men, acting
in
concert, robbed the restaurant of some R10 000,00 in cash. In
addition, four employees and patrons of the restaurant were
robbed
of personal items such as jewellery and watches. Three of the
robbers were armed with firearms. The robbers thereupon
left the
restaurant and their victims cafled the police. The three accused
were apprehended by the police shortly afterwards
the same evening.
At
the identification parade held approximately two weeks later, a few
of the witnesses identified accused No 2. Only
one of them
identified the appellant, but she was not 100% certain of this
identification.The evidence against the appellant therefore
is
largely circumstantial.
Against
this background it was argued on his behalf that his guilt has not
been established beyond reasonable doubt, more particularly
inasmuch
as the evidence adduced on behalf of the State does not satisfy the
two cardinal rules of logic laid down in
R
v Blom
,
1939 AD at 202 - 203 all those years ago. The inference sought to be
drawn must be consistent with all the proved facts and
it must
exclude every reasonable inference save the one sought to be drawn.
What
is the evidence on which the State relies? Firstly, the Spur
restaurant in Hout Bay was robbed after 10:00 p.m. on the night
in
question by four black men who were neatly dressed, at least three
of whom were armed with firearms. Apart from approximately
R10
000,00 in cash, the victims were robbed of jewellery and personal
items such as wrist watches. Shortly after receiving the
report of
the robbery, the police observed four men walking in the street less
than half a kilometre from the scene of the robbery.
On the face of
it, they fitted the description furnished to the police. There were
four of them, they were black, male, neatly
dressed and they were
together. As the police van pulled up in front of the men, three of
them ran away. The appellant stood
still and was apprehended. The
police found a silver 38 special revolver in his possession. At a
later stage, so the police testified,
they also found some jewellery
in his possession, which was subsequently identified by some of the
victims as their property.
Two of the other suspects were
apprehended shortly afterwards while they were attempting to hide
from the police. Firearms
were found in thefr possession, as well as
serviettes from the Spur.
In
considering the impact of circumstantial evidence, the Court should
not look at each factor in isolation, but should consider
the
totality of the evidence.
Turning
to the evidence before the Court in this case, all the facts
summarised above point overwhelmingly towards the guilt of
the
appellant. The crucial question is whether the guilt of the
appellant is the only reasonable inference to be drawn. Put
differently, whether the evidence is capable of an innocent
explanation. None was proffered on behalf of the appellant who chose
not to testify in his own defence. In these circumstances, the Court
is not entitled to speculate as to the possible existence
of facts
which, together with the proved facts, would justify the conclusion
that the accused is innocent. Where an accused has
elected not to
testify, this would have certain consequences for his case, as was
pointed out by constitutional court in
Osman
and Another v Attorney-General Transvaal
,
1998(4) SA 1224 (CC) at paragraph 22. I quote:-
'Our
legal system is an adversaria! one. Once the prosecution has
produced evidence sufficient to establish a
prima
facie
case,
an accused who fails to produce evidence to rebut that case is at
risk. The failure to testify does not relieve the prosecution
of its
duty to prove guMt beyond reasonable doubt. An accused, however,
always runs the risk that absent any rebuttal, the prosecutions
case
may be sufficient to prove the elements of the offence. The fact
that an accused has to make such an election is not a breach
of the
right to silence. If the right to silence were to be so interpreted,
it would destroy the fundamental nature of the adversarial
system of
criminal justice."
This
line was expressly approved and followed by the constitutional court
in the case of
S
v Boesak
.
2001(1) SACR, page 1 at paragraph 24.
In
my view the circumstantial evidence adduced by the State in this
case clearly called for an answer from the appellant. In the
absence
of an answer, the trial court was entitled to convict.
I
can find no reason to interfere with that. In the
circumstances, I would
DISMISS
the appeal. It is so ordered.
GRIESEL,
J