IN THE HIGH COURT OF SOUTH AFRICA
(ORANGE FREE STATE PROVINCIAL DIVISION)
Appeal No.: A40/2005
In the appeal between:
SAMUEL TLADI Appellant
and
THE STATE Respondent
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CORAM: VAN DER MERWE, J et MATSEPE, AJ
JUDGMENT: MATSEPE, AJ
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HEARD ON: 7 NOVEMBER 2005
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DELIVERED ON: 10 NOVEMBER 2005
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The accused, Samuel Tladi, was arraigned before the regional
court in the district, Sasolburg on three charges, namely:
1. A charge of robbery in that he and two others robbed one
Jacob Rampitsana on the 2 nd of April 1999 at Zamdela,
Sasolburg;
2. Attempted robbery with aggravating circumstances in that on
the 3rd of April 1999 at Sasolburg he unlawfully and intentional
attempted to rob one Molopi John Motsoeneng;
3. Unlawful possession of a firearm in that he was found in
possession of a 7,65mm pistol in contravention of the
provisions of Act 75 of 1969.
His coaccused, Jacob Natala Makume, died before the trial had
commenced.
The appellant was acquitted on charges 1 and 3. This is an
appeal against his conviction and sentence as far as the second
count is concerned.
It is common cause that on the date in question the appellant was
in the company of the deceased, Makume and another when he,
Makume and the other person approached the complainant,
Motsoeneng, from behind and whilst the other person was holding
the complainant, he Makume took out a firearm and pointed it in
the direction of the complainant whilst simultaneously searching
the complainant. Nothing was found on him and he was
subsequently left to go. The appellant, Makume and the other
person left together to a shebeen.
The question that has to be answered is whether on the evidence
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as a whole, the state has proved beyond a reasonable doubt that
the appellant so associated himself with the actions of Makume
and the other person so as to make him culpable on the basis that
he is an accomplice.
As far as the law is concerned regarding an accomplice the
following may be noted:
1. A crime should have been committed by another person.
In this case it is common cause that the crime of attempted
robbery was committed by Makume and the other person.
2. There must be an act on the part of the accomplice which
assists the perpetrator to commit the crime. Such
assistance can take various forms such as giving advice,
encouraging or providing assistance. This assistance may
be of a negligible nature but what is required is that it must
be proven that there was adequate assistance. Counsel
for the appellant correctly points out that a person who is
present when a crime is committed and watches cannot be
said to be assisting in the commission of such crime. In
this regards see STATE v QUINTA & ANOTHER 1974 (1)
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SA 544 (TPD) which is authority for the view that such
person may only be culpable if there was a duty to
intervene and he/she failed to do so. In this regard see
STATE v PENDEKE 1967 (3) SA 200 (RA) as well as
STATE v CLAASEN 1979 (4) SA 460 (T). In the latter
case the appellant had permitted another person to drive
his vehicle without a licence whilst he was a passenger in
the vehicle. His appeal against the conviction in the
magistrate’s court was dismissed.
3. The accomplice must have the intention to assist the
perpetrator. In REX v MASUKA AND OTHERS 1965 (2)
SASR 40, Young, J AT 42 G – H held that:
¡°¡¦. if there was not physical contribution to the death of the
deceased there must, at least, be a psychological contribution in the
sense of incitement or encouragement.”
See also STATE v WILLIAMS EN ‘N ANDER 1980 (1) SA
63 (A) at 63 F G. Joubert, JA stated as follows:
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¡°Deurdat ‘n medepligtige hom bewustelik vereenselwig met
die pleging van die misdaad of bewustelik hulp verleen om
die pleging van die misdaad te bevorder, het hy die
bedoeling om die dader of mededaders te help om die
misdaad te pleeg.”
His culpable act consists in the giving of assistance or
encouraging the commission of the crime.
It is my intention to evaluate and analyse the evidence of the
actions of the appellant regard being had to the principles set out
in the authorities mentioned above. In order to do so the actions
of the appellant before, during and after the attempted robbery
would have to be looked at. The evidence of the complainant
regarding the actual participation of the appellant is that the
appellant was standing directly behind him during the robbery and
that he, the appellant, pressed against his back with his chest.
This is vehemently denied by the appellant who states that he was
standing a few metres away and watched the incident from that
distance. It is significant to note that when the appellant is asked
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by his attorney as to what happened after the complainant was
grabbed from behind he says:
¡°Then I stopped them. I reprimand, let this man alone. What are you
doing?”
And on page 126, line 23 of the record, when asked whether he
went closer to the complainant he states:
“I went nearer to them, and then I talked to them to stop what they
are doing.”
On page 128, line number 18, when asked what happened when
they remained at the tavern after the incident and the statement is
put to him:
¡°But you were no longer in each company.” He answers: “Yes”.
It is important to note that he states that he was no longer in the
company of the two would be robbers at the shebeen giving the
impression that they had now parted ways. The complainant
confirms that at some stage during the robbery when the person
with the firearm was threatening to shoot Motsoeneng, he the
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appellant said that he must leave Motsoeneng and not shoot him.
In this regard see page 130, line 19. The question however that
comes to mind is that if he did not associate himself with the
actions of Makume and the other person why accompany them to
the shebeen? He states repeatedly that he was threatened and
was afraid that he would be shot. He repeats this when the court
asks questions of clarity and on page 135, line 11 and 18 he
states that he was forced “gedwing om saam te loop” and “as jy nie
saamloop nie gaan ons jou skiet”. He states that in the shebeen he
was sitting very far from them and in this regard on page 136, line
8 the following may be noted from the questions by the court:
“So, jy was glad nie, jy wou so ver as moontlik van hulle af
weggebly het. Is dit korrek? Ja.”
He went to the taxirank early in the morning after he moved away
from them from the shebeen but when he got to the taxi they were
already there. After several questions from the court to clarify how
come he is found together with them at the taxirank, in the taxi,
sitting at the backseat which he initially denied, he concedes on
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page 138, line 5 that he was sitting with them:
¡°Ja, ek het saam met hulle daar gesit.”
It is significant that shortly thereafter he stated that this was
because as he puts it:
“…die stoele moet volgemaak van agter af. Ek het geen keuse
gehad nie.”
The question that needs to be answered is whether his behaviour
according to him both at the shebeen and in the taxi are consistent
with that of a person who, as he claims, want to disassociate
himself from the persons who committed the crime and indeed
who feels threatened. One would have expected him to want to
get away from them as much as possible if he was indeed
threatened as he states.
It is necessary in this case to determine whether the magistrate
properly evaluated and appreciated the significance of the onus
which rested upon the state and in this regard reference is made
to the matter of S v V 2000 (1) SACR 453 at 455 AC where the
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court sets out the principle that needs to be applied as follows:
¡°It is trite that there is no obligation upon an accused person, where
the State bears the onus, ‘to convince the court’. If his version is
reasonably possibly true he is entitled to his acquittal even
though his explanation is improbable. A court is not entitled to
convict unless it is satisfied not only that the explanation is
improbable but that beyond any reasonable doubt it is false. It
is permissible to look at the probabilities of the case to
determine whether the accused’s version is reasonably
possibly true but whether one subjectively believes him is not
the test. As pointed out in many judgments of this Court and
other courts the test is whether there is a reasonable
possibility that the accused’s evidence may be true.”
In considering the facts in this case the question whether one
subjectively believes the appellant’s version or not should not be
the test. What needs to be done is to determine whether as
indicated in the S v V supra matter, there is a reasonable
possibility that the accused’s evidence may be true.
The appellant was certainly not honest with the court regarding his
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activities and association with the other two accomplices as to
what transpired at the shebeen after the attempted robbery
incident as well as when they got to the taxirank. His evidence in
this regard is fraught with improbabilities and can safely be
rejected as false. It is therefore found that the court a quo
correctly rejected the evidence of the appellant.
However the question that needs to be asked is whether on the
evidence of the state it can be found that the state has proved the
guilt of the appellant beyond a reasonable doubt. In this regard
the following may be noted:
1. The complainant repeatedly said that although the
appellant was at his back, the appellant did nothing. He
also said that although the appellant could have searched
his back pocket, he did not do so. His further evidence
must be seen in this light.
2. The complainant did at one stage say that the appellant
pressed his chest against the back of the complainant. He did not
say that that was done in order to subdue the complainant. On the
contrary, according to the complainant he was rendered
motionless by the actions of the other two people. The
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complainant also said at one stage that when he retreated he
bumped into the person at his back. It is a quite reasonable
possibility that the complainant was referring to the same incident
when he said that he was pressed from the back.
3. The complainant, when asked in crossexamination
whether he can dispute the fact that the appellant did not
take part in the robbery, responds as follows:
“That I cannot say”
See page 64, line 20 of the record.
4. When it is further put to him that he cannot say that the
appellant took part in the robbery, he responds by saying:
“I, there is nothing that I can say”
See in this regard page 64 (26) and 65 (4) of the record.
The circumstances mentioned above create doubt as to whether it
can be found that the state proved beyond reasonable doubt,
participation by the appellant in the crime.
The appeal against conviction consequently succeeds.
The conviction and sentence are set aside.
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____________
MATSEPE, AJ
I concur.
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C.H.G. VAN DER MERWE, J
For the appellant: Adv. R. van Wyk
Instructed by:
Claude Reid Inc.
BLOEMFONTEIN
For the respondent: Adv. L. Faber
Instructed by:
The Director of
Public Prosecutions
BLOEMFONTEIN
/em
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