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[2024] ZALMPPHC 112
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Sehlabe v S (AA 05/2023) [2024] ZALMPPHC 112 (19 September 2024)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
APPEAL NO: AA 05/2023
COURT A QUO: CC76/2018
(1) REPORTABLE:
YES
/NO
(2) OF INTEREST TO
OTHER JUDGES:
YES
/NO
(3) REVISED.
Signature:
Date: 2024/09/19
In the matter between:
SEHLABE LOUIS
NTHATENG
APPELLANT
And
THE STATE
RESPONDENT
JUDGMENT
MONENE AJ
INTRODUCTION
[1]
Criticizing the philosophical outlook of a
fellow thought leader in Italian Marxist theory, Antonio Gramsci in
an article titled
"Sterile and Negative Criticism" sourced
from
L'Unita
of
30 September 1925 accused Amadeo Bordiga of oscillating between
thesis and antithesis.
[2]
The difficulties attendant to what others
have termed approbating and reprobating at the same time or at least
akin thereto have
often seized our courts in situations where
opposing litigants' versions are mutually destructive or where there
are internal contradictions
in a party's version, the approach to
resolution of which is now established law as gleaned from such
authorities as
Stellenbosch Farmers
Winery Group Ltd and Another v Martell et Cie and Others 2003(1) SA
11(SCA) at 14J- 15E
and
National
Employers General Insurance
Co
Ltd v Jagers 1984(4) SA 437(E) at
440E.
But nowhere has it been, at
least as per this court's improvable research, that a court of appeal
had to decide a situation where,
like in
casu,
it is not versions of litigants but
findings of a court which are materially irreconcilable.
[3]
The judgement of this division per Mudau J,
which serves before this Full Court of appeal following leave being
successfully petitioned
to the Supreme Court of Appeal, found there
to be no proof that the appellant was ever in either physical or
constructive possession
of firearms but still found a way to convict
him of two counts of murder and three counts of attempted murder
which offences were
ostensibly committed through the utilization of
the same firearms the appellant never possessed. If the rationale of
the court
a quo's judgement be not approbation and reprobation at the
same time or being so, it still is acceptable at law and undeserving
anti-Bordiga like Gramsci criticism, then the appeal must fail
because the appellant shall have been correctly convicted. If not,
then the conviction of the appellants shouts out to be set aside. But
what shall it be?
BRIEF BACKGROUND
AND EVIDENCE LED IN THE COURT A QUO
The charges and
brief chronology
[4]
The appellant was together with two other
persons charged with Robbery with aggravating circumstances,
conspiracy to commit murder,
three counts of attempted murder, two
counts of murder, two counts of unlawful possession of firearms and
one count of unlawful
possession of ammunition.
[5]
Following the testimony of three police
officers for the state, the appellant and other accused, the
appellant was convicted on
the conspiracy to commit robbery charge,
the two counts of murder and the three counts of attempted murder. He
was acquitted on
the robbery count, the two unlawful possession of
firearms charges and the unlawful possession of ammunition charge.
The convictions
then saw the appellant on 6 August 2020 sentenced to
an effective term of 25 years imprisonment it being so that the
sentence of
15 years for the conspiracy charge, 5 years for the
attempted murder charges and 25 years for each of the murder charges
were ordered
to run concurrently.
[6]
Leave to appeal having been denied by the
court a quo, albeit per Makgoba JP who had heard the leave to appeal
ostensibly in the
absence of Mudau J, the appellant was on 31 May
2023 granted leave to appeal to this Full Court against both
conviction and sentence.
The evidence led
[7]
In sum the evidence led by the state was as
follows:
7.1
The police received information that there
was a group of about five people travelling in a Ford Ranger Motor
vehicle intending
to rob a cash delivery van when it arrived at Boxer
Store in Mokopane.
7.2
Sergeants Mphotle Marokane, Masilo Phaladi
Makola and Motshoane Bopape were among the police officers who upon
identifying the said
Ford Ranger parked in the Mokopane town.
7.3
When the police were apparently noticed by
the occupants the Ford Ranger sped off resulting in the police giving
chase.
7.4
Subsequent to the chase around town there
ensued a shoot-out between the police and some of the occupants of
the Ford Ranger Motor
Vehicle.
7.5
In the aftermath of the shootout two of the
occupants of the motor vehicle lay dead. These are the" victims"
in the two
murder charges for which the appellant and his co-accused
were convicted.
7.6
Sergeant Marokane could not see whether the
appellant was ever in possession of a firearm or not.
7.7
In facie curiae Sergeant Makola testified
that the appellant was in possession of a firearm but failed to
explain why such a crucial
part of his evidence was not mentioned in
his written affidavit.
7.8
Warrant Officer Kutumi Kgare testified that
the appellant was amongst those on whom gunpowder residue tests
returned a negative
result.
7.9
For his part the appellant gave a version
that he did not know all the other four occupants of the motor
vehicle as he had hitched
a lift in the motor vehicle. He testified
that upon successfully hitching a lift at an Engen Petrol Station in
the Mokopane town
on his way back to Gauteng after visiting his
girlfriend overnight, he was informed by the driver of the motor
vehicle, to wit,
the first accused that the car was first going into
the neighboring township of Mahwelereng to drop off some of the
passengers.
It was while they were supposed to still go via the
township that the shoot-out had occurred to his shock and amazement.
He had
during the shootout gotten out of the motor vehicle laid
himself on the ground and been arrested.
7.10
The appellant's hitchhiker version was
corroborated by his two co-accused who both testified that he was
completely unknown to them
as he had moments before the chase and
altercation with the police been picked up while hitch hiking.
[8]
From the full conspectus of the evidence
led before the court a
quo
it
further becomes clear that the robbery charge on which the appellant
was acquitted related to an earlier event in January 2017
where the
Ford Ranger motor vehicle in casu was ostensibly robbed off its
owners or lawful possessors at gunpoint. The conspiracy
to commit
robbery charge related to the alleged plan to rob a cash in transit
vehicle on 1
st
April 2017.The attempted murder charges related to the gunshots aimed
at the three police officers who were involved in the shootout
with
some of the occupants of the motor vehicle while the Firearms Control
Act related offences flew from the firearms recovered
by the police
at the shootout scene.
THE GROUNDS OF
APPEAL
[9]
The notice of appeal is no model of how to
articulate grounds of appeal at all. It is so generalized,
unsubstantiated, threadbare
and meagre as to what is to be faulted in
the judgement of the court a quo that absolutely nothing helpful can
be gained from it.
It is to the heads of argument of the appellant
and oral submissions eloquently made before us by Mr Legodi on behalf
of the appellant
that reliance was made to enumerate the grounds of
appeal as being the following:
9.1
There was no evidence led to lead the trial
court to a conclusion that the appellant was part of a conspiracy to
commit robbery
of the cash in transit at Boxer Mokopane.
9.2
The fact of the intelligence information on
the intended robbery being hearsay was most unhelpful to the cause
that the trial court
has not committed a misdirection in convicting
the appellant of conspiracy to commit the said robbery.
9.3
Having found that the appellant was never
in possession of the firearms nor the ammunition, it was not
available for the trial court
to in the same vein convict the
appellant of having utilized the same firearms in commission of the
attempted murder and murder
charges.
9.4
The trial court misapplied the common
purpose doctrine in this matter.
9.5. The trial court
misdirected itself in admitting the confession of the third accused
against the appellant, who was accused
number two in that trial.
9.6 Generally, the court
has misdirected itself in finding, on the facts before it, that the
respondent had discharged it onus of
proof of the commission of the
offence beyond reasonable doubt.
[10]
Owing to the conclusion reached infra as to
conviction, it becomes unnecessary, in my view, to go into the
grounds of appeal against
sentence. Suffice to at least remark that
if the guilt of the appellant was proven the sentence would not, in
this court's view,
have been sharp enough for the offences allegedly
committed
in casu.
THE TEST, THE
APPLICABLE LAW AND ANALYSIS
[11]
Section 322 of the Criminal Procedure Act
provides, inter alia, as follows regarding appeals of the type this
court is seized with:
"322(1)
In the case of an appeal against conviction or of any question
of law
reserved, the court of appeal may-
(a)
Allow the appeal if it thinks that
the judgement of the trial court should be set aside on the ground of
a wrong decision of any
question of law or that on any ground there
was a failure of justice;
...
[12]
The question is thus whether on any of the
grounds listed above the court a quo misdirected itself resulting in
failure of justice.
[13]
In making its finding on the presence of
conspiracy to commit robbery the trial court correctly identified,
with reference to such
relevant authority as
S
v Cooper and Others 1976(2) SA
875(T)
that conspiracy normally
involves three stages, to wit, the making of an agreement,
implementation and termination and further that
once a conspiratorial
agreement has been·made the offence of conspiracy has been
completed.
[14]
However, going through the judgement a view
that the only basis upon which the trial court concluded that the
appellant was part
of the conspiracy was his mere presence in the
Ford Ranger is inescapable. Nowhere does the trial court go on to
prove how any
of the three stages of a conspiracy are engaged, at
least, regarding the appellant. The reasoning appears to simply that
because
the trial court rejected his hitchhiker version his mere
presence in the motor vehicle proves his being part of a conspiracy.
That
reasoning does not sit well with this court.
[15]
Assuming that there is in casu acceptable
evidence to prove that there was a plan by other occupants of the
Ford Ranger to commit
robbery on the day of the incident which
assumption itself is shrouded in a lot of doubt because its basis is
purely hearsay from
probable police informers, there is simply no
evidence that the appellant was part of such a plan.
[16]
The information not really evidence that
the occupants of the Ford Ranger intended to rob a cash in transit
van on the day plays,
as hearsay, a decisive role in convicting the
appellant of conspiracy to commit robbery. The Supreme Court of
Appeal or Appellate
Division as it then was known in
S
v Ramavhale 1996(1) SACR 639 (A)
at 649 C-D
cautioned against the
admission of hearsay evidence in criminal proceedings where such
evidence plays a decisive role in convicting
an accused person. Not
even subsequent events such as the discovery of assault rifles and
large quantities of ammunition as part
of what was possessed in the
motor vehicle prove conclusively that the plan was to rob a cash in
transit van at Boxer store in
Mokopane on that day let alone, for
purposes of this appeal, that the appellant was party to that plan.
Certainly, mere presence
in that motor vehicle, is not in itself,
that is, absent any other evidence proof of the appellant's
involvement in the "conspiracy".
[17]
From all the above considerations, I am
persuaded that the conviction of the appellant for the offence of
conspiracy to commit robbery
is indefensible and must be interfered
with.
[18]
The trial court found there to be no
evidence to sustain the charges of unlawful possession of firearms
and ammunition against the
appellant. It still however found the
appellant guilty of attempted murder as regards shooting at the
police ostensibly with a
firearm or firearms.
[19]
It is these contradictory findings which
are lamented supra as oscillating between thesis and anti-thesis for
it is incongruent
how one who is found not to have been in possession
of a firearm could in the same vein be found to have used that
firearm to commit
an offence. Not even the common purpose doctrine
allegedly relied upon by the trial court can assist anyone in
breathing harmony
to these two mutually destructive findings by the
trial court because whether the accused persons acted in concert or
not cannot
explain how the appellant would have used a firearm while
being in neither physical nor constructive possession thereof.
[20]
For the above reason alone the conviction
of the appellant for the three attempted murder charges is, in my
view, a wrong decision
susceptible to interference with on appeal.
[21]
Regarding the murder convictions and all
the other offences for which the appellant was convicted a key thread
appears to be the
trial court's application of the common purpose
doctrine deductible from, inter alia, the following quotes from the
judgement:
21.1
"It is improbable that, accused 2
and for that matter, accused 1 and 3, would have been taken along by
the two deceased if
they were not party to a commission of a
particular crime. I indicated earlier the suspects had the means to
carry out the planned
robbery, and in addition a bag to carry the
cash with, which hardly had any contents. At the scene of the
shootout, all of them
as indicated above, jumped from
a
moving vehicle, which can only point to
guilt ..."
21.2
"
In
addition, when the police were shot at by means of a rifle from the
Ford Ranger by one of the conspirators, it was in furtherance
of the
purported agreement and the fact that some of the conspirators jumped
out of the Ford Ranger whilst armed to confront the
police, of which
the accused was aware and did not disassociate themselves therefrom
...In this instance, all these factors taken
cumulatively regarding
this matter, I hold that, on the cardinal rules of logic that are
referred to in Blom above, the state
has
shown beyond reasonable doubt that there
was
a
concluded agreement between them, an actual concurrence of minds
inferable from their conduct."
[22]
It may be appropriate to once more refer
verbatim to the now trite principles attendant to the common purpose
doctrine as stated
by Botha JA in
S v
Mgedezi and Others 1989(1) SA 687(A) at 7051-706 B("Mgedezi")
which were stated as follows:
"In
the absence
of proof of a prior agreement, accused no 6, who
was
not shown
to have contributed causally to the killing or wounding of the
occupants of room 12, can be held liable for those events,
on the
basis
of the decision in
S
v Sefatsa and Others 1988(1)
SA 868(A), only if certain prerequisites are satisfied. In the first
place, he must have been present
at the scene where the violence was
being commited. Secondly, he must have been aware of the assault on
the inmates of room 12.
Thirdly, he must have intended to make common
cause with those who were actually perpetrating the assault.
Fourthly, he must have
manifested his sharing his sharing of a common
purpose with the perpetrators of the assault by himself performing an
act of association
with the conduct of the others. Fifthly, he must
have had the requisite mens rea in respect of the killing of the
deceased, he
must have intended them to be killed or foreseen the
possibility of being killed ...In order to secure a conviction
against accused
on all the counts on which he
was
charged, the
state had to prove all of these prerequisites beyond reasonable
doubt. It failed
so
to prove a single one of them. It follows
that the appeal of accused No 6 must succeed in respect of all
5
counts."
[23]
From the trial court's reasoning it appears
that it read prior consent inclusive of the appellant from his mere
presence in the
Ford Ranger. That was incorrect because prior consent
needed to be proven and not merely inferred as the law used to be in
S v Sefatsa and Others 1988(1) SA
868(A)
prior to
Mgedezi.
[24]
Furthermore the trial court appears to have
interpreted the appellant's getting out of the motor vehicle during
the shootout as
an act of association with the offences for which he
was convicted, particularly the attempted murder and murder charges.
That
is incredulous regard being had to the fact that the Ford Ranger
was facing heavy gunfire from the police and somehow the court's
reasoning suggests that it was available to the appellant to either
stay put in the motor vehicle or perhaps run towards the firing
police.
[25]
With the state witnesses having
contradicted each other sharply on whether the appellant was in
physical possession of a firearm
or not and the court having found
that the appellant was not proven to have possessed a firearm, it is
self-evident that the evidence
does not prove any act of active
association with the shootout with police as regards the appellant.
That said, apart from mere
presence at the scene of the shootout and
awareness thereof, the other three
Mgedezi
prerequisites of the employ of the
common purpose doctrine have not been proven against the appellant.
It follows thus that the
common purpose doctrine, as it relates to
the appellant, was misapplied by the trial court.
[26]
In its judgement the trial court stated,
inter alia, the following:
26.1
"Regarding Exhibit J1, the
confession made by accused number 3, he(the appellant) could not
explain why reference was made
to him and the role he allegedly
played."
26.2
"The criminal enterprise that
was
the subject of conspiracy contemplated
the commission of the offence of robbery because of accused
3's
statement and the information received
by the police."
[27]
It is trite that a confession of an accused
person is not admissible against co accused. Nothing further
than merely referencing
section 219 of the Criminal Procedure Act 51
of 1977 as amended is needed on this score. It unequivocally states
as follows:
"
No
confession made by any person shall be
admissible as evidence against another person."
[28]
The above quotes from the trial court's
reasoning clearly shows that that court admitted the confession of
the third accused against
the appellant who was the second accused.
That was a grave misdirection which also militates for this court of
appeal to intervene.
CONCLUSION
[29]
It is so that in criminal proceedings the
state remains with the duty to proof the guilt of an accused person
beyond reasonable
doubt and further true that while an accused has no
duty to prove his innocence he may at times, on a preponderance of
probabilities,
just posit a reasonably possibly true version to
escape criminal liability. His version may even appear untrue but its
weaknesses,
no matter how manifest, do not lighten the state's burden
to prove an accused person's guilt beyond reasonable doubt
whatsoever.
[30]
If the burden of proof in criminal
proceedings was on a balance of probabilities then the
improbabilities highlighted by the state
against the appellant's
hitchhiker version in their cross-examination of the appellant such
as the curiosity of occupying a front
passenger seat when hitching a
lift in a motor vehicle already occupied by other passengers and the
unlikelihood of not seeing
assault rifles in a motor vehicle would
have helped in convicting the appellant. But the burden of proof is
not on a balance of
probabilities. Probabilities in a criminal trial
only help to bolster an already available case against an accused
person premised
on evidence other than the probabilities. They cannot
on their own, given the standard of proof being beyond reasonable
doubt,
sustain a conviction.
[31]
It may well be that the evidence led before
the trial court as summarized above raises a suspicion against the
appellant and maybe
a strong suspicion. It may also be that as a
trier of fact I may have a strong belief or intuition that the
appellant was not an
innocent hitchhiker on the fateful day. But what
anyone, including a court, believes, suspects or intuitively "knows"
is immaterial in the determination of guilt or innocence in the
criminal court. What matters and needs following is the evidence.
Indeed, based on evidence at a trier of facts' disposal, the old
criminal law mantra of it being better or preferable to acquit
a
"guilty" person than convicting an "innocent"
person continues to hold true and enforceable.
[32]
Regard being had to all the foregoing I am
persuaded that the trial court's decisions on the questions of fact
and law identified
supra were decisions which were wrong and led to a
failure of justice as per
section 322
of the
Criminal Procedure Act
51 of 1977
such that the appeal must be allowed.
ORDER
[33]
In the result, the following order is made:
33.1 The appellant's
appeal against conviction on all counts for which the appellant was
convicted succeeds.
33.1 The court a quo's
guilty verdicts as regards the appellant are replaced with the
following order:
"The
appellant is found not guilty in respect of counts 2, 3,4,5,6 and
7.
He is accordingly discharged."
MALOSE S MONENE
ACTING JUDGE OF THE
HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE
TC TSHIDADA
JUDGE OF THE HIGH
COURT
LIMPOPO DIVISION,
POLOKWANE
MOGALE-MAKINTA
ACTING JUDGE OF THE
HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES
Heard
on
:
31 May 2024
Judgment
delivered on
:
19 September 2024
For
the Appellant
:
Adv. M P Legodi
:
Instructed by Legal Aid South Africa,
Polokwane
:
Tel:
-
015
291 2429
:
Email:
For
the Respondent
:
Adv A.V Mudau
:
Instructed by OPP Polokwane
:
Tel: 010 055 7230
:
Email: AMudau@npa.gov.za