IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
Not reportable
CASE NO. CA&R 148/2024
In the matter between:
THAMSANQA CETYIWE Appellant
and
THE STATE Respondent
___________________________________________________________________
JUDGMENT
___________________________________________________________________
LAING J
[1] This is an appeal against the conviction of the appellant on 12 July 2024 in the
Regional Court, sitting in East London, for various offences. The following charges were
brought against him: house -breaking with the intent to steal (count 1); theft (count 2 );
tampering with, damaging, or destroying essential infrastructure (count 3), alternatively
colluding with or assisting another person to tamper with, damage, or destroy essential
infrastructure; and contravening the provisions of section 82 of the Genera l Law Third
Amendment Act 129 of 1993 (count 4).1 The appellant pleaded not guilty but tendered no
1 Section 82 provides that ‘[a]ny person who possesses any implement or object in respect of which there
is a reasonable suspicion that it was used or is intended to be used to commit housebreaking … and who
is unable to give a satisfactory account of such p ossession, shall be guilty of an offence …’
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plea explanation. Pursuant to his conviction on all the charges, the appellant petitioned
the High Court and was granted leave to appeal.
Background
[2] The state presented the statement of Mr Marius Botha, employed by On-Time
Telecoms. He a lleged that he had been contacted on 6 February 2023 by a security
company regarding the theft of a lithium battery from a Telkom cellular telecommunication
tower . It had subsequently been recovered, and Mr Botha identified it as having come
from the tower located at Cove Ridge Estate , outside East London . He explained that
Telkom relied on batteries as a form of back -up power supply to ensure the provision of
uninterrupted communication services to the public . The towers w ere regarded as critical
infrastructure. The theft of batteries resulted in the disruption of such services, which had
a negative impact on the daily operations, economic activities, and wellb eing of the public .
Mr Botha ’s statement was admitted as evidence.
[3] Subsequently, the state called a private security officer, Mr Manele Tobela. He
testified that his team had been on patrol on 6 February 2023 when night -shift colleagues
informed him that there had been a break -in at the Cove Ridge Estate tower ; there was
no indication , however, that anything had been stolen . The team proceeded to the tower
later that day where they encountered a VW Polo parked approximately 100 metres away.
The vehicle sped off, causing the team to give chase . It came to a halt at the entrance to
the East London airport . The driver (being the appellant in the present matter) fled. The
security officers apprehended him and instructed him to open the boot to the VW Polo, in
which they found , inter alia , the lithium battery, an angle -grinder, an extension lead, a ten -
pound hammer, a shifting -spanner, and a military camouflage jacket . The appellant
explained that he had run away because he had loaded the battery into the boot . He had
been hired as a driver by a group of Zimbabwean nationals , who were hiding at that stage
in the bushes adjacent to the tower. They spoke to Mr Tobela on the appellant ’s cellphone
and requested his release in exchange for payment. Mr Tobela refused. The police arrived
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later, and Mr Tobela accompanied them to the tower where they found that an angle -
grinder had been used to gain access; one of the four batteries was missing.
[4] The state called another private security officer, Mr Athenkosi Ngamlana. He
corro borated Mr Tobela ’s testimony, but added that the appellant had said that he was
simply hired to drive the VW Polo ; he knew nothing about what was found inside the
vehicle .
[5] The appellant testified in his own defence and stated that he was a registered taxi
operator . On the day in question, three men from his village came to his house and asked
him to drive the m to Qonce, where they would meet with a sangoma . He agreed. Along
the way, he stopped to allow th em to visit a shack situated close to the East London
airport. The appellant left them there to buy himsel f some food. Upon his return, t he men
requested him to open the boot of the VW Polo so that they could load a battery that had
been lying in the grass. The men suddenly ran off . Bewild ered, the appellant left the
scene. Another motor vehicle followed him, flashing its headlights ; this caus ed the
appellant to become afraid . He drove as far as the airport , where he stopped . He
attempted to run away but was apprehended by security officer s. They instructed him to
open the boot ; the battery was inside . At that stage, t he men who had hired him had
managed to contact him to ask his whereabouts. He explained the situation and hand ed
the cellphone to one of the security officers to continue the conversation. The appellant
was subsequently taken into custody.
Findings of the court a quo , and grounds of appeal
[6] The court a quo rejected the appellant ’s version of events. It held , based on the
evidence, that it was not reasonably possibly true that the appellant was lured into a crime
without his knowledge . It found him guilty as charged and sentenced him, effectively, to
15 years ’ imprisonment.
4
[7] The grounds of the appellant ’s appeal were, inter alia , that the court a quo erred in
not finding that the main offence was committed on the night before, i.e. 5 February 2023 ,
as reported by Mr Tobela ’s night -shift colleagues . There was no evidence that the
appellant had committed any offence. It was a further ground of appeal that the court a
quo erred in not accepting that the appellant ’s version was reasonably possibly true.
Legal framework
[8] The relevant principles in matters of this nature are trite . As a starting point, the
correct approach regarding an appeal against findings of fact was set out i n the oft -quoted
case of R v Dhlumayo and Another ,2 where the erstwhile Appellate Division , per Davis
AJA, held that :
‘…the trial Judge has advantages — which the appellate court cannot have — in seeing
and hearing the witnesses and in being steeped in the atmosphere of the trial. Not only
has he had the opportunity of observing their demeanour, but also their appearance and
whole personality. This should never be overlooked.
…Consequently the appellate court is very reluctant to upset the findings of the trial Judge.
…Where there has been no misdirection on fact by the trial Judge, the presumption is that
his conclusion is correct ; the appellate court will only reverse it where it is convinced that
it is wrong.
…In such a case, if the appellate court is merely left in doubt as to the correctness of the
conclusion , then it will uphold it. ’3
[9] The above approach has been followed consistently by our courts. The Supreme
Court of Appeal emphasize d, in S v Hadebe and Others ,4 that in the absence of
2 1948 (2) SA 677 (A).
3 At 705–6.
4 1997 (2) SACR 641.
5
demonstrable and material misdirection by the trial court, its findings of fact are presumed
to be correct . These will only be disregarded if the recorded evidence shows them to be
clearly wrong.5 The principle was reiterated by the Supreme Court of Appeal, too, in S v
Monyane and Others .6 A court ’s powers to interfere on appeal with findings of fact are
limited.7
[10] In the present matter, the appellant contends that the court a quo ’s findings of fact
led to inferences that were incorrect. He relies on the decision in R v Blom ,8 where
Watermeyer JA set out the ‘two cardinal rules of logic ’ that cannot be ignored in relation
to inferential reasoning:
‘(1) The inference sought to be drawn must be consistent with all the proved facts. If it
is not, the inference cannot be drawn.
(2) The proved facts should be such that they exclude every reasonable inference
from them save the one sought to be drawn. If they do not exclude other
reasonable inferences, then there must be a doubt whether the inference sought
to be drawn is correct. ’9
[11] Academic writers have criticized the test contained in Blom , arguing in favour of a
more realistic approach that adopts ‘cable ’ as opposed to ‘chain ’, reasoning.10 In other
words, the more facts relied upon, the less likely that each or any primary fact is important
enough to be decisive of an issue by itself. Guilt may be proved beyond a reasonable
doubt even though a primary fact is shown merely to be probable.11
5 At 645e.
6 2008 (1) SACR 543.
7 At paragraph [15].
8 1939 AD 188.
9 At 202–3.
10 The metaphor is derived from the Australian decision in Shepherd v R (1990) 170 CLR 573. The High
Court distinguished between a situation where intermediate facts were ‘indispensable links in a chain of
reasoning toward an inference of guilt ’, requiring proof beyond reasonable doubt, and a situation where
the facts could more accurately be described as ‘strands in a cable rather than links in a chain ’, not
requiring the same standard of proof (at 579).
11 See the discussion in Du Toit ( et al), Du Toit: Commentary on the Criminal Procedure Act (Jutastat e -
publications, RS 59, 2017), at ch22 –pp 31–2.
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[12] Despite such criticism, the test remains the starting point for assessing the
correctness of inferential reasoning based on proved facts. The Supreme Court of Appeal
has not, in any way, discarded the test. In S v Gcaza ,12 the court endorsed the erstwhile
Appellate Division ’s reliance on Blom in the matter of S v Reddy and others ,13 and went
on to hold as follows:
‘The sentiments expressed by this court in S v Ntsele 1998 (2) SACR 178 (SCA) are
relevant, where it held that the onus rests upon the State in a criminal case to prove the
guilt of the accused beyond reasonable doubt — not beyond all shadow of doubt. The court
held further that when dealing with circumstantial evidence, as in the present matter, the
court was not required to consider every fragment of evidence individually. It was the
cumulative impression, which all the pieces of evidence made collectively, that had to be
considered to determine whether the accused ’s guilt had been established b eyond a
reasonable doubt. Courts are warned to guard against the tendency to focus too intensely
on separate and individual components of evidence and viewing each component in
isolation . In the light of the evidence presented to the trial court, I am sati sfied that on the
conspectus of the evidence , the inference was correctly drawn that the appellant was
guilty of the crimes with which he was charged. ’14
[13] The above principles form the basic framework within which the present matter
must be decided. This will be done in the paragraphs below.
Discussion
[14] It was common cause that the appellant had been hired by Zimbabwean nationals
to be the driver of a VW Polo . It was common cause , too, that the security offi cers who
testified had followed him ; that the appellant had stopped his vehicle at the entrance to
the East London airport and attempted to run away ; and that the officers had found a
12 2017 JDR 0995 (SCA).
13 1996 (2) SACR 1 (A), at 8C –D.
14 Gcaza , at paragraph [25].
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battery and other items inside the boot. It was also common cause that the battery had
been removed from the Cove Ridge Estate tower . The immediate question is whether the
court a quo was correct in drawing an inference of guilt in relation to the charges brought
against the appellant.
[15] The appellant ’s reaction to the arrival of the security officers and their pursuit of
him is, possibly, the most damning aspect of the case. In that regard, he testified as
follows :
‘Whilst waiting for them in order for them to get into the vehicle they ran pas t the vehicle .
I was shocked, because I did not know why they were running and I then drove off and I
took the route that is coming to town. While I was still driving I saw a vehicle that flicked
[its] lights behind me . I drove and then I stopped the vehicle at the air port and I took the
key out of the ignition and I was afraid because those people ran away. I was scared.
When I went out of the vehicle I tried to run . The reason therefor was that I was scared
because I did not know why this other vehicle was following m e. While I was running one
security officer went out of the vehicle and chased after me. I then stopped and I told him
that there was nothing that I was going to do so he must not be aggressive. ’15
[16] The appellant di d not say why he had not followed t he other suspects to find out
what was going on or why he had not simply waited in the VW Polo for their return. He
also failed to explain why he had not confronted the security officers to establish why they
had pursued him . If he had nothing to hide, then why did he do his utmost to escape?
[17] The follo wing exchange took place during cross -examination :
‘PROSECUTOR : So why did you run away?
ACCUSED: I was not running away. I just drove off simply because I was going
home, be cause those people that I went there with had just run over
me so I thought that I must just go home .
15 Sic.
8
COURT: My understanding was … was the question not aimed at why did
you run away after you had been stopped?
PROSECUTOR: That is correct, Your Worship.
COURT: So sir, we now know that you drove off, away from the tower, and
near the airport you stopped, the vehicle came to a standstill, and
the evidence is that then you got out and ran for a short distance
before you were apprehended. So why did you run a fter the vehicle
came to a standstill?
ACCUSED: It is because I was startled at the time when I went to stop at the
airport.
COURT: Because?
ACCUSED: I was startled …’16
[18] The appellant ’s explanation was entirely unconvincing. It raised more questions
than answers. How he responded to the intervention of the security officers during the
events on the day in question was the key weakness in his defence.
[19] One of the grounds of the appellant ’s appeal is that the court erred in not accepting
that his version was reasonably possibly true. The relevant principle was discussed in S
v Van der Meyden ,17 where Nugent J (as he was then) observed that:
‘The onus of proof in a criminal case is discharged by the State if the evidence establishes
the guilt of the accused beyond reasonable doubt. The corollary is that he is entitled to be
acquitted if it is reasonably possible that he might be innocent (see, for example, R v
Difford 1937 AD 370 at 373 and 383) . These are not separate and independent tests, but
the e xpression of the same test when viewed from opposite perspectives. In order to
convict, the evidence must establish the guilt of the accused beyond reasonable doubt,
which will be so only if there is at the same time no reasonable possibility that an innoc ent
16 Sic.
17 1999 (1) SACR 447 (W).
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explanation which has been put forward might be true. The two are inseparable, each
being the logical corollary of the other.
In whichever form the test is expressed , it must be satisfied upon a consideration of all the
evidence. A court does not look at the evidence implicating the accused in isolation in
order to determine whether there is proof beyond reasonable doubt, and so too does it not
look at the exculpatory evidence in isolation in order to determine whether it is reasonably
possible that it might be true. ’18
[20] If the appellant not been involved in any of the offences, then there was no reason
for him to have deserted his passengers, taken the VW Polo (which belonged to them, on
his version), abandoned the vehicle when a puncture brought it to a halt at the entrance
to the airport, and attempted to flee from the officers. It cannot be said that his version
was reasonably possibly true. To the contrary, the court a quo was correct in having drawn
the inference, based on the proved facts, that the appellant had been implicat ed in one
or more of the offences . Whether it erred in finding the appellant guilty on all the charges
must be explored further.
Correctness of convictions
[21] Regarding count 1 , Mr Tobela a dmitt ed under cross -examination that he did not
know who had broken into the tower on the night before . Mr Ngamlana could take the
matter no further. It was indeed possible that the other suspect s had been involved in the
break -in, but had been unable to complete the theft, causing them to return on the
following day. It was also possible that a different third party altogether had been involved .
Quite simply, t here was no evidence to have linked the appellant to the break -in. Based
on the proved facts, such as there were, the cumulative impression is that the implication
of the appellant in the offence was not the only inference that could have been drawn.
18 At 448F –H.
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[22] The determination of count 2 is subject to the application of the principles
previously discussed . For the reasons mentioned already , the appellant ’s version of how
he came to be found in possession of the battery could not have been reasonably possibly
true. Importantly, he admitted that he had seen the battery lying in the grass and loaded
into the VW Polo. His reaction to the sudden departure of the other suspect s, as well as
his reaction to the arrival of and pursuit by the security officers , ultimately betrayed him .
It was utterly implausible that the appellant had merely shrug ged his shoulders, so to
speak , before decid ing to set off for home in a vehicle that did not belong to him, carrying
an item that did not belong to him , when the others fled the scene. It was also utterly
implausible that he had been so startled by the officers that he chose to speed away,
eventually abandoning the VW Polo outside the airport before attempting to escape on
foot. In the absence of any evidence that the officers inten ded to cause him harm , it made
no sense why the appellant did not confron t them to ask why they were so eager to
apprehend him. The only reasonable inference to have been drawn from his conduct was
that he was directly involved in the removal of the battery from the tower and that he had
the necessary intention at the time for the court a quo to have convicted him of theft.
[23] In relation to count 3, the elements of the offence require closer examination. From
the preamble to the Criminal Matters Amendment Act 18 of 2015, it is apparent that the
legislation was enacted , inter alia , to create a new offence relating to essential
infrastructure. The provisions of section 3 stipulate as follows :
‘3. Offence relating to essential infrastructure
(1) Any person who unlawfully and intentionally —
(a) tampers with, damages or destroys essential infrastructure; or
(b) colludes with or assists another person in the commission, performance or
carrying out of an activity referred to in paragraph (a),
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and who knows or ought reasonably to have known or suspected that it is
essentia l infrastructure, is guilty of an offence and liable on conviction to a
period of imprisonment not exceeding 30 years or, in the case of a corporate
body as contemplated in section 332(2) of the Criminal Procedure Act, 1977, a
fine not exceeding R 100 mill ion.
(2) For the purposes of subsection (1), a person ought reasonably to have known
or suspected a fact if the conclusions that he or she ought to have reached are
those which would have been reached by a reasonably diligent and vigilant
person having both —
(a) the general knowledge , skill, training and experience that may reasonably
be expected of a person in his or her position; and
(b) the general knowledge, skill, training and experience that he or she in fact
has.’
[24] The provision of communication service s via a cellular telecommunications tower ,
such as in the present matter , appear s to fall within the definitions of ‘basic service ’ and
‘essential infrastructure ’, as set out in section 1. To ‘tamper ’ includes to ‘alter, cut, disturb ,
interfere with, interrupt, manipulate, obstruct, remove or uproot by any means, method or
device ’. There was no dispute in the court a quo that the charge was contained within
section 3(1), read with the definitions . The difficulty on appeal, however, is that there is
no evidence to indicate that the appellant knew or ought reasonably to have known or
suspected that the tower constituted essential infrastructure. No attempt was made during
the trial to satisfy the test set out in section 3(2). The appellant ’s general knowl edge, skill,
training, and experience were simply never established. Consequently, it cannot be said
that he was guilty of the offence in question.
[25] Turning to count 4 , the appellant testified that the first time that he saw the items
in the boot of the VW Polo was when he was apprehended by the security officers. He
had no prior knowledge thereof. In that regard, there was no evidence that he was the
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owner of the vehicle ; it belonged either to his brother or to one of the other suspect s. The
appellant expla ined that his role was to drive the VW Polo because none of the other s
had a driving licence. It was , in the circumstances, reasonably possible that he had been
involved in the theft of the battery merely as the driver of the getaway vehicl e. It was also
reasonably possible that he had no knowledge of the items in the boot; it was not his
vehicle . Consequently, it cannot be said that he was unable to give a satisfactory account
of the items in question.19
Conclusion
[26] I am of the view that the court a quo was correct in finding that the appellant was
implicated in one of more of the offences. For the reasons set out above, however, I am
of the view that it was wrong in finding : (a) that he was involved in the break -in on the
night before ; (b) that he had the necessary general knowledge, skill, training and
experience to have known or that he ought reasonably to have known that the tower
constituted essential infrastructure; and (c) that he was unable to give a satisfactory
account of the various items found in the VW Polo. The recorded evidence demonstrates
that the court a quo misdirected itself in that regard, warranting interference on appeal.
[27] In the end, I am persuaded that the appellant ought to have been convicted only
on count 2 for the offence of theft , regarding which he was sentenced to seven years ’
imprisonment . He was not granted leave to appeal against sentence. In the
circumstances, I would order that :
(a) the appeal is upheld in relation to counts 1, 3, and 4 , and the convictions and
sentences in that regard are set aside ; and
(b) the appeal is dismissed in relation to count 2.
19 See section 82 of the General Law Third Amendment Act 129 of 1993 (n 1, above).
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______________________________
JGA LAING
JUDGE OF THE HIGH COURT
I agree.
______________________________
JM ROBERSON
JUDGE OF THE HIGH COURT
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APPEARANCES
For the appellant: Mr Geldenhuys
Instructed by: Legal Aid South Africa
69 High Street
MAKHANDA
6139
Tel: 046 622 9350
For the respondent: Adv Van der Merwe
Instructed by: Director of Public Prosecutions (OCC)
17 Fleet Street
EAST LONDON
Tel: 04 3 702 4143
Date heard: 29 January 2025.
Date delivered: 25 March 2025.