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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
(1)
(2)
(3) REPORTABLE : YES/NO
OF INTEREST TO THE JUDGES: YES/NO
REVISED: YES/NO
In the matter of
DIRECTOR OF PUBLIC PROSECUTIONS LIMPOPO
versus CASE NO: 47/2021
APPLICANT
DOCTOR HEBERT MBUYANE RESPONDENT
HEARD 21 January 2025
DELIVERED ]:_ May 2025
CORAM KL PILLAY AJ
This judgment was handed down electronically by circulation to the parties and/or parties'
representatives by email. The date for hand-down is deemed to be on.±__ May 2025 at
10h00AM.
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JUDGMENT
PILLAY AJ:
Introduction:
[1] The application before this court was sought by the state in terms of Section 319(1) of
the Criminal Procedure Act 51 of 1977, wherein this court was requested to reserve
three questions of law;
[1.1] Whether the court may acquit the accused incriminated by his DNA found at
the scene on the basis that his version was reasonably possibly true in
circumstances where he had no explanation on how his DNA reach the said
crime scene?
[1.2] Whether the court considered the respondent's DNA evidence found on the
crime scene before acquitting him?
[1.3] Whether the Honourable court may acquit the accused who is unable to explain
how his DNA was found on the crime scene, without first enquiring into whether
the said DNA was conclusive in placing the respondent on the scene or not?
[2] The applicant respectfully submitted that any of these questions of law if upheld on
appeal would have different legal consequences , than the one resulted from this trial.
[3] The application was opposed by the respondent on the following grounds ;
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[3.1) The applicant failed to set out in the condo nation application the reasons for
the delay in pursuing the application in terms section 319(1) of the Criminal
Procedure Act 51 of 1977.
[3.2) That there were no prospects of success as the questions raised were factually
based and therefore the application must be dismissed.
[3.3) That the state was misguided in its assumption that the respondent did not give
a version when he testified in his defence.
[3.4) That because the respondent was linked by DNA evidence to the scene of the
crime, the burden shifted to the respondent to explain how his blood was found
on a Tekkie that was on the scene.
[3.5] That because the court dismissed the respondent's application for discharge in
terms of Section 174 of the Criminal Procedure Act, therefore the only result
which would have to follow was a conviction .
[3.6) That the applicant continuously referred to the prima facie evidence which
called for the respondent to answer could not be elevated to mean the case
was proved beyond reasonable doubt, and there was no reverse onus on the
respondent to prove his innocence, which was not in line with the criminal
jurisprudence of this Country.
[3. 7) That since the case was premised on circumstantial evidence this court in its
inferential reasoning combined the circumstantial evidence with the number of
pieces of evidence by the state, evidence of experts, contradictions between
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the evidence of the state witnesses on the issue of the shooting, and the court
correctly applied the relevant law dealing with the circumstantial evidence.
[3.8] That the DNA evidence was circumstantial evidence and was not direct
evidence that a crime had been committed, the state did not provide any other
evidence outside of the DNA against the respondent.
[4] The respondent indicated that the state has raised points of fact not law and what had
been raised by the state in its grounds of appeal would not change the colour of the
proceedings or were not essential ingredients to the conviction of the respondent ,
therefore there was no prospect of success on appeal by the applicant. It was for that
reason the application was to be dismissed.
Brief Background:
[5] On 25 April 2018 the Fidelity Cash Solutions security officers, who were collecting
cash at ABSA bank in Burgersfort, was robbed by approximately 5 heavily armed
perpetrators. The SBV security officers, observed the incident and engaged the
perpetrators resulting in a shoot-out.
[6] The perpetrators travelling in a WJ Amarok double-cab motor vehicle left the scene
chased by the SBV security officers, resulting in the WJ Amarok motor vehicle
colliding with a WJ Polo, capsizing off the road and landing on the side of the road
striking the electric transformer near the St Thomas College.
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[7] The perpetrators fled from the Amarok vehicle on foot and Mr Ngalo, one of the
perpetrators , was shot by the SBV employee and succumbed to his injuries and died
on the scene. The scene was contained , the recovered money returned to ABSA by
the Fidelity officials.
[8] The applicant relied on the DNA evidence connecting the respondent , in the form of
blood, found on the Nike shoe, the epithelial cells on the white cap and blood found
on an item of clothing collected in a bucket, placed outside the school entrance. In
respect of how the incident unfolded the applicant relied on the evidence of Elias
Mbumbe, an employee of the SBV, who was on duty as a driver with his 3 colleagues .
His evidence briefly was that they were at the Total Burgersfort when he heard the
gunshots and saw the Fidelity vehicle. His colleague looked to see what was
happening and the perpetrator started shooting at his colleague, who returned fire.
[9] Mr Mbombi moved the vehicle to give his colleague some cover and started shooting
at the assailants. The assailants fled in an Amarok motor vehicle, and he gave chase
with his colleague , during which time a shootout ensued between them and the
Amarok. The Amarok, trying to overtake, collided with the Wv Polo, lost control,
capsized and landed on the side of the road, striking the electric transformer .
[10] During this process, the money bag fell out of the vehicle on the ground. Mr Mbumbe
was driving at a high speed, passed the Amarok and had to reverse. He was still
observing them, from a distance of 10 metres, when he saw 2 men exit the vehicle,
still shooting and ran across the road towards the mountain.
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[11] The second two pointed the guard of the school and was allowed access into the
school. They continued shooting at him and he was also returning fire, but then
stopped, as it was break and there were children all over. The last occupant exited
the vehicle running towards the school gate and was shooting at them. They returned
fire and this person was shot and killed outside the school.
[12] He indicated that one of the perpetrators who ran towards the mountain was missing
a sneaker, however, that he did not see what type of shoes the perpetrator was
wearing as they were shooting at him. A grey Nike shoe, having a blood stain was
located under the Amarok. It is not disputed that the DNA found on this Nike shoe
belong to the respondent. The applicant was relying upon this evidence in support of
the application in terms of Section 319 of the Criminal Procedure Act 51 of 1977.
[13] The respondent testified, and his evidence briefly was that on the 24th of April 2018,
he was at Steelpoort where he was looking for employment as a truck driver. He was
wearing a black T-shirt, jeans, a pair of boots and a white cap. He only finished after
5pm and due to the lateness of the hour, slept over in a truck.
[14] The following morning, he went to the hitch hiking spot approximately 10 metres near
the school entrance where a group of people were gathering to hitchhike. He heard
gunshots from far and the shots got nearer, he started running away, he tripped over
the paving, fell, injured his finger and his knee.
(15] He saw the vehicle in the distance and like a movie, he saw himself running for his life
because of the gunshots. He managed to escape the scene, leaving behind his cap.
He injured his finger where his nail came out and he was bleeding from his injuries.
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[16] He denied owning a firearm, ammunition, being involved in any robbery of the Fidelity
security at the Twin City in Burgersfort . He denied any involvement with the shootout
with the SBV security or any knowledge of the persons that were shot and killed at the
school where he was hitchhiking. He was unable to explain how his blood landed on
the Nike shoe as depicted in photo 153 and 154 which was located under the damaged
WJ Amarok.
[17] The applicant did not lead any evidence in rebuttal of his allegation , that he was the
night before at Steelpoort in Burgersfort, where he was looking for employment as a
truck driver. No rebuttal evidence in respect of the clothing he was wearing especially
the boots, and him sleeping over at this place. No evidence was led to rebut his
allegation of being in a group of people hitchhiking , the group running, when they
heard and saw the shootout. No evidence was led in rebuttal of him trying to escape
the scene, tripping, falling, injuring his finger, causing his nail to come out and injuring
his knee. His version amidst being tested under cross examination was left unscathed.
There was no rebuttal to his version that at the time he was running away he was
bleeding, from falling and injuring himself. The respondent testified that he did not
know how his blood landed on the Nike shoe.
The Legal Principles and Applicability:
[18] Section 319(1) and (2) provide that
(1) "If any question of law arises on the trial in a superior court of any person for any
offence, that court may of its own motion or at the request either of the prosecutor or
the accused reserve that question for the consideration of the Appellate Division,
and thereupon the first mentioned court shall state the question reserved and shall
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direct that it be specially entered in the record and that a copy thereof be transmitted
to the registrar of the Appellate Division.
(2) The grounds upon which any objection to an indictment is taken shall, for the
purposes of this section, be deemed to be questions of law."
[19] In an application before this court for the reservation of issues in terms of s 319 of
the CPA, this court is only required to decide whether the issues sought to be
reserved are questions of law. The application for the reservation of the questions of
law must be considered in the light of the following legal principles. Section 319 of
the CPA provides that a High Court may, either of its own accord or on the
application of the prosecution or the accused, reserve a question of law for
consideration by the Supreme Court of Appeal. It is trite that the section does not
allow the reservation of an issue which is a question of fact. The question as to
'whether the proven facts in a particular case constitute the commission of a crime'
is a question of law. But 'a question of law is not raised by asking whether the
evidence establishes one or more of the factual ingredien ts of a particular crime,
where there is no doubt or dispute as to what those ingredients are.'1
[20] The following requiremen ts must be met before a question of law may be reserved:
(a) the question must be framed accurately so that there is no doubt as to
what the legal point is;
(b) the facts upon which the point is based must be clearly set out; and
1 Magmoed v Janse Van Rensburg and Others (1992] ZASCA 208; 1993 (1) SACR 67 (A) at 94 a-c.
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(c) all of this must be clearly set out in the record2.
In addition, questions of law should not be reserved where they will have no practical
effect on the acquittal of the accused3.
[21] The applicant argued that the respondent did not give a version in response to the
prima facie evidence against him, namely his blood on the scene. The honourable
court ought to have enquired into whether the state's prima facie evidence measured
up to the required standard of acceptability as enunciated in State v Francis4
[22] The respondent argued that the duty of the Court was to assess all the evidence, not
consider evidence in isolation of each other which would be favourable to one or the
other side. The respondent highlighted that the court mentioned that it appreciated
the route taken by the state in its heads of arguments , focussing on the relevant
issues and connecting the evidence to the accused, however, the Court was obliged
to focus its attention in holistically evaluating all the evidence, which includes the
version of the accused in response to those allegations .
[23] This court accepted the fact that at the time the VW Amarok had landed colliding
with the electrical box, the Nike shoe in issue was no longer being worn, otherwise
there would have been a dead body also found under the vehicle. The applicant led
no evidence concerning any injuries to any bystanders , amidst this volatile, moving
2 Director of Public Prosecutions, Western Cape v Schoeman and Another 2020 (1) SACR 449 (SCA) para [39].
3 Attorney General, Transvaal v Flats Milling Company (Pty) Limited and Others 1958 (3) SA 360 (A) 373 to 374.
4 1991(1) SACRl98(A) at 203H -I
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scene, all the way from Twin City ASSA to St Thomas College. The applicant led no
further evidence of any other observers of the incident, especially at St Thomas
College where this Nike shoe was located. The applicant did not ventilate with Mr
Mbombi the duration of time that passed waiting on the police to secure the scene
and whether any members of public came near the scene where according to the
photos all this money was lying all over the street and pavement.
[24] The applicant unfortunately was somewhat economical in the contents of the
application and heads of arguments , concerning the evidence favourable to the
respondent. The crucial evidence pertaining to the respondent fleeing in a group of
people, falling and being injured whilst this shoot-out was occurring was never
ventilated . The uncontested evidence of the respondent was that he was running
with the other hitchhikers when he fell and injured himself. He testified that on
account of the fall, his nail on his finger broke off and his finger was bleeding. He
also injured his knees and thereafter got up and continued to run away. The
applicant during cross examination was unable to discredit this evidence and did not
elicit any information concerning the number of people present with the respondent
when this sequence of events was unfolding especially when the respondent had
fallen.
[25] These circumstances as testified could have resulted in the respondent's blood
spilling all over, whilst the respondent was running away, in the company of the
other persons. This aspect was never canvassed with the respondent under cross
examination , nor rebutted by any other evidence from the applicant. The fact that the
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respondents blood was found on this Nike shoe, which was located under the
vehicle is rebutted by the respondents uncontested version of bleeding in the vicinity
of the scene, whilst in a group of people. Amidst the respondent's indication of his
lack of knowledge , of how his blood landed on the Nike shoe, at the time when this
injury occurred, he was not alone but in the company of other people, who possibly,
could have had blood land on them, and who possibly could also have scattered in
various directions, including where the Amarok landed. There was no evidence
tendered by the applicant that these circumstances were non-existent , or that the
respondent was misleading this Court when he testified about the surrounding
incident. His evidence is more consistent with the present circumstances , rather than
the inference sought by the applicant that the respondent was involved in the
commission of the offence, which is not the only reasonable inference , to be drawn
from the circumstantial evidence, especially as the respondent's evidence was
credible, concerning the circumstances he found himself in whilst this incident
occurred. This must be seen in the context where the applicant failed to lead rebuttal
evidence specifically on this point. This is also in the circumstances where the
applicant bares the onus to prove that the respondent's version is not reasonably
possibly true.
[26] The applicant failed to investigate , verify, or cross examine the respondent to rebut
the allegation of there being a group of people, who were hitchhiking as alleged by
the respondent , prior to the shootout occurring. Nor did the applicant lead evidence
to prove that there were no other persons observing the scene, where the VW
Amarok landed. The only evidence pertaining to the school and the people present
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at the school, was from the witness Mr Mbombi, concerning him having to stop
shooting at the perpetrators , who fled into the school, as the school children, were in
the school yard. Amidst this evidence of the presence of the school children, the
witness still shot and killed the last perpetrator, who was shooting at him, whilst also
running towards the school. This witness did not testify concerning there not being a
group of fleeing people, whilst chasing the V W Amarok or seeing any bystanders
prior to coming to a holt outside the school.
[27] Mr Mbombi indicated that the SBV vehicle was fitted with cameras, yet no video
footage from the SBV was obtained or presented as evidence to give clarity
concerning how this entire incident unfolded, surely this real evidence would have
ventilated and possibly identified how this shoot-out occurred and possibly bolstered
the applicant's case in securing implicating evidence against the respondent.
(28] The applicant makes no mention of the white cap with the respondent 's DNA which
the respondent admitted to wearing, which was not located by the VW Amarok but
near the school. From the photos it was self-evident that the Nike shoe (photo 153
and 154) was not the only shoe located on the scene, there was a brown shoe in the
vehicle as depicted on photo 192 and193 and another Addidas black shoe also
located near the vehicle on photo 151 and 152 of exhibit E. From the photos this
was a scene cluttered with items of clothing, money, firearms, ammunition and other
items. This was not a sterile isolated scene where this one Nike shoe was located. It
was surprising to this court that forensic evidence was so limited given the number
of exhibits recovered from the various locations, pertaining to the alleged incident.
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The evidence in totality, conflicted materially with the applicants attempt at dealing
with the evidence of the Nike shoe in a vacuum, creating the impression that no
evidence was led pertaining to same, yet the respondent's explanation is specifically
directed at how he was injured in the company of other people, whilst fleeing which
simply could not be ignored by this court especially as this explanation was not
shown not to be reasonably possibly true, given the totality of all the evidence which
was evaluated .
[29] The applicant sought this court to accept that by relying on the case of S v Francis5
the respondent's inability to explain how his blood landed on the Nike shoe, which
was in effect silence according to the applicant, on the part of the respondent to this
evidence. This court in Judgment considered the evidence tendered by the
respondent, his detailed explanation of hitchhiking in a group, experiencing this
traumatic incident, fleeing, being injured and bleeding. Offset against the presence
of the blood, this version is not silence, it is the inability to explain where his blood
landed. This court highlighted in Judgment why the DNA and fingerprint evidence
had to be considered in totality, with all the evidence tendered. The request to
reserve this question cannot be sustained. The applicant was relying on this
isolated piece of evidence to justify approaching the Appeal Court in an attempt to
cure, what the applicant was obliged to cure, during the trial when the evidence was
led and the applicant whilst having all this evidence available to it, failed to rebut the
responde nt's version which consisted of testimony pertaining to how his DNA was
located at the various locations. This court was also surprised that the applicant
5 See footnote 4 above
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failed to even trace the person from the school who collected the other exhibits and
placed it in a bucket at the entrance of the school. This person's identity could have
been verified by Mr Mbombi, yet this evidence was not led by the state, causing that
evidence to be excluded.
[30] In considering the argument raised by the applicant, "that the presence of the
respondent's blood on the Nike shoe under the Amarok motor vehicle, placed him on
the crime scene, and the respondent denies being at the crime scene, may the court
acquit the respondent without enquiring into whether his DNA is conclusive in
placing him at the crime scene"6. This court had regard to the evidence of the
respondent and photos 11, 12 and 95 of exhibit E ,which depicted the path that the
respondent ran, prior to the arrival of the Amarok motor vehicle, and from the
pictures, the path is exactly adjacent to the spot where the motor vehicle landed.
The respondent also placed himself within a group of people which was not rebutted
by the applicant and further, being injured, bleeding. There was nothing presented
from the applicant in rebuttal of this evidence. It was not disputed by the respondent
of being in this vicinity, whilst bleeding. The fact that his blood was on this Nike
shoe, was but one of the many facets of evidence which was holistically evaluated ,
which included the version of the respondent , in response to those allegations .
[31] There was no evidence tendered from the applicant of any trace DNA in the shoe,
who it could belong to, or how much blood and where exactly on the shoe, this blood
6 See paragraph 13. 1 of the applicants HOA
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was found. If the applicant was so focused on relying on this specific evidence, then
surely a blown-up picture of the location of the blood on the Nike shoe, would have
been presented and the rebuttal version of the respondent's evidence. The applicant
attempted to make an analogy with the respondent's version as being alibi evidence
in rebuttal of the blood on the Nike shoe which was not the case. According to the
respondent he was present prior to the Amarok capsizing and landing where it did.
[32] The applicant was very clear in the heads of argument submitted at paragraph 23
that it was irrelevant concerning who was wearing the Nike shoe and that the only
concern of the applicant was the fact of the presence of the blood, which was not
explained , which according to the applicant tantamounted to silence in response to
this evidence.
[33] The applicant cited various case law and made specific reference to the case of
Director of Public Prosecutions , Limpopo v Mokgotho7 which dealt specifically with
the circumstance wherein the accused had closed his case without testifying and
related it to the current circumstance , drawing a correlation with the respondent
being unable to explain the whereabouts of his blood as being "silent" and that there
was no evidence placed before this court. This analogy is misplaced , the respondent
did explain the circumstances leading up to his injury and bleeding. The fact that he
did not know how and where his blood had spilt, which was not disputed, is not the
same as remaining silent and not testifying concerning the aspect that his blood was
found on the scene.
7 See Mokgotho case no (06812017) [2017]ZASCA 159(24 November 2017)
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[34] The questions of law, raised by the applicant in respect of the evidence pertaining to
the Nike shoe is without merit as highlighted above and stands to be refused. The
applicant clearly on account of focusing on one aspect of the evidence failed to
consider the evidence in totality thus not being able to see the wood from the trees.
There was nothing untoward with the respondent's version of being unable to
explain the presence of his blood on this Nike shoe in light of the chaotic
circumstances he found himself in, which was evidenced by the photos of the scene,
and this was never disputed. To call for an answer as to how this blood landed on
the Nike shoe would be expecting the respondent and court to speculate especially
as the applicant failed to provide a rebuttal version of the circumstances prior to the
presence of the blood on the Nike shoe, by tendering evidence to the effect that
there was no hitchhiking spot or other persons on this scene prior to this incident
occurring or during cross examination exposing weakness or inconsistencies in the
respondent's version, raising doubts of the respondent's credibility thus leaving the
only conclusion to be drawn that the respondent was involved, due to his version
being rejected thus relying only on the applicants version being his blood on the
scene, which proved his involvement in the commission of this offence. This was not
done by the applicant.
(35] The respondent in opposing this application raised the issue of condonation not
being fully addressed by the applicant, to explain the delay in moving this
application. This court accepted that the applicant provided details pertaining to why
the delay occurred and in as much as not every aspect was ventilated this court
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condoned the delay in respect of the launching of the application . This ensured that
the merit of the application could be ventilated and the application not being
dismissed based on the ancillary aspect pertaining to condonation.
Ruling:
[36] Having taken all the aspects raised, in relation to the evidence led and the
arguments placed before this court, the applicant has failed to establish grounds for
seeking the application in terms of S319 of the Criminal Procedure Act 51 of 1977,
there is no merit in the questions of law sought to be reserved as it clearly was
based on misinterpretation of the law and its applicability to the current facts of this
case.
Order:
[37] The application in terms of Section 319 of the Criminal Procedure Act 51 of 1977 is
dismissed.
PICL! KL
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES
FOR THE APPLICANT
FOR THE RESPONDENT
DATE OF HEARING
DATE OF JUDGEMENT 18
Advocate M Sebelebele
msebelebele@npa.gov .za
Advocate P Maluleke
Pmalu leke@sabar .corn
21 January 2025
3:::,_May2025