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[1994] ZASCA 124
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S v Nair (413/93) [1994] ZASCA 124 (20 September 1994)
CASE NO
: 498/93
N v H
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
LANCE
NAIR
and
THE STATE
SMALBERGER, JA
CASE NO
: 498/93 N v H
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
LANCE NATR
Appellant
and
THE STATE
Respondent
CORAM
: SMALBERGER, F H GROSSKOPF
et VAN DEN HEEVER, JJA
HEARD
: 15 September 1994
DELIVERED
: 20 September
1994
JUDGMENT
SMALBERGER, JA :
The appellant was charged in the regional court, Port Elizabeth, with
robbery with aggravating circumstances (count 1)
2 and theft (count
2). At the conclusion of the trial he was convicted
of theft on both counts. In view of his extensive previous
convictions he was declared an habitual criminal. He appealed
to
the Eastern Cape Division against his convictions and
sentence.
His appeal was dismissed. That court, however, took the
view that
he should have been convicted as charged on count 1.
It
accordingly substituted a conviction of robbery with aggravating
circumstances for that of theft. The appellant was subsequently
granted leave by the court a quo to appeal to this Court against
such
conviction only.
The complainant on count 1, a certain Mr D'Oliviera, is
the
proprietor of a cafe situated in Western Road, Port
Elizabeth. He
testified that on the morning of Friday 18 August 1991 he went
by
car to the Rink Street branch of the Standard Bank to draw money
for wages for his staff. He drew an amount of R2 275-00. The
money was placed in a bank bag. He put the bag on the passenger
seat next to him and drove back to his place of business. He
parked
3 his car around the corner. The door on the passenger side
suddenly
opened. He saw a person, whom he identified as the appellant, standing
behind the door. The appellant leant over the door. He had
a firearm in his
right hand. His left hand was on the door-frame above the window. The appellant
said "I'll take that" whereupon
he grabbed the bag of money and ran off. He made
good his escape in a vehicle driven by a black man. Asked how he reacted
D'Oliviera
stated: "I just gave him the money because I was insured."
The police later inspected D'Oliviera's vehicle for fingerprints. The
appellant's left thumb-print was found on the inside of the
window of the door
on the passenger's side. The thumb-print was approximately in the middle of the
window and pointed upwards. On
the outside of the window, near the top,
identifiable fingerprints of the appellant's left hand were found. They were
pointing downwards.
The appellant denied that he robbed D'Oliviera. He
4 testified that he regularly used to purchase newspapers and
cigarettes at the latter's café. According to him (and this
is
common cause) D'Oliviera ran a video outlet from his cafe. On
the
morning of 23 August 1991 he asked D'Oliviera if he was
interested
in purchasing video recorders through a contact in Durban
(apparently at substantially reduced prices). D'Oliviera agreed
to
purchase three video recorders and a television set for the sum
of
R2 225-00. He asked the appellant to return at about one
o'clock.
The appellant came back at approximately 13:15. He then
accompanied D'Oliviera in the latter's car to the Standard Bank
in
Rink Street where D'Oliviera went to draw money to pay for the
items he had agreed to purchase. He returned with R2 225-00
which he handed to the appellant. He thereafter dropped the
appellant off in Main Street. The appellant further testified that
he
promised to telephone D'Oliviera that afternoon to advise him
when
the goods would be delivered. He failed to do so because he was
unable to get in touch with his contact in Durban. When he
5
telephoned D'Oliviera on the Saturday morning to advise him about
the arrangements he was told by D'Oliviera that, because he had
not
telephoned the previous afternoon, as he had promised,
he
(D'Oliviera) had laid a charge of armed robbery against
him.
Asked why he had done so D'Oliviera replied: "If I had to tell
my
insurance company that I gave you money to buy video
machines,
they won't pay me out, so I had to lay this charge of armed
robbery."
The investigating officer, Capt Steyn, testified that he
arrested
the appellant on the afternoon of 25 August
1991. He informed
him of the charge of armed robbery against him, advised him that
he (Steyn) was a peace officer and warned him according to the
Judges' rules. The appellant's response was as follows: "Hy het
vir my gesê ek moenie 'worry' nie, hy ken daardie storie."
Shortly
afterwards he made the following statement to Steyn:
"I'll level things with you. D'Oliviera gave me R2 225-00 to get him
video machines. He took me to the bank, that's D'Oliviera. I
got no guns or a
car on Friday. I want my
6
lawyer tomorrow. I want everything in the clear. He took me to Main Street,
that's D'Oliviera. 1 went upstairs. He waited, that's
D'Oliviera, and I
disappeared."
The appellant did not dispute having made
this statement to Steyn.
The presiding magistrate rejected
D'Oliviera's evidence holding, inter alia, that it was inherently improbable.
She found it proved,
however, on the totality of the evidence, that the
appellant had appropriated D'Oliviera's money for his own use and was
accordingly
guilty of theft. On appeal the court a quo disagreed with the
reasons advanced by the magistrate for rejecting D'Oliviera's evidence.
It
concluded that his evidence should have been accepted and the appellant
convicted as charged. In the result it altered the conviction
to one of robbery
with aggravating circumstances.
In the course of his judgment VAN RENSBURG, J (who delivered the judgment
of the court) said the following:
7
"The crux of the appellant's case is that in terms of their arrangement
D'Oliviera handed the money over to him and that it was arranged
that the
appellant would telephone D'Oliviera at approximately 2:45 p.m. that afternoon.
When the appellant failed to telephone him
at the appointed time, D'Oliviera,
thinking that he had been the subject of a hoax and that the appellant had
stolen his money, telephoned
the police and laid a charge of armed robbery
because he thought if he told his insurers that he had voluntarily handed over
the
money to the appellant they would not pay him out. The problem with the
appellant's case is that Captain Steyn, who created a good
impression on the
magistrate as a witness, informed the Court that D'Oliviera's complaint had been
received by the police at 2:30
p.m. and that they were on the scene by 3:05 p.m.
It is also significant that Sergeant Share, the fingerprint expert, arrived on
the scene at 3:20 p.m. In other words the complaint had already been received
before the time had arrived at which the appellant,
on his version, had arranged
to telephone D'Oliviera, namely 2:45 p.m.
Once it is accepted, as it must be, that the complaint was received at
2:30 p.m., the appellant's defence goes out of the window.
It is inconceivable
that D'Oliviera would have laid a false charge of armed robbery for the reasons
suggested by the appellant until
the appointed time had passed, without the
appellant having telephoned him. In fact it is highly probable that D'Oliviera
would have
waited for a time after 2:45 p.m. before telephoning the police to
see whether the
8 call did not come through."
In my view the court a
quo took too narrow a view of the matter. There can be no gainsaying the fact
that the appellant lied about
his alleged arrangement with D'Oliviera. It does
not necessarily follow, however, that he was guilty of robbery (cf
S v
Mtsweni
1985(1) SA 590(A) at 593I-594E). He may well have lied because he
was trying to cover up his unlawful appropriation of D'Oliviera's
money. In this
respect due regard must be had to his extra-curial statement to Steyn - a
statement made with apparent spontaneity
shortly after his arrest, and one which
coincides with his evidence at the trial concerning the events immediately
preceding and
following upon his acquisition of the money. It is to the extent
that he embroidered on those events and went beyond them in an attempt
to
exonerate himself that his evidence has been shown to be false. The appellant's
statement to Steyn, introduced as part of the
State case, forms part of the
evidential material on which the appellant's guilt has to be determined. If on a
conspectus of all
the
9 evidence it is found to have sufficient
cogency, and there is a
reasonable possibility that what he said to Steyn could be the
truth,
the appellant is entitled to the benefit thereof (
S v
Yelani
1989(2)
SA 43(A) at 49H-50F).
The trial
magistrate had the advantage of seeing and hearing D'Oliviera testify. She was
therefore in the best position to assess
his credibility. In order to substitute
a conviction for robbery it was necessary for the court a quo to overturn her
factual and
credibility findings - in itself an unusual course to adopt (cf
S
v Morgan and Others
1993(2) SACR 134(A) at 162d-f).
In my view the trial magistrate was fully entitled to reject D'Oliviera's
evidence. His evidence with regard to the time when the
alleged robbery took
place was contradictory and unsatisfactory. At various times it was given as
"ten", "about twelve in the morning",
"late morning", "about
half-past-eleven/twelve o'clock" and finally "I can't remember exactly what
time. It was late morning." What
is clear from his evidence is that it must
have
10 occurred before noon. He further stated that he reported
the
incident to the police "straight away". Yet it is common cause that the
alleged robbery was only reported at 14:30. His evidence does
not explain this
apparent inconsistency or why there was such a long time-lapse. Furthermore,
D'Oliviera's conduct after the alleged
robbery is improbable. He never raised
any hue and cry, nor did he seek anyone's assistance to prevent his alleged
assailant from
making good his escape (bearing in mind that the events took
place in a built-up and frequented area). He contradicted himself in
relation to
the appellant's alleged getaway. Initially he stated that he saw a vehicle (a
blue Sapphire) drive off and that he "took
it for granted" that the appellant
was in the vehicle; under cross-examination he claimed that he had seen the
appellant jump into
the vehicle. Most important, the fingerprints that were
found are far more consistent with the appellant's version than that of D'
Oliviera. The fingerprints on the outside of the window pointing downwards are
difficult to reconcile with D' Oliviera's description
of the position
11
taken up by the appellant. To have caused those
prints when standing on the outside of the door leaning over it would have
required
the appellant to contort his body in an unusual and abnormal way. The
prints are, however, entirely consistent with someone holding
on to the top of
the door when entering or alighting from the vehicle. Equally so the left
thumb-print in the middle of the window,
on the inside, pointing upwards is far
more consistent with having been caused by someone who was inside the vehicle
than by someone
standing outside
behind
the door.
In the circumstances there was no justification for the court a quo's
acceptance of D' Oliviera's evidence. The reasonable possibility
exists, on the
evidence as a whole, that the material events took place as related by the
appellant to Steyn (and confirmed, to that
extent, by the appellant in
evidence). An armed robbery was therefore not proved beyond all reasonable
doubt. It was not seriously
contended that the appellant was not guilty of
theft. Indeed the only reasonable inference to be drawn from the
12
proved facts is that the appellant appropriated D'Oliviera's money
for his own use.
We would like to express our appreciation to
Mr Paterson, who appeared at the request of the Court, for his assistance in the
matter.
In the result the appeal succeeds to the extent that the appellant's
conviction of robbery with aggravating circumstances on count
1 is set aside and
there is substituted in its stead a conviction of theft.
J W SMALBERGER JUDGE OF APPEAL
F H GROSSKOPF, JA)
VAN DEN HEEVER, JA ) CONCUR