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[2013] ZAWCHC 129
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Mzondi and Others v S (A47/2011) [2013] ZAWCHC 129 (6 September 2013)
Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE
TOWN)
Appeal No: A47/2011
In the appeal between:
BONGANI MZONDI (aka THANDO
SILJULWA)
........................................
First
Appellant
ABRAHAM CHARLES VAN HEERDEN
................................................
Second
Appellant
PAUL KLAASSEN
......................................................................................
Third
Appellant
PHUMZILE MANGALISO
.........................................................................
Fourth
Appellant
XOLANI MLANJANA
...................................................................................
Fifth
Appellant
MAZWI TIWENI
...........................................................................................
Sixth
Appellant
LUNGA MVINJELWA
............................................................................
Seventh
Appellant
and
THE STATE
......................................................................................................
Respondent
Court
: Judge TC Ndita
et
Judge
J I Cloete
Heard
: 6 September 2013
REASONS FOR ORDER DATED 6 SEPTEMBER
2013
CLOETE J
:
The seven appellants, who had pleaded
not guilty to six charges, were all convicted on 4 July 2011 in
the Cape Town regional
court on one count only of contravening
s18(2)(a) of the Riotous Assemblies Act No 17 of 1956 (‘
the
RAA’
), namely conspiracy to commit robbery with
aggravating circumstances, and sentenced to various terms of
imprisonment. All of
the appellants had been legally represented
during the trial. With the leave of the trial court they now appeal
against both
their convictions and sentences.
S 18(2)(a) of the RAA provides
as follows:
‘
(2)
Any person who –
(a)
conspires with any other person to aid or procure the commission of
or to commit;
(b)…
any
offence, whether at common law or against a statute or statutory
regulation, shall be guilty of an offence and liable on conviction
to
the punishment to which a person convicted of actually committing
that offence would be liable.’
Snyman:
Criminal Law
(5
th
edition) at pp 294-297 provides a useful summary of the requirements
to secure a conviction in terms of s 18(2)(a), namely
that:
3.1. The section does not
differentiate between a conspiracy followed by the actual commission
of the crime and one that is not;
3.2. There can be a conspiracy only if
it is found that there was a definite agreement between at least two
individuals to commit
a crime. Accordingly the criminal act of
conspiracy involves a finding that an actual agreement was reached,
and mere knowledge
of the existence of a conspiracy will not suffice;
3.3. There is no conspiracy if one of
the two individuals only pretends to agree but in fact secretly
intends to inform the police
of the other individual’s plan so
that the latter may be apprehended;
3.4. The conspiracy need not be
express. It may also be tacit but a tacit conspiracy can only be
found to exist if the other individual
consciously agrees to the
scheme. A court may infer the existence of a conspiracy from the
conduct of the individuals concerned,
provided however that the
inference is the only reasonable one to be drawn from the facts;
3.5. A conspiracy may come into being
where one individual discusses and independently agrees with
different people (the so-called
‘
umbrella spoke’
conspiracy); or where each individual agrees with the next (the
so-called ‘
chain’
conspiracy). It thus follows
that direct communication between all of the conspirators is not
required;
3.6. Although there must be agreement,
it is not necessary that there is also agreement about the exact
manner in which the crime
is to be committed.
The findings of the trial court with
regard to the alleged conspiracy will be considered against the
evidence as a whole as well
as the aforementioned legal principles.
The state called seven witnesses.
None of the appellants provided plea explanations. Appellants 3 and
7 elected not to testify
while the other appellants testified in
their own defence.
The first state witness was Ms
Makone. She is a registered police informant. Her evidence was that
she had received a telephone
call from a person, whom she was later
told was called ‘
Shoes’
, who subsequently met
with her to select a house in the Summer Greens area to target for a
robbery. Her role was to choose the
house, identify where the
occupant kept cash and explain how Shoes could gain entry. It was
Shoes’ plan for him and a team
that he would assemble to wear
police clothing and to produce a bogus search warrant to gain entry
to the house.
The witness agreed and it was
arranged that the crime would be committed on 20 July 2010.
There was another person present
at the meeting who the witness was
unable to identify. He was seated in the front passenger seat of the
vehicle where the meeting
had taken place and had not participated
in the discussion. The witness was also unable to identify Shoes as
any particular appellant
but thought that he might be either
appellant 4 or appellant 5.
The witness testified that she
thereafter informed her handler of the planned robbery and he told
her to arrange a specific time
for it to take place on that day. She
duly did so and the robbery was scheduled for 6pm. However Shoes
told her that he had vehicle
problems and was also waiting for the
person who kept the police uniforms. He eventually only arrived some
time after 9pm. She
met with him outside the 7-Eleven supermarketin
Summer Greens and got into the white microbus in which he was
travelling. Shoes
opened the vehicle’s door for her to enter
and she noticed that there were about 7 – 9 people in the
vehicle. Shoes
showed her the bogus search warrant. Shoes and the
witness agreed that after she had pointed out the house she would be
dropped
off and he would return to collect her after the robbery so
that she could share in the spoils.
It was shortly after she had pointed
out the house that the vehicle was pulled over by the police. The
occupants were ordered
out of the vehicle and told to lie on the
ground. One person had a gun and another both a gun and a knife. The
only person that
she knew was Shoes. All of the occupants (including
the witness) were arrested and taken to the police station.
The witness testified that during the
police search of the vehicle they had found a cream coloured bag
containing handcuffs, police
badges and some light green police
jackets. The witness denied Shoes’ version that the reason why
they had been travelling
together was that they were going to her
home so that she could pay him money that she owed him for
purchasing clothing from
him.
Mr Shumi was the second state witness
who was called in terms of s 204 of the Criminal Procedure Act
No 51 of 1977 (‘
the CPA’
). He testified that he
was one of the persons arrested. He had replaced certain parts of a
white microbus earlier that day on
the instructions of appellant 1
who had been driving it at the time. At about 7.30pm he was with
appellant 6 who had told him
that they were to go to Summer Greens.
They arrived at a place next to the police station at Site B
Khayelitsha where the same
microbus was parked. Appellants 1, 4 and
7 were already there. He was told by appellant 6 about the intended
robbery but not
what his role was to be. The group, driven by
appellant 1, then collected appellants 2, 3 and 5 in Delft. He was
told that they
had been stranded because their vehicle had run out
of petrol. One was carrying a black bag which the witness placed in
the back
of the vehicle. He did not say which of the men had been
carrying the bag. They proceeded to Summer Greens where they met a
lady
at the 7-Eleven. She climbed into the vehicle and told them
that she would show them the house, which she then did. While they
were travelling the lady spoke to Shoes, but he could not hear
everything that they were saying because he was seated too far
away.
He did however overhear them talking about a search warrant.
The witness identified Shoes as
appellant 4. He also testified that appellants 2, 3 and 5 did not
speak during the journey and
that in fact no-one had discussed the
planned robbery at all. His evidence was that the vehicle was
stopped by the police after
the house had been pointed out and that
all of the occupants were arrested. It was only appellant 6 who was
known to him and
he could not identify Ms Makone as the lady who had
given directions to the house. He did not know about the police
clothing
and equipment or the firearms until after his arrest when
he was at the police station and the police had informed him
thereof.
His uncontested evidence was that after his arrest the
police had assaulted him and withheld his HIV medication and that as
a
result he had decided to co-operate with them.
The third state witness was Mr
Langenhoven. He testified that he was employed by the Department of
Water Works as a foreman. On
25 December 2009 he had been
robbed of a handheld radio issued to him by the Department. It was
subsequently recovered by
the police and returned to him during
August 2010.
The fourth state witness was
Inspector Hans who is stationed at the Flying Squad in Maitland,
Cape Town. He testified that he
was on duty on the evening of
20 July 2010 when he received information about a robbery that
was to take place in the Summer
Greens area. The vehicle involved
was a white microbus and the registration number was provided. He
and a colleague proceeded
to the area and saw the vehicle
approaching. They pulled the vehicle over and instructed the driver
(who he identified as appellant
1) to switch it off. The occupants
were ordered out of the vehicle and instructed to lie down on the
ground.
The vehicle was searched and a black
bag was found containing a firearm, two police jackets, a police
belt and badge, police issue
handcuffs, a holster and a handheld
radio. Also found was a docket containing search warrants. All of
the occupants denied any
knowledge of how these items had come to be
in the vehicle. Apart from the bag itself,which Inspector Hans said
he had not handed
in at the police station, and the docket
containing the search warrants which had apparently gone
missing,most of the items recovered
were handed in as exhibits
together with the ballistics report.
The fifth state witness was Constable
Tabish. He testified that he had returned the handheld radio
identified by Mr Langenhoven
to him. The witness also testified that
appellants 2 and 4 had previously been employed as policemen,
appellant 3 as a traffic
officer and appellant 5 as a police
reservist.
Appellant 1 testified that he had
only known appellants 6 and 7 prior to the arrest of the occupants
of the microbus on 20 July
2010. At about 7pm on that day he had
been with appellant 7. Appellant 6 telephoned appellant 1 and told
him that appellant 4
was stranded near Delft and needed petrol or
transport. Appellant 1, accompanied by appellant 7, collected
appellant 6 (Shumi
was with appellant 6 at the time) and they
travelled to Delft where they collected appellant 4 at a petrol
station. Appellant
1 later came to know appellant 4 as Shoes. They
then collected appellants 2, 3 and 5 who were walking back to the
stranded vehicle.
They put petrol into the vehicle but it would not
start, seemingly because there was not enough petrol in the tank.
Appellant
4 then said that he needed to go to Summer Greens to fetch
money to buy petrol for the vehicle. The others came along.
Appellant 1 then drove them to Summer
Greens where he was told by appellant 4 to stop at the
7-Eleven. A lady who he had
not met before but identified in court
as Ms Makone got into the vehicle and spoke to appellant 4.
Appellant 1 could not hear
what they were saying as they were seated
too far away. Ms Makone then instructed appellant 1 to drive on
straight ahead. It
was shortly thereafter that the police pulled the
vehicle over.
Appellant 1 testified that the police
found nothing on him when they searched him but he was later
informed at the police station
about the bag and other items that
had been found in the vehicle. The vehicle belonged to his cousin.
He denied that he had ever
taken the vehicle to Shumi to be fixed
and testified that although the vehicle had problems he had attended
to the repairs himself.
He had not noticed any of the men collected
in Delft entering the vehicle with a bag, but could not say whether
or not this was
definitely the case since it had been too dark. The
only bag of which appellant 1 was aware was that containing nappies
and a
child’s clothing which he himself had previously placed
in the vehicle (this bag had also been found by the police).
Appellant 2 testified that prior to
the incident he had only known appellants 3 and 5. He had introduced
them to each other on
that day. Appellant 2 later gave evidence that
he also knew appellant 4 who was previously a police officer as
well. Appellants
3 and 5 had been with appellant 2 after his vehicle
had run out of petrol in Delft. The three men had walked to a
service station
and he purchased R25 worth of petrol which was the
only cash that he had on him at the time. Appellant 2 had also
telephoned
friends for assistance but the only one who came to his
aid was appellant 4. He had arrived in the microbus along with
appellant
1 and Shumi, neither of whom were known to him. They had
arrived as the three men were walking back to their vehicle. They
poured
the petrol into the tank but the vehicle would not start
properly.
Appellant 2 told the men that he
would need about another R60 worth of petrol for the vehicle to
start properly. Appellant 4 said
that he did not have enough cash
with him but he knew a lady who lived in Summer Greens who owed him
money and he would make
a plan to collect it from her. Appellant 2
did not trust appellant 4 to return so he decided to accompany him.
Appellants 3 and
5 did not want to go with them, but appellant 2
told them to come along because he did not know how long they would
be.
When they arrived in Summer Greens
appellant 4 told them to stop at the 7-Eleven supermarket where a
lady would meet them. When
they arrived the lady was waiting.
Appellant 4 spoke to her and she climbed into the vehicle. Appellant
2 did not understand
what they were saying as they spoke in Xhosa.
Appellant 4 told appellant 1 that the lady would direct them. As
they were driving
along the police pulled over the vehicle.
Appellant 2 was still wearing his sandals that he had worn
throughout the day. Schoeman
had visited him when he was in custody
awaiting trial and apologised to him. He told appellant 2 that it
was because he had needed
his HIV medication that he had decided to
tell the police his story.
He testified that he did not know
what was happening but overheard the police saying that they were
looking for a search warrant
and a gun. The only bag that he had
seen was a black one that the lady had carried into the vehicle. The
day after his arrest
he was taken by the police to his vehicle to
check that it had indeed run out of petrol. They put petrol in the
vehicle and one
of them drove it to a police depot in Bellville.
Appellant 2 testified that he had been a police officer for 18 years
before
he resigned in 2004. At the time he had handed in all of his
police issue equipment – as required by the police force –
save for a few items of his police clothing which he had kept for
sentimental reasons. He also testified that the first time
that he
was told about the black bag and its contents was after he had been
taken to the police station.
Appellant 4 (who confirmed that he is
known as “Shoes”) testified that prior to the incident
he only knew appellants
2 and 6. Although he had not met her
personally, he knew Ms Makone because he had sold clothing to her
via a friend of his called
James. He had a standing arrangement with
James to sell clothing on his behalf. The witness had telephoned Ms
Makone because
she had not paid him for the clothing despite James
himself having telephoned her on three occasions for payment. She
said that
she would call him back to arrange for payment.
His evidence was that appellant 2 had
telephoned him that day for assistance after his vehicle had run out
of petrol at Delft.
Appellant 4 did not have transport and decided
to telephone appellant 6 who had helped him out in the past.
Appellant 6 told
him that he was also without transport but that he
was waiting for a friend who had a vehicle and would contact him
when the
person arrived. It was shortly thereafter that Ms Makone
telephoned him to tell him that he could come to Summer Greens to
fetch
the money that she owed him and that she would meet him at the
7-Eleven.
Appellant 6 then telephoned him to
say that he had found transport and they arranged to pick him up at
the Total garage in Site
B, Khayelitsha. Appellant 6 arrived in a
white microbus driven by appellant 1. There were also other people
in the vehicle. After
appellant 4 got into the vehicle appellant 2
telephoned him again in a panic because he had by now been waiting
for assistance
for a long time. They then drove to Delft. He saw
appellant 2 coming from the direction of the garage carrying a
petrol can.
Appellants 3 and 5 were with him. The men climbed into
the microbus and they drove to the stranded vehicle. They poured
petrol
into the tank but the vehicle would not start properly.
Appellant 4 only had R20 cash on him but told appellant 2 about the
lady
who owed him money (R1000) which he said he would collect.
Appellant 2 did not want to wait behind and he also climbed into the
microbus along with appellants 3 and 5.
Appellant 4 testified that he did not
have a bag with him. On the way to Summer Greens the lady telephoned
him to find out where
he was as she had by now been waiting for him
for a long time. When they arrived at the 7-Eleven the lady got into
the vehicle
and he introduced himself to her. The lady told him that
the money was at her house and asked to be driven there. Appellant 4
asked appellant 1 and he agreed. They had only driven for about 50
metres when the police pulled over the vehicle. The occupants
were
ordered out of the vehicle and made to lie down on the ground. They
were searched and told that they were being arrested
for having
carried out an armed robbery. It was only after his arrival at the
police station that he was told about the firearms
and police
equipment that had been found in the vehicle. He had not seen any
bags in the vehicle. The only conversation that
he had with Ms
Makone was when she apologised for being a bad payer and that he had
had to come to her to fetch the money. They
had spoken to each other
in Xhosa.
Appellant 4 testified that he had
been employed by the police from 2002 until 2006 when he resigned.
At the time he had handed
in all of his police issue clothing and
equipment as required. Since then he had sold reject clothing for a
living.
Appellant 5 testified that the only
person he knew before the day of the incident was appellant 2. He
had been returning from
a visit to his girlfriend when he came
across appellant 2 who told him that he had run out of petrol.
Appellant 2 told him that
he had telephoned a few people for
assistance. Appellant 3 then arrived. He had been to see if he could
obtain assistance from
someone he knew in Delft but had not been
able to find him. Appellant 2 then took some cash out of the
vehicle’s ashtray
and the three men walked to the garage. They
purchased petrol and on their way back to the vehicle the microbus
drew up next
to them. If he recalled correctly there were about five
people in the microbus. Appellant 4 got out and spoke to appellant 2
but he did not hear what they were saying. Appellants 3 and 5 stood
to one side. They did not have a conversation since they had
only
just met. Appellant 2 then told them to get into the microbus
because the driver was going to take them back to the vehicle.
On
their arrival they put the petrol into the tank but the vehicle
would not start properly. He and appellant 3 were sitting
in
appellant 2’s vehicle when he came over to them and told them
that they were all going to Summer Greens so that appellant
4 could
collect money from a lady there. Appellant 3 said that he would
rather wait behind but appellant 2 persuaded him to go
along because
he did not know how long they would be. They then got into the
microbus and drove to Summer Greens.
While they were travelling appellant
5 did not speak to the other occupants because the only person he
knew, i.e. appellant 2,
was sitting up front in the passenger seat.
He recalled that appellant 4 took a few telephone calls on the
journey. He overheard
appellant 4 asking appellant 1 to slow down
and saying to himself that he wondered where the lady was standing.
Appellant 5 saw
a lady standing at the entrance to the 7-Eleven,
answering her phone. The lady then got into the vehicle.
Appellant 5 saw the lady speaking to
appellant 4 but could not hear what they were saying as the
vehicle’s engine was idling.
Appellant 4 then asked appellant
1 to drive them to the lady’s house which she would direct
them to. On the way there the
microbus was pulled over by the
police. The occupants were ordered out of the vehicle and told to
lie down on the ground. They
were searched and the police found two
cell phones on him. They were then taken to the police vehicles and
told that they were
being arrested for armed robbery. He was never
even shown a bag or the items that were allegedly found inside it.
He was later
shown some ‘
plastic’
police clothing
at the police station. The only bag that appellant 5 was shown was
the clear plastic bag containing nappies which
appellant 1
identified as his. The only person that he had seen carrying a bag
was Ms Makone when she got into the vehicle. While
he was being held
in custody awaiting trial Shumi had come to visit him and appellant
2 to apologise and to tell them that he
had only been thinking about
his life and his HIV medication when he decided to tell the police
his story.
Appellant 6 testified that he and
Shumi had been friends since 2006. Prior to the incident he only
knew appellants 1 and 4. On
that day Shumi was with him when
appellant 4 telephoned him to ask if he had a vehicle with him or
access to one because he had
a friend who was stranded in Delft. He
said no but that there was someone who lived close to him with a
vehicle and that he would
see what he could do. He telephoned
appellant 1 who agreed to help as they had assisted each other in
the past.
Appellant 1 thereafter arrived
accompanied by appellant 7. Appellant 6 arranged with appellant 4
that they would collect him at
the Total garage. On their way to
Delft appellant 4 asked appellant 6 to find out from appellant 1 if
it would also be all right
if they drove to Summer Greens for him to
collect money from a lady. Appellant 1 again agreed. They then came
across two or three
men carrying a container holding petrol.
Appellant 4 told them to pull over and that these were the men who
he wanted to help.
Appellant 4 got out of the vehicle and went
towards the men. He later returned to the microbus with the men and
they drove on
to the stranded vehicle. They put petrol into the tank
but it would not start. They then got back into the microbus
(appellant
6 had remained seated in the microbus throughout) and
appellant 4 then asked appellant 1 to proceed to Summer Greens so
that
he could fetch money from the lady.
On their way to Summer Greens
appellant 6 spoke only to his friend Shumi who was sitting next to
him. He was also listening to
music on his cell phone. As they got
near to Summer Greens appellant 6 heard someone talking about the
7-Eleven. Appellant 4
was speaking on his cell phone and then asked
the driver to stop as he had seen the lady that he was coming to
collect money
from. The lady got into the microbus carrying a bag.
She spoke to appellant 4 but appellant 6 did not hear what they were
saying.
Appellant 4 told appellant 1 to drive and that the lady
would give him directions.
As they were driving the police
pulled over the microbus. The occupants were ordered out of the
vehicle and told to lie down on
the ground. They were informed that
they were being arrested for robbery with aggravating circumstances,
put into the police
vehicles and taken to the police station where
they were shown some police clothing. Appellant 6 had never
mentioned a robbery
to Shumi. He had not seen a black bag in the
microbus. He had not seen any of the appellants getting into the
microbus with a
bag. He had not spoken to appellant 3 at all in the
time leading up to the arrest.
It was the evidence of all of the
appellants who saw Ms Makone enter the vehicle with a bag was that
it was a lady’s bag.
It was furthermore the uncontested
evidence of Shumi as well as all of the appellants that they were
severely assaulted by the
police after their arrest. Appellant 6
testified that he understood why Shumi had agreed to make a
statement to the police. It
was to prevent any further assault and
to secure his HIV medication.
There was also the evidence of two
state witnesses who were called after closing argument to clear up
certain aspects about the
firearm that the police alleged was found
in the microbus. Significantly however the state did not adduce any
direct evidence
linking any of the appellants to this firearm when
it would no doubt have been a simple matter for fingerprints to have
been
taken, especially in light of the evidence of Constable
Williams who was one of the arresting officers. He testified that he
was the officer who had searched the vehicle. He thought that he had
seen one of the occupants of the microbus remove something
resembling a firearm from the front of his pants and throwing it
over the back seat before they were all ordered out of the vehicle.
Although Williams claimed that the firearm had been found on top of
the other items in a bag,this evidence does not satisfactorily
explain the state’s version that the firearm was found inside
the bag.
It was also his testimony –
contrary to that of all of the other witnesses – that there
had been a considerable number
of carrier bags in the vehicle when
it was searched. His evidence was further that the firearm and
police clothing and equipment
had been found in two separate bags,
one in the rear of the vehicle and the other in the front; and that
a multi-tool had been
found on one of the appellants, which had
included a knife. He could not identify either the occupant who was
alleged to have
thrown away the firearm or the person on whom the
multi-tool was found. Williams had only found empty docket covers
and papers
elsewhere in the vehicle, one of which was a partially
completed search warrant which had not been issued by the police and
did
not contain any address of a property to be searched. Further,
and despite even the evidence of the s 204 witness Shumi,
Williams claimed to have shown each and every occupant of the
vehicle the items that had been found when they were still at the
scene.
In convicting the appellants the
learned magistrate reasoned as follows. Both Ms Makone and Shumi
were able to give a chronological
version of events and did not
contradict themselves; she was unable to find any inherent
improbabilities in their versions. The
two arresting officers had
also been able to properly describe what had happened. There were
only ‘
minor differences’
between the versions of
these four state witnesses, which the learned magistrate found
related only to where the occupants had
been seated in the microbus,
where they lay after they were ordered out of the vehicle; and the
colour of the bag. She also found
that Ms Makone and Shumi
corroborated each other ‘
totally’
on their
versions as to what took place inside the vehicle, what was planned,
what was shown to them and at what stage the police
had stopped
them.
On the other hand she reasoned that
appellant 1 could not explain how Shumi had known about the
mechanical problems with the microbus.
He could not provide a
satisfactory explanation about why he had ferried the various
appellants about when there was no direct
benefit for him to have
done so. The same applied to the other appellants who had allegedly
agreed to help each other out. Further,
there was no reasonable
explanation for why appellant 2, in the knowledge that he had
telephoned around for assistance, left
the vehicle unattended
instead of waiting there for assistance to arrive,and instead walked
with appellants 3 and 5 to the garage,
and thereafter travelled with
appellant 4 and the others to Summer Greens. In addition on
appellant 4’s version he knew
that he had insufficient cash on
him and it did not make sense that he would have gone to appellant
2’s assistance armed
with that knowledge without first
collecting the money that he was owed by Ms Makone. It was also
nonsensical that appellant
2, who had placed his trust in appellant
4 to help, would not have trusted him to follow through on his offer
after he had collected
the money from Summer Greens.
The learned magistrate also found
that it was highly improbable that the occupants of the microbus who
were sitting in such close
proximity to each other would not have
been able to hear everything that the others were saying. She found
that appellant 4’s
explanation concerning the money owed to
him was so improbable that it had to be rejected. In her view none
of the seven appellants
could offer a satisfactory explanation for
their presence in the microbus and indeed appellants 3 and 7 had
given no explanation
at all.It was accordingly the learned
magistrate’s view that the only reasonable inference to be
drawn was that all seven
appellants had been involved in the
conspiracy to commit armed robbery.
I am in respectful disagreement with
the findings and conclusions of the trial court. There was no proof
of any definite agreement
between at least two individuals to commit
a crime. The only evidence was that of Ms Makone and Shumi. Ms
Makone’s testimony
does not prove the existence of a definite
agreement between herself and the other (unidentified) party given
that, on her own
version, she secretly intended, and in fact
informed, the police of the allegedly planned armed robbery. In
addition, on Shumi’s
own version, he only had mere knowledge
of an intended robbery in which he and appellant 6 were apparently
to be involved; and
the details of what was allegedly conveyed to
him by appellant 6 cannot be elevated to the status of a definite
agreement between
them.
There was furthermore no testimony
that could reasonably have led the trial court to conclude that one
of the appellants had individually
and independently agreed with all
of the others to commit the robbery; nor that each of the appellants
had agreed with the next
to do so. The learned magistrate’s
finding that Ms Makone and Shumi had corroborated each other about
‘
what was planned’
in the microbus is simply not
supported by the evidence of these two witnesses.
That leaves a consideration of
whether the state had proven the existence of a tacit conspiracy. As
previously stated, it is necessary
for the state to prove beyond a
reasonable doubt that the existence of a tacit conspiracy is the
only reasonable inference to
be drawn from the facts.
I cannot agree with the learned
magistrate’s finding that there were no inherent probabilities
in the versions of the state
witnesses Ms Makone and Shumi. First,
it is highly improbable that Ms Makone would have met with someone
who was planning a robbery
without even asking his name. Second, it
is equally improbable that she would not have been able to identify
the man who she
thereafter arranged to meet and travelled with in
the microbus before it was pulled over by the police. The best that
she could
offer during her testimony was that she had been told by
an unidentified person after the arrests that her alleged
co-conspirator
had the nickname of Shoes; and she was unable to
identify him in court other than to say that she thought that he
might be appellant
4 or appellant 5.
It was furthermore Shumi’s own
evidence that he was unable to identify which of appellants 2, 3 and
5 had been carrying
the black bag. This too is improbable. After
all, one of the men had allegedly passed the bag to him when
entering the microbus
and he had travelled with the same man for
some distance to Summer Greens. One must also be extremely cautious
in considering
the veracity of Shumi’s testimony in light of
his uncontested evidence about the assaults that he had suffered at
the hands
of the police and their withholding of his HIV medication;
as well as the unchallenged testimony of appellants 2 and 6 that he
had visited them in custody to apologise to them for the statement
that he had made to the police thereafter.
It also cannot be said, as found by
the learned magistrate, that the two arresting officers who
testified had been able to properly
describe what had happened. A
consideration of their evidence as detailed above reveals a number
of glaring material inconsistencies.
I will highlight a few, namely,
how many bags were found in the vehicle; where the police clothing,
equipment and weapons were
found; whether any weapon was found on
one of the – unidentified – occupants during the search
after they were ordered
out of the vehicle;the existence or
otherwise of the search warrant or warrants and where they were
located in the vehicle; and
whether or not the items seized had been
shown to the appellants at the scene.
There were also material
inconsistencies between the evidence of the police officers and Ms
Makone, who claimed that after the
occupants were ordered out of the
vehicle she had noticed that not one, but two of them were in
possession of firearms and yet
another a knife. Ms Makone was also
the only state witness who testified that the bag found in the
vehicle was cream in colour.
The testimony of the appellants that Ms
Makone had entered the microbus carrying a bag was not challenged by
the state. Both
Shumi and Inspector Hans had testified that the bag
was black in colour and Constable Williams placed the items in two
separate
bags, one in the front and the other at the rear of the
vehicle. The bag itself, as well as the docket with the search
warrants,
had simply disappeared into thin air after the appellants
were arrested. Even on Shumi’s own version he too had not been
shown any of the items allegedly seized until after arrival at the
police station.I have already dealt with the absence of an
explanation by the state as to why fingerprints were not taken from
the weapon found in the vehicle. The same applies to the
police
equipment seized.
Although the learned magistrate
acknowledged that the onus lay on the state to prove the guilt of
the appellants beyond a reasonable
doubt, she unfortunately appears
to have ignored all of the abovementioned inconsistencies and
improbabilities and instead, it
would seem, effectively placed the
onus on the appellants to prove their innocence beyond a reasonable
doubt. This is evident
from her analysis of their respective
versions as set out above.
However, close scrutiny of their
evidence shows that the appellants’ versions of the events of
that day corroborated each
other in all material respects. The
chronological detail provided is unlikely to have been possible to
recall so long after the
event unless it contained at least a
significant degree of the truth. There was also the unchallenged
evidence of appellant 2
that he was still wearing his sandals when
he was arrested, which is hardly indicative of a person who plans to
commit an armed
robbery; as well as his uncontested evidence that on
the day after the arrest he had been taken by the police to his
stranded
vehicle to check that it had indeed run out of petrol,
which the police found to be the case.
It is against this background that I
am unable to agree with the learned magistrate that the state had
proven beyond a reasonable
doubt that the only reasonable inference
to be drawn from the facts was that the appellants tacitly conspired
to commit an armed
robbery. As such they are entitled to the benefit
of the doubt and their convictions must be set aside.
_________________
J I CLOETE
NDITA J
I agree.
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T C NDITA