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IN THE NORTH GAUTENG HIGH COURT, PRETORIA

(REPUBLIC OF SOUTH AFRICA)

CASE NO: A 79/2013

DATE: 10 DECEMBER 2013

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

in the matter between:

THOLINHLANHLA MDLALOSE..............................................................................FIRST APPELLANT

SPHAMANDLA SONO MDLALASE.....................................................................SECOND APPELLANT

BHEKIMUZI TWALA.................................................................................................THIRD APPELLANT

and

THE STATE

Judgment delivered: 12 December 2013

JUDGMENT

A VAN NIEKERK AJ

[1] The appellants appeared in the regional court Heidelberg on charges of robbery with Aggravating circumstances (count 1), murder (count 2), unlawful possession of a firearm (count 3), and unlawful possession of ammunition (count 4). The first appellant was convicted on all four counts and sentenced to 18 years’ imprisonment on count 1, life imprisonment on count 2, and two years’ imprisonment on counts 3 and 4. The second and third appellants were convicted on counts 1, 3 and 4 and sentenced to 18 years’ imprisonment on count 1, and two years' imprisonment on counts 3 and 4.

[2] Each of the appellants appeals against his respective conviction and sentence, with the leave of the trial court.

[3] The charges against the appellants have their roots in an armed robbery committed on the evening of 10 July 2009, when a Mr. Den Dulk, a resident of Vaal Marina, was robbed at gunpoint after returning home. On 22 June 2011, Den Dulk , who was left a paraplegic after having been shot in the mouth by one of his assailants, died as a result of the injury that he sustained during the attack. The iappellants denied any involvement in the attack, although they admitted posseission of the stolen goods, which they claimed had been left with them on the ej/ening in question by a Peter Mosia.

[4] In a series of admissions recorded in terms of s 220 of the Criminal Procedure Act, 51 of 1977, it was admitted that Den Dulk (the deceased) was attacked and robbed on 10 July 2009, that a black wallet and its contents that were the property of the deceased were recovered at the home of the second appellant on 20 July 2009, that a paintball gun stolen from the deceased on 10 July 2009 was recovered in a shack in the Mamello informal settlement where it had been left by the third appellant, and that the wallet, an FNB credit and bank card, a driver’s licence, R 1600 in cash and a Zeus paintball gun were the property of the deceased. Also admitted as correct were the contents of a sworn statement deposed to by the deceased, a document that assumed some significance during the trial.

[5] The appellants contend that in respect of both the convictions of robbery with aggravating circumstances and the first appellant's conviction of murder, the Statej failed to establish the guilt of the appellants beyond a reasonable doubt.

[6] The approach to be adopted is that set out by Nugent JA in S v Van der Meyden 1999 (1) SACR 447 (W) at 448F-H:

“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 expression of the same test when viewed from opposite perspectives.’

At 449I-B he stated that:

'The proper test is that an accused is bound to be convicted if the evidence establishes his guilt beyond reasonable doubt, and the logical corollary is that he must be acquitted if it is reasonably possible that he might be innocent. The process of reasoning which is appropriate to the application of that test in any particular case will depend on the nature of the evidence which the court has before it. What must be borne in mind, however, is that the conclusion which is reached (whether it be to convict or to acquit) must account for all the evidence. Some of the evidence might be found to be false; some of it might be found to be unreliable; and some of it might be found to be only possibly false or unreliable; but none of it may simply be ignored.’

[7] I deal first with the conviction of all three appellants on the charge of robbery with aggravating circumstances. The three appellants testified in their own defence and called no witnesses. They denied that they were at the scene of the robbery and that they had committed the offences for which they were charged. It is clear from the deceased’s statement that he was unable to identify any of the appellants as the persons who robbed and attacked him. He stated only that he was approached by three African males, all wearing balaclavas and that a firearm was pointed at him. He gave them his wallet after which they demanded the key to the safe. The wallet contained some R 4800 in cash, a credit card, petrd-card, driver’s licence and other papers.

[8] The appellants’ conviction was based on circumstantial evidence, there being no direct evidence linking any of the appellants to the commission of the offence. The convictions were principally based on the fact that items stolen from the deceased had been in the possession of the appellants. On their own version, the appellants had been in one another’s company on the night of the robbery, and n possession of the goods stolen from the deceased. The trial court held that given its finding that there was no reasonable possibility of truth in the appellants’ version as to how they came to be in possession of the goods, coupled with the formal admissions made by them, it was satisfied beyond reasonable doubt that they were guilty of having committed the robbery in circumstances where they were in possession of the firearm and ammunition that are the subject of charges 3 and 4 respectively.

[9] Counsel for the appellants contended that to sustain a conviction, it was necessary that the inference sought to be drawn by the State was consistent with all the facts, and that the proved facts exclude every reasonable inference from them save the one sought to be drawn (R v Blom 1939 AD 188). In particular, it was submitted that the trial court erred in concluding that the only reasonable inference to be drawn is that the appellants are guilty of robbery with aggravating circumstances because the deceased’s wallet and paintball gun were recovered in the home of the second appellant.

[10] This submission overlooks the totality of the evidence before the trial court. Given the fact that the appellants admitted having handled the stolen property on the same evening as the robbery and given their admissions as to how the property was concealed until pointed out to the police, the doctrine of recently stolen property was legitimately invoked. But the fact of possession is not in and of itself sufficient to sustain the charge of robbery - the court must necessarily have regard to the inherent probabilities, as the trial court did, taking into account all of the evidence. (See S v Van der Meyden 1999 (2) SA 79 (W), S v Van Aswegen 2001 (2) SACR 97 (SCA) and Zwane and another v The State [2013] ZASCA 165 (27 November 2013).

[11] In Zwane & another v The State {supra) the Supreme Court of Appeal recently summarised the law on recent possession. The court stated:

‘[11] The inference that a person found to be in possession of recently stolen property is the thief or one of the thieves (or, in this instance, one of the robbers) can only be drawn as the only reasonable inference where the nature of the goods stolen and the time lapse between the theft (or robbery) and the discovery of the goods in that person’s possession lend themselves to such a finding (see S v Farrow 1973 (1) SA 603 (A) at 604B-E; S v Skweyiya [1984] ZASCA 96; 1984 (4) SA 712 (A) at 715 C-D; S v Mavinini 2009 (1) SACR 523 (SCA) para 6). The crucial question would be whether the items concerned are of the type which can easily and quickly be disposed of, in which event anything beyond a relatively short time lapse cannot be said to be recently stolen (see Skweyiya at 715E). ’

[12] In the present instance, as I have indicated, it is not disputed that the wallet, its contents and the paintball gun were part of the spoils of the robbery, that they were in the possession of the appellants on the night of the robbery and that they were found in the locations admitted and pointed out by the appellants. The version proffered by the appellants, in short, was that these items were placed in the second appellant’s home by Mosia, who left a plastic bag containing the goods in the possession of the appellants while he went to a shebeen in an area known as Number One. The appellants opened the bag, which contained two weapons, a wallet and a knife. The appellants later decided to go on what transpired to be an unsuccessful search for Mosia. The next morning, the appellants admit that the three of them took the pistol and a paintball gun to a place referred to as ‘die berg’, where they were concealed. The appellants say that they concealed the weapons because the appellants were anxious about storing weapons at their homes and being found in possession of them. The wallet and its contents and the knife were left at the home of the second appellant. After the arrest of the first and second appellants, the third appellant admitted that he recovered the paint ball gun from its hiding place and left it at the home of one Tshepo, where it was later found by the SAPS after the third appellant’s arrest.

[13] Josephine Ngema, who described herself as having a relationship with the first appellant testified that at the time of the robbery, she shared a house with the first appellant. She stated that on the night of the robbery, at about 03h00, the first Appellant returned home, saying that he had been at Number One, a local shebeen. He asked whether the second and third appellants had been to the house. She replied in the negative, after which the first appellant telephoned them. Both the second and third appellants later arrived at the house. Ngema testified further that when the first appellant arrived at the house, he had seemed frightened. None of this evidence was disputed in cross-examination. Ngema stated further that she noticed what appeared to be blood on the first appellants’ trousers. The first appellant later burnt the trousers. After the appellants had been arrested, the second appellant requested her to recover cash from under a carpet in his home, an amount of R 1200.00. In cross-examination, Ngema admitted that she had not previously told the police about the blood on the first appellant’s trousers or his having later burnt them.

[14] Mosia’s evidence was that during 2003, his uncle had given him a 9mm pistol to store. The uncle died in 2004. In 2008, Mosia testified that he gave the weapon to thle first appellant, who undertook to keep it on his behalf. In 2009, the first appéllant told him that the SAPS had confiscated the pistol after he (the first appellant) and his vehicle had been searched in a road block. As compensation, the first appellant gave Mosia R 400 and a cell phone. During July 2009, the police, in the company of the first appellant (who at that stage was under arrest) visited Mosia, looking for the pistol. It was then that the first appellant admitted to having lied about the pistol being confiscated. The trial court recorded that Mosia was a confident and candid witness, who readily disclosed his unlawful possession of the pisto! before it was handed to the first appellant.

[15] The appellants own evidence, coupled with the formal admissions made by them, placed them in one another’s company and in possession of the stolen goods immediately after the robbery. To the extent that the appellants rely on the fact that Mosia was a single witness, the trial court found that approached with the necessary caution, his evidence was reliable and against that, the appellants’ evidence that Mosia had placed them in possession of the goods is so improbable that it cannot reasonably possibly be true.

[16] The nature of corroboration required for purposes of the cautionary rule is corroboration implicating the accused in the commission of the crime and not merely corroboration in a material respect or respects. In the present instance, the evidence of Mosia and Josephine Ngema renders the evidence of the appellants less probable on the issue of whether they were the deceased’s assa lants, and implicates them in the robbery. It follows that the appellants’ denial of any participation in the robbery was correctly rejected, and that the appellants were correctly convicted of charges one, three and four.

[17] Turning next to the first appellant’s conviction of murder, it is not disputed that the weapon concealed could not be linked to scene of the crime. The affidavit of the ballistics expert admitted into evidence states only that it cannot be determined whether the bullet fired from the 9mm pistol found in possession of the appellants was jor was not fired from that pistol. The firearm recovered from the scene (a revolver) was found to be defective due to excessive rust and not able to discharge ammunition. There was no evidence to link this weapon to any of the appellants.

[18] It is not disputed that the first appellant was not placed on the scene of the crime. The record discloses the following exchange between the court and the parties’ representatives:

“HOF: Mnr Venter hier is nou net iets wat my ontgaan het en wou dit eintlik tydens die staatsaak op rekord plaas en dit was die lengtes van die beskuldigdes sal u omgee as ek dit nou doen. Is dit vir u ‘n probleem?

ONDERVRAGING DEUR MNR VENTER: Ek het nie ‘n probleem daarmee nie Agbare.

HOF: Okay ekskuus tog kan u net weer vir my hier langs die beskuldigdes staan ek wil net die lengte op rekord plaas en dank an u sê of u saamstem of nie.

TOLK: In die beskuldigde bank?

HOF: Ja. Goed ek is nou nie ‘n kenner van lengtes nie, maar ek wil dit miskien soos volg beskryf dat die fangste beskuldigde is beskuldigde 2. Hy is ongeveer as ek sou sê kan u net die kop optel asseblief. Die verskil omtrent in lengte is om en by ‘n sentimeter dit is nie veel nie met ander woorde en dan die kortste person is beskuiidigde 1 en hy is sodanig kort dat sy boonste gedeelte van sy kop in lyn is met die neus brug van die tweede kortste person synde beskuldigde 3. Hy kan selfs dalk ‘n bietjie korter wees want daar is nou van heirdie Afro haarstyl maar dit is basies dan hoe ek dit observer. Is ek verkeerd of is daar iemand wat dit wil regstel of iets beter byvoeg of wat ook al vir die verdediging?

MNR VENTER: Edeiagbare nee soos ek dit sien is die hof se observasie 100 persent reg.

HOF: En vir die staat.

AANKLAER: Dieselfde Edeiagbare.

HOF: Goed dankie meneer u kan maar terugstaan. Net so oomblikkie. Daar is hy baie dankie u kan dan maar sit mnr Mdlalose daar in die getuiebank. Die verdediging kan maar voortgaan.'’

[19] The basis of the first appellant’s conviction is reflected in the following passage from the judgment of the trial court:

“Wat aanklag 2 die aanklag van moord betref, meld die formeel erkende getuienis en ek haal aan “while I was standing next to the bar outside my house I saw a short guy one of the suspects pointing me with a firearm a few seconds after a few seconds the said short guy shot me once through my mouth”.

In afwesigheid van enige ander getuienis, is die enigste afleiding wat gemaak kan word dat die kort person een van die drie vardagtes was en dat dit inderdaad beskuldige 1 voor die hof is. Beskuldige 1 is merkbaar korter as sy mede beskuldigdes. In sy eie verhaal was hy ‘n besluitnemer. Dit verduidelik ook sy verskriktheid kort na die voorval en die vars rooi vlek op sy broek an sy ywer om dit te verbrand.

Die staat het bo redelik twyfel bewys dat dit deskuldigde 1 is wat die skoot afgevuur het. Die aard van die handeling, die omstandighede waaronder dit gepleeg is en die plasing van die besering op die oorledend regverdig slegs een afieiding en dit is dat beskuldige 1 met doelbewuste voorbedagte rade sy slagoffer gedood het.

Daar is geen aanduiding dat beskuldigde 2 en 3 enige wyse betrokke was of meegedoen het tot die moord nie. Gevolglik na oorweging van al die getuienis bevind die hof soos volg. Beskuldigde 1 word SKULDfG BEVIND AAN AL VIER AANKLAGTES.”

[20] The affidavit deposed to by the deceased records the following:

‘[4] When I got outside my car walking towards my house, I was approached by three unknown African males. One of the said African male was tall than the other two. Their faces were covered with balaclavas. The said three African males demanded money from me pointing me with a firearm....

[8] While I was standing next to the bar outside my house I saw a short guy one of the suspect point me with a firearm. After few seconds the said short guy shot me once through my mouth...’ (Sic).

[21] The trial court convicted the first appellant of murder, it would seem, primarily on the basis that he was the shortest of the three accused. But what is apparent from 'the wording of the affidavit is that the assailant who shot the deceased is not identified as the shortest of three; it states no more than that one of the three assajlants was taller than the other two, and that ‘a short guy’ pointed the firearm and faulted the trigger. This in itself is inadequate to identify the first appellant as the person who fired the shot at the deceased. It cannot be said, absent any other) incriminating evidence, that there is adequate proof that the first appellant was the one who shot the deceased and ultimately caused his death. There is no otheii incriminating evidence - in particular, the ballistics report does not link the firearm that was in the first appellant’s possession to the scene of the crime. In these circumstances, the evidence against the first appellant is not such so as to exclude any reasonable doubt as to his guilt. The first appellant’s conviction and sentence on the count of murder accordingly stand to be set aside.

[22] Regarding the appeal against the sentences imposed on counts one, three and four, punishment is pre-eminently a matter for the discretion of the trial court. The cour: took into account the fact that the appellants had worn balaclavas during the attack, that arms had been used, the nature of the offence, and its prevalence in the area. The trial court further took into account that the appe llants were first offenders, that they had been employed and that they had been in custody since 2009. In sentencing the appellants to 18 years’ imprisonment the court expressed the view that there were no compelling circumstances that would justify a sentence less than the prescribed minimum.

[23] A sentence imposed by a lower court should be altered only if there was some irregularity present, the trial court misdirected itself in relation to the imposition of sentence or the sentence imposed could be described as shockingly inappropriate. An appeal court does not enjoy carte blanche to interfere with sentences that have been properly imposed. In the present instance, the trial court did not misdirect itself in relation to sentence, nor is the sentence that it imposed shockingly inappropriate. For that reason, the appeal against sentence must fail.

I propose the following order:

1. The first appellant’s appeal succeeds in so far as his conviction and sentence on count 2 are set aside.

2. The conviction and sentence on counts 1, 3 and 4 in respect of all three appellants is confirmed.

ANDRE VAN NIEKERK

ACTING JUDGE OF THE HIGH COURT

I concur.

C CAMBANIS

ACTING JUDGE OF THE HIGH COURT

APPEARANCES

For the appellants: Mr MB Kgagara, Pretoria Justice Centre

For the State: Adv H Creighton, NPA Pretoria

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