Ndlovu v The State (Criminal Appeal No. 16 of 2000 ) [2000] BWCA 23; [2000] 2 B.L.R. 158 (CA) (28 July 2000)

The appellant, December Ndlovu, was charged jointly with three others, who were not before the trial court, with armed robbery contrary to section 291, as read with section 292(2) of the Penal Code (Cap.08:01). He pleaded not guilty, but was nonetheless convicted for the offence on 21 June 1995, and sentenced to a period of 15 years' imprisonment.

The High Court entertained an appeal by the appellant against both conviction and sentence, and on 7 October 1998, confirmed his conviction, but reduced the sentence imposed, by reason of a misdirection on the part of the trial magistrate, to 10 years' imprisonment. By leave of the High Court, granted on 16 March 2000, the appellant once again appeals against both conviction confirmed, and sentence imposed, by the High Court.

The evidence on record against the appellant establishing his participation in the offence, though mainly circumstantial, was overwhelming, and by undesigned coincidence, point irresistibly to the guilt of the accused.

Between 11.45 a.m. and 12 p.m. on 5 August 1994, Mosikare Collen Tlhakanelo (PWl), a teller at the Standard Chartered Bank Industrial Agency in Selebi-Phikwe observed three men enter the bank premises. These gentlemen had visited the bank 45 minutes earlier, but had left without transacting any business. On their return one of them approached the security officer and held him up with a shotgun. As he was asking the security guard whether he had a gun or a whistle, another of the three, to his consternation, walked to PWl with a shotgun pointed at PWl. He stepped on the counter and jumped over the iron bars.

While the other two robbers were pushing and dragging customers to the toilet, the third produced a medium sized bag, blue in colour, and started stuffing it with money from the bank. Having pushed everyone in the bank, save PW1, into the toilet, the other two returned to PW1 and demanded more money. PW1 told them that that was all the money he had. After taking all the money available, the robbers took PW1, with a gun pointed at his head, to the toilet and asked for the key to the toilet so as to lock everyone in. Fortunately or unfortunately, the toilet had no key. The robbers warned them that anyone attempting to leave the toilet would be shot. With that they closed the door and left. The prejudice to the Bank resulting from this armed robbery was cash amounting to P58 393.00. Now commences the chain of circumstantial evidence linking the appellant with the offence.

In the course of the robbery the robbers communicated with each other and everyone in the bank in si-Ndebele and English languages, which is an indication of their tribal linkage.

PW1 testified that: In that confusion, not knowing what to do, he decided to open the toilet window. As he did so, he saw a light bluish Mazda Rustler, bearing the registration number BE 2754, speeding away from the scene with the three robbers at the back.

Mbizo Moffat PW6 added a further link to the chain. He said he knew the appellant very well and that he got to know the appellant through his brother, Danisa Ndlovu, with whom he was employed by a transport company called John Syllas Transport.

The compound of John Syllas Transport, where PW6 works together with Danisa Ndlovu, is adjacent to the bank that was robbed. PW6 said on 5 August 1994, whilst at his place of work, the appellant came in driving a Mazda Rustler that was silver blue in colour, and further that, the appellant was in the company of two other men. The appellant greeted PW6.

PW6 further testified that a short while after the appellant and his companions had left, he heard people shouting and screaming that Standard Chartered Bank, which as earlier mentioned is adjacent to John Syllas compound, had been robbed. He rushed towards the direction of the hue and cry and observed a silver blue Mazda Rustler, the very same one that he had seen the appellant driving into John Syllas compound a short while ago, moving away from the scene at a very high speed. Speeding away from the scene of the crime by itself, without much more, raises a suspicion, but no more than that.

Danisa Ndlovu (PW5), who is the elder brother of the appellant, said, among other things, that the appellant stays with him in the same yard at Selebi-Phikwe. He said he was the owner of the dark blue Mazda Rustler with the registration number BE 2754; that on 3 August 1994, he travelled to Zimbabwe leaving his vehicle behind in his yard in Selebi-Phikwe. Danisa testified that he also left behind his car keys with strict instructions that the appellant was not to touch the vehicle.

D.A.S.P. Moekejo PW9 said acting on information received in connection with the robbery, he and other Police Officers proceeded eastwards along Tobane Road. About 11 Kilometres from Botshabelo along the Tobane Road, they spotted a blue van approaching them. The vehicle was stopped. The appellant was the driver of the vehicle and it bore the registration number BE 2754. Upon interrogation the appellant informed them that there were three other Zimbabweans in the vehicle and that he had dropped them a short distance from where the Police met him. The appellant then took the Police to where he alleged he had dropped the Zimbabweans, but the Police could not find any spoor to track as it was a gravel road.

The picture which the above evidence, taken together, portrays, is this: the appellant was driving a bluish Mazda Rustler, bearing the registration number BE 2754, and in the company of some men, between

11 a.m. and 12 noon, at John Syllas Transport yard, which is adjacent to the building used by Standard Chartered Bank. A short while later, at about 11.45 a.m., a robbery was committed at Standard Chartered Bank. Members of the public raised a hue and cry. Amidst the shouting a bluish Mazda Rustler BE 2754 was seen speeding away from the scene with three men seated at the back. Those men were the very men who were seen robbing the bank. Upon information received police pursued the alleged vehicle. The vehicle was found returning to Selebi-Phikwe with the appellant at the steering wheel. The three men at the back had vanished into thin air. The police seized the vehicle.

Mr Tlagae submitted, rightly in my view, that on a conspectus of all this evidence, the conclusion is inescapable that the appellant did participate in the robbery and was well aware of what was going on. At the very least, he drove the robbers to the Bank and also facilitated their escape.

Circumstantial evidence is nothing more than drawing inferences from proven facts so as to complete the elements of guilt or establish innocence. A presumption may arise where from the proof of some fact the existence of another fact may naturally be inferred without further proof from the mere probability of its having occurred. And, as Bendle C.J commented in R v. SIBANDA AND OTHERS 1965(41 SA 241 fS.R., A.D.] at 246 B.

Generally speaking, when a large number of facts, taken together, point to the guilt of the accused, it is not necessary that each fact should be taken in isolation and its existence proved beyond a reasonable doubt; it is sufficient if there are reasonable grounds for taking these grounds into consideration and all the facts, taken together, prove the guilt of the accused beyond a reasonable doubt." See R v. De Villiers 1944 AD 493 at p. 508.

It has been observed that, circumstantial evidence may have the tendency of leading inexorably to a definite conclusion if there is no other explanation for their occurrence. No direct evidence is necessary for their probative value except things do not happen that way without reason or explanation. To demand direct evidence for their establishment is to discount the probative value of evidence that though not direct, does not only suggest, but points irresistibly to a guilty mind, or demands a conclusion of involvement in the commission of the offence. Rattan v. R. [1971] A.C. 378 P.C.

Proof of guilt beyond a reasonable doubt does not necessitate the proof of guilt beyond all doubt. Where the facts are starring you in the face, to indulge in extravagant excuses for their occurrence is to take an excursion in futile mental exercise.

The proved facts must be such that they exclude every reasonable inference from them save the one sought to be drawn. If they do not exclude other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct."

soon after the robbery the Mazda Rustler BE 2754 was observed departing the scene of the robbery at high speed, with the three robbers seated at the back, proceeding eastwards;
(a)

(d)

the police met and stopped the driver of Mazda Rustler BE 2754 returning to town on that road;
(f) the driver of Mazda Rustler BE 2754, when it was stopped was none other than the appellant;
(g)

I entertain no doubt that having regard to the cumulative effect of all the facts, the only reasonable inference to be drawn is that the appellant

"Khumbulane Nkomo who is my brother's friend left his car at Plot 4097 where I live...He left the car on 22/7/94. Eddie Nkomo the elder brother to Khumbulane came on 4/8/94 in the evening to my place at Old Stands...Eddie Nkomo told me that their friends brought a car from Botshabelo. Eddie Nkomo asked for a key to the car that my brother left and I gave it to him."

But at the trial, Danisa Ndlovu testified that Mazda Rustler BE 2754 was his car. His assertion of ownership of the vehicle was not challenged by the appellant. Mbatisa Madoma (PW7) also confirmed that he knew the appellant and also that he Mbatisa Madoma sold the Mazda Rustler to Danisa Ndlovu. It is already on record that when Danisa Ndlovu left for Zimbabwe he told the appellant not to touch his vehicle.

Why, one would ask, should the appellant fabricate a story that the vehicle belonged to Khumbulane Nkomo when he well knew that Danisa was the owner of the vehicle? He did so because he wanted to create the

impression that there was nothing sinister about giving the keys to the Mazda Rustler BE 2754 to Eddie Nkomo, who is the elder brother to Khumbulane Nkomo, in order to distance himself from the offence; for if Khumbulane Nkomo rather than Danisa Ndlovu was the owner of the vehicle, then handing the keys of the vehicle to Eddie, the elder brother of Khumbulane, is not susceptible of an adverse inference.

Lies told by an accused person in order to distance himself from an offence may, in such circumstances, be taken as a make-weight to strengthen the case for the prosecution. Thus in BROADHURST v. R. 1964 A.C. 441 at 457; cited with approval in Gofhamodimo v. The State 1984 B.L.R. 119; LORD DEVLIN said:

"In suitable cases, the Court may take into account as a factor that the accused has given false evidence - his untruthfulness is a factor which a trier of fact can properly take into account as strengthening the inference of guilt."

The appellant's explanation of how he came to be driving the vehicle that day was most improbable. He said Eddie Nkomo and his friends told him they were going to look for a man from whom one of them had bought a car at Botshabelo Location within Selebi-Phikwe and drove away in the car leaving the appellant behind. They returned later saying they were unable to locate the man. A few minutes later they set off again, this time accompanied by the appellant, and drove towards

Tobane Village still saying they were looking for the man they bought a car from. They stop in the bush and Eddie Nkomo and all his friends alight and instruct the appellant to drive the vehicle back to Selebi-Phikwe. The appellant complied without questioning why they had abandoned their search for the man they were looking for and had decided to alight in the bush. By his explanation, the appellant wished to create the impression that if BE 2754 was used in the commission of the offence, it was so used on the first occasion when Eddie Nkomo and friends said they were going to Botshabelo Location and he was not with them.

Recounting the evidence of PW6 which was not controverted by the appellant, that he saw the appellant driving the vehicle shortly before the robbery with three people at the back, and PWl's testimony that the registration number of the get-away vehicle was BE 2754, the appellant's explanation cannot reasonably possibly be true. It was an attempt to distance himself from the scene.

The appellant also called a witness Annah Mmusi (DW2) to come and corroborate his story in part, but this witness stated that she did not know why she had been called and further that she did not even know the appellant. This demonstrates the inherent falsity of the appellant's version of events.

I am satisfied that the prosecution adduced sufficient evidence to justify the inference of the appellant's complicity and involvement in the commission of the offence charged.

Botswana: Court of Appeal

Ndlovu v The State (Criminal Appeal No. 16 of 2000 ) [2000] BWCA 23; [2000] 2 B.L.R. 158 (CA) (28 July 2000)