Tebbutt JA:
Five accused were charged before Matsebula J in the High Court with five counts. The first three counts were allegations against all
the accused of armed robbery. The last two counts were against only two of the accused and concerned the possession of arms and ammunition.
It is not necessary for the purposes of this judgment to refer to the charges in any detail, save for the first count. I shall return
to it in due course. To understand what this judgment is about, it is, I think, necessary to give the names of the five men who appeared
before the High Court. Accused no.1, who is the 1st appellant in this Court, is PIUS SIMELANE; accused no.2, who is the 2nd appellant in this Court is MUZI NGWENYA; accused no.3 who is appellant no.3 in this Court is FIRSTBORN SHONGWE; accused no.4, who
is appellant no.4 in this Court is PETER MASHABA; accused no.5 was SAM MABUZA. Accused no.5 was acquitted by the trial court at the
end of the Crown case and no more need to be said about him in the context of a co-accused person. Of the other four, accused nos.
1, 2, and 3 were all found guilty on the three counts of armed robbery. Accused no.4 that is 4th Appellant was in respect of count 1 found guilty of receiving stolen property knowing it to be stolen and not guilty of any of the
other counts.
All four appellants came on appeal to this Court against both their convictions and sentences. In respect of the first three, they
were each sentenced to five years’ imprisonment on each of the three counts of armed robbery. NGWENYA and SHONGWE were found
guilty on the other counts and received sentences which I need not set out here but which were ordered to run concurrently with the
three sentences on counts 1, 2, and 3.
The appeals of the four which first came before this Court on 10th June 1999 but for reasons which are not germane to this judgment were postponed to this session of this Court. The Court was, however,
requested to give an interpretation of the sentences passed by the trial court in respect of counts 1, 2, and 3 and to rule whether
they were to run consecutively or concurrently. In a judgment delivered on 10th June 1999 the Court found that they were to run concurrently. The importance of all this is that appellants 1, 2 and 3 have now all
served their sentences and have been released from custody. Despite this they wish to proceed with their appeals against their convictions.
Again and once more for reasons which I need not set out here – their appeals have had to be postponed to the next session
of this Court in 2000. Appellant no.4 to whom for convenience I shall refer to as “the appellant” however, has requested
that his appeal be heard and with the Crown agreeing thereto, this Court acceded to his request.
He was, as stated above, found guilty in respect of count 1 in the indictment in the trial court of receiving stolen property knowing
it to be stolen. He was sentenced to a fine of E3 000 or, in default of payment, 18 months’ imprisonment. His appeal is against
both conviction and sentence.
The aforesaid count 1 is one of armed robbery. In brief it charged the four appellants of robbing one Prince Thumbumuzi Dlamini and
one Bruce David on 4th January 1996, by threatening to shoot them, of a Mercedes Benz motor car and a number of other articles which were in the car. On
the evidence before the trial court the property that the appellant was apparently found guilty of receiving were six CD cassettes
in a black case. It is to be noted that none of the articles referred to in count 1 include six CD cassettes in a black case. It
is true that in his evidence Prince Thumbumuzi identified six CD cassettes in a black case as belonging to him but they do not form
part of the charge on count 1 and that count was never amended to include them. However, they did form part of the offence which
was alleged against the accused in count 2. I shall assume, however, for the purposes of this judgment that they were part of the
charge of the charge on count 1. Moreover, it would not appear that the Crown’s failure to amend the charge sheet to include
them resulted in any prejudice to the appellant.
The Crown’s case against the appellant was based largely on the evidence of one of the investigating officers, Acting Superintendent
K. Ndlangamandla. He said that the appellant was arrested on 17th January 1996 and detained at Lobamba Police Station. His evidence goes on as follows:
“At Lobamba he was then cautioned that he was a suspect in an armed robbery, of a Mercedes Benz, registration RTB 166 T at Mantenga
Area and that he was not obliged to say anything but whatever he would say would be taken down into writing and may be used in evidence
during his trial. And, he was then interrogated My Lord. On the 18th January 1996, the accused led me to his parental home at Lobamba area.
JUDGE:
Yes?
PW11:
There he gave me 6 CD cassettes in a black case.”
Ndlangamandla was not questioned at all by the appellant’s counsel. Ndlangamandla also did not say what the interrogation of
the appellant consisted of, that is what he was asked and what his replies to any questions were.
Other aspects of the Crown evidence in which appellant is referred to, were given by one Gcina Magagula (PW17 at the trial). In brief
his evidence was that he was a driver for appellant and that in January 1996 appellant was with certain young men, including a white
man known as Tony, who had tried unsuccessfully to get a motor vehicle at a place called Ngogola started. Eventually accused no.1
i.e. Pius Simelane was traced and he and the man Tony had got the vehicle to start. He also said he had seen the appellant with the
keys with an emblem of a Mercedes Benz in his possession. No store was apparently put on this by the trial court nor could it have
been as it was obviously completely unreliable, Magagula having said that he saw the keys in the rear view mirror of a vehicle he
was driving at a time which, on his own admission, it was so dark that he did not recognise one of the passengers in the rear of
the vehicle.
Appellant in his evidence admitted giving the CD cassettes to the investigating officer. His explanation as to how he came to be in
possession of them was the following. He said he was a taxi owner and was hired by one Vusi Mamba and three other men to drive them
from Lomahasha to Manzini. He charged them E300 for the trip. Magagula accompanied them. He wanted to buy shoes at Manzini. Near
Manzini he was instructed to turn off at Ngogola and go to Sam Mabuza’s house, where the three men and Vusi Mamba went into
the garage and tried to start a motor vehicle there. They then went on to Manzini, where Magagula bought some shoes. After having
a drink at the George Hotel in Manzini, Vusi Mamba’s companions left them, but Mamba asked him to take him back to Sam Mabuza’s
house at Ngogola where Mamba opened the garage. He then saw a Mercedes Benz car parked there which Mamba tried unsuccessfully to
start. The latter then asked appellant to take him back to Manzini to look for his companions. Appellant told him that he would need
more money to do so and a fee of E200 was agreed upon. At Manzini they met the man Tony who was taken to Ngogola to try to start
the car. He also could not do so. Mamba then asked Tony to take him back to Manzini to find his companions. Mamba later returned
with them including this time, a slim light skinned man who succeeded in starting the Mercedes. At that stage, Mamba then said he
could not pay appellant the agreed E200 but would do so the following month. Appellant said he got annoyed with Mamba who then gave
him the CD case and cassettes and told him to hold on to them until he, Mamba had paid him. It was while he had them in his possession
that, after his arrest, he handed them over to the investigating officer. Appellant said he did not know that the Mercedes was a
stolen vehicle nor that the CD cassettes came from the vehicle or that they were stolen property. Under cross-examination he said
he did not know accused no.1 i.e. Pius Simelane and had not seen him on the day his taxi was hired.
The crucial issue as far as appellant is concerned is whether his explanation can reasonably possibly be true or, put differently,
did the Crown succeed in proving that it was false beyond reasonable doubt. Of appellant’s evidence, the trial court said this
“When accused no.4 gave evidence he basically corroborates that of PW16 but he still does not say that the person who was brought by
Tony was Pius accused no.1. Accused no.4 does not mention accused no.1 at all. Surely accused no.1 was there at Ngogola, the evidence
has established this beyond doubt. The evidence of accused no.4 in avoiding this creates suspicion and the court would be entitled
to draw an inference that he was aware of the activities, which was taking place at the homestead in Ngogola. He was not an innocent
taximan who had taken these people there because they had asked him.”
While the circumstances are indeed suspicious, this does not suffice to discharge the onus of proving the appellant’s guilt
beyond reasonable doubt.
An aspect to which the trial court did not advert was that under cross-examination Magagula conceded that Vusi Mamba was present with
them on the occasion in question. This is a factor which, which, while not decisive as far as appellant’s version is concerned,
is certainly one corroborative of that version.
Mrs Mhlanga, who appeared for the Crown before us, submitted that appellant’s version was demonstrably false for a number of
reasons. Firstly, she said that version had not been put to any of the Crown witnesses, citing the well-known case of S V P 1974(1) SA581 in support of her submission that it was incumbent on the defence of the trial to have done so. The difficulty that I have with this
submission is that the arrangement between appellant and Vusi Mamba as to the CD cassettes was, if it did exist, obviously a private
one between them. No purpose would have been served by putting it to any of the Crown witnesses, including Magagula, as Mrs. Mhlanga
contended should have been done, as none of them would have known anything about it. Mrs. Mhlanga submitted that if the appellant’s
version was true he would at least have told the investigating officer about it when he handed over the cassettes to the latter.
Again two difficulties stand in the way of this submission. In the first place, appellant was given the customary warning by the
investigating officer that he was not obliged to say anything but if he did it would be taken down in writing and could be used in
evidence against him. It has been held in South Africa that although silence by an accused, when one would have expected an innocent
man to have spoken up, may be indicative of guilt, it is settled that if an accused has been arrested and given the usual caution
that he need not say anything, his failure to deny the charge or to indicate the nature of his defence, cannot be used as an item
of evidence tending to show guilt (see HOFFMAN AND ZEFFERT: SOUTH AFRICAN LAW OF EVIDENCE 4th ED page 177; R V PATEL 1946AD 903; R V B 1960(2) SA424(T); S C MARITZ 1974(1) SA266(NC). I agree with this approach. In the second place, the investigating officer said that after he cautioned the appellant “he was then interrogated”. As already stated, there is no evidence as to what was said at that interrogation and in particular what was said about the CD cassettes.
On both these grounds, a failure to put appellant’s version to the investigating officer cannot give rise to any adverse inferences
against the appellant.
Mrs. Mhlanga’s second reason for submitting that the appellant’s story was false is that he was present when the admittedly
stolen Mercedes Benz was started and used. As stated, appellant denied any knowledge of the fact that it was stolen and there is
no evidence, save for his presence during the various incidents involving the car, to suggest that he had such knowledge and certainly
nothing to establish that fact beyond reasonable doubt. Mrs. Mhlanga submitted, however, that the fact that he was present during
the incidents mentioned should be coupled with his denial of having known or seen Pius Simelane during then when on all the other
evidence the latter was present. This showed, she argued, not only that appellant was a mendacious witness but that his lying on
this point supported an inference of guilty knowledge on his part. It is well-recognised that accused persons often lie in order
to try and avoid any complicity in the crime with which they are charged (see JAMLUDI MKHWANAZI V REX, APPEAL COURT CASE NO.4/96 UNREPORTED at page 12 in a judgment delivered on 1st October 1998) and as stated by my brother Leon JA, as he then was, in JAMES MASILELA V KING, APPEAL CASE NO.3/89:
“lies by an accused person are but makeweights and should not be allowed to loom too large and replace essential evidence. At the end
of the day the question in a criminal case is not whether the evidence as a whole is consistent with the guilt of an accused person
but whether it is inconsistent with his possible innocence….”
Appellant knew that he was being charged with a robbery in which Pius Simelane was allegedly implicated. If he lied about knowing
the latter in order to try and avoid complicity in that crime, his lie cannot be decisive of his guilt. As states by Isaacs JA in
MNCUBE & ANOTHER VS THE KING 1982-1986 SLR 59 at 65G-H. The mere fact that there may have been lies in accused’s evidence is not sufficient convict him if the Crown evidence
standing alone does not prove his guilt beyond a reasonable doubt. If evidence of an accused is so incredible as not to be possible
to believe it would be a factor to be taken into consideration in assessing his innocence and guilt but I do not thing the evidence
of the accused in this case is so incredible even though there are portions of it that are possibly false. The appellant’s
lying about knowing Pius Simelane cannot give rise to the only possible inference that he knew the Mercedes was stolen, a fact which
the trial court apparently appreciated by finding him guilty only of receiving the CD cassettes. Nor can it give rise to the only
possible inference that he knew (a) that the cassettes came from the Mercedes or (b) that they were stolen property. Mrs. Mhlanga
further contended that appellant’s explanation came after the close of the Crown case and at a stage when the Crown could not
refute it. The Crown could, however, have applied to the trial court to call Vusi Mamba in terms of Section 199 of the CRIMINAL PROCEDURE AND EVIDENCE ACT even after the appellant’s evidence. It is common cause that Mamba was a Crown witness, who was not called during the Crown
case. He could therefore have been called by the court. That he did not testify cannot be a reason to reject the appellant’s
version.
Save what the trial court said about the appellant as set out above and save for the fact that certain inconsequential matters were
not put to Magagula e.g. that he went to Manzini to buy shoes there, the trial court made no findings on his credibility. A reading
of the record of his evidence however, does not create the impression of his being generally an untruthful witness, especially when
regard is had to his responses to questions under cross-examination.
Taking all factors into account we are unable to find, as the trial court apparently did, that his explanation could not be reasonably
possibly true. I say “apparently” advisedly as the trial court made no specific finding as to that effect.
It follows that in our view 4th appellant was incorrectly convicted. His appeal therefore succeeds and his conviction and sentence are set aside.
P.H. TEBBUTT JA
I agree
:
R.N. LEON JP
I agree
:
J.H. STEYN JA
Delivered on the 3rd day of December 1999.
