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Jali v S (CA&R 16/2012) [2013] ZAECGHC 50 (31 May 2013)

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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION – GRAHAMSTOWN



CA&R 16/2012

Heard: 29 May 2013

Delivered: 31 May 2013



In the matter between:



WELLINGTON JALI ...........................................................................APPELLANT





and





THE STATE ....................................................................................RESPONDENT



______________________________________________________

APPEAL JUDGMENT

______________________________________________________

MAGEZA AJ

[1] Appellant herein, a 40 year old male was (on 17 November 2010) charged with robbery with aggravating circumstances and in addition, he was charged with the unlawful possession of a firearm. These offences were said to have taken place on the 27 August 2008. He pleaded not guilty and denied knowledge of and/or participating in the alleged robbery. The trial having run its course, he was found guilty on the robbery charge and acquitted in respect of the unlawful possession of a fire-arm. From the evidence presented the robbery took place on 27 August 2008 and 53 cigarette boxes valued at R170 000.00 were removed from the premises in two small commercial trucks, one a white Chana model and the other a small Ford Bantam.



[2] The first witness Thulani Msweli was an employee of Grindrod situate at Heugh Street in Walmer and testified to the effect that he arrived at work at 06h00 that morning and having entered the premises, he saw two young men who were followed by a third older person who wore a cap. This person had a firearm with which he held him up. He worked together with his brother and both of them were tied up with shoelaces. The commercial trucks were driven into the premises and cigarette boxes were loaded onto them by the robbers. These robbers also took their mobile phones and left the premises. Later a lady client arrived and called their branch manager. He did not note and could not recall the registration numbers of the vehicles and he saw no stickers or logos thereon. He could not identify any one of the assailants and could not identify the appellant. In cross-examination he said the person who wore a cap was much taller than the appellant and was certainly not the appellant.



[3] The second witness Matthys Meades knew the appellant as his co-employee for about two years as a site foreman. Appellant had a white Chana Bakkie assigned to him and kept the vehicle at his home in Motherwell and reported for duty each morning after picking up labourers working at the Coega site. The vehicle had several Rand Civils decals (logos) prominently displayed on the sides, front and at the back thereof.



[4] He was shown a video recording of the robbery taken at the Grindrod site where the robbery had occurred. He identified the vehicle thereon as the Rand Civils’ owned vehicle and as the specific vehicle allocated to appellant. This he could deduce by reason of the fact the signs were of specific sizes and had been placed in specific parts of the vehicle. The vehicle according to him had six uniquely positioned stickers, two fleet numbers on the right and left side and a licence-disc placed lower down the windscreen. He proceeded to state that from the photographs, there were smudges like mud rubbed to conceal the signs. The witness also handed up photos of a vehicle with signage and compared these with the smudges on the vehicle utilized in the robbery to show similarities of where the signs were inserted. He said this was the only Chana vehicle the company owned at the time. He identified bull bars and extended bumpers which he said were custom made and installed by the company subsequent to acquiring the vehicle. The licence disk was according to him also uniquely positioned on the windscreen, he said:



the position of the licence disc was on the left hand side of the vehicle and also like a three quarter way down, which is what I can see here and ours was in exactly that same position as well, so co-incidentally, not only the stickers, the bumpers, but the licence disc was also, from what I could see, in exactly the same position as well.”

The vehicle did not have a tracker or tachometer.



[5] Cross-examined by Mr Ngqakayi for appellant as to how it was possible for him to estimate the dimensions of the allegedly covered logos on the vehicles accurately from the video footage, he said that the vehicle signage was ‘unique’ to Rand Civils in the manner previously described. He admitted that in saying so he relied almost entirely on the positioning of the signage on the vehicle. He agreed that there were many vehicles from other towns of the same make and model but this one according to him was unique because of the positioning of its signage. The witness admitted that although he worked with appellant, he saw no-one on the video taken at the scene of the robbery who was familiar or resembled the appellant.



[6] Mr Ngqakayi questioned the witness on the actual work done by appellant at Rand Civils at the time. He explained that he ferried labourers to and from work and that the vehicle remained in his possession overnight at Motherwell Township where the appellant lived. He further questioned him on the exact time in the mornings when appellant was required to commence work and the Magistrate intervened and made the following further uninvited but telling remark:



Obviously the witness can’t comment on his habits of when comings and goings, that is something he will have to testify about.”



[7] The defence asked how he could be certain that this vehicle, being a common utility vehicle owned by many people all over the country, was even a Port Elizabeth vehicle and not branded at a place other than Port Elizabeth. He said the signs were unique.

Mr Meades did not dispute that appellant had arrived in time (07h20) for work on the day the robbery took place. It was put to the witness that appellant had to pick up employees each morning from different pick up points within Motherwell from 06h30 to get to work at 07h15. It was furthermore put to him that if he had been at the robbery precinct in Walmer, he could not have been able to get involved in a hold up at 06h00, load vast quantities of cigarette boxes, go back to some other place to offload these, ensure the vehicle is cleaned, pick up the workers and still be able to make the usual time for work at 07h15. In this instance the Magistrate again commented:



That is for the Court to decide eventually, it is no use to detain this witness with that question.”



[7] The State closed its case and the defence moved an application for the discharge of the appellant in terms of section 174 of the Criminal Procedure Act 51 of 1977, on the basis that the only available evidence being that of the insignia referred to by Meades and nothing more and the first state witness Thulani Msweli having testified that none of the persons who held him up answered to the description of the appellant, no prima facie case had been made out by the prosecution. This application was refused.



[8] In his defence, appellant testified that he left his home that morning to go to work as usual and picked up the labourers from different areas and arrived at work at 07h25 am. He first heard of the robbery on 19 June 2009, almost a year later when the police approached him at work. They took him to his home, searched his home but found none of the items suspected of being stolen. He admitted that there was only one Chana truck at Rand Civils at the time. Cross-examined by the State, he admitted that the vehicle had prominent markings and signage on its front, sides and back of the vehicle but denied that the vehicle could have been elsewhere other than at his house at that time of the robbery. It was put to him that the vehicle was seen leaving the Walmer premises where the robbery took place at twelve minutes past six and that the vehicle could well have gone to Motherwell where he lived, off-loaded items and still enabled him enough time to pick up labourers and to thereafter report in time at 07h30 am for work at Coega where he was working on site at the time. He disagreed and said such travelling would not be possible in a short period of time given also the distances and slow speed of a fully loaded vehicle. He said the markings on the side appear to be bigger than those of Rand Civils and some other markings on the vehicle were not decipherable. He denied that he ever borrowed the keys of the vehicle to anyone.



[9] The Magistrate thereafter questioned the appellant at length on the size and positioning of the logos on the vehicle. Appellant disputed the size pointing out that because of the marks thereon, these appeared bigger than those of Rand Civils. To this the Magistrate agreed as commented:



Obviously it has to be bigger. If it has to be concealed it has to be big enough to conceal it but there is a Rand Civils logo in that position there is a covered up spot on the video.”

He was further asked whether he had always kept the key with him and he said he always kept the key in the house overnight and his twenty year old son lived in an outside room and could not have taken the key. The Magistrate went to some length in questioning him on where he starts in the morning, how many meeting-points he uses to pick up labourers and appellant pointed out that delaying traffic conditions would have included, at the time, on-going roadworks taking place at Truck-Inn towards Coega.



[10] The defence called a witness, one Thamsanqa Mxoma with whom appellant was previously employed at Rand Civils. This witness testified that he lived around the corner from appellant’s home and each morning, he would leave his home and proceed to that of appellant and together commence the day by picking up the labourers for duty. They always made three different stops each day and arrived at work about 07h25, they were never late because their site manager was strict. Nothing of interest came out of his brief cross-examination.



[11] The Magistrate prefaced his examination of the available evidence in his summing up by pointing out that the issues to be examined were firstly whether the State had succeeded in showing beyond reasonable doubt that the vehicle on the scene was the Rand Civils vehicle in the custody of appellant and secondly, whether it could be said to have been proved that accused was in fact involved in the commission of the robbery.



[12] In his judgment, the Magistrate placed full store and reliance on the evidence of Meades. He found him to be an impressive witness who had emphatically identified the vehicle as that of Rand Civils in the custody of appellant. He quoted portions of the record as examples of the absolute certainty with which Meades had articulated and identified the vehicle as the one that had been in appellant’s custody at the time. He pointed out that Meades had intimate knowledge of the vehicle and that in his view, the probabilities overwhelmingly favoured the witness’s version. He accepted that there still remained no direct evidence linking the appellant to the robbery. He said this participation could however in this case be inferred from the proven facts. In his view the only inference was that the accused must have been one of the group of robbers at Grindrod that morning. He found that in light of appellant’s assertion that no one else could have used the vehicle except him, there was no other possible exculpatory alternative explanation but that he did participate. The Magistrate went on to dismiss the idea that it was impossible to have carried out the robbery and reported for work on time.



[13] Now, the record herein details the evidence of the first witness held up by the robbers at the facilities owned by Grindrod. This witness testified that none of the robbers bore any resemblance to the appellant and only three individuals were said to have been on the premises. The State made no attempt to elicit further and more detail on how many robbers were there and who drove the other vehicle, save to say besides the Chana truck, there was a second small commercial Bantam vehicle. Nothing in the version of that witness even suggests the possibility of more than the three robbers who confronted him and held them up. The evidence of this witness appears to have been completely ignored by the Magistrate. This is a palpable misdirection. Moreover, in arriving at the conclusion that appellant carried out the robbery and made it to work on time he employed the following reasoning:



This Court is fully justified to take judicial (notice of) matters of the geographic location of places within the area of jurisdiction of this Court. I know where Heugh Road is in Walmer, I know the proximity of that to the freeway that runs all the way to Motherwell and in doing so certainly the Court has to accept the finding of Mr Meades that at that time of the morning when there is hardly any traffic on the freeway it is very possible for that vehicle to leave Heugh Road at twelve minutes past six in the morning and still get to Motherwell well before half past six in the morning”



[14] The afore-going betrays the extent to which the Court misconceived the relevance of, and weight to be placed on the evidence of Meades. It lost its way in evaluating the probabilities. In argument before us, Mr Els for the respondent was constrained to concede the improbable likelihood of appellant being at the scene of the robbery at that hour and thereafter making it to work on time with all that would have had to be done in between Grindrod and Coega. To achieve this feat, he would have had to leave the scene of the robbery in Heugh Street, Walmer at 06h20, travel in morning traffic in a fully loaded Chana truck and negotiate his way to where he needed to drop off the stolen goods. He would then presumably have had to expend time cleaning or removing the concealing markings, paint or polish used to cover all the alleged signs on the vehicle. There would then be the need to find time to collect all the employees from various pick-up points and then drive to work at Coega during peak hour traffic in order to arrive there at 07h15 as was usual. I agree with Mr Els that this admits of doubt and stretches the bounds of reasonable and rational expectation. Appellant is entitled to the benefit of such doubt.



[15] In assessing circumstantial evidence one must be careful not to approach such evidence upon a piece-meal basis and to subject each individual piece of evidence to a consideration whether it excludes the reasonable possibility that the explanation given by an accused is true. The evidence needs to be considered in its totality. It is only then that one can apply the oft quoted dictum in Rex v Blom 1939 AD 188 at 202-203 where reference is made to two cardinal rules of logic which cannot be ignored. These are firstly, that the inference sought to be drawn must be consistent with all the proved facts and, secondly, the proved facts should be such:



that they exclude every reasonable inference from them save the one sought to be drawn.”



The matter is well put in the following remarks of Davis AJA in R v De Villiers 1944 AD 493 at 508-509:



This Court must not take each circumstance separately and give the accused the benefit of any reasonable doubt as to the inference to be drawn from each so taken. It must carefully weigh the cumulative effect of all of them taken together, and it is only after it has done so that the accused is entitled to the benefit of any reasonable doubt which it may have as to whether the inference of guilt is the only inference which can reasonably be drawn. To put the matter in another way; the Crown must satisfy the Court, not that each separate fact is inconsistent with the innocence of the accused, but that the evidence as a whole is beyond reasonable doubt inconsistent with such innocence.



Lord Coleridge, in Rex v Dickman (New Castle Summer Assizes, 1910) referred to in Wills on Circumstantial Evidence (Seventh Edition) at pages 46 and 452-60 made the following observations concerning the proper approach to circumstantial evidence:



It is perfectly true that this is a case of circumstantial evidence and circumstantial evidence alone. Now circumstantial evidence varies infinitely in it’s strength in proportion to, the character, the variety, the cogency, the independence, one of another, of the circumstances. I think one might describe it as a network of facts cast around the accused man. That network may be mere gossamer thread, as light and as unsubstantial as the air itself. It may be varnish at a touch. It may be that, strong as it is in part, it leaves great gaps and rent through which the accused is entitled to pass in safety. It may be so close, so stringent, so coherent in its texture, that no efforts on the part of the accused can enable him to break through. It may come to nothing – on the other hand it may be absolutely convincing... The law does not demand that you should act upon certainties alone... In our lives, in our acts, in our thoughts, we do not act on certainties; we ought to act upon just and reasonable convictions founded upon just and reasonable grounds... The law asks for no more and the law demands no less.”



In the result the appeal is upheld.

The conviction and sentence is set aside.





______________

MAGEZA AJ

ACTING JUDGE OF THE HIGH COURT





I agree



_____________

MALUSI AJ

ACTING JUDGE OF THE HIGH COURT



FOR APPELLANT: MR XOZWA – JUSTICE CENTRE





FOR RESPONDENT: MR D ELS – THE STATE

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