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Jaylanie v S (CA&R400/2014) [2016] ZAECGHC 12 (1 March 2016)

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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)          

        CASE NO.: CA&R400/2014

In the matter between:

BRADLEY BILAL JAYLANIE                                                                        Appellant

And

THE STATE                                                                                                    Respondent

JUDGMENT

BESHE, J:

[1] The appellant was arraigned in the Regional Court Port Elizabeth on the following charges:

Count 1:

Housebreaking with the intention to rob and robbery.

Count 2:

Unlawful possession of a firearm.

Count 3:

Unlawful possession of ammunition.

Count 4:

Attempted murder.

The offences are alleged to have been committed on the 19 October 2010 at number [.....], Humewood, Port Elizabeth. The appellant pleaded not guilty to all the charges. At the conclusion of the trial he was convicted on counts one and four. Namely, housebreaking with intent to rob and robbery and attempted murder. He was sentenced to undergo twelve (12) years imprisonment in respect of count one and five (5) years imprisonment in respect of count four. It was ordered that the two sentences should run concurrently. He is now appealing against the convictions, leave to do so having been granted by the court a quo.      

[2] The facts as they emerged during the trial are as follows:

The complainant in this matter, is Mr Norman Desmond Milton Kahn of [.....], Humewood. He was seventy six (76) years old when he testified in connection with this matter. His evidence was briefly that at about 7h25 on the 19 October 2010, he was at his house about to take his daughter Lauren to school. As he was preparing to open the garage door from his study, the door burst open and he was accosted by two coloured men. The two men, whose faces were exposed, each had a firearm, one small and the other one big. They waved the guns in his face and instructed him and Lauren to get down threatening to shoot them. Lauren obliged and lay on the floor. The two men were dressed in blue overalls similar to the ones used by security guards. He identified the one who had a big firearm as the appellant. He testified that as the two were waving firearms in his face the one he identified as the appellant and having been in possession of the big gun, shoved past him. His companion screamed at complainant to give him the watch that he was wearing, a Rolex watch valued at approximately R400000.00. He described it as a diamond encrusted golden watch. The complainant obliged and handed the watch over. In the process of doing so, he got hold of the small firearm the intruder in front of him had. He shouted for his other daughter Melissa who was on upper level of the house to lock the gate leading to that level of the house, which she did. She also pressed the alarm which could be heard down stairs where the complainant, Lauren and the two intruders were. As he was still grappling over the small gun with the intruder who was in front of him, the one who was behind him struck him with the big gun on his head twice.                 

[3] Thereafter, the two men dragged the complainant and Lauren up the stairs towards the gate leading to the rooms on the upper level of the house. It was at that stage both men covered their faces with balaclavas. The one with a small firearm held it against Lauren’s head threatening to shoot her if Melissa does not open the gate. The complainant once again got hold of the firearm of the intruder that had the smaller gun. With that both complainant and the intruder tumbled down the stairs. The complainant got up, ran up the stairs. Once at the top of the stairs he picked up a table, hurled it at the intruder who was coming towards him. He missed him. The intruder fired shots at him but none hit him. Both men made off with complainant’s watch as well as Lauren’s necklace.    

[4] On 30 November 2010 he attended an identification parade at St Albans prison where he identified two men as the ones that broke into his house on the 19 October 2010. It is common cause that the appellant was not one of the men the complainant pointed out. The complainant stated that he pointed the two men but he was not sure they were the intruders. He said the line-up of the people from whom he was required to identify the intruders was far from him. During cross examination it transpired that the complainant had another shot at identifying his assailants when the police presented him with an album containing photographs of coloured men. It would appear this was on the evening of the robbery. He identified two persons but appellant was not one of them, yet his photograph was part of the album.

[5] It is common cause that the news of the break-in and robbery at Mr Kahn’s place was reported in the local newspapers.   

[6] Mr Martin Gierz testified that he owns a second hand shop in the corner of East and Westborne streets. He told court that on the 19 October 2010 at about 10h00 he received a call from one George who wanted to meet with him at his business premises. He agreed to meet with the said George at 10h00. He provided both his cellular phone numbers as well as the number from which George called as [.....] and [.....]respectively. Two men arrived at his shop to honour the appointment one of whom was, according to Gierz the appellant. He was in the company of George and according to Gierz he had been at his shop previously.  

[7] The appellant showed him a Rolex watch and asked if he was interested in buying it. He offered the two men R20 000.00 for the watch. After negotiating they agreed to sell the watch for R25 000.00. He only had R20 000.00 which he gave to them. They proceeded to Absa Bank in Newton Park where he handed the balance of R5 000.00 to the appellant.         

[8] On the following day, he saw an article in the Herald newspaper about a Rolex watch that had been stolen. He called a member of Director of Public Prosecutions office, a Mr Stander to ask if he could get him a photograph of the stolen Rolex watch suspecting that it might be the watch he bought the previous day. Stander also opined that it might be the same watch and advised him to hold on to the watch. On the 21 October 2010, George called him and told him he wanted the watch back as it is “hot” and they did not want him to get into trouble with the police. He called Stander and told him the people who sold him the watch wanted to buy it back. Stander told him a trap will be organised with a view to catch the people who sold him watch. On the 22 October after being briefed by the police as to how the trap will be set, he made arrangements with George to meet at Newton Park for purposes of handing the watch over to him / them.     

[9] Indeed, according to Gierz the appellant arrived at Newton Park where he was parked. He knocked at Gierz’s window who opened the car door for him. The appellant climbed into the motor vehicle, asked him if he had the watch, handed him the money and assured him it was the correct amount. Gierz took the money and handed the watch over to the appellant. When asked whether he gave the requisite signal to the policemen who were part of the operation as planned he answered: I took the watch out, lifted it up over the window because there was another policeman sitting right next to me”. It transpired that the policeman he was referring to was sitting in another vehicle. The appellant took possession of the watch and left his motor vehicle. He thereafter signalled to the police to come. Chaos erupted with people jumping and running in different directions. He left the scene, phoned Stander and informed him that he has the money and asked that they should collect the money so that they can lift fingerprints from it. Later someone came and collected the money. It was returned to him months later with purple dye. Stander arranged for him to exchange the money at the Reserve Bank for unstained notes.        

[10] During cross examination it emerged that Gierz was supposed to activate a call to one of the policeman who was part of the operation so that he would hear what was being said between Gierz and the appellant. He did not activate the call because everything happened quickly according to him.

[11] It was put to Gierz that the appellant visited his business on the 18 October 2010 (that would be the day preceding the commission of the offences in question). That the purpose of his visit was to sell certain items that included a tempo watch. That prior to that he had business dealings with the appellant. He said it was possible that he had dealings with him previously. That he could not recall what happened in 2010 seeing that two years had elapsed since then. He denied that the meeting with the appellant in Newton Park was for him to pay R900.00 to the appellant which was outstanding in respect of the items he sold to him on the 18 October 2010.     

[12] Lietenant Colonel Simon Hendrick Barkhuizen (Barkhuizen) is one of the South African Police Service members who took part in the operation that was set to trap the suspects in respect of this case. He was in charge of the operation and positioned inside a mattress warehouse where he had a view of Gierz’s motor vehicle. He waited for a signal from Gierz that the exchange has taken place. The signal never came. He walked out of the shop towards the appellant. The appellant started running. He chased the appellant until the latter jumped over wall into nearby premises.

[13] There were three other officers who were part of the operation and sat inside a car not far from Absa Bank in Newton Street. Warrant Officer Pierre Claassen was one of them. Upon seeing Barkhuizen chasing the appellant the three followed suit and gave chase in their vehicle. Claassen ultimately found the appellant inside the premises into which he had jumped. He took him to the motor vehicle in which they were travelling. The watch was not in his possession at the time of the arrest nor was it inside the property into which he ran. All Claassen recovered in the premises was a red cap, jacket and a cellular phone. The appellant was wearing the two items of clothing when he jumped over the wall into the premises where he was apprehended. A thorough search for the watch in question did not yield any results. Claassen denied that detective Minnie chased the appellant and insisted it was Barkhuizen who did. Claassen’s evidence was confirmed by Captain Michael Coenraad Grobbler who was driving in the same vehicle with him (Claassen) and detective Minnie. Minnie, according to the two witnesses, was the driver of the motor vehicle in which they were travelling. In addition to what Claassen told court, Globbler testified that the name of a suspect named “Puff” Virgil Jansen / Jantjies was mentioned during the briefing about the operation in question. When the chaos erupted, at the stage when appellant was being chased, he spotted “Puff” in the vicinity and chased him. He however could not catch up with him.

[14] Lieutenant Gerhard Sass was initially the investigation officer of this case. It transpired from his evidence that he was not involved in the sting operation that was conducted to buy back the watch from the suspect. He only became involved after the operation when he was told to go and collect money from Gierz by a member of the Director of Public Prosecutions. He thereafter arranged for the money to be checked for fingerprints. His evidence also revealed that one of the items handed in as exhibits as having been found in the possession of the appellant at the time of his arrest was a sum of R820.00. No fingerprints could be lifted from the money.

[15] Ms Lynette Van Zyl is a fraud specialist in the employ of Vodacom. She testified about certain phone numbers in respect of which information relating to billing and area location of the said phones was required. Information was required as regards cellular phone numbers [.....] which it became common cause was used by Gierz, and cellular number [.....]as well as two other numbers. It transpired or became common cause during the trial that the latter number that was used by the appellant at the material time (around the period of the housebreaking and robbery at the complainant’s house) it is the number attached to the phone that he dropped together with his jacket and cap when he was fleeing from the police.

[16] According to Ms Van Zyl call usage data in respect of appellant’s cell phone shows that on the 18 October 2010 (the day preceding the robbery at complainant’s house) a signal from the phone was picked up as follows:

12.01.21          La Roche Drive 2

20.00.16          Humewood     1

20.24.10          La Roche Drive 2

20.45.48          La Roche Drive 2

20.49.01          Humewood     1

21.24.20          Humewood     2

21.27.37          La Roche Drive 2

21.54.12          Humewood 1

21.54.52          La Roche Drive 2

21.55.30          La Roche Drive 2

[17] On the day of the robbery, the 19 October 2010, signal from the said phone was picked up at the La Roche Drive 2 tower at the following times:

06.48.54         

06.58.04

07.01.43

According to Ms Van Zyl the towers La Roche Drive and Humewood 1 are in Humewood area.

[18] It also transpires from the data collected in respect of appellant’s cell phone that a call was made to Gierz’s number at 09.32.50 on the 19 October 2010. Van Zyl testified that there is no record of theappellant’s phone having been ricard before the 20 October 2010. This according to her is a process by which details of the subscriber would be captured on their system. On the 20 October 2010 at 14.52.49 – 25 October 2010 at 09.11.26 the subscriber was registered as Marvin Darryl De Klerk. From the 25 October 2010 it was registered in the name of Germaine Shaamile Koopman. It became common cause that the latter is appellant’s wife.

[19] What follows is the version that was proffered by the appellant at the trial. He was arrested on the 22 October 2010 at Newton Park. This was after parting with Gierz who had handed him a sum of R900.00. This money was the balance of an amount that was due to him for goods he sold to Gierz’s pawnshop. Those being a Tempo watch, two gold rings, earrings and a bracelet. He sold these items on the 19 October 2010 for R1700.00. He was paid R800.00 and it was arranged that he would get the balance of R900.00 on the following day. The reason being that that was all the cash they had at the time at the pawnshop. He testified that he did not get a chance to go to the pawnshop on the following day being a Tuesday. He only called Gierz on Thursday in connection with the Tempo watch he had sold to the pawnshop to ask whether he can have it back. The watch had in turn been pawned to him by one Desmond who wanted it back who was threatening to report the matter to the police if he did not get his watch back. Gierz told him the watch had already been sold. Regarding the R900.00 that Gierz’s business owed him, it was agreed that they should meet at Absa Bank, Newton Park the following day. They spoke telephonically on Friday morning which culminated in their meeting at Newton Park where the exchange of the R900.00 took place.

[20] As to what led to arrest, the appellant testified that after leaving Gierz’s motor vehicle from which the exchange took place, he walked towards a motor inside which his cousin was sitting. He informed his cousin he was going to the bank and that he will not be long. As he was walking towards the bank, he was accosted by a white man who was carrying a firearm who instructed him to stop. He ran away because he was scared the person with a gun would shoot at him. He also suspected that might be a policeman. Knowing he had dagga in his possession is another reason why he decided to flee. He realised that several policemen were chasing him. He was arrested after jumping over a wall of nearby premises and after taking off his jacket inside of which was his cellular phone. He stated that in the process of fleeing, he destroyed the dagga that he had in his possession.

[21] The appellant testified that he bought the phone that he had from Marvin De Klerk on Wednesday the 20 October 2010 together with its sim card for R300.00. His intention was to buy the phone for his wife Shaamile / Jamaine Koopman.

[22] The appellant denied that he was one of the men who robbed and attacked the complainant. He asserted that he was at work at Port Elizabeth Roadworthy in Sydenham. That his working hours are 08h00 to 17h00.  

[23] The appellant stated that staff members at the Sydenham branch of Port Elizabeth Roadworthy where he works do not wear overalls or work suits. Staff members at the Newton Park branch do however wear overalls. It did not appear as though the manner in which the offences in question were committed was in dispute. What is clear however is that the appellant denies complicity in the commission of the offences. He denies that he was one of the two coloured men who accosted the complainant and his daughter. By so asserting, the plaintiff placed the identity of the person / persons who committed the offences in dispute.   

[24] It is trite that in a criminal case the state bears the onus of proving the guilt of the accused beyond reasonable doubt.[1] The principles applicable to the evidence of identification are also settled or accepted to be the following:

Evidence of identification based upon a witness’s recollection of a person’s appearance is unreliable unless approached with caution.[2] This was confirmed to be the correct approach to adopt when dealing with evidence of identity in a number of decided cases. One of those decisions is in S v Mthetwa[3]. In this matter the guidelines to be followed when dealing with evidence of identification were set down as follows:

Because of the fallibility of human observation, evidence of identification is approached by the Courts with some caution. It is not enough for the identifying witness to be honest: the reliability of his observation must also be tested. This depends on various factors, such as lighting, visibility, and eyesight; the proximity of the witness; his opportunity for observation, both as to time and situation; the extent of his prior knowledge of the accused; the mobility of the scene; corroboration; suggestibility; the accused’s face, voice, built, gait, and dress; the result of identification parades, if any; and, of course, the evidence by or on behalf of the accused. The list is not exhaustive. These factors, or such of them as are applicable in a particular case, are not individually decisive, but must be weighed one against the other, in the light of the totality of the evidence, and the probabilities; see cases such as R. v. Masemang, 1950 (2) S.A. 488 (A.D.); R. v. Dladla, 1962 (1) S.A. 307 (A.D.) AT P. 310C; S. v. Mehlape, 1963 (2) S.A. 29 (A.D.).”

Honesty is not a guarantee for reliability.[4] See S v Sithole & Others.[5]

[25] The court a quo’s judgment is impugned on the basis inter alia, that reliance was placed on dock identification of the appellant by the complainant. The complainant had two prior opportunities to point out the appellant but he did not. This was on the day of the robbery when an album with photographs including that of the appellant was shown to him. The appellant was not one of the people he pointed out. At a subsequent identification parade he did not point the appellant out although he was in the line-up of possible suspects. He pointed out another person. Two years after the incident Kahn testified and pointed the appellant who was in the dock as the accused person as one of the two men who robbed him of his watch on the 19 October 2010. It is the reliance on that “dock identification” by the court a quo that is assailed. The learned magistrate pointed out that there should “be little, if any value put to the identification of the accused by the witness as the person who robbed him on that day”.[6] In deciding what the weight should be attached to the dock identification, the magistrate concluded that little weight should be attached to the dock identification by Kahn.[7] He also reasoned that this identification is strengthened by the evidence that appellant was one of the people who were negotiating the sale of the Rolex watch with Gierz.

[26] It was argued that attaching “little weight” to the dock identification was a misdirection on the part of court a quo. It is trite that “dock identification” is of very little probative value though not inadmissible evidence. See S v Bailey[8] I therefore do not think that the magistrate misdirected himself by attaching “little weight” which he later refer to it being “a little bit of weight”.[9] It is also clear from the court a quo’s judgment that this piece of evidence is not taken into account in isolation but together with other evidence. Namely, Gierz’s evidence as well as cell phone records. It is trite that when considering the guilt or otherwise of an accused person all the evidence must be taken into account. This approach was also affirmed in S v M 2006 (1) SACR 135 SCA at 183 h-I as follows:

The point is that the totality of the evidence must be measured, not in isolation, but by assessing it properly whether in the light of the inherent strengths, weaknesses, probabilities and improbabilities on both sides … …”

See S v Van Der Meyden supra.

[27] Another basis / ground contended for on behalf of the appellant is that the magistrate should not have placed reliance on Gierz’s evidence without cautioning himself  about the dangers of accepting his evidence. It was argued that Gierz was a single witness in so far as who sold the Rolex watch to him (whom he identified as the appellant and his companion). Not only that, so it was argued, Gierz has also made himself an accomplice to the robbery and or in respect of competent verdict but he was not warned in terms of Section 204 of the Criminal Procedure Act 51 of 1977. Given also the manner in which the transaction was handled – for example not enquiring where the appellant and his friend got the watch, not requiring their particulars and so on. His conduct after seeing the article about the incident in the newspaper. It was also argued that the fact that the watch was not found in appellant’s possession even though according to Gierz it was handed to him shortly before his arrest should have created a doubt in the court a quo’s mind.

[28] I am inclined to agree with appellant’s contention that Gierz’s evidence was not beyond reproach for the reasons cited by the appellant. The magistrate did not make any credibility findings regarding Gerz’s evidence. He did however acknowledge that when evaluating the evidence the conspectus of all the evidence is required. Evidence that is reliable should be weighed alongside such evidence as may be found to be false. Independently verifying the evidence, if any, should be weighed to see if it supports any of the evidence tendered”.[10] Quoting from S v Trainor.[11] Having adopted this approach to the evaluation of evidence, I do not think that the magistrate misdirected himself by having regard to Gierz’s evidence, though not flawless.

[29] The court a quo’s reliance on Ms Van Zyl’s evidence regarding the location of the appellant’s cell phone at certain times around the incident as proof that he was at the scene of crime is said to have been a serious /fundamental misdirection that goes to core of the identification of the appellant as one of the robbers.

[30] In this regard a point is made on behalf of the appellant that where the appellant’s phone is said to have been at La Roche Drive, it could have been anywhere in the radius of 3-5 km from the La Roche Drive tower which is not far from Kahn’s  house. To illustrate this submission, attention was drawn to an instance where counsel points out a call made at 12.01.21, registered at La Roche and forty (40) seconds later a call from the same phone is registered at Ring Road tower which is in Central, Port Elizabeth. This is however not accurate. The cell phone records in question show the next call was made forty (40) minutes later at 12.41.13.[12] There is therefore no merit in this submission. The same applies to the submission that the magistrate misdirected himself when he found that the cellular phone in question “was at the scene of crime, not only on the date of the robbery but the day before”. Submitting that calls from and to this phone were made on the day of the robbery and thereafter. Cell phone records clearly show activity from appellant’s phone to have been thus on the 18 October 2010.

12.01.21          La Roche Drive Tower.

20.00.16          Humewood 1.

20.24.10          La Roche Drive Tower.

20.24.49          La Roche Drive Tower.

20.45.48          La Roche Drive Tower.

20.49.01          Humewood 1.

21.24.20          Humewood 2.

21.27.37          La Roche Drive.

21.54.12          Humewood 1.

21.54.52          La Roche Drive.

21.55.30          La Roche Drive.

[31] Clearly this shows that the phone in question was used in the vicinity of Kahn’s neighbourhood. This in my view places the appellant in the area of Kahn’s house at the said times both on the 18 October 2010 and on the following day (the day of the robbery). The appellant wanted the court to believe that the phone in question was only in his possession from the 20 October 2010. It is also noteworthy that a few hours after the robbery, at 09.32.50, a call was made from appellant’s cellular phone to Gierz’s phone. The latter, it will be recalled testified that appellant and his companion sold the Rolex watch in question to him on that day having arranged telephonically to meet him at his business. It is highly unlikely that the user of the phone would also have co-incidentally made calls to Gierz’s number on the 19 October 2010. The same day appellant says he sold items of jewellery to Gierz business. The same day Gierz says he met with the appellant and his companion and they offered him the Rolex watch. We know according to the phone records that was approximately two hours after Kahn was robbed of his watch. Kahn testified that the robbery took place at approximately seven (07h00) in the morning. Cell phone records show the appellant’s cell phone activity in the vicinity of Kahn’s neighbourhood at:

06.48.54

06.58.04 and at

07.01.43

[32] I am not persuaded that the court a quo misdirected itself in accepting the evidence of the state witness and by finding that the appellant’s version that he was not at the complainant’s place at the material time is untrue. In S v Van Der Meyden supra[13] the following was stated:

A court does not base its conclusion, whether it be to convict or to acquit, on only part of the evidence. The conclusion which it arrives at must account for all the evidence. Although the dictum of Van der Spy AJ was cited without comment in S v Jaffer 1988 (2) SA 84 (C), it is apparent from the reasoning in that case that the Court did not weigh the ‘defence case’ in isolation. It was only by accepting that the prosecution witness might have been mistaken (see especially at 89J-90B) that the Court was able to conclude that the accused’s evidence might be true.

I am not sure that elaboration upon a well-established test is necessarily helpful. On the contrary, it might at times contribute to confusion by diverting the focus of the test. 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 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.it is with that in mind that I turn to a consideration of the evidence”

In my view these remarks apply with equal force to the present case. The appellant’s version which is an alibi cannot be reasonably possibly true in the circumstances and it was correctly rejected by the court a quo.

[33] It was also submitted on behalf of the appellant that the conviction of the appellant for attempted murder militates against the principle that a duplication of convictions is not permissible. The violence perpetrated on that day, including the shooting, so the argument goes, formed an integral part of the robbery. Our law recognises a rule against the duplication of convictions. This is a longstanding rule that is aimed at fairness. It is meant to avoid an accused being punished twice for the same offence. The rule of practice to be applied in establishing whether there was an improper duplication of convictions was stated to be the following in S v Globbler en ‘n Andere[14] The Test or combination of tests to be applied are those which are, on a common sense view, best calculated to achieve the objective rule. In so far as the “single intent” and “continuous transaction” test is concerned, the distinction between motive and intent and between motive and intent and the different interests inherent in different offences must not be overlooked”. The test was put differently in S v Maneli[15] where it was stated: One such test is to ask whether two or more acts were done with a single intent and to constitute one continuous transaction. Another is to ask whether the evidence necessary to establish one crime involves proving another crime”.

[34] Robbery is defined as consisting in theft of property unlawfully and intentionally (a) using violence to take property from someone else or (b) threats of violence to induce the possessor of the property to submit to the taking of the property. It is clear from the definition that there must be a causal link between the taking of the property and the violence.

[35] In the present case complainant testified that he and his daughter were threatened with firearms which the two assailants were wielding. They were forcefully dispossessed of their pieces of jewellery. After handing the Rolex watch to one of the two robbers, Kahn got hold of that robber’s firearm. It was at that stage that the other one struck him (Kahn) with the bigger firearm on his head twice. The two dragged Kahn and his daughter through the hallway and up the stairs towards the upper level of the house. A scuffle ensued. At some stage Kahn was at the top of the stairs with the robbers on the lower level of the house. That is when one of the robbers fired shots at Kahn. None of the shots hit him though. The question is whether the assault on Kahn formed part of the robbery or not. Is there causal link between the robbery and the assault and that comprised of the assault with the back of the firearm and the firing of shots at Kahn? Did the conviction for attempted murder amount to a duplication of convictions if coupled with a conviction on the robbery charge?       

[36] In S v Moloto 1982 (1) SA 844 (A) it was stated that for an accused to be convicted of attempted murder and robbery which flows from the same incident, the state will have to prove beyond reasonable doubt that the accused intended to kill and not merely to use force.

[37] It is clear from the evidence that the shooting occurred after the robbery had been completed or achieved. The watch had been in the possession of the robbers for a while at the time of the shooting. It cannot be said in the circumstances that by shooting at the complainant, the robbers were facilitating the taking of the watch. The complainant was not even trying to retrieve the watch at that stage. He was far removed from the robbers who were on the lower level of the house and he was on the top of the stairs. I am not persuaded that there was causal link between the taking of Rolex watch and the shooting in particular. The magistrate was correct in convicting the appellant of attempted murder on the basis of common purpose it not being clear as to who of the two assailants fired the shots. There is proof beyond reasonable doubt that complainant’s assailants intended to kill him and the shooting was not merely force that accompanied the dispossession of the watch.

[38] For the reasons stated hereinabove I make the following order:

The appeal against both convictions is dismissed. 



_______________

N G BESHE

JUDGE OF THE HIGH COURT

 

MAJIKI J

 

I agree.



_______________

B MAJIKI

JUDGE OF THE HIGH COURT



APPEARANCES

For the Appellant         :           ADV: A Hattingh

Instructed by                :           ADVOCATE’S CHAMBERS

                                                Oasim South Chambers

                                                Pearson Street

                                                PORT ELIZABETH

                                                Ref.: Mr Hattingh

                                                Tel.: 041 – 503 6300

 

For the Respondent      :           ADV: JN Thysse

Instructed by                :           DEPUTY DIRECTOR OF PUBLIC PROSECUTIONS

                                                18 Grahamstown Road

                                                PORT ELIZABETH

                                                Ref.: Mr Thysse

                                                Tel.: 012 – 842 1400

 

Date Heard                  :           16 September 2015     

Date Reserved             :           16 September 2015

Date Delivered             :           1 March 2016



[1] S v Van Der Meyden 1999 (1) SACR 447 at 448 f–g where Nugent J had this to say: 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. In order to convict, the evidence must establish the guilt of the accused beyond reasonable doubt, which will be so only if there is at the same time no reasonable possibility that an innocent explanation which has been put forward might be true. The two are inseparable, each being the logical corollary of the other.

[2] The South African Law of Evidence DT Zeffertt, AP Paizes, A St D Skeen page 142.

[3] 1972 (3) SA 776 (A) at 768 A-C.

[4] R V Mosemang 1950 (2) SA 488 (A) at 493.

[5] 1999 (1) SACR 589 at 591 c-d.

[6] Page 385 of the record line 18-20.

[7] Page 392-3 of record.

[8] 2007 (2) SACR 11 (C) [24] and S v Tandwa 2008 (1) SACR 613 SCA at [129]

[9] Page 393 of record line 10.

[10] Page 387 line 21-24.

[11] 2003 (1) SACR 35 SCA at 41 [10].

[12] Page 4 of exhibit “F” page 488-491 of the record.

[13] 499 h-450 b

[14] 1966 (1) SA 507 (A) at 532 F