---

THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Case No. A6/2014

In the matter between:

TEBOHO JOSHUA MOLEFE …............................................................................................Appellant

versus

THE STATE …........................................................................................................................Respondent

CORAM: NAIDOO, J et WRIGHT AJ

JUDGMENT BY: NAIDOO,J

HEARD ON: 28 JULY 2014

DELIVERED ON: 11 SEPTEMBER 2014

NAIDOO, J

[1] The appellant faced a charge of Robbery with Aggravating Circumstances, read with the relevant provisions of Act 105 of 1997 (the Minimum Sentences Act) in the Sasolburg Regional Court and was convicted as charged on 30 March 2010. He was sentenced to ten (10) years’ imprisonment. His application for leave to appeal against his conviction and sentence was refused by the Regional Court, as a result of which he petitioned the Judge President of this Division for leave to appeal against such conviction and sentence. The petition was granted, and he now appeals to this court. Mr R van Wyk, who appeared for the appellant, indicated that the appeal lay only in respect of the conviction. Mr Chalale appeared for the State in this court.

[2] The background in this matter, briefly, is that the complainant, Petrus Gauta Lethoba (Lethoba) was a security guard in the employ of Springbok Fuel Company but was deployed to Siyaya Fuel where he worked at the time of this incident. In the early hours of 26 May 2008, he was attacked by four men who stormed the guardroom where he was. Two of the assailants wore "cappa” hats or similar head gear making it impossible for him to see their faces. He did not see the faces of the other two. He was severely assaulted and lost consciousness. When he regained consciousness, two tankers, laden with fuel, one with petrol and one with diesel, were missing. It seems that the men who attacked him managed to get hold of the keys for the two vehicles and drove off with them. His evidence was that he was unable to identify any of his assailants. He was stabbed and also appears to have been threatened with a firearm. He also knew the appellant well because the latter worked as a driver for the same company. Lethoba did not see the appellant there at the time he was attacked and assaulted.

[3] The manager of Siyaya Fuel, JP Dorfling, confirmed the theft of the two trucks with tankers, and provided details of the registration numbers, the amount of fuel in each truck and the value thereof. He confirmed that the accused was a driver in the employ of Siyaya Fuel, but at the time of this incident, he had been suspended from work for reasons unrelated to this incident.  Dorfling also testified that a private investigator was engaged to trace and recover the trucks. Both trucks, with the tankers were recovered, the one with diesel was empty and the one with petrol had about 2000-3000 litres of petrol still in the tanker. It originally carried over 45000 litres of petrol.

[4] Daniel Jakobus Day confirmed that he was the private investigator that was engaged to track down the missing trucks. Using the records of the tracking company, he identified the premises of a company called Risco Fuels in Benoni, Gauteng where the diesel-laden truck had stopped for a long time. After keeping the premises under surveillance, he approached two men, Som Padayachee and Nizam inside the premises who confirmed that they had earlier that day received diesel from a driver who worked for Siyaya or Springbok Fuel Company.  Padayachee and Nizam were advised that the fuel they received was stolen. They then returned 26 000 litres of fuel to Siyaya Fuel. This witness was not involved in the physical recovery of the vehicles.

[5] The Investigating Officer, Isaac Tshabalala, acting on the information given to him by the private investigator, made contact with Som Padayachee and Nizam, and obtained statements from them. He then took Padayachee, (who was accompanied by his brother Krish) to the premises of Siyaya Fuel, and while there, Padayachee saw the appellant and pointed him out as the person who was pumping the diesel into his tank. The accused was arrested, and a few days later an identification parade was held at which Som Padayachee and Nizam identified the appellant.

[6] Tshabalala also testified that he obtained the cellular telephone records of the appellant, which showed that he and Nizam as well as he and Padayachee had been in contact with each other. The telephone records also showed that the appellant was around the Sasolburg area at the time of the commission of the offence. Tshabalala also said that the appellant had told him that he had received the truck from somebody, but did not furnish him with the name or names of such persons. This particular bit of evidence was not contained in Tshabalala’s statement which was handed up as an exhibit.

[7] Somasurand Padayachee testified that he and his brother Krish Padayachee owned a business called Risco Fuels. Nizam was employed by him to run the fuel depot. Padayachee confirmed that he had seen the appellant previously, when the latter delivered fuel to his depot in the early hours of 26 May 2008. The appellant was in the company of another man who Padayachee did not see too well on account of the bad weather. After the diesel was pumped into his tank, the appellant and this other person climbed into the truck that delivered the fuel and left. Padayachee also indicated that he had telephonic contact with a person called “Josh” who had initially offered the diesel to him, and then the following morning “Josh” called him to ask if everything is ok. The initial contact was in the early hours of the morning of 26 May 2008, before the delivery of the diesel to his fuel depot. He provided his cellular telephone number to the court. It is noted that the appellant’s middle name is Joshua. Apart from his vehicle and the truck belonging to Siyaya Fuel, Padayachee did not see any other vehicle on his premises. He also confirmed that he pointed the appellant out at an identification parade.

[8] After the appellant’s application for a discharge in terms of section 174 of the Criminal Procedure Act (the Act) was refused, the appellant testified in his defence. His version was that he was contacted by a person called Sibali, who was employed as a driver by Siyaya Fuel, to assist with directions to the premises of Padayachee. The appellant then offered to take him there, which he did. Upon finding the gate locked when they arrived, he telephoned Nizam, who subsequently arrived and opened the gate for him. He was driving his own vehicle at this stage, which he drove into the yard. He denied making contact with Padayachee or concluding any transaction with him. He also indicated that Sibali had used his mobile telephone that day. He denied leaving the premises in the truck that delivered the diesel, alleging that he drove away in his own vehicle.

[9] After the defence closed its case, the court called Amanda Fourie, a Forensic Liaison Supervisor employed by Vodacom, the cellular telephone service provider. Part of her duties is to supply data to the police, attorneys and civil organisations and to assist in interpreting call data in court. She was asked to shed more light on the records relating to the accused’s cellular telephone. She testified that the records reflected that the SIM card of number belonging to the appellant was used in two different handsets during the period 24 May to 27 May 2008. Ms Fourie also indicated that there was telephonic contact at various times of the day and at night between the appellant’s cellular telephone number and that of the state witness Padayachee since 24 May 2008. Her further evidence was that the call data records presented in court did not reflect any missed calls to the telephone number of the appellant. The court recalled Padayachee to explain the new evidence that had come to light. The latter testified that his cellular telephone was also used by his manager Nizam, so he is unable to say if there was contact between Nizam and the appellant. The court gave the state and defence the opportunity to reopen their cases in the light of the new evidence introduced by Ms Fourie and the explanation by Padayachee, but both declined to do so. The appellant was thereafter convicted and sentenced.

[10] The appellant correctly did not pursue the ground of appeal that the magistrate entered the arena by virtue of calling witnesses after the state and defence closed their cases. The judgment of the court a quo was assailed on a number of grounds, one being that there is clear evidence that the appellant was not one of the people that attacked the complainant, Lethoba. Although the complainant was not able to identify his assailants and specifically said that he did not see the appellant when he was attacked, it appears that the magistrate considered the evidence as a whole, for example,

a. the relevant telephone records, which were admitted  by the appellant, indicate that he was in the Sasolburg area at the time of the attack upon the complainant,

b. the photograph album which was also admitted by the appellant and handed in by consent indicates (on photo1) that Siyaya Fuel is situated in Sasolburg. The contention in the appellant’s Heads of Argument that there is no evidence about where Siyaya Fuel is situated is therefore not sustainable,

c. the appellant confirmed the evidence of Padayachee that he was at the latter’s fuel depot just hours after the two trucks were stolen from the premises of Siyaya Fuel,

d. Daniel Day’s evidence was not challenged at all and he was able to track the stolen vehicles’ movements via the records of the tracking company. On investigating the premises where the diesel laden vehicle had stopped for a long time, he uncovered the sequence of events described above. The magistrate was correct in finding that the truck that was stolen from Siyaya’s premises was in fact the one that offloaded diesel at Padayachee’s premises,

e. the telephone records handed in showed numerous telephonic interactions between the appellant’s telephone and Padayachee’s telephone days before the incident, as well as shortly before, during and after the incident, negating his version that the driver Sibali is the person who contacted Padayachee and that he (the appellant) had no contact with Padayachee.

In addition, it is noteworthy that the appellant’s version was not put to any of the state witnesses, except Padayachee. Lethoba and Dorfling would have been eminently in a position to confirm whether or not there was a person called Sibali employed by Siyaya Fuel at the time and whether he was assigned to driving a vehicle on the night in question.

[11] I do not, however agree with the magistrate’s acceptance of Tshabalala’s, evidence regarding the statement that the appellant allegedly made to him indicating that he had received the truck from some other person, but would not furnish that person’s name or contact details. Although this evidence was elicited in cross-examination, I am of the view that no reliance can be placed on it, given that it was not mentioned by Tshabalala in his written statement, which was handed in as an exhibit or in his evidence in chief. Had the appellant made such a statement to Tshabalala, it would have constituted an important bit of evidence indicating the appellant’s complicity in the commission of the offence.  Tshabalala would have been unlikely to have omitted this from his statement. Having said that however, I am of the view that even if that evidence is excluded, the magistrate’s reasoning regarding all the other evidence cannot be faulted.

[12] I am, therefore satisfied that the magistrate correctly convicted the appellant on the basis of the evidence referred to in paragraph (10). I do not agree with Mr Van Wyk’s contention that Lethoba’s evidence that he did not see the appellant during the attack on him proves that the appellant was not present. Two of the assailants wore head gear that obscured their faces. The magistrate correctly held that it was entirely possible for one of those two people to have been the appellant, whose face Lethoba could not see. When this is considered in the light of the telephonic records, the possibility of the appellant being one of the assailants is greatly increased, as he was clearly in the Sasolburg area at the time of the attack. The telephone records also indicate contact between the appellant and Padayachee and/or Nizam days prior to the incident, shortly before, during and shortly after the incident, as well as a day after the incident. This points to the fact that the appellant had contact with the buyers over an extended period, from which it can reasonably be inferred that the appellant was involved in or had knowledge of the intended robbery, with which he actively associated himself. The fact that there were no missed calls recorded in the call data also disproves  the appellant’s version that any calls he made to Padayachee’s telephone would have been in response to missed calls he received on his telephone. His failure to react to Ms Fourie’s evidence, at the invitation of the magistrate, is also telling. He would have been able to give an explanation for the number of calls and the reasons therefor to substantiate his claim of innocence.  His confirmation that he was at the premises of Risco Fuels shortly after the robbery is a strong indication that his involvement in the incident goes beyond merely providing directions to Sibali. In any event, I am of the view that if Sibali does exist, he was simply a pawn in the game, where the appellant was one of the main players. The fact that the appellant’s version was not put to the two witnesses who were able to confirm Sibali’s existence indicates that Sibali may well have been a figment of the appellant’s imagination.

For these reasons, I am satisfied that the appellant was correctly convicted by the court a quo.

[13] In the circumstances, the following order is made:

1. The appeal is dismissed;

2. The conviction and sentence are confirmed.

___________

S. NAIDOO, J

I agree.

________________

G.J.M. WRIGHT, AJ

Counsel for Appellant: Mr K. Pretorius

Instructed by: Bloemfontein Justice Centre

Counsel for the Respondent: Mr L Zweni

Instructed by: The State

---