IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)

Date:  2008-05-16
UNREPORTABLE
Case Number:  A1790/2002  

In the matter between:

ELIAS MORUTI TSHOANE                                                                 Appellant

and

THE STATE                                                                                     Respondent

JUDGMENT

SOUTHWOOD J

[1]	On 19 June 2002 the appellant and his two co-accused, Lesodi Dolphy 	Mapulane (accused no 2) and Mosupetjane Frans Rameetse (accused 	no 3) were found guilty of robbery with aggravating circumstances and 	each sentenced to 15 years imprisonment in accordance with section 	51 of Act 105 of 1997.  In addition the second accused was found guilty 	of contravening section 2 of Act 75 of 1969 (unlawful possession of a 9 	mm Norinco pistol) and contravening section 36 of Act 75 of 1969 	(unlawful possession of three rounds of 9 mm ammunition).   The 	second accused was sentenced to three years imprisonment for the 	contraventions of sections 2 and 36 of Act 75 of 1969, both counts 	being taken together for purposes of sentence.  The appellant and 	accused no 3 appealed against their convictions and sentences.  On 	23 June 2003 accused no 3’s appeal was dismissed.  On 13 November 	2006 the full bench (Legodi and Molopa JJ) referred the appellant’s 	appeal to the full court.

[2]	On appeal, the appellant’s counsel contends that the appellant was 	wrongly convicted because there was no evidence that indicates that 	he robbed the complainant, that the complainant could not identify the 	attackers because it was dark and that the appellant gave an 	explanation for the paraffin stove found at his house:  i.e. he purchased 	it from his co-accused for R30.  The appellant’s counsel submits that 	the regional magistrate should have convicted the appellant of 	receiving stolen property knowing it to be stolen and that this court 	should now do so and impose an appropriate sentence.

[3]	The robbery and the use of the firearm were not in dispute.  The 	complainant, David Sebotuma, testified that in the early hours of 23 	March 2002 he arrived home from Johannesburg.  He got off the bus 	and started walking home.  He was wearing a jacket and had money in 	his pockets and was carrying three bags.  One of the bags contained 	washing powder, one of the bags contained clothes and shoes for his 	children and the third bag contained a new paraffin stove and plates.  	The complainant was also carrying the Sowetan newspaper which he 	had bought in Johannesburg and meat which was wrapped in plastic 	as well as some bars of soap.  He had bought these at the Score 	supermarket.  The soap still had the Score labels on it.  The 	complainant was walking in the darkness when he became aware of 	people following him.  When he looked around a shot was fired.  The 	complainant started to run and a second shot was fired.  The 	complainant tripped and fell and a third shot was fired.  Four men 	surrounded him and demanded money.  They searched him and took 	R220 from his shirt pocket and R10 from his trouser pocket.  They also 	took his identity document, his jacket and the three bags and made off.  	It was too dark to see their faces or recognise them.  There was 	nothing the complainant could do and he went home to sleep.

[4]	The evidence linking the appellant to the robbery is also not in dispute.  	According to the complainant he woke at 5 am and he and his wife 	went back to the scene of the robbery.  They found the complainant’s 	jacket and the bag containing the washing powder.  They also found 	tracks made by soccer boots.  They followed the tracks to the house of 	the appellant where they found him cleaning the yard.   They asked 	him whether 	there was anyone at the house who wore soccer boots.  	The appellant said no.  They wanted to search the appellant’s house 	but he would not allow this without the police.  The complainant 	telephoned the police and when they arrived the appellant had left the 	house and gone to his grandmother’s house.  The complainant and the 	police followed him 	there.  The police confronted the appellant about 	the soccer boots and he took them to another house where the police 	were handed boots.  The police compared the soccer boots with the 	tracks but they did not match.  The police then insisted on searching 	the appellant’s house where he lived alone.  In one bedroom they 	found a soccer boot under 	a mattress and in another bedroom the 	other boot also under a mattress.  The soles of these soccer boots 	matched the tracks leading to the house.  The police then wanted to 	search a cupboard but it was locked and the appellant could not or 	would not provide the key.  A key 	was found and the cupboard opened.  	Inside the cupboard the police found a brand new paraffin stove and 	soap which the complainant identified as his property.  The 	complainant identified the stove because of its colour and because it 	was new.  He identified the soap 	by the label of the Score 	supermarket where he had purchased it.

[5]	The appellant then took the police and the complainant to accused no 	2’s house where they searched his bedroom.  Underneath the mattress 	of his bed the police found a Sowetan newspaper, meat wrapped in 	plastic and a firearm.  The complainant identified both the Sowetan 	newspaper and the meat as his property.  In the kitchen the policemen 	found soap which the complainant identified as his property.  The 	appellant then took them to a second house but the person they were 	looking for was not home.  The police searched the bedroom but found 	nothing.  The appellant then took the police to a third house where 	accused no 3 lives.  The police searched his bedroom but did not find 	any of the complainant’s property.  Later, accused no 3 took the police 	to the football stadium where he pointed out the bag containing the 	clothes and shoes bought by the complainant for his wife and children.

[6]	The appellant’s cross-examination confirmed what happened at his 	house as testified by the complainant.  He confirmed the discovery of 	the soccer boots and the complainant’s property in the cupboard.  He 	professed to be surprised that they found the items in his house.

[7]	The evidence of the two policemen, Inspector Matlou and Inspector 	Matlala, confirmed that the appellant’s house was searched, the goods 	found and that the complainant identified the goods as his property.  	They also confirmed finding the other stolen property in the possession 	of accused no 2 and at the stadium after it was pointed out by accused 	no 3.  

[8]	There was no direct evidence that the appellant committed the robbery.  	To prove the appellant’s guilt the state relied on inferences to be drawn 	from the circumstantial evidence.  This evidence consisted of the facts 	relating to how the complainant and the police were led to the houses 	of the appellant and his co-accused and the fact that the property of the 	complainant was found there and at the football stadium.  In S v 	Mtsweni 1985 (1) SA 590 (A) at 	593E-G the court emphasised that 	inferences must be distinguished 	from speculation and must be based 	on properly proved objective facts.  At 593F-G the court referred with 	approval to the following passage from the judgment in Caswell v 	Powell Duffryn Associated Collieries Ltd [1939] 3 All ER 722 at 733 	–

‘Inference must be carefully distinguished from conjecture or speculation.  There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish.  In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed.  In other cases the inference does not go beyond reasonable probability.  But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.’

	The court also emphasised at 593H-I that for the purposes of 	determining guilt in a criminal case inferences must be drawn in 	accordance with the logical instructions in R v Blom 1939 AD 188 at 	202-3:

	‘(1)	The inference sought to be drawn must be consistent with 	all the proved facts.  If it is not, the inference cannot be 	drawn.

	(2)	The proved facts should 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.’

[9]	In the present case the state relies on the fact that shortly after the 	robbery, some 6 hours afterwards, the appellant was found in 	possession of some of the stolen property.  Unless satisfactorily 	explained the recent possession of stolen property will usually be 	decisive in establishing the guilt of the accused – see R v Mandele 	1929 CPD 96 at 98;  S v Rama 1966 (2) SA 395 (A) at 400;  S v 	Parrow 1973 (1) SA 603 (A) at 604B-E.

[10]	In the present case the complainant was robbed by four men at about 	1h30 on 23 March 2002.  A few hours later the complainant returned 	to the scene of the crime and found tracks made by soccer boots.  	He 	followed the tracks to the appellant’s house where soccer boots 	were found which matched the tracks at the scene of the crime and 	which led to the appellant’s house.  At the house where the appellant 	lived alone the stolen paraffin stove and soap were found.  The 	appellant was not able to explain satisfactorily, or at all, how the boots 	and stolen items came to be in his house.

[11]	The appellant’s explanation that he purchased the stolen items from his 	co-accused was rightly rejected by the regional magistrate. It is so 	inherently improbable that it simply cannot be believed.  Insofar as it 	suggests that the appellant was innocent the regional magistrate rightly 	did not accept this.  The appellant’s behaviour showed that he knew 	about the crime and who had committed it.  The appellant clearly was 	not innocent.  He had the soccer boots which matched the tracks 	hidden under the mattresses but did not immediately disclose them to 	the police.  He was 	uncooperative about assisting the police to open 	the cupboard where the stolen items were.  When they were found all 	he could do was express surprise.  He was then able to take the police 	to the 	houses of three other young men, including accused no 2 and 	accused no 3, after warning the police that they should be careful 	about accused no 2 because he had a firearm.  At the house of 	accused no 2 the police found other items of stolen property as well as 	the firearm.  Accused no 3 later pointed out the rest of the stolen 	property.  The only reasonable explanation for 	the appellant’s know-	ledge of the other young men and their possession of the firearm and 	the stolen property is that he was part of the group which attacked and 	robbed the complainant.      

[12]	The appeal against conviction therefore cannot succeed.

[13]	It is not contended that the regional magistrate erred in imposing the 	minimum sentence of 15 years imprisonment because there were 	substantial and compelling circumstances present which justified the 	imposition of a lesser sentence.  The appeal against sentence also 	cannot succeed.

[14]	The appeal against conviction and sentence is dismissed.

_____________________
B.R. SOUTHWOOD
JUDGE OF THE HIGH COURT

I agree

_______________________
M.W. MSIMEKI
JUDGE OF THE HIGH COURT

I agree

______________________
T.M. MAKGOKA
ACTING JUDGE OF THE HIGH COURT

CASE NO:  A1790/2002  

HEARD ON:  14 May 2008

FOR THE APPELLANT:  ADV. N.W. SEABI  

INSTRUCTED BY:  Legal Aid Board

FOR THE RESPONDENT:  ADV. C. PRUIS 

INSTRUCTED BY:  Director of Public Prosecutions

DATE OF JUDGMENT:  16 May 2008