REPUBLIC OF SOUTH AFRICA

SOUTH GAUTENG HIGH COURT
JOHANNESBURG

CASE NO:   41/1449/2005
APPEAL CASE NO:  A561/2010
DPP REF NO:  JAP2010/0599

(1)	REPORTABLE: YES / NO
(2)	OF INTEREST TO OTHER JUDGES: YES/NO
(3)	REVISED. 

         ……………………..		………………………...
                   DATE			        SIGNATURE

In the matter between:

MASHIA, THABO LAZARUS						 Appellant

and

THE STATE								       Respondent
______________________________________________________________ 

 JUDGMENT
______________________________________________________________ 

KGOMO, J:
APPEAL against Conviction and Sentence.
INTRODUCTION

[1] 	This is an appeal by the appellant, who was accused 1 out of two accused in the Regional Court, Johannesburg (“the court a quo”) against the whole of his conviction and sentence on 8 charges, namely:
1.1 	Count 1: Robbery with aggravating circumstances as intended in section 1 of the Criminal Procedure Act, 1977, Act 51 of 1977 (as amended) (“the Criminal Procedure Act” or “the Act”); read with the provisions of section 51(2) of the Criminal Law Amendment Act, 1997 (Act 105 of 1977 (as amended), (“the Minimum Sentences Act”);

1.2	Count 2:  Robbery with aggravating circumstances as intended in section 1 of the Criminal Procedure Act; read with section 51(2) of the Minimum Sentences Act;

1.3	Count 3: Robbery with aggravating circumstances as intended in section 1 of Criminal Procedure Act; read with section 51(2) of the Minimum Sentences Act;

1.4	Count 4:  Unlawful possession of a firearm in contravention of section 3 read with sections 1, 103, 117, 120(a) and 121; further read with Schedule 4 of the Firearms Control Act 60 of 2000 (as amended) and further read with section 250 of the Criminal Procedure Act (“possession of firearm unlawfully or unlawful possession of a firearm”);

1.5	Count 5:  Possession of a prohibited firearm in contravention of section 4(1)(a) read with sections 1, 103, 117, 120(1)(a) and 121 of the Firearms Control Act;
1.6	Count 6:  Unlawful possession of ammunition in contravention of section 90 read with sections 1, 103, 117, 120(1)(a) and 121 of the Firearms Control Act;

1.7	Count 7:  Robbery with aggravating circumstances as intended in section 1 of the Criminal Procedure Act, read with section 51(2) of the Minimum Sentences Act; and

1.8	Count 8:  Theft.

[2] 	After a full trial that started on 22 August 2008 the appellant was convicted of all the above charges on 25 November 2008 and subsequently sentenced as follows on 29 January 2007:

	2.1 	Count 1:	10 (ten) years imprisonment;
2.2 	Count 2:	8 (eight) years imprisonment, 4 (four) years whereof were ordered to be served concurrently with the sentence imposed in count 1;
2.3 	Count 3:	8 (eight) years imprisonment, 4 years of which was ordered to be served concurrently with the sentence imposed in count 1;
2.4 	Count 4:	8 (eight) years imprisonment, 4 years of which was ordered to be served concurrently with the sentence imposed in count 1;
2.5 	Count 5:	10 (ten) years imprisonment, 4 years whereof was ordered to run concurrently with the sentence imposed in count 1;
2.6 	Count 6:	4 (four) years imprisonment the whole of which the court a quo ordered that it run concurrently with the sentence imposed in count 1;
1.7 	Count 7:	8 (eight) years imprisonment 4 years of which was ordered to run concurrently with the sentence imposed in count 1;
1.8 	Count 8:	4 (four) years imprisonment 2 years whereof was ordered to run concurrently with the sentence imposed in count 1.

[3] 	Of the total 60 years imprisonment imposed by the court a quo, the appellant was to serve a total of 34 years.

[4] 	He was granted leave to appeal both his conviction and sentence by the court a quo and was legally represented throughout the trial.

SPECIFICS OF THE CHARGES

[5] 	The specifics of each count the appellant faced at the trial are as follows:

5.1 	Count 1:	It was alleged that upon or about 25 July 2005 and at or near Bramley, Johannesburg, the appellant did unlawfully and intentionally assault one Richard Ndou and did then and there and with force and/or violence take 1 x 9 mm Vector pistol and 15 x 9 mm live rounds from him, using a firearm;

5.2 	Count 2:	The allegations were that upon or about 27 July 2005 and at or near Douglasdale, Johannesburg the appellant did unlawfully and intentionally assault one Mark John Tuynne and did then and there and by force or violence take from him a Mercedes Benz C270 sedan as well as other assets listed in an annexure to the charge sheet, using a firearm;

5.3 	Count 3:	The allegations herein are that on or about 26 July 2005 and at or near Sandton, Johannesburg, the appellant did unlawfully and intentionally assault one Tehini Lynne and Eddy Hodes and did then and there and with force and/or violence take from them money, other possessions and jewellery as listed on an annexure to this count, using a firearm;

5.4 	Count 4:	The allegations here are that upon or about 29 July 2005 and at or near Douglasdale, Johannesburg the appellant did unlawfully and intentionally have in his possession 1 x 9 mm Vector pistol and 1 x 9 mm C2 pistol without holding a licence, permit or authorisation issued to him in terms of the Act authorising or dealing with firearms;

5.5 	Count 5:	The allegations are that upon or about 29 July 2005 and at or near Douglasdale, Johannesburg the appellant did unlawfully have in his possession fully automatic firearms, to wit, 1 x R4 rifle and 1 x R5 rifle without being the holder of a licence issued in terms of section 17 read with sections 19 or 20(1)(b) of the Act in respect of or governing possession of automatic weapons;

5.6 	Count 6:	The allegations being that upon or about 29 July 2005 and at or near Northriding, Johannesburg the appellant did have in his possession ammunition listed on an annexure to this count, namely, 55 x R5 live ammunition, 30 x R4 rifle live ammunition/rounds and 20 x 9 mm live rounds while not being the holder of a licence in respect of a firearm(s) capable of discharging same or having a permit to possess such ammunition, or while not having a dealer’s-, import-, export-, manufacturer’s-, gunsmith-, in-transit or transporter’s licence(s) issued in terms of the Firearms Control Act;

5.7 	Count 7:  	The allegations herein being that upon or about 22 February 2005 and at or near Yeoville, Johannesburg the appellant did unlawfully and intentionally assault one Adele E Snyders and did then and there and with force and/or violence take from her a Mercedes Benz C230 sedan with registration letters and numbers PRX 597 GP, using a firearm;

5.8 	Count 8:	The allegations herein are that upon or about 29 July 2005 and at or near Douglasdale, Johannesburg the appellant did unlawfully and intentionally steal 1 x bullet proof police jacket.

Alternative to the above count

The appellant is alleged to have been wrongfully found in possession of goods other than stock and produce as defined in the Stock Theft Act 57 of 1959, namely, a police bullet proof jacket and other goods, cash and jewellery as listed in annexures to the charges herein, in regard to which there is reasonable suspicion that they were stolen and for which the appellant was unable to give a satisfactory explanation for being in possession of same.

APPELLANT’S GROUNDS OF APPEAL

[6] 	The appellant’s grounds of appeal can be summarised as follows:

6.1	Ad conviction

6.1.1	Firstly, that the learned magistrate erred in drawing inferences that from the mere fact that the appellant was found in possession of the goods and/or items robbed from the complainants, then robbery had been committed;

6.1.2 	Secondly, that the court a quo erred in convicting the appellant on the basis of circumstantial evidence, further under or in circumstances where he was never identified as the perpetrator by any of the state witnesses;

6.1.3 	Thirdly, that the court a quo only convicted him, i.e. the appellant as a male occupant of the premises he shared with others but did not act like wise against other occupants of those premises;

6.1.4	Fourthly, that the court a quo erred in finding that the appellant was guilty of stealing the bullet proof vest also merely because it was found at the same time as the firearms;

6.1.5	Fifthly, that the court a quo erred in finding that the appellant was part of a gang that committed the crimes herein mentioned; and
6.1.6	The State has not proved the appellant’s guilt beyond a reasonable doubt.

6.2	Ad sentence

6.2.1	That the court a quo erred in imposing the sentences so imposed, more so that it did not take into consideration the appellant’s age, the fact that he was a first offender and not considering other appropriate sentencing options;

6.2.2	That the court a quo erred by over-emphasising aspects of retribution and deterrence and not individualising the sentence imposed; and

6.2.3	That the sentence imposed is generally so startlingly inappropriate as to induce a sense of shock.

THE RESPECTIVE VERSIONS OF BOTH SIDES

[7] 	The state version or case has as its genesis, evidence of a number of police officers who, after receiving a tip-off, went to and entered the premises situated at 127 Balmont Estate, Northriding, Johannesburg where they found the appellant together with two females. After searching those premises the police found the firearms, jewellery, bullet proof vest as well as keys for Mercedes Benz sedans for which the appellant could not give a satisfactory explanation.  They arrested him.

[8] 	The appellant’s version can be summarised as follows:  He occupied the abovementioned premises at Northriding together with one Mr Molefe and other persons.  On 29 July 2005 the police arrived at the residence and handcuffed him. Without him being with them the police searched the house, collecting a variety of items which are those listed in the charge sheet. Later the police showed him the items they had collected except the jewellery, which was showed to him only the following day when he was already in police custody. He denied knowledge of the articles so retrieved from his residence as well as from other places.  He also denied committing any of the offences mentioned in the charge sheet.

COMMON CAUSE FACTS

[9] 	What is not in dispute between the parties is that there was a spate of robberies in homes in the northern and central suburbs of Johannesburg and the robberies were perpetrated by men or a gang using R4 and R5 rifles among others.  The police authorities formed a squad named Project Emily within a police Anti-Hijacking Task Team to investigate these robberies.

[10] 	Among the victims of those house robberies were Mr Richard Ndou who was robbed of a 9 mm Vector pistol on 25 July 2005 at Bramley; Mr Mark John Tuynne of Douglasdale, Johannesburg who was robbed of a Mercedes Benz C270 sedan as well as his identity document, driver’s licence and other personal documents like his personal diary and his wallet. That was on 27 July 2005. 

[11] 	Mrs Lynne Tehini was accosted at her home in Sandton and robbed of her jewellery collection, i.e. rings, necklaces – both precious stones and ornamental, broaches, bracelets, dragon fly pins and a Nike watch. The robbery herein took place on 26 July 2005.

[12] 	Mrs Adele Snyders was attacked on 22 July 2005 and robbed of her Mercedes Benz C230 sedan.

[13] 	The common thread between all these robberies was that the robbers predominantly used military style rifles. According to Ms Lynne Tehini she identified the rifle used by one of her two attackers as having a white tape or similar substance tied or wrapped around it.

[14] 	It is also common cause that the police in Operation Emily received information from their sources that the people involved in or perpetrating the robberies around Johannesburg were hold up or staying at 127 Belmont Estate, Northriding.

[15] 	On the night of 29 July 2005 a posse of the Anti-Hijacking Task Team consisting of Inspectors Eben Herselman, Nel, Smit, Sergeants Nicolas Smit, Naido and Constable Thomas descended on the above address at Northriding while others kept watch or took up back-up positions.  Insp Herselman and Sgt Smit went to the third floor flat mentioned above.  Sgt Smit stood on the window parapet, peeping into the flat while Herselman knocked at the door, also loudly announcing that they were the police.  According to Sgt Smit he could clearly see a man and two women inside watching television (“TV”) in the sitting room of the open plan flat.  According to him further, despite the loud knocking and shouting the people inside did not heed the instruction to open the door, prompting him to bang or knock at the window to attract their attention.

[16] 	As one of the women walked towards the door to open it, the male person ran towards the bedroom section of the flat.

[17] 	According to evidence which is undisputed, everything happened in a split second.

[18] 	As the door swung open Herselman and Smit rushed after the man running towards the bedrooms.  As they burst inside what ultimately occurred to be the main bedroom of this two-bedroom flat they found that man who had ran into it pulling out a R4 rifle out of a long sports bag.  They rushed him and tackled him to the ground before they tied him or handcuffed him with cable ties. The rifle had a full magazine with another live round already in its chamber. What was left to discharge that round was only to depress or pull the trigger.

[19] 	Inside the same sports bag two 9 mm pistols were also found, namely, 9 Vector and a CZ 75.  Each had 10 (ten) rounds.

[20] 	After warning the apprehended man of his constitutional rights the policemen in that operation searched the rest of the flat. According to the police witnesses’s evidence the apprehended man was taken along wherever the searches were conducted.  In the second bedroom, another rifle, an R5, was found.  All in all the search yielded the articles that form part of the charge sheet.

[21] 	The officer tasked with investigations on behalf of Operation Emily, Warrant Officer Viljoen was called to the scene and the crime scene handed over to him.  Police photographers, fingerprint experts as well as DNA experts were also summoned to the scene and photos were taken of everything and fingerprints lifted.

[22] 	The man arrested at this flat is the appellant in this case.

[23] 	There is evidence on record also, that the two women found at the scene were not arrested as police information did not mention women as being involved in the robberies.  Only their particulars were recorded.

[24] 	According to Inspector or Warrant Officer Herselman the appellant refused to answer any questions from him.  According to Sgt Smit the appellant told him the firearms belonged to Andrew Pilusa.  According to Sgt Naido he told him he did not know to whom they belonged. From the totality of the evidence in the trial herein it is clear that the appellant was asked questions by different policemen at different times or occasions that night.

[25] 	The Andrew Pilusa mentioned here is the appellant’s co-accused in the court a quo. For completeness sake, I can mention that the said Andrew Pilusa was also convicted and sentenced in the trial in the court a quo. He appealed against his conviction and sentenced in this Court and failed.

[26] 	Among the articles recovered from the appellant’s flat were also Mercedes Benz car keys as well as documents for vehicles.  Some of these vehicles whose keys were found were recovered abandoned.

[27] 	It is also common cause that after Ms Lynne Tehini learnt of the recovery of suspected stolen or robbed goods in newspaper adverts placed by the police, she went to the police station and identified the jewellery as well as two jewellery boxes that belonged to her.  She also had video recordings of herself wearing some of the jewellery as well as a video recording of her daughter wearing some of the recovered jewellery at her matric dance at Crawford Campus College.

[28] 	The state witnesses corroborated one another on material aspects of this case.

[29] 	I have thoroughly perused the judgment of the court a quo.  I did not detect any misdirection or mistakes in the manner in which the trial magistrate evaluated the evidence. I cannot fault her (magistrate’s) credibility findings either.  I agree with her that the state witnesses were credible and most times impressive witnesses.  I could not find any exaggeration in their testimonies.

[30] 	The defence version was in my view not equally impressive.  The credibilities of the two actors therein, i.e. the appellant and his co-accused were in my view dented at the end of the day.

[31] 	It is so that when the police went to this flat, they were looking for Andrew Pilusa, the appellant’s co-accused in the court a quo.  However, according to the appellant, Andrew Pilusa was just an acquaintance of his whom he got to know where they are both involved business-wise, in the taxi industry.  According to him Andrew Pilusa did not visit his place regularly.  In fact he ventured to state that he visited there only once before his (appellant’s) arrest on 29 July 2005. When he was asked about the Volkswagen Golf that he (appellant) was using and which was parked in his parking bay at the complex, he stated that he has taken over the payments for the instalments thereof even though the vehicle was still registered in Pilusa’s names.

[32] 	The appellants insisted that he was staying in that flat with one Itumeleng Molefe, not Andrew Pilusa.  It is trite also that this was on all four’s contrary to the written terms of the lease agreement he had with the owners or controllers of that flat. This Itumeleng Molefe is said to have been deceased when the trial took place.

[33] 	When the state witnesses testified, the appellant’s version was that it was impossible for any person to stand at the kitchen window because there was no platform there to do so.  According to him, it is a sheer drop to the ground from that window. However, when he testified in chief, the very first salvo from his testimony was that he indeed saw suspicious movements at the self-same kitchen window.  Then he saw silhouettes of a person pass the same window, making him instruct one of the women, Karabo, to lock the door, which at that stage was only closed but not locked.

[34] 	This piece of evidence was not raised with the state witnesses when they were on the witness stand.

[35] 	The high water mark of the appellant’s case as regards the goods or articles recovered from his flat was that he did not see where they were retrieved from as he was all the time lying face down where he was apprehended.

[36] 	When the totality of the evidence (i.e. inclusive of both the State and defence versions)is considered the appellant’s above contention was correctly, in my view, rejected by the court a quo.    The impression one got when analysing the appellant’s version is that the police brought the jewellery, ornaments, video recordings from the Tehini’s and John Tuynne’s personal documents and diaries to the scene and framed him therewith.  On all the evidence and the inherent probabilities in this case it is my finding that the appellant’s contention is so far-fetched and improbable that it can safely be rejected as false.

[37] 	The flat in which the jewellery, documents and firearms were found belongs to or is inhabited by the appellant. It is also so that an R4 rifle was found in his own (main) bedroom. So were the two pistols as well as almost all the other recovered goods.  By his own admission, the two ladies found in the flat were just friends who were visiting, not co-habitators with him in the flat. The R4 rifle found in his room has the same or similar white tape around it like the one seen by Ms Tehini in the hands of one of her robbers. This witness positively identified Andrew Pilusa at an identification parade held where he was represented by an attorney, a Ms Jonker, to safeguard his interests.  Ms Jonker never queried any of the procedures followed at that identification parade. The appellant never attended any identification parade.

[38] 	It is for this reason among others, that I agree with the court a quo that the appellant’s acquaintance with Andrew Pilusa was not as superficial or taxi business related only as he wants the court to believe.  It is clear that he and Andrew Pilusa were part of the gang of robbers that had been terrorising parts of Johannesburg during the period of their arrest.  The trial court put it more aptly.  At folio 357 lines 4 to 8 it was put as follows:

“So, accused 1 is now somewhat linked to all the robberies and the court can only, from the evidence on record, bring out the finding that this is a syndicated conduct and a process where accused was involved with.  And the court can only find that accused 1 was a member of this syndicated group.”

I agree with the trial magistrate.  The facts, surrounding circumstances and inherent probabilities point to this conclusion.

[39] 	In the heads of argument counsel for the appellant made heavy weather of alleged contradictions in the versions of the state witnesses, especially what the appellant would have said to each of the police witnesses upon his arrest.  It is my finding that this was misplaced. A thorough perusing and analysis of the record does not point to any material discrepancy or contradiction from these witnesses that may have tended to vitiate the state case or damaged it to such an extent that it ought to have been discarded or accorded less weight. Even the trial magistrate dealt with this aspect at folio 353 of the paginated record lines 25 to 26 to folio 354 lines 1 to 5. She said the following:

“The state called six police witnesses who gave their evidence and the evidence was lengthy and they were cross examined at length and yes, the Court is not unmindful of the fact that various discrepancies are prevalent or are present in their various versions. The question to be answered here [is], (i) are these discrepancies so detrimental to their individual credibilities and in totality to the state case that the Court can say that it can not accept the evidence of these police officers …”

[40] 	The trial magistrate answered the above question in the negative.  I cannot disagree with her when regard is had to the totality of the evidence herein.  The judgment adequately substantiates this answer.

[41] 	I know that the court a quo also engaged in some speculation when it said that it has a very strong suspicion that there might have been a second male in that flat at the time, who somewhat managed to escape before the police entered, hence the presence of the two females.  The learned presiding officer further speculated that it was highly unlikely that the appellant would entertain both females at the same time alone when real situations are anything to go by.  Well, that is her own apprehensions but it still remains speculation.  Courts do not suffer speculation or conjecture.

[42] 	The defence attempted to introduce hearsay evidence concerning the mentioned Itumeleng Molefe’s death. The abridged death certificate the defence handed in was provisionally accepted into evidence and the defence was to come up with cogent and acceptable evidence of the existence of this Mr Molefe, failing which that evidence would be left out of reckoning when everything relevant was evaluated.  The defence never came up with such evidence.

CIRCUMSTANTIAL EVIDENCE

[43] 	The first three of the appellant’s grounds of appeal relate to his conviction on the bases of circumstantial evidence as he was not identified at any identification parade or linked to the robberies by any witness.  He also contested his conviction based on his “sole” occupation of this particular flat.

[44] 	In respect of counts 4, 5 and 6, being alleged possession (unlawfully) of the two 9 mm pistols, the two military style R-rifles and the ammunition for the above firearms, there is direct evidence that he was so found in possession of same. In respect of count 8, theft of the bullet proof vest, there is uncontradicted evidence that this was the property of the South African Police Services. It still had police tacks and serial numbers. The appellant could not have bought it.  It is also trite that he could not have acquired it legally or lawfully. In fact, the appellant did not deny the allegations concerning this count throughout the trial.  It is consequently disingenuous on the part of the appellant to come up with issues relating to this count at this stage. However , it is my view and finding that the appellant could not have been convicted of theft when the evidence is considered as a whole. The evidence pointed to possession of goods suspected to be stolen in contravention of section 36 of the General Law Amendment Act 62 of 1955.

[45] 	In short, as regards counts 4, 5, 6 and 8 the appellant’s conviction was not based on circumstantial evidence.

[46] 	As regards the four robbery with aggravating circumstances counts, the convictions thereon were based on circumstantial evidence.

[47] 	Circumstantial evidence is sometimes described as that network of facts and circumstances that swirls around the accused.  The court is called upon under such circumstances to determine whether or not those facts and circumstances justifies the court to infer what could have actually happened even though there is no direct evidence available. Simply put, pieces of evidence, facts, documentary evidence, surrounding circumstances, exhibits, the conduct of an accused person, his reaction to questioning – be it by the prosecution or the police; all these and other relevant and material aspects can conflate and confluence into a body of ascertainable facts and evidence that can go a long way towards proving the guilt of an accused person, despite the absence of direct evidence by witnesses to that effect.

[48] 	Such an exercise may sometimes come up with nothing implicating an accused person.  On the other hand, the circumstances may turn out to be such that a convincing story indeed ultimately shines through. The law does not demand that one should act upon certainties alone. In our lives, in our courts, in our thoughts, we do not always deal with certainties : we also act upon just and reasonable convictions founded upon just and reasonable or set grounds.  The law asks for no more and the law demands no less.

See:	Ranzani Ndumalo v The State (Case No 450/2008 [2009] ZASCA 113. 

[49] 	When dealing with circumstantial evidence the enquiry before the court is whether on the evidence of circumstances before it, it could reasonably come to a conclusion that it was indeed the accused before it who perpetrated the crimes in question. In short, can the court draw inferences from the facts at hand and convict an accused person.  

	S v Nduna 2011 (1) SACR 115 (SCA).

[50] 	In the locus classicus case of R v Blom 1939 AD 188 at 202-203 Watermeyer JA stated the principles as follows:

“In reasoning by inferences there are two cardinal rules which cannot be ignored:

(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 ones 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.”

[51] 	Where a court draws inferences from facts lending themselves to different interpretations or where there is doubt about which are the facts proved, the drawing of inferences would be a wrong route. As Van den Heever AJ put it in S v Mosoinyane 1998 (1) SACR 583 (T):

“Wat betref die maak van afleidings uit omstandigheidsgetuienis moet weereens beklemtoon word [deur] wat gesê is in S v Naik 1969 (2) SA 231 (W) at 234C-D:

‘If the court, on the evidence before it, were to come to that conclusion, it would be making an assumption rather than drawing an inference, for the facts necessary for the drawing of an inference.’”

	See also:	S v Setsetse 1981 (3) SA 353 (A) at 369-370.
			S v Morgan 1993 (2) SACR 134 (A) at 172. 

[52] 	Circumstantial evidence in itself may at times furnish direct or more convincing proof of issues in question.  In S v Reddy 1996 (2) SACR 1 (A), Zulman AJA (as he was then) held among others that circumstantial evidence is not necessarily weaker than direct evidence. The learned judge went as far as to state that in certain circumstances or cases, circumstantial evidence may even be stronger or of more probative value than the direct evidence available.

	See also:	S v Shabalala 1996 (2) SACR 297 (A) at 299.

[53] 	Murphy J however cautioned in the (then) unreported case of S v J R Nyauza (Case No CC97/07) decided on 5 December 1997, that circumstantial evidence (and circumstantial similar fact evidence) must not be used to promote a forbidden line of reasoning such as : accused is a bad man, therefore he should be guilty.  He held that circumstantial evidence must be relevant in some way or other in that its peculiar nature cloaks it with a higher degree of relevance warranting its reception and concomitant reliance upon it.

[54] 	Inferences to be drawn when circumstantial evidence is used must be carefully distinguished from conjecture and/or speculation.  There can be no inference lest there are objective facts from which to infer the other facts which it is sought to establish.  If there are no positive proven facts from which the inference can be drawn or made, then the method of inferential thinking falls way and what is left is mere conjecture and/or speculation.

See:	Casswell v Powell Duffryn Association Collieries Ltd 1940 AC 152 at 169 per Lord Wright.

The following from Casswell v Powell (supra) was quoted with approval in S v Essack and Another 1974 (1) SA 1 (A) at 16D:

“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.”

In this case, the first scenario hereinbefore is of application.

[55] 	In order to decide whether or not the State has proved the guilt of an accused beyond a reasonable doubt based on circumstantial evidence, the court needs to take into account the cumulative effect of all the evidence before it, i.e. holistically.  It is not advisable or let me say, it is impermissible and an incorrect approach to consider the evidence piece-meal.

	See:	S v Reddy (supra).
		S v Hassim 1973 (3) SA 443 (A) at 457H.
		S v Zuma 2006 (2) SACR 191 (W) at 209B-I.

[56] 	The robberies alluded to in these charges are proven facts. It is also a proven fact that the goods robbed from the different complainants were found in the appellant’s flat. It is also a proven fact that two rifles, an R4 and an R5 were also retrieved from the appellant’s flat. The robberies were perpetrated with the aid of military style rifles. Ms Tehini saw one of the rifles taped with something white and one of the rifles retrieved from the appellant’s flat was similarly taped.  The robber positively identified by Ms Tehini is a bosom friend or fellow traveller of the appellant who even exchange cars with him. The appellant has no explanation as to how the robbed goods and the keys to the robbed luxury vehicles came to be in his flat.  Consequently, it is my considered view and finding that there are enough proven facts in this case to draw an inference or inferences that the appellant is part of a gang or syndicated group that perpetrated armed robberies around the various Johannesburg suburbs, which included the crimes he is charged with in this case.

[57] 	In the circumstances I find no fault in the court a quo relying on circumstantial evidence to convict the appellant as it did.

[58] 	The appellant’s ground of appeal that he was unfairly singled out from a group of three (i.e. he and the two females found with him in the flat) and unreasonable made to carry the blame alone for the discovery of the robbed goods in the flat is misplaced to say the least. As stated above, he himself took the two females out of the equation when he stated that they were mere visitors who had come for a party at his flat. By so saying he was in my view and finding saying that the females had no free access to the bedrooms where the robbed goods were found. State evidence in any event did not implicate them. The circumstances and probabilities also do not bring them within the ambit of the charges.

CONCLUSION

[59] 	Counsel for the appellant relied on several authorities in respect of the doctrine of recent possession. As was clearly apparent, theft was the offence in question on this aspect. I do not agree with him that the authorities he quoted support the appellant herein.

[60] 	In the quoted case of S v Jantjies 1999 (1) SACR 32 (CC) the learned judge disagreed with the principles set out in S v Tandimali 1998 (1) SACR 119 (C) that the doctrine of recent possession is only applicable to charges of theft and not to charges like housebreaking with intent to commit any other offence(s).  The court in Jantjies held among others that the above views are in conflict with authorities in the topic like S v Parrow 1973 (1) SA 603 (A) wherein Holmes JA found among others that an inference to be drawn in respect of any crime as the only inference that should or can be drawn depends on the peculiar circumstances in each case. The learned judge referred to or relied on possibly the first edition of S A Criminal Law and Procedure, Vol 2, by Hunt at 611 where the following stands:

“… the ‘doctrine’ (if it can be given such an elevated name) of recent possession if simply a common-sense observation on the proof of facts by inference.”

At 35e-h S v Jantjies continues:

“Dit is duidelik dat daar na die feite van elke saak gekyk moet word om vas te stel of ‘n afleiding ten opsigte van die pleeg van die een of ander misdryf die enigste redelike afleiding is wat gemaak kan word.  Die blote in besit van ‘n gesteelde sak kort nadat dit gesteel is, regverdig nie sonder meer die afleiding dat die besitter ook die dief of, meer nog, die inbreker en dief, was nie.”

[61] 	The above clearly show that the doctrine of recent possession can be invoked in respect of any type of offence or crime provided that the particular circumstances thereof allows the drawing of inferences relative to that offence’s facts.

[62] 	It is my further view and finding that the other case relied upon by the appellant, S v Skweyiya 1984 (4) SA 712 (A) does not support his submission.  In this case Eloff AJA (then) put it as follows:

“It is necessary first to say a few words concerning one aspect of the inferential reasoning method, commonly described as the ‘doctrine of recent possession of stolen goods’ which was adopted by the regional magistrate … It is the requirement that the goods must have been recently stolen. The nature of the stolen article is an important element in the determination of what is recent.  (R v Mandele 1929 CPD 96 at 98; R v Morgan 1961 (2) SA 377 (T) at 378B-D). If the article stolen is of the type which is usually and can easily and rapidly be disposed of, anything beyond a relatively short period will usually not be recent. The court has accordingly to ask itself:

‘… is the article one which could easily pass from hand to hand, and was the lapse of time so short as to lead to the probability that this particular article has not yet passed out of the hands of the original thief.’”

[63] 	When the above principles or ratio decidendi are applied to the facts of our present appeal, it is my considered view and finding that between the time of the robberies herein and the date of the appellant’s arrest, the period was so short that a thief or robber would not have had the opportunity to dispose of the loot.  Even though the court a quo did not say so in many words, what it say is : the appellant was caught with his pants down.  It surely looks like that. From the facts of this case as supported by surrounding circumstances and probabilities, it cannot disagree with the above suggestion.

[64] 	In the words of Rumpff JA in S v Glegg 1973 (1) SA 34 (A) at 38H:

“… in considering the effect of evidence, one need not be concerned with ‘remote and fantastic possibilities’ and that it is incumbent upon the state to eliminate every conceivable possibility that may depend upon ‘pure speculation’. The fact that a number of inferences can be drawn from a certain fact, taken in isolation, does not mean that in every case, the state, in order to discharge the onus which rests upon it, is obliged to indulge in conjecture and find an answer to every possible inference which ingenuity may suggest any more than the Court is called on to seek speculative explanations for conduct which on the face of it is incriminating’.”

[65] 	I have interrogated the reasons advanced by the court a quo for convicting the appellant.  I came across no misdirection therein or therewith, as alleged by the appellant or at all, except in respect of count 8, the theft conviction, which ought to have been on the alternative count of inability to give account of possession of goods suspected to be stolen in contravention of section 36 of Act 62 of 1955.

[66] 	I am persuaded that the guilt of the appellant was proved beyond a reasonable doubt in respect of all the eight (8) counts, subject to the qualification set out in paragraph 65 hereinbefore.

[67] 	Equally, I am satisfied that the court a quo was correct in finding the appellant’s version not to be reasonably possibly true. It was in my view and finding correctly rejected as false as well or insofar as it is in conflict with the state’s version.

[68] 	Consequently, the appeal by the appellant against his convictions should be dismissed on counts 1,2,3,4,5,6 and 7. It should be upheld in respect of count 6 and substituted with a conviction for contravening Section 36 of Act 62 of 1955.

AD SENTENCE

[69] 	The appellant’s complaint against the sentences imposed is that they are startlingly inappropriate and induce a sense of shock, more so that the court a quo did not take into account the appellant’s age, the fact that he was a first offender as well as over-emphasising the aspects of retribution and deterrence, thus failing to individualise it.

[70] 	The duty of imposing an appropriate sentence is pre-eminently in or within the discretion of trial courts.  Courts on appeal are not to interfere with the exercise of such sentencing discretions for frivolous reasons. Court on appeal are not to alter a determination arrived at by the exercise of a discretionary power merely because it would have exercised that discretion differently.

	S v Sadler 2000 (1) SACR 331 (SCA) at 335e-g.
	S v Kgosimore 1999 (2) SACR 238 (SCA).
[71] 	The court on appeal may on the other hand interfere in the sentence imposed if it is clear that the trial court did not exercise its discretion judiciously or the sentence imposed is such that it is so inappropriate and startling as to induce a sense of shock.

	S v Salzwedel and Others 1999 (2) SACR 586 (SCA).
	S v Maitala 1991 (1) SACR 95 (A).

[72] 	The main purposes of punishment (read sentencing) are deterrence, prevention, reformation (rehabilitation) and retribution.  Punishment should fit the criminal as well as the crime, be fair to society and be blended with a measure of mercy.

	S v Rabie 1975 (4) SA 855 (A) at 862G-H.
	S v Zinn 1969 (2) SA 577 (A).

[73] 	Courts of law are under a duty generally to sentence offenders in such a manner that if possible or desirable in the circumstances, they may be reformed or rehabilitated. Punishment should not be cruel and inhumane. The purpose of a sentence should not be to break the offender.

	S v Kars 1961 (1) SA 231 (A) at 236.

[74] 	However, the peculiar circumstances of each case will and should dictate which the purposes of sentence should be given prominence.
[75] 	In S v Mhlakaza and Another 1997 (1) SACR 515 (SCA) the court held as follows at 519d-e:

“Given the current levels of violence and serious crimes in this country, it seems proper that in sentencing, especially for such crimes, the emphasis should be on retribution and deterrence.”

In S v Nkwanyana and Others 1990 (4) SA 735 (A) the court held that retribution may even be decisive.

[76] 	Where the circumstances so require, deterrent and retributive sentences must be imposed. This was emphasised by Nugent JA in S v Swartz 2004 (2) SACR 370 (SCA) when he stated as follows at 378c-d:

“… in our law retribution and deterrence are proper purposes of punishment and they must be accorded due weight in any sentence that is imposed. Each of the elements of punishment is not required to be accorded equal weight but instead, proper weight must be accorded to each according to the circumstances.  Serious crimes will usually require that retribution and deterrence should come to the fore and that the rehabilitation of the offender will consequently play a relatively smaller role.”

[77] 	There are a plethora of authorities on this aspect of sentencing. In my view Marais JA aptly summarises the role of judges in an appeal against sentences in S v Malgas 2001 (1) SACR 469 (SCA) when he sets out the principles applicable as follows at 478d:

“A court exercising appellate jurisdiction cannot in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court …  However, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court.  It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as ‘shocking’, ‘startlingly inappropriate’ … In the latter situation … it may do so only where the difference is so substantial that it attracts epithets of the kind I have mentioned …”

The above are in my considered view of equal application in this appeal

[78] 	The appellant herein was handed various sentences in respect of each count, which globally totalled 34 years imprisonment.  What is important in the above sentences is that the court did not just globalise the counts and impose a round sentence.  Each count was dealt with individually.  It is also important to note that some sentences were ordered to run concurrently with others.

[79] 	The above approach is what our courts have lately endorsed and which I agree with. In Director of Public Prosecutions, Transvaal v Phillips 2013 (1) SACR 107 (SCA) the accused had been convicted of kidnapping, murder, contravention of section 17(a) of the Domestic Violence Act and two counts of assault common. The court took all the counts together for purposes of sentence and sentenced him to 12 years imprisonment.  The Minimum Sentences Act was part of the mix. In disapproving of this approach and increasing the sentence to 18 years imprisonment the Supreme Court of Appeal put it as follows:

“Had the court employed the statutorily ordained minimum as its bench mark, it could hardly have arrived at a sentence of 12 years imprisonment for all the counts, which it took as one for purposes of sentence … It obviously approached the matter as if it were starting with a clean sentencing slate. In doing so it misdirected itself.”

[80] 	At para [27] the court observed that the practice of imposing globular sentences for multiple counts is generally an undesirable one.

[81] 	This aspect was dealt with as far back in time.  S v Young 1977 (1) SA 602 (A) and S v Immelman 1978 (3) SA 726 (A).

[82] 	In S v Immelman, Trollip JA stated at 610E-H that:

“That procedure is neither sanctioned nor prohibited by the Criminal Procedure Act … But according to several decisions … (see e.g. S v Nkosi 1965 (2) SA 414 (C) where the authorities are collected) the practice is undesirable and should only be adopted by lower courts in exceptional circumstances.”

I agree. This appeal is not one of those cases where exceptional circumstances exist to justify the use of the above globalisation of sentence.

[83] 	The reason courts discourage globular sentences is that courts on appeal are confronted with how to determine how the trial court assessed the seriousness of each offence and what moved it to impose the sentence it did. Globular sentences obscure this exercise.

[84] 	In S v Masiza 2013 (1) SACR 121 (ECG) the court held among others that the imposition of globular or composite sentences for a number of offences should particularly be avoided especially when the Minimum Sentences Act provisions relating to minimum sentences find application.  In the heading thereof the court held that:

“The reason therefor is simply the fact that in such cases there also exists the added possibility that it may be found on appeal that the finding of the court a quo that there are no substantial and compelling circumstances present justifying the imposition of a sentence less than the prescribed minimum sentence cannot stand and should be set aside. A preferred method of mitigating the cumulative effect of separate sentences is to order that they run concurrently or to proportionally reduce the sentence imposed on those counts which do not attract a minimum sentence so as to meet the exigencies of the case.”

[85] 	A more fundamental problem may arise with the imposition of a composite sentence when its validity is to be determined because if a sentence is imposed which is competent on one charge and incompetent on another, a great injustice may occur.

[86] 	The minimum sentence for a first offender in respect of the robbery with aggravating circumstances counts is 15 years imprisonment.  The maximum sentences imposable in respect of the counts relating to the two pistols are 15 years imprisonment and in respect of the rifles, is 25 years imprisonment.

[87] 	The court a quo equally did not find any substantial and compelling circumstances justifying the imposition of sentences less than the prescribed minimum sentences.  The trial court took into account in the above determination the relative youthfulness of the appellant, the fact that he was not gainfully employed but running a relatively successful taxi business, earning good money, has children and other people dependant on him and still found that though substantial those circumstances were, they were not compelling enough in the peculiar circumstances of this case to justify any departure.

[88] 	I have looked at the personal circumstances of the appellant and contrasted them with the gravity of the offences with which he was charged and the general milieu of the South African suburban life.  I find no misdirection on the part of the court a quo with its findings. Families have been terrorised enough by gun-wielding syndicates or gangs far too long.

[89] 	The sentences passed by the court a quo in my view and finding do not induce any sense of shock.  For a conviction of robbery with aggravating circumstances to be slapped with a sentence of 10 years, 8 years with 4 running concurrently with the 10 years sentence, equally so with the two other robbery convictions is not shockingly inappropriate.  The sentence for possession of the two pistols was ordered to run in its entirety with the sentence in count 1.  The possession of military style rifles was 8 years, four (4) whereof was ordered to run concurrently with the sentence in count 1.  I see no misdirection at all in the manner in which the trial magistrate exercised her sentencing discretion. Certainly the period the appellant was in custody since his arrest has been factored into the sentences, hence the reduced or concurrent sentences.

[90] 	It is my finding that the appeal against the sentences imposed herein has no merit and stands to be dismissed. Even with the altered conviction in respect of count 8( theft to possession of suspected stolen property), the sentence of 4 years of which 2 years are to run concurrently with the sentence in count 1 is an appropriate sentence. The penalties for both are the same.

[91] 	Leach JA, with Ponnan and Cloete JJA concurring dealt with a similar case in Muller v State (855/10) [2011] ZASCA 151 (27 September 2011). Here the accused committed three robberies within a period of less than a month in a localised area having a radius of about two (2) kilometres. Each was committed at gunpoint after the two accused involved therein had entered the victims’ premises by false pretences.  The accused received a total of 30 years imprisonment each globally.

[92] 	My considered view is that the appellant escaped with a light sentence in the peculiar circumstances here.  Fortunately for him there was no application to have it increased and this appellate bench does not contemplate invoking its inherent powers to interfere with it.

ORDER

[93] 	The following order is made:
            93.1 The appeal by the appellant against his convictions in Counts 1,2,3,4,5,6 and 7 is dismissed
           93.2 The appeal against the conviction on the count of theft in count 8 is upheld. The conviction therein is set aside and substituted with the following:
“ count 8 Guilty of contravening section 36 of the General Law Amendment Act 62 of 1955- Possession of suspected stolen goods for which accused could not give acceptable explanation.”
 
       93.4 The appellant’s appeal against all the sentences imposed is dismissed.

						_____________________________
							       N F KGOMO
						JUDGE OF THE SOUTH GAUTENG
						  HIGH COURT, JOHANNESBURG

	I agree:

						_____________________________
							       L WEPENER
						JUDGE OF THE SOUTH GAUTENG
						  HIGH COURT, JOHANNESBURG

FOR THE APPELLANT		ADV J GERBER

INSTRUCTED BY			SCHUURMAN JOUBERT ATTORNEYS
					PRETORIA
					TEL NO:  012 – 323 9601

FOR THE RESPONDENT		ADV C E BRITZ

INSTRUCTED BY			STATE ATTORNEY
					JOHANNESBURG
					C/O DPP, JOHANNESBURG
					TEL NO:  011 – 220 4098

DATE OF ARGUMENT		07 MARCH 2013 

DATE OF JUDGMENT		07 MARCH 2013