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IN THE NORTH WEST HIGH COURT

MAFIKENG

CAF 1/2012

In the matter between:

ABEL LEBOGANG MOATE …........................................FIRST APPELLANT

DAVID GOBUSAMANG OLIFANT ….......................SECOND APPELLANT

and

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

FULL BENCH CRIMINAL APPEAL

LEEUW JP, LANDMAN J & GUTTA J

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JUDGMENT

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LANDMAN J:

[1] The appellants were arraigned in a circuit court held at Rustenburg before Gura J.

[2] The first appellant was convicted on:

• Count 1 – Murder (read with section 51 (1) of Act 105 of 1977).

• Count 2 – Robbery with aggravating circumstances as defined in terms of section 1 of Act 51 of 1977.

• Count 3 – Contravention of section 3 read with section 1, 103, 117, 120 (1)(a) and section 121 read with Schedule 4 of the Firearms Control Act 60 of 2000 and further read with section 250 of the Criminal Procedure Act 51 of 1977 (Unlawful possession of a firearm).

• Count 4 – Contravention of section 90 read with section 1, 103, 117, 120 (1)(a) and section 121 read with Schedule 4 of the Firearms Control Act 60 of 2000 and further read with section 250 of the Criminal Procedure Act 51 of 1977 (Unlawful Possession of Ammunition).

• Count 5 – Robbery with aggravating circumstances as defined in terms of section 1 of Act 51 of 1977.

[3] The application of a third accused for his discharge was successful.

[4] The first appellant was sentenced as follows:

• Count 1 – Life imprisonment.

• Count 2 – Fifteen (15) years of imprisonment.

• Count 3 – Five (5) years of imprisonment.

• Count 4 – Three (3) years imprisonment.

• Count 5 – Fifteen (15) years imprisonment.

[5] The second appellant was convicted on count 5, robbery with aggravating circumstances as defined in terms of section 1 of Act 51 of 1977 and was sentenced to fifteen (15) years imprisonment.

[6] The appellants appeal against their convictions and sentences.

Condonation

[7] The appellants filed their notices of appeal late. They say that they were under the impression that it was unnecessary to file a notice of appeal when leave to appeal was granted. The accused are lay persons and I accept that they did not know the correct procedure to be followed. But their counsel knows better and it is their counsel who ought to explain the lapse. There is no explanation but as the respondent does not oppose the relief I would grant condonation.

Appeal against conviction of the first appellant on counts 1, 2, 3, and 4

Counts 1 and 2

[8] The first appellant’s attack on his conviction on these counts are on the basis that there was insufficient circumstantial evidence to justify the inference that the appellant was guilty of the murder and robbery in count 1 and 2 beyond any reasonable doubt.

[9] Mr Skibi, correctly submitted that the dictum in R v Blom 1939 AD 202 setting out two cardinal rules of logic, was applicable in this case:

“First, the inference that the appellant committed the offences in count 1 and 2 must be consistent with all the proved facts. If it is not, that inference cannot be drawn. Second, the proved facts should be such that they exclude every reasonable inference from them save that it was the appellant who was the perpetrator.”

[10] It is not disputed that the fingerprint that was found on a fidelity vehicle’s right driver’s window belonged to the first appellant. The main question was whether it could be inferred that the fingerprint was placed there at the time of the murder and robbery on 10 September 2007. The age of the fingerprint was important and would determine when the fingerprint was placed on the window and it became the focus of the evidence on these counts.

[11] The age of the fingerprint was canvassed by Captain Smit, the fingerprint expert. It was put to him that the first appellant had placed his fingerprint on the window prior to the day of the robbery. Captain Smit when he was asked, under cross-examination, how long a fingerprint could remain on a particular object said that it depended on a number of factors. But fingerprints can remain a long time on objects. He enumerated various factors including weather conditions.

[12] Counsel for the first appellant did not say when the fingerprint would have been placed on the vehicle’s window. From counsel’s leading of the evidence of the first appellant in chief, it is clear that counsel did not know when his client placed his finger print there. The first appellant had great difficulty in saying when this was done. The most the first appellant could do was to point to various opportunities which were available to him to come into contact with the window in question. He referred to the window in question although he may have meant the window of any of a number of vans belonging to Fidelity Guard.

[13] The first appellant said that:

(a) He was employed by Fidelity Cash Management from 2000 to 2006.

(b) He had friends who were working at Fidelity whom he visited there.

(c) He kept going to the work place and he would chat to a number of employees, who were driving the vehicles of Fidelity Guard.

(d) He possibly touched the window approximately around the end of July 2007.

[14] The first appellant’s counsel did not put any of these facts and circumstances to Captain Smit. It is particularly important to note that one of the employees working at Fidelity Guards, to whom he said he spoke (and touched the window) was Mr Putsu, the driver of the van at the time of the robbery.

[15] Against this stands the evidence of Captain Smit who said that the finger print was a fresh one left on the window on the day of the robbery 10 September 2007 or a day earlier.

[16] In a carefully considered judgment the court a quo concluded that every reasonable inference was excluded by the facts save that the first appellant left his fingerprint on the window of the Fidelity van at the scene of and at the time of the murder and the robbery.

[17] Mr Skibi submitted that the court a quo:

(a) erred in drawing an adverse inference against the first appellant’s counsel’s failure to put to the expert witness, Captain Smit, and Mr Putsu that he touched the window in July 2007 (and that his prints might have remained on the window since then until 10 September 2007);

(b) erred in finding that it was improbable that the fingerprints of the first appellant might have remained on the window for about 40 days;

(c) erred by referring to a number of factors which tend to show that the fingerprints would not remain on the window i.e. rain, car being exposed to dust, or car was being used on gravel road, the print being exposed to water, if it rained, cold temperatures of the winter season, etc;

(d) erred in finding that the van was parked in an open parking where it may be exposed to winter snow or rain, if it is raining or dust; and

(e) erred in inferring that the only inference which can be drawn from the facts is that the first appellant was one of the perpetrators who robbed and murdered the deceased.

Evaluation

[18] It is a principle of cross-examination reaffirmed by the Constitutional Court in President of South Africa v South African Rugby Football Union and Others 2000 (1) SA 1 (CC) at para [63] that:

“The precise nature of the imputation should be made clear to the witness so that it can be met and destroyed, particularly where the imputation relies upon inferences to be drawn from other evidence in the proceedings. It should be made clear not only that the evidence is to be challenged but also how it is to be challenged. This is so because the witness must be given an opportunity to deny the challenge, to call corroborative evidence, to qualify the evidence given by the witness or others and to explain contradictions on which reliance is to be placed.”

[19] The failure by the first appellant’s counsel to put the first appellant’s version to Captain Smit and Mr Putsu can only be a failure if he had instructions on the subject matter. If he had instructions then he should have put it to those witnesses who could have commented on it. The inference is that the first appellant did not provide counsel with the information and that he did not even tell his counsel that he may have touched the vehicle in July.

[20] Captain Smit lifted a fingerprint on the outside of the driver’s window of the Fidelity Guard vehicle. Mr Phillip Putsu, the driver of the van, testified that one of the robbers pointed a firearm at him and that the assailant further tapped on the driver’s window with a firearm. This person instructed him to lie down or he will be shot. An attempt was made to open the vehicle’s front door. It is very probable that the assailant left a fingerprint on the window.

[21] It was held in Scagell and Other v Attorney-General, Western Cape [1996] ZACC 18; 1997 (2) SA 368 (CC) at 375C that:

“The quantum of proof in criminal cases is always whether the State has discharged its onus of proving its case beyond a reasonable doubt and whether in this regard the accused’s version can be said to be reasonably possibly true having regard to the totality of evidence presented in the trial. Once a prima facie case has been established by the prosecution against an accused, the evidentiary burden (or “weerleggingslas”) shifts to the accused. And it is well established in our law that when such an evidential burden is imposed upon an accused person, there needs to be evidence sufficient to give rise to a reasonable doubt to prevent conviction. The doctrine of reasonable doubt is not to be applied to individual pieces of evidence.”

[22] The court a quo correctly found that the explanation by the first appellant could not have been reasonably possibly true as his finger print could not have remained on the window for 40 days before the offence was committed. In so doing the trial court looked at all the evidence. The first appellant’s version was false and was correctly rejected by the court a quo.

[23] The appeal against the conviction of the first appellant on counts 1 and 2 must be dismissed.

Counts 3 and 4

[24] Counts 3 and 4 relate to the unlawful possession of a firearm and ammunition in contravention of the relevant statutes. The respondent, correctly, concedes that it did not prove a crucial element of these offenses.

[25] The conviction and sentences on counts 3 and 4 must be set aside.

Both appellants: count 5 robbery

[26] Both the appellants were convicted on this count. It is common cause that the complainant, Mr W A Labuschagne, was robbed of his cell phone, keys, firearm, ammunition and liquor by two men wearing balaclavas on 4 August 2008 while he was in his house (which is situated behind his butchery on Ridder Street). His assailants ran away after the robbery. Mr Labuschagne’s employees saw what was happening when the assailants opened the gate by mistake. Alarm was given and the appellants were arrested almost immediately thereafter.

[27] The court a quo convicted the appellants on the strength of the evidence of Mr Labuschagne, Constable Mc Donald Matsoge and Constable Andries Piello Tshubela. The two constables are police reservists at Rustenburg Police Station.

[28] The appellants denied that they robbed Mr Labuschagne. The appellants say that they were on their way to the police station to collect the motor car belonging to the first appellant’s father. The second appellant had stopped to talk to another woman. When he finished talking, he rushed to catch up with the first appellant who had gone on ahead. They were stopped by the police who arrested them without telling them the reason for their arrest.

[29] Mr Skibi submitted that:

(a) Mr Labuschagne testified that his attackers were wearing balaclavas and he did not see their faces.

(b) Constable Matsoge testified that he arrested the first appellant and that the first appellant’s name is Abel Moate. Under cross-examination he agreed that the person he arrested is the second appellant.

(c) Constable Matsoge contradicted himself on a number of aspects which are of material nature. He first testified that he found a 9 x 19 millimetre pistol. He later said that he found a 9 x 18 millimetre and the third version, while still testifying in-chief, he said that he is conversant with firearms but not all of them.

(d) Mr Labuschagne testified that he told the police officers how the attackers were dressed during the robbery. He said one was wearing a grey windbreaker and the other was wearing a brown windbreaker. Constable Tsubela on the other hand testified that the person he arrested was wearing a black top which had red stripes. Constable Tsubela arrested the first appellant. The two arresting police officers testified that they were not told how the attackers were clad.

(e) There are contradictions between the evidence of the two police reservists Constables Matsoge and Tsubela and Mr Labuschagne. Mr Labuschagne testified that the accused were searched at the police station in his presence. His cell phone was found in the possession of one of the appellants and the bullets were found in possession of the other. Constables Matshoge and Tsubela did not mention anything about finding a cell phone in the possession of the appellants.

(f) The exhibits which were allegedly found by the police, firearm and/or bullets and cell phone were not presented to the court as exhibits. The tapes of the surveillances camera were not produced as exhibits. Mr Labuschagne was not asked whether he identified the firearm/s and/or bullets after they were recovered. The possibility exists that the appellants were innocent people who were walking along the street when they were arrested by Constables Matsoge and Tsubela.

(g) None of the arresting officers testified that keys were thrown away by any of the appellants.

(h) The court a quo erred by finding that the State succeeded in proving beyond reasonable doubt that the appellants are the people who robbed the complainant.

[30] Counsel for the respondent conceded that there are contradictions between the evidence of the state’s witnesses but contended that they are not of material nature. Counsel pointed to S v Bruiners en ‘n Ander 1998 (2) SACR 432 (SEC) at 435a-b that:

“Experience had shown that two or more witnesses hardly ever gave identical evidence with reference to the same incident or events. It was incumbent on the trial court to decide, having regard to the evidence as a whole, whether such differences were sufficiently material to warrant the rejections of the State’s version.”

[31] Counsel for the respondent submitted that all three State witnesses corroborated each other to the effect that shortly after the incident both the appellants were arrested and were immediately thereafter taken to the complainant’s place (an aspect which was not disputed by the defence). The complainant was asked whether they were the perpetrators and the complainant identified them as his assailants. The complainant further testified that he identified them by the clothes that they were wearing as they were still wearing the same clothes. One should bear in mind that a very short period of time had elapsed between the incident and the arrest. The incident was still fresh in the complainant’s mind. It was therefore contended that Mr Labuschagne could not have mistakenly identified the appellants as his assailants.

[32] The appellants testified that there were many people on the street on which they were arrested. It was submitted that it is therefore improbable that the arresting officers choose to arrest only the appellants if they were just walking normally. The probabilities are that the appellants were running, fleeing from the complainant’s place in an attempt to resist arrest.

[33] It was submitted that the contradictions made by the State witnesses were as a result of an error resulting from the lapse of time between the time of the incident and their testimony. For example Constable Matsoge testified that he arrested the first appellant and at the same time pointing at the second appellant. All he could remember was that the name of the person he arrested was Abel Moate. That this was merely an error on the part of Constable Matsoge is confirmed by the testimony of Constable Tsubela who testified that he arrested the first appellant and Constable Matsoge the second appellant. It clearly then proves that by pointing at the second appellant, Constable Matsoge meant to show that he arrested the second appellant.

Evaluation

[34] The law is clear as to how a court of law should approach contradicting evidence. In Bruinders it was said:

“Thirdly, the contradictory versions must be considered and evaluated on a holistic basis. The circumstances under which the versions were made, the proven reasons for the contradictions, the actual effect of the contradictions with regard to the reliability and credibility of the witness, the question whether the witness was given a sufficient opportunity to explain the contradictions – and the quality of the explanations – and the connection between the contradictions and the rest of the witness’ evidence, amongst other factors, are to be taken into consideration and weighed up.”

See also S v Mkohle 1990 (1) SACR 95 (A) at 98f–g.

[35] In S v Mokoena and Others 2006 (1) SACR 29 (W) at 49f, the court held on the issue of the assessment of evidence and the burden of proof:

“It is my duty to carefully consider the totality of the evidence and the probabilities in order to decide if the State has discharged its onus. The concept of ‘reasonable doubt’ does not mean all doubt and it is not expected of the State to close any conceivable avenue of escape.”

[36 ] The arrest of the appellants almost immediately after the robbery by police officers who were off duty, the presentation of these appellants to the complaint who would not have recognised them but who knew , minutes prior to this what they were wearing, the conveyance of the complaint and the appellants to the police station so that the complaint could be freed of his handcuffs and the appellants detained coupled with the recovery of some of the complaints goods on each of them constitutes strong evidence that the appellants were the persons who robbed him. The arresting officers’ account of the search at the police station is inconsistent with that of the complaint. But the officers were off duty and had little interest in the case other than handing the appellants over to their colleagues. The complaint on the other hand had a substantial interest in the goods that had been taken from him. He was a reliable witness and the contradictions do not detract from his veracity.

[37] The court a quo correctly disbelieved the appellant as their version was not reasonably possibly true and was entitled to find that the state had proven its case beyond reasonable doubt. The appeal against the conviction on count five must be dismissed.

Appeal against sentence

The first appellant

[38] The first appellant was convicted of offences which carry a minimum sentence: life imprisonment on count 1 and 15 years imprisonment on count 2. A court may impose a lesser sentence than the prescribed minimum sentence if there are substantial and compelling circumstances present which justify a deviation from the imposition of the prescribed minimum sentence. See section 51(1) and (3) of the Criminal Law Amendment Act 105 of 1997.

[39] Mr Skibi submitted that the issue to be determined is whether the sentences imposed on the first appellant is shockingly severe for this court to interfere. With respect this is not the correct point of departure. Where minimum sentence legislation applies one must ask whether there are substantial and compelling circumstances present.

[40] The first appellant’s personal circumstances are the following:

(a) He is 28 years of age.

(b) He is in a customary union.

(c) He has two children who were born out of wedlock and one child born from the customary union.

(d) During 2000 to 2006 he was employed at Fidelity Management - Cash in Transit.

(e) In 2005, he was convicted of common assault, and cautioned and discharged.

(f) The appellant was injured at the time he was sentenced - he was using crutches.

[41] Mr Skibi concedes that the offences were serious ones: murder committed during a robbery where a large sum of money was taken. But he submits that the appellant was only convicted on the doctrine of common purpose. There was no evidence that he was the one who pulled the trigger killing the deceased. It is submitted that on the murder count, the form of intention, would be one of dolus eventualis, which is a mitigating factor.

[42] It was submitted that when his personal factors are taken together it amounts to substantial and compelling circumstances which justify a deviation from the imposition of the prescribed minimum sentence more specially as on count 1 there is no evidence as to who fired the fatal shot that killed the deceased.

[43] It was submitted that the sentence of life imprisonment should be set aside and replaced and that the sentence imposed on count 1 be ordered to run concurrently with the sentence imposed in respect of count 2.

Both appellants

[44] The appellants have been found guilty of robbery with aggravating circumstances at the home of Mr Labuschagne. Both have been sentenced to 15 years imprisonment. The prescribed minimum sentence is one of 15 years imprisonment unless there are substantial and compelling circumstances which justify a lesser sentence.

[45] The personal circumstances of the first appellant have been set out above. The personal circumstances of the second appellant are as follows:

(a) He was 33 years old.

(b) He is a first offender.

(c) He is single but has a lover with whom he has a child.

(d) He has two children with his former lover.

(e) His children are at school and he is responsible for their education.

(f) He is asthmatic and was taking medication.

(g) He earned his living by buying and selling motor vehicles earning R5 000 – R6 000 profit per car.

(h) He and the first appellant had been in custody for more than 4 months.

(i) Almost all the items which were taken in this robbery were recovered.

(j) The victim was not seriously injured during the robbery.

[46] It was submitted that when all these factors are taken together cumulatively they constitute substantial and compelling circumstances which justify a lesser sentence than the one prescribed by the Act. It was submitted that in the circumstances this court should set aside the sentence and replace it with a lesser sentence.

Evaluation

[47] The crimes of which the first appellant has been convicted are serious crimes and the legislature, expressing the sentiments of our society, requires a heavy sentence unless there are substantial and compelling circumstances present.

[48] The personal circumstances of the first appellant must be weighed together with the interests of society and the nature of the crime to determine whether there are substantial compelling circumstances present. The crimes were serious. The murder was foreseen and was, on the facts, part of the modus operandi of taking the cash. A large amount of cash was taken. The complainant in count 5 was robbed while at home and assaulted. The first appellant did not show any remorse for committing these crimes. The personal circumstances are not such as to constitute substantial and compelling circumstances. The sentences imposed by the court a quo do not evoke a sense of shock.

[49] The second appellant was sentenced to 15 years imprisonment for the robbery, count five. Was the court a quo correct in finding that there were no substantial and compelling circumstances that justified the imposition of lesser sentence? Counsel for the respondent submitted that the sentence is a robust one, but only the appropriate sentence which could be imposed. The sentence is not disproportionate to the nature and seriousness of the crime, the interests of the community and the personal circumstances of the second appellant. Robbery is a serious crime. The personal circumstances of the second appellant are not unusual. The second appellant is a mature man. He showed no remorse for his crime. The court a quo’s finding that there was no substantial and compelling circumstances present cannot be faulted. The sentence does not induce a sense of shock.

[50] In the premises the appellants’ respective appeals against sentence must be dismissed.

[51] I make the following order:

1.(a) The appeal by the first appellant against his convictions and sentences on counts 1, 2 and 5 is dismissed.

(b) The appeal by the first appellant against his convictions and sentences on counts 3 and 4 is upheld, and the convictions and sentences are set aside.

2. The appeal by the second appellant against his conviction and sentence on count 5 is dismissed.

A A LANDMAN

JUDGE OF THE HIGH COURT

I concur

M M LEEUW

JUDGE PRESIDENT

I concur

N GUTTA

JUDGE OF THE HIGH COURT

APPEARANCES:

DATE OF HEARING : 11 MAY 2012

DATE OF JUDGMENT : 04 JUNE 2012

COUNSEL FOR APPELLANT : ADV N L SKIBI

COUNSEL FOR RESPONDENT : ADV M JOHNY

ATTORNEYS FOR APPELLANTS : MAFIKENG JUSTICE CENTRE

ATTORNEYS FOR RESPONDENT : DIRECTOR OF PUBLIC PROSECUTIONS

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