IN THE HIGH COURT OF

Case No. CA&R/2008

In the matter between:

VINTA WORKMAN GQIRANA APPELLANT

AND

THE STATE RESPONDENT

APPEAL JUDGMENT ______

GREENLAND AJ:

[1] This is an appeal in respect of convictions and sentences handed down by the High Court, Bisho.

[2] Conviction The appellant, and four (4) others, were convicted of –

Count 1) Murder, by shooting, of adult male Alfred Nzimeni Makasi, on 1st April 2002 at Township, .

Count 2) Attempted murder, by shooting and wounding, of one Nolulamile Nonkosi Makasi, on the same date and at the same place.

Count 3) Robbery with aggravating circumstances of adult male Alfred Nzimeni Makasi of the sum of R38 000,00 at the same time and place.

Count 4) Robbery with aggravating circumstances of adult male Alfred Nzimeni Makasi of a motor vehicle at the same time and place.

Of the five accused only the appellant, who appeared as Accused 1 at the trial in the court, a quo, has appealed.

[3] Incident All the charges arise on account of an incident which occurred at Ilitha Township, Zwelitsha on the evening of 01 April 2002. Four of the accused confronted the victims in their home. The deceased was shot several times and according to the post­mortem report died of “bullet wounds to the chest”. His wife, complainant in Count 2, also sustained gunshot injuries but fortunately survived. In Counts 3 and 4 the deceased was relieved of the money and a vehicle at gunpoint.

It is common cause that the actions of the perpetrators constitute the charges alleged. It is also common cause that appellant was not present when these events occurred.

2 [4] Appellant’s Alibi The appellant advanced an alibi as his defence claiming to have been at a big church function in Alice. He was disbelieved. It would appear that veracity or truthfulness is not a virtue that the appellant has managed to internalise as a churchgoer.

His mendacity was so self evident that his counsel on appeal, Advocate T. N. Price, has very fairly asked this court to disregard his alibi and approach the matter on the basis of the remainder of the evidence proffered by the State witnesses and one Sandile Joseph Smith (“Smith”), who appeared as Accused 2, in particular. With this approach State counsel, Adv M. P. Z. Sotenjwa, was in full agreement.

Appellant’s role [5] As agreed between counsel it is now beyond dispute that the perpetrators, (the remaining accused and two accomplices), were conveyed in a vehicle belonging to the appellant to a point where five of them alighted and travelled on foot to the actual scene of the crimes. The appellant and accomplice witness Zenzile Johannes Mdlokovane (“Mdlokovane”) (warned in terms of section 204 of the Criminal Procedure Act, 51 of 1977 (“CPA”) waited for some time and then deserted the scene, much to the chagrin of the actual perpetrators on their return from killing and robbing.

It is agreed by counsel that in the scenario of the criminal enterprise that was played out the vehicle should be seen as the getaway vehicle.

State counsel avers, inter alia, the fact that he supplied the vehicle, and travelled with the other accused in order to provide a means of getting away makes this appellant fully complicit in the crimes they committed especially

3 as he had been involved in a reconnaissance of the crime scene some days before. As will be seen the issue of his alleged involvement in a reconnaissance has far reaching implications as regards the issue of complicity.

Appellant counsel’s neat response is that, whilst he was physically involved as alleged, except for the reconnaissance, he is not to be adjudged complicit for lack of mens rea, i.e., he was unaware of the nature and purpose of their intended actions and at no stage identified with such purpose. This submission is recast as follows – there is a reasonable doubt of complicity on his part. That the fundamental issue is that of mens rea see S v Safatsa and Others 1988 (1) SA 868 (A) at 896 D–E in particular.

This Court stands to be reminded that mendacity on the part of an accused is not to be equated with proof of guilt. Included in the institutional memory of the Court must be the sober realization that even innocent people lie, “guild the lily”, massage facts, exaggerate and change their stories particularly if the accused has a perception that the actual truth and/or circumstances of the matter are contextually embarrassing, seemingly incriminatory or just not good enough and that therefore the court will simply not believe him or her. See for instance S v MTSWENI 1985 (1) SA 590 (A) which in the headnote reads –

“Although the untruthful evidence or denial of an accused is of importance when it comes to the drawing of conclusions and the determination of guilt, caution must be exercised against attaching too much weight thereto. The conclusion that, because an accused is

4 untruthful, he therefore is probably guilty must especially be guarded against. Untruthful evidence or a false statement does not always justify the most extreme conclusion. The weight to be attached thereto must be related to the circumstances of each case. In considering false testimony by an accused, the following matters should, inter alia, be taken into account: (a) the nature, extent and materiality of the lies and whether they necessarily point to a realisation of guilt; (b) the accused's age, level of development and cultural and social background and standing insofar as they might provide an explanation for his lies; (c) possible reasons why people might turn to lying, e.g., because, in a given case, a lie might sound more acceptable than the truth; (d) the tendency which might arise in some people to deny the truth out of fear of being held to be involved in a crime, or because they fear that an admission of their involvement in an incident or crime, however trivial the involvement, would lead to the danger of an inference of participation and guilt out of proportion to the truth.”

In this case the fact that the appellant provided the vehicle in which a murderous group was conveyed to the scene of their evil endeavours certainly provided a huge incentive for the appellant to alter the facts so as to distance himself from the scene. Hence the false alibi. It is on this platform that the appeal is founded.

The issue [6] Since the appellant did not participate in the murder, attempted murder and robberies the crisp issue is whether or not the State proved beyond a reasonable doubt that the appellant was a co­perpetrator and/or had common purpose with the perpetrators. Instructive on the requirements

5 for common purpose to be satisfied is the case of S v NOOROODIEN EN ANDERE 1998 (2) SACR 510 (NC), which in the headnote reads – (in dealing with allegations of a fatal assault) ­

“General principles of liability ­ Common purpose ­ What constitutes ­ Participant in common purpose sought to be held liable must associate 'actively' with achievement of common purpose ­ Requirements being: (1) participant to be present at scene of violence; (2) participant to be aware of assault upon victim; (3) participant to intend to make common cause with those actually perpetrating assault; (4) participant to manifest sharing of common purpose with perpetrators of assault by performing some act of association with conduct of others; (5) participant to have requisite mens rea in respect of killing of the deceased, being either dolus directus or dolus eventualis……

………The liability of every co­perpetrator is based on his own act and his own intent…….An accomplice is not a perpetrator. He associates himself with the act of the perpetrator by providing the information, the means or the opportunity to further the commission of the offence……” (my italics)

At the outset it was made clear that the State is alleging that the appellant was a co­conspirator, i.e. involved in the planning to commit the offence. If the appellant was involved as a co­perpetrator the issue is not only that of common purpose, which must be distinguished as a legal concept. So the first issue is the factual one of whether or not he actively conspired with the others to perpetrate the crimes. See S v NOOROODIEN EN ANDERE, supra, in which the distinction between conspiracy and common purpose is

6 clearly made.

Also see S v Safatsa and Others, supra, at 896 and 901; S v Malinga 1963 (1) SA 692 (A) at 695; S v Daniëls 1983 (3) SA 275 (A) at 323F; S v Shaik 1983 (4) SA 57 (A) at 65A.

What the State contends, and which the court a quo accepted, is that he was involved in a reconnaissance of the crime scene a day or so before actual perpetration so his involvement in planning the crime is a given. It contends further that, in any event, he identified with, approved of and associated himself with the intended and planned actions of the perpetrators. From the above what can be abstracted is that the appellant’s guilt is proved if it has been shown beyond reasonable doubt that in providing transport to a point near the scene of the crimes the appellant was well aware of the intended purpose of his passengers who were the actual perpetrators and that he was identifying with such purpose.

The judgement [7] For the sake of legal convenience I refer herein to the other accused as “the perpetrators” (per S v NOOROODIEN, supra, distinguishing between an accomplice and a perpetrator).

In convicting the appellant the Court, a quo, accepted ­

a) the evidence of accomplice witness and perpetrator Siyabulela Mabele (“Mabele”) that –

7 (i) the appellant had driven the perpetrators on a reconnaissance trip to the area a day or so before the actual date of commission;

(ii) he was party to an agreement that upon the perpetrators succeeding in stealing another vehicle in the robbery it would be driven to the spot where the appellant and witness Mdlokovane had been left and the appellant’s vehicle would be used to “lead” them to a place where the stolen vehicle would be dumped and escape completed in the appellant’s vehicle; and

(iii) in the event of there being no success in stealing another vehicle they would return to the spot where the vehicle was with the appellant and the accomplice witness Mdlokovane and escape in the appellant’s vehicle;

(iv) after two (2) days the appellant, accompanied by Mdlokovane, approached the perpetrators in demanding “their share of the loot”, i.e., a share in the R38 000,00 that had been stolen but were given only R150,00 each, as opposed to R1 800,00 for their cowardice at having deserted the scene;

b) The evidence of accomplice witness Mdlokovane that –

8 (i) on the day in question Mabele asked the appellant to take them to Ilitha township as “they wanted to sort something out at Ilitha”

(ii) en route appellant “probed further as to the purpose for going to Ilitha, and Mabele explained that the purpose was to rob a supermarket” and Mabele associated himself ‘with the rest just like Accused 1 did...”

(iii) the reason why he and the appellant deserted the scene was that they spotted a police van turning into the street and decided that “the situation was now bad” and the next day it was the appellant who explained to one of the perpetrators why they had left the spot;

(iv) the next day it was at the suggestion of the appellant that they went to Dimbaza to demand their share of the money;

(v) appellant was given R600,00 made up by each of the others contributing R150,00 except for Smith who refused to give money to “people who did not work”.

c) The evidence of co­accused and perpetrator Smith which

9 “….except in a few areas ….confirmed what State witnesses Mabele and Mdlokovane had said…… (italics are quotes from the judgement)

Sandile Joseph Smith – Co­accused [8] Smith appeared in the Court a quo as Accused 2. Because of the overall reliance placed on his evidence in the judgement, as being confirmatory of the evidence of the accomplices, it is necessary to scrutinize his evidence.

a) On his evidence the appellant was not present at all when the reconnaissance trip was carried out but in hospital in terms of his understanding and what accomplice witness Mdlokovane said to him in particular.

b) It is also the clear evidence of Mdlokovane that when they first met on the day in question the appellant specifically enquired as to their purpose and was told “…we are just requesting you to take us to Ilitha…” to which the appellant responded by insisting on being paid for fuel.

c) Although the appellant was present when they were being conveyed to the scene of crimes he at first made no mention of discussions occurring on the trip which would have alerted the appellant as to the criminal purpose. Later he said that agreement was reached in the motor car that there would be no shooting and no blood without specifying that the appellant was party to such discussion or heard it. Mdlokovane denies that a discussion regarding ‘no shooting” and “no blood’ occurred saying he never

10 heard any discussion that firearms should be used to only threaten and not shoot.

d) He states that four pistols were distributed to his accomplices from a small bag “…..as we were going towards the shop”, having been taken out of the bag “at the time when we were alighting from the vehicle,” without specifying whether or not the appellant saw any of this.

e) Whereas he confirms that Mdlokovane and the appellant approached them about three or four days after the incident and that a quarrel occurred about payment out he makes no mention of the appellant being the one who asked for a share of the criminal spoils.

f) He claimed to have been picked up from his home by Mdlokovane and the appellant in direct contradiction of Mdlokovane’s evidence that they met in King Williams Town labelling Mdlokovane as a liar.

g) He labelled Mdlokovane’s evidence that the appellant had demanded petrol money as “blue lies”.

h) And he categorically denied that the appellant was told “...the purpose of going to Ilitha was to rob” protesting that “…even the court knows that, there is no robbery that one would tell people that now we are going to rob”.

11 (Statements in quotes are extracts from the record).

Conclusion re Sandile Joseph Smith – Co­accused [9] To the above must be added the observation that this witness, like the accomplices Mabele and Mdlokovane, in terms of his showing on record, cannot be classified as a good witness. Central to his performance was to play down his role and to be extremely vague as to how the murder, attempted murder and robberies were actually committed.

Important is the fact that he incriminates the appellant only in terms of a bald assertion – “Accused No. 1 knows about this case very well, he must tell you the truth all about what he knows, he must not lie even to his council (sic)”.

Most importantly it is clear that the Court erred in accepting that the appellant was involved in the reconnaissance trip as claimed by Mabele. The evidence of Smith and Mdlokovane clearly excludes such involvement. The implications of the error are fundamental and far reaching.

• If the appellant did partake in the reconnaissance trip then it was safe to accept that he was involved in the planning and his identification with and commitment to the criminal cause stands proved (as was the finding in the judgement). Put correctly his role as a co­perpetrator with common purpose as claimed by the State stands proved.

• However if the first time he became aware of the criminal purpose of the perpetrators was only en route to the scene then the issue of his complicity (as co­perpetrator and/or on the basis of common purpose)

12 becomes tenuous and problematical as may be appreciated in terms of the central theme of this judgement.

On Smith’s evidence a court can not conclude that the appellant identified himself with the criminal purpose of the perpetrators as he says that the appellant was not present at the reconnaissance trip and there is no evidence that he partook of discussions in which the perpetrators made their purpose known. At best the appellant may have overheard statements in the vehicle in which the witness was given the assurance that there would be no shooting and no blood. Such statements are not to be classified as only consistent with an intended robbery. They might as well refer to the intended settling of a score or quarrel. His evidence as to when the weapons were distributed does not prove that the appellant witnessed this or had knowledge of this as this may have well occurred immediately after they alighted from his vehicle and out of his sight.

Even if the appellant did see this; his actions of then sitting in the getaway car for a while before deserting the scene is more in keeping with an act of disassociation than with association.

His categorical statement that robbery was not discussed on the way to the scene cannot be reconciled to any evidence suggesting otherwise. It is fundamentally exculpatory as it means that the appellant could not have been aware of the intended criminal purpose and therefore could not have identified with it.

13 Misdirection in the judgement [10] In the circumstances the finding in the judgement that Smith “….except in a few areas ….confirmed what State witnesses Mabele and Mdlokovane had said…” was, with respect, a clear misdirection in the absence of an appreciation of their very real differences, an assessment of the merits and demerits of each and a reconciliation of their evidence in terms of the cautionary rule regarding accomplices. See generally S v ZWANE AND OTHERS (3) 1989 (3) SA 253 (W) at 262 ­

“It is also part of the State's case that the accused acted with common purpose. It is submitted that the accused not only pursued the same purpose, but that they have agreed, or are deemed to have agreed, to share that purpose. The State submits that in the result the accused may be held liable for the acts of each other. See R v Adams and Others 1959 (1) SA 646 (Sp Crim Ct) at 654C ­ D. In R v Kahn 1955 (3) SA 177 (A) at 184 Centlivres CJ said: 'The words ''common purpose'' are well known in the criminal law and connote that there is a purpose shared by two or more persons who act in concert to do something. There may be an express agreement between such persons to achieve some object or there may be an implied agreement to the same end.' See further S v Shaik and Others 1983 (4) SA 57 (A) at 64H ­ 65B. The Court is asked by the State to rely on the evidence of accomplices. Should it become necessary to rely on such evidence for a conviction the Court will, in the words of Holmes JA in S v Hlapezula and Others 1965 (4) SA 439 (A) at 440E ­ G, warn itself as to the dangers inherent in the testimony of an accomplice, and will further enquire as to the presence of some safeguard reducing the risk of a wrong conviction.”

a) In favour of the appellant was a consensus between the two accomplice witnesses as regards the allegation of the appellant asking to be paid. Smith says that the appellant had wanted petrol money from the first moment of being asked to provide the means of conveyance. This was confirmed by Mdlokovane in specific

14 terms to which was added –

“..the promise was that he was going to get (petrol) money either that, late that evening or the following day, is that so? ­­­­­­­­ That is correct sir” and as regards the visit with this witness after the incident in which the witness wanted a share of the loot –

“…now is it your evidence that accused 1 when he got to Dimbaza and met

George he demanded from George money for petrol? ­­­ He said so at the time when we arrived there ….. I have come to collect petrol money or money for petrol ……when all others had arrived there … accused no. 5 he explained that …(the appellant)… had arrived and he had come in order to collect money for the fuel”

Only later claiming that the appellant had suggested that they demand a share, having read about the robbery proceeds in the newspaper, and that upon refusal he, the appellant would demand money for fuel.

b) As regards his (Mdlokovane’s) claim that there was a conversation in the vehicle in which robbery of a supermarket was discussed he is adamant that neither he nor the appellant contributed saying there was no discussion about the appellant’s participation. A specific answer he gave when pressed was – “Well because of the fact that we did not discuss the issue as to whether who is part of the robbery and who is not part of the robbery.”

15 Mr Mdlokovane the question is simple accused no. 1 never expressly said in your presence that he is part of the robbery? ­­­ Not to me.”

c) It is therefore difficult to reconcile this with his further evidence that there was an arrangement in terms of which he and the appellant were to wait and provide a means of getaway claiming that the appellant ­ “had no problem with that … did not refuse…agreed that we were going to wait there”. To this must be added the fact that it was his evidence that he and the appellant deserted the scene upon seeing a police van travelling on a road leading to Ilitha Township.

d) It is obviously not possible to reconcile this to the evidence of Smith that there was no discussion about the intended robbery in the vehicle.

e) It is also not possible to reconcile the evidence of Smith with that of Mdlokovane that there was a discussion in the vehicle that no blood would be spilt.

f) On the above the Court a quo should have found specifically that the appellant was not involved in the planning and, at best, only became aware of the purposes of the trip en route to the scene. It should have therefore excluded complicity on the basis of him being a co­conspirator.

g) It should have then carefully examined the evidence of the

16 witnesses in order to assess whether or not it was safe to accept beyond a reasonable doubt that the appellant had common purpose by having committed to involvement particularly as there was only the scantiest evidence as to what the appellant is alleged to have actually said in the vehicle. Central to such assessment is the realization that the witnesses on this critical aspect were accomplices warned in terms of section 204 of the CPA. It is, of cause, trite that such persons are prone to changing facts so as to incriminate another. Although the judgement states that the witnesses had been warned in terms of section 204 nothing else appears therein to indicate that the Court specifically applied its mind to this particular danger in relation to the factually very thin thread on which incrimination of the appellant was to be found. As said the erroneous finding that the appellant was involved in the reconnaissance trip, and therefore in the planning, must have induced a comfort zone in which the need to scrutinize the evidence of an alleged commitment to common purpose was not fulfilled.

Conclusion [11] When all is said and done the fundamental question remains as to whether complicity is proved beyond a reasonable doubt. Treatment of this eternal question was well set out by Yekiso J in S v ISAACS AND ANOTHER 2007 (1) SACR 43 (C) at 49 –

“[21] Moreover, in criminal trials the onus rests on the State to prove

17 the accused's guilt beyond reasonable doubt. If at the end of the trial the court is left in doubt about the guilt of the accused, the latter is entitled to the benefit of the doubt and to his discharge. The rule is illustrated as follows in S v Van der Meyden 1999 (1) SACR 447 (W) at 448f ­ g: 'The onus of proof in a criminal case is discharged by the State if the evidence establishes the guilt of the accused beyond reasonable doubt. The corollary is that he is entitled to be acquitted if it is reasonably possible that he might be innocent (see for example, R v Difford 1937 AD 370 at 373 and 383). These are not separate and independent tests, but the expression of the same test when viewed from opposite perspectives. In order to convict, the evidence must establish the guilt of the accused beyond reasonable doubt, which will be so only if there is at the same time no reasonable possibility that an innocent explanation which has been put forward might be true. The two are inseparable, each being the logical corollary of the other.' [22] The conviction should be based on the evidence as a whole and should not be based on a portion of evidence tendered. The following was said in S v Van der Meyden (supra) at 449j ­ 450b: 'The proper test is that an accused is bound to be convicted if the evidence establishes his guilt beyond reasonable doubt, and the logical corollary is that he must be acquitted if it is reasonably possible that he might be innocent. The process of reasoning which is appropriate to the application of that test in any particular case will depend on the nature of the evidence which the court has before it. What must be borne in mind, however, is that the conclusion which is reached (whether it be to convict or to acquit) must account for all the evidence. Some of the evidence might be found to be false; some of it might be found to be unreliable; and some of it might be found to be only possibly false or unreliable; but none of it may simply be ignored.”

On the facts it must be accepted that the appellant was not part of the gang and was not involved in the planning as there is no evidence to that effect. It must also be accepted that he did not partake in a reconnaissance trip of the target site and that when first approached to provide conveyance his involvement was to provide transport in return for payment without any knowledge on his part of the purposes of the trip. There is no evidence that he ever saw that the perpetrators were armed.

18 Convictions on Murder and Attempted Murder [12] On these facts, even if were to be accepted that he became aware during conveyance that robbery was intended, the conviction for murder and attempted murder cannot be upheld. The reason for this is that robbery can be, and often is, perpetrated without killing. Since it cannot be found that he was aware that firearms were to be employed it cannot be found that he ought to have foreseen their use and death as a consequence.

Convictions on Robbery [13] This leaves the issue of robbery. The evidence of the accomplice, Smith, on which the Court a quo placed reliance, includes an adamant claim that the robbery was not discussed in the vehicle during conveyance to the scene. It is pertinent to point out that this evidence is by a witness who was clearly disposed to incriminating, not exculpating, the appellant. The witness was clearly hostile to the appellant.

Not being able to reconcile this evidence, adamantly advanced by a person who was intimately involved but hostile to the appellant, is that it in effect exculpates the appellant. If it cannot be rejected, it cannot be found that the appellant identified with the perpetrators in their intended purpose.

To this must be added the fact that neither Mabele nor Mdlokovane confirm Smith’s evidence that there was any discussion in the vehicle that bloodshed should be avoided with the latter specifically denying that firearms were mentioned and that he was aware of their intended use.

Objective factors that cast an innocent gloss on the appellant’s

19 involvement are – • The evidence from the accomplices clearly reveals that at both the beginning and end of the saga he was pre­occupied with securing payment described as “petrol money” from the perpetrators. • Mdlokovane was adamant that, in the vehicle, the appellant made no statements indicating that he was to be considered as a participant in the robbery. • The perpetrators left a member of their gang Mdlokovane with the appellant which action implies that the appellant had not committed to the cause and therefore could not be depended upon to provide a getaway facility. • The appellant relinquished association with the whole incident as soon as was practicable by driving off from the scene where he had been charged to wait and provide a getaway facility. Spotting a police van driving in the vicinity would appear to have presented as a fortuitous and convenient excuse to get out of a situation with which he really did not want to partake. • The fact that Mdlokovane, in his evidence, was quite unable to explain how he (Mdlokovane) committed to the cause in the alleged conversation in the vehicle en route to the crime scene. He was unable to furnish any details of a conversation that would have been consistent with such commitment. His difficulty is explicable only on the basis that no such conversation occurred in the vehicle. This renders a concomitant commitment by the appellant quite improbable which, in effect, confirms his own evidence that the appellant said nothing. • There was no evidence of what the appellant actually said in

20 allegedly committing to the cause apart from the one statement that he was prepared to wait for the return of the perpetrators.

Given these circumstances the question that arises is – is it a sound judicial approach to “cherry pick” and believe two of the witnesses relied on, and section 204 witnesses at that, in their claim that robbery, to the knowledge of the appellant, was discussed during conveyance in terms that make safe a finding that the appellant committed to the robbery? A reading of the record reveals a performance by each of these witnesses that is fairly typical of section 204 witnesses. There is an admixture of authenticity on facts, which is understandable on account of their involvement, but also clear indications of poor demeanour on the part of each. It is simply impossible to find that either can be believed on any particular aspect without independent corroboration. In particular it is difficult to find that each is reliable. In terms of S v MNYAMANA AND ANOTHER 1990 (1) SACR 137 (A) a finding of reliability is critical before acceptance of the evidence of an accomplice.

Whereas it was not so argued it does seem to be the position that the appellant’s guilt was established, at best, on a balance of probability rather than beyond reasonable doubt. Instructive appears to be S v PHALLO AND OTHERS 1999 (2) SACR 558 (SCA) at 563 –

“[10] On the basis of this evidence it was argued that the State had, at best, proved its case on a balance of probabilities but not beyond reasonable doubt. Where does one draw a line between proof beyond reasonable doubt and proof on a balance of probabilities? In our law, the

21 classic decision is that of Malan JA in R v Mlambo 1957 (4) SA 727 (A). The learned Judge deals, at 737F ­ H with an argument (popular at the Bar then) that proof beyond reasonable doubt requires the prosecution to eliminate every hypothesis which is inconsistent with the accused's guilt or which, as it is also expressed, is consistent with his innocence. Malan JA rejected this approach, preferring to adhere to the approach which 'at one time found almost universal favour and which has served the purpose so successfully for generations' (at 738A). This approach was then formulated by the learned Judge as follows (at 738A ­ C): 'In my opinion, there is no obligation upon the Crown to close every avenue of escape which may be said to be open to an accused. It is sufficient for the Crown to produce evidence by means of which such a high degree of probability is raised that the ordinary reasonable man, after mature consideration, comes to the conclusion that there exists no reasonable doubt that an accused has committed the crime charged. He must, in other words, be morally certain of the guilt of the accused. An accused's claim to the benefit of a doubt when it may be said to exist must not be derived from speculation but must rest upon a reasonable and solid foundation created either by positive evidence or gathered from reasonable inferences which are not in conflict with, or outweighed by, the proved facts of the case.' (See also S v Sauls and Others 1981 (3) SA 172 (A) at 182G ­ H; S v Rama 1966 (2) SA 395 (A) at 401; S v Ntsele 1998 (2) SACR 178 (SCA) at 182b­h.) [11] The approach of our law as represented by R v Mlambo, supra, corresponds with that of the English Courts. In Miller v Minister of Pensions [1947] 2 All ER 372 (King's Bench) it was said at 373H by Denning J: '(T)he evidence must reach the same degree of cogency as is required in a criminal case before an accused person is found guilty. That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the cause of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence "of course it is possible, but not in the least probable", the case is proved beyond reasonable doubt, but nothing short of that will suffice.'”

Conversely applying the approach set out above the probability that may

22 be accepted, to my mind, is that the appellant either became aware of the intentions of the gang (to rob) or became suspicious of such intentions, probably on the total picture presenting, during the trip to the scene or immediately after the gang had disembarked and as a result then made off as soon as circumstance permitted. That circumstance was the “arrival” of a police van seen travelling in the area which provided a convenient excuse for the appellant to disassociate himself in the only way he could, i.e., by driving off. There was really nothing else the appellant could have done but to desert as soon as an opportunity presented. Certainly it is dangerous for this Court to take an armchair view of the matter and ex post facto insist on some higher level of disassociation such as that he ought to have told the perpetrators in the vehicle that he was having nothing to do with their actions etc…. Such a level of fortitude can hardly be expected of a man in the company of no less than six criminals.

Judgement [14] Since this Court does not have an explanation from the appellant, his alibi having been discarded on appeal, the real question posed may also be cast as – does the circumstantial evidence of his proved presence in a vehicle provided by him to the perpetrators to convey them to the scene of the crimes admit only of an inference of complicity? See for instance S v SHAIK AND OTHERS 2007 (1) SA 240 (SCA) at 294 –

“[161] We accordingly agree with the Court a quo that the circumstantial evidence fortifies Paruk's version that Shaik did attend the meeting to which the former testified. We agree with the trial Court's rejection of Shaik's denial that he attended the meeting as false. As the Court a quo found, it is not conceivable that Shaik would not have attended, regard being had 'for

23 the compelling reasons that required his presence'. We also agree with the Court's finding that Shaik was a party to the write­off.”

And later at p 297 “'In the present case the writings of Roy on the cutting slips and reconciliation slips were not tendered as evidence to prove the truth of what is asserted by him in them. In fact in these writings he does not make any assertions. But the writings are circumstantial evidence from which the part he was taking in the fraud can be inferred.”

The facts as a whole induce a reasonable doubt in my mind that the appellant was complicit. Identification with and commitment to the criminal objectives of the perpetrators does not appear to be the only inference to be drawn as required in terms of the classic test set in R v Blom 1939 AD 188 at 202 – 3. His silence when told of criminal purpose of the trip and subsequent desertion from the scene admit of the reasonable inference that he wanted nothing to do with the operation.

It seems to me that, at the very least, “it is reasonably possible that he might be innocent” as envisaged in S v Van der Meyden, supra, at 449j­450b. In the circumstances it is my judgement that the appeal be allowed and that the convictions and sentences on all four (4) counts be set aside.

______GREENLAND A.J.

24 I agree and it is so ordered.

______EBRAHIM J

I agree.

______ROBERSON A.J.

FOR THE APPELLANT : ADV T N PRICE FOR THE RESPONDENT : ADV M P Z SOTENJWA HEARD ON : 16 MAY 2008 DELIVERED ON :

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