R v Tebetha

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Schreiner JA, Hoexter JA, Steyn JA, Malan JA and Ogilvie Thompson JA
• Judgment Date: 23 March 1959
• Citation: 1959 (2) SA 337 (A)
• Hearing Date: 10 March 1959

Schreiner, J.A.:

The appellant was tried together with one Ernest Mgemane on a charge of robbery by a Court consisting of ROPER, A.J., and assessors, sitting in the Witwatersrand Local Division. Ernest Mgemane was discharged at the close of the Crown case but the appellant was A convicted and declared an habitual criminal. The trial Judge granted him leave to appeal to this Court.

It was proved that soon after 9 a.m., on the 4th September 1957, a panel van belonging to the City of Johannesburg stopped in Wolhuter Street at the eastern entrance to the municipal market in order that money should B be collected from the market offices and conveyed elsewhere in the van. The driver, one Jarvis, remained seated in the driver's seat while his assistant, David Ngwenya, collected the money in tin containers from the market and placed them in the back of the van. As soon as David had resumed his seat next to Jarvis, two natives came up from the rear of the van, one on each side, cowed Jarvis and David with revolvers, pulled C them off the van and took their places. At the same time a car apparently containing confederates blocked the van's way in front. The robbers then drove the van off.

Later the same day the van was found abondoned on a gravel road on the property of the Crown Mines Limited. The same evening in a hole near Van D Wyk's Rust the tins were found which had contained the money totalling nearly £12,000 but which were now empty.

The issue in the case was whether the appellant had been proved to be one of the robbers. The trial Court relied on several forms of evidence. In the first place there was some direct evidence of identification. Jarvis, the driver of the van, gave evidence that the appellant had E taken part in the robbery, but both at an identification parade and at the trial he said that though the appellant's face seemed familiar to him he could not be positive that he was one of the robbers.

A witness who stated in evidence that the appellant was one of the two robbers was one Theron, who was at the time working in an office on the second storey of a building on the eastern side of Wolhuter Street, F immediately opposite to where the van was standing. Theron was called to the window by a fellow worker named Craemer who saw the robbery from the beginning but was not able to assist in the identification. Theron had on an identification parade picked out someone as being one of the robbers who was not such. At another parade, he picked out the appellant G and also another man. At the preparatory examination he had said that he was unable to state which of the two was on the eastern side of the van; at the trial he said it was the appellant. The other man picked out by him was not concerned in the robbery. He also said in cross-examination that he had been reluctant at the parade to state what H part each of the men he identified had played because the attorney of the appellant was present at the parade. At the preparatory examination, however, and again at the trial he stated that the appellant, or someone who looked just like him and was of similar build, pulled the driver of the van out of his seat and took his place.

The trial Court was impressed by Theron who was found to be a careful and conscientious witness. But even such a witness could make a mistake, as indeed Theron admitted that he had done in regard to one

Schreiner JA

of his identifications. Theron said he thought that the robber had a hat on, which would make it more difficult to see his face clearly from above. The trial Court concluded that the identification evidence was not sufficient by itself to justify the conviction of the appellant.

Another form of evidence relied on by the Crown was the fact that after A his arrest, which took place on the 7th November 1957, more than two months after the robbery, sums totalling between £350 and £400 were found on his person or in his house. In October 1957, moreover, he had made purchases to an amount of nearly £50. In September 1957 he took part in negotiations for the purchase of a car, T.K. 371, which, when B bought, was registered in the name of a friend of his named Vincent Mtembu. Both he and Vincent said that it was Vincent's car and Vincent actually paid the £275 deposit on it, but the appellant admittedly drove it from time to time. The trial Court found that at one stage he told a detective that it was his own car. The Court considered that the possession of substantial wealth at that time did not justify an C inference adverse to the appellant, who might have had other sources of income, lawful or unlawful, and that the same applied to the car negotiation, though it seemed somewhat suspicious.

Another type of evidence led against the appellant consisted of two D writings - a note and a letter. The note was found attached to the steering wheel of a car standing in a Johannesburg street. It began 'Dear Ernest', which was the first name of the person Ernest Mgemane who was charged with the appellant, and who was arrested when he approached the car to which the note was affixed. The appellant denied acquaintance with Ernest Mgemane and authorship of the note. The trial Court found E that there was remarkable similarity between the writing on the note and what was the admitted writing of the appellant, and thought that the note threw considerable doubt on the evidence of the appellant that he was a stranger to Ernest Mgemane. The Court, however, refrained from finding in so many words that the note was written by the appellant.

F The letter, which ROPER, A.J., described as a most damaging document, was admittedly written by the appellant to his wife while he was in prison awaiting trial. The material part of it was aimed at drilling witnesses to support his proposed story that in the early part of September 1957, when the robbery was committed, he was spending his G annual leave from work in Potchefstroom. In his evidence he did not rely on this alibi but said that he had taken his leave in August 1957 and that when he wrote the letter in December 1957 or January 1958 he had forgotten in which month he had taken his leave. The letter recited the evidence to be given by the witnesses, in one case even providing H the appropriate answers to be given to questions that might be expected to be put in cross-examination. The letter was held by the trial Court to constitute an attempt to manufacture a false alibi and there is no reason whatever to disagree with this conclusion. The witnesses to the other alibi, which was actually set up at the trial, deposed to the presence at the appellant's house on the 4th September 1957 of the car T.K. 371, mentioned above, although it was only acquired some three weeks later. The trial Court accordingly held,

Schreiner JA

quite rightly, that the alibi which he tried to establish by evidence was as false as the one which he had planned when he wrote the letter.

Suborning perjury and setting up a false alibi are pointers towards guilt, though they may conceivably be the result of frantic efforts by a A person innocent of the main crime to establish his innocence in the face of suspicious looking circumstances...