S v Moloi

• Jurisdiction: South Africa
• Court: Free State Division, Bloemfontein
• Judge: Daffue J and Mthembu AJ
• Judgment Date: 23 November 2017
• Citation: 2018 JDR 1169 (FB)
• Hearing Date: 20 November 2017
• Docket Number: A202/2017

Daffue J and Mthembu AJ:

I. INTRODUCTION

[1]

Appellant was arraigned in the Regional Court in Bethlehem on a charge of housebreaking with intent to steal and theft. On 19 February 2016 he was convicted as charged and on 23 February 2016 sentenced to 6 years' imprisonment.

2018 JDR 1169 p2

Daffue J and Mthembu AJ

[2]

He unsuccessfully applied for leave to appeal against his conviction and sentence in the court a quo, but leave to appeal against both conviction and sentence was granted on petition to this Court by Mbhele, J and Ramdeyal, AJ on 2 June 2017.

II. GROUNDS OF APPEAL

[3]

Several grounds of appeal were raised, but the more pertinent of these are the following in respect of the conviction:

3.1

Although the appellant's version was placed on record by his attorney at an early stage of the proceedings, the court a quo failed to consider and analyse the facts before it.

3.2

The court a quo failed to consider that none of the complainant's stolen property was recovered from appellant.

3.3

Notwithstanding the fact that the complainant and her husband denied that they knew the appellant, he had been visiting their home several times, the last time two days before the housebreaking and theft and that he on all probability left his fingerprints on the TV stand that day.

3.4

The court a quo should have found that both complainant and her husband knew the appellant as he testified, notwithstanding their denial and that complainant's husband might have been informed by complainant about the appellant's version put to complainant when she testified a few days earlier.

2018 JDR 1169 p3

Daffue J and Mthembu AJ

3.5

The court a quo erred in not finding that appellant's version was reasonably possibly true, and consequently, it committed a misdirection in the evaluation of the evidence.

[4]

Pertaining to the sentence, it is appellant's submission that the court a quo erred in over emphasising the seriousness of the offence, the interests of society and the prevalence of offences such as housebreaking and theft. Accordingly, a sentence of 6 years' imprisonment was inappropriate.

III. RELEVANT LEGAL PRINCIPLES

[5]

Where an appeal is lodged against a trial court's findings of fact, the court of appeal must take into account that the court a quo was in a more favourable position than itself to form a judgment. When inferences from proven facts are in issue, the court a quo may also be in a more favourable position than the court of appeal, because it is better able to judge what is probable or improbable in the light of its observation of witnesses who have appeared before it. Therefore, where there were no misdirections on facts, a court of appeal assumes that the court a quo's findings are correct and will accept these findings, unless it is convinced that it is wrong. See R v Dhlumayo and Another 1948 (2) SA 677 (AD) at 705 - 6.

[6]

In order to interfere with the court a quo's judgment, it has to be established that there were misdirections of fact, either where reasons on their face are unsatisfactory, or where the record shows them to be such. See S v Monyane and Others 2008 (1)

2018 JDR 1169 p4

Daffue J and Mthembu AJ

SACR 543 (SCA) at para [15] where the Supreme Court of Appeal stated that it is only in exceptional cases that that Court will be entitled to interfere with the trial court's evaluation of oral evidence. There may also be misdirections, though the reasons were satisfactory, if it has been shown that the court a quo had overlooked other facts or probabilities.

[7]

It is acceptable in evaluating the evidence in totality to consider the inherent probabilities. Heher AJA (as he then was) dealt with this aspect as follows in S v Chabalala 2003 (1) SACR 134 (SCA) at para [15]:

"The correct approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and, having done so, to decide whether the balance weighs so heavily in favour of the State as to exclude any reasonable doubt about the accused's guilt."

[8]

The court of appeal will seldom interfere with the trial court's credibility findings as the trial court was in a much better position to evaluate the evidence and behaviour of witnesses, their responses to questions and their demeanour in general. However if it emerges from the trial court's reasons for its credibility findings that it erred, the court of appeal will be free to reject same and to reach its own conclusions.

[9]

The State's case was largely based upon circumstantial evidence. In R v De Villiers 1944 AD 493 at 508 - 9 the Appeal Court referred to the well-known dictum in R v Blom 1939 AD 188 at

2018 JDR 1169 p5

Daffue J and Mthembu AJ

202 pertaining to the test to be applied when reliance is placed on circumstantial evidence and pointed out that it is not each proved fact that must exclude all other inferences, but the facts as a whole must do so, and continued as follows:

"The Court must not take each circumstance separately and give the accused the benefit of any reasonable doubt as to the inference to be drawn from each one so taken. It must carefully weigh the...