S v Toubie

• Jurisdiction: South Africa
• Judge: Malan J, Khampepe J and Farber AJ
• Court: Witwatersrand Local Division
• Citation: 2004 (1) SACR 530 (W)
• Docket Number: A1059/02
• Counsel: Z Omar (attorney) for the appellant. M A Mohlala for the State.
• Hearing Date: 27 August 2003

Farber AJ:

At all material times relative to the events which will be described presently, a firm named Paputsi carried on business as a retailer of clothing from premises situate at the corner of Commissioner and Kruis Streets, Johannesburg. During the C late afternoon of 28 December 1998, a group of persons entered the premises. What then, and thereafter, happened can only be described as bedlam of the worst kind.

These events ultimately led to the arraignment on 6 August 2001 of the appellant before Mophosho AJ and two assessors in the Witwatersrand Local Division on ten counts. They are as follows: D

1.

Count 1 - the robbery of Corrie van Zyl and/or Zwelakhe Dumane and/or Jubeida Kroet, which robbery involved the removal from their possession of some 25 articles of clothing, three pairs of shoes and two pairs of sunglasses. E

2.

Count 2 - the robbery of Corrie van Zyl, involving a Seiko wristwatch and cash in the sum of R100.

3.

Count 3 - the robbery of Zwelakhe Dumane, involving a 9mm CZ7.65 pistol, bearing serial No WR227122, and a Motorola cellular telephone. F

4.

Count 4 - the murder of Mvuyo Mwelase.

5.

Count 5 - the attempted murder of Andreas Thoni.

6.

Count 6 - the attempted murder of Mbulaheni Hendrick Ramafamba.

7.

Count 7 - the attempted murder of Dumisani Kenneth Dhlamini. G

8.

Count 8 - the attempted murder of Emily Mollo.

9.

Count 9 - the unlawful possession of an unlicensed firearm in contravention of s 2, as read with ss 1 and 39, of Arms and Ammunition Act 75 of 1969.

10.

Count 10 - the unlawful possession of ammunition in contravention of s 36, as read with ss 1 and 39 of Act 75 of 1969. H

The State in the indictment alleged that the robberies which formed the subject-matter of counts 1, 2 and 3 had been committed in aggravating circumstances within the meaning of s 1 of the Criminal Procedure Act 51 of 1977 (the Code), which circumstances have, in relation to robbery or attempted robbery, been defined therein to mean: I

'(i)

the wielding of a fire-arm or any other dangerous weapon;

(ii)

the infliction of grievous bodily harm; or

(iii)

a threat to inflict grievous bodily harm,

by the offender or an accomplice on the occasion when the offence is committed, whether before or during or after the commission of the offence.' J

Farber AJ

Despite his plea of not guilty, the appellant was convicted on all counts, other than that relating to the attempted murder of Emily Mollo A (count 8).

These convictions attracted the following sentences:

1.

Count 1 - six years' imprisonment.

2.

Count 2 - six years' imprisonment. B

3.

Count 3 - six years' imprisonment.

4.

Count 4 - 20 years' imprisonment.

5.

Count 5 - six years' imprisonment.

6.

Count 6 - six years' imprisonment.

7.

Count 7 - six years' imprisonment.

8.

Count 9 - three years' imprisonment. C

9.

Count 10 - two years' imprisonment.

The trial Court directed that the sentences in respect of counts 1, 2, 3, 5, 6, 7, 9 and 10 were to run concurrently. The sentence in respect of count 4 stood alone. In the result, the appellant was effectively sentenced to undergo imprisonment for a total period of 26 years. D

There will be more on the aspect of sentence presently.

With the leave of the trial Court, the appellant now appeals to this Court against the convictions which were returned.

Before turning to the merits of the appeal, three preparatory remarks are perhaps apposite. E

Firstly, a note on the onus of proof in criminal cases. The criminal standard is proof beyond reasonable doubt. While the phrase is well known, its true meaning is frequently misunderstood. On this score, the comments of Olivier JA in S v Phallo and Others 1999 (2) SACR 558 (SCA) at 562g - 563e merit repetition. The learned Judge of Appeal, after posing the question where the line between proof beyond reasonable doubt and proof F on a balance of probabilities was to be drawn, went on to say the following:

'In our law, the 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 G 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); H

''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. I

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.'' J

Farber AJ

(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; A S v Ntsele 1998 (2) SACR 178 (SCA) at 182b - h.)

[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 B 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 C probable', the case is proved beyond reasonable doubt, but nothing short of that will suffice.'''

Secondly, the approach to be adopted in determining whether the onus of proof has been discharged in any particular case is frequently misconceived. The assessment of credibility, based on a piecemeal, self-contained and insular analysis of the evidence of each D of the witnesses who might have testified at the trial, may tend to distort reality. What is required is an integrated approach, based on the evidence in its totality. Here again, a timely reminder is merited and I can do no better than refer to the following extract from the judgment of Nugent J (as he then was) in S v Van der Meyden 1999 (1) SACR 447 (W) at 448h - 450c: E

'In whichever form the test is expressed, it must be satisfied upon a consideration of all the evidence. A court does not look at the evidence implicating the accused in isolation in order to determine whether there is proof beyond reasonable doubt, and so too does it not look at the exculpatory evidence in isolation in order to determine whether it is reasonably possible that it might be true. In F R v Hlongwane 1959 (3) SA 337 (A), after pointing out that an accused must be acquitted if an alibi might reasonably be true, Holmes AJA said the following at 340H - 341B, which applies equally to any other defence which might present itself:

''But it is important to bear in mind that in applying this test, the alibi does not have to be considered in isolation. The G correct approach is to consider the alibi in the light of the totality of the evidence in the case, and the Court's impressions of the witnesses.''

Counsel for the accused referred us to three cases which are frequently cited in this Court in elaboration upon that test. In S v Kubeka 1982 (1) SA 534 (W) Slomowitz AJ said the following at 537F - H: H

''Whether I subjectively disbelieve (the accused) is not the test. I need not even reject the State case in order to acquit him. I am bound to acquit him if there exists a reasonable possibility that his evidence may be true.''

That passage does no more, in effect, than to reiterate that the conclusion of a criminal court is not to be reached merely by choosing what it considers to be the better of two competing versions (Hlongwane's case supra at 341A; S v Singh 1975 (1) SA 227 (N)). Purely as a matter of logic, I the prosecution evidence does not need to be rejected in order to conclude that there is a reasonable possibility that the accused might be innocent. But what is required in order to reach that conclusion is at least the equivalent possibility that the incriminating evidence might not be true. Evidence which incriminates the accused, and evidence which exculpates him, cannot both be true - there is not even a possibility that both J

Farber AJ

might be true - the one is possibly true only if there is an equivalent possibility that A the other is untrue. There will be cases where the State evidence is so convincing and conclusive as to exclude the reasonable possibility that the accused might be innocent, no matter that his evidence might suggest the contrary when viewed in isolation.

S v Munyai 1986 (4) SA 712 (V) at 715G, to which we were also referred by counsel, should accordingly, in my view, be approached with some circumspection. At 715G Van...