nghipandulwa v the state
TRANSCRIPT
-
8/8/2019 Nghipandulwa v The State
1/49
REPORTABLE
CASE NO.: SA 39/2008
IN THE SUPREME COURT OF NAMIBIA
In the matter between:
ELIFAS NGHIPANDULWA APPELLANT
and
THE STATE RESPONDENT
CORAM: Chomba, AJA, Mtambanengwe, AJA, et Damaseb, AJA
Heard on: 29/06/2009
Delivered on: 26/10/2009
APPEAL JUDGMENT
DAMASEB, AJA :
[1] The appellant is represented by Mr Z Grobler while the respondent is
represented by Mr A Muvirimi of the Prosecutor Generals Office. The appellant was
one of three accused who stood charged in the Regional Court, Windhoek, with
aggravated robbery, negligent discharge of a firearm, and discharging a firearm in a
-
8/8/2019 Nghipandulwa v The State
2/49
2
public place. He was accused 2 at the trial in the Regional Court (the trial court)
where it was alleged that he participated in the commission of the offences acting with
common purpose with his co-accused. I will in this judgment refer to him as accused2. The trial court convicted all three accused only of aggravated robbery committed
with common purpose. Accused 2 who had a relevant previous conviction was
sentenced to 20 years imprisonment. 1 The trio appealed to the High Court (the Court
a quo ) which dismissed the appeals against both conviction and sentence. That
Court also refused them leave to appeal to the Supreme Court. Accused 1 and 3
were equally unsuccessful in their petitions to the Chief Justice, but this Court granted
accused 2 leave to appeal to it. The present appeal is therefore in consequence of
the leave to appeal so granted accused 2.
[2] The facts are tolerably straightforward: On 9 December 2001, two Zimbawean
nationals, Archibald Matangi and Morgan Matangi (father and son in reverse order)
set about what turned out to be an ill-fated journey to Zimbabwe, commencing the trip
from Soweto Township in Katutura. The journey was to take them by taxi from
Soweto to Klein Windhoek and thence to Gobabis en route to Zimbabwe. They made
it to Klein Windhoek alright and there were offered a lift to Gobabis by accused 1 who
was in a Volks Wagen (VW) with accused 2 and 3. Accused 1 was the driver (and it
appears owner) of the VW. He offered to transport the two Matangis to Gobabis for
the fee of N$30 per person. The deal was struck and the father and son boarded the
VW. On the pretext of collecting more fee-paying passengers in a bigger vehicle
1 Accused 1 received 10 years while accused 3 received 20 years as he, like accused 2, had relevant previousconvictions
-
8/8/2019 Nghipandulwa v The State
3/49
3
which had to be fetched in Nubuamis, accused 1 drove in the general direction of
Katutura. Somewhere along the way, he parked the VW under a tree in the bush as
accused 3 said he needed to smoke dagga which he proceeded to look for; firstinside the VW and then, accompanied by accused 1, in the boot of the VW. It was
when these two accused persons went in the direction of the VWs boot that
Archibald, suspicious of their intentions, followed them. Accused 3 then removed a
firearm which was on the person of accused 1 and advanced with it towards
Archibald. In legitimate self-defence, Archibald pounced on accused 3 and in the
process accused 3 lost control of the firearm which was then grabbed by Morgan.
Acting in concert, accused 1 and 3 later dispossessed Morgan of the firearm and,
having chased after him about 150 meters from the VW , robbed Morgan of a
substantial sum of cash in the process discharging the firearm with the intention of
frightening Morgan into submission. It is apparent therefore, that the actual robbery
(and the shooting) happened near a road about 150 meters away from the VW in
which accused 2 was sleeping. Accused 3, having committed the robbery (using the
firearm belonging to accused 1), ran away leaving accused 1 and 2 at the scene. It is
common cause that accused 2 was asleep in the VW when the robbery took place.
Accused 2 then woke up and prevented the Matangis from removing their bags which
they had placed in the boot when they boarded the VW in Klein Windhoek. Archibald
somehow managed to find his way to the Katutura police station where he summoned
the help of a police officer and returned to the scene with the officer. It was at the
scene of the crime that accused 1 and 2 were then arrested while they were still with
-
8/8/2019 Nghipandulwa v The State
4/49
4
Morgan. It appears these two accused remained there as the vehicle was still there
after accused 3 ran away and the key to the VW had somehow disappeared.
[3] Both Matangis testified at the trial. Archibald testified that when they boarded
the VW in Klein Windhoek accused 2 was asleep and remained in that state until after
the robbery had been completed. That much is clear from the following exchange
between accused 2 and Archibald when the former cross-examined the latter:
Accused 2 : Now, what shows to you that I was half asleep?
Archibald : You was just lying like somebody who is sleeping, closing your eyes.
Accused 2 : Just like I am sleeping?
Archibald : Yes.
Accused 2 : Okay, now after you found me half asleep, did I then ever spoke either toyou or to my co-accused 1 and 3 here?
Archibald : No.
Accused 2: Now is that what you want to imply that one can decide while you are
sleeping?
Archibald: When accused 3 said he want to smoke ganja you were asleep, so itwas me and my father and the accused no. 1 and accused no. 3.
Accused 2: Now I further want you to tell this Court that from the time you got into
the VW up to the time where you were robbed of your items, now were I sleeping all
he time?
-
8/8/2019 Nghipandulwa v The State
5/49
5
Archibald: Yes.
Accused 2 : Now is there anything which can link me to this offence up to the timethat you came there regarding this offence?
Archibald: No. (My underlining for emphasis)
[4] Morgan who corroborated Archibalds account of the conduct of accused 1 and
3 in the robbery also corroborated Archibald to the extent that accused 2 was asleep
at all material times. Morgan testified as follows in his evidence in-chief:
They said no we want to go and leave this one there, I think its the second accused,
they want to drop him because he is drunk and they want to drop him there. Then
they drove. When we were now on our way they started asking us where are all those
people at the hiking point, where are they going. Then I told them no, the people are
going to the border. Then they said if we can get the combi, I think we can make
money. Then how much did you used to pay to the border. Then told them, no, wepay N$50-00 to the border. Then they said, no let us go and collect the combi. Then I
asked them where is the combi. They said it is in Katutura then I said no, there is no
problem. Then they drove back (intervention) ( My underlining )
[5] When cross-examined by accused 2 Morgan confirmed that the former never
spoke from the moment they boarded the VW and was asleep at all material times.
He also confirmed that accused 2 never participated in the actual robbery.
[6] Both Archibald and Morgan testified that at some point after the robbery had
been committed by accused 1 and 3 ( while accused 2 was asleep) and after accused
-
8/8/2019 Nghipandulwa v The State
6/49
6
3 had fled from the scene of crime, accused 2 upon emerging from his sleep (which
the trial Court aptly characterised as a drunken stupor) - prevented the Matangis
from removing their bags from the boot of the VW; that he demanded to know why thefather and son had taken the gun (our gun); and that he assaulted them. Accused 2
had of course denied that he assaulted the Matangis or that he acted in furtherance of
the robbery maintaining that he acted in the way he did (i.e. telling Archibald not to
remove the bags) in the belief that he and the co-accused were in fact the victims of
criminal conduct by the Matangis.
[7] Accused 2 testified on his own behalf and said under oath that he and others
had been drinking at a party at the home of accused 3 the night before 9 December
2001 and that he had a lot to drink. The next day he learned that accused 1 and 3
wanted to go to Gobabis with a vehicle belonging to accused 1. He testified that he
met accused 1 for the first time at the home of accused 3 and did not know accused 1
before that. Accused 2 testified that he declined the invitation to accompany accused
3 to Gobabis as he had a lot to drink and was tired clearly a euphemism that he was
very drunk. (This evidence corroborates the evidence elicited by the State that
accused 2 was very drunk). He asked instead to be taken home and in that way got
into the VW. According to accused 2, while waiting in the VW for accused 3 (who
was then trying to trace his girlfriend) he fell asleep and only remembered waking up
in the bush in a strange place amongst strangers to find that accused 1 and 3 were
not present and that a strange man was removing things from the boot of the VW.
Accused 2 testified that he then concluded that this stranger (which must have been
-
8/8/2019 Nghipandulwa v The State
7/49
7
Archibald) was removing bags from the VW and tried to stop him from doing so. He
stated in very clear terms that he thought Archibald was stealing from the VW. When
cross-examined accused 2 denied that he associated himself with the gun as allegedby the Matangis.
[8] Accused 1 did not testify in his own defence. In his testimony, accused 3
corroborated accused 2s version that he was taking him home as he was drunk.
After describing how he was invited by accused 1 to accompany him to Gobabis,
accused 3 testified:
[We] were supposed to drop accused no. 2 in Nubuamisbecause thats where he to
stays. Before he got into the VW he asked me if we cannot drop him thereSo, when
we came into the VW with my girlfriend we found accused no.2 sleeping. After we
dropped my girlfriend Your Worship we just decided to drive to Gobabis and
accused no. 2 was also in the VW sleeping. (My underlining)
And then, after describing how they came to offer a lift to the Matangis who then
boarded after paying the fee demanded by accused 1, accused 3 continued to testify
thus:
We turned and accused no. 1 asked me if we can just drop accused no. 2, then we
can just drive straight to Gobabis from there, after dropping him. (My underlining)
[9] The trial Court reasoned in justification of its conviction of accused 2 that he was
part of a modus operandi consisting of all the accused persons setting about offering
-
8/8/2019 Nghipandulwa v The State
8/49
8
lifts to Gobabis to the unsuspecting victims, loading them on the vehicle and then
robbing them of their property. The learned magistrate specifically held that the three
accused persons planned the robbery beforehand and that accused 2 was part of itsplanning and execution. The trial Court accepted the version of the Matangis that
accused 2 was violent towards them and was satisfied that accused 2 knew that the
father and son had taken possession of the firearm used in the robbery by accused 1
and 3 (presumably with accused 2s knowledge) and that it was that firearm that
accused 2 wanted back from the Matangis.
[10] This approach to the evidence (and the consequential inference of guilt in
respect of accused 2 flowing therefrom) apparently found favour with the Court a quo
when it upheld accused 2s conviction for aggravated robbery acting in common
purpose with accused 1 and 3. The Court a quo came to the following conclusion in
respect of accused 2:
However it is clear that the second appellant knew much more of what was
happening around him while he appeared to be sleeping than he was willing to admit
in his testimony. The record reflects that when the second appellant woke up he
immediately wanted to know where the gun (our gun) was and he physically
prevented Archibald from leaving the scene with their luggage. Whether he was
carrying a half brick and empty beer bottle, or hurled these at Morgan and missed, is
neither here nor there. It suffices that when Morgan came to the rescue of Archibald,
the second appellant told him to leave the bags alone until he explained why he took
our gun as the second appellant put it. For this reason I take the view that the
conduct of the first and third appellants was also correctly imputed to the second
appellant. See also S v Mgedezi and Others 1989 (1) SA 687 at 607). (My
underlining for emphasis)
-
8/8/2019 Nghipandulwa v The State
9/49
9
[11] In drawing the inference that accused 2 was complicit in common purpose with
accused 1 and 3, both the trial court and the Court a quo appear to have been
swayed by the fact that accused 2 associated himself with the gun at some point by
demanding back our gun, held back the bags belonging to the two victims; and
assaulted them. Mr Muvirimi relies substantially on this circumstance in support of
the conviction. Although the trial court for its part found that there was a prior
agreement between accused 2 and his co-accused to commit the armed robbery, Mr
Muvirimi suggests in his heads of argument (relying on S v Mgedezi 1989 (1) SA 687
(A) at 705 I-J and 706 A-B 2 ) that the trial court was entitled to convict accused 2
based on the doctrine of common purpose even where there is no evidence of prior
agreement between him and the co-accused. Curiously, Mr Muvirimi also relies on
those very same facts and circumstances for the inference that accused 2 knew
about the robbery prior to its commission. He also suggests, rather courageously,
that accused 2 pretended to be asleep as part of the scheme to rob the Matangis and
was fully aware throughout that a robbery was underway.
[12] Contrary to Mr Groblers suggestion otherwise, the Matangis were very
impressive, if fair witnesses. In my view they made no unfair accusations againstaccused 2. Although I prefer the version of the Matangis that accused 2 was
2 In the absence of a prior agreement to commit a crime, a conviction based on common purpose is only justifiedif (a) the accused was present at the scene of the crime , (b) he was aware of the commission of the crime , (c)intended to make common cause with those who were actually committing the crime ,(d) and manifested hissharing of a common purpose with the perpetrators of the crime by himself performing some act or associationwith the conduct of the perpetrators with (e) the requisite mens rea to commit the crime.
-
8/8/2019 Nghipandulwa v The State
10/49
10
aggressive towards them and in fact demanded the gun (our gun) back from them -
nothing should turn on this because, even if accused 2 lied on this aspect, it does not
automatically follow that his account that he had not knowingly participated in therobbery and did not associate himself therewith after it had been committed, is not
reasonably possibly true 3. Because a man tells lies at his trial he is not necessarily
guilty. It is judicially recognised that innocent people do tell lies at times because they
think that telling the truth might put them in trouble 4. The present appears to me to be
such a case. Or, to put it differently, a Court properly directing itself cannot be
satisfied beyond reasonable doubt that it is not the case.
[13] Accused 2 had made it clear under oath that when he emerged from his
drunken stupor, the person he saw around the VW was Archibald who was a
complete stranger to him and who was then removing bags from the VW. As he put it
under oath:
So when I woke up from my sleep I just found myself in an open space in the
carNow I was alone in the car, I was now wondering where are my co-accused
persons, my friends with whom I was in the car. I got off from the car, so on my left
side of the car outside the car I found a strange manwhom I never saw in my life
before. So I approached him and I asked where are the people with whom I was in
the car. This person responded in English, so he was aggressive and he just said I
just want my bagSo, I was now surprised how he came there To me it looks like
3 False testimony by an accused is a factor in favour of the States case, but excessive weight should not be givento it : S v M 2006 (1) SACR 135 and also S v Engelbrecht 1993 NR 154 to the effect that false evidence by theaccused is not decisive of guilt.4 R v Gani 1958(1) SA 102(A) , Maharaj v Parandaya 1939 NPD 239
-
8/8/2019 Nghipandulwa v The State
11/49
11
this person was trying to steal So I told him okay leave those bags so that these
people with whom I was in the car can come . (My underlining for emphasis)
[14] Accused 2 also testified that he later met accused 1 who, when he asked him
what was going on, said that it was only a misunderstanding which would be cleared
up when the police came. This undisputed evidence shows that accused 2 was not
aware that the Matangis had been the victims of an armed robbery at the hands of
accused 1 and 3; that he believed (mistakenly as it happens) that they were in fact
the villains and that Archibald did not tell him that his associates had just robbed
them. Even if, therefore, accused 2 lied on the aspect of the gun, or acted
aggressively towards the Matangis, that is not consistent only with guilt. The State
bore the onus to prove beyond reasonable doubt that when accused 2 did these
things he did so well-knowing that the Matangis had been the victims of a robbery at
the hands of accused 1 and 3 and that in so acting he was acting in furtherance of the
robbery. When it is said that an accused is presumed to be innocent until proven
guilty, what is really meant is that the burden of proving his guilt is on the prosecution.
This requires a clear conviction of guilt and not merely a suspicion, however strong
that suspicion. A mere fanciful doubt where it is not in the least likely to be true,
would not prevent conviction. As I understand the law, a Court of law is not entitled to
draw an inference of guilt from a set of facts, if the same facts are capable of an
inference inconsistent with guilt, or are consistent with an inference that the accuseds
version is reasonably possibly true. In that event, the State would have failed to
discharge the burden of proof beyond reasonable doubt and the accused would be
entitled to his acquittal.
-
8/8/2019 Nghipandulwa v The State
12/49
12
[15] I find it significant that counsel for the State submitted at the trial that the
presiding magistrate could (in the alternative) convict accused 2 of assault with intentto cause grievous bodily harm. It must have been apparent to counsel for the State
that the evidence raised a reasonable doubt that accused 2 might be innocent of the
crime of aggravated robbery. To counsels submission, the trial court commented:
Although the State Prosecutor in his address was prepared to accept that if accused
no. 2 is not convicted of armed robbery, at least he must be convicted of the crime ofassault with intent to do grievous bodily harm in that he threw a brick or a stone at the
second State witness Mr Morgan, but the Court is of another opinion and I am not
prepared to accept the concession by the prosecutor in this regard. The prosecutor is
also of the opinion that the Court must accept the evidence of the two State
witnesses. Being that so, it is clear to the Court that the three accused persons acted
in concert, they worked together. The Court finds it as a fact that the three of them
worked with common purpose to rob the two complainants. It is the experience of the
Court that robbers and also many other criminals have what we name a modus operandi , they have a way in which they operate, and in the mind of the Court the
modus operandi of the three accused persons before the Court was to go to that
scene where the people are gathering to take a hike to Zimbabwe to rob them.
They decided to do so and they planned to do so. (My underlining for emphasis)
The trial court then proceeded to find that accused 2 was aware of the pistol which
was in the possession of accused 1 because that is the first thing he challenged theMatangis about when he got out of the vehicle.
-
8/8/2019 Nghipandulwa v The State
13/49
13
[16] It is a cardinal rule of our criminal adjudicatory process that every item of
relevant evidence led at the trial and every inference naturally and reasonably arising
therefrom must be weighed in the scale in deciding the outcome of a case; and nosingle item of evidence or inference must be considered in isolation in the process.
As was put by Nugent, J (as he then was) in S v Van der Meyden 5 1999 (1) SACR 447
at 449J 450A-B:
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 mustbe acquitted if it is 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. [My
underlining for emphasis]
[17] As an appeal court we are entitled to interfere if we are satisfied that the trial
courts evaluation of the evidence was clearly wrong having regard to the totality of
the evidence on the record. 6 I have come to the conclusion that the trial courts
evaluation of the evidence is clearly wrong. That Court failed to place the following
evidence and inferences in the scale in favour of accused 2: He had not met accused
1 before the 9 th of December. Accused 1 (then a stranger to accused 2) was in
possession of the firearm at the time it was used in the robbery. There is no evidence
5 Quoted with approval in S v Aswegen 2001 (2) SACR 97 (SCA) at 101 D-E6 S v Hadebe and Others 1998 (1) SACR 422 (SCA) at 426 c-e
-
8/8/2019 Nghipandulwa v The State
14/49
14
accused 2 was aware that accused 1 had a gun on his person when they met at the
home of accused 3. When accused 1, 3 and the latters girlfriend got into the VW,
accused 2 was already asleep. Accused 1 was the owner of the VW. Accused 2declined the invitation by accused 3 to accompany them to Gobabis. If there was a
prior plan ( modus operandi as the trial court called it) to go to Klein Windhoek and
offer lifts to strangers in order to rob them, there is not a scintilla of evidence to show
accused 2 was aware (let alone part) of it. He asked instead to be taken home a
fact that is inconsistent with the finding that he was part of a modus operandi to go to
Klein Windhoek to lure hikers into the car and then robbing them. Accused 2 was still
asleep when the Matangis boarded in Klein Windhoek. He never participated in any
discussion that led to the Matangis boarding the VW. After they loaded the Matangis
in Klein Windhoek, accused 1 and 3 were on their way to drop accused 2 (then still
sleeping) at home when they executed the robbery. After the robbery had been
committed by accused 1 and 3, accused 2 who was asleep when it happened, was
informed by accused 1 (upon his asking what the matter was) that it was only a
misunderstanding which would be cleared up when the police arrived.
[18] It is hardly surprising that accused 2 did not leave the scene of crime and was
found at the scene by the police. Had he been part of a robbery, I do not think he
would have remained at the scene of crime. If, as is suggested, accused 2 only
pretended to be asleep and was aware throughout of the robbery, it is inconceivable
that he would have remained at the scene of the crime while accused 3 ran away.
Such conduct is inconsistent with guilt. The same cannot be said of accused 1. It is
-
8/8/2019 Nghipandulwa v The State
15/49
15
obvious from the evidence that the key of the VW belonging to accused 1 could not
be found. He was therefore unable to drive the car away; and even if he had run
away, the car was an item of potent physical evidence which linked him to the crimeand by reference to which his identity could be established with ease. His presence
at the scene of crime after the robbery can therefore not be equated with that of
accused 2. Could on these facts and inferences, the trial Court, properly directing
itself, have found that accused 2 was party to a pre-planned modus operandi to offer
lifts to people and to rob them? I think not.
[19] Looking at the evidence in its totality, accused 2s version (and the inference it
raises) that he did not participate in robbing the Matangis; and that he honestly but
mistakenly believed that the Matangis meant him and his co-accused harm at the
time he emerged from his drunken stupor, is reasonably possibly true. His violent
behaviour towards the Matangis and his demanding back our gun upon waking up
(and also his false denial that he did so) must not be taken in isolation but must be
seen against the backdrop of him waking up and seeing people he had not met
before removing bags from the vehicle in which he was being conveyed. It is so
probable that when he woke up from his sleep accused 2 heard an argument over a
gun between accused 1 and the Matangis and decided to side with accused 1 in
demanding back our gun. In view of his explanation that he woke up and saw
strangers removing bags from the car, it is a possibility that ought to have been put to
the Matangis because, on the facts of this case, such an inference is not fanciful.
-
8/8/2019 Nghipandulwa v The State
16/49
16
Sight should not be lost of the fact that accused 2 was not legally represented and
that, as a result, his case was not presented with appropriate forensic finesse.
[20] On the facts as I have set out, the trial court, if it had directed itself properly,
should have found that the State had failed to prove the guilt of accused 2 beyond
reasonable doubt and should have acquitted him of aggravated robbery. It is unclear
to me on what evidence the trial Court based its finding that accused 2 was part of the
planning of the robbery and a modus operandi ". What is abundantly clear to me is
that the trial court completely disregarded the evidence of the Matangis 7 and that of
accused 3 8 - evidence which is clearly exculpatory of accused 2 and points to the
possibility that he might be innocent.
[21] I have serious reservations about the Court a quos conclusion that accused 2s
cross-examination of the Matangis and his own testimony dwelt on peripheral issues
and left intact the evidence of the prosecution that while the robbery was in progress
the second appellant stayed in the VW but emerged therefrom in time to prevent
Archibald from removing his and Morgans bag from the VW and, in the process,
uttered words to the effect that the gun used in the robbery either belonged to him or
to the first or third appellants. On the contrary, through his cross-examination of
State witnesses, accused 2 challenged the States case that his stopping the
Matangis from removing the bags from the boot of the VW was knowingly in
furtherance of the robbery perpetrated by accused 1 and 3.
7 Paragraphs 3, 4 and 5 supra8 Paragraph 8 supra
-
8/8/2019 Nghipandulwa v The State
17/49
17
[22] Accused 2 who was legally unrepresented, and received no assistance
whatsoever from the presiding magistrate when he conducted his cross-examination,remarkably succeeded in raising a reasonable doubt that his conduct towards the
Matangis after the robbery had been committed was done with the necessary mens
rea to commit robbery in common purpose with accused 1 and 3.
[23] For the reasons I have given, I have come to the conclusion that the appeal
must succeed and therefore make the following order:
The judgment and order of the Court a quo are set aside and there is
substituted the following order: The appeal of appellant Eliphas
Nghipandulwa succeeds and the conviction and sentence against him are set
aside.
__________________ DAMASEB, AJA
I agree
________________________ CHOMBA, AJA
-
8/8/2019 Nghipandulwa v The State
18/49
18
MTAMBANENGWE, AJA :[1] I have had the privilege of reading the judgment of my brother DAMASEB with
which my brother CHOMBA agrees. For various reasons I find myself in serious
disagreement with them. With respect I find the conclusion they reached, that the
appeal should succeed unwarranted on a proper view of the evidence on record.
[2] My brother DAMASEB has summarised the evidence and laid emphasis on
certain aspects of it in favour of the appellant. But because whether the conclusion
reached by the Regional magistrate (the trial court), that appellant was complicit in
the robbery committed against the complainants (the two Matangis) is correct or not
turns on the circumstantial evidence emerging in this matter, I feel it is absolutely
necessary to review that evidence in greater detail. Only then, with respect, can one
determine whether appellant was properly convicted or not.
[3] Before turning to the evidence, I must emphasise that this appeal essentially
and almost exclusively concerns the correctness or otherwise of the finding of facts
by the trial Court and the inferences drawn by the court from such facts i.e. that
appellant was party to the planning and execution of a scheme to rob the Matangis or
that he associated himself with the robbery clearly proved to have been committed by
his co-accused.
-
8/8/2019 Nghipandulwa v The State
19/49
19
[4] In the trial Court appellant was accused no.2, accused no.1 was the driver and
apparent owner of a Volks Wagen (VW) vehicle involved in the carrying out of the
robbery, accused no.3 was a friend of both accused 1 and the appellant (appellant,accused 1 and accused 3 respectively) and the complainants were father and son. I
shall refer to them as the Matangis or Matangi senior and Matangi junior or simply as
Morgan or Archibald.
[5] In Rex v Dhlumayo and Another 1948(2) SA 677 Greenberg, JA at 687
referred to a passage in the case Rex v Apter (AD: 25/3/48, where it was stated:
.an appeal Court, in a case in which the ground of appeal is that the
trial Court aught to have had a doubt, will not be entitled to interfere with
the verdict unless it is satisfied that the trial Court ought to have had a
doubt; but I am prepared to assume that in this appeal, because of the
criticism to which I have referred we should retry the case in the sense
of inquiring whether on the record of the evidence, taken in conjunction
with the impression made on the trial Court by the witnesses, we
ourselves are satisfied beyond reasonable doubt, of the guilt of the
appellant (my emphasis)
The learned Judge of appeal described that case (Apters case) as:
a case where it was contended and assumed by the Court that the trial
Court had overlooked a very serious criticism of the main crown
witness
and continued:
-
8/8/2019 Nghipandulwa v The State
20/49
20
In the present case, as was said in that case, this is the most
favourable basis that the accused can possibly claim, and on that basis
the appeal succeed if, on the material before us, we are not satisfied
beyond reasonable doubt of their guilt, i.e., if we think it reasonablypossible that the statements said to have been made by the accused
have been concocted. (my emphasis)
[6] I respectfully agree with and will adopt that approach in this appeal. And with
those remarks in mind, I now turn to the evidence. It is convenient to start with
appellants evidence in chief because the story in this matter started before theMatangis (the two state witnesses,) came into the picture.
[7] Appellants Evidence in Chief
On 9 th December he was at accused 3s house in Katutura drinking at a party which
had started the previous night when accused 1 arrived there, round about 9h05,
driving a Volks Wagon. Accused 1 was unknown to him but accused 3 and accused
1are friends. Accused 1 asked accused 3 to accompany him to Gobabis and
accused 3 asked if appellant could go with them. He declined the request and asked
to be dropped home because he was tired. Accused 1 agreed to drop him home but
they had to wait for accused 3s girlfriend who was to be dropped at work (in Klein
Windhoek later evidence showed). While waiting for accused 3s girlfriend he fell
asleep in the Volks Wagon. He woke up later to find himself in an open space
between Nubuamis and Donkerhoek in Katutura. He was alone in the car wondering
where are my co-accused persons, my friend with whom I was in the car. He got out
of the car and found a strange man busy to pick up bags when he asked the strange
-
8/8/2019 Nghipandulwa v The State
21/49
21
man where the people he had been with in the car were, the strange man answered
aggressively saying I just want my bag. He wondered how the strange man came to
be there and how he himself came to be there and where are these friends of mine.To him it looked like the stranger was trying to steal, so he told him to leave the bags
until the people he had been with in the car could come. While they talked the
strange man pointed in a direction and he told me the driver of the car is coming. In
the course of the talk the strange man was trying to take the bags and we were
pulling each other over these bags. It was then that another strange man came
followed by accused 1. He continued:
And the way I looked at them it looked like they were having also an
argument.
When accused 1 came to him he asked what was going on and accused 1 said it was
just a misunderstanding, that he should just leave the bags, and that he did not want
these people to leave, they must wait until the police arrived. On further trying to
find out from him what was happening, accused 1 said he should wait he would hear
what the problem was when the police arrived. Accused 1 and accused 3 did not
cross examine the appellant.
[8] Archibalds Evidence
On the day in question he and his father went from Soweto by taxi to Klein Windhoek
to get a hike to Botswana on their way to Zimbabwe. It was around 10h00. There a
white Volks Wagon came looking for customers. The driver said they were going to
-
8/8/2019 Nghipandulwa v The State
22/49
22
Gobabis, the journey would cost N$30-00 per person. When they entered the car
accused 3 was on the front passenger seat and appellant was on the backseat. The
driver said they should pay because he wanted to go and put petrol at the servicestation; so they paid the N$60-00 asked. The driver then drove as if going to the
service station. On the way he asked if all the people at the hiking place were also
going to the border. When they said yes the drive said:
Maybe I can go and take my kombi then we can come and pick all
these people then we can go to Gobabis.
The driver did not proceed to the service station but instead he drove to the location.
They agreed to go to the location since they had paid the fare. Before they reached
the location the driver said his house was near by he could use a short cut going
through the bush. In the bush the driver parked his car under a tree and then
accused 3 said he just wanted to smoke his dagga and then they could proceed.
Accused 1 and 2 were agreeable to the idea of stopping. The specific question was
put to Archibald by the prosecutor:
The other two, accused no.1 and accused no.2 were they agreeable
with this suggestion made by accused no.3 to stop and park while he
has the opportunity to smoke his ganja as you put it?
Archibald answered:
Yes
-
8/8/2019 Nghipandulwa v The State
23/49
23
He was further asked:
Yes you were standing there under the tree, accused no.3 had made a
certain suggestion, accused no.1 and 2 agreed with the suggestion
made by accused no.3, what now happened? You and your father were
seated at the back of this vehicle
And he answered:
The accused no.3 got out of the car (intervention)
Archibald further testified that accused 3 went looking for the ganja under the drivers
seat and after the driver suggested that the ganja might be in the boot both accused 1
went to the back of the car; at that stage appellant was seated in the vehicle sleeping.
He also went out of the car to see what the two were doing as their bags were in the
boot. He was ordered to go back into the car, by accused 3 who said my smoking of
ganja has nothing to do with you. As he wanted to go back into the car he saw
accused 3 take a gun from accused 1s waist (stomach) and he was advancing to
where we were at the car. The gun was not cocked. He said:
It was like he couldnt cock it because it seems he was drunk and
suddenly I jumped to him. Then we both fall onto the ground and the
gun suddenly fell down on the ground Then my father went out of the
car and took the gun. Then he pointed to accused no.3 and he asked
the driver, the money we had paid. Then the driver took out the
money and gave it to me.
-
8/8/2019 Nghipandulwa v The State
24/49
24
Upon which accused 3 said:
He gave you your money, so give us back our gun because you got,your things now give us back our gun
His father refused to give back the gun and when they realized his father could not
use the gun both accused 1 and 3 advanced on his father saying give our gun, still
refusing to give back the gun the father turned and ran to the road for help. The two
accused ran after him and caught him and accused 3 took the gun from him andcocked it, then he shoot on the ground and ordered the father to lie down and
searched him for money.
[9] Archibalds further evidence was that when accused 1 and 3 pursued his father
to the main road he remained at the car and wanted to take their bags to where his
father was, he was holding all the bags in his hands.
So when I went to the boot, when I take the bags, the one that was
sleeping at the back, he woke up and he came to where I was I was
now holding all the bags on my hand so he clapped me on my cheek
then he was asking where are you taking the bags. Then I replied to
him, I want to go where my father is. Then he said you are not going
anywhere until your father bring back our gun.
The Prosecutor asked:
-
8/8/2019 Nghipandulwa v The State
25/49
25
How did he know? He was asleep isnt? How did accused no. 2 all of
a sudden now realize that the gun was in dispute here, that you were
able to take the gun from him?
He answered.
It gives maybe the suggestion that he was maybe half asleep.
The prosecutor commented:
Half asleep, okay. Yes and then? He smacked you; he said you are
going nowhere until your father gives back the gun?
Archibald answered:
Yes I was trying to take my bags towards my father.
He said that when his father was released he ran towards me accused no. 1 was
following him:
And when my father got to where I was he wanted also to take thebags so that we can go to look for a taxi.
The prosecutor asked:
-
8/8/2019 Nghipandulwa v The State
26/49
26
Okay, were you able to leave with your bags to look for a taxi?
Archibald answered:
No, this accused no.2 said you are not going to take the bags, you
must first tell us why you took our gun in the first place.
The questions and answers continued:
Uhm! At that moment the accused no.2 wanted to fight me and I
was telling him if you want to fight, now lets fight because
you dont want us to take our bags and go. We have done
nothing to you. We just wanted a lift from you and
suddenly you want to rob us here.
Did he say anything in response Yes
he said he was also going to fight back.
[10] It is remarkable that when appellant cross examined Archibald he did not put it
to him that he was lying to say he (appellant) uttered the statements Archibald
testified he had made both to Archibald and to Morgan about our gun. As shown in
the excerpt of it in my brother Damasebs judgment appellant mainly dwelt on his
claim that he was asleep all the way from Katutura, through to Klein Windhoek up to
the stage after the robbery had been committed by his co-accused. This was so
despite
-
8/8/2019 Nghipandulwa v The State
27/49
27
1. the fact that in leading Archibalds evidence the prosecutor dwelt at some
length on those inculpating statements,
2. the fact that the prosecutor asked Archibald to explain how appellant couldhave gained the knowledge that the Matangis or Morgan had taken the gun,
3. the fact that in reply Archibald suggested that appellant might have been half
asleep, and
4. the fact that the prosecutor specifically asked Archibald to say if appellant had
said our gun or their gun and Archibald said he had said the former.
[11] I pause here to say that it is quite significant in the above connection that
appellants knowledge of the incident when the gun was taken from accused 1
include, according to those statements, the fact that both Matangis were involved in
the gun taking incident, that Morgan was Archibalds father and that Morgan was later
dispossessed of the gun. The evidence shows that accused 1 had also made a
statement about our gun at the car before Morgan ran off with the gun. The
statements allegedly made by appellant show a remarkably detailed knowledge not
only of the incident but also of the sequence of events. All this seems to belie
appellants claim that he was asleep until after the robbery had been completed. This
evidence also shows that the robbery was meant to take place and would have taken
place at where the car was parked in the bush but for the bold actions of the
Mattings. I shall hereunder refer in this regard, to appellants evidence under cross-
examination.
-
8/8/2019 Nghipandulwa v The State
28/49
28
[12] Morgans Evidence
Morgans evidence corroborated that of Archibald in most material respects. He said
when accused 1 and 2 agreed to give them a lift they demanded payment there andthen saying that they want to use that money for our fuel. When they did not stop at
the filling station he asked where are we going now and they answered that they
wanted to go and drop the appellant because he is drunk. As they proceeded they
asked where the other people at the hiking place were going and when he told them
they were going to the border then they said they should go and collect the kombi in
Katutura in order to make money by also giving a lift to those other people at the
hiking place as he (Morgan) had told them the fare to the border was N$50-00 per
person. Asked to specify which of the two accused was speaking, he said it was the
driver (differing from Archibald), Morgan said it was accused 3 who suggested to take
a short cut through the bush when they were in the vicinity of Katutura Hospital. His
evidence on what happened when the car stopped under the tree in the bush up to
the point he was robbed of his money is much to the same effect as that of Archibald
and need not be repeated. He, like Archibald, testified that appellant was asleep on
the back seat in the car and did not talk to them during the trip from the hiking place
until after the robbery. That obviously was what they were made to believe.
However, the evidence properly analysed does not prove that appellant was asleep
as he claimed.
[13] Morgan testified further that after the robbery he went back to the car where
his son was followed by accused 1; his son had already picked up our luggage and
-
8/8/2019 Nghipandulwa v The State
29/49
29
appellant was outside the car and was talking to him, the appellant, he said, ordered
me to leave those bags and asked me why did you wanted (sic) to take our gun
Now they were (indistinct) me asking why did you want to take our gun, just leaveeverything here: He also testified that appellant was holding half brick and an empty
beer bottle as he faced him also talking to me saying why you took our gun. He
continued.
That time he was facing me also I was facing at him. He just turned
away going somewhere automatically (suddenly I believe) he turnedwith that half brick to me. He threw that brick to me. Luckily enough I
just shifted my head and that brick hit me on my hand
[14] Morgan further testified that when his son went to call the police (on his
request)
------those two accused no.1 and accused no.2 they were searching
looking around where we were running. They were just following where
we were running through as if they had lost something. Then from there
during that same day (they were just looking searching for something.
Thats when Archie also came back in a police vehicle
He said that when the police asked for the key of the boot in order to fetch one of their
bags still in the boot accused 1 said he did not have the key. The police failed to
force the boot open. After they were taken to the police station to make statements
-
8/8/2019 Nghipandulwa v The State
30/49
30
the police and the two Matangis went back to the scene and found the VW was no
longer there.
[15] In cross-examining Morgan, again appellants focus was on whether he was
asleep all the time and whether the witness talked to him. The part dealing with the
statements he was alleged to have made went on as follows:
The next question. Now I want to put it to you that from the time that
you got into this car and up to the time where your belongings wererobbed or taken off from you, where the whole thing happened, and up
to the end when it was done, will you agree with me if I put it to you that
I did not had (sic) anything to do with this activity which happened
there? --- (Indistinct) actually where you participated on the last time
when I was coming from where this accused no.3 (indistinct) (indistinct)
thats where you all, thats where you all, thats where I found you
walking when my son was carrying the luggage and you were walking
on the side of the car. When I came there, thats when you talked to me
also, saying why did you want to take our gun. Then from there we
stand facing each other and I say why (indistinct).
Now Mr. Matangi you said I was sleeping and when you were robbed
(indistinct) somewhere far from where I was, now does it not sound
funny to you for a person who was sleeping just to get up and start
asking for the gun? --- Of course there I was surprised that time when I
come from (indistinct) when I was coming, when I found you, now you
were walking (indistinct) my son was carrying the luggage there and you
were walking. When I wanted to help my son to take some of the
luggage that when you started saying why did you want to take our gun.
-
8/8/2019 Nghipandulwa v The State
31/49
31
Now was this the first time that you, as you say, saw me standing, eyes
open, that time when you came there? Yes
Here again, it will be noted, appellant did not directly put it to Morgan that he was
lying when he repeated, to his face so to speak, that appellant said what Morgan said
he said about our gun.
[16] Appellants Evidence under Cross Examination
In his plea explanation Appellant said he pleaded not guilty because he did notparticipate in anything that the complainants have said. This was obviously in
reference to each witnesss statement which was in his possession and that of his co-
accused for sometime before the trial commenced. It was only in cross examination
that appellant denied that he in fact smacked Archibald, he said maybe I forgot to
put it to him when asked why he did not put that evidence in dispute. His answer to
the question as to the statement about our gun as put to Archibald, and as to why it
was not disputed, was vague and evasive:
Thats what I said Your Worship, how can I come, how will I know
about the firearm if I was sleeping and he also mentioned that I was fast
asleep.
The prosecution persisted and amplified the question:
-
8/8/2019 Nghipandulwa v The State
32/49
32
And you also did not put it or place it in dispute when the first state
witness testified, in fact I did not ask you about it, I did not tell you
about it, I did not ask you to return this gun to me is that correct.
The appellant agreed:
Thats correct Your Worship
Asked if he knew that there was a gun in the possession of his co-accused, appellant
said no and repeated his evidence that he only came to see accused 1 that day, that
it was his first time to see him. He was asked further when it was that he became
aware of there being a firearm, and he said it was when the police arrived. Only
after further questioning by the prosecutor did appellant come to deny specifically that
it was a lie that he made the inculpating statements. Contrary to his answer that he
first became aware of a firearm being involved and being the possession of his co-
accused, appellant later testified that accused 1:
told them (the Matangis) that they must leave the bags because he is
looking or waiting for the police because his firearm was involved.
[17] Lastly appellant also denied that he had confronted Morgan with a half brick
and empty beer bottle only in cross examination. It was put to the appellant that he
did not dispute Morgans testimony that he had demanded to know why the Matangis
had taken the gun, and he answered vaguely and somewhat irrelevantly:
-
8/8/2019 Nghipandulwa v The State
33/49
33
All that I know is that the complainant, I almost didnt say something
to him.
[18] Appellants evasiveness stands out clearly, particularly in his answers to
questions relating to the inculpating statements about our gun. In this regard, I, with
respect, agree with the Court a quo (the High Court that dismissed his appeal thereto)
when it said:
it is clear that the second appellant knew much more of what washappening around him while he appeared to be sleeping than he was
willing to admit in his testimony.
[19] That the scheme to rob involved a plan, to go to the hiking point in Klein
Windhoek, there pick some unsuspecting passengers and take them to some isolated
spot, and that appellant was part of the whole scheme from the start, can reasonably
be inferred from the following circumstances
a) Appellant and his co-accused all lived in Katutura. If he had fallen asleep
before the journey to Klein Windhoek started, and had declined the invitation to
accompany his co-accused to Gobabis, and had in fact asked to be dropped
home, and accused 1 had agreed to do so, there was no reason why he was
carried asleep all the way to Klein Windhoek. According to the evidence on
record appellant lived very near to where accused 1 lived, and accused 3, a
-
8/8/2019 Nghipandulwa v The State
34/49
34
friend to both accused 1 and appellant, must have known where appellants
home was;
b) If the initial decision of appellants co-accused was to drive to Gobabis with the
sleeping appellant there was no explanation why that decision changed on the
way to the service station after the Matangis had got into the car. The idea to
go and collect a Kombi in Katutura (which both accused 1 and accused 3
denied in the course of accused 1 cross examining accused 3) came, after the
car had passed the service station, apparently as a result of a conversation
between Morgan and accused 1 about other hitch hikers going to the boarder.
It was not the first reason, (as my brother Damaseb appears to suggest in his
summary of the evidence), to drive back to Katutura.
c) If appellant had to play the role, of appearing to be sleeping, as I believe he
did, he would of course pretend to be sleeping all the way until the plan to rob
was in execution. If I am correct to say the robbery would have taken place at
the place where the car was parked in the bush, it is inconceivable and highly
unlikely that appellants co-accused, particularly accused 1, would take the risk
of robbing the Matangis in the presence of appellant (a total stranger to
accused 1) if he was not privy to the plan.
[20] My brother, Damaseb came to the conclusion that on the evidence appellants
explanation was reasonably possibly true. He found that the Matangis:
-
8/8/2019 Nghipandulwa v The State
35/49
35
were very impressive if fair witnesses they made no unfair
accusations against accused 2.
Although he does not say so specifically, my brother believes their evidence as he
says he accepts that appellant falsely denied his conduct towards them and in fact
demanded the gun (our gun) back from them. My brother, however, believes that
nothing should turn on this. He reasons as follows:
it does not automatically follow that his account that he had notknowingly participated in the robbery and did not associate himself
therewith after it had been committed is not reasonably true.
My brother goes on to say that, on the totality of the evidence he has come to the
conclusion that the trial courts evaluation of the evidence is clearly wrong and to list
evidence and inferences he says the trial court failed to place in the scale in favour
of accused 2. In particular he says:
Accused 2 declined the invitation by accused 3 to accompany them to
Gobabis. If there was a prior plan ( modus operandi as the trial court
called it) to go to Klein Windhoek and offer lifts to strangers in order to
rob them, there is not a scintilla of evidence to show accused 2 was
aware (let alone part) of it. He asked instead to be taken home a factthat is inconsistent with the finding that he was part of a modus operandi
to go to Klein Windhoek to lure hikers into the car and then robbing
them.
-
8/8/2019 Nghipandulwa v The State
36/49
36
Emphasising the appellants evidence purportedly supported by the Matangis and by
accused 3 that appellant was asleep until after the robbery was committed my
brother states:
It is so probable that when he woke up from his sleep accused 2 heard
an argument over a gun between accused 1 and the Matangis and
decided to side with accused 1 in demanding back our gun. In view of
his explanation that he woke up and saw strangers removing bags from
the car, it is a possibility that ought to have been put to the Matangis
because, on the facts of this case, such an inference is not fanciful.
[21] I disagree with this reasoning. Taking all the above passages from my
brothers judgment, I would say, that, in my respectful review, that approach to the
evidence evinces an uncritical acceptance of appellants evidence, and that of
accused 2 on the story that appellant was asleep all the time he claims to have been.
If must be noted that the so called evidence and inference in favour of appellant
which the trial court is said to have failed to put in the scale in favour of the appellant
arise only from that very claim. The approach, in the first place loses sight of the
totality of appellants evidence or the purport thereof, namely,
a) that to that very day, 9 December 2004 accused 1 was completely unknown to
him;
-
8/8/2019 Nghipandulwa v The State
37/49
37
b) that that day December 9 appellant in his drunken stupor (if he was so) had
set eyes on accused 1 only for a fleeing moment before he fell asleep, which
he did apparently soon after entering the car;
c) that the Matangis were complete strangers to him when he woke up and saw
them at the scene for the first time, yet he could tell they were father and son;
and
d) that when he first saw him Matangi senior was coming back to the car followed
by accused 1 and after Matangi junior had pointed in the direction from which
the two were coming and had said then that the driver of the car was coming.
Secondly the approach fails to appreciate, or ignores the evidence which shows that
the struggle for the gun between accused 3 and the Matangis took place at the car,
and there took some time before Matangi senior fled with the gun to the main road
where he was subsequently dispossessed of it by accused 3 in the company of
accused 1; and that appellant would not have heard any argument about our gun at
any later stage as there is no evidence on record that there was such argument at the
main road; appellants own evidence is merely that accused 1 and Matangi senior
seemed to be arguing as they came back to the car. With his alleged statements
featuring so prominently in the questions to the Matangis during their evidence in
chief it, is inconceivable that appellant would have failed to explain himself as
suggested by my brother in his judgment. With respect, this last consideration alone
makes the probability suggested fanciful. While appellant falsely denied hearing the
shots fired at the main road there is no reason why he would deny or be silent or
-
8/8/2019 Nghipandulwa v The State
38/49
38
vague about hearing any arguments about the gun if such had occurred at the main
road, as that would be a perfect explanation for him as to why he associated himself
with the gun, and thereby with his co-accused.
The approach, thirdly, overlooks the specific nature of appellants statements to the
Matangis which reveals a correct sequence in regard to the incident about the gun,
namely;
a) To Matangi junior:
You are not going anywhere until your father brings back our gun.
b) To Matangi senior:
You are not going to take the bags, you must first tell us why you took
our gun in the first place.
c) To Matangi senior:
Why did you want to take our gun?
[22] In brief the statements, in the order they were made, show a remarkably
correct sequence of the events surrounding the gun. Also this fact alone clearly
belies the claim that appellant was asleep when these events unfolded.
Lastly, the probability suggested by my brother, which apparently led him to conclude
that appellants explanation was reasonably possibly true, bags the question as it
-
8/8/2019 Nghipandulwa v The State
39/49
39
takes no cognizance of the fact that the gun belonged to accused 1 who, to that day,
was a total stranger to appellant; if appellant had been asleep, as he claims, he would
have had no knowledge that the gun belonged to him, let alone to them (the accusedcollectively).
[23] During the hearing of this appeal it was put to counsel for the state that the fact
that appellant remained at the scene until the police arrived was inconsistent with guilt
on his part, whereas accused 1 would have remained because the car could later be
used to trace him and link him with the robbery. The proposition is repeated in my
brothers judgment where he says.
It is obvious from the evidence that the key of the Volks Wagon
belonging to accused 1 could not be found. He was unable to drive the
care away .
With respect, I find the above distinction between the situation of appellant and that of
accused 1 unconvincing in light of the undisputed evidence of Matangi Senior which
shows that appellants association with accused 1s actions goes beyond the
statements about our gun. Morgan testified that while his son went to call the
police;
And those two, accused no.1 and accused no.3 they were searching,
looking around where we were running. They were just following where
we were running through as if they had lost something. Then from there
-
8/8/2019 Nghipandulwa v The State
40/49
40
during that same day (t)hey were just looking searching for something.
Thats when Archie also came back in a police vehicle.
In the circumstances the only reasonable inference is that the only thing they were
looking for was the ignition key of the Volks Wagon. What is strange is that appellant
was cooperative with accused 1 to look for the key of a new found friend in
circumstances that identified him with a crime just committed.
[24] It would appear, with respect, that my brother Damaseb was so much swayedby the implicit acceptance of appellants claim that he was asleep, even during the
unfolding of the events in the bush, that he failed to address the most important
aspect of the case, namely, the circumstantial evidence that the record reveals. It is
of course true that there was no direct evidence showing that appellant was part of
the planning of the robbery, the execution thereof or that he associated himself with
his co-accuseds actions. I believe that a proper evaluation of that circumstantial
evidence paints a damning picture with regard to appellants conduct in the whole
saga. I have already indicated above what that evidence reveals.
[25] In S v Chabalala 2003 (1) SACR 134 at 139 i 140 b Heher, AJA talked about
the holistic approach to a case:
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
-
8/8/2019 Nghipandulwa v The State
41/49
41
weaknesses probabilities and improbabilities on both sides and, having
done that so, to decide whether the balance weighs so heavily in favour
of the state as to exclude any reasonable doubt about the accusedsguilt. The result may prove that one scrap of evidence or one defect in
the case for either party (such as the failure to call a material witness
concerning an identification parade) was decisive but that can only be
an ex post facto determination and a trial court (and counsel should
avoid the limitation to latch on to one (apparently) obvious aspect
without assessing it in the context of the full picture presented in the
evidence. (my underlining)
[26] The holistic approach to a case was stated by Nugent J (as he then was) in S v
Van der Meyden 1999 (1) SACR 447 who stated at 449 j 450 b:
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 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 and unreliable; and some of it might
be found to be only possibly false or unreliable; but none of it may
simply be ignored. (my emphasis)
-
8/8/2019 Nghipandulwa v The State
42/49
42
With these quotations in mind I now turn to what has been said bout circumstantial
evidence in a number of cases.
[27] In S v Reddy and Others 1996(2) SACR 1 (A) Zulman, A.J.A stated the
following on the assessment of circumstantial evidence.
In assessing circumstantial evidence one needs to be careful not to
approach such evidence upon a piece-meal basis and to subject each
individual piece of evidence to a consideration of whether it excludes
the reasonable possibility that the explanation given by an accused is
true. The evidence needs to be considered in its totality. It is only then
that one can apply the oft-quoted dictum in R v Blom 1939 AD 188 at
202-3, where reference is made to two cardinal rules of logic which
cannot be ignored. These are, firstly, that the inference sought to be
drawn must be consistent with all the proved facts and, secondly, the
proved facts should be such that they exclude every reasonable
inference from them save the one sought to be drawn. The matter iswell put in the following remarks of Davis AJA in R v De Villiers 1944 AD
493 at 508-9:
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 cumulative
effect of all of them together, and it is only after it had done so that the
accused is entitled to the benefit of any reasonable doubt which it may
have as to whether the inference of guilt is the only inference which can
reasonably be drawn. To put the matter in another way; the Crown
must satisfy the Court, not that each separate fact is inconsistent with
-
8/8/2019 Nghipandulwa v The State
43/49
43
the innocence of the accused, but that the evidence as a whole is
beyond reasonable doubt inconsistent with such innocence.
Best on Evidence 10 th ed 297 at 261 puts the matter thus:The elements, or links, which compose a chain of presumptive proof,
are certain moral and physical coincidences, which individually indicate
the principal fact; and the probative force of the whole depends on the
number, weight, independence, and consistency of those elementary
circumstances.
A number of circumstances, each individually very slight, may so tallywith and confirm each other as to leave no room for doubt of the fact
which they tend to establish. Not to speak of greater numbers, even
two articles of circumstantial evidence, though each taken by itself
weigh but as a feather, join them together, you will find them pressing
on a delinquent with the weight of a mill-stone. Thus, on an indictment
for uttering a bank-note, knowing it to be counterfeit, proof that the
accused uttered a counterfeit note amounts to nothing or next to
nothing; any person might innocently have a counterfeit note in his
possession, and offer it in payment. But suppose further proof to be
adduced that, shortly before the transaction in question, he had in
another place, and to another person, offered in payment another
counterfeit note of the same manufacture, the presumption of guilty
knowledge becomes strong.
Lord Coleridge, in R v Dickman (Newcastle Summer Assizes, 1910 referred to in Wills on Circumstantial Evidence 7 th ed at 46 and 452-60),
made the following observations concerning the proper approach to
circumstantial evidence:
-
8/8/2019 Nghipandulwa v The State
44/49
44
It is perfectly true this is a case of circumstantial evidence and
circumstantial evidence alone. Now circumstantial evidence varies
infinitely in its strength in proportion to the character, the variety, the
cogency, the independence, one of another, of the circumstances. Ithink one might describe it as a network of facts cast around the
accused man. That network may be a mere gossamer thread, as light
and as unsubstantial as the air itself. It may vanish at a touch. It may
be that, strong as it is in part, it leaves great gaps and rents through
which the accused is entitled to pass in safety. It may be so close, so
stringent, so coherent in its texture, that no efforts on the part of the
accused can break through. It may come to nothingon the other handit may be absolutely convincing. The law does not demand that you
should act upon certainties alone. In our lives, in our acts, in our
thoughts we do not deal with certainties; we ought to act upon just and
reasonable convictions founded upon just and reasonable grounds.
The law asks for no more and the law demands less. (My underlining)
[28] It has been said that in considering the effect of evidence, one need not be
concerned with remote and fantastic possibilities, and that it is not incumbent upon
the state to eliminate every conceivable possibility that may depend upon pure
speculation. The learned Judge of appeal in Reddys case supra went on to say:
The fact that a number of inferences can be drawn from a certain fact,
taken in isolation, does not mean that in every case the State, in orderto discharge the onus which rests upon it, is obliged to indulge in
conjecture and find an answer to every possible inference which
ingenuity may suggest any more than the Court is called on to seek
speculative explanations for conduct which on the face of it is
incriminating.
-
8/8/2019 Nghipandulwa v The State
45/49
45
(Per Diemont JA in S v Sauls and others 1981 (3) SA 172 (A) at 182G-
H.) (See also S v Rama 1966 (2) SA 395 (A) at 401A-C, approving the
remarks of Malan JA in a minority judgment in R v Mlambo 1957 (4) SA
727 (A) at 738A-B.) (again my emphasis)
[29] In Rex v Ndhlovu 1945 AD it was said at p 385 that the Court;
Should not speculate on the possible existence of matter upon which
there is no evidence or the reasonable existence of which cannot be
inferred from the evidence. (my emphasis)
[30] In S v Rama (supra) Pumpff, JA agreed with the following observation of
Malan, JA at p 738 A-B or R v Mlambo (supra):
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.
Moreover, if an accused deliberately takes the risk of giving false
evidence in the hope of being convicted of a less serious crime or even,
perchance, escaping conviction altogether and his evidence is declared
to be false and irreconcilable with the proved facts a court will, in
suitable cases, be fully justified in rejecting an argument that,
notwithstanding that the accused did not avail himself of he opportunity
-
8/8/2019 Nghipandulwa v The State
46/49
46
to mitigate the gravity of the offence, he should nevertheless receive the
same benefits as if he had done so.
[31] In my respectful view, all the statements from the cases I have referred to
above are pertinent to the circumstances in the present case. The trial court in this
case adequately summarised the evidence and properly drew the inference that
appellant associated himself with the robbery from the planning of it to its execution.
The fact that he omitted specifically to mention the facts enumerated by my brother,
Damaseb AJA in paragraph [17] of his judgment does not necessarily mean that heoverlooked them. It was rightly observed by Davis, AJA in Dhlumayos case (supra)
at p 702:)
No judgment can ever be perfect and all-embracing. It would be most
unsafe invariably to conclude that everything that is not mentioned has
been overlooked. And I should add here this observation. Lord Wright
cites with approval in Powells case (at p267) the statement of Lord
Buckmaster in Clarkes case (supra) with which Lord Atkinson had
expressly associated himself that:
Courts of appeal should not seek anxiously to discover reasons
adverse to the conclusion of the learned Judge who has seen
and heard the witnesses and determined the case on the
comparison of their evidence. (my emphasis) I respectfully
agree.
[32] I respectfully associate myself with the above observations, and, to repeat
what I have said above, in any case the probability suggested by my brother
-
8/8/2019 Nghipandulwa v The State
47/49
47
Damaseb and the evidence and inferences he says the trial court failed to place in
the scale in favour of accused 2 involve the uncritical acceptance of appellants
evidence that he was asleep at all material times. The evidence as a whole revealsmany strong indication to the contrary. Thus the prosecutor who dealt with that
aspect of the case was right to remark, when he addressed the trial court:
It is impossible to accept that accused no.2 could have known about
the gun if in fact and indeed he was asleep for the events pertaining to
the gun, had taken place during the time he was in the vehicle asleep.
To say nothing should turn on the version of the Matangis that accused was
aggressive towards them and in fact demanded the gun (our gun) from them.even
if accused lied on this aspect appears to me like looking at appellants evidence in
isolation. And, in any case to fail to evaluate circumstantial evidence in this case is,
in my respectfully view, completely unwarranted and leads to a wrong conclusion.
[33] It is my considered view that on a proper assessment of the circumstantial
evidence the guilt of appellants clearly established. In other words I am satisfied
beyond reasonable doubt that appellant was properly convicted and that the appeal
should be dismissed.
[34] Sentence
The trial court sentenced accused 1 to 10 years imprisonment, 10 years less than
accused 3 and appellant both of whom had previous convictions for armed robbery.
-
8/8/2019 Nghipandulwa v The State
48/49
48
The court emphasized the gravity of the offence of armed robbery and the fact that
the offence was of almost daily accordance some times leading to the loss of
innocent lives. The Court talked of the different roles played by the accused but inthe end did not find the role played by the appellant any different from that played by
accused 3. In my view there is nothing to distinguish the seriousness or gravity of for
example, housebreaker who actually breaks in and steals and that of one who stands
guard outside the house being broken into facilitate the break in and theft to be
carried out without interruption. Their degree of blameworthiness is the same. As the
trial court rightly observed in this regard:
Some of them (the accused in this case) would have played a lesser
part apparently so in the commission of the offence but at the end of the
day their goal was to commit armed robbery. (my underlining)
The Court also emphasized the fact that appellant and accused 3 had learned nothing
from their punishment has also an offence of armed robbery, and that the public did
not expect the Court to be lenient with such offenders.
[35] Punishment being eminently in the discretion of the court and it being
legitimate sometimes to emphasise the aggravating factors in a case over and above
the mitigating factors, in this case I find no reason to interfere with the discretion
exercised by the trial court. No misdirection is alleged in the sentencing by the trial
court.
-
8/8/2019 Nghipandulwa v The State
49/49
49
In the result I would dismiss the appeal in its entirety.
_______________________ MTAMBANENGWE, AJA
COUNSEL ON BEHALF OF THE APPELLANT:
Instructed by:
Mr Z J Grobler
Legal Aid
ON BEHALF OF THE RESPONDENT:
Instructed by:
Mr A Muvirimi
Prosecutor-General