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 General’s 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

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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 accused

2. 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 previous
convictions
 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; first

inside 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 VW’s 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
 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 to
you 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 it
was 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?
 5

Archibald: Yes.

Accused 2: Now is there anything which can link me to this offence up to the time
that you came there regarding this offence?

Archibald: No.” (My underlining for emphasis)

[4] Morgan who corroborated Archibald’s 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 it’s 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, we
pay 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
 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 the

father 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
 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 alleged

by the Matangis.

[8] Accused 1 did not testify in his own defence. In his testimony, accused 3

corroborated accused 2’s 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 Nubuamis…because that’s where he to

stays. Before he got into the VW he asked me if we cannot drop him there…So, 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

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 its

planning 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 2’s 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 2’s 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)
 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
2
(A) at 705 I-J and 706 A-B ) 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 Grobler’s suggestion otherwise, the Matangis were very

impressive, if fair witnesses. In my view they made no unfair accusations against

accused 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 justified
if (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 his
sharing of a common purpose with the perpetrators of the crime by himself performing some act or association
with the conduct of the perpetrators with (e) the requisite mens rea to commit the crime.
 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 the

robbery and did not associate himself therewith after it had been committed, is not

reasonably possibly true3. 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 trouble4. 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
car…Now 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 man…whom 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 bag…So, 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 State’s case, but excessive weight should not be given
to it: S v M 2006 (1) SACR 135 and also S v Engelbrecht 1993 NR 154 to the effect that false evidence by the
accused is not decisive of guilt.
4
R v Gani 1958(1) SA 102(A) , Maharaj v Parandaya 1939 NPD 239
 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 accused’s

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.

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[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 intent

to 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 counsel’s 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 of
assault 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 the

Matangis about when he got out of the vehicle.

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[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 no

single 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 Meyden51999 (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 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; 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

court’s 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 court’s

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 9th 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-E
6
S v Hadebe and Others 1998 (1) SACR 422 (SCA) at 426 c-e
 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 latter’s girlfriend got into the VW,

accused 2 was already asleep. Accused 1 was the owner of the VW. 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

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
 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 crime

and 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 2’s 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.
 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 Matangis7 and that of

accused 38 - 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 quo’s conclusion that accused 2’s

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 Morgan’s 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 State’s 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 supra
8
Paragraph 8 supra
 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
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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 Matangi’s) 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 Matangi’s or

that he associated himself with the robbery clearly proved to have been committed by

his co-accused.
 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 Matangi’s 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:
 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 reasonably
possible 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

appellant’s evidence in chief because the story in this matter started before the

Matangis (the two state witnesses,) came into the picture.

[7] Appellant’s Evidence in Chief

On 9th December he was at accused 3’s 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 3’s girlfriend who was to be dropped at work (in Klein

Windhoek later evidence showed). While waiting for accused 3’s 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
 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] Archibald’s 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
 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 service

station; 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”
 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 driver’s

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 1’s waist (‘stomach’) and “he was advancing to

where we were at the car”. The gun was not cocked. He said:

“It was like he couldn’t 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.”
 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 and

cocked it, then he “shoot on the ground” and ordered the father to lie down and

searched him for money.

[9] Archibald’s 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:

 25

“How did he know? He was asleep isn’t? 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 the
bags so that we can go to look for a taxi.”

The prosecutor asked:

 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 let’s fight because
you don’t 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 Damaseb’s 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 –
 27

1. the fact that in leading Archibald’s evidence the prosecutor dwelt at some

length on those inculpating statements,

2. the fact that the prosecutor asked Archibald to explain how appellant could

have gained the knowledge that the Matangi’s 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

appellant’s knowledge of the incident when the gun was taken from accused 1

include, according to those statements, the fact that both Matangi’s were involved in

the gun taking incident, that Morgan was Archibald’s 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

appellant’s 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

Matting’s. I shall hereunder refer in this regard, to appellant’s evidence under cross-

examination.
 28

[12] Morgan’s Evidence

Morgan’s 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 and

then 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
 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 leave

everything 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 turned
with 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.
‘That’s 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
 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 appellant’s 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 were
robbed 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)
that’s where you all, that’s where you all, that’s 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, that’s 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.
 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] Appellant’s Evidence under Cross Examination

In his plea explanation Appellant said he pleaded not guilty because he did not

participate in anything that the complainants “have said.” This was obviously in

reference to each witness’s 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:

“That’s 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:

 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:

“That’s 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 Morgan’s testimony that he had demanded to know why the Matangis

had taken the gun, and he answered vaguely and somewhat irrelevantly:
 33

“All that I know is that … the complainant, I almost didn’t say something
to him.”

[18] Appellant’s 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 was
happening 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
 34

friend to both accused 1 and appellant, must have known where appellant’s

home was;

b) If the initial decision of appellant’s 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 appellant’s 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 appellant’s

explanation was reasonably possibly true. He found that the Matangis:

 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 not
knowingly 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 court’s 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 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.”
 36

Emphasising the appellant’s 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 appellant’s 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 appellant’s evidence or the purport thereof, namely,

a) that to that very day, 9 December 2004 accused 1 was completely unknown to

him;
 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; appellant’s 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
 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 appellant’s 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 appellant’s explanation was reasonably possibly true, bags the question as it
 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 accused

collectively).

[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

brother’s 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 appellant’s association with accused 1’s 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
 40

during that same day (t)hey were just looking searching for something.
That’s 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 swayed

by the implicit acceptance of appellant’s 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

 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 accused’s

guilt. 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)
 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 is
well 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
 43

the innocence of the accused, but that the evidence as a whole is

beyond reasonable doubt inconsistent with such innocence.’

Best on Evidence 10th 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 tally

with 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 7th ed at 46 and 452-60),
made the following observations concerning the proper approach to
circumstantial evidence:
 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. I
think 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 nothing–on the other hand
it 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 order
to 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.’
 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
 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 he

overlooked them. It was rightly observed by Davis, AJA in Dhlumayo’s 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 Powell’s case (at p267) the statement of Lord
Buckmaster in Clarke’s 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
 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 appellant’s

evidence that he was asleep at all material times. The evidence as a whole reveals

many 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.
 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 in

the 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.
 49

In the result I would dismiss the appeal in its entirety.

_______________________
MTAMBANENGWE, AJA

COUNSEL ON BEHALF OF THE APPELLANT: Mr Z J Grobler

Instructed by: Legal Aid

ON BEHALF OF THE RESPONDENT: Mr A Muvirimi

Instructed by: Prosecutor-General