IN THE SUPREME COURT OF SOUTH AFRICA (CISKEI PROVINCIAL DIVISION) APPEAL. The Appellant was convicted in the Regional Court, Alice, on

Transcription

1 IN THE SUPREME COURT OF SOUTH AFRICA (CISKEI PROVINCIAL DIVISION) CASE NO. C A & R 20/96 THANDO NCANA APPELLANT versus THE STATE RESPONDENT APPEAL EBRAHIM AJ: The Appellant was convicted in the Regional Court, Alice, on three (3) charges, namely, (1) Robbery, (2) Possession of an unlicensed firearm, and (3) Unlawful possession of ammunition, and sentenced to imprisonment for a period of four (4) years. He now appeals against his conviction on these charges. Various grounds of appeal are set out in the Notice of Appeal. But, counsel for the Appellant correctly stated, both in his Heads and in arguing the appeal, that the issue to be determined is whether the version given by the accused should have been accepted by the Court a quo as reasonably possibly true. The Appellant's version of events is that on 30 December 1994 between 6.30 to

2 am he had come from the administrative area called Qanda. While standing at a cross-junction to hitch-hike a lift to Alice a maroon Kadett with a CB number plate approached and stopped. According to the Appellant the driver (hereafter refer to as the deceased) said that he was proceeding to Alice but would start in Dimbaza before doing so. The Appellant accepted the lift but the deceased instead of proceeding to Dimbaza drove to Debenek. At Debenek the deceased produced a firearm and told the Appellant to remove the money in the cubbyhole and a firearm from underneath the carpet of the car and to put it, as the Appellant says, in his waist. He drove with his left hand while pointing the firearm at the Appellant with his right. The deceased ordered the Appellant to place his hands on the dashboard and, in the words of the Appellant, threatened to do anything if he removed his hands. After taking a wrong turning, they encountered the police who fired shots at them but missed. roadblock. They proceeded further and at a junction they encountered a It appears that the deceased tried to evade the roadblock by driving through an open gate but the Appellant pulled up the handbrake of the car forcing it to a stop. The Appellant alighted from the vehicle with his hands in the air and told the police he had nothing to do with this as the deceased was pointing a firearm at him. The deceased also alighted and in the course of his arrest a struggle ensued. A shot was fired by a policeman which resulted in the death of the deceased and after his death the police removed a firearm from the deceased's waist.

3 3 The police found about R560,00, which the Appellant said belonged to him, and the amount of approximately R17 000,00 on his person. The firearm, which was cocked and loaded with ammunition, was also found on him. The Appellant did not dispute that a robbery had occurred at the Middledrift Post Office and that an amount in excess of R22 000,00 had been stolen. He did not dispute either that a maroon Kadett bearing a CB registration number had been involved in the robbery. Nor, did the Appellant claim that the amount of approximately R17 000,00, which the police found after searching him, belonged to him. According to him he had been forced by the deceased to put the money on his person. The version of a State witness, Mtutuzela Nqayi, regarding the events which occurred when the car driven by the deceased was stopped, differs from that of the Appellant. He says that when the car stopped the Appellant put his head out of the window and asked of the police what they (referring to the deceased and himself) had done. The Appellant had then alighted and put his hands on the roof of the car. He says that when he was about to search the Appellant he said to the Appellant, 'If you move I'll shoot you in the head'. To this the Appellant had replied, 'Do not shoot Sir, I'd rather be your witness'. This had occurred immediately prior to the deceased firing a shot in his struggle with another policeman resulting in the witness returning fire and killing him. This witness also said that the firearm and the money which was in Standard Bank money bags was found inside the Appellant's trousers.

4 4 It is trite that the approach to be adopted in determining whether the version of the Appellant is to be accepted is whether it can be said that it is reasonably, possibly true. This was set out in Rex v Difford 1937 (AD) 370 at 373. There Watermeyer AJA, as he then was, said, 'that no onus rests on the accused to convince the Court of the truth of any explanation he gives. If he gives an explanation, even if that explanation be improbable, the Court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but that beyond any reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he is entitled to his acquittal'. See also R v M 1946 (AD) 1023 at 1027, S v Qubeka 1982 (1) SA 534 (W) at 537F-G, S v Munyai 1986 (4) SA 712 (V) at 715G and S v Jaffer 1988 (2) SA 84 (C) at 89D-E. However, in assessing the Appellant's story, the question to be answered is whether it is 'so improbable that it cannot reasonably be true' - see S v Jaffer (supra) at 88F, or phrased differently, that 'it is demonstrably false or inherently so improbable as to be rejected as false' - see S v Munyai (supra) 715G. I accordingly proceed to assess whether the Appellant's version can be said to be reasonably possibly true. It is significant to note that the Appellant does not allege that when the deceased ordered him to place the money and the firearm on his person that the police had been sighted. They only encountered the police some time thereafter. Nor does he say that the deceased had some other, or any specific, purpose in mind. There was thus no apparent reason, at that time, for the deceased to have wanted to divert attention away from himself or to want to plant

5 incriminating evidence on the person of the Appellant. 5 The Appellant, strangely, does not ask the deceased why he was forcing him to take the money and the gun. He is being handed a large number of bundles of money - it was over R ,00 - tied with rubber bands, yet, in spite of the deceased's conduct being irrational and inexplicable the Appellant does not question anything. He does not even display the slightest curiosity concerning these strange events. In addressing the court a quo in argument the Appellant's legal representative proffered that it was a possibility that the Appellant was being used as a human shield. This, however, was never stated to be the case nor was it even alluded to by the Appellant in his evidence. Then too, why would the deceased order the Appellant to take all the money and not simply a small portion of it? And, why arm the Appellant with a loaded firearm? It defies belief that the deceased would act in this manner since he was clearly creating a danger for himself which, in the circumstances, was quite unwarranted. By doing this he was placing the Appellant in a position to use the firearm against him and abscond with all the money. It is absurd to suggest that he would have taken such a risk when there was no reason whatsoever to do so at that stage. Further, when the vehicle was forced to a stop at the blockade, the Appellant tells the police that he had nothing to do with the events but does not inform them immediately of the money and the gun hidden on his person. It is only when the

6 6 policeman threatens to shoot him that he reacts and says that he will be a witness. But, why would he volunteer to be a witness? The Appellant would only offer to be a witness if he had knowledge of some other criminal conduct, namely, the robbery. The police had not indicated why they had stopped the car nor had they said they were charging either the deceased or the Appellant with any crime. And finally, the Appellant says that the firearm, which the deceased had supposedly pointed at him all the time, was in fact found by the police on the deceased's waist and had been on his waist when they passed through the gate. I have no doubt that the Appellant's version cannot be said to be reasonably possibly true. The explanation given by him as to how he came to be in possession of the money, firearm and ammunition is not merely improbable but is beyond any reasonable doubt false. In my view, therefore, the Magistrate was correct in rejecting the Appellant's version as being false and in holding that the State had proved his guilt beyond a reasonable doubt. In the result, the appeal is dismissed and the conviction and sentence is confirmed. PICKARD JP: I agree B DE V PICKARD JUDGE OF THE SUPREME COURT Y EBRAHIM. ACTING JUDGE OF THE SUPREME COURT Date: {e> -A* 7 C^/H