S v Ngubane and Another (SS123/2016) [2019] ZAGPJHC 539 (18 June 2019)
SUMMARY
This case concerned – from the version of the state – that the two accused, acting in a group of five originally, acting in the execution of a common purpose to murder the security guard and to rob him and then to rob the store, did murder and rob the security guard, and, when they then encountered resistance from the store owner (Mr Khote), exchanged gunfire with Mr Khote. Two of their own members were killed in the shootout and another was wounded. Mr Khote was also wounded. The two remaining perpetrators surrendered, were taken into custody, and together with the third wounded perpetrator, were transported to hospital. The wounded perpetrator died in hospital and the remaining two were then, upon their discharge from hospital, transported to a police station, where they were charged. In addition, the version of the state is that each of them was in unlawful possession of a firearm and ammunition.
The court addresses itself to the method of reasoning by which a court may operate. It considers whether a deductive or an inductive model of reasoning is inappropriate and in addition considers the role of intuition.
Ultimately the court concluded that the most appropriate model for resolving questions of fact is a model of reasoning known as abduction: reasoning to the best explanation.
The Court took the view that abduction was the most appropriate model for dealing with all questions of fact, including circumstantial evidence.
The Court observed that the reasoning adopted by Watermeyer J in R v Blom 1939 AD 188 was erroneous in that it was circular and, in addition, was based on a ‘reasonable possibility’ or, worse, a mere possibility for an issue which was of ultimate significance, and which ought to have been determined on the standard of beyond a reasonable doubt.
Furthermore, the Court observed that the reasoning of Watermeyer J seemed to require piecemeal reasoning whereas our courts seem to both require that the entire conspectus of the evidence is accounted for and that our courts permit themselves to consider evidence as a ‘mosaic’ or as a cable or rope, made of strands, instead of demanding that every fact to be proved must be proved beyond a reasonable doubt, as it would, following the analogy of a rope or cable, rather than as the links in a chain.
The Court proposed that this is consistent with the abductive model proposed above.
Finally, the court turned to deal with the various issues that arose in this case – reasoning by abduction.
Held: the accused had acted in a common purpose to rob the store which included the premeditated murder of the security guard.
Held: Accused were convicted of premeditated murder in respect of the death of the security guard, two counts of murder – in respect of their two co-participants; attempted murder- in respect of the shots fired at Mr Khote; robbery with aggravating circumstances; possession of an unlicensed firearm and the unlawful possession of ammunition.
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J U D G M E N T
GRANT, AJ:
INTRODUCTION
[1] In what follows I will first set out the charges against the accused. I then address the critical issue of proof – how it is that, based on pieces of information we may discern about a past event, we may claim adequate knowledge of that event.
[2] In addition, I address the issue of circumstantial evidence – since I will be adopting a model of reasoning that relies through-out on inferences – and how and when we may rely on inferences as information that may or must be accounted for in an attempt to discern a past event.
[3] Thereafter I consider the evidence in this matter and whether it permits for a version of a past event – the criminal conduct in question – to be discerned with adequate certainty.
[4] Of course, adequate certainty in this context – that of a criminal trial – must be certainty beyond any reasonable doubt.
CHARGES
[5] This matter concerns an attack on the Bread-bin and Milky Bar (hereinafter referred to as ‘the store’) in which the security guard and two of the perpetrators were killed. Both accused were charged as follows:
[5.1] COUNT 1: MURDER – lN THAT on or about the 10th day of May 2016 and at or near the Bread Bin and Milky Bar, Maraisburg in the district of Johannesburg Central, the accused did unlawfully and intentionally kill an adult male person, Victor Nkoluleko Dlamini;
[5.2] COUNT 2: MURDER – lN THAT on or about the date and at or near the place mentioned in Count 1, the accused did unlawfully and intentionally kill an adult male person, Somandla Nkanyiso Dladla; and
[5.3] COUNT 3: MURDER – lN THAT on or about the date and at or near the place mentioned in Count 1, the accused did unlawfully and intentionally kill an adult male person, Lidokuhle sonny-boy Mkhize, –
All three counts of MURDER read with the provisions of section 51(1) and (2) as well as schedule 2 of the Criminal Law Amendment Act 105 of 1997 and further All (counts of murder) – as read with the provisions of sections 92(2), 256 and 258 of the Criminal Procedure Act 51 of 1977 (hereinafter referred to as the ‘CPA’); and
whereas the State’s summary of substantial facts included the following:
“The murder of Victor Nkoluleko Dlamini (the deceased in respect of Count 1) was planned or premeditated.”
[5.4] COUNT 4: ATTEMPTED MURDER – lN THAT on or about the date and at or near the place mentioned in Count 1, the accused did unlawfully and intentionally attempt to kill an adult male person, Essop Mohamed Khota by shooting at him with a firearm –
read with the provisions of sections 92(2), and 258 of the CPA further read with the provisions of section 51(2)(c) and schedule 2 of the Criminal Law Amendment Act 105 of 1997;
[5.5] COUNT 5: ROBBERY WITH AGGRAVATING CIRCUMSTANCES – lN THAT on or about the date and at or near the place mentioned in count 1, the accused did unlawfully and intentionally assault Victor Nkoluleko Dlamini and did then and there and with force take from his possession a 9mm Parabellum calibre FN model hi-power semi-automatic pistol with serial number 77C49073 and/or 6 x 9mm rounds of ammunition being his property or property in his lawful possession and did thereby rob him of the same, aggravating circumstances as defined by section 1 of the Criminal Procedure Act 51 of 1977 being present in that the accused inflicted grievous bodily harm and/or wielded a firearm during the robbery –
as defined in Section 1 of the criminal procedure act 51 of 1977 – read with the provisions of section 51(2) and schedule 2 of the criminal law amendment act 105 of 1977 and further read with the provisions of sections 92(2), 256 and 260 of the Criminal Procedure Act 51 of 1977
[5.6] COUNT 6 – POSSESION OF A PROHIBITTED FIREARM – lN THAT on or about the date and at or near the place mentioned in Count 1, the accused, unlawfully and intentionally had in their possession firearms, to wit:
• a 9mm Parabellum Calibre Vekto/Lew model 288 semi-automatic pistol; and/or
• a 9mm Short Calibre FEG model AP-63 semi-automatic pistol; and/or
• a .38 Special Calbre Smith Wesson Model 60 revolver; and/or
• a 9mm Parabellum CZ Model 75 semi-automatic pistol, –
the serial numbers thereof having been obliterated –
in contravention of section a(l)(f)(iv) read with the provisions of sections 1, 103, 117, 120(1)(a) and 121, read with schedule 4 of the firearms control act 60 of 2000 and further read with the provisions of section 250 of the Criminal Procedure Act 51 of 1977 as well as section 51(2) of the Criminal law Amendment Act 105 of 1997.
ALTERNATIVLEY (to COUNT 6): POSSESSION OF AN UNLICENSED FIREARM – IN THAT on or about the date and at or near the place mentioned in Count 1, the accused, unlawfully and intentionally had in their possession firearms, to wit:
• a 9mm Parabellum Calibre Vekto/Lew model 288 semi-automatic pistol;
and/or
• a 9mm Short Calibre FEG model AP-63 semi-automatic pistol; and/or
• a .38 Special Calibre Smith Wesson Model 60 revolver; and/or
• a 9mm Parabellum CZ Model 75 semi-automatic pistol, –
without being the holders of a licence, permit or authorisation issued in terms of the Act for the said firearms –
in contravention of section 3 read with the provisions of sections 1, 103, 117, 120(1)(a) and 121, read with schedule 4 of the firearms control act 60 of 2ooo and further read with the provisions of section 250 of the Criminal Procedure Act 51 of 1977 as well as section 51(2) of the criminal law amendment act 105 of 1997.
[5.7] COUNT 7: POSSESSTON OF AN UNLICENSED FIREARM – lN THAT on or about the date and at or near the place mentioned in Count 1, the accused, unlawfully and intentionally had in their possession firearms, to wit:
• a 9mm Parabellum Calibre CZ Model 75 semi-automatic pistol with serial number J1465; and/or
• a 9mm Parabellum Calibre FN Model Hi-Power semi-automatic pistol with serial number 77C49073; and/or
• a firearm the calibre and exact details unknown to the State –
without being the holders of a licence, permit or authorisation issued in terms of the Act for the said firearms –
in contravention of section 3 read with the provisions of sections 1, 103, 117, 120(1a) and 121, read with schedule 4 of the firearms control act 60 of 2000 and further read with the provisions of section 250 of the criminal procedure act 51 of 1977 as well as section 51(21 of the criminal law amendment act 10s of 1997.
[5.8] COUNT 8: UNLAWFUL POSSESSION OF AMMUNTION lN THAT on or about the date and at or near the place mentioned in Count 1, the accused, unlawfully and intentionally had in their possession at least:
• 29 x 9mm Parabellum Calibre rounds of ammunition; and/or
• 3 x .38 Special Calibre rounds of ammunition; and/or
• 3 x 9mm Short Calibre rounds of ammunition –
without being in lawful possession of: a licence in respect of a firearm capable of discharging the ammunition; a permit to possess ammunition; a dealer’s licence, manufacturer’s licence, gunsmith’s licence, an import or export or in-transit permit or transporters permit issued in terms of the act; or were otherwise authorised to do so –
in contravention of section 90, read with the provisions of section 1, 103, 117, 120(1), 121 and schedule 4, of the Firearms Control Act 60 of 2000, and further read with the provisions of section 250 of act 51 of 1977.
[6] The two accused (referred to as ‘A1’ and ‘A2’ respectively) entered a plea of not guilty on all the above charges and elected to exercise their right to remain silent and to not provide any plea explanation.
[7] It was confirmed that they understood that they were charged under the minimum sentencing legislation: Criminal Law Amendment Act 105 of 1997.
[8] In addition, the state confirmed, and the accused were warned, that the state sought to rely on the doctrine of common purpose. The accused acknowledged this, and their Counsel indicated that he had prepared on that basis.
[9] The accused made various formal admissions in terms of section 220 of the CPA which reduced the issues in dispute. These admissions included a photo album which contained photos of the scene. The accused confirmed the admissions made.
[10] In cross-examination the versions of the accused were put to the witnesses. Both accused agree that they were present at the scene at the relevant time, however, they deny any involvement in the robbery or the possession of firearms or ammunition. In this way they placed identity in issue – that it was them who robbed the shop. Perhaps more accurately, since the two accused did not dispute being in the store at the relevant time, the accused denied what it is that the state alleges they did while in the shop.
[11] Later, the defence placed in issue, if the possession of any firearm were to be attributed to the accused:
[11.1] knowledge of the accused as to the semi-automatic nature of the firearm (or any firearm so attributed) in question; and
[11.2] the failure of the state to positively prove that the accused were not lawful holders of the relevant firearm licence.
PROOF
[12] Zeffertt and Paizes, in what is arguably the leading work on the law of evidence in South Africa, pose the question as to the basis on which a trier of fact (who I shall refer to as the ‘decision maker’) decides any matter of fact given that s/he will only be exposed to pieces of information relating to a historical event – particularly where the information is different in nature. Some of this information might appear to support deductive logic, while other information appears to require the application of intuition. They pose the question: how do decision makers decide? They are daring enough, rightly it seems, to suggest that it is possible that a decision maker may not even realise that he or she has chosen one mode of reasoning over another. Their challenge on ‘proof’ deserves to be repeated here at length:
The fact that these questions are complex and taxing does not mean that they should simply be avoided. If the above examples[ ] demonstrate anything at all it is that an election between the two approaches must be made, either to govern the whole field of forensic proof or, as seems to be more likely, to deal with particular problems on an ad hoc basis. The problems that make such an election necessary are neither uncommon nor artificial. They are everyday situations that form the daily staple of our judicial fare.
…
To take but one more example to illustrate this, consider the question of what kind of quantum of evidence is necessary to satisfy a particular standard of proof. Assume that it is known that of a crowd of 10 000 that attended a football match, 5 001 gained admission by knowingly presenting forged tickets. It could be argued that, since statistically the probability that any one person gained admission in this way is greater than the probability that he or she did not, the owners of the stadium could succeed, if this were the only available evidence, in a civil action against any one of the spectators. And, if the number of dishonest spectators were to be increased to a number far closer to 10 000 (say, 9 900 or, if one felt that this was still not enough, 9 999), a similar argument could be raised for the conviction of any randomly selected spectator on a criminal charge of fraud
…
It is crucial, however, that the courts understand that such an election is unavoidable and that they appreciate the theoretical nature and practical consequences of that election in general and in each case. To that end
they will need to know more about the extent to which mathematical principles may appropriately be invoked in a forensic context and to be able to understand and evaluate the relationship between these principles and the conventional rules of evidence.
[13] I think these are fair questions and that I must be able to account for how it is that I operate. I do not think it is an overstatement to say that far too often, the decision-making process is utterly unfamiliar to ordinary people and in some cases, appears quite strange. It is for this reason, no doubt, that suspicions arise that the reasons a decision maker offers for his or her decision are only ex post-facto justifications.
[14] It may be expected that my attempt to answer this question will require the adoption of and adaption to some new way of thinking or some new set of rules. On the contrary though, the analysis and the conclusion are, I believe, liberating. It proposes that decision makers embrace the manner of reasoning by which they navigate their everyday lives and eschews almost entirely the imposition of operating by “special rules” for particular kinds of evidence. It allows for exactly the kind of reasoning that is so critical to making an informed decision on any set of facts: that it is all taken into account, and all accounted for.
[15] Let me begin by saying that I do not think I have access to knowledge about anything for certain. There is a common misconception – if I may – that there is such a thing as definitive ‘hard’ evidence of something. Popularly, for instance, it is supposed that cases of ‘direct evidence’ are easy and more compelling than those involving ‘indirect’ or circumstantial evidence.
[16] The first hurdle in understanding the process – or what is possible – is to understand that this distinction, between cases of ‘direct’ and ‘circumstantial evidence’ does not hold. There are many cases in which circumstantial evidence is more compelling than so-called direct evidence. A fingerprint, after all, is circumstantial evidence.
[17] Direct evidence might seem more forceful in terms of proof (probative), but it is not necessarily so. It can be less prone to logical error than less direct forms of evidence, but those kinds of evidence (such as eyewitness testimony) may have problems of their own – for instance – whether the witness is reliable (a witness may simply be mistaken). Alternatively, the question arises whether the witness is credible – that is, whether the witness is telling the truth or lying.
[18] Even if provided with what might be considered the most probative of all evidence – perhaps real evidence in the form of a firearm – the murder weapon, registered to the accused, found at the murder scene with his fingerprints on it, where the victim was found dead – already we are relying on various sources of data: fingerprints are circumstantial evidence and are only useful because an expert has linked an almost invisible pattern on the gun to the ridges on the accused’s hands. And then of course, none of this is of any use if the victim was stabbed to death. Or, worse, was shot (by the accused’s gun) but may have succumb to a stab wound first – inflicted by some other third party. All we are left with is scattered fragments of data – which I shall call information, evidence, or data points – so that we can begin to create an image – something comprehendible.
[19] So, I suggest, as Einstein insisted, one must create a mental picture. The notion of data points is to shift one into thinking of a piece of graph paper – or better still, a canvass, on which the pieces of information that one receives may be plotted or marked. The question becomes whether an image appears on the canvass – whether, when one assembles all of the pieces of the mosaic presented, one may discern a picture. The reference to a mosaic is quite deliberate and is an analogy often referred to by our Courts in explaining how they account for all the evidence – at least when dealing with circumstantial evidence.
[20] The model of reasoning proposed here is entirely compatible and consistent with how one ought, properly, to deal with circumstantial evidence. This is a coincidence, but no accident. The model proposed here recognises that in all that we do we are drawing inferences, some inferences are compound or multi-layered, but every decision is based on inferences, and is, ultimately, in itself an inference. There are natural implications for how to deal with circumstantial evidence – simply as one deals with all inferences. Nevertheless, this will be discussed below from the perspective of circumstantial evidence – because it is critical to observe the morass that has developed in attempting to create special rules to apply to what we might want to otherwise identify as circumstantial evidence. As one will note from that discussion, the argument there will be that special rules should be abandoned and what may otherwise qualify as circumstantial evidence, ought again, to be treated as we do all evidence.
[21] Thus, the argument for treating circumstantial evidence as all other evidence is bi-directional. Whether one looks at it from the perspective of how we should deal with evidence generally, or whether one considers it from how we ought to treat circumstantial evidence, one seems to be driven to the same conclusion. All evidence is, in a relevant respect “circumstantial” in that it requires inferential reasoning and looking backward, one cannot escape that what we might otherwise treat as circumstantial evidence is only an instance of inferential reasoning.
[22] However, even in proposing this, I have left over a most fundamental issue. On what basis do I propose that the pieces of information may be treated as marks on a canvass? Does this not assume an approach to reality and knowledge – and, at the very least, a mode of reasoning.
[23] I regret that it does. I say regret because this discussion is often absent from many claims to knowledge or to have reconstructed what happened at a particular moment, at a particular place. Do I, for instance, rely, as Holmes claims to have on deduction (although wrongly so). Can I say – with absolute certainty – that, say, because:
Y1 was shot dead; and
The bullet is traced to the gun of X1;
that it was X1 who shot Y1.
[24] No, I cannot. It seems that while the application of law to fact may follow a deductive form of reasoning, the determination of the facts cannot. And even so, there is controversy here – not least because the idea of law may be regarded as inherently normative and not reducible to a mathematical equation.
[25] Do we operate by induction? That is, by considering the behaviour of a sample of people in all material respects the same as the accused, and infer his or her guilt from that? Certainly not – although, a hint of this may appear in the form of similar fact evidence, where one relies on a sample of the accused’s own conduct to generalise to what he or she might have done at the relevant moment. But otherwise, induction is unhelpful. It belongs to research sciences or other activities where one seeks to extrapolate something about a population, based on a sample of that population.
[26] But then what are we doing? It would seem that whatever we might claim to be doing, or whatever we may wish we could do, we are inevitably engaged in a mixed process of logical reasoning – both deductive (reliant on a mathematical model of the world and non-deductive (reflecting a more intuitive approach).
[27] It seems that the mode of reasoning by which we choose between versions of facts, or indeed, how we navigate in this world, is what has come to be known as ‘abduction’.
[28] In most part it seems that, the mixed or dual mode of reasoning that we operate on in attempting to decide between versions of facts, we engage in an abductive exercise – as described, to a large extent, by Charles Sanders Pierce. We look at the facts on which we think we can rely and formulate an explanation for them. In particular, we are looking for the best possible explanation – or, in criminal law, the only feasible, or, to be more precise, the only reasonable explanation.
[29] It is an advantage of abduction that it admits of uncertainty. In this way, it is at least honest. As Tuzet explains:
[A]bduction never yields certainty. It is a probable inference, that is an inference determining conclusions whose truth does not necessarily follow from the truth of the premises. But this is not a check: it is indeed a principle of responsibility. The knowledge of the uncertainty of abductive conclusions, means the responsibility for their inference. The knowledge of the lack of certainty of a certain piece of reasoning, means the impossibility of concealing an arbitrary decision under the shield of logic. The shared knowledge of the hypothetical nature of a certain conclusion, means the impossibility of claiming it as necessary.
[30] Pierce argued that we approach everything we do with preconceptions and prejudgments. He is famously credited with saying:
Any novice in logic may well be surprised at my calling a guess an inference. It is equally easy to define inference so as to exclude or include abduction. But all the objects of logical study have to be classified; and it is found that there is no other good class in which to put abduction but that of inferences. Many logicians, however, leave it unclassed, a sort of logical supernumerary, as if its importance were too small to entitle it to any regular place. They evidently forget that neither deduction nor induction can ever add the smallest item to the data of perception; and, as we have already noticed, mere precepts do not constitute any knowledge applicable to any practical or theoretical use. All that makes knowledge applicable comes to us viâ abduction. Looking out of my window this lovely spring morning I see an azalea in full bloom. No, no! I do not see that; though that is the only way I can describe what I see. That is a proposition, a sentence, a fact; but what I perceive is not proposition, sentence, fact, but only an image, which I make intelligible in part by means of a statement of fact. This statement is abstract; but what I see is concrete. I perform an abduction when I so much as express in a sentence anything I see. The truth is that the whole fabric of our knowledge is one matted felt of pure hypothesis confirmed and refined by induction. Not the smallest advance can be made in knowledge beyond the stage of vacant staring, without making an abduction at every step.
[31] It falls then to the decision maker to declare his prejudices and preconceptions – rather than pretending that s/he has none.
[32] As Pierce noted, it is the direction of the justification which validates a reason. In this way, the suspicions of Dewey – referred to above – are addressed.
[33] In addition, it is a feature of abduction that it permits one to take account of new information. In this way it crosses the divide between those who might think that intuition and mathematics cannot be reconciled. The ability to account for new information and the updating of beliefs is foundational to Bayes Theorem. Bayes theorem, in particular, Bayesian probability, acknowledges (as does inductive reasoning) that one commences with an initial estimation of the probabilities of an event – known as the ‘prior probabilities’. They are ‘prior’ because they have not yet taken into account new or additional information. The theorem permits for very accurate calculations to be performed based on the integration of new or additional information to one’s (prior) beliefs as to the (prior) probabilities. Once updated, the beliefs represent the ‘posterior probabilities’ – relative to the new/additional information. This process may be repeated to accommodate all information. It represents a clearly attractive method for establishing the probability that a particular event took place – which is especially valuable because it requires that one declare one’s initial (subjective) beliefs.
[34] Bayes theorem is, regrettably, exceedingly difficult to utilise on a practical level – and it is, of course, sensitive to one’s initial estimation. One must also be cautious to only feed into the equation estimates of variables that are truly independent. A variable is a piece of information which can assume different values – for example, the colour of a car. In the infamous case of Collins – the use of mathematics failed spectacularly because, at least, the statisticians failed to separate out the variables properly.
[35] So, for instance, the probability that the male perpetrator (of a male and female) had both a beard and a moustache – whereas the fact that one has a beard implies that one also has a moustache. This might have been an obvious error – adopted for the sake of illustration. In real life, this is not a simple exercise.
[36] In addition, assigning a probability to a variable may be readily available in some spheres, such as in medicine but, for the sort of probability that is a function of social research, the necessary data may not be. For instance, in a rape case, one may need to know the probabilities of anyone engaging in casual sex at a public venue. Alternatively, in a murder case, one may need to know what the chances are of being attacked and stabbed in two independent attacks in the same evening. These are the sort of difficult probabilities that a decision maker would need available to process some of the factual issues which confront our courts.
[37] Thus, I look to the ‘canvass’ to see whether the ‘data points’ reveal a picture. In the language of ropes and cables relied on in discussing circumstantial evidence, I consider whether the data has created strands which together may hold the nominal weight (whatever that is) of a guilty or innocent explanation.
[38] In settling on the best and only reasonably possible version one must accommodate all of the evidence and be alert to the fact that no version can be constructed which includes a fact which is inconsistent with that version. This is, of course, in line with the general principle that while confirmation of any particular hypothesis, depending on the degree to which its presence would discriminate between that hypothesis and any other, can never guarantee the truth of any particular hypothesis.
[39] This is not the case with facts or evidence which is inconsistent with a version or hypothesis. One single fact can disconfirm a hypothesis which is consistent in all other respects with the hypothesis. One need only consider the well-known example of the black goose to observe the functioning of confirmation and disconfirmation. The hypothesis that all geese are white can be confirmed by the presentation of numerous white geese and then further white geese. At this point one may amass perhaps millions of white geese but nevertheless not have proved one’s hypothesis.
[40] In contrast, one need only present one single black goose to disk confirm the entire hypothesis. The power of disconfirmation is therefore overwhelming and any attempt at reasoning must be deeply sensitive to whether or not any fact exists which would disconfirm a hypothesis or the version which is proposed.
[41] As indicated above, adopting this style of reasoning it is submitted, allows for what Zeffertt and Paizes may term a hybrid model where one adopts a mathematical model in some respects and otherwise an intuitive model in other respects. As they say it would seem impossible to definitively determine which of these two should prevail. It does not appear that there is any resolution to the problem of which style of reasoning (deductive or intuitive) one should adopt so that perhaps the answer is that one might need to adopt a little mathematics here, and a little bit of intuition there.
[42] Does this model of abduction assist in answering the classical dilemma referred to above – of the football stadium? I think it does – because the model obliges one to consider the alternative possible versions. It allows the maths to do substantial work, while reminding one that each individual accused may, nevertheless, be able to present a (reasonably) plausible explanation as to their innocence.
[43] In exactly the same way as the flaw in what has come to be known as the “prosecutor’s fallacy”, is that more data is required, the abductive model requires that one must take account of the “big picture”. An abductive model requires one to consider whether the accused can construct – perhaps even out of what may be regarded as strands in a rope or cable, an alternative hypothesis. One needs more to decide the issue.
[44] This does not eschew a deductive/mathematical model – it allows it, as mentioned, to do substantial work, but it allows one, at the same time, to give expression to the “intuition” that there is something wrong in relying on the maths alone. On an abductive model, the decision maker would, I expect, remain sensitive to the presentation, by the accused, of other information, such as the accused’s ticket stubs, or proof of payment.
[45] Thus, I have set for myself the question of what hypothesis could possibly explain to the exclusion of all other hypotheses, the facts before me in this matter. The evidence presented by the state comprises various different forms of evidence including eyewitness testimony and admissions. The defence presented the testimony of the two accused to the effect that they were present at the scene of the robbery innocently. Thus, in this case I must consider not only the so-called direct evidence, but also the circumstantial evidence presented by the state.
FROM THEORY TO APPLICATION
[46] In adopting an abductive model of reasoning to establish the facts, what must one do? The implications are onerous.
[47] In my view, being faithful to the underlying precepts of abduction from Pierce and Bayesian theory, one must begin by being alert to any preconceptions – preconceptions in the sense that one will likely have formed estimates of the probabilities of certain events having occurred as the information is being presented. These may relate for instance to the appearance of the accused, he or she may walk with a limp or appear intimidatingly large and strong. One may, for instance, hear that a vehicle drove through a stop street without stopping – and form a prima facie view of the impropriety of doing so.
[48] One’s attention may also be drawn inevitably to the fact that an accused is in custody and not on bail and that this in itself will mean that someone has considered the various factors, including, whether this person will stand trial or be a menace to the witnesses and that it is possible, of course, to draw an adverse inference against a person for this reason. We are cautioned not to do so by case law to the effect that in terms of the appearance of the accused, s/he may not be presented with any hint of a previous conviction.
[49] This is the second manifestation of one’s commitment to intellectual honesty. The first, of course, is to admit what it is that one is doing in the sense of what mode of reasoning one is adopting.
[50] The significance and value of setting out one’s prior beliefs and prejudices is that you force yourself into an exercise of bringing what might otherwise be unconscious into one’s consciousness where one can work with it or at least acknowledge it.
[51] Next it appears sensible to sketch out the various versions which one will be required to adopt – of course, in the alternative. Each version will represent a mosaic or picture, perhaps a moving picture but a picture nonetheless. It may be helpful – indeed it would seem to be helpful – to consider what each party proposes presenting to sustain each picture that it proposes – it’s version.
[52] At the very core of each and every version will be a number of “data points” or “dots” on the “canvass”. The exercise requires that one sketch out the dots and then look to see in what way they can be joined. In fact, in constructing any version one is required to join the dots. However, one will likely recall that – in doing this sort of exercise – the dots may be joined in a variety of different ways. On occasion – in doing this sort of exercise – the “picture” the author wants you to see will be numbered. But in forensic fact-finding there is no such numbering and no particular reason to attempt to be faithful to anyone’s construction of what it is that the dots show.
[53] It may be helpful to consider what it is that the prosecution, for instance, in a criminal case proposes to prove as the data points from which one must see the picture it proposes emerge. This is helpful for two reasons:
[53.1] Firstly, because one will be alert to what it is that the prosecution in a criminal case, or perhaps the plaintiff in a civil case sets up for themselves as what it is that they intend to prove. This reveals the basis on which they see a particular version or picture, so that when the prosecution or plaintiff fails to prove or set down a particular data point, the question must arise as to whether the picture or version it proposes can truly be drawn. On some occasions, it will remain possible – some data points will be redundant, but in others they will be essential and in their absence, there will be no picture. The version will have failed to be established.
[53.2] Secondly though it will allow one to consider whether, even if the plaintiff or prosecution is able to prove these data points, this must necessarily lead to the conclusion proposed.
[54] Even at what might be considered an early stage, it will be helpful to consider whether the picture proposed in fact amounts to anything or whether such a picture can be seen or can otherwise emerge from the various data points. Against this the opposing versions must be considered and to the extent to which they overlap the facts are common cause – however, the picture that one is being asked to see is very different.
[55] The standards of proof applicable in civil and criminal trials will also have implications for the work one must do at this stage. While it is trite that the standard of proof in a civil trial is proof on a balance of probabilities, one may easily overlook that this could be satisfied by one of two mutually exclusive propositions.
[55.1] The first is simply that the plaintiff’s version must be more probable than the defendant’s version so that for instance if the plaintiff proves his case at, say, a 40% probability whereas the defendant proves his or her case at a probability of only 30%, then the plaintiff has prevailed.
[55.2] Another alternative – which appears to be adopted by our courts is the model by which a plaintiff must prove that his or her case (version) is more likely than not, so that s/he must prove at least an excess of 50%.
[56] Nevertheless, in a civil trial one need consider only the version proposed by the plaintiff and the defendant. One may be in an entirely different situation in a criminal trial where, while the prosecution must of necessity propose one particular guilty version, the possibility may arise (such as for instance where an accused elects to remain silent), that the presiding officer must, of his own accord, consider the alternative possibilities – alternative versions.
[57] Each alternative version raises the prospect that there are other pictures that may be consistent even with what the state proposes to prove. Of course, since our law can only but take account of the possibility that an innocent accused person may have forgotten certain facts and can only propose several different alternatives, one will need to consider these alternatives up against whether the hypothesis of the state is the only reasonable explanation.
[58] In this way one may see the prospect of an accused’s alternative versions presenting more force than a single version of the same probative value alone. Schreiner J famously commented – regarding the reasoning of Davis AJA in the case of R v Du Plessis that he (Schreiner) fails to see or understand – as Davis AJA proposed – how discrete alternatives can somehow combine to present, as a composite, a reasonable doubt against the state’s version. We see here how this is indeed possible.
[59] In R v Du Plessis Davis AJA allowed for the prospects of alternative innocent explanations operating together in favour of an accused. The facts of that case concerned the theft of a motor vehicle where the critical piece of evidence against the accused having somehow been involved in the theft was the discovery by the police of a fingerprint on the underside of the front bumper. The rest of the car had been wiped clean presumably to clear it from any possible fingerprints.
[60] The accused in his defence explained that it may have been that he was indeed near the car which may have been driven by friends of his and that he had perhaps stood near the car leaning against it and lent down touching the bumper to steady himself, alternatively he may have lent down to tie his shoelaces and in doing so again touched the bumper.
[61] The significance of these explanations is that they are mutually exclusive and yet they were taken together. Thus, an accused person has in his or her favour that he or she may propose alternative possibilities except that, as the directive from Schreiner J appears, at its core, to caution against, is that these versions must at least be compatible.
[62] Thus, the question for consideration was, on the one hand, for the state, whether the fingerprint had been placed there when the accused made contact with the vehicle during the course of its theft or thereafter, knowing it to have been stolen. Alternatively, for the defence, whether his fingerprint had come to be on the bumper by virtue of some innocent explanation such as that he had lent on the car to steady himself either when he was leaning on the car or perhaps as he might have lent down to tie his shoelaces near the car.
[63] If our criminal law required of an accused person to be able to account for his or her whereabouts at every moment of everyday things may well be different.
[64] I turn now to consider the law of circumstantial evidence and the implications, if any, of the model proposed here – of abduction.
[65] Thereafter I discuss the law of common purpose and whether it permits for a conviction of the unlawful possession of a firearm.
[66] I turn then to an application of the model of abduction to the facts of this case.
CIRCUMSTANCIAL EVIDENCE
[67] Our law on circumstantial evidence is governed by what have come to be known as the two cardinal rules of logic in R v Blom. These “rules” appear from the judgment of Watermeyer JA, as follows:
In reasoning by inference there are two cardinal rules of logic which cannot be ignored:
The inference sought to be drawn must be consistent with all the proved facts. If it is not, the inference cannot be drawn.
The proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn. If they do not exclude other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct.
[68] Despite the reverence with which this judgment is cited, it appears to be conceptually flawed and also appears to be at odds with what our courts do.
[69] What is crucial to notice – as Zeffertt and Paizes have – that there is a logical flaw built into the ‘rules’. The rules propose that every inference sought to be drawn must be:
[69.1] Consistent with all the proved facts; and
[69.2] The only reasonable inference given the proved facts.
[70] Zeffertt and Paizes ask, rightly, what are these ‘proved facts’ – and on what standard must they have been proved. In my view the entire exercise could grind to a halt here. However, I will let it be for the moment because there is possibly an even greater problem ahead: if every inference is to be tested against the standard of reasonable doubt – the ‘rules’ in Blom are a specific injunction to treat evidence in a piecemeal fashion – utterly contrary to what our courts in fact do.
[71] The reasoning adopted by Watermeyer AJ is, itself, contrary to his own rule.
[72] To understand the reasoning adopted by Watermeyer AJ, it is helpful to understand the basic facts of the case. The case concerned whether the accused was responsible for the death of a woman whose dead body had lain across a railway line and had been struck by a passing train. The train had done such damage to the body that it was difficult to know why the woman had died – and, most importantly, whether the accused was responsible. There was only so-called circumstantial evidence against the accused.
[73] For Watermeyer AJ, the evidence fell into three categories:
(1) Evidence of the conduct of the accused before the event, showing that he had (a) a motive to kill the deceased, (b) a design to kill someone.
(2) Evidence to show that accused had an opportunity to kill the deceased.
(3) Evidence of the conduct of the accused after the event showing a guilty conscience.
[74] As to my submission that the reasoning is flawed – one may see that in R v Blom itself, logical errors were committed in the application of the very rules which went on to become regarded as critical to reasoning by inference. Watermeyer JA, in R v Blom, from whose judgment the rules appear, agreed that nothing less than proof that the victim in that case was murdered in a particular way (by chloroform poisoning) would suffice to prove that the accused had killed her.
[75] However, in what may qualify as, with respect, a strange line of reasoning, he proceeded to arrive at that conclusion by accepting, by the operation of a weak inference – that the accused had killed the victim – and so in turn that the victim had been killed in the required way. What is critical to note is that his line of reasoning, as impressive as his logic appears, operates on the assumption of the answer to the ultimate question: that the accused had killed the victim.
[76] It may be helpful to strip this of its content so as to reveal the underlying logical form. What Watermeyer JA set for himself was that, to resolve the ultimate enquiry, whether the accused killed the deceased, say “D”, he must find “E” – whereas “E” is not the ultimate issue. The then reasoned as follows:
D is “reasonably possibly” true
E is ‘possibly’ true.
[Conclusion]
[77] The reasoning of Watermeyer JA is as follows:
If the case be considered without regard to the evidence of Dr. Naude and Inspector Talken, then it would, in my opinion, have been insufficient. It would have related entirely to facts and circumstances antecedent to and coincident with the girl’s death, and even if the accused’s motive and unlawful design connected with chloroform and opportunity were given their fullest weight, an inference that he killed the girl would not have been justified because in no way could they be regarded as excluding the hypothesis of murder by someone else.
But the evidence of a guilty conscience after the event supplies additional material for inference which when considered together with the other evidence makes it reasonably possible to infer that the accused killed the girl, and that leads to a possible further inference that he did it by means of chloroform, and excludes the hypothesis of murder by some other person.
[78] Thus we see that ‘evidence of a guilty conscience’ is added to the other material to conclude that it was ‘reasonably possible’ the accused killed the victim – and that, from that, it became ‘possible’ to infer that the accused had done this by an application of chloroform.
[79] This extract reveals several problems:
[79.1] At times, the court operates by agreeing that the accused can only be regarded as the murderer if the victim was killed by chloroform – but then relies on what is, ultimately in question (whether the accused killed the victim), to conclude that the victim was killed by the administration of chloroform.
[79.2] The issue, which the court agreed it must establish, that the victim was killed by the administration of chloroform, was proved on the basis of a ‘possible’ inference.
[80] The reasoning is at least circular and reveals that the court was satisfied to convict on what was only a possible inference.
[81] In addition, it appears to be possible to read the second rule as requiring that each and every inference sought to be drawn must – for a criminal case – be the only reasonably possible inference. This interpretation would, in the context of a criminal trial, demand that a court, in drawing an inference, considers each and every proposed inference to be drawn, individually against the standard of proof beyond a reasonable doubt, and if found to fail, must be discarded – and so on for each and every inference sought to be drawn.
[82] It is helpful to distinguish two kinds of reasoning: chain type reasoning versus what may pass under different names as rope, cable or mosaic type reasoning.
[82.1] Where one adopts ‘chain type’ reasoning – the name arises from the analogy of a chain- which is only as strong as its weakest link. Thus, in a case where one adopts “chain type” reasoning”, every link must be – in a criminal case – as strong as whatever “proof beyond a reasonable doubt” would demand.
[82.2] Where one adopts “rope/cable style” reasoning, one permits items of evidence, which would not in themselves carry the weight of ‘proof beyond a reasonable doubt’, but one may rely on several such “strands” which, when weaved together, may well carry such weight. We see our courts adopting this style of reasoning – but it is expressly prohibited by the second of the Blom rules.
[83] As indicated, Watermeyer AJ himself relied on rope/cable style reasoning – contrary to his own rule – the second rule in Blom: every inference must be the only reasonably possible inference.
[84] For some, this interpretation is neither sensible nor even possible. Yet it is the interpretation given to the circumstantial evidence presented in the infamous Australian “dingo case” of R v Chamberlain. This approach has since been rejected in Australia.
[85] This interpretation would also require of our Courts that they consider evidence on a piecemeal basis, whereas, clearly, they do not. Our Courts have shown that they are prepared to aggregate discrete facts and inferences together to arrive at a sensible answer.
[86] That they do so is also evident in the ‘mosaic’ to which our courts refer. In State v Hadebe, the Supreme Court of Appeal followed the approach set out in Moshephi & Others v R, where the following was said:
The question for determination is whether, in the light of all the evidence adduced at the trial, the guilt of the appellants was established beyond reasonable doubt. The breaking down of a body of evidence into its component parts is obviously a useful aid to a proper understanding and evaluation of it. But, in doing so, one must guard against a tendency to focus too intently upon the separate and individual parts of what is, after all, a mosaic of proof. Doubts about one aspect of the evidence led in a trial may arise when that aspect is viewed in isolation. Those doubts may be set when it is evaluated again together with all the other available evidence. That is not to say that a broad and indulgent approach is appropriate when evaluating evidence. Far from it. There is no substitute for a detailed and critical, examination of each and every component in a body of evidence. But, once that has been done, it is necessary to step back a pace and consider the mosaic as a whole. If that is not done, one may fail to see the wood for the trees.
[87] Each piece of a mosaic may be unclear or even vague in itself, but, when placed with enough other pieces, it reveals a ‘picture’ of what occurred.
[88] Thus, following the general model of abduction proposed above – to the extent to which it is consistent with what may sensibly be extracted from the ‘cardinal rules’ in R v Blom – the following seems to follow:
[88.1] There can be nothing wrong with a rule of logic that reminds one that one cannot hold two mutually exclusive beliefs simultaneously. One may also not draw an inference from facts where one of those facts is inconsistent with the inference. However, this must be true of all inferences – primary (from ‘direct evidence’) or secondary (from ‘circumstantial evidence’).
[88.2] We must decide what standard of proof ought to be applied to any particular inference or issue and consider whether, given the evidential material considered together, including any inferences that are at least permissible, the appropriate standard is met.
[88.3] The standard of proof required will be determined by the importance of the fact in question. Where the standard of proof to be satisfied is proof beyond a reasonable doubt, it will be perfectly acceptable to ask whether any other reasonable explanation could account for all the evidence. This is simply a different way to ask whether another reasonable possibility exists that would explain the evidence in question.
[89] There is nothing new or startling about this approach. In fact, it is the suggestion only that we continue to do this where we do and that we are not distracted by thinking that we need to switch into some other special mode of thought that is simply a distraction. It really is nothing more than to suggest that we should adopt – as I believe we do in any event, when we do not get distracted: abductive reasoning.
[90] One may find that inevitably the following question is posed:
What are the chances that:
Q (an inference) is not true (the null hypothesis);
Given that:
A;
B;
C; [and] …
[91] In the classic example of the man (X) carrying a blood-stained sword leaving the home of a person (Y), who, on immediate inspection, is found to be dead for having been run through with a sword, the sort of question we seem naturally inclined to ask is: what are the chances that X was not responsible for the death of Y, given that:
The victim was killed with a sword;
X was with Y immediately before Y was found to be dead;
X had a sword; and
X’s sword was blood stained.
[92] Given that the answer to this question takes on the significance of answering whether we regard X as innocent or guilty, the degree of certainty that is required is beyond a reasonable doubt.
[93] There will be instances in which a fact, or secondary fact, from which an inference, which carries the ultimate significance (of guilt or innocence), may only attract a degree of certainty as to its existence of far less than the ultimate degree of certainty.
[94] On a variation of the analogy of a mosaic, a more helpful analogy may be that of a rope or cable – where each strand of the rope or cable is, in itself, weak, and unable to ‘carry the load’ at the standard of proof required of the inference required. But – as the analogy goes – the strands may, when weaved together, carry the ‘required load’. This is, of course, exactly what is required by abduction.
[95] In contrast, by analogy, one may note that a chain carries the weight required of it to support, by the operation of a completely different mode. Each link in a chain must be capable of carrying the load.
[96] This mode of reasoning (by analogy), is the sort that is appropriate to facts or inferences which must all be proved at the required degree of proof to sustain the ultimate conclusion. Thus, on a charge of murder, where proof is required that the accused, acting with the required mens rea, committed the wrongful conduct. Each of these must be proved beyond a reasonable doubt, and each component (the elements (conduct, unlawfulness, capacity and fault) must be proved beyond a reasonable doubt. Thus, a chain of at least four links must be established, where each link is proved beyond a reasonable doubt.
[97] Then, if, in any case, whether the accused committed the conduct in question, turns on whether, and only whether, the accused was, say, in possession of a 9mm firearm, then proof that the accused was in possession of such a 9mm gun, assumed the significance of the ultimate conclusion, and must be proved beyond reasonable doubt.
[98] Other circumstances may arise that require that a conclusion of ultimate significance is, as usual, proved beyond a reasonable doubt, but it may be that this conclusion can be proved by the combination of proof of any, say, 5 of any 100 other facts or inferences. So, for instance, if the question is whether the accused killed the victim, this will depend on innumerable facts or inferences which will support the conclusion.
[99] One may be satisfied that, for instance, the accused had threatened to kill Y, had attempted to do so before, has stood to gain financially or otherwise from the death of the victim, had opportunity or was seen in the vicinity of the victim around the time of death, said when he woke up that day that he was going to kill someone that day, and that blood was found on his clothes, his clothes were torn, he had scratch marks on his face and the victim had skin under his/her nails, and finally that the accused had asked the local reverend to forgive his ‘sin’ that night – whereas he had never sought redemption before. If one is not satisfied, there will be innumerable facts or inferences which would implicate the accused.
[100] Of course, anything which is inconsistent precludes the required inference. This is the work done, by, say, an alibi. An alibi is straightforwardly inconsistent with the guilt of an accused and cannot be forged together with other facts to draw the ultimate conclusion of guilt.
[101] A view of circumstantial evidence as creating alternative possible hypotheses which may be constructed of strands in a rope or cable can easily and well be accommodated in the abductive model proposed. A further benefit of recognising this is that it permits for the construction of alternative hypotheses which are not linked in the same way as the scales which we often have reference to assist us with the analogy of balancing.
[102] The difficulty with the notion of a scale is that whatever goes in one pan or taken from that pan effects the relative position of the other pan. This is difficult to conceive where the presiding officer needs to construct, at least conceptually, all independent versions or hypotheses while acknowledging at the same time that there may remain an extent to which the truth of what happened will remain unknown and – if I may be so bold – to some extent, unknowable.
[103] It follows from what I have said, that a court is engaged in the determination of, in a criminal case, whether the states version has been proved beyond reasonable doubt and in the case of the civil trial whether the version of the plaintiff has been proved on a balance of probabilities.
[104] The question that is addressed on this model is whether, treating the guilty hypothesis as a rope or cable, all of the necessary strands are in place – treating the wrongful conduct and wrongful mental state as all part of ultimately one composite event.
COMMON PURPOSE
[105] Common purpose is the doctrine according to which, understood properly, with reference to groups who act in what would qualify as a common purpose, what everyone in a group does, is to be regarded as what each person in the group does. The doctrine has been approved as constitutionally compliant.
[106] It therefore closes the gap that may otherwise exist between the conduct of any member of a group and the killing of another member of the group – by another member of the group or anyone responding in private defence to the attack – where the surviving member did not actually cause the death of the other member of the group.
[107] In S v Nkombani a party (‘X’) to a common purpose to rob, which included the prospect of killing, who dispatched two co-perpetrators to rob a filling station, was convicted of the murder of one of the co-perpetrators who, during the course of the robbery, was shot and killed by the other co-perpetrator. Significantly, the causing of death of the co-perpetrator was imputed to X.
[108] In S v Nhlapo the Appellate Division convicted co-perpetrators of the murder of a guard, killed during the commission of a robber, by a fellow guard. Van Heerden AJA (Wessels JA and Muller JA concurring) stated:
[T]he robbers knew that they would have to attack and overpower guards who were armed for the specific purpose of using their fire-arms to thwart any attempted robbery. It may be conceded that they hoped to overpower the guards without a shot being fired by the latter, but they must have known that the guards would endeavour to use their firearms when attacked. It follows that they must have known that their attack on the guards could lead to a gun battle during which anybody, be it a guard, one of the robbers or an innocent bystander, might be killed in the envisaged cross-fire. Consequently they also foresaw the possibility of one guard being killed by a shot fired in the direction of the robbers by another guard or, for that matter, a person such as a staff member of [the store] witnessing the attack. In sum, the only possible inference, in the absence of any negativing explanation by the appellants, is that they planned and executed the robbery with dolus indeterminatus in the sense that they foresaw the possibility that anybody involved in the robbers’ attack, or in the immediate vicinity of the scene, could be killed by cross-fire.
[109] Defence counsel relied on an article which I wrote in which I am critical of the doctrine and application of common purpose. Counsel referred me, in particular, to part of my conclusion to the effect that the principles relating to mistake of law ought to be applied to the doctrine of common purpose so that a mistake of law where the crime concerned requires dolus, would exclude the operation of common purpose.
[110] Defence counsel however failed to explain the argument or pursue the argument in any substantive form. None of the premises or intermediary steps engaged with in the argument were argued before court and I find myself unable to follow the conclusion to which I am referred.
[111] I must treat the accused as they would have been treated had this argument been presented before any other court. I expect that at the very least in the form that was presented it would have been rejected out of hand as I must do.
COMMON PURPOSE AND POSSESSION OF AN UNLAWFUL OR ILLEGAL FIREARM
[112] What remains then only is what may become of the charges relating to the unlawful possession of firearms or of firearms where the serial number has been obliterated. The pertinent question in this respect is whether possession of these items may be imputed by common purpose, or imputed at all. This is the question of whether possession is, of its very nature, an “eiehandgige misdaad” – in English “own-hands” crime – a crime which one can only permit oneself – with one’s own hands.
[113] The best-known example of an own hands crime is the former crime of rape as it was defined previously under the common law. Under the old common law definition only the actual perpetrator who had himself, unlawful sexual intercourse with the victim could be convicted of the crime of rape. A person who assisted – to any extent – even by holding the victim down, could not be convicted of rape because it was an own hands crime.
[114] Examples persist today such as bigamy and driving under the influence. It is only the person who is is already married under the civil law who then knowingly engages in a second marriage, who commits bigamy. A marriage officer who facilitates even knowingly, this second civil marriage, is at most an accomplice to the bigamy cannot him or herself be convicted of the offence of bigamy. Similarly for driving under the influence. It is only the individual who him or herself is intoxicated and takes control of a vehicle who commits the offence – no other person, however enabling, can be convicted of the offence – but may be convicted as an accomplice to driving under the influence.
[115] From these examples one may notice that there appears to be something related to the status of the individual that is specific to him or her which makes it the case that only that person can commit the offence in question. In the crimes described the positive status in one respect, such as already being married under civil law, or being intoxicated, qualifies one for a possible conviction of the crime in question.
[116] According to Snyman:
Possession consists of two elements, namely a physical and a mental. The physical element is objective in nature. It is referred to as corpus or detentio, and entails the physical control over the article. The second element is subjective in nature. It is referred to as animus, and describes the intention with which X exercises control over the article. Before X can be said to possess an article, both corpus and animus must be present, and they must be present simultaneously.
[117] The leading case appears to be S v Nkosi where the following was said:
The issues which arise in deciding whether the group (and hence the appellant) possessed the guns must be decided with reference to the answer to the question whether the State has established facts from which it can properly be inferred by a Court that:
(a) the group had the intention (animus) to exercise possession of the guns through the actual detentor and
(b) the actual detentors had the intention to hold the guns on behalf of the group.
Only if both requirements are fulfilled can there be joint possession involving the group as a whole and the detentors, or common purpose between the members of the group to possess all the guns.
[118] This has subsequently been adopted by the Supreme Court of Appeal in S v Kwanda and endorsed and confirmed by the Constitutional Court in S v Makhubela and Another. It is helpful to have reference to what the unanimous Court said there – an extensive quote is included for its importance:
What remains are the applicants’ convictions for the unlawful possession of firearms and ammunition, that is, counts four and five. It is common cause that they did not have any firearms in their possession. They were, however, convicted of these charges in the trial court on the basis of the doctrine of common purpose.
In convicting the applicants for unlawful possession of firearms and ammunition on the basis of the doctrine of common purpose, the trial court departed from settled jurisprudence. The test for establishing liability for the possession of firearms and ammunition was established in S v Nkosi as follows:
‘The issues which arise in deciding whether the group (and hence the appellant) possessed the guns must be decided with reference to the answer to the question whether the State has established facts from which it can properly be inferred by a Court that:
(a) the group had the intention (animus) to exercise possession of the guns through the actual detentor and
(b) the actual detentors had the intention to hold the guns on behalf of the group.
Only if both requirements are fulfilled can there be joint possession involving the group as a whole and the detentors, or common purpose between the members of the group to possess all the guns.’
This test has since been cited with approval in numerous judgments of the High Court and the Supreme Court of Appeal. In these judgments, the courts have found perpetrators guilty of a crime involving the use of firearms on the basis of the doctrine of common purpose, but nevertheless found that the perpetrators could not be found to be guilty of the unlawful possession of firearms on the basis of this doctrine. The test takes into account the fact that the application of the doctrine of common purpose differs in relation to ‘consequence crimes’, such as murder, and in relation to ‘circumstance crimes’, such as possession.
[119] The last (reported) word seems to have come from Binns-Ward J in S v Jordaan and Others, who endorsed the reasoning in Nkosi, stating:
As discussed, accused 4 and 5 were probably aware that accused 1 was armed and that he intended to use the firearm against any member of the Hard Livings gang that they might encounter. That would not be sufficient to convict them of unlawful possession of the firearms and ammunition. As explained by Marais J in S v Nkosi 1998 (1) SACR 284 (W), joint possession of firearms and ammunition is proved only if the state establishes beyond reasonable doubt
(a) that the company of which the actual detentor was part intended as a whole to exercise possession of firearms through the actual detentor and
(b) that the actual detentor intended to hold firearms on behalf of the others.
[120] These cases all appear to turn on the fact that – in line with fundamental principles of common purpose – the mental requirement of possession cannot be attributed. This in itself will limit or virtually eliminate the attribution of “possession” – as it has in all of the cases in which it has arisen for decision.
RIGHT TO SILENCE
OBLIGATION TO PRODUCE LICENCE
[121] The state relied on section 250(1) of the CPA which provides, in summary, that where an accused is charged with an offence which involves an object in respect of which the accused person must hold a valid licence to possess that object, an obligation or duty falls to the accused person to produce the licence. This reliance was disclosed in the indictment.
[122] It would seem improper not to indicate some concern as to whether the section relied upon does not impermissibly intrude upon an accused person’s presumption of innocence and or his or her right to silence. This might arise from the natural observation that the provision permits a court to convict an accused of an offence where the state has not proved one of the elements. However, in S v Fransman the court rejected a constitutional challenge to this provision.
[123] I remain concerned however as to the answer to what I understand to be the relevant question: whether the provision permits for the conviction of an accused person despite a reasonable doubt as to his or her innocence.
[124] I am mindful however that I was not asked to consider this question nor was the constitutionality of the provision challenged in any way. However, even if it had been, I expect that a ready and accurate answer would be to the effect that there are moments during a criminal trial when one may continue to remain silent, only at one’s peril.
[125] MosenekeJ remarked in Thebus:
‘The fact that she or he is not obliged to testify does not mean that no consequences arise as a result. If there is evidence that requires a response and if no response is forthcoming, that is, if the accused chooses to exercise her or his right to remain silent in the face of such evidence, the Court may, in the circumstances, be justified in concluding that the evidence is sufficient, in the absence of an explanation, to prove the guilt of the accused. This will, of course, depend on the quality of the evidence and the weight given to that evidence by the Court.’
[126] In my view once it has been proved that one was in possession of a firearm and one is charged with the unlawful possession of that firearm, the moment arises where one must break one’s silence and reveal one’s licence – quite constitutionally.
FAILURE TO PROVIDE A VERSION
[127] It is necessary to note an argument raised by the state in response to questions put to the accused as to why they had not given their innocent version previously.
[128] In this respect the state referred me to the Constitutional Court case of S v Thebus of 2003.
[129] However, on my reading of the case a majority – four against three – took the view that it would be improper to draw a negative inference on the basis of silence.
[130] To draw an inference in these circumstances from their silence is, on the view of the four members of the court, to punish them for exercising their right to silence.
[131] In my view, with respect, this must be correct, in particular because when an accused is warned that they may elect to remain silent, he or she is not also warned at the same time that if they elect to do so – to remain silent – they may suffer negative consequences.
[132] With all of this in mind, I now turn to an application of the principles set out above.
APPLICATION
[133] If the state is to be allowed to prevail, it’s version must be the best explanation for the evidence and leave no room for an alternative reasonable version. There can also, of course, be nothing inconsistent in the version opted for – or, in recognizing an alternative version for the accused, there can be nothing inconsistent in this version.
[134] At its core, of course, there are, in this case, essentially two competing versions (hypothesis – which I will refer to as versions).
[135] In what follows I set out the respective versions for consideration as supported by the evidence presented.
[136] I also set out, as a consequence of deliberately challenging my own reasoning, the issues which arose during the presentation of the evidence and which posed the danger of preconceptions doing the work of reasoning. Having forced them into my awareness, I consider whether they could be justified or otherwise inform my ultimate decision.
HYPOTHESIS – VERSIONS
COMMON CAUSE:
[137] It appears to be common cause – and the versions of all overlap to the effect that:
[137.1] the store was indeed robbed that day;
[137.2] That two of the attackers were killed (one dying on the scene and the other later in hospital);
[137.3] That the security guard of the store (Mr Dlamini) was shot dead by one of the attackers;
[137.4] That an employee, Ms Masango, witnessed the shooting of Mr Dlamini;
[137.5] That Mr Khote, the owner of the store, intervened and exchanged gunfire with the perpetrators and was responsible for shooting the two who died;
[137.6] That a fifth member of the group of attackers managed to escape;
[137.7] That an unknown police officer attended at the scene shortly after the attack and that he assisted Mr Khote in apprehending the attackers in the store – who had surrendered and were standing with their hands raised when the officer and Mr Khote reentered the store; and
[137.8] That the accused were at the store throughout the robbery.
[138] Following on observing where the versions overlap – what is common cause, it becomes clear that it is only the question of what the accused did in the store that is in question.
STATES VERSION
[139] The states version is that the two accused, acting in a group of five originally, acting in the execution of a common purpose to murder the security guard and to rob him and then to rob the store, did murder and rob the security guard, and, when they then encountered resistance from the store owner (Mr Khote), exchanged gunfire with Mr Khote.
[140] Two of their own members were killed in the shootout and another was wounded. Mr Khote was also wounded. The two remaining perpetrators surrendered, were taken into custody, and together with the third wounded perpetrator, were transported to hospital. The wounded perpetrator died in hospital and the remaining two were then, upon their discharge from hospital, transported to a police station, where they were charged. In addition, the version of the state is that each of them was in unlawful possession of a firearm and ammunition.
NECESSARY IMPLICATIONS
[141] The version of the state carries the following necessary implications – there must be evidence (information) from which it may be inferred that:
[141.1] the accused were in a common purpose – as described;
[141.2] one or other of them, or of their group (assuming a common purpose is established – two of whom died in the shootout), did murder and rob the security guard and proceeded then to engage in a shootout with the owner, and did, in fact, shoot him.
[141.3] They will be unable to account satisfactorily for their joint presence at the scene at the relevant time; and
[141.4] They will be unable to account satisfactorily for their conduct in the shop.
[142] The identification of the accused as the relevant two perpetrators from the day in question, relied partly on dock identifications (by Mr Khote and Ms Masango). In addition, the identification relied on the logical inference that three men were arrested at the scene, that the accused admit being arrested at the scene, that one of their number died from wounds sustained in the attack, and that they – the remaining two – were presented in Court.
MS MASANGO.
[143] Ms Masango testified that, on the day in question, she had been talking to Mr Dlamini when a man approached him and shot him at point-blank range. She testified that this man then took Mr Dlamini’s weapon and shot him again.
[144] Ms Masango was asked in evidence in chief whether, since the day of the attack, she had seen the accused again. She responded that she had not. Her answer, as I understood it, begged the further question whether she meant that she had not seen either perpetrator until then (when she testified), or including then – including the time at which she was testifying. The state did not clarify the position and proceeded with its questions.
[145] This left a critical question unanswered for the court and the legal representative of the accused sought to place an interpretation on her response to exclude an identification of both accused as perpetrators from the day.
[146] At that point, given the lack of clarity on what it was that Ms Masango had meant, I was obliged to recall her to clarify her testimony on this point.
[147] Upon being recalled and questioned for clarification on what she had meant, she immediately identified accused 2 as the person who had shot Mr Dlamini – in front of her.
[148] The evidence of Ms Masango is that A2 was the actual cause of death of Mr Dlamini in that he, A2, shot Mr Dlamini several times at close range directly in front of her.
MR KHOTE
[149] The state’s version is supported by the testimony of Mr Khote who testified that after hearing gunfire, he opened the door of his office, after picking up his firearm.
[150] He explained that he noticed an individual standing in front of his office between his office and the counters in the shop. This individual was holding a firearm and he (Mr Khote) called to one of the cashiers, asking for the cashier to confirm whether this is one of the responsible perpetrators. This individual turned and he and Mr Khote exchanged gunfire.
[151] Mr Khote testified that this individual then exited the shop. It transpires and is common cause that this individual was on of the perpetrators, presumably the first one to be engaged in an exchange of gun-fire with Mr Khote, who apparently died on the scene and his body was found by Capt. Alvers and Sgt. Naidoo. Mr Khote testified that he closed the door to his office and reloaded his firearm.
[152] He then reopened the door and noticed a second individual standing in front of his office – again in the space between his office and the counter – and they too exchanged gunfire. This individual fell to the ground and was apparently incapacitated.
[153] A third perpetrator entered his field of view when he ran to the second perpetrator (now lying incapacitated on the floor in front of his office) and attempted to collect that perpetrator’s firearm from him, which was now lying on the floor. Mr Khote identified this perpetrator as accused number two (A2) before court.
[154] Mr Khote indicated that he exchanged fire with this perpetrator and testified that he had wounded this perpetrator in the left upper thigh. It transpires that A2 – it is common cause – was not shot in his left upper thigh.
[155] Mr Korte continued to testify that this individual then retreated back into the store. Mr Khote continued in his testimony to indicate that a forth perpetrator had appeared behind the counter from where he had been standing at the door to his office – in a position just to the right of where the cashier’s would sit or stand – and he and this perpetrator also engaged in an exchange of gunfire.
[156] At this point there was the possible suggestion that Mr Khote could not have possibly seen a person standing at that position. However, it was shortly conceded by the defence when it was clarified that reference was being made to the cashier’s counter which is fairly low to the ground, at perhaps the height of 1 to 1.2 m.
[157] Mr Khote’s evidence was that he observed this individual clearly during the exchange of gunfire and identified this person as accused number one (A1) before court.
[158] Mr Khote continued in his testimony to explain that after having engaged with the fourth perpetrator who he identified as accused one (A1) before court, he had heard customers, and, in particular children, or perhaps babies, screaming and that he had attended to them and had led them outside. He was explicit in that he limited the description of the customers he assisted outside to woman and children or babies. He made no mention of assisting any men from the shop.
[159] It was never completely clarified whether on the version of Mr Khote or of Sgt. Naidoo, any other customers had remained inside. In response to defence counsel Sgt Naidoo said that he did not see anyone left in the shop. It also seemed implied in the testimony of Sgt Naidoo that there was no-one left in the store – so that it seemed unnecessary to ask him whether any other customers, in particular, male customers had remained in the store following on his testimony.
[160] However, the state conceded that the possibility remains that certain male customers had indeed remained behind in the store. The significance of this would seem to be that it would open the possibility of confusion to arise as to who amongst those who remained in the shop, were perpetrators and who were customers. I bear this possibility in mind, in favour of the accused as I consider the evidence to the effect that the perpetrators were indeed the two accused presented before court.
[161] Mr Khote continued in his evidence to the effect that shortly after that a police officer arrived on the scene. He does not know the name of this police officer and significantly the state was unable to identify this person or to present him as a witness. The testimony of Mr Khote describes a very circumscribed role to this officer who departed from the scene – on the evidence of Mr Khote and of the other two officers (Alvers and Naidoo) who arrived shortly thereafter. No one was able to identify the officer and the defence rightly pointed to this as a weakness in the state’s case. I discuss this further below. For present purposes it is worth noting that because the state was unable to present the ‘unkown officer’, some of the evidence of Mr Khote is, to an extent, uncorroborated – as that of a ‘single witness’.
[162] The evidence of Mr Khote proceeds on the basis that once in this unknown officer had arrived on the scene he accompanied this officer back into the store. As they entered the store they noticed, although Mr Khote can only really speak for himself, that upon entering he noticed that two of the perpetrators when he recognised from having engaged in a firefight, were standing towards the rear of the store but in front of what has come to be called the two large shelves at a distance of perhaps 5 meters from the door.
[163] Mr Khote testified that he and the unknown officer approached the two and took hold of them, brought them to the front of the store and made them lie down with the second (now incapacitated) perpetrator who had fallen to the ground in between Mr Khote’s office and the cashier’s counter.
[164] Mr Khote testified that shortly thereafter another two police officers arrived on the scene including Sgt. Naidoo – in the company of Capt. Alvers.
[165] Mr Khote concluded his evidence in chief by noting that after the three were made to lie down in the front of the store they were attacked and assaulted by members of the community.
[166] Capt. Alves remained outside to attend to the individual who had been injured and was now lying outside.
SEGEANT NAIDOO
[167] Sgt Naidoo approached Mr Khote and the unknown police officer who was still on the scene. He testified that he was directed to the three individuals now lying motionless on the floor in the space between Mr Khote’s office and the cashier’s counter.
[168] He testified that these three individuals were taken into custody that one subsequently died in hospital that the other two had also been transported to hospital but had been arrested on their discharge and that, as he understood it, these were the two individuals presented before court as accused one and two.
ACCUSED’S VERSION(S)
[169] The version of the accused – to which they testified – is that neither of them knew anything about the planned attack in the store on the day. They were not in any common purpose to kill or rob anyone; and did not, individually do anything connected with the murder or robbery of anyone.
NECESSARY IMPLICATIONS
[170] The version of the accused carries the following several necessary implications, including:
[170.1] there must be evidence (information) from which it may be inferred that they were innocently in the store – which would require that they can account satisfactorily for their presence and conduct in the shop.
[170.2] It would not fall to them to disprove that they were in a common purpose, that they did not rob or shoot anyone, nor that each unlawfully possessed a firearm and ammunition – since this would require that they prove a negative – which they cannot do. It will only fall to them, if it appears that the state has presented a prima facie case, to assume the risk that this case may, upon final evaluation, be regarded as proof beyond a reasonable doubt, or, if they do not accept this risk, to place reliable information before the court from which a discernible version – hypothesis or picture – emerges, which is consistent with innocence.
[170.3] A1 needs it to be that Mr Khote is mistaken as to what he saw A1 do in the store, and A2 needs it to be that both Mr Khote and Ms Masango are so mistaken; and
[170.4] As discussed below, A1 and A2 were not the people who surrendered to Mr Khote (and the unknown officer) and were taken to the front of the store and made to lie at the front of the store – instead, they were both innocent shoppers who had somehow become unconscious while shopping, and, in a frenzied attack by the community, were mistakenly switched for the real perpetrators.
[171] The question which arises is whether this is at all feasible – or, reasonably feasible?
BOTH ACCUSED
[172] Both accused deny being part of any group which had robbed the Bread Bin shop, including that neither one had killed anyone, intended to kill or rob anyone, nor was either ever in possession of an unlicensed firearm which he was not permitted to possess.
[173] In closing the defence pointed out that no attempt had been made to establish in evidence that either of the accused – as a matter of fact – were not the holders of the required licensed.
[174] The defence, on behalf of both accused, sought to rely on the “failure” of Masango to identify either of them in court.
[175] Being as charitable as I can with the versions put by the accused – because they were not put clearly and were contradicted by themselves or by other evidence admitted by them or otherwise relied upon – I consider the versions of the accused to the extent to which they could be discerned.
ACCUSED ONE
[176] Accused one (A1) testified that he works for a taxi transport organisation as a security officer. He had been at work on the day in question and left work at around 16:00 hours in the afternoon.
[177] Originally – on his evidence – he was due to go home. However, he explained, that instead, he was then given the task of going to the area where the store is (the bread bin) to check whether certain taxis were not operating in contravention of the organisation’s rules.
[178] He therefore travelled on one of the organisation’s taxis to the road in which the bread than is situated and alighted from the vehicle.
[179] Shortly thereafter he realised that he was short of mobile phone airtime and decided to go and purchase airtime from the store.
[180] He testified that once he had completed his task and called, he would be collected by another of the taxi association’s taxis which would then transport him home from there.
[181] He testified that he entered the store and stood in the queue to purchase airtime from a cashier.
[182] . Accused one then proceeded to describe how he was allegedly robbed as he stood there waiting to purchase airtime. He testified that a man in a black jacket approached him and asked him if he was the security guard. He denied that he was and the man then set about searching his pockets and removed from him his cell phone from one pocket and R230-00 from his other pocket.
[183] The accused was clear throughout that the man had made no threats nor produced any form of weapon. The man then proceeded to – in the words of the accused – undress him of his jacket and set about stealing or robbing him of his jacket.
[184] In response to this he put up no resistance. He testified that after removing his jacket the man instructed him to lie on the floor and in response to this he complied and lay on the floor. He thereafter heard a bang or popping sound and lost consciousness.
[185] The accused was, however, not consistent on the cause for him lying down on the floor – he switched at one point to explaining that, he had lain down because of the loud bang or pop, instead of being in response to the instructions of the man who robbed him.
[186] I understand from his testimony that he is alleging that the mark on his forehead was incurred either at the moment that he lost consciousness or shortly thereafter.
[187] He testified that he thereafter woke up in hospital. He testified that once discharged from hospital a day or so later he had indeed been free to go and was surprised when the police arrived and took him into custody.
ACCUSED TWO
[188] The version of accused 2 (A2) begins with an explanation of his receipt of some presumably second-hand clothing which he was desirous of two pass on to a person whose relationship with him or to him was never made clear.
[189] At best from his evidence it would seem that, in answer to the question why he was passing on the clothing to this person, he was simply following orders which it seemed emanated somehow from his family.
[190] On his evidence he had agreed, with this unknown person, to meet at a garage near the store at around 4 to 5 o’clock in the afternoon on the day in question. This rather extended period for meeting was indeed the testimony of the accused that they were due to meet anytime between 16h00-17h00 in the afternoon.
[191] The accused testified that after waiting for this other person for quite some time he had become thirsty and decided to buy a cool drink. He decided then to cross the road – as he first put it – to the bread bin to purchase a cool drink from there. He subsequently altered his version to explain that the store was not simply across the road, but instead, across the road and some distance down the other side of the road.
[192] To proceed with his version, he explained that he walked across the street and went into the store to buy a cool drink.
[193] He testified that when inside the store, he located the fridges and took hold and uplifted the cold drink he sought to drink and was then about to turn to go and pay for his cool drink when – he too – heard a loud noise and lost consciousness.
[194] He awoke in hospital and was also surprised to be subsequently arrested. In response to all allegations against him he met them with a denial by virtue of the fact that he was intent merely on purchasing a cool drink. He explained that since he had lost consciousness he could not account for what had happened and was therefore not accountable for what happened in the store that day.
[195] Insofar as the facts and versions are concerned, it is notable that, in the same way as A1 was unable to account for anything because he explains that he had been unconscious at all relevant times, and cannot explain what caused his unconsciousness, similarly for A2. Accused 2 is unable to account for anything because he too was unconscious at all relevant times, and he too is unable to explain what caused his unconsciousness.
ANALYSIS
[196] Thus, in essence, A1 explains that he (A1) was not part of any group who attacked the store, but was instead innocently waiting in line to buy airtime;
[197] A2 explains that he (A2) was also not part of any group who attacked the store but was instead innocently buying a cooldrink.
[198] I turn now to consider the feasibility of the versions put, with particular reference to issues in dispute or otherwise of significance.
CREDIBILITY AND RELIABILITY OF THE WITNESSES
FOR THE STATE
[199] Both Mr Khote and Ms Masango were utterly forthright in their testimony. They were careful only to answer what had been asked of them
[200] They did not hesitate in giving their answers and appeared cautious to only speak of what they knew.
[201] Although defence counsel attempted to make much of the fact that Ms Masango had initially not identified either accused in Court when she first testified, it is undeniable that she had not been asked, and that, when recalled and asked, she did not hesitate in identifying A2 as the person who shot Mr Dlamini in front of her.
[202] It was a pertinent moment when Ms Masango was challenged as to how she could be certain that she is correctly identifying A2 as the perpetrator who shot Mr Dlamini. In response, she explained that she was certain because A2 shot Mr Dlamini directly in front of her. She went on to state that his face is burned into her memory and she sees his face when she closes her eyes.
[203] I regard the testimony of Ms Masango and Mr Khote as credible and reliable in all material respects.
[204] In addition, I regard the testimony of the two officers who testified about the events on the scene, Capt. Alves and Sgt Naidoo, as credible and reliable in all material respects.
[205] The failure of the state to identify and to call the unknown police officer must attract comment.
[206] The state led the evidence of Capt. Alves to the effect that it is not uncommon for an officer to assist and then disappear – possibly even because she or he wants to avoid the ‘admin’ that would be required of him.
[207] The question must arise whether he disappeared and was not called to testify because his conduct was somehow improper. However, what that improper conduct could have been or what other nefarious purpose his disappearance may serve was never seriously pursued by the defence.
[208] It must attract the sentiment that this is unacceptable conduct for an officer, and it is a weakness in the state’s case. It leaves space in the state’s case for an interpretation to be placed on the facts which is at odds with the version which the state urged upon this court. The court must be sensitive to the fact that there is an aspect of the state’s version that, if the possibility arises, could and should be interpreted against it.
[209] However, I can make no more of it. How he could have affected the scenarios sketched and what it is that he may have done wrong is left to pure conjecture. In the end this court could find no way in which to reconfigure the facts presented by the state to include something that this officer might have done, which could materially affect its version.
[210] The point here is to acknowledge it as a problem for the states version and that this was considered.
[211] Nevertheless, it is found to lead nowhere – even if I sought to combine the possibility it raises with other possibilities raised on behalf of the accused.
[212] It also creates the possibility that the identification by Mr Khote of A1 is single witness testimony – and so must attract caution. In some respects the, the evidence of the state is reliant only on that of Mr Khote, as a single witness.
[213] However, our law permits for a conviction based on the evidence of a single witness – or rather – a single ‘piece’ of evidence. Nevertheless, our jurisprudence has cautioned against unconsidered reliance on the testimony of a single witness. The point seems to be – again – not to suddenly shift into a different mode of reasoning or to adopt a formalistic approach – but to exercise caution as will be dictated by common sense. As reiterated in S v Sauls and Others:
It has been said more than once that the exercise of caution must not be allowed to displace the exercise of common sense.
[214] In any event – there does not appear, from the facts, to be any facts on which the court is presented with only the evidence of Mr Khote. Even the identification of A1 is supported by the logical inferences – unless he was innocently lying unconscious in the shop and was switched with a perpetrator, and as is required by this logic, switched back again, in a frenzied attack by the community – he simply must be the relevant perpetrator.
THE ACCUSED
[215] The Testimony of the accused was contrived and deliberate. Their responses were slow and tortured – as they appeared to attempt to consider the implications of one answer over another.
[216] They were determined to disagree with anything put to them by the state to the point that, on occasion, was in line with their own testimony. Thus, they contradicted themselves – in a desperate attempt to disavow anything the state suggested.
[217] In addition, there was the attempt by both A1 and A2 to suggest that they were not the people arrested on the scene on that day – despite their own admission to the contrary.
[218] I reject their evidence as false and mendacious. I am mindful though that this does not translate into a conviction for the state. Mendacity alone, on some issues does not – or ought not – to permit a court to conclude that an accused must therefore be guilty. An innocent accused may be a terrible witness and may even lie on occasion for reasons other than that she or he is guilty.
[219] It certainly does not assist the accused that their testimony does not create reasonable doubt, but the question remains, whether the state has proved its case – beyond reasonable doubt.
[220] Mendacity may, however, feature as a factor from which an inference may properly be drawn – which together with other considerations – may establish guilt beyond a reasonable doubt.
SPECIAL CONSIDERSTIONS
FAILURE TO EXPLAIN OR PROVIDE A VERSION PREVIOUSLY
[221] As discussed above, the state urged this Court to take an adverse view of the failure of the accused to have previously – before trial – explained or otherwise disclosed their version to the state.
[222] As concluded, I understand our law to be that this would be an infringement of an accused’s right to silence – and that, with respect, this is inevitably correct.
[223] I cannot therefore make anything of the failure or refusal of the accused to disclose their respective version before trial. They were thoroughly entitled to this silence and it is respected.
[224] In any event I have found it unnecessary to take this failure of theirs into account in arriving at my conclusion. The evidence of Mr Khote and Ms Masango together with the admissions made and other probative material put to the court are utterly adequate.
[225] As much as the testimony of the accused is unpersuasive, several points were raised which require attention.
THE ‘MARK’
[226] A1 made much of the reference, in the testimony of Mr Khote, to the mark on his forehead – in identifying him.
[227] The accused claimed that any identification of him which relies on the appearance of a ‘mark’ on his right upper temple. He disputed this because he claims that the ‘mark’ was only inflicted on the day in question – and so, it is not a basis on which the owner could identify him.
[228] Several observations must be made of this line of reasoning:
[228.1] The only basis for the claim is the claim itself – made by the accused. Nothing supporting the claim was placed before court, in particular, no medical report of an injury suffered on the day.
[228.2] The identification by Mr Khote of the accused by reference to the scar, was in response to a follow up question regarding by what features he identifies the accused.
[228.2.1.] Not only was it a follow up question – but it, after having left it off of his account of the basis on which he recognised the accused, the defense counsel asked him if he had any marks. Mr Khote then agreed that the accused had a mark on his face – on his forehead.
[228.2.2.] Before this – when asked how he can identify A1, he said: “by his size, his face, everything.” Asked by what features he can identify A1, he said: “by his round head, he is bald, and is fat”.
[228.2.3.] Only after that was he asked the question whether he knew of any marks on the accused.
[228.2.4.] He was then asked whether it was new or old – to which he responded that he does not recall.
[228.2.5.] He was asked when he noticed it – to which Mr Khote responded that he had noticed it when the accused was lying down in the front of the store.
[229] At its best (for the defence), Mr Khote indicated that, one of the features by which he knows the accused is the mark on his head. He was not claiming, in his testimony that he is only able to recognise the accused because of the mark.
[230] But there doesn’t seem to be any sensible construction on the basis of which it might be suggested that Mr Khote did only or could only recognise A1 because, and only because of the mark. It had, in fact, to be extracted from the witness by suggestion – that the accused (A1) does have a mark on his forehead and that it was there on the day.
[231] He was unequivocal in his testimony that he recognised the accused because he saw his face as he engaged with him in an exchange of gun fire. In my view it is mischievous to attempt to reduce the identification by Mr Khote of the accused to a complete reliance on the mark.
COMPLEXION
[232] For A2 it is critical that we distinguish him as light in complexion whereas Miss Masango was incorrect in her identification because she said that he was dark in complexion.
[233] I know of no basis on which to distinguish validly and reliably between degrees of darkness or lightness of complexion. I can imagine that what for one person amounts to a dark complexion could easily amount for another to be light in complexion.
THE LEG
[234] A2 submits that Mr Khote is wrong to the extent to which he suggests, in his testimony, that he shot A2 in the left upper thigh.
[235] He is indeed correct in this assertion – which was conceded by the prosecution: A2 was not shot in his left upper thigh.
[236] However, this error does not appear to carry the weight which A2 places on it. A2 argues that since he was not shot in the leg, it cannot have been him – in so far as Mr Khote relied on having shot him in the leg in order to identify him. Regrettably for the accused, (A2), this does not follow.
[237] The ready explanation to this is only that Mr Khote must have been mistaken that he had in fact struck the accused (A2) in the leg when firing at him. If we expected of people to be able to observe the travel of a bullet which is discharged from a gun, there may have been something in this. But we do not expect this of anyone.
[238] It was also not put to Mr Khote that he is incorrect in this respect and he was not given an opportunity to explain why he testified that he had struck the accused (A2) in the leg.
[239] This failure can, in itself, be fatal – except that I do not think anything can be made of this anyway.
THE BEANIE
[240] A2 points out that he cannot be guilty because Ms Masango said whoever killed Mr Dlamini – who she says is him – was wearing a beanie.
[241] We are informed by the accused (A2) that he was not wearing a beanie on the day.
[242] Perhaps in an alternative universe, this sort of defence may carry some weight, but I regret that his insistence about the accessories he wore must count for nothing.
[243] Even so, and without meaning to imply that this claim could ever amount to anything, several ‘beanies’ were found on the floor of the store – abandoned or lost. These appear in the photo album admitted into evidence by both accused.
THE SUBSTITUTION
[244] In a scarcely discernible submission, defence counsel argued that it is not clear that the two people taken into custody by Mr Khote (with the assistance of the unknown officer), are the two men who were presented in court as accused 1 and 2.
[245] In this way, defence counsel is understood to have argued that somewhere between Mr Khote taking control of the two, and their presentation in court, the real perpetrators were somehow mixed up with the two presented in court.
[246] There appears to be two independent suggestions here – or the suggestion of two distinct opportunities for this ‘substitution’.
[246.1] That between taking control of the perpetrators (as they surrendered), being made to lie down in from of the store (with their wounded co-perpetrator), and when they were taken into the custody of the police and transported to hospital, the real perpetrators had been mistakenly switched for others from amongst the men who may have remained in the store or other community members – and that this switch would have occurred during the attack by the community on the perpetrators and when they lay at the front of the shop; and
[246.2] That between when they were taken into custody (from when lying in the front of the shop) to their presentation in court, the perpetrators had been switched with the accused so that the accused are not the men taken into custody in the front of the store.
[247] There are several problems with the submission, and it reveals a desperate attempt to distract this court. It is so strained that it extends over the line of being an absurd and improperly founded suggestion, to being in direct contradiction to a section 220 admission recorded by the accused.
[248] Starting backward – there can be no merit in the suggestion that the accused were mixed up and are not the people who were arrested on the scene – simply because they have admitted it. But the pursuit of this line of argument does damage to the credibility of everything they have put to this court. They have shown that, in an attempt to evade responsibility, they will do whatever they can, including changing their version and even contradicting their very own admissions.
[249] Also, even putting aside the preposterous suggestion of a frenzied community attack in which the real perpetrators were mixed up with other innocent people present, the suggestion requires that the eyewitness testimony of Mr Khote that these two are indeed the two perpetrators who he took under control when they surrendered, and the eyewitness testimony of Ms Masango confirming that A2 is the person who shot and killed Mr Dlamini – both of whose testimony is beyond reproach.
[250] But there is another dimension which one is prompted to consider when considering hypothesis which must be complete and internally consistent to be feasible.
[251] If it is common cause that the perpetrators were taken under control by Mr Khote and the unknown officer, and made to lie at the front of the store, but the accused version is that:
[251.1] They fell unconscious, A2 at the fridge and A1 at the counter, then one must wonder how they were also conscious members of the community – perhaps a remaining customer – who was now, in the attack by the community, mixed up with the ‘real perpetrators’.
[251.2] The suggestion – when subjected to the abductive model – must include the submission that the fury of the community fell on the accused, as they lay unconscious in various parts of the store, and that the community who set upon the unconscious perpetrators who were lying at the front of the store, missed their target and attacked these two unconscious innocent shoppers instead, dragging, at least A2, from the cooldrink fridge (when he fell unconscious) to the place at the front of the store – ejecting the real perpetrator for A2. This implication was not even considered, nor any feasible suggestions made as to the how these necessary implications may be explained.
[252] For A1, the implications of his version and the submission that he was originally – on his own account – lying unconscious at the front of the store – then the community attacked the perpetrators lying at the front of the store, and switched them out for innocent bystanders. But on this account – his own account – he would have been switched out for an innocent member of the public. This is because, the accused requires that the people who were lying at the front of the store – were switched. However, he wants it to be the case that he was both switched and not switched. Of course, this cannot be. Alternatively, he needs it to be that the frenzied members of the community committed a double switch: they switched him out for the real perpetrator, or, perhaps, someone else, then, somehow, switched him back again.
[253] These suggestions must be rejected as mischievous fabrications.
FEASIBILITY OF VERSIONS
[254] In light of the above, I turn now to consider which version, as between the state and the respective accused, offers the best explanation of the facts.
STATE
[255] One may recall that the state’s version is as follows:
[255.1] The states version is that the two accused, acting in a group of five originally, acting in the execution of a common purpose to murder the security guard and to rob him and then to rob the store, did murder and rob the security guard, and, when they then encountered resistance from the store owner (Mr Khote), exchanged gunfire with Mr Khote.
[255.2] Two of their own members were killed in the shootout and another was wounded. Mr Khote was also wounded. The two remaining perpetrators surrendered, were taken into custody, and together with the third wounded perpetrator, were transported to hospital.
[255.3] The wounded perpetrator died in hospital and the remaining two were then, upon their discharge from hospital, transported to a police station, where they were charged.
[255.4] In addition, the version of the state is that each of them was in unlawful possession of a firearm and ammunition.
[256] The evidence presented makes this version clear and consistent and it appears to indeed represent the best explanation of the facts that may be discerned.
[257] I turn now to consider whether the respective versions of the accused are at all feasible – at least to the point that they raise a reasonable doubt as to their guilt.
ACCUSED 1
[258] In considering the veracity of the version of A1, putting aside for the moment the states version and the direct evidence against the accused, one may ask, engaging in what may – if we wanted to attach a label – inferential reasoning: what are the chances that A1 would happen to stop at that store to buy airtime, given that:
[258.1] His work for the day, at Clearwater mall was complete – and he was due to go home;
[258.2] He was then assigned the duty of going to inspect whether taxis were adhering to the association’s rules at a place near the shop;
[258.3] That he travelled there by taxi but needed to call for a taxi to be transported home; and
[258.4] That he would presumably need airtime to communicate his findings regarding the taxis he observed in the vicinity; and
[258.5] Then only noticed that he needed airtime?
[259] I doubt this. But it is, in itself, inconclusive. However, that is not the full hypothesis – it is not what the accused needs the court to believe. Instead, we must consider the chances that A1 was robbed as he stood innocently in the queue to purchase airtime, given that:
[259.1] There is no other evidence of a robbery of any individual on the day – other than the security guard – and only of his firearm;
[259.2] A1 is a ‘security guard’ for a taxi association;
[259.3] A1 stood silently and passively as he was literally undressed by the alleged robber;
[259.4] That he would be confused as to what made him lay down on the day – an instruction from the robber, the sound of gunfire, or a combination of both.
[260] This is the version to which the accused testified, but it strains credulity.
[261] Ultimately, we must consider whether the information we have may be explained by the version of the accused – as a reasonably possible version. For this we must believe his version of:
[261.1] innocently standing in the store to buy airtime,
[261.2] standing passively while he is robbed;
[261.3] being confused about why he lay down;
[261.4] being unable to account for how he lost consciousness; and
[261.5] being unable to account for anything that happened after that;
[261.6] Mr Khote is mistaken in his identification of the accused with whom he exchanged gunfire and who he took control of once the accused surrendered; and
[261.7] He was mixed up with an actual perpetrator during a frenzied attack by the community upon the real perpetrators.
[262] This explanation is incredulous, and, when considered with the finding that his testimony was generally mendacious and lacked credibility, I am unable to entertain it as reasonably possibly true.
ACCUSED 2
[263] Similarly, for A2 in respect of his presence in the shop. One may ask – what are the chances that:
[263.1] He would have received a bundle of clothes the quantity of which he is unclear;
[263.2] That he would be required by someone – whose identity or basis for authority over him is unknown to him – to deliver the clothes to someone;
[263.3] That the person to whom the clothes were to be delivered was and is unknown to him;
[263.4] That a meeting time of between 16h00-17h00 would be specified;
[263.5] That he would choose to cross the road and walk some distance down the opposite side of the road to buy a cool drink when:
[263.5.1.] Doing so may have meant missing the person he was there to meet; and
[263.5.2.] There was a store at the petrol station which was appointed as the meeting destination. Although the accused explained that in his experience the cool drinks were more expensive at petrol stations – he made no attempt to establish the price; and
[263.5.3.] There was a second store, a ‘Muchachos’, directly next to the filling station and he could not explain why he did not even consider purchasing a cooldrink from that store.
[263.6] He experienced the terrible misfortune of inexplicably losing consciousness at the critical time – and being then unable to account for what happened in the store.
[263.7] Ms Masango is mistaken in identifying him as the person who shot Mr Dlamini;
[263.8] Mr Khote is mistaken that he was one of the perpetrators; and
[263.9] He was also mixed up with the real perpetrators in a frenzied attack by the community.
[264] Again, this explanation strains credulity, and when considered with the finding that his testimony was generally mendacious and lacked credibility, again, I am unable to regard it as raising a reasonable doubt as to his guilt.
IDENTIFICATION
[265] Our courts have cautioned that one must be circumspect in relying on the identification of an accused by a witness – in virtue of the natural fallibility of human observation.
[266] The identification of the two accused as perpetrators from the day in question and more particularly, what it is that they did on the day, does depend, to an extent, on the dock identification of A1 by Mr Khote, and of A2, by Mr Khote and Ms Masango.
[267] As indicated, I find the evidence of Ms Masango and Mr Khote to be credible and reliable in all material respects.
[268] As discussed above, it is immaterial whether A2 was indeed wounded in the leg and whether he was wearing a beanie at some point. It is equally immaterial whether A1 already had the ‘mark’ on his forehead, or not.
[269] But the evidence against them goes far beyond the eyewitness identification by Mr Khote and Ms Masango. It relies on their own admission that they were arrested on the scene, that Mr Khote testified that he took these two accused and made them lie down in the front of the store, and the incomprehensible ‘switch’ which they propose.
[270] On a conspectus of all the evidence, and in particular the extreme improbabilities inherent in what A1 & 2 require to be true for their version to raise a reasonable doubt as to their guilt, I cannot accept their version as reasonably possibly true. Instead, I accept the version of the state in all material respects and am of the view that it establishes guilt on the part of the accused beyond any reasonable doubt.
COMMON PURPOSE
[271] The most straightforward conduct that may be attributed to every member of the group is the conduct of the accused in the killing of Mr Dlamini, the security guard. Significantly, the inference is inescapable, given that it was the way in which the attack was initiated, that the common purpose included the express mandate that the security guard would be killed. This makes the murder of Mr Dlamini premeditated – and since it was part of the express mandate, this premeditated murder is attributable to all in the common purpose.
[272] The second is the taking by force and thus the robbery of Mr Dlamini of his firearm. At the very least this conduct is attributable and is attributed to accused one and two. Both accused one and two engaged in a firefight with Mr Kothe and by the operation of common purpose they may have the conduct of each other attributed to each one so that while both attempted to kill Mr quarter, on an application of common purpose, properly, they both attempted to kill Mr Kothe on two separate occasions.
[273] Furthermore, by an application of common purpose, they are liable for the murder of their co-perpetrators, whose deaths they must have foreseen.
FIREARMS AND AMMUNITION
[274] In the current matter, there is ample evidence – referred to above – that each of the participants were in actual possession of a firearm. It is on this basis that a finding that each was in unlawful possession of a firearm is made and it is, in my view, a failsafe method of reasoning.
[275] It is not clear who was in possession of the firearm from which the serial number had been obliterated. However, since such a firearm cannot have been licenced, being in possession of that firearm, would also, necessarily, make whoever was in possession, guilty of being in possession of an unlicensed firearm.
[276] It should be recalled that defence counsel argued that the state had failed to prove that the accused did not hold the required licences for any firearm they may be found to have possessed, and that, in addition, it was asserted on behalf of the accused that they did not have the requisite knowledge – for sentencing purposes – that any such firearm, as they may be found to have posed, was a semi-automatic.
[277] On the argument that the state had failed to prove that the accused – if found to have possessed firearms – were not licenced – the state relied on section 250 of the CPA (discussed above).
[278] The accused did not produce any licences in accordance with the evidentiary burden placed on them by s 250. It follows that this court must conclude that they were in unlawful possession of the firearms.
[279] The proposition that they did not know that these firearms were semi-automatic requires that the court gives them the benefit of any doubt when they have denied even possessing a firearm. The defence raised is one which is peculiarly within the knowledge of the accused – and requires that the accused take the court into his/her confidence and explain how he or she could be mistaken.
[280] In S v Pistorius the unanimous SCA made it clear that one cannot prevaricate. On the accused’s defence of putative private defence, it said:
The immediate difficulty that I have with the accused’s reliance upon putative private defence is that when he testified, he stated that he had not intended to shoot the person whom he felt was an intruder. This immediately placed himself beyond the ambit of the defence, although as I have said, his evidence is so contradictory that one does just not know his true explanation for firing the weapon.
[281] In addition, the suggestion would give rise to an absurd situation on the facts: the accused would both – if they laboured under the misapprehension that the firearms were not semi-automatic – that is, single shot, self-reloading firearms, would have presumably stopped after firing a shot to reload their firearms. Yet, there is nothing in the facts to support this – more especially, as indicated, nothing from the accused themselves on this point.
CONCLUSION
[282] The testimony of the accused is simply not credible and the respective versions they present are incredulous.
[283] I am aware that strange things happen, but I am utterly unable to even imagine a universe in which the versions required by the accused to be accepted as reasonably possibly true – to the exclusion of the state’s case – could ever obtain.
[284] Even adopting the greatest caution to be sensitive to a feasible innocent explanation, I am compelled instead to adopt the version of the state – as the only feasible explanation for the information that may be discerned. In this context the only feasible explanation translates into proof beyond a reasonable doubt against the accused.
[285] In conclusion the question arises whether the accused have done anything to disturb the version of the state being accepted as the best possible explanation or otherwise that they have, at least, raised a reasonable hypothesis which must be acknowledged irrespective of the State’s version.
[286] The answer to this must be that the state has indeed sketched a coherent version which explains all the evidence and in respect of which, no inconsistencies appear. It is internally consistent, utterly feasible, and is supported in all material respects by the evidence.
ORDER
[1] IT IS THEREFORE ORDERED THAT:
[1.1] Both accused one and two are guilty as charged, of:
[1.2] One count of premediated murder in respect of the death of Mr Dlamini;
[1.3] Two counts of murder – in respect of their two co-participants;
read with the provisions of section 51(1) and (2) as well as schedule 2 of the Criminal Law Amendment Act 105 of 1997 and further read with the provisions of sections 92(2), 256 and 258 of the Criminal Procedure Act 51 of 1977 (hereinafter referred to as the ‘CPA’);
[2] Attempted murder- in respect of the shots fired at Mr Khote – read with the provisions of sections 92(2), and 258 of the CPA further read with the provisions of section 51(2)(c) and schedule 2 of the Criminal Law Amendment Act 105 of 1997;
[3] Robbery with aggravating circumstances – in respect of the violent taking of the firearm from Mr Dlamini, as defined in section 1 of the CPA – read with the provisions of section 51(2) and schedule 2 of the Criminal Law Amendment Act 105 of 1997 and further read with the provisions of sections 92(2), 256 and 260 of the CPA;
[4] Possession of an unlicensed firearm, in contravention of section 90, read with the provisions of section 1, 103,117,120(1),121 and schedule 4., of the Firearms Control Act 60 of 2000, and further read with the provisions of section 250 of the CPA.
[5] The unlawful possession of ammunition, in contravention of section 90, read with the provisions of section 1, 103, 117, 120(1), 121 and schedule 4, of the Firearms Control Act 60 of 2000, and further read with the provisions of section 250 of the CPA.
______________________________
GRANT AJ
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
COUNSEL FOR THE STATE: ADV RUBIN
INSTRUCTED BY: THE NATIONAL PROSECUTING AUTHORITY
COUNSEL FOR ACCUSED: ADV MOSOANG
INSTRUCTED BY: LEGAL AID SOUTH AFIRCA
DATE OF HEARING: 29 MAY 2019
DATE OF JUDGMENT: 18 JUNE 2019
