THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case no: 046/10

CEDRIC MAPANDE

Appellant

and

THE STATE

Respondent

______________________________________________________________

Neutral citation:
Mapande v S (046/10) [2010] ZASCA 119 (29 September
2010)

CORAM:

Navsa, Heher and Bosielo JJA

HEARD:

10 September 2010
DELIVERED:
29 September 2010

SUMMARY:
Appeal
against
conviction
on
the
basis
that
identification evidence insufficient and that evidence of co-accused
ought not to have been accepted ─ held that evidence sufficient to found
conviction. Appeal against sentence on the basis that insufficient
consideration given to personal circumstances and that the court had
erred in not concluding that there were substantial and compelling
circumstances ─ held that conclusion on imposition of minimum
sentence correct.
______________________________________________________________

______________________________________________________________
ORDER
______________________________________________________________

On appeal from:
Limpopo High Court (Thohoyandou) (Hetisani J sitting as
court of first instance).
The appeal against both conviction and sentence is dismissed.
______________________________________________________________
JUDGMENT
______________________________________________________________

NAVSA JA (Heher and Bosielo JJA concurring)

[1] This appeal, with the leave of this court, against conviction and
sentence is without any merit. The appellant, Mr Cedric Mapande, was
convicted with three other accused in the Thohoyandou High Court on one
count of robbery with aggravating circumstances and was sentenced to
15 years’ imprisonment.

[2] It was the State’s case that on 27 June 2000 the appellant, together
with three others, had gone to the house of Mrs Elelwani Friedah Chabalala at
River Plaas and had forced her at gunpoint to part with approximately
R20 000 in cash, clothing, a blanket, a camera, a cell phone and shoes.
According to the State, the appellant was not one of the two robbers who had
entered the home ─ he waited in the vehicle parked outside.

[3] A co-accused, Mr Balaganani Thomas Nematswerani, testified in
support of the State’s case, implicating the appellant. According to
Mr Nematshwerani, the appellant was fully involved in the planning and
execution of the robbery. The appellant’s role at the scene was to ensure that
the getaway vehicle was protected during the robbery. His evidence was
corroborated in material respects by Mrs Chabalala and another witness in
support of the State’s case, namely, Mr Charles Chabalala. The latter testified
that the appellant and another person had made enquiries earlier on the day
of the robbery about the house at which the robbery was committed.
According to Mr Chabalala, the appellant and his companion were travelling in

a motor vehicle, the registration of which he had noted and which ultimately
was supplied to the police. It is common cause that that vehicle was used in
the commission of the robbery. Mrs Chabalala’s evidence coincided with
Mr Nematswerani’s testimony of the manner in which the robbery was
committed. Mr Chabalala had also identified the appellant at an identification
parade.

[4] The appellant chose not to testify. His appeal was based on two
grounds. First, that the identification evidence was insufficient to found a
conviction. It was submitted on his behalf that Mr Chabalala had testified that
the enquiries referred to above were made at a place called Tshabani, located
approximately 11 kilometres away from the scene of the robbery. Second, that
the court below had erred in uncritically accepting the evidence of the
appellant’s co-accused.

[5] The submissions referred to in the preceding paragraph are fallacious.
In the scheme of things the geographical distance between the place where
the enquiries were made and the location where the robbery took place is
minimal and can easily be traversed by a motor vehicle in a short space of
time. The evidence of Mr Chabalala is but one part of the totality of the
evidence on which the conviction was based. It fits in neatly with the
testimony of Mrs Chabalala and that of the appellant’s co-accused,
Mr Nematswerani.

[6] The inconsistencies between a written statement made by the co-
accused and his evidence in court do not militate against the acceptability of
his testimony in relation to the count of robbery presently under consideration.
It is true that Mr Nematswerani was untruthful when he testified that he only
participated in the robbery presently under consideration and in other
robberies because he was an informer for the South African Police Services.
He was rightly disbelieved on that aspect of his evidence. It was a desperate
attempt by him to avoid the consequences of his unlawful activities. It does
not follow that because he gave false evidence in this regard that the
remainder of his relevant testimony is also untrue. One must guard against

the natural impulse to use that lie to reject otherwise plausible and
corroborated testimony.

[7] In Schmidt Rademeyer Schmidt Bewysreg 4 ed (2000) p 106 the
following appears:
‘Hoewel die hof uit ‘n leuen kan aflei dat ‘n getuie ook elders valse getuienis gelewer het, is
die normale gevolg dat slegs die bewese onware getuienis uitgewis word. Die leuen verswak
dus normaalweg nie die ander getuienis nie.’
See also S v Oosthuizen 1982 (3) SA 571 (T) and the other authorities
referred to by the learned authors.

[8] Of course, a court must be cautious in approaching the evidence of an
accomplice and must in determining the guilt of an accused have regard to
the totality of evidence and be conscious of the burden of proof that rests on
the State.

[9] It was submitted on behalf of the appellant that Mr Charles Chabalala
did not identify the appellant as a robber but only testified that he was one of a
party of two who, earlier on the day of the robbery, had made enquiries
concerning the house at which the robbery was later committed. That is true.
However, the following has to be pieced together. First, there is the evidence
of Mr Nematswerani implicating the appellant. Before us, no reason was
suggested for Mr Nematswerani’s random selection of the appellant as a co-
perpetrator. Second, Mrs Chabalala’s account of the robbery was consonant
with Mr Nematswerani’s testimony about how it occurred. Third, there is the
evidence of Mr Chabalala, that the appellant had been in the car used in the
robbery, making enquiries earlier that day about the house at which it was
perpetrated ─ Mr Chabalala was immediately suspicious to the extent that he
recorded the registration number which was ultimately supplied to the police
and which was traced back to the robbery. Importantly, the appellant failed to
testify and challenge any of the evidence set out above, implicating him.

[10] If a witness has given evidence directly implicating an accused the
latter can seldom afford to leave such testimony unanswered. Although

evidence does not have to be accepted merely because it is uncontradicted,
the court is unlikely to reject credible evidence which the accused him or
herself has chosen not to deny. In such instances the accused’s failure to
testify is almost bound to strengthen the case of the prosecution.1 In S v
Chabalala 2003 (1) SACR 134 (SCA) para 21 the following was stated:
‘The appellant was faced with direct and apparently credible evidence which made him the
prime mover in the offence. He was also called on to answer evidence of a similar nature
relating to the parade. Both attacks were those of a single witness and capable of being
neutralised by an honest rebuttal. There can be no acceptable explanation for him not rising
to the challenge. If he was innocent appellant must have ascertained his own whereabouts
and activities on 29 May and be able to vouch for his non-participation. . . . To have remained
silent in the face of the evidence was damning. He thereby left the prima facie case to speak
for itself. One is bound to conclude that the totality of the evidence taken in conjunction with
his silence excluded any reasonable doubt about his guilt.’
See also S v Boesak 2001 (1) SACR 1 (CC) para 24.

[11] In the present case Mr Chabalala’s evidence about the enquiries made
by the appellant and his testimony linking the appellant to the vehicle used in
the robbery called for an answer as did the testimony of Mr Nematswerani
implicating him. At his peril, the appellant chose not to testify. In these
circumstances the court below was correct in convicting him.

[12] In respect of sentence it was contended on behalf of the appellant that
the court had not taken his personal circumstances into account and had
erred in concluding that there were no substantial and compelling
circumstances justifying a deviation from the prescribed 15 year-term of
imprisonment.

[13] The submissions in the preceding paragraph are baseless. Whilst it is
true that the court below (Hetisani J), could have been more expansive in
describing the respective robbers’ personal circumstances, it is clear that it
took into account the appellant’s degree of participation in the robbery,
namely, that he waited outside whilst the robbery was being perpetrated. The
court below took into account that the appellant had received his share of the

1 D T Zeffert, A P Paizes, A St Q Skeen The South African Law of Evidence (2003) p 127.

cash proceeds of the robbery and that he had identified completely with the
planning and execution of the robbery. There is nothing to indicate that there
is anything in the appellant’s personal circumstances that was not noted that
would have had a bearing on the sentence. The court below spoke in general
terms about the motivation for the minimum sentencing regime and the
frequency of crimes of violence. The court below clearly took the view that
there were no substantial and compelling circumstances justifying a departure
from the prescribed minimum sentence, a conclusion with which I can find no
fault.

[14] For all the reasons set out above the following order is made:
The appeal against both conviction and sentence is dismissed.

_________________
M S NAVSA
JUDGE OF APPEAL

APPEARANCES:

For Appellant:
M E Mokgotho

Instructed by

Justice Centre, Polokwane

Justice Centre, Bloemfontein

For Respondent:
R J Makhera

Instructed by

Director of Public Prosecutions, Polokwane

Director of Public Prosecutions, Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
29 September 2010
Status:
Immediate
Please note that the media summary is intended for the benefit of the
media and does not form part of the judgment of the Supreme Court of
Appeal

On 29 September 2010 the Supreme Court of Appeal handed down judgment in
Cedric Mapande v The State, dismissing an appeal against both conviction and
sentence. The appellant had been charged with robbery with aggravating
circumstances. It was alleged that he and three others had gone to the home of
Mrs Elelwani Friedah Chabalala at River Plaas and had forced her at gunpoint to
part with approximately R20 000 in cash, clothing, a blanket, a camera, a cell phone
and shoes. According to the State, the appellant was not one of the two robbers who
had entered the home ─ he waited in the vehicle parked outside. The Thohoyandou
High Court convicted the appellant and he was sentenced to 15 years’
imprisonment.

The appellant appealed on the basis that the identification evidence was insufficient
to found a conviction. In respect of sentence it was contended on behalf of the
appellant that the court had not taken his personal circumstances into account and
had erred in concluding that there were no substantial and compelling circumstances
justifying a deviation from the prescribed 15 year-term of imprisonment.

A co-accused, Mr Balaganani Nematswerani, had testified and implicated the

appellant. Mr Nematswerani was one of two robbers who had entered
Mrs Chabalala’s
home
with
a
firearm.
The
appellant
contended
that
Mr Nematswerani had been found by the court below to be a liar on other aspects of
his testimony and that the court below should not uncritically have accepted the
evidence implicating him. In short, the appellant submitted that Mr Nematswerani’s
evidence in this regard should have been rejected.

This
court
took
into
account
that
there
had
been
corroboration
for
Mr Nematswerani’s evidence. First, there was the evidence of Mr Charles
Chabalala, who had testified that earlier on the day of the robbery, the appellant was
one of a party of two who had made enquiries about the house at which the robbery
was perpetrated. Importantly, the two persons involved were travelling in the motor
vehicle that had been used in perpetrating the robbery. Mr Nematswerani’s evidence
of the manner in which the robber was perpetrated tied-in with Mrs Chabalala’s
description of how it had occurred. This court held that Mr Nematswerani’s untruthful
testimony that he had committed this and other robberies in his role as a police
informer did not necessarily mean that he was lying in respect of the appellant’s role
in the robbery under consideration. It considered the corroboration of his evidence
referred to above. Furthermore, this court considered it important that the appellant
had chosen not to testify. It noted that where a witness has given evidence directly
implicating an accused the latter can seldom afford to leave such testimony
unanswered. Although evidence does not have to be accepted merely because it is
uncontradicted, the court is unlikely to reject credible evidence which the accused
him or herself has chosen not to deny. In such instances the accused’s failure to
testify is almost bound to strengthen the case of prosecution. This court held that the
appellant had been rightly convicted.

In respect of sentence this court stated that although the court below could have
been more expansive in describing the respective robbers’ personal circumstances it
was clear that it took into account his degree of participation of the robbery and that
he had received his share of the cash proceeds of the robbery. The appellant had
participated in the planning and execution of the robbery. There is nothing to indicate
that there is anything in the appellant’s personal circumstances that was not noted
that would have had a bearing on the sentence. The court below considered the

frequency of crimes of violence and spoke about the motivation for the minimum
sentencing regime. The court below concluded that there were no substantial and
compelling circumstances justifying a departure from the prescribed minimum
sentence, a conclusion with which this court could find no fault. It consequently
dismissed the appeal against both conviction and sentence.