THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case number: 450/08
No precedential significance

In the matter between:

BENZANI NXUMALO
APPELLANT

v

THE STATE
RESPONDENT

Neutral citation:
Nxumalo v The State (450/2008) [2009] ZASCA 113
(23 September 2009)

Coram:
Streicher, Brand  JJA and Griesel AJA

Heard:
15 September 2009

Delivered:
23 September 2009

Summary:
Evidence – whether circumstantial evidence was sufficient to
justify conviction of the appellant. Test regarding such evidence
applied to the facts.

ORDER

On appeal from: The Free State High Court (Circuit Court at Kroonstad)
(Hancke J and assessors).

Order:

1.
The appeal is partially upheld to the extent that the convictions and
sentences imposed in respect of counts 21 and 22 are set aside.
2.
Save as aforesaid, the appeal is dismissed.

JUDGMENT

GRIESEL AJA (Streicher, Brand JJA concurring):

[1] The appellant, as accused no 14, appeared with 14 co-accused
before Hancke J and two assessors, sitting in the Kroonstad circuit court.
They were charged with a total of 54 counts, including robbery with
aggravating circumstances, kidnapping and contraventions of the Prevention
of Organised Crime Act 121 of 1998 (POCA).
[2] After a protracted trial, the appellant – together with some of his co-
accused – was convicted on a total of ten counts, namely four counts of
robbery with aggravating circumstances (counts 19, 21, 23 and 25); five of
kidnapping (counts 20, 22, 24, 26 and 27) as well as contravention of s 9(1)(a)
of POCA (count 53). He was thereupon sentenced to a total period of 77
years imprisonment, which was ordered to be served concurrently in such a
way as to amount to an effective term of 25 years imprisonment. Leave to
appeal against the convictions and sentences was refused by the trial court.
Subsequently, however, this court, on petition, granted leave to appeal

against the convictions on counts 19–22. Regarding sentence, the parties
were directed to address the question as to how the setting aside of the
conviction in respect of these counts (or some of them) should affect the
composite sentence imposed in respect of these and the other counts of
which the appellant was convicted.
Factual background
[3] The appellant and some of his co-accused were found to have been
members of a criminal syndicate specialising in the hijacking of heavy trucks
and other motor vehicles and the export of such vehicles, primarily to
Mozambique. The indictment covered more than twenty separate hijacking
incidents over a period of some five-and-a-half years, between 1999 and
2005. The modus operandi utilised by members of the syndicate involved not
only the use of firearms to rob the victims of their vehicles and personal
possessions, but also the extensive use of cell phones to keep in touch with
each other prior to, during and after operations. Evidence linking various cell
phone numbers to the individual members of the syndicate thus formed a vital
link in the evidential chain in the case against the accused.
[4] The trial court found that the cell phone numbers ending in 8640,
7346 and 8852 could positively be linked to the appellant. In his evidence at
the trial, the appellant denied that he had ever used cell phones with the
numbers ending in either 7346 or 8852. The trial court, however, rejected his
version as false and furnished cogent reasons for its conclusion. It has not
been contended on appeal that the trial court erred or misdirected itself in this
regard. I can accordingly find no grounds for disturbing these factual findings.
Counts 19 & 20
[5] Turning now to the first of two separate incidents in respect of which
leave to appeal has been granted, the evidence adduced at the trial
established that on 16 July 2004 the complainant, Mr Ernst Rasepedi Moepi,
was en route along the road between Reitz and Frankfort with his employer’s

8 ton Isuzu truck with registration number LKX 314 GP. Shortly after 14h00
near Frankfort he was robbed at gunpoint of his truck, cell phone and
personal possessions after his vehicle had been forced off the road by the
robbers. In the process, he was also kidnapped and was held captive until
18h00 that day. These events form the subject matter of counts 19 and 20, in
respect of which accused nos 1, 2, 3, 4, 5, 6, 10, 11 and the appellant were
convicted.
[6] There was no direct evidence linking the appellant to the commission
of these offences. According to the judgment, the trial court convicted the
appellant on the basis of the following circumstantial evidence:

The appellant’s cell phone with the number ending in 7346 was
proved to have been in the vicinity of Frankfort at 14h22 on the day in
question.

The same cell phone was in contact with accused no 11 at 16h25 that
same afternoon from the Randvaal area.
[7] In granting leave to appeal to this court, the parties were directed to
deal specifically with the question whether there is any evidence linking the
applicant to the commission of these offences other than the circumstantial
evidence referred to above. If there is such evidence, the parties were
requested to state the nature of the evidence and to deal with the question
whether such evidence is sufficient to sustain the convictions on these counts.
[8] In response, counsel for both sides pointed out that, according to the
cell phone records, the same cell phone was not only used in the vicinity of
Frankfort at 14h22 on the day in question, but also at 14h26 on the same day.
Moreover, between these two calls, the appellant’s cell phone records reflect
two further calls from the ‘Leeukop’ area at 14h24 and 14h25 respectively.
From the fact that four calls were made from the same cell phone within five

minutes of each other it is safe to assume that Leeukop is also in the vicinity
of Frankfort.
[9] Counsel for the appellant further pointed out that, contrary to the
finding of the trial court, the cell phone records of the appellant (with the
number ending in 7346) do not show that he was in contact with accused no
11 at 16h25 on that day. Instead, it shows contact at 16h29 from the
Randvaal area between the cell phone of the appellant and the cell phone
(with a number ending in 1911) of an unidentified person, who was proved to
have been involved in various of the offences. In addition, the records show
contact between the appellant and the same ‘guilty’ cell phone at 21h16 and
21h19 the night before the commission of the offences, namely 15 July 2004.
[10] The correct approach to circumstantial evidence has been stated on
many occasions by this court and does not require reiteration.1 Considering
the cumulative effect of the circumstantial evidence in this case, the picture
that emerges is as follows:

The cell phone with number ending in 7346, which has been positively
linked to the appellant, was used four times within a short space of
time at or near the scene of the crimes shortly after those crimes were
committed.

The scene of the crimes, near Frankfort in the north-eastern Free
State, is some distance away from Gauteng, where the appellant
lives. His route took him along the same route – from Reitz to
Frankfort – as the route followed by the victim of these crimes. In the
absence of a reasonable explanation from the appellant, it is difficult
to conceive of an innocent explanation for his presence in that area at
that time.

1 R v De Villiers 1944 AD 493 at 508–509; S v Reddy & others 1996 (2) SACR 1 (A) at 8c–h.


The appellant has been proved to have been in cell phone contact
with the ‘guilty’ cell phone with number ending in 1911 on two
occasions on the night before the crimes in question as well as the
afternoon after the crimes were committed.

The appellant falsely denied any involvement in the commission of the
offences and falsely denied any connection with the cell phone
number ending in 7346. In the light of the incriminating nature of the
evidence relating to that cell phone, the trial court was justified, in my
view, in drawing an adverse inference from the appellant’s false
denials.2
[11] On the evidence as a whole, I am satisfied that the trial court was
entitled to infer that the appellant was indeed at or near the scene of the crime
outside Frankfort at the relevant time. I am satisfied, moreover, that the
inference of guilt is the only reasonable inference to be drawn from the
evidence. It follows, in my view, that the appeal in respect of counts 19 and 20
cannot succeed.
Counts 21 & 22
[12] In another incident, on 27 July 2004 at approximately 9h30 and
between Memel and Senekal, the complainant, Mr Thomas Leoma, was
hijacked and robbed of his employer’s Nissan diesel truck, registration
number CNR 169 FS, as well as certain personal belongings. He was also
kidnapped and was held captive until approximately 13h00 the same day.
These events form the subject matter of counts 21 and 22.
[13] The trial court found that the state had proved the guilt of the
appellant as well as accused numbers 1, 2, 6, 11 and 15 beyond reasonable
doubt. In its summary of the evidence, however, no mention is made of any
direct or circumstantial evidence linking the appellant to the commission of
these offences, save for evidence that there was cell phone contact between

2 S v Rama 1966 (2) SA 395 (A) at 400G–H; S v Steynberg 1983 (3) 140 (A) at 147A.

the appellant and the ‘guilty’ cell phone (with number ending in 1911) on the
afternoon before the crimes were committed. In the light of this evidence this
court, in granting leave to appeal, directed the parties to deal specifically with
the question whether there is any evidence linking the applicant to the robbery
on the day in question other than the evidence of the cell phone contact
mentioned above. If there is such evidence, the parties were requested to
state the nature of the evidence and to deal with the question whether such
evidence is sufficient to sustain the convictions on these counts.
[14] Counsel for the state was unable to refer us to any further evidence
linking the appellant to the crimes in question, save for relying on the general
pattern or modus operandi of the syndicate disclosed by the totality of the
evidence. Counsel fairly conceded, however, that he could not seriously resist
the appeal with regard to these two counts. In my view, this concession was
properly made – especially in view of the further evidence emerging from the
appellant’s cell phone records, showing that the appellant’s cell phone was
used more or less at the time of the commission of the offences, at 8h58 on
27 July 2005, at Booysens in Gauteng, some considerable distance removed
from the scene of these crimes.
[15] Where the state is unable to prove actual physical presence at the
scene of a crime – let alone participation in the crime by an accused – it can
only succeed in obtaining a conviction if it can prove a pre-existing conspiracy
or common purpose with which the accused had associated himself to commit
the crime in question. With regard to counts 21 and 22, the state has failed, in
my view, to discharge that onus.
[16] In the circumstances, it appears that the trial court erred in convicting
the appellant of these offences. It follows that the appeal in respect of counts
21 and 22 must be upheld.

Sentence
[17] Counsel for the appellant and the state were agreed that success on
appeal in respect of only one set of charges would have ‘little or no effect’ on
the composite sentence imposed by the trial court. I agree with this approach.
After all, ‘the court must look at the totality of the criminal behaviour and ask
itself what is the appropriate sentence for all the offences’.3 Applying that
yardstick to the remaining offences of which the applicant has been convicted,
I can find no reason to interfere with the composite sentence of 25 years
imprisonment imposed by the trial court.
[18] The following order is issued:
1.
The appeal is partially upheld to the extent that the convictions and
sentences imposed in respect of counts 21 and 22 are set aside.
2.
Save as aforesaid, the appeal is dismissed.

B M GRIESEL
Acting Judge of Appeal

3 Thomas Principles of Sentencing 2ed (1979) p 56, quoted with approval in Johaar v The State
(652/2008) [2008] 46 ZASCA (21/5/09) para 14.

APPEARANCES:

FOR APPELLANT:
R C Krause (attorney)

Instructed by

BDK Attorneys

(David H Botha, Du Plessis & Kruger)
Johannesburg

Symington & De Kok

Bloemfontein

FOR RESPONDENT:
C F Steyn

Instructed by

The 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:
23 September 2009

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.

BENZANI NXUMALO v THE STATE

In a judgment delivered on 23 September 2009, the Supreme Court
of Appeal partially upheld an appeal against the conviction of the
applicant, Mr Benzani Nxumalo, in the Kroonstad Circuit Court before
Hancke J and assessors on one count of robbery with aggravating
circumtances and one of kidnapping.
The appellant and some of his co-accused were found to have been
members of a criminal syndicate specialising in the hijacking of heavy
trucks and other motor vehicles and the export of such vehicles,
primarily to Mozambique. The indictment covered more than twenty
separate hijacking incidents over a period of some five-and-a-half
years, between 1999 and 2005. The appellant was convicted on a

total of ten counts and sentenced to a composite sentence of 25
years imprisonment.
On appeal, the SCA found that the circumstantial evidence with
regard to two of the counts was insufficient to sustain the convictions
and set aside those convictions. The court held, however, that there
was no reason to interfere with the composite sentence of 25 years
imprisonment imposed by the trial court.