THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case Number :  201 / 2008
No precedential significance

SITHEMBISA MANA
Appellant

and

THE STATE
Respondent

Neutral citation:
Mana v The State (201/2008) [2008] ZASCA 88

(11 September 2008)

Coram :
SCOTT, STREICHER and PONNAN JJA

Heard:
29 August 2008
Delivered:
11 September 2008
Summary:
Evidence – circumstantial evidence – adequacy thereof.

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from:  The High Court, Grahamstown (Pickering and Revelas JJ sitting as

a court of appeal)

The appeal is upheld.
The convictions and sentences are set aside.

___________________________________________________________________

JUDGMENT
___________________________________________________________________

PONNAN  JA (SCOTT and STREICHER JJA concurring):

[1] The appellant faced three charges in the Port Elizabeth Regional Court, namely
two of robbery with aggravating circumstances and one of the unlawful possession of a
firearm in contravention of the Firearms Control Act 60 of 2000. Despite his plea of not
guilty, he was convicted on all three charges and sentenced in respect of each of the
first two charges to 15 years’ imprisonment, which was ordered to run concurrently, and
in respect of the third to three years’ imprisonment. His appeal to the Grahamstown
High Court against the convictions only, having failed, he successfully applied for leave
to appeal to this court.

[2] The salient facts giving rise to the conviction, briefly stated are: During the course
of 1 March 2002, one of the clerks at the Algoa Park Post Office was approached by a
member of the public who sought information as to the cost of postage. A cardboard
box in his possession was duly weighed and on being informed of the cost, he left
indicating that he did not have money but promised to return later. At about 15:00 he did
indeed return with what appeared to be the same box. After once again weighing the
item, the clerk turned to find a firearm trained on her by the man.

[3] The clerk was instructed to unlock the staff door which allowed the intruder and
his accomplices – they having since arrived on the scene, access to the inner sanctum
of the post office.  Once inside the office of the postmistress they dispossessed her (the
postmistress) of cash in excess of R30 000. To facilitate that robbery, which was the
subject of the first charge, they had to overcome the resistance of a security guard who
was on duty and dispossessed him of his .38 special firearm. Depriving the security
guard of possession of his firearm constituted the second charge of robbery.

[4] When the robbers made good their escape from the post office after the robbery,
the box was left behind on the counter. The evidence adduced showed it to have been
fashioned out of a piece of brown cardboard with the aid of white sticky tape. The box
was taken by the police into their possession and secured as an exhibit. In due course it
was examined by a finger print expert. On the inside of the box he found an identifiable
palm print, which could not at that stage be linked to anyone. During 2006, the appellant
was arrested on some unrelated charge and his palm and fingerprints were thereafter
circulated within the SAPS. It was only then, some four years after the robbery in
question, that a positive link was established between the appellant and the palm print
which had been lifted from the inside of the box that had been abandoned in the post
office during the course of the robbery.

[5] In his evidence in chief the appellant testified:

‘Goed, maar u het mos nou die getuienis gehoor van die ekspert, hy sê hy moes die
boks oopmaak omdat hy nie enige identifiseerbare vingerafdrukke buitekant op die boks kon kry
nie. Het u enige verduideliking vir die Hof hoe u palmafdruk binne-in die boks beland het? --- Ek
self het nie ondervinding van sy soort werk nie, ek kan nie ’n verduideliking gee daaromtrent
nie. Die moontlikheid bestaan .... ek het al baie keer kartondose hanteer, skoene, televisiestelle,
klerasie. Wat van daardie kartondose geword het, ek self weet mos nie.

So as ek u nou reg verstaan sê u nou dat dit moontlik is dat u hierdie betrokke boks, dat
u dit miskien dalk kon hanteer het? --- Ja.’

[6] The evidence against the appellant, consisting solely as it did of a palm print on
the inside of the cardboard box, which must be accepted to have been that of the
appellant, is entirely circumstantial. Whist there is nothing wrong in principle with
circumstantial evidence and it sometimes can be compelling, the present is not such a
case. Absent any other evidence, in my view, the finger print evidence is wholly
insufficient upon which to found a conviction. Can it be said that on the totality of the
evidence, the only reasonable inference to be drawn is that the palm print was left on
the cardboard box by the last person to have handled it immediately prior to the
robbery? I think not. A piece of cardboard such as the one used to fashion the box here,

is by its very nature a mobile object that is capable of use and re-use in the hands of
diverse individuals. The evidence does not establish where the box originated from or
even, for that matter, where the robbers may have come from. If indeed the robbery was
planned, as appears to be the case, then the robbers may well have conveyed the box
with them to the post office. In that event it is possible that the box travelled a
considerable distance on that very day prior to its use in the robbery. In those
circumstances, that the appellant’s palm print may have come to find its way onto the
piece of cardboard out of which the box was fashioned, in perfectly innocent
circumstances, can hardly be excluded as a reasonable possibility. It follows that the
well-known tests set forth in R v Blom 1939 AD 188 have not been satisfied. Plainly
therefore, on a conspectus of all of the evidence, the conclusion that the appellant was
one of the participants in the robbery and that it is under those circumstances that he
came to leave his palm print on the inside of the box, is unsustainable. That being so,
the convictions cannot stand.

[7] In the result:

The appeal is upheld.

The convictions and sentences are set aside.

_________________
V M  PONNAN
JUDGE OF APPEAL

APPEARANCES:

COUNSEL FOR APPELLANT:
P L VAN DER MERWE
INSTRUCTED BY:

GRAHAMSTOWN JUSTICE CENTRE,

GRAHAMSTOWN
CORRESPONDENT:

BLOEMFONTEIN JUSTICE CENTRE,

BLOEMFONTEIN

COUNSEL FOR RESPONDENT:
N HENNING
INSTRUCTED BY:

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS

GRAHAMSTOWN
CORRESPONDENT:

NATIONAL 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

11 September 2008

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form
part of the judgment.

Mana v The State (201/2008) [2009] ZASCA 88 (11 September 2008)

Media Statement

Today the Supreme Court of Appeal (SCA) upheld an appeal by Sithembisa Mana against his
conviction on two charges of robbery and one of the unlawful possession of a firearm. The
charges arose out of an incident at the Algoa Park Post Office on 1 March 2002 when the
postmistress was robbed of cash in excess of R30 000 and a security guard of his .38 special
firearm. When the robbers made good their escape a cardboard box, which had been
fashioned out of a piece of cardboard and white sticky tape, was left behind by one of the
robbers on a counter inside the post office. The box was examined by a finger print expert
who found an identifiable palm print on the inside of the box, which could not at that stage be
linked to anyone. During 2006, the appellant was arrested on some unrelated charge and his
palm and fingerprints were thereafter circulated within the SAPS. It was only then some four
years after the robbery that a positive link was established between the appellant and the
palm print which had been lifted from the inside of the box.

The evidence implicating the appellant in the robbery and upon which he was convicted was
entirely circumstantial. His appeal to the Grahamstown High Court proved unsuccessful. The
SCA held that whilst there is nothing wrong in principle with circumstantial evidence and it
sometimes can be compelling, the present is not such a case. Absent any other evidence, the
SCA held, the fingerprint evidence was wholly insufficient upon which to found a conviction.
The SCA reasoned that a piece of cardboard such as the one used to fashion the box, was by
its very nature a mobile object that was capable of use and re-use in the hands of diverse
individuals. The evidence did not establish where the box originated from or even, for that
matter, where the robbers may have come from. If indeed the robbery was planned, as
appears to be the case, then the robbers may well have conveyed the box with them to the
post office. In that event it was possible that the box had travelled a considerable distance on
that very day prior to its use in the robbery. In those circumstances, the appellant’s palm print
may have come to find its way onto the piece of cardboard out of which the box was
fashioned, in perfectly innocent circumstances. The conclusion therefore by the trial court,
that the appellant was one of the participants in the robbery and that it is under those
circumstances that he came to leave his palm print on the inside of the box, was
unsustainable. That being so the convictions could not stand. It followed that the appeal had
to succeed.

--- ends ---