THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No:  567/06
NOT REPORTABLE

In the matter between:

NORMAN DLEPU                                                             APPELLANT

and

THE STATE                                                                    RESPONDENT

Coram:
Farlam, Mlambo JJA et Hancke AJA

Heard:
7 May 2007

Delivered: 1 June 2007

Summary:
Criminal law – appeal against conviction and sentence – regional court
contrasting accused’s versions – incorrect test – appellant’s version on
correct test reasonably possibly true – appeal upheld.

Neutral citation:
This judgment may be referred to as Dlepu v The State
[2007] SCA 81 (RSA).

_____________________________________________________________________

MLAMBO JA

[1] The appellant was convicted with two others on one count of
robbery with aggravating circumstances, one count of possession of a
firearm and ammunition respectively, in contravention of the Arms and
Ammunition Act no 75 of 1969, by the Port Elizabeth Regional Court on
11 February 2003. He and his co-accused were thereafter each sentenced
to 15 years imprisonment on the robbery count. He was sentenced to
18 months imprisonment on the unlawful possession of a firearm count
and to a fine of R1 200 or 6 months imprisonment on the unlawful
possession of ammunition count. The 18 months sentence was ordered to
run concurrently with the 15 year sentence.

[2] The appellant and his co-accused then lodged appeals against their
convictions and sentences to the Eastern Cape Division of the High
Court. The appeals were heard by the Grahamstown High Court (Jennett
and Chetty JJ) on 3 February 2004 which upheld the appeals against the
unlawful possession counts but dismissed the appeals against the robbery
conviction and sentence of 15 years.

[3] On 10 February 2004 the Grahamstown High Court heard and
dismissed the appellants’ application for leave to appeal to this court
against the remaining conviction and sentence. In this appeal the
appellant appeals, with special leave from this court, against that
conviction and sentence.

[4] The facts briefly are that in the early afternoon on 1 March 1999
Albert Henry Collin Moorcroft (Moorcroft) was robbed of his Isuzu
bakkie in which was his briefcase with his identity document, a Nokia
cell phone, a set of keys, letters and R40 cash, by two young men, just

after he had left the Standard Bank, at a shopping centre in Newton Park,
Port Elizabeth.

[5] It is not in dispute that Inspector Vosloo and Sergeant Kruger, who
were busy with crime prevention and other police duties, received the
report of the robbery on their radio requesting them to be on the lookout
for the bakkie. They were in private clothes and driving an unmarked
Toyota Venture vehicle (Venture). They continued with their duties and
at Fourth Lane in Newton Park they came across a gold Audi sedan
(Audi) with a number of passengers inside and became suspicious. They
followed the Audi into Bruce Street until it stopped in front of a house in
that street. Vosloo and Kruger drove past and momentarily lost sight of
the Audi. They made a U turn and when the Audi came into sight (it had
also turned to face the opposite direction) they noticed a male person,
carrying an object they could not identify, run from the house the Audi
had parked in front of, and get into the back seat of the Audi.

[6] The Audi drove off and after following it for some time they pulled
it off, ordered the four passengers and driver out and proceeded to search
them and the Audi. At the back seat they found a briefcase and searching
it they found a .38 Rossi revolver with its serial number tampered with,
with three live rounds of ammunition. They also found chequebooks,
letters, a Nokia cell phone and Moorcroft’s identity document inside the
briefcase. Vosloo and Kruger decided to arrest all the occupants of the
Audi for the unlawful possession of a firearm and ammunition. They
impounded the Audi for further investigation. A set of motor vehicle keys
were also found on the grass next to where the Audi was standing. They
called for backup and Sergeant Weyers responded and on arrival at the

scene Vosloo and Kruger gave him the vehicle keys with a request that he
conduct an investigation at the house the Audi had stopped in front of.

[7] On searching the house Weyers discovered, in one of the garages,
Moorcroft’s Isuzu bakkie. He was also able to start it with the keys given
to him by Vosloo and Kruger. When he touched the bonnet, he found that
it was still warm. A robbery charge was added on the finding of the
bakkie. The day after the Audi was impounded the police found a piece of
paper under one of its sun visors with a number of names including
Moorcroft’s.

[8] It is common cause that the appellant was one of the back seat
passengers in the Audi when it was stopped by Vosloo and Kruger. It is
also common cause that he was not the driver nor the person seen running
from the house and getting into the back seat of the Audi.

[9] The background I have sketched represents the evidence led by the
State, it being common cause that Moorcroft had failed to identify any of
the five accused in an identification parade.

[10] The trial proceeded against the appellant and two co-accused as the
driver of the Audi, Elliot Ndlovu (accused 5) and one of the backseat
passengers Jongikaya Nconco (accused 1) had skipped bail and were
never rearrested. The regional court pointed out a number of differences
in the versions and evidence presented by the appellant and his two co-
accused. At the conclusion of the trial the regional court found that the
appellant and his two co-accused had given different versions and that
their credibility was for that reason in tatters (‘is aan flarde’). The court

viewed these as contradictions hence the view that their credibility was in
tatters.

[11] The regional court concluded on the facts proved by the State that
the Audi was the ‘pick up’ or ‘back up car’, a conclusion based on the
finding of Moorcroft’s name in a piece of paper under one of the Audi’s
sun visors, as well as the fact that one of the robbers knew Moorcroft and
addressed him by a name under which he was known.

[12] The regional court also concluded that in the light of all the
material contradictions amongst the accused and their versions it could
come to only one inference: that the passengers in the Audi were not
coincidental (‘toevallig’) passengers; that accused no 4 (Xolani Ngcayisa)
who was light complexioned was one of the robbers based on
Moorcroft’s evidence that one of the robbers had a light complexion; that
based on its finding that everyone in the Audi were not coincidental
passengers, it meant that they were all deeply involved (‘kop en mus’) in
the robbery; that the two robbers who robbed Moorcroft were part of the
five arrested by Vosloo and Kruger, although it could not be said who
they were.

[13] It is clear from the regional court’s reasoning that it found that the
occupants of the Audi, who it had found had not taken part in the actual
robbery had acted in a common purpose with the actual robbers. It is for
this reason that the regional court found that the Audi was the so-called
‘back up’ or the ‘pick up car’, as also found by the court a quo.  It is also
clear that in finding that there were contradictions amongst the accused
the regional court had treated them as if they had presented a unified

defence, hence the emphasis on contradictions amongst their versions and
evidence.

[14] The nature of the evidence led by the State in this nature is
circumstantial in its entirety, save perhaps regarding the link between
Moorcroft’s briefcase and accused no 2 (Ralo) who was seen by the
police running from the house into the Audi carrying it. Therefore the
regional court concluded that the only inference it would draw from all
that evidence was that the appellant and the other accused were the ‘back
up’ to the robbery.

[15] Indeed circumstantial evidence can be relied upon with or in the
absence of direct evidence to prove the guilt of an accused person. Where
circumstantial evidence is relied on one enters the realm of inferential
reasoning as done by the regional court. It is settled law that where an
inference is sought to be drawn all the proved facts taken together must
exclude every other reasonable inference from them save the one sought
to be drawn. It is not each proven fact that must exclude all other
inferences but ‘all the facts as a whole must do so’. S v Reddy 1996 (2)
SACR 1 (A) at 8c-e; R v De Villiers 1944 AD 492 at 508.

[16] It is also settled law that in the assessment of circumstantial
evidence to determine whether the only inference justified by the
evidence is one of guilt, the court must, in the same assessment, consider
the version presented by the accused. This is so for the simple reason that
a court must be in a position to say that in the light of all the evidence the
version of the accused is not reasonably possibly true hence the only
inference to be drawn from all that evidence is one of guilt.

[17] The test is that an accused must be convicted if the evidence
establishes his guilt beyond reasonable doubt and that he must be
acquitted if it is reasonably possibly true that he might be innocent. S v
Van Aswegen 2001 (2) SACR 97 at 101a-e. In arriving at either
conclusion all the evidence must have been taken into account.

[18] The issue before us therefore is whether the evidence led before the
trial court justified a rejection of the appellant’s version and the
conclusion that the only inference was that the appellant was part of the
‘back up’ to the robbery as such and was therefore equally guilty. In
considering this issue it is prudent to consider the version presented by
the appellant.

[19] The appellant’s version was that he was in the Audi for an innocent
reason and was not involved in anyway in and knew nothing about the
robbery. His version was that he ran a shebeen business and a café from
his house. On the day in question Ndlovu, accused no 5, came to his
house driving the Audi at about 10 in the morning accompanied by
Ngcayisa (accused no 4). Ndlovu was known to him but not Ngcayisa
whom he was meeting for the first time. He requested permission to use
Ndlovu’s Audi to buy stock for his café and shebeen businesses
something which he had done in the past. Ndlovu agreed that he could
use the Audi after 14h00 when he reported for duty.

[20] The two stayed in his house for some time until the early afternoon
when all three left as Ndlovu said he wanted to go past a place called
Kabega before going to work at 14h00. The appellant stated that he went
along in order to take the Audi from Ndlovu at his place of employment.
At Kabega, Ndlovu left them in the Audi and went into the premises and

returned after some time, saying he had gone there to make some
payment. Thereafter, they drove off and Ndlovu received a call on his cell
phone after which he told them that there were people he had to pick up at
Newton Park. Ndlovu also made some calls to some unknown persons.
They then proceeded to a house in Newton Park where Nconco (accused
no 1) and Ralo (accused no 2) got into the Audi. Ralo had come from the
house they had parked in front of and had a briefcase with him and
Nconco had come from a neighbouring yard. He did not know them
either. They drove away and were stopped by the police in a white
Venture vehicle, which he had seen before they picked up Nconco and
Ralo.

[21] The trial court reasoned that it was very (‘uiters’) strange that
Ndlovu, the owner of the Audi, would go with complete strangers to pick
up his co-conspirators, ie the actual robbers. On this reasoning the
regional court concluded that all the accused were involved in the
robbery. Regarding no 3’s version of having agreed with Ndlovu to use
the Audi, the trial court found that he had contradicted himself on
whether he was going to use the Audi or had hired another car and
whether Ndlovu took R150 from him to put petrol in the Audi or not.

[22] It is clear that the reasoning of the regional court was first that the
appellant’s version and those of his co-accused were so contradictory and
therefore improbable that he was justified in rejecting them and secondly
that it was improbable for Ndlovu to take innocent passengers when he
went to pick up the robbers after they deposited the bakkie in Newton
Park.

[23] The regional court viewed the appellant’s version and those of the
other accused as being one, and concluded that these versions differed,
that all the accused had contradicted each other, hence his finding that
their credibility was in tatters. The regional court thereafter found that the
appellant’s version was improbable, ie he was not in the Audi for an
innocent reason but was part of the robbery enterprise, so to speak. This
was in my view a clear misdirection. The appellant, though charged with
others, presented an individual version. The regional court erred when it
took the appellant’s version and contrasted it with the versions of the
other accused. The regional court was required to view the appellant’s
version on its own and to investigate whether in the light of all the
evidence, it was reasonably possibly true. The regional court did not do
this.

[24] Having found that the regional court applied the incorrect test we
are enjoined to conduct the investigation, applying the correct test of
course. This is by no means an easy task as we, on appeal, are called upon
to do, on paper, what a trial court should have done with the benefit of
observing and hearing witnesses at first hand. R v Dhlumayo 1948 (2) SA
677 (A) at 696. Because we lack the advantages a trial court possesses in
doing this we are limited in the extent to which we can conduct the
investigation successfully. Nevertheless I proceed to do so as constrained
as I am.

[25] The appellant’s version is that he only knew Ndlovu amongst all
the accused. He also testified that he was in the Audi because he was
going to use it after Ndlovu had reported for work and that he had used
the Audi in the past for purchasing stock for his businesses. This evidence
was not contradicted by the State witnesses nor by the other accused. He

testified that Ndlovu made a number of calls on his cell phone and also
received a call whereafter he (Ndlovu) stated that there were people he
had to collect. It is this evidence that bolstered the regional magistrate’s
reasoning that that the Audi was the ‘pick up’ car.

[26] It is common cause that appellant was not the driver/owner of the
Audi when the police followed it and stopped it. He was also not the
person who had Moorcroft’s briefcase and was seen running from the
house where the bakkie was located. Clearly the ‘pick up’ of Ralo in
particular fits in with the appellant’s version that Ndlovu received a call
to pick up certain people. The evidence about a call to pick up some
people and his evidence that the briefcase was not in the Audi before Ralo
was picked up supports the State’s case about the Audi being a ‘pick up’
car, it was clearly incriminating, but he gave it. More than anything this
was a powerful demonstration that he was unaware what Ndlovu was up
to.

[27] The evidence regarding the finding of a piece of paper with
Moorcroft’s name amongst others, was a strong indication that the Audi
was used for a criminal purpose. However, appellant was not the driver
nor the owner of the Audi, from whom an explanation was called for.
That fact on its own cannot be relied on as showing the appellant’s
complicity.

[28] Counsel for the State, Mr Robinson, submitted that the appeal had
to fail also on two grounds ie that the appellant was in the company of
Ndlovu and another co-accused for the better part of the day. This, it was
submitted proved that the appellant was part of the planning of the
robbery. The second basis was submitted to be the appellant’s evidence of

stating that he did not see where the briefcase was in the backseat when
the police stopped them. It was submitted that by testifying in this manner
the appellant had supported the case of the other accused against the
State. It was submitted that this showed the appellant’s complicity in the
robbery.

[29] This argument is misguided. In the first place it seeks the
acceptance of only those two facts as proving the appellant’s guilt. The
law as I have stated earlier does not countenance a piecemeal approach to
evidence. All the evidence taken as a whole shows in my view that whilst
the regional court might have been correct that the Audi was the ‘pick up’
car, this does not necessarily mean that the appellant was involved. That
finding was more appropriate against whoever was in charge of the Audi
and Ralo and Nconco who were implicated by direct evidence as being
the persons who ran out of the house where the bakkie was found with
Moorcroft’s briefcase. On the record I am of the view that this finding
cannot be made against the appellant.

[30] Evidence was necessary direct and/or circumstantial to find that the
appellant was involved in the robbery plot based on the common purpose
doctrine, which the regional court also relied on. No such evidence was
led, the only evidence being that he was a passenger. If he was, as the
regional court found, acting in common purpose with the robbers, the
regional court had no evidence to make this finding. The law is clear that
certain requirements are necessary before a finding of common purpose
can be made. In this regard no evidence was led to show how the
appellant was causally connected to the robbery, there was no evidence
that he was present at the scene of the robbery, that he was aware of the
robbery, that he showed a common purpose with the robbers. Without

this evidence there is no basis for the finding that he was connected to the
robbery. S v Mgedezi 1989 (1) SA 687 (A) at 705I-706B and S v Thebus
2003 (6) SA 505 (CC) at 521D-E.

[31] It is clear from the above that on the record before us and on a
proper analysis of all the evidence, particularly the proved facts, that the
appellant’s version that he was innocently in the Audi was reasonably
possibly true and should have been accepted as such by the regional
magistrate. The fact that he may have contradicted himself in one or two
respects cannot in itself found a basis to say he was also involved. In the
final analysis I am persuaded that taking the totality of the evidence into
account and considering the probabilities and improbabilities on the
State’s and on the appellant’s side that the balance weighs heavily in
favour of the appellant that his version is reasonably possibly true and he
should have been acquitted. In S v Shackwell 2001 (2) SACR 185 (SCA)
this court cautioned against the rejection of an accused’s version simply
because it is improbable. There Brand AJA said at 194g-i:

‘It is a trite principle that in criminal proceedings the prosecution must prove its case
beyond reasonable doubt and that a mere preponderance of probabilities is not
enough. Equally trite is the observation that, in view of this standard of proof in a
criminal case, a court does not have to be convinced that every detail of an accused’s
version is true. If the accused’s version is reasonably possibly true in substance the
court must decide the matter on the acceptance of that version. Of course it is
permissible to test the accused’s version against the inherent probabilities. But it
cannot be rejected merely because it is improbable; it can only be rejected on the basis
of inherent probabilities if it can be said to be so improbable that it cannot reasonably
possibly be true.’

See also S v M 2006 (1) SACR 135 (SCA) at 183h-l.

[32] Based on the aforegoing I would uphold the appeal. The following
order is made:
1.
The appeal succeeds.
2.
The order of the court a quo is set aside and replaced by the
following:

‘(i)
The appeal succeeds.
(ii)
The conviction and sentence of the appellant are set aside and
replaced by the following:
Accused no 3 is found not guilty and discharged.’

________________
D MLAMBO
JUDGE OF APPEAL

CONCUR:
FARLAM JA
HANCKE AJA