THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case no: 20716/2014
Not Reportable

In the matter between:

KABELO MELVIN SHOLE                                               FIRST APPELLANT

JAFTA BUSHY LEKENA                                              SECOND APPELLANT

and

THE STATE                                                                                  RESPONDENT

Neutral Citation: Shole v The State (20716/2014) [2014] ZASCA 123 (17
September 2015)

Coram:               Shongwe, Theron and Majiedt JJA

Heard:                  19 August 2015

Delivered
17 September 2015

Summary: Criminal Law – Conviction – evidence of a ‘confession’ made to
witnesses properly admitted and sufficient to establish the guilt of the first
appellant.
Palm and fingerprint evidence – the second appellant’s palm and fingerprints on
the scene justified as only reasonable inference - an inference of guilt. Appeal
dismissed.

__________________________________________________________________
ORDER
__________________________________________________________________
On appeal from: North West Division of the High Court, Mahikeng (Hendricks,
Gura and Kgoele JJ sitting as court of appeal):
The appeal is dismissed.
__________________________________________________________________
JUDGMENT
__________________________________________________________________
Theron JA (Shongwe and Majiedt JJA concurring):

[1] The appellants, Mr Kabelo Melvin Shole (first appellant), and Mr Jafta
Bushy Lekena (second appellant), were arraigned in the high court, North West
Division, Mahikeng, on charges of housebreaking with intent to rob, robbery with
aggravating circumstances and murder. They pleaded not guilty to the offences but
were convicted and sentenced to 15 year’s imprisonment in respect of the
housebreaking and life imprisonment in respect of the murder.

[2] The first appellant was granted leave by the trial court to appeal to the full
court against his conviction, while the second appellant was granted leave to
appeal against both conviction and sentence. The full court dismissed their
appeals. The appellants were granted special leave to appeal to this court against
conviction only.

[3] The complainant, Ms Manini Elizabeth Smith, managed a tavern and
tuckshop in Ramatlabama, District of Molopo, from premises on which her
residence was situated. The building housing the tavern and tuckshop was
detached from the residential premises. It was common cause that there was a pool
table (owned by someone else) in the tavern and in order to play pool, patrons

were required to deposit money in the money slot on the pool table. The money
would drop and collect in a money box lodged inside the pool table. It was not
disputed that the owner of the pool table visited the premises twice a month in
order to, inter alia, collect the money in the money box.

[4] The incident giving rise to the charges being preferred against the appellants
occurred during the night of 3 November and the morning of 4 November 2005. At
least four persons broke into and entered the complainant’s business premises. The
robbers gained access to the money box and took its contents. They then gained
entry to the residential premises by breaking a dining room window. Ms Smith and
her sons, Stanley and Enoch, were assaulted during the incident. Stanley was
fatally assaulted and died on the premises.

[5] The conviction of the first appellant was based upon the evidence of two
State witnesses, Mr Godfrey Samuel Kutsuakai Moetaesi and Mr Otusitse
Archibald Phefo, who testified that the first appellant had ‘confessed’ to having
been involved in the incident at the Smith premises. The first appellant claimed
that their evidence to this effect was false and denied participating in the
commission of these offenses.

[6] The trial court convicted the second appellant on the basis of finger and
palm print evidence. His palm print was found on the windowsill of the window
through which access was gained into the residence. The palm print was facing
away from the window about a metre from the ground. His fingerprints were lifted
from the money box.

[7] It was the testimony of Warrant Officer Phillipus Nel, an expert who lifted
and identified the prints, that they were fresh. He visited the scene and lifted the
prints a few hours after the incident occurred. Mr Nel also testified that in the

ordinary course, a pool playing patron’s fingerprints would not be found on the
money box. His evidence was that in order to gain access to the money box, the
drawer containing the balls had to first be removed. The only way a patron’s
fingerprints could be left on the money box, was if the patron removed the drawer
containing the balls, and thereafter took out the money box.

[8] The second appellant denied having been present at the scene of the crime
on that fateful night. He was not certain how his finger and palm prints came to be
found at the scene but he did proffer an explanation. He testified that he was a
regular customer at the tavern and guessed (because he testified more than five
years after the incident) that his fingerprints landed on the money box either when
he was removing the balls from the pool table or when the money box was opened
by the owner during a visit to the premises. In regard to his palm print, he
explained that he had on one occasion accompanied friends when they visited the
deceased at his (deceased’s) home. During that visit he entered the Smith’s dining
room and may have walked passed or opened the window.

[9] I deal first with the case of the first appellant. Counsel for the first appellant
contended that the trial court and the full court erred in accepting and relying on
the evidence of Mr Phefo and Mr Moetaesi. He criticised Mr Phefo for not
immediately reporting what had been disclosed to him by the first appellant and
waiting three years before doing so. It was further contended that as Mr Moetaesi
was found to be an unreliable witness by the trial court, Mr Phefo was a single
witness and his evidence, before it can be accepted, should be clear and
satisfactory in all material respects. According to counsel for the first appellant, Mr
Phefo’s evidence did not meet the required standard.

[10] The trial court was alive to the fact that there were material contradictions
and inconsistencies between Mr Moetaesi’s evidence-in-chief, his evidence under

cross-examination and the statement he made to the police. The trial court
concluded that this impacted negatively on his credibility and his evidence should
be treated with caution.

[11] The trial court carefully considered the evidence of Mr Phefo and found that
he was a reliable and truthful witness. The alleged delay in this witness reporting
the ‘confession’ to the police was in fact misconstrued by the trial court. The
evidence does not point to any delay. Relevant portions of Mr Phefo’s evidence-in-
chief reads:
‘Now you only informed the police in 2008 of this information, why did you wait so long? --- I
reported this to one of the members of the policing forum and he was, - he then became friends
with them because he saw that they were winning their case.
But then how did it end up that you spoke to the police? --- The member of the policing forum
made me to meet the police here at Mafikeng Police station.
And then you informed the police of this information? --- Yes.
. . .
And the reason why it took you three years? --- I was afraid to give this information by betraying
my cousin.’
And later under cross-examination:
‘Okay sir. You testified that you told a member of the police community forum about what
accused 2 had told you about his involvement in this case, is that not so? ---Yes I told him.
Who is this person? --- Oupatjie Legwase.
And this Mr Legwase is a member of the police community forum at Miga? ---Yes.
When did you tell this thing to him? --- On 5 November 2005.
That would be the very same date you allegedly met accused 2 and he told you these things? ---
Yes.
What did he do … in response to what you told him? --- He made me to meet a captain of the
police at Mafikeng.’

[12] From a reading of the first question put by counsel for the State and referred
to above, it is clear there was an assumption on the part of counsel that the witness
only reported the ‘confession’ to the police in 2008. Under cross-examination, Mr

Phefo clarified that he had made a report to Mr Legwase the very day the
information was disclosed to him by the first appellant.

[13] The credibility finding made by the trial court in favour of Mr Phefo was
confirmed by the full court. The full court reasoned:
‘It is interesting to note that the two witnesses, Godfrey and Phefo, each testified about a
confession which was made to him alone but not in the presence of each other. In other words
Godfrey and Phefo were not together when they received the news. However, there are startling
similarities between their evidence. Despite that Godfrey was a poor witness, his version has to a
large extent been corroborated by Phefo.’

[14] In Magadla v S,1 it was pointed out that:
‘There is no magic formula to apply when it comes to the consideration of the credibility of a
single witness. The trial court should weigh the evidence of the single witness and consider its
merits and demerits and having done so, should decide whether it is satisfied that the truth has
been told despite the shortcomings or defects in the evidence.’
This was the test adopted by the trial court as well as the full court.

[15] The ultimate question to be decided is whether, in light of all the evidence
adduced, the evidence establishes the guilt of the first appellant beyond reasonable
doubt.  The full court assessed all the evidence and concluded:
‘When one looks at the cumulative effect of the evidence of these two witnesses [Mr Phefo and
Mr Moetaesi] as against that of second appellant, it becomes clear that his explanation of a total
denial is not reasonably possibly true.’
The approach and conclusion of the full court is unassailable and there is no merit
in the first appellant’s appeal.

[16] I now deal with the case of the second appellant. Counsel for the second
appellant argued that the inference of guilt was not the only reasonable inference

1 Magadla v S [2012] JOL 28415 (SCA); (80/2011) [2011] ZASCA 195 (16 November 2011) para 25; S v Sauls &
others 1981 (3) SA 172 (A); [1981] 4 All SA 182 (AD); S v Webber 1971 (3) SA 754 (A); [1971] 3 All SA 609 (A).

to be drawn from the finger and palm print evidence. It was contended that the
second appellant’s explanation that his ‘finger prints [may have] got on the money
box whilst I was removing … the snooker balls out of the snooker board’ or when
the money was collected by the owner and that his palm print may have been left
when he accompanied friends to the Smith residence, was reasonably possibly
true.

[17] The question on appeal is whether the full court, on the evidence before it,
was correct in upholding the trial court’s conclusion that the second appellant was
part of the group who gained entry to the complainant’s premises on the day of the
incident and had participated in the offences under consideration. The finger and
palm print evidence constitutes circumstantial evidence from which certain
inferences may be drawn. In R v Blom2 the Court distilled two cardinal rules of
logic for the drawing of inferences. First, the inference sought to be drawn must be
consistent with all the proved facts. If it is not, the inference cannot be drawn.
Second, 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 doubt whether the inference sought to be
drawn is correct. A court cannot convict an accused unless on the proved facts, the
inference of guilt is the only reasonable inference to be drawn. It is not sufficient if
the inference of guilt is merely a reasonable inference.3

[18] The first leg of the enquiry has clearly been met. The inference that the
second appellant was one of the robbers is consistent with the finger and palm
print evidence. The answer to the second leg depends upon the probative value to
be accorded to the second appellant’s finger and palm prints found on the money
box and the windowsill. Put differently, can it be said that the second appellant’s

2 R v Blom 1939 AD 188 at 202-203.
3 R v Sole 2004 (2) SACR 599 (Les) at 666G; S v Ntsele 1998 (2) SACR 178 (SCA) at 182B; (197/96) [1998]
ZASCA 49; [1998] 3 All SA 517 (A); S v Boesak 2000 (1) SACR 633 (SCA) para 13; (105/99) [2000] ZASCA 24;
S v Reddy & others 1996 (2) SACR 1 (A) at 8C-G; (416/94) [1996] ZASCA 55.

explanation as to how his finger and palm prints came to be on the scene is
reasonably possibly true?

[19] The full court, in dealing with this enquiry, agreed with the conclusions
reached by the trial court that the finger and palm print evidence point
conclusively to the second appellant’s presence at the Smith residence when the
incident occurred and that his version was not reasonably possibly true. The full
court reasoned:
‘In my view, the trial Court cannot be faulted in these findings. It was never put to Smith that in
her presence, when the money was taken out of the pool table, any customer may touch the
money drawer. Smith was the best and only witness who would have corroborated the version of
first appellant. In my view, it would be absurd, and a security breach, if any patron at the tavern
would touch the money drawer at any time. This drawer is inside the table for the sole purpose to
keep it away from the reach of customers. The evidence of first appellant relating to how a
fingerprint may be deposited on the money container was not put to W/O Nel also. This, despite
the fact that Nel explained fully how one’s print may be deposited on the money box.’

[20] The presence of the second appellant's fresh finger prints on the inside of the
window, soon after the robbery operates powerfully against him.4 It was not
disputed that the prints were fresh. The circumstances under which the prints were
found is damning. His finger prints were found on the money box – the very
container from which the money was stolen and which was not easily accessible.
His palm print was found near the window through which access was gained in a
position consistent with entry through the dining room window. In addition, the
explanation provided by the second appellant for his prints being on the scene, was
not satisfactory and cannot stand. His version is so remotely possible that it can
safely be rejected. His appeal must also fail.

[21] The appeal is dismissed.

4 R v Nksatlala 1960 (3) SA 543 (A) at 551E-G; [1960] 3 All SA 377 (A); S v Legote & another (206/99) [2001]
ZASCA 64; 2001 (2) SACR 179 (SCA).

_________________
L V Theron
Judge of Appeal

APPEARANCES
For Appellant:

NL Skibi
Instructed by:
Justice Centre, Mahikeng
Justice Centre, Bloemfontein

For Respondent:

MJ De Beer

Instructed by:
Director of Public Prosecutions, Mahikeng
Director of Public Prosecutions,
Bloemfontein