CRIMINAL

Facts: Ms H was raped in 2018 by a man she met through an online dating site. The man invited her to his home for a party, only to find out when she arrived that there was never a party, she was the only guest. Ms H suffered an ordeal at the hands of the man that night and later at the hands of the criminal justice system which accepted the version of perpetrator rather than that of the victim. The accused was acquitted as a result of the current legal position of the subjective belief test regarding the requirement of consent in rape cases.

Application: This application seeks to challenge the constitutional validity of certain sections of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 (the Act). The absence of consent is constituent in this matter, to the extent that the Act does not criminalise sexual violence where the perpetrator wrongly and unreasonably believed that the complainant consented to the conduct in question, therefore enabling the accused to successfully avoid conviction on the grounds of the subjective belief that consent was given.

Discussion: Currently, the standard of fault in sexual offences defined by lack of consent in terms of sections 3,4,5,6,7,8,9 and 11A of the Act is that of "intention", with no qualification as to the reasonableness of a mistaken belief in the presence of consent. The Act ignores the possibility of an objective test for fault, in respect of sexual offences defined by lack of consent. Consequently, an unreasonable belief in the presence of consent is a defence. The State bears the extraordinarily high burden to prove that the accused's claim that he was under the impression that consent had been given is not reasonably possibly true. For example, in a case where the complainant knew their attacker (which is the vast majority of cases of rape and other sexual violence cases), did not physically resist or loudly protest, or consented to some but not other intimate acts, this burden will, more often than not, be insuperable.

Findings: By enabling a defence of unreasonable belief in consent, the Act violates the rights of victims and survivors, to equality, dignity, privacy, bodily and psychological integrity, and freedom and security of the person, which includes the right to be free from all forms of violence and the right not to be treated in a cruel, inhumane or degrading way. Balancing the competing interests of victims of sexual abuse with the rights of an accused, as set out in the Constitution, an accused's rights to a fair trial will not be prejudiced in a prosecution if the required standard changes to an objective test. All that the suggested amendment to the law seeks to suggest is a test that will require a perpetrator to explain the objective steps he took to establish the presence or absence of consent prior to the alleged rape.

Order: Sections 3,4,5,6,7,8,9 read with section 1(2) of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 are declared unconstitutional, invalid and inconsistent with the Constitution to the extent that these provisions do not criminalise sexual violence where the perpetrator wrongly and unreasonably believed that the complainant was consenting to the conduct in question, alternatively, to the extent that the provisions permit a defence against a charge of sexual violence where there is no reasonable objective belief in consent.

BAQWA J

Facts and issue: The appellant was charged on two counts, namely, rape and robbery with aggravating circumstances. The appellant pleaded guilty to both counts against him. Thereafter, the appellant changed his plea and a plea of not guilty. The appellant was convicted on both counts, sentenced to life imprisonment for rape and 15 years for robbery with aggravating circumstances. This is an appeal against a sentence of life imprisonment on the conviction of rape.

Discussion: The appellant telephoned the complainant and informed her that he had a job for her and that they should meet. The appellant took the Complainant into an open veld where he produced an axe, with which he threatened her and proceeded to rape her twice. The appellant did not wear a condom during either of the rapes. He had also stolen the complainant's two cell phones. The victim impact report confirms that the complainant struggles to go to malls and to walk the streets. She continues to struggle with the trauma of being raped. Her eight-year-old child was removed from her care. By violating the complainant in the manner that he did, the appellant violated the complainant's constitutional right to freedom and security of her person.

Findings: By changing his plea from guilty to not guilty in the middle of the proceedings, the appellant showed no remorse, and this was correctly noted by the magistrate. The magistrate considered the appellant's personal circumstances, especially the fact that he is a married man and a father of three children. The magistrate correctly observed that by resorting to crime, the appellant placed his family in jeopardy. Counsel for the appellant conceded that the actions of the appellant indicated that he had most likely raped previously. Thus, if given a lesser sentence, one could reasonably assume that the appellant could be expected to rape again. The magistrate did not misdirect himself and the sentence of life imprisonment in the circumstances is not shocking, startling or disturbingly inappropriate.

Order: The appeal is dismissed.

Facts and issue: Application by the applicant to be admitted to bail, pending the finalisation of his criminal trial. The trial has lasted eight years, and the State is yet to close its case. The applicant can afford R10,000 bail. The charges include murder; conspiracy to murder; robbery aggravating; and unlawful possession of firearms. The bail application falls within the ambit of a schedule 6 offence, in that the applicant is burdened with establishing the existence of exceptional circumstances which in the interests of justice would permit his release on bail.

Discussion: The applicant was convicted of kidnapping, attempted murder and attempted dealing in drugs, in respect of which he was sentenced to an effective 15 years’ imprisonment. The affidavits of the applicant where he denies his involvement in the charge’s rests solely on his say-so that the witnesses who have already testified have not incriminated him. The outstanding criminal matters alluded to by the investigating officer provides relevant information for the court to assess and determine the bail application, in deciding whether the applicant is a flight risk and a danger to the community. The applicant has a disposition to violence which is evidence from the current matter as well as all the other outstanding matters. The previous convictions of drug dealing, kidnapping and attempted murder further confirms this. The applicant states that there is insufficient evidence to convict him, whereas the respondent argues there is strong evidence against him. The respondent’s counsel did concede that in respect to counts three, four and five there is no case against the applicant. However, in respect to the remaining charges, the respondent’s counsel stated that there is a strong case against the applicant.

Findings: There is no reason for the court not to believe the respondent’s counsel or to find that the respondent’s counsel has misrepresented to the court that there is a strong case against the applicant on the remaining charges. The likelihood of the applicant not standing his trial is high due to certain factors including that there appears to be a strong prima facie case against the applicant. It appears that not all the State witnesses have testified yet. Should the applicant be convicted in the trial, he would most likely be sentenced to a few terms of life imprisonment. Further, the applicant does not own any substantial assets. The court does not find any exceptional circumstances that warrant the applicant to be released on bail. The court finds that should the applicant be released, he will undermine the proper functioning of the criminal justice system, including the bail system and that he will disturb the public peace.

Order: Bail is denied.

Facts and issue: The accused was charged with housebreaking with the intent to rob and robbery with aggravating circumstances and murder. The accused pleaded not guilty to all of the charges against him. The deceased stayed alone and was a trusted businessman having a motor spares business. He had a domestic worker with the name of Adila and a gardener with the name of Patrick. The deceased’s domestic worker found the deceased dead on the floor.

Discussion: The fingerprint of the accused was lifted from the bedroom door frame, and it was facing down on the very day the offence was committed or at the outer parameter the day immediately following the killing of the deceased; this fact was not in dispute. In essence, the print was either lifted from the doorframe at the bedroom or it was not. This is crucial because the accused himself, under cross-examination stated clearly and unequivocally that it was impossible that his fingerprint was lifted there because he was not required to work in the bedroom. The accused was contradicting himself in material respects about this crucial piece of evidence. The accused stated under oath and under cross-examination that he was not working in the bedroom and therefor it is impossible for his fingerprint to be lifted from the doorframe at the bedroom. He underpinned this categorical say so that it is impossible for the fingerprint to have been found there, because he did not work in the bedroom. He only worked in the bathroom because that is where the geyser was and that is where he worked. During cross-examination by the state, he changed direction which is diametrically opposed to his earlier evidence that he was not required to work in the bedroom only to work in the bathroom where the geyser was. Suddenly, he worked inside the bedroom.

Findings: The court finds that he did not work inside the bedroom but ransacked the place as depicted in the horrific images taken by a police expert photographer. And that is where his fingerprint was lifted. The court found that any doubt about the admissibility and authenticity of his fingerprint were removed beyond any reasonable doubt by the accused himself during cross-examination. The fingerprint expert was adamant that the accused fingerprint was lifted from the doorframe of the bedroom and nowhere else. The guilt of the accused was in fact proven guilty beyond reasonable doubt.

Order: The accused is found guilty of housebreaking with the intent to rob and robbery with aggravating circumstances.

Facts and issue: The issue before the court is whether a criminal trial can commence whilst a review application is pending. The review application is to challenge and set aside the decision of the National Director of Public Prosecutions (NDPP) to prosecute Mr Nthai. It is contended that the outcome of the review application will have a bearing on the criminal trial. Should the accused be found guilty and be sentenced to a term of imprisonment, it will cause the accused irreparable harm in that the accused’s constitutional rights would be infringed.

Discussion: The Bill of Rights, including s 35 of the Constitution, which protects the rights of arrested, detained and accused persons, can be limited. The current matter warrants such limitation. There is no prejudice to the accused should the criminal trial proceed whilst the pending review application is pending. The accused has filed all his papers and in the absence of an answering affidavit being filed this matter will proceed to the unopposed roll. Therefore, there will be no further time wasted. The main grounds for the accused’s reason to stay the prosecution is mainly that the grounds for review are strong and to run the review application parallel to the criminal trial will disable him to prepare adequately for the criminal trial. The court disagrees. The accused has been aware of the charges since the indictment was served on him. In addition, since the pre-trial was held on 14 March 2024 and a fresh discovery of the docket was handed to his present counsel, namely, Advocate Kolbe, the accused has been aware of the contents of the docket and has everything he needs to proceed to trial.

Findings: The court finds no egregious behaviour on the part of the prosecution to commence the trial and neither does it find any irreparable trial-related prejudice to the accused. The grounds alluded to by the accused not to proceed with this criminal trial are speculative and not definitive. There are also no grounds to suggest any misconduct or vexatiousness on the part of the prosecution or any ulterior motive to prosecute the accused. Should there be any defective aspects pertaining to the charges brought by the DPP, these are all aspects that can best be challenged once the trial has commenced and evidence has been adduced. In the absence of any exceptional circumstances, the remedy of a stay of the prosecution, pending a review application, is simply not competent.

Order: The matter is accordingly postponed for the accused to plead and for the criminal trial to commence.

Facts: The deceased’s body was found inside his bedroom, with his mouth stuffed and with neckties around his neck. Investigations by the police revealed that the bank card of the deceased was used at an ATM in a garage at KwaZulu-Natal. The video footage of this garage showed the appellant drawing the money at that ATM. The tracker, which was fitted onto the vehicle of the deceased, led the police to where he was found in possession of the deceased’s vehicle, together with the deceased's belongings, amongst others, his house key and a wristwatch.

Appeal: The appellant was sentenced to life imprisonment in respect of murder, 15 years’ imprisonment for robbery with aggravating circumstances, and two years’ imprisonment for theft. The appeal is limited to the murder and the robbery with aggravating circumstances convictions. It was contended that: the evidence did not establish beyond a reasonable doubt that the murder was premeditated; and that the appellant formed the intention to take the deceased’s belongings after the assault, and so he should have been convicted of theft.

Discussion: The appellant had made a statement to Colonel Makamu where he described how he had been dating the deceased, that they had been drinking that day, and got into a fight, and that the deceased’s head hit the wall. Counsel for the appellant submitted that there was no evidence of prior planning or premeditation on the part of the appellant. The attack on the conviction of robbery with aggravating circumstances is that a possibility exists that the intention to misappropriate the deceased’s belongings was formed after the deceased was killed, or at least, after the appellant believed the deceased to be dead.

Findings: The way that the deceased’s mouth was stuffed and the way that he was tied up is also a signal of the intention not only to kill, but of a well-orchestrated plan. In addition to being incapacitated, the appellant locked the door of the deceased’s bedroom and the butler door leading to the outside. There is no doubt that on the facts of this matter, there are overwhelming proven facts whereupon the High Court could infer premeditation. The argument in relation to the conviction of robbery with aggravating circumstances is misplaced. The evidence is clear that the deceased was not only assaulted, but his hands and feet were tied up. Tying is another form of overcoming resistance from a victim, and this took place in this case before the property of the deceased were taken. What took place clearly amounts to robbery with aggravating circumstances.

Order: The appeal is dismissed.

KGOELE JA (MABINDLA-BOQWANA JA and MANTAME AJA concurring)

Facts and issue: The applicants apply for bail pending appeal, after the court convicted them on various offences, 32 in number. The court convicted the accused on several counts, and sentenced each of them to life imprisonment, and various imprisonment terms. After imposing sentences, the court granted all the applicants leave to appeal against both conviction and sentence. The applicants embarked on a wide and wild spree of armed bank robberies, spanning over a period of several months until they were eventually arrested.

Discussion: The offences the applicants were convicted of, lend them within the purview of Schedule 5 of the Criminal Procedure Act 51 of 1977, because they have not only committed, but have been convicted of offences referred to in section 2 of the Prevention of Organized Criminal Act of 1998. The applicants have all stated that were they to be admitted to bail pending appeal, they will surrender themselves to the authorities, were their appeal to be unsuccessful. This supposition must be looked at through the glass prism which reflects the future. Such glass prism first reflects the previous conduct and then reveals the future conduct of the person projected into the future. The first applicant, has a previous conviction of armed robbery, having served portion of his sentence, then was deported to Zimbabwe, but returned to South Africa illegally, and thereafter embarked on the wide and wild spree of armed bank robberies, which landed him before this court.

Findings: Some of the applicants are immigrants. Most of them are repeat offenders. They all colluded with one another in the respective robberies they were convicted for. They are all not satisfied with the prison conditions and can afford bail in the amount of R10,000 / R5,000.00 or less. The amounts they can afford are too meagre to compel them to return to prison. Releasing them on bail will cause the indignation of society, regard being had to their sentences. They have not satisfied the court that it is in the interest of justice that they be released on bail.

Order: The application for bail pending appeal in respect of all applicants is dismissed.

Facts: The appellant is charged with murder. The appellant shot and killed the deceased. The appellant alleges that he acted in self-defence after he discovered his wife in a compromising position in the company of the deceased. He shot the deceased when he was attacked by the deceased. The wife of the appellant is the only eyewitness to the events leading to and the shooting itself. The wife addressed an email to the attorney of the appellant eliciting his assistance to draft and formulate an affidavit in support of bail being fixed for the appellant. The attorney obliged and drafted a pro forma affidavit that was forwarded to her under cover of an email for her approval. Several emails followed between them until the wife was satisfied with the wording of the affidavit which she approved and deposed to. The legal representative of the appellant presented the said affidavit together with certain emails, purportedly exchanged between the attorney and the wife, together with an affidavit deposed to by the appellant, as evidence on new facts.

Appeal: This appeal is against the refusal to admit the appellant to bail on two occasions. The first application for bail was refused on the basis that no exceptional circumstances exist which in the interest of justice permit the release of the appellant. The second application was also unsuccessful.

Discussion: The new facts relied upon by the appellant in support of his application emerged mainly from an affidavit deposed to by the wife in which she has indicated that she has no objection to him being released on bail provided that certain conditions are imposed. The investigating officer was called by the prosecution in opposition of the application. She and the prosecutor were caught by surprise by the contents of the affidavit. She mentioned that the attorney for the appellant informed her on a previous occasion at court that he is in possession of an affidavit deposed to by the wife.  She was never given a copy of the affidavit nor was she afforded sight thereof prior to the application. The investigating officer also insinuated that the change in the attitude of the wife within two days after the first application was dismissed can be attributed to a visit paid to the wife by the attorney. The allegation was denied by the attorney. The legal representative on behalf of the appellant was requested to address the court on the question whether a gross irregularity has been committed because of the consultation with a state witness, without the knowledge or the consent of the prosecutor, to draft an affidavit for her in support of a bail application by the appellant, on new facts. It was contended that communication was initiated by the wife and that there was no consultation with her.

Findings: An accused person may consult with state witnesses if the consultation is justified to ensure a fair trial. The consent of the prosecuting authority should be obtained, but, if consent is refused then the court may on application grant permission. An accused does not have complete freedom to consult with state witnesses, with or without their consent. The attorney was aware of this ethical obligation when he commenced communication with the wife. He should immediately have informed the prosecutor that he was approached by the wife to have the appellant released on bail and that he needed to consult with the wife in connection therewith, prior to exchanging emails with her on the topic. The attorney acted improperly. It matters not that he communicated by means of emails. The attorney was aware that the wife is a crucial eyewitness who was present during the shooting incident. His continued engagement with the wife without informing her or the prosecution until an acceptable affidavit was formulated is a gross irregularity and a breach of his ethical duty. The consultation without the knowledge of the prosecutor falls within the prohibition provided for by the provisions of section 60(14) of the Criminal Procedure Act 51 of 1977. Unrestricted access to state witnesses by accused persons in serious cases may allow for intimidation, undue influence and undue pressure being exerted on them.

Order: The appeal is struck from the roll. The proceedings conducted in the bail application on new facts by the appellant are set aside. The application for bail on new facts is referred back to the magistrate for hearing before another magistrate. The registrar is directed to forward a copy of this judgment to the Legal Practice Council.

MULLER J

Facts and issue: The appellant was arraigned in the Regional Court on two counts, he pleaded not guilty and was convicted of rape. The appellant was sentenced to undergo life imprisonment. This appeal concerns sentence of life imprisonment only. The victim is a 24-year-old woman with mental disability. According to a psychologist who assessed the victim, said the victim mental age is on the level of 3 years and 9 months old child while she is 24 years old indicating profound intellectual disability. She was impregnated because of the rape and DNA result proved that the appellant is the father of the child.

Discussion: In aggravation of sentence, the State contended that the appellant impregnated a mentally disabled woman, a vulnerable member of the society and who is now burdened with a child. The appellant did not show any remorse despite overwhelming evidence against him. The seriousness of this rape is compounded by the fact that the appellant raped a 24-year-old woman who had the mental age of a 3-year-old and who was unable to defend herself or call for help. The appellant had impregnated her as a result of the rape. The submission that the court a quo did not consider the four objectives of punishment and misdirected itself by not finding that the appellant can be rehabilitated without sentencing him to a term of imprisonment is unsustainable. In serious cases like the rape in this case deterrence and retribution must play a major role as to rehabilitation of the offender.

Findings: Having considered the factors in the case, there is no misdirection on the part of the court a quo in imposing the sentence of life imprisonment. The sentence is not disturbingly or shockingly inappropriate and is undoubtedly one befitting the crime committed by the appellant. No interference will be justified with the trial court’s exercise of its discretion in imposing the sentence of life imprisonment.

Order: The appeal against sentence is dismissed.

Facts: The appellant is a practising attorney. The State’s witness, Ms Brits, was a clerk of the civil court at Ermelo Magistrate Court at the time when the incidents occurred. Her duties, according to her, were amongst others, issuing of Emolument Orders in terms of Section 65J of the Magistrates Courts Act 32 of 1944. The appellant and Ms Brits were friends. Ms Brits recommended the appellant to Bayport, to act as their correspondence attorney in matters to be dealt with in terms of section 58 of the Act at the court. Subsequent thereto, the appellant acted as correspondence of Bayport and brought thousands of files to Ms Brits who then granted judgments. The appellant would give Ms Brits money, pay her debts, including paying for her rent, car instalment and even giving her a bank card to use as her own. The appellant was convicted in the Regional Court for corruption in contravention of section 4(1)(b)(ii)(aa) of the Prevention and Combating of Corrupt Activities Act 12 of 2004 and sentenced to five years' imprisonment.

Appeal: Aggrieved by the conviction, the appellant applied for leave to appeal the conviction in terms of section 309(1)(a) of the Criminal Procedure Act 51 of 1977 and the application was granted. The appeal concerns the conviction only. At issue is whether the court a quo treated the evidence of a single witness, Ms Brits, who is also a section 204 witness or accomplice, with caution and whether the State proved its case beyond reasonable doubt.

Discussion: Regarding the issue of the section 204 witness, the court a quo made a finding that the witness, Ms Brits, did not answer questions honesty and truthfully and subsequent thereto the witness was not granted immunity. It is correct to say that the witness did not answer questions that implicated her, hence the court found that she did not answer questions honestly and truthfully. Does it mean, therefore, that the whole evidence of the witness must not be accepted, simply because she did not tell the truth on certain aspects? The answer is in the negative. The court a quo considered the evidence in its totality to convict, it did not consider the evidence on a piece-meal approach or considered certain evidence in isolation. Consequently, it makes sense that indemnity in terms of section 204 was denied on the basis that some of the evidence of Ms Brits was found to be false and unreliable and some of her evidence was found to be reliable. The court a quo’s approach to the evidence is supported by the decision of S v Kuyler 2016 (2) SACR 563 (FB), which the court agrees with.

Findings: There must be sufficient corroboration for the witness testimony that indeed a corrupt relationship between her and the appellant existed. The court a quo found that there was such a relationship, and its finding is based on the fact that a mutual beneficial relationship existed in the sense that the appellant was giving Ms Brits money, paying for her car, rented her house, paid school fees and had even given her a banking card to utilise unrestricted during holidays. The explanation that the appellant proffered for her financial support to Ms Brits, was that the money was for a loan which was duly repaid in cash. The appellant as an attorney knew or ought to have known that Ms Brits, who was put under administration, would not be able to repay a loan of the magnitude of money she was giving to her. The appellant is not in denial that the files were taken to her place and put into a rondavel. These files were immediately removed and taken to the magistrate's office, after it emerged that there were investigations over them. There would never be a need to remove the files if there was nothing illegal happening about them. There is no doubt as to the correctness of the court a quo’s factual findings. The State proved the guilt of the appellant beyond reasonable doubt.

Order: The appeal against conviction is dismissed.

MANTHATA AJ (MASHILE J concurring)

Facts: The two appellants stood trial in magistrate's courts facing different criminal charges before different magistrates. The first mentioned appellant (Mr Oosthuizen) was charged in the Regional Court Division of Gqeberha. The second mentioned appellant (Mr Van Straten) was charged in the Magistrate’s Court for the district of Joubertina. Mr Van Straten stood trial on charges of violating a protection court order, amongst others. Mr Oosthuizen stood trial charged with fourteen counts of fraud and 13 counts of forgery. The court records in both matters are partly in English and partly in Afrikaans. In the matter of Mr Oosthuizen, 90% of the record is in Afrikaans and in the matter of Mr van Straten, about 20% of the record is in Afrikaans. Furthermore, the record in respect of Mr van Straten is incomplete having 19 pages of his evidence missing.

Appeal: Mr Van Straten was convicted on counts 1 to 3 and sentenced to undergo 5 years’ imprisonment. With leave of that court, the appeal is against convictions only. Mr Oosthuizen was convicted on fourteen counts of fraud. On fraud conviction, he was sentenced to 5 years’ imprisonment wholly suspended conditionally for a period of five years. With leave of the magistrate, the appeal is against convictions only. At the hearing of these matters, concerns were raised about the records of the court proceedings which were partly in English and partly in Afrikaans.

Discussion: Mr Landman, who represented Mr van Straten, brought it to the attention of the magistrate that he had "heard that everything must now be done in English, we can go as far as we can in English." The response to this by the magistrate was, "No, one cannot just go on in English and take away his right to speak Afrikaans. If he wants to speak Afrikaans, he can speak Afrikaans." The magistrate missed the point. He knows full well that he has a duty to get an interpreter to interpret the language spoken by the accused or witness, as the record should be in English. Mr van Straten was entitled to speak Afrikaans as long as the same would have been interpreted into English for record purposes. This is what happens when a person speaks in IsiXhosa or isiZulu. The same would apply to any one of the other official languages. The Heads of Courts Committee on court language policy established in 2003 saw it fit to recommend that English be the court language of record. This was adopted as a resolution by the Heads of Court under the auspices of the Chief Justice in March 2017.

Findings: Considering the authority of Heads of Courts, including the Chief Justice, to manage and give guidance in the running of courts in the Republic, the resolution is binding on courts and should be treated as such in the absence of a language policy from the Executive. The situation will be out of control if a Venda or Xhosa speaking person were to be allowed to insist that the proceedings be recorded in Venda or Xhosa simply because the presiding magistrate happens to understand the language. The record of the proceedings is not meant for Venda speaking judges but judges consisting of different races. The directive is in line with the common language spoken by most persons in South Africa. It is not enough for the judicial officer to write the judgment in English. To hear these matters, even though there is resolution by the Heads of Courts, would have been tantamount to undermining that resolution. The point is not about the use of the Afrikaans language by the parties involved, but it is the principle which must be applied to all cases. In all those cases where the witnesses give evidence in IsiXhosa (which is the predominate language in the Eastern Cape Province) an interpreter is used, and the court record is in English. There should be no exceptions in this regard.

Order: Both matters are struck from the roll. The respective magistrates are directed to ensure that portions of each record recorded in Afrikaans are translated into English. The matters may not be re-enrolled until such time as the directive has been complied with.

TOKOTA J (MULLINS AJ concurring)

Facts and issue: The judgement of the trial court found there to be no proof that the appellant was ever in either physical or constructive possession of firearms but still found a way to convict him of two counts of murder and three counts of attempted murder which offences were ostensibly committed through the utilization of the same firearms the appellant never possessed. This is an appeal against the appellant’s conviction.

Discussion: Assuming that there is acceptable evidence to prove that there was a plan by other occupants of the Ford Ranger to commit robbery on the day of the incident which assumption itself is shrouded in a lot of doubt because its basis is purely hearsay from probable police informers, there is simply no evidence that the appellant was part of such a plan. The information not really evidence that the occupants of the Ford Ranger intended to rob a cash in transit van on the day plays, as hearsay, a decisive role in convicting the appellant of conspiracy to commit robbery. Certainly, mere presence in that motor vehicle, is not in itself, that is, absent any other evidence proof of the appellant's involvement in the "conspiracy". The conviction of the appellant for the offence of conspiracy to commit robbery is indefensible and must be interfered with. The trial court found there to be no evidence to sustain the charges of unlawful possession of firearms and ammunition against the appellant. It still however found the appellant guilty of attempted murder as regards shooting at the police ostensibly with a firearm or firearms.

Findings: The contradictory findings which are lamented supra as oscillating between thesis and anti-thesis for it is incongruent how one who is found not to have been in possession of a firearm could in the same vein be found to have used that firearm to commit an offence. Not even the common purpose doctrine allegedly relied upon by the trial court can assist anyone in breathing harmony to these two mutually destructive findings by the trial court because whether the accused persons acted in concert or not cannot explain how the appellant would have used a firearm while being in neither physical nor constructive possession thereof. The conviction of the appellant for the three attempted murder charges is a wrong decision susceptible to interference with on appeal. The trial court's decisions on the questions of fact and law identified supra were decisions which were wrong and led to a failure of justice as per section 322 of the Criminal Procedure Act 51 of 1977 such that the appeal must be allowed.

Order: The appeal succeeds. The appellant is found not guilty in respect of counts 2, 3,4,5,6 and 7. He is accordingly discharged.