THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No: 20738/2014
Reportable

In the matter between

SIMON MODIGA

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation: Modiga v The State (20738/14) [2015] ZASCA 94
(01 June 2015)

Coram:
Bosielo and Saldulker JJA and Van der Merwe AJA

Heard:
13 May 2015

Delivered: 01 June 2015

Summary: Criminal appeal against convictions and sentences –
appellant convicted on multiple counts – whether the
appellant was a member of the gang of robbers – evidence
by a single witness – circumstantial evidence – adequacy of
the evidence.

___________________________________________________________

ORDER
___________________________________________________________

On appeal from: North Gauteng High Court, Pretoria (Claasen, Pretorius
and Makgoka JJ sitting as a court of appeal):

The appeal succeeds partially as follows:
1 The appeal against the convictions in respect of counts 1, 2, 6 and 7 is
dismissed. The convictions and the sentences imposed are confirmed.
2 The appeal against the convictions in respect of counts 3 and 4 is
upheld. The convictions and the sentences in respect of counts 3 and 4 are
set aside.

___________________________________________________________

JUDGMENT
___________________________________________________________

Bosielo JA (Saldulker JA and Van der Merwe AJA concurring):
[1] At approximately 12h30 on 17 December 2007, a cash-in-transit
heist took place on the Visgat Road near Vereeniging. A vehicle
belonging to Fidelity Cash Management Services (Fidelity Guards) was
on its way to its depot in Vanderbijlpark having collected money from
Rand Water Board when a group of men waylaid and forced it out of the
road. A number of men descended onto it and snatched the money
containers. Two stolen vehicles, a Mercedes-Benz and a Mazda Drifter
were used in the robbery. Reacting to a radio report, Sergeant Robert
Henry Deere (Deere) who was doing patrol duties in the area drove to the
scene. Whilst en route to the crime scene he observed a Mazda Drifter

and a Toyota Cressida driving away from the Fidelity Guards‟ motor
vehicle which was parked alongside the road. As these vehicles passed
him, some passengers at the back of the Mazda Drifter shot at him. He
made a U-turn and chased them. A wild chase concomitant with some
shooting ensued. Later that day, four males including the appellant were
arrested by police officers in an area called Drie Rieviere.

[2] Subsequently, all the five men were charged in the Vereeniging
Regional Court, with multiple offences which included two counts of
robbery with aggravating circumstances in that firearms were used; two
counts of theft of motor vehicles (the Mercedes-Benz and the Mazda
Drifter); attempted murder of Deere; unlawful possession of a machine-
gun (AK47); unlawful possession of ammunition for a machine-gun;
unlawful possession of firearms and unlawful possession of ammunition.
The appellant was convicted on two counts of robbery, two counts of a
contravention of s 37(1) of the General Law Amendment Act 62 of 1955
(involving the Mercedes Benz and Mazda Drifter), unlawful possession
of a machine-gun (AK47) and unlawful possession of ammunition for a
machine-gun. He was sentenced to a cumulative sentence of
imprisonment for 45 years.

[3] Aggrieved by his convictions and sentence, the appellant appealed
to the North Gauteng High Court, Pretoria. His appeal succeeded partially
in that, although his convictions were confirmed, his effective sentence
was reduced to imprisonment for 22 years. The court a quo having
granted him partial leave to appeal against counts of theft of motor
vehicles, this appeal is with the leave of this Court.

[4] I interpose to state that a series of formal admissions were made in
terms of s 220 of the Criminal Procedure Act 51 of 1977 (CPA) in terms
whereof all the averments regarding the robberies, theft of motor
vehicles, possession of firearms and ammunition were admitted. The only
issue placed in dispute was the involvement of the appellant in these
offences. As a result, this appeal falls to be decided on a narrow compass
namely the identity of the appellant as a member of the gang of robbers
which robbed the Fidelity Guards that day.

[5] Although the respondent called a number of witnesses, who
included police officers, a security officer and the owners of the stolen
vehicles and, importantly, the owner of the house where the appellant was
eventually arrested by the police, only two witnesses implicated the
appellant. These were Deere, the police officer who arrived first at the
crime scene and Mr Saul Nxuma (Nxuma), the owner of the house where
the appellant was arrested.

[6] I interpose to state that the trial court found the evidence of Deere
unreliable as he had contradicted himself on material aspects of the case
and therefore his evidence was rejected. It suffices to state that this
finding is fully borne out by the record. As a result, I cannot quibble with
it. Self-evidently there is no need to refer to his evidence. This resulted in
Nxuma being a single witness regarding the appellant‟s involvement in
the crimes. Undoubtedly, as the evidence of Nxuma was pivotal to the
conviction of the appellant, it called for a cautious approach and serious
consideration.

[7] The general tenor of Nxuma‟s evidence is as follows: that he is the
owner of house number 22 Wallnut Street, Drie Riviere; on 17 December
2007, he was at his home with his four year old boy; whilst relaxing in his
bedroom, he heard a commotion and screeching of tyres of a vehicle
outside his home in the street; instinctively he peeped through his
window to see what was happening; he saw a cream white bakkie with a
green stripe on the side at the intersection; there were some  males on the
back of the bakkie who had fire-arms; the bakkie then made a U-turn and
he lost sight of it. On the evidence as a whole this was the Mazda Drifter.

[8] Thereafter  he heard  footsteps inside his house; he moved down to
the ground floor from the upper floor to see what was happening; he was
met by an unknown  male who had a plastic bag and a long fire-arm in his
hand; this unknown man pointed the firearm at him and bellowed
„hamba-hamba‟ (walk, walk); shortly thereafter a second unknown  male
emerged into the passage and bumped against the two of them; Nxuma
lost his balance and fell; he then stood up and fled to the outside through
his sitting room door where he found a number of police officers.

[9] He told the police officers that he had left his son inside the house
and that there were unknown people inside. He then re-entered his house
with one policeman to fetch his four year old son; they found the
appellant on the kitchen floor holding the child; he took the child from
the appellant and went outside with him; the police then arrested and
hand-cuffed the appellant; they then took him to their vehicle.

[10] It is clear from the record the main purpose of Nxuma‟s cross-
examination by the appellant‟s counsel was to discredit him by showing,

contrary to his denial, that he and the appellant were acquaintances before
this incident, and further that Nxuma was part of the gang of robbers.
However, Nxuma persistently denied all suggestions by the appellant‟s
counsel during cross-examination that he knew the appellant and that they
were acquaintances; he also denied that the appellant had visited him on
the morning of the robbery to fetch R3 000 to pay for motor vehicle parts
which he had sold to him; he furthermore denied suggestions by the
appellant that he was involved in the robbery.

[11] The appellant testified in his own defence. Although he admitted
that he was arrested by the police inside Nxuma‟s house, he denied that
he was part of the gang of robbers; he explained that he came to Nxuma‟s
home at his request. His version was that he was a friend of Nxuma as
they were both taxi drivers and from time to time they sold motor vehicle
parts to each other. They had known each other for approximately 10
months before this date. On this day, Nxuma came to his home in
Pimville, Soweto to fetch certain motor vehicle parts. As Nxuma did not
have money to pay him, he requested him to accompany him to his home
to fetch the money as apparently one of Nxuma‟s drivers would bring him
money during the day. He explained further that he had been to Nxuma‟s
home before and even went to the house of Spokes, the younger brother
to Nxuma.

[12] In an attempt to show that he knew Nxuma and that they were
acquaintances, he recounted intimate knowledge to the effect that he
knew his brother called Spokes, who was also a taxi driver as well as his
son Jomo, who drove a taxi for Spokes, and Nkosana. He also testified
that he knew that Nxuma had had marital problems with his wife whom

he later shot and further that after this tragic incident, he tried to commit
suicide.

[13] As indicated above, when confronted with this information during
cross-examination, Nxuma steadfastly denied knowing the appellant. On
being pressed by the appellant‟s counsel, he stated speculatively that
possibly the appellant learnt all his personal information from his younger
brother Spokes with whom he did not have a good relationship.

[14] In contradistinction, the appellant testified that Nxuma was part of
the gang of robbers; that he saw him in the house talking to two men, one
of whom had a bag and, further that when he went down from the upper
floor, he saw Nxuma in possession of that bag and, that he appeared
nervous.

[15] As already indicated the appellant admitted that he was arrested
inside Nxuma‟s home by the police and that money was found in plastic
bags bearing the name Fidelity Guards inside a larger plastic bag and
further that a long firearm was also found. According to the evidence this
firearm was an AK 47.

[16] It is clear from the record that the appellant had serious difficulties
to explain why, if he suspected that Nxuma was part of the gang of
robbers he did not tell that to the police when they arrested him instead of
arresting Nxuma. His response is that he did not want to get Nxuma into
trouble. It also came to light during cross-examination that even after he
had voluntarily elected to make a warning statement, he still failed to

disclose this crucial information, as well as the fact that he had seen
Nxuma talking to the robbers and further that Nxuma had been holding
the bag which contained money belonging to Fidelity Guards. His
response was that he was advised by his lawyer, Mr Pienaar not to
disclose too many details. Furthermore, the appellant could not give any
reasonable explanation why when Nxuma denied that they were
acquaintances at his home during the arrest, he did not controvert that.

[17] In evaluating all the evidence, the trial court made positive findings
regarding Nxuma‟s credibility and the reliability of his evidence.
Conversely, it found that the appellant‟s evidence was riddled with
material   contradictions and improbabilities. In particular, the trial court
found the following to be inherently improbable; that faced with the grim
reality of an arrest on such a serious charge, the appellant failed to tell the
police that Nxuma was the person involved with the robbers; he failed to
disclose this to the police at the critical moment when he was arrested for
a crime which  he did not commit; that he did not tell the police because
he did not want to get Nxuma into trouble, that even when the police told
him that Nxuma  denied that he knew him, he did not tell them how he
knew him; that he only disclosed this crucial information much later
during his bail application; even in his warning statement which he
admitted that he made freely and voluntarily, he never informed the
police officer that Nxuma was involved in the robbery and that he saw
him in possession of the bag wherein money belonging to Fidelity Guards
was found; that he did this because his lawyer, Mr Pienaar had advised
him not to say a lot in his statement.

[18] Before us, the appellant‟s counsel unleashed a three-pronged attack
against the judgment of the trial court. Firstly, he submitted that the trial
court erred in relying on the evidence of Nxuma, who was a single
witness, without applying the cautionary rule. It was contended that
Nxuma did not pass the litmus test for a single witness as laid down in
R v Mokoena 1956 (3) SA 81 (A) as he contradicted himself on material
aspects of the case. However the appellant‟s counsel conceded, correctly
in my view, that the Mokoena judgement has been qualified by S v Sauls
and Others 1981 (3) SA 172 (A). Secondly, it was contended that
Nxuma‟s demeanour left much to be desired as his eyes were shifty
whilst testifying; that he was long-winded and evasive with his responses.

[19] Thirdly, relying on S v Texiera 1980 (3) SA 755 (A) the appellant‟s
counsel criticised the state for having failed to call essential witnesses
namely Nxuma‟s wife, his brother Spokes or his son, Jomo to corroborate
Nxuma. He urged us to draw an adverse inference against the respondent
for such inexplicable failure. In conclusion, the appellant‟s counsel
submitted that, absent any rebutting evidence from the state, the
appellant‟s version should have been accepted as being reasonably
possibly true and that he should have been acquitted

[20] Regarding counts 3 and 4, the appellant‟s counsel submitted that
the trial court erred in finding the appellant guilty for being in unlawful
possession of stolen property without reasonable cause in terms of s 37 of
the General Law Amendment Act 62 of 1955 as there was no evidence
that the appellant was found in possession of the two vehicles involved in
the robbery. It was contended that the admissions made in terms of s 220
of the CPA to the effect that the two vehicles which were used in the

robbery where the appellant was involved were stolen was not sufficient
to justify the conclusion that he possessed them. In short, the appellant‟s
counsel submitted that the legal elements of detentio and animus
possidendi were not proved.

[21] On the other hand, concerning the two counts of robbery, the main
submission by the respondent‟s counsel was that, as no misdirection had
been shown on the part of the trial court, this Court was precluded by the
authority of R v Dhlumayo & another 1948 (2) SA 677 (A) from
interfering with its factual and credibility findings. It was contended
further that, although Nxuma was a single witness, he gave his evidence
in a clear, logical and satisfactory manner. It was submitted further that
the presence of the Mazda Drifter in Nxuma‟s garage, the bag containing
money identified as belonging to Fidelity Guards as well as the AK47
created overwhelming circumstantial evidence which justified, as being
the only reasonable inference against the appellant that he was part of the
gang of robbers. The respondent‟s counsel concluded that the appellant‟s
version was so interspersed with serious contradictions and inherent
improbabilities that it could not be reasonably possibly true.

[22] Regarding the contravention of s 37(1) of Act 62 of 1955, the
respondent‟s counsel contended that the s 220 admissions by the
appellant to the effect that the two motor vehicles in issue were stolen and
further that they were used in the robbery where the appellant was
involved, constitute sufficient proof of possession by the appellant. He
contended further that it makes little or no difference that, having rejected
the evidence of Deere, there is no evidence that the appellant was the
driver of any of the two vehicles. It is sufficient that he was part of the

robbery where the two vehicles were used to facilitate the robbery, so the
contention went.

[23] It is trite that as a court of appeal we have to show deference to the
factual and credibility findings made by the trial court. This is so as the
trial court has had the advantage which an appeal court never has of
hearing and observing the witnesses as they testify and under cross-
examination. As it was stated in R v Dhlumayo (supra) at 705 „the trial
court is steeped in the atmosphere of the trial‟. A court of appeal may
only interfere where it is satisfied that the trial court misdirected itself or
where it is convinced that the trial court was wrong. R v Dhlumayo
(supra) at 705-706; S v Artman & another 1968 (3) SA 339 (A) at 341E-
H; S v Hadebe & others 1998 (1) SACR 422; [1997] ZASCA 86 (SCA) at
426a-f.

[24] Confronted with a similar argument in Hadebe (supra) this Court
enunciated the correct approach to resolving such a problem as follows at
426e-I, with reference to Moshesi & others v R (1980-1984) LAC 57 at
59F-H:
„The question for determination is whether, in the light of all the evidence adduced at
the trial, the guilt of the Appellants was established beyond reasonable doubt. The
breaking down of a body of evidence into its component parts is obviously a useful
aid to a proper understanding and evaluation of it. But, in doing so, one must guard
against a tendency to focus too intently upon the separate and individual parts of what
is, after all, a mosaic of proof. Doubts about one aspect of the evidence led in a trial
may arise when that aspect is viewed in isolation. Those doubts may be set at rest
when it is evaluated again together with all the other available evidence. That is not to
say that a broad and indulgent approach is appropriate when evaluating evidence. Far
from it. There is no substitute for a detailed and critical examination of each and every
component in a body of evidence. But, once that has been done, it is necessary to step

back a pace and consider the mosaic as a whole. If that is not done, one may fail to see
the wood for the trees.‟
It should be clear from the above cases that the powers of this Court,
sitting as a court of appeal are clearly circumscribed. It does not have
carte blanche to interfere with the factual and credibility findings properly
made by the trial court.

[25] It is indeed correct, as the appellant‟s counsel pointed out that there
are aspects of the state‟s case which are unsatisfactory. It is furthermore
correct that there were instances where Nxuma was argumentative, gave
long explanations and sometimes declined to answer questions during
cross examination. I agree that he can be criticised for this. However, the
trial court was alive to these aspects and dealt with them in its judgment.
Having had the benefit of hearing and observing Nxuma testify which we
do not have as a court of appeal, the trial court found that Nxuma‟s
demeanour did not detract from his credibility or the truthfulness and
cogency of his testimony. It found such instances to be peripheral to the
real issue.

[26] I pause to observe that the record shows clearly that Nxuma was
subjected to a lengthy, robust and at times hostile cross-examination from
the appellant‟s counsel. It is clear from the record that the only time when
Nxuma became agitated was when the appellant‟s counsel repeated some
questions. Undoubtedly this irritated Nxum, as one can discern from the
following responses:
„Ek is `n persoon en die gebeure het by my huis plaasgevind en die polisie het daar
gekom en hulle het toe hulle werk gedoen en ek is nie daarop geregtig om instruksies
aan die polisie te gee wat om te doen nie‟.

This was at time when the appellant‟s counsel demanded an explanation
from Nxuma as to why the police officers did not take certain steps.
Much clearer proof of Nxuma‟s agitation being caused by the manner in
which the appellant‟s counsel cross-examined him is captured in the
following response:
„En `n ander versoek wat ek wil rig is dat as u vrae aan my gestel het, dan u moet my
`n geleentheid gee om die vrae te beantword en u moet nie woorde in my mond sit
nie‟.
This occurred at a time when Nxuma, correctly or wrongly thought that
the appellant‟s counsel was badgering him.

[27] Having read the record, these responses by Nxuma appeared to me
to be eminently reasonable. When read out of context these responses
may appear impolite if not plainly arrogant, but they were direct
responses to questions posed. To my mind, they do not cast any shadow
on Nxuma‟s demeanor  and candour. As those experienced in trials know
that „demeanour can be a tricky horse to ride‟. It is clear to me that
Nxuma was naively venting his frustrations at what he thought were
unfair questions by the appellant‟s counsel.

[28] In order to avoid falling into the trap of failing to see the wood for
the trees as per the warning expressed in Hadebe (supra), I propose to
take a step back and consider the entire evidence as a mosaic, consider
the strength and weaknesses in the evidence and consider the merits,
demerits and the probabilities. See also S v Trainor 2003 (1) SACR 35;
[2002] ZASCA 125 (SCA) para 9 and S v Chabalala 2003 (1) SACR 134
(SCA) para 15.

[29] I am alive to the fact that the state bore the onus to prove the guilt
of the appellant beyond a reasonable doubt and that there is no onus on
the appellant to proof the truthfulness of any explanation which he gives
nor to convince the court that he is innocent. Any reasonable doubt
regarding his guilt must redound to the appellant‟s benefit. S v Jochems
1991 (1) SACR 208; [1990] ZASCA 146 (A); S v V 2000 (1) SACR 453
(SCA).

[30] However, as it was stated in S v Ntsele 1998 (2) SACR 178; [1998]
ZASCA 49 (SCA) at 182a-g
„Die bewyslas wat in `n strafsaak om die Staat rus is om die skuld van die
aangeklaagde bo redelike twyfel te benys – nie bo elke sweempie van twyfel nie. Ons
reg vereis insgelyks nie dat die hof slegs op absolute sekerheid sal handel nie, maar
wel op geregverdigde en redelike oortuigings – niks meer en niks minder nie (S v
Reddy and others 1996 (2) SACR 1 (A) op 9d-e). Voorts, wanneer `n hof met
onstandigheidsgetuienis werk, soos in die onderhawige geval, moet die hof nie elke
brokkie getuienis afsonderlik betrag om te besluit hoeveel gewig daarvan geheg moet
word nie. Dit is die kumulatiewe indruk wat al die brokkies tersame het wat oorweeg
moet word om te besluit of die aangeklagde se skuld bo redelike twyfel bewys is (R v
De Villiers 1944 AD 493 at 508-9).‟
See also S v Phallo & others 1999 (2) SACR 558; [1999] ZASCA 84
(SCA) paras 10-11.

[31] The trial court was aware that Nxuma was a single witness and that
his evidence had to be treated with caution. However, it found strong
corroboration of his evidence in the undisputed evidence that soon after
the robbery, the appellant was found inside Nxuma‟s home where items
which were indisputably involved in the robbery in the form of the Mazda
Drifter, the bag containing money positively identified as Fidelity

Guard‟s property and an AK47 with ammunition, were found.
Furthermore, the trial court found that this evidence together with the
appellant‟s patently mendacious version justifies the inference as the only
reasonable inference from the proven facts, that the appellant was part of
the gang of robbers.

[32] I am mindful of the salutary warning expressed in S v Snyman 1968
(2) SA 582 (A) at 585G that even when dealing with the evidence of a
single witness, courts should never allow the exercise of caution to
displace the exercise of common sense. Equally important is what this
Court stated in S v Sauls (supra) at 180C-H that:
„In R v T 1958 (2) SA 676 (A) at 678 OGILVIE THOMPSON AJA said that the
cautionary remarks made in the 1932 case were equally applicable to s 256 of the
1955 Criminal Procedure Code, but that these remarks must not be elevated to an
absolute rule of law. Section 256 has now been replaced by s 208 of the Criminal
Procedure Act 51 of 1977. This section no longer refers to “the single evidence of any
competent and credible witness”; it provides merely that
“an accused may be convicted on the single evidence of any competent witness”.
The absence of the word “credible” is of no significance; the single witness must still
be credible, but there are, as Wigmore points put, “indefinite degrees in this character
we call credibility”. (Wigmore on Evidence vol III para 2034 at 262.) There is no rule
of thumb test or formula to apply when it comes to a consideration of the credibility
of the single witness (see the remarks of Rumpff JA in S v Webber 1971 (3) SA 754
(A) at 758). The trial Judge will weigh his evidence, will consider its merits and
demerits and, having done so, will decide whether it is trustworthy and whether,
despite the fact that there are shortcomings or defects or contradictions in the
testimony, he is satisfied that the truth has been told. The cautionary rule referred to
by De Villiers JP in 1932 may be a guide to a right decision but it does not mean
“that the appeal must succeed if any criticism, however slender, of the witnesses‟
evidence were well founded” (per Schreiner JA in R v Nhlapo (AD 10 November
1952) quoted in R v Bellingham 1955 (2) SA 566 (A) at 569). It has been said more

than once that the exercise of caution must not be allowed to displace the exercise of
common sense. The question then is not whether there were flaws in Lennox‟s
evidence – it would be remarkable if there were not in a witness of this kind. The
question is what weight, if any, must be given to the many criticisms that were voiced
by counsel in argument.‟

[33] This is how the trial court approached and assessed Nxuma‟s
evidence. Based on this, I am unable to say that the trial court erred in its
accepting Nxuma‟s evidence as truthful and reliable as it was
corroborated by the damning circumstantial evidence. As this Court held
in S v Reddy (supra) at 8h with reference to Best on Evidence 10th ed §
297 at 261:
„The elements, or links, which compose a chain of presumptive proof, are certain
moral and physical coincidences, which individually indicate the principal fact; and
the probative force of the whole depends on the number, weight, independence, and
consistency of those elementary circumstances.
A number of circumstances, each individually very slight, may so tally with and
confirm each other as to leave no room for doubt of the fact which they tend to
establish…. Not to speak of greater numbers, even two articles of circumstantial
evidence, though each taken by itself weigh but as a feather, join them together, you
will find them pressing on a delinquent with the weight of a mill-stone….‟
I am satisfied that the evidence of Nxuma together with the circumstantial
evidence regarding the appellant‟s arrest at Nxuma‟s home constituted
proof of his complicity in the robbery beyond reasonable doubt.
Accordingly, I can find no fault with his conviction on the two counts of
robbery. It follows that this Court sitting as a court of appeal cannot
interfere with the findings by the trial judge.

[34] However, the appeal in respect of the appellant‟s conviction for
contravention of s 37(1) of Act 62 of 1955 regarding counts 3 and 4

which are competent verdicts on the charges of theft of the motor vehicles
is on a different footing. There is no evidence that the appellant was ever
in possession of any of the two stolen motor vehicles which were used in
the robbery at any given moment. Furthermore, no witness testified that
the appellant either drove or was inside any of the two vehicles. It follows
that the essential elements of these two offences have not been proved.
Absent such proof, it cannot be said that the State had proved his guilt.
See S v Mbuli 2003 (1) SACR 97; [2002] ZASCA 78 (SCA); S v
Manamela & Another (Director-General of Justice Intervening) 2000 (1)
SACR 414 (CC) 438 para 59 (2). It follows that these convictions cannot
stand.

[35] In the result, the following order is made:
The appeal succeeds partially as follows:
1 The appeal against the convictions in respect of counts 1, 2, 6 and 7 is
dismissed. The convictions and the sentences imposed are confirmed.
2 The appeal against the convictions in respect of counts 3 and 4 is
upheld. The convictions and the sentences in respect of counts 3 and 4 are
set aside.

_________________

L.O. Bosielo

Judge of Appeal

Appearances:
For Appellant
:
A B Booysen

Instructed by:
Legal Aid SA, Pretoria

Legal Aid SA, Bloemfontein

For Respondent
:
C L Burke

Instructed by:

Director Public Prosecutions, Pretoria

Director Public Prosecutions, Bloemfontein

SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

01 June 2015

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.

Modiga v The State (20738/14) [2015] ZASCA 94 (01 June 2015)

[1] The SCA today upheld the appellant’s appeal in respect of two counts of being in
possession of stolen property without being able to give a reasonable and/or acceptable
explanation for such possession but confirmed his conviction and sentences of two counts of
robbery with aggravating circumstances.

[2] The appellant was charged with five other men on multiple counts. This case emanated
from a cash-in-transit robbery where money and other property belonging to Fidelity Guards
were stolen. Two stolen vehicles were used in the robbery. The state led the evidence of a
number of witnesses including some police officers. Central to the state’s case against the
appellant was the evidence of Sergeant Robin Henry Deere (Deere) and one Mr Saul Nxuma
(Nxuma). The evidence of Deere was rejected as being untruthful and unreliable. The
appellant was convicted on the evidence of Nxuma, who was a single witness.

[3] Although Nxuma was a single witness, the SCA found that the trial court was correct in
finding his evidence to have been truthful, reliable and credible. This is so as his evidence
was corroborated by independent evidence in the form of the appellant’s arrest soon after the
robbery inside Nxuma’s house where the police discovered and impounded a Mazda Drifter
which was used in the robbery earlier that day as well as a bag containing money identified as
belonging to Fidelity Guards and an AK47.

[4] The SCA found that the combined effect of Nxuma’s evidence and the circumstantial
evidence regarding the appellant’s arrest were sufficient proof of his complicity in the robbery.

[5] Regarding the contravention of s 37(1) of the General Law Amendment Act, the SCA
found that there was no evidence that the appellant was found in possession of the two
vehicles involved in the robbery. In other words the SCA found that the state had failed to
proof detentio.

[6] In the result, the SCA upheld the appeal in respect of counts 3 and 4, but dismissed it in
respect of the two counts of robbery. The convictions and sentences imposed by the court
below were confirmed.