THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case number: 224/2008

In the matter between:

NHLANHLA WISEMAN MAVININI

Appellant

and

THE STATE

Respondent

Neutral citation:
State v Mavinini (224/2008) [2008] ZASCA 166 (1
December 2008)

BEFORE:

Cameron JA, Kgomo AJA and Mhlantla AJA

HEARD:

Thursday 20 November 2008

DELIVERED:
Monday 1 December 2008

SUMMARY:
Evidence – proof – beyond reasonable doubt – moral
certainty of guilt – Sentence – maximum sentence
imposed under Act 105 of 1997 – inappropriate

ORDER

On appeal from:
High Court, Pietermaritzburg (Patel and Moleko JJ),
sitting on appeal from the regional court at Newcastle.

1.
The appeal against conviction is dismissed.
2.
The appeal against sentence succeeds.
3.
The sentence imposed by the magistrate is set aside.  In its place there
is substituted:
‘The accused is sentenced to fifteen (15) years’ imprisonment.’

JUDGMENT

CAMERON JA (Kgomo AJA and Mhlantla AJA concurring)
[1] When does a question about a witness’s evidence give rise to a doubt?
And what makes a doubt become reasonable?  And when does reasonable
doubt point to acquittal?  This case invites these reflections.  The appellant
was convicted of robbery in the Newcastle Regional Court (Mr TCL Colditz)
and sentenced to twenty years’ imprisonment.  His appeal to the High Court in
Pietermaritzburg (Patel J, with whom Moleko J concurred) was dismissed, as
was his application for leave to appeal to this court, which later, however,
itself granted the necessary leave.

[2] On Friday evening 25 August 2000, the Pritraj family was travelling
from Gauteng to KwaZulu-Natal.  As night fell they checked into the Amajuba
Lodge in Newcastle with their fourteen month-old baby.  Shortly after they
took occupation of room 15, there was a knock at their door: ‘Room service’.
But it was not.  It was a robbery.  When Mr Surjan Pritraj opened the door,
three men burst in, two brandishing firearms.  His wife and baby were made to
lie on the bed.  He was forced to the floor.  A blow to the back of his head with
one of the robber’s firearms later required medical stitching.  And the robbers

proceeded to take everything.  The family was not just robbed, but ‘robbed
clean’ – as the magistrate noted in passing sentence, they were left with just
about only the clothes on their backs.  The robbers took their luggage,
clothes, shoes, watches, wedding rings, jewellery, mobile phones (complete
with chargers) and cash.  They even nabbed the hotel’s television set and
telephone apparatus.  Then they made off in the family’s 1996 green Audi A4
motor vehicle with registration number DRP 053GP.

[3] The very next evening, the South African Police Service’s crime
intelligence centre in Newcastle received information that led the police to
house 2892 in Section 3 of Madadeni, Newcastle’s township.  There they
found two men sleeping in a room in which they also discovered much of the
loot.  The rest was elsewhere in the house.  The two men were later arraigned
with the appellant as accused 1 and 2.  Accused 1 died in the course of the
trial.  Accused 2, who the arresting officer conceded was charged (like
accused 1) only because he was found in the same room as the stolen
property, was given the benefit of the doubt and acquitted.

[4] The appellant though was convicted.  During the same raid, his identity
document, or a copy of it, as well as a logbook for a bakkie registered in his
name were found.  At the trial, one of the occupants of house 2892, Ms
Ntombikababa Charity Tshabalala, testified that he had been staying there
with his girlfriend.

[5] But that is not why he was convicted.  His conviction arose from the
green 1996 Audi A4.  Evidence was led at the trial that the appellant was seen
driving a green Audi A4 (its front adorned with a false number plate, and the
back bearing the number ‘DRV 053GP’) just outside house 2892, shortly
before it was raided – but that when he saw the police he sped away, eluding
pursuit.  Ms Tshabalala testified that earlier that same evening a vehicle,
whose make she could not identify, but green in colour, was at the house.
Less than a week later, the complainant’s Audi was recovered in Springs,
Gauteng.  When he identified it to the police, it had false number plates.

[6] The magistrate accepted that the appellant had been driving the
complainant’s vehicle, and inferred from the proximity in time (less than 24
hours) that the appellant’s possession was so closely connected to the
robbery itself that in the absence of other explanation he must have been one
of the robbers.  The appellant does not attack this part of the magistrate’s
reasoning, for if he was indeed seen in the Audi so soon after the robbery,
such recent possession, together with his elusive conduct, and the false front
number plate, overwhelmingly suggests criminal involvement in the robbery.
What he disputes is the preceding premise: that he was seen in the Audi at
all.

[7] This requires us to consider in detail the pivotal evidence leading to his
conviction, that of Superintendent Mahash Singh Ragunanan.  He testified
that on the evening after the robbery an informer’s evidence led him to house
2892.  Contrary to the information given, the stolen green Audi was not there,
but after questioning a group of females standing opposite, he got back into
his state vehicle and waited outside the house.  While so seated, he noticed
two vehicles approaching from the rear.  The front vehicle slowed next to his,
as if to turn into house 2892.  Ragunanan alighted.  He saw that it was a
green Audi with front registration number Mthambo ZN (his informer had given
him the names of the suspects connected with the stolen Audi as that of the
appellant and one Thami Mthambo, whose name featured frequently during
the trial as part of the accused’s version).  He was one and a half metres
away, and noticed the appellant was the driver.  He shouted to him to stop,
and drew his firearm – but could not fire because of the women opposite.  The
vehicle sped off.  He observed its rear registration was DRV 053GP.  He got
back into his vehicle and set off in pursuit, but in vain.

[8] Two questions arise from Ragunanan’s evidence.  The first is whether
the incident to which he deposed took place at all, or whether (as was argued
at the trial, and again on appeal) it was a later fabrication.  The second is
whether, if the incident happened, his identification was reliable.  These
questions must be considered separately.

Was Ragunanan’s identification of appellant fabricated?
[9] Doubt arose about the authenticity of the incident for the following
reasons.  As mentioned earlier, the first two accused were arrested when
house 2892 was raided on the night of 26/27 August, the day after the
robbery.  Accused 3 and 4 were arrested in Gauteng less than a week later in
the events that lead to the recovery of the complainant’s Audi.  But the
appellant (accused 5) was arrested only in May of the following year.  That
was because Ragunanan made a formal statement for the docket only on 22
March 2001, seven months after the incident at house 2892 (the delay until
the May arrest seems to have been because the appellant was in custody in
Volksrust on other charges, which were later dropped).

[10] Probed in cross-examination, Ragunanan stated that he told the officer
in charge of the scene at house 2892, inspector Fouché, that very evening
that he had spotted the appellant in the vehicle, but ‘unfortunately I left for
special duties away from town, and only returned in March’.

[11] Perhaps surprisingly, this statement was left hanging:  Ragunanan was
not cross-examined about it at all.  The lawyer who elicited this answer (who
had been representing three of the accused from the outset of the trial, and
stepped in also for accused 5 when his predecessor left during the earlier
cross-examination of Ragunanan) did not challenge the authenticity of the
‘special duties’.  He did not ask what they were, where they had to be
performed, when they started, when they ended, or what they entailed so as
to inhibit making an earlier statement.

[12] Before the high court and in this court, appellant’s counsel sought to
impugn Ragunanan’s claim as inherently improbable.  The obvious objection
is that no basis was laid for this in cross-examination.  The imputation is that
Ragunanan was lying, that there was in truth no reason why he could not
make a statement immediately, and that the seven-month delay pointed to
fabrication.  This is not only speculative; it is unfair.  A cross-examiner who
later suggests that a witness is lying on a particular point must generally

confront the witness with the imputation.1  If a single question had been
asked, Ragunanan might have been able to explain his ‘special duties’ in
detail and with perfect conviction.

[13] But this is not a civil trial between Ragunanan and the appellant, and it
is not Ragunanan’s rights that are at issue here.  It is the appellant’s.  His right
not to be wrongly convicted must trump Ragunanan’s right not to have his
evidence unfairly impugned ex post facto.  The general requirement that a
witness must be confronted with damaging imputations2 is not a formal or
technical rule.  It is a precept of fairness.  That means it must be applied with
caution in a criminal trial: if, despite the absence of challenge, doubt arises
about the plausibility of incriminating evidence, the accused should benefit.

[14] One exception to the confrontation requirement is where a witness’s
tale is so far-fetched and improbable that it can be rejected on its own
standing without the need for cross-examination.3  That exception should
clearly be applied with greater liberality in determining whether the state has
proved its case against an accused beyond reasonable doubt.

[15] But are there circumstances here to suggest that we should doubt
Ragunanan’s unchallenged evidence that he was called away on special
duties and that this was why he did not make a statement immediately?
There should be at least some basis for rejecting the witness’s unchallenged
evidence out of hand – whether it arises from some intrinsic feature of the
evidence itself or from other evidence at the trial.  Here there is no basis at all.
It is not inherently implausible that a policeman is called away on special
duties.  Nor is it inherently implausible that this could delay his statement.

1 President of the Republic of South Africa v South African Rugby Football Union 2000 (1) SA
1 (CC) para 61.
2 President of the Republic of South Africa v South African Rugby Football Union 2000 (1) SA
1 (CC) para 64-65.
3 President of the Republic of South Africa v South African Rugby Football Union 2000 (1) SA
1 (CC) para 64.

[16] Alert to possible doubt arising from Ragunanan’s evidence, the
magistrate recalled both Fouché and Van Zyl (the investigating officer, to
whom Fouché handed the case docket on the Monday).  Fouché confirmed
that Ragunanan had told him that he had seen the appellant driving the Audi.4
He affirmed that this was before he handed the docket over to Van Zyl,
although he could not remember whether it was during the events at house
2892 itself or on the Sunday.  His evidence thus corroborated that of
Ragunanan.  As the magistrate pointed out in his judgment, it was admissible
and highly relevant to the imputation of recent fabrication.

[17] Though his evidence was more equivocal, Van Zyl on being recalled
likewise confirmed that after the incident Ragunanan told him that he had
seen the appellant in the vehicle that evening.  He also explained that he
asked Ragunanan for a statement, but that as Ragunanan’s junior he could
not insist on one.5  It further appeared that Van Zyl first wanted a sworn
statement, so as to procure a warrant of arrest, before arresting the appellant:
hence the delay.

[18] One detail should be added to all of these.  It transpired during the trial
that the police officers were from differing units.  Those who combed the
scene and effected the arrests were from the dog unit.  Fouché and Van Zyl
were from the murder and robbery unit.  Ragunanan was from the intelligence
division.  Because of the lack of cross-examination on the relevant point, the
difficulties this may have created for coordination and communication were
not explored.

[19] In these circumstances the fabrication claim cannot in my view be
sustained.  The evidence as a whole, fairly considered, indicates that

4 ‘COURT Okay. So what did Ragunanan tell you? – He told me that when the vehicle had
driven past he had seen who the driver was, and that he had recognised the person as
accused 5.
Was a statement taken from Ragunanan? – Not immediately then, he was asked for a
statement, but I, due to something that only he can explain, the statement was only obtained
at a later stage.’
5 ‘Vir my as [‘n] junior offisier kan ek seker nie vir ‘n senior offisier dwing om – vir hom te sê
wanneer om ‘n verklaring te maak nie.  By my is hy verre my senior, ek kan nie vir hom sê …
wanneer – daar is wel verskeie kere vir hom gevra vir ‘n verklaring, maar …’

Ragunanan went away on special duties, and that this triggered the delay in
his statement.  The magistrate, who was alert to the doubt, and saw all the
witnesses, accepted the honesty and reliability of Ragunanan, Fouché and
Van Zyl on this point.  In my view, despite some attempt on the appellant’s
behalf to suggest that the latter two conspired dishonestly to corroborate
Raguanan’s evidence, he was correct to do so.

[20] It should perhaps be added that there has been no complaint about the
quality of the appellant’s legal representation.6  Indeed, while the cross-
examination was not of Kentridgean stature, its deficiencies did not impair the
appellant’s right to a fair trial.7

Was Ragunanan’s identification reliable?
[21] The next question is whether the requisite degree of credence can be
attached to Ragunanan’s identification of the appellant.  As already indicated,
Ragunanan caught no more than a quick night-time glimpse of the driver of
the Audi A4.  But it was at a close span (about 150cm), directly under a street-
light; and he added when the magistrate questioned him that the interior light
of the vehicle was on.  This detail, too, was not challenged in Ragunanan’s
cross-examination, and much was sought to be made of it on appeal, leading
to speculative debate about reasons and likelihood;8 but in my view without
challenge there is simply no warrant for subverting Raguanan’s evidence on
this point.

[22]  More important to the reliability of his identification is the fact that
Ragunanan testified that he had known the appellant for some five years
before the incident.  This detail was raised in cross-examination, though the
challenge was ineffectual.  The cross-examiner sought to probe by way of
follow-up whether Ragunanan knew where the appellant lived.  This

6 The Bill of Rights s 35(3) guarantees every accused person the right to choose and be
represented by a lawyer.
7 See S v Tandwa 2008 (1) SACR 613 (SCA) para 7 (the right to legal representation is a
right of substance, not form; it entails a right to competent representation – that is, of a quality
and nature that ensures that the trial is in substance fair).
8 Patel J in the high court, for instance, thought it was not unlikely that a driver of a stolen car,
unfamiliar with its instrumentation, would have the interior light on.

boomeranged when Ragunanan proceeded to itemise knowledge of the
appellant’s ‘various residences’, in sections 1 and 3 Madadeni, plus
‘unconfirmed information in Johannesburg as well’.  Ragunanan also stated
that on the night in question he had been to both the appellant’s Newcastle
residences.  His knowledge of the appellant and his likely whereabouts was
therefore established.  Indeed, it emerged from the evidence of other police
officers that they too knew the appellant and had had dealings with him
because of his involvement in other cases and charges (and that they had
been to look for him on previous occasions at house 2892).

[23]  Against this background, despite the fleeting opportunity and night-time
conditions, Ragunanan’s identification was not without inherent plausibility.  It
certainly called for an answer.  Yet the appellant countered it with nothing.  He
chose not to testify.  That was his right.9  Yet he must bear the consequences
of exercising it.  His choice to remain silent in the face of evidence clearly
implicating him in criminal conduct suggests that he had no answer to it.10  For
Ragunanan’s evidence was pre-eminently (as Heher JA put it in S v
Chabalala)11 ‘capable of being neutralised by an honest rebuttal’.  The rebuttal
void clinches the impact of Ragunanan’s evidence.  This leads to the
inference that the appellant was driving the green Audi A4 on the night after
the robbery, with false number plates, and that he fled when the police
confronted him.  That conduct, unexplained, together with the evidence linking
the appellant with the place where the stolen goods were recovered, results in
the overwhelming conclusion that he was himself involved in the robbery.

[24] I should add that before us counsel for the appellant sought to make
something of differing references in the record to the Audi’s registration
number.  The exhibit list, confirmed by the complainant, indicated that it was
DRP 053GP.  In Ragunanan’s evidence, the number is rendered as ‘DRV
053GP’.  It is plain that this must have been either a slip of the tongue or a
transcription error.  This was however compounded when the magistrate in

9 Bill of Rights s 35(3)(h) – every accused person has the right to a fair trial, which includes
the right ‘to remain silent, and not to testify during the proceedings’.
10 See S v Tandwa 2008 (1) SACR 613 (SCA) paras 53-56.
11 2003 (1) 134 (SCA) para 21.

his judgment referred to the registration number as ‘VLV 053GP’.  Before us,
counsel sought to make capital of this, but was unable to offer any rational
basis, other than mis-speaking or a transcription error, for where ‘VLV’ came
from.  It is clear that the magistrate intended to refer to the same vehicle,
identically registered, as the one stolen from the complainant, which
Ragunanan saw the night after, and which was recovered in Springs less than
a week later.  The error has no significance.

[25] It follows that despite the somewhat curious features of the case the
appellant’s conviction was correct.  Especially having regard to the fact that
he chose not to testify, the features raise doubt, but not reasonable doubt,
about his guilt.

[26] It is sometimes said that proof beyond reasonable doubt requires the
decision-maker to have ‘moral certainty’ of the guilt of the accused.  Though
the notion of ‘moral certainty’ has been criticised as importing potential
confusion in jury trials,12 it may be helpful in providing a contrast with
mathematical or logical or ‘complete’ certainty.  It comes down to this: even if
there is some measure of doubt, the decision-maker must be prepared not
only to take moral responsibility on the evidence and inferences for convicting
the accused, but to vouch that the integrity of the system that has produced
the conviction – in our case, the rules of evidence interpreted within the
precepts of the Bill of Rights – remains intact.  Differently put, subjective moral
satisfaction of guilt is not enough: it must be subjective satisfaction attained
through proper application of the rules of the system.

[27] In my view that level of certainty exists about the appellant’s guilt.

Sentence
[28] The magistrate sentenced the appellant to twenty years’ imprisonment.
This was the maximum sentence for robbery under the applicable

12 See the decision of the Supreme Court of the United States of America in Victor v
Nebraksa (92-8894), 511 US 1 (1994), accessed on 27 November 2008 at
http://www.law.cornell.edu/supct/html/92-8894.ZO.html.

legislation.13  The magistrate was clearly right in considering that the minimum
sentence provisions applied, since there were aggravating circumstances
(firearms were used) and since a motor vehicle was taken.14  There has been
no attack on his conclusion that there were no substantial and compelling
circumstances justifying a lesser sentence than fifteen years.

[29] In terms of the proviso to s 51(2) of Act 105 of 1997 (which applied
when the appellant was sentenced on 15 March 2002),15 ‘the maximum
sentence that a regional court may impose in terms of this subsection shall
not be more than five years longer than the minimum sentence that it may
impose in terms of this subsection’.  The magistrate considered the maximum
appropriate.  He pointed out that the family had suffered the fright of intrusion
and been robbed ‘clean’, and that the complainant had received a blow to the
head.

[30] These circumstances, while serious, do not justify the maximum
sentence.  They constitute reasons why the minimum sentence of fifteen
years, and not a lesser sentence, was appropriate.  The circumstances did
not call for an exemplary sentence, which the maximum entails.  That in my
view would be disproportionate to the circumstances of the offence (see
Vilakazi v The State [2008] 4 All SA 396 (SCA), (576/07) [2008] ZASCA 87 (2
September 2008)).

[30] Recounting the circumstance of the robbery, the magistrate in referring
to the appellant remarked that ‘‘People like that don’t deserve any mercy’.
That was wrong.  Although the appellant was not a first offender, his previous
convictions (for theft in 1989 and 1992, when he was aged 20 and 23, both
resulting in sentences of strokes with a light cane) were a decade and more
old at the time of sentencing.  He deserved a measure of mercy.  That meant
the minimum, and not the maximum, should have been imposed.

13 Criminal Law Amendment Act 105 of 1997.
14 Section 51 of Act 105 of 1997, read with Part II of Schedule 2.
15 See now the Criminal Law (Sentencing) Amendment Act, 38 of 2007.

[29]  In the result:
1.
The appeal against conviction is dismissed.
2.
The appeal against sentence succeeds.
3.
The sentence imposed by the magistrate is set aside.  In its place there
is substituted:
‘The accused is sentenced to fifteen (15) years’ imprisonment.’

E CAMERON
JUDGE OF APPEAL

Appearances:

For the appellant:
Mr PJ Loubser

Instructed by:

Southey, Steyn & Mphela Attorneys, Newcastle

Mphobole & Ishmail Attorneys, Bloemfontein

For the respondent:
Ms D Barnard

Instructed by:
Director of Public Prosecutions, Pietermaritzburg &
Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal

Date:
Monday 1 December 2008

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

State v Mavinini (224/2008) [2008] ZASCA 166 (1 December 2008)

In a judgment delivered today, the Supreme Court of Appeal has
dismissed the appeal against conviction of Mr Nhlanhla Wiseman
Mavinini, who was convicted of robbery in the Newcastle regional court.

The SCA has however upheld Mr Mavinini’s appeal against sentence.
The regional magistrate imposed the maximum sentence possible –
twenty years.  The SCA has reduced this to fifteen years.

On conviction, the SCA held that despite a number of curious features,
the evidence established the appellant’s guilt beyond reasonable doubt.
Pivotal to this conclusion was the fact that the appellant chose not to
testify in his own defence at his trial.  That was his constitutional right –
but he had to bear the consequences, including the fact that there was
no answer to the state’s evidence.  That evidence was that he had been
seen driving the green Audi A4 taken in the robbery shortly after the
crime was committed.  The evidence had some measure of inherent
plausibility – and in the absence of an honest rebuttal clinched the case
against the appellant.

The SCA, in a judgment by Cameron JA, in which Kgomo AJA and
Mhlantla AJA concurred, held that despite some doubt, there was ‘moral
certainty’ about Mr Mavinini’s guilt.  Though the notion of ‘moral
certainty’ has been criticised as importing potential confusion in jury
trials, it is helpful in providing a contrast with ‘mathematical’ or ‘logical’ or
‘complete’ certainty.  Those are not required in a criminal trial.

It comes down to this: even if there is some measure of doubt, the court
must be prepared not only to take moral responsibility on the evidence
and inferences for convicting the accused, but to vouch that the integrity
of the system that has produced the conviction – that is, the rules of
evidence interpreted within the precepts of the Bill of Rights – remains
intact.  In other words, the court’s subjective moral satisfaction that the
accused is guilty is not enough: it must be subjective satisfaction
attained through proper application of the rules of the system.

That existed here, and the appeal against conviction was therefore
dismissed.