THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable

Case No: 396/16

In the matter between:

DANIËL MAHLALELA                                                                            APPELLANT

and

THE STATE                                                                                          RESPONDENT

Neutral citation:  Mahlalela v S (396/16) [2016] ZASCA 181 (28 November 2016)

Coram:
Shongwe, Van Der Merwe and Mocumie JJA and Dlodlo and
Potterill AJJA

Heard:

3 November 2016

Delivered:

28 November 2016

Summary: Criminal Law – murder and robbery with aggravating circumstances:
whether State proved beyond reasonable doubt that the appellant was one of three
attackers who robbed and killed the deceased – circumstantial evidence: whether
sufficient for a finding of guilty.

___________________________________________________________________

ORDER
___________________________________________________________________
On appeal from: Gauteng Provincial Division of the High Court, Pretoria (Smit J
sitting as court of first instance, Circuit Court, Secunda):

1 The appeal is upheld.
2 The order of the court a quo is set aside (only in respect of the appellant) and
substituted with the following:
„Accused 3 is found not guilty and discharged on all counts.‟
___________________________________________________________________

JUDGMENT
___________________________________________________________________
Dlodlo AJA (Shongwe, Van Der Merwe and Mocumie JJA and Dlodlo and
Potterill AJJA concurring):

[1] The appellant was charged with two other persons before the court a quo
sitting at Secunda. The appellant was accused 3 in the proceedings before the court
a quo. All three faced charges of murder, robbery with aggravating circumstances
and possession of a firearm (a .22 revolver) with an unknown number of ammunition.

[2] On 1 November 2000 the appellant was convicted of murder and robbery with
aggravating circumstances. He was sentenced to life imprisonment on the murder
charge and 25 years‟ imprisonment on the robbery charge. The appellant
unsuccessfully applied for leave to appeal against both conviction and sentence. The
appeal against both conviction and sentence before us is with the leave of this court.

[3] The appellant pleaded not guilty to the charges preferred by the State against
him. He did not disclose the basis of his defence as envisaged by s 115(2) of the
Criminal Procedure Act 51 of 1977 (the CPA). He exercised his right to remain silent
as enshrined in the Constitution. The prosecution called its witnesses and upon
closure of its case an application for discharge in terms of s 174 of the CPA was
made on the appellant‟s behalf. This was, however, dismissed by the court a quo.
The appellant elected not to testify and closed his case. Counsel for the appellant
contended that the State failed to prove beyond reasonable doubt that the appellant
robbed and killed the deceased or that he acted in common purpose with the others
to commit these offences. It was also submitted that the appellant was neither
pointed out nor identified by the witnesses during the identification parade.

[4] It is common cause that the only direct evidence relied on by the State,
concerning the involvement of the appellant in the offences charged, is that of Mr
Mandla Boy Charlie Mabena (Mabena). The latter‟s evidence, as far as it concerns
the appellant, is criticised and labelled as unsatisfactory by the appellant‟s counsel.

[5] In its heads of argument the State argued that the failure by the appellant to
testify exposed him to what obtained in S v Boesak 2001 (1) SACR 1 (CC) para 24
where the Constitutional Court held as follows:
„The fact that an accused person is under no obligation to testify does not mean that there
are no consequences attaching to a decision to remain silent during the trial. If there is

evidence calling for an answer, and an accused person chooses to remain silent in the face
of such evidence, a court may well be entitled to conclude that the evidence is sufficient in
the absence of an explanation to prove the guilt of the accused. Whether such a conclusion
is justified will depend on the weight of the evidence. What is stated above is consistent with
the remarks of Madala J, writing for the Court, in Osman & another v Attorney-General,
Transvaal, when he said the following:
“Our legal system is an adversarial one. Once the prosecution has produced
evidence sufficient to establish a prima facie case, an accused who fails to produce
evidence to rebut that case is at risk. The failure to testify does not relieve the
prosecution of its duty to prove guilt beyond reasonable doubt. An accused, however,
always runs the risk that, absent any rebuttal, the prosecution‟s case may be
sufficient to prove the elements of the offence. The fact that an accused has to make
such an election is not a breach of the right to silence. If the right to silence were to
be so interpreted, it would destroy the fundamental nature of our adversarial system
of criminal justice.”‟

[6] The State also referred to S v Alex Carriers (Pty) Ltd en ‘n ander 1985 (3) SA
79 (T). It was argued on behalf of the State, by Mr Nel, that at the end of the State‟s
case it was prima facie proved by way of circumstantial evidence that (a) the
appellant formed part of a discussion regarding the attack and robbery; (b) an
approximate amount of R8 000 was robbed from the deceased; and (c) the appellant
and accused 2 made deposits of R2 000 each into their respective bank accounts.

[7] Mr Nel was constrained to emphasise that the appellant and accused 2 each
made deposits of R2 000 into their respective bank accounts on the same day at the

same bank and with the same teller. According to Mr Nel, because of the failure by
the appellant to testify at the end of the State‟s case and explain the source of the
money evident on the deposit slips, the prima facie case became proof beyond
reasonable doubt that the appellant was complicit in the offences committed.

[8] I briefly recast the facts established by the evidence. It is common cause that
one Stefaans Sifiso Mahlangu (Mahlangu) witnessed the shooting of the deceased
and he saw two persons running away from the scene. One of these two persons
carried a firearm. Mahlangu, in an identification parade, identified the two persons he
had seen committing the crime as accused 1 and 2 respectively. It is common cause
that two witnesses, Perley Sheila Klopper and Essak Natalwalla testified that there
were in fact three persons involved in this matter. After shooting the deceased, one
of the attackers snatched the money bag. It is common cause that the money bag
contained R8 000 in cash and R10 000 in cheques.

[9] Mabena testified that while at Sporo‟s Shebeen together with his girlfriend and
the appellant, accused 1 and 2 subsequently arrived there. A story was told to
Mabena by accused 1 that a butchery was going to be robbed and that in the event
of anyone resisting, accused 3 (the appellant) would produce a firearm and shoot
that person. Mabena repeatedly made it clear that when the story was told to him he
was not sure if the appellant and accused 2 were present. He stated that he thought
they were outside. He added that he cannot remember clearly. When asked again if
the appellant was present when accused 1 mentioned that it was the appellant that
was going to do the shooting and if the appellant heard this, Mabena stated „wat ek

nie goed onthou nie is het hy dit gesê toe hulle buitekant was of al binne. Ek kan dit
nie goed onthou nie‟. (What I do not remember is whether when he said that, they
were outside or inside. I cannot remember well.)

[10] Strangely, the prosecution twisted the question and asked (seeing that the
appellant was tasked with the shooting) what was his reaction on that aspect?
Mabena responded „hy het ingestem‟ (he agreed). Lastly, Mabena testified that in
prison he was threatened by accused 1. The latter told him that if he was going to
testify he must say that the man who shot the deceased was the appellant. It is
common cause that accused 1 made a confession about his involvement, in which
he made mention of the other participants. It is common cause that upon the arrest
of the appellant, two bank deposit slips were found in his bedroom. These (as
mentioned earlier) show a deposit of R2 000 each made into the accounts of the
appellant and accused 2 respectively.

[11] It must be mentioned that concerning the appellant, the State presented no
eye-witness evidence, no forensic evidence, nor any self-incriminating utterances in
its attempt to link him to the crime of murder and robbery with aggravating
circumstances. The State merely relied on Mabena‟s evidence as well as the two
deposit slips found in the appellant‟s bedroom. This evidence was the sole basis
upon which the State sought (and ultimately secured) the appellant‟s conviction. In
Mabena‟s testimony there is one piece of evidence relied upon by the State. It
consists of three words ie „hy het ingestem‟ (he agreed).

[12] Mabena made it very clear in his evidence-in-chief that he could not confirm
whether the appellant was present in the shebeen at the time when accused 1
narrated to him how the robbery of the butchery would be carried out. He repeatedly
told the trial court that he was not certain if the appellant and accused 2 were
present inside the shebeen when the discussion took place. I find the stance
adopted by the prosecution not only wrong but also unfair both towards Mabena and
the appellant. Having fully understood that the witness was not certain if the
appellant was present in the discussion, it is unfair to ask the witness whether he
could say for certain that the appellant was in agreement with the proposed plan to
rob the deceased and shoot if necessary.

[13] It is highly improbable that a person who is, at the crucial time, outside and
clearly not party to the discussion, would be able to agree to anything suggested. In
my view this remains the unsatisfactory portion of Mabena‟s evidence. The above
difficulties one has with Mabena‟s evidence were put to Mr Nel. He contended that
although he was not going to place much reliance on Mabena‟s evidence, he would
not concede its futility. In the interest of justice, Mabena‟s evidence that the appellant
agreed to what was discussed must be discounted. No reliance can be placed on
this portion of Mabena‟s evidence. Mabena was clearly led astray by the prosecution
in saying that „hy het ingestem‟; which he again recanted when questioned by the
court a quo.

[14] Following the submissions by Mr Nel, Mabena‟s evidence and the two deposit
slips were used to provide circumstantial evidence from which the court was
expected to draw the inference of guilt. It is trite that in cases based on
circumstantial evidence the courts are enjoined to follow the judgment in R v Blom
1939 AD 188 at 202. The two „cardinal rules of logic‟ relating to inferential reasoning
in cases based on circumstantial evidence set out in Blom are:
„(1) The inference sought to be drawn must be consistent with all the proved facts. If it is not,
the inference cannot be drawn.
(2) 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 a doubt whether the inference sought to be drawn is
correct.‟

[15] The difficulty is that proved facts envisaged in Blom are facts proved beyond
reasonable doubt. Intermediate inferences, too, must be based on proved facts.
Inferences may not be drawn from other inferences. See the article by Nicholas AJA
in (E Khan (ed) Fiat Iustitia Essays in memory of Olive Deneys OD Schreiner (1983)
at 312 (1983) 312).

[16] Simply put, circumstantial evidence provides a basis from which the fact in
dispute can be inferred. The salient question to be answered is whether the
appellant was guilty of the crimes committed beyond reasonable doubt. All
circumstantial evidence depends ultimately upon facts which are proved by direct
evidence. I agree that where a prima facie case is proved against an accused person

in a case built and resting upon circumstantial evidence to which a reply from an
accused would be expected, the fact that the accused elects not to reply may be a
factor which, together with other factors in the case, leads to an inference of guilt.
However, the weight to be attached to the accused‟s silence depends on the facts of
the particular case. See S v Letsoko 1964 (4) SA 768 (A). It is settled law that there
is no onus on the accused to prove his innocence. If an accused person remains
silent, as in this case, the question remains whether the State proved the offence(s)
charged beyond reasonable doubt.

[17] The appellant in this case may have taken the view that it is not necessary to
reply to the State case because guilt cannot necessarily be inferred from the proven
facts. See R v Ismail 1952 (1) SA 204 (A) at 210 and Letsoko at 776B-D. Silence
cannot and must not be used to supplement the State‟s case where there is no
evidence upon which a reasonable person would convict. See S v Francis 1991 (1)
SACR 198 (A) at 203I.

[18] In Boesak the Constitutional Court having stated that an accused person who
chooses to remain silent in the face of evidence calling for an answer, runs the risk
that the court may well be entitled to conclude that the evidence is sufficient for a
finding of guilt, warned that whether such a conclusion is justified will depend on the
weight of the evidence.

[19] I am persuaded that the State did not prove beyond reasonable doubt that
there was a factual basis entitling the trial court to draw inferences either
intermediate or otherwise. The fact that two deposit slips evidencing the deposit of
R2 000 each into the bank accounts of the appellant and accused 2 does not go far
enough to assist the State. The discovery of these deposit slips hardly satisfies the
first rule of logic in Blom at paragraph 14 above. There is a host of reasonable
inferences to be drawn from the discovery of these deposit slips. The appellant may
have been to the bank and accused 2 could have given him money and a deposit
slip to bank for him as well, and he would get his stamped deposit slip later on. A
third party may have done the banking for these two and returned the deposit slips to
the appellant. There is no mystery in the fact that the deposit was done on the same
date and with the same bank and presumably at the same teller. Of course this
raises a suspicion. It does not follow, however, that the deposited money on that day
into the accounts of the appellant and accused 2 belonged to the deceased, who
was robbed of R8 000 in cash.

[20] If it were to be accepted that these deposit slips constitute a fact from which
an inference of guilt can be drawn, that would stretch inferential reasoning too far. It
bears restating that, for an inference to be permissible, it not only had to be based on
proved facts, but also had to be the only reasonable inference from those facts, to
the exclusion of all other reasonable inferences. The ultimate question is whether, in
the light of all the evidence adduced at trial, the guilt of the appellant was established
beyond reasonable doubt. See S v Ramulifho [2012] ZASCA 202; 2013 (1) SACR
388 (SCA) para 7; S v Hadebe & others 1998 (1) SACR 422 (SCA) at 426f-h. In
deciding whether to convict or acquit an accused the court is obliged to adopt a

correct approach. In S v Chabalala 2003 (1) SACR 134 (SCA) at para 15 the court
held that the correct approach is „to weigh up all the elements which point towards
the guilt of the accused against all those which are indicative of his innocence, taking
proper account of inherent strengths and weaknesses, probabilities and
improbabilities on both sides and, having done so, to decide whether the balance
weighs so heavily in favour of the state as to exclude any reasonable doubt about
the accused‟s guilt‟.

[21] Clearly, the trial court relied on the doctrine of common purpose in convicting
the appellant of murder and robbery with aggravating circumstances. It is established
law that for a finding of common purpose to be made, a number of evidential
requirements have to be met by the State. Should any of these requirements not be
satisfied beyond reasonable doubt, the prosecution fails. These requirements are
authoritatively set out in S v Mgedezi & others 1989 (1) SA 687 (A) and need not be
repeated.

[22] The trial court was under a duty to evaluate the evidence against the
appellant separately and individually in order to determine whether each of the
elements of the doctrine of common purpose had been proved by the State, beyond
reasonable doubt. It also had a duty to evaluate the evidence against the appellant
separately and individually to determine whether the State had proved beyond a
reasonable doubt all of the elements of each offence charged.  See S v Jama &
others 1989 (3) SA 427 (A) 436I–J; S v Thebus & another 2003 (2) SACR 319 (CC)
para 45; S v Le Roux & others 2010 (2) SACR 11 (SCA).

[23] I accept that a very strong suspicion was created against the appellant by the
discovery of the two bank deposit slips. Suspicion remains a suspicion in our law. No
person may be convicted on the basis of a suspicion, no matter how strong. I
conclude that no factual foundation exists upon which the appellant‟s conviction
could conceivably be sustained, either on the basis of inferential reasoning or on the
basis of common purpose. In view of the conclusion I have reached, it is not
necessary to deal with sentence.

[24] In the result, I make the following order:

1 The appeal is upheld.
2 The order of the court a quo is set aside (only in respect of the appellant)
and substituted with the following:
„Accused 3 is found not guilty and discharged on all counts.‟

________________________
D V Dlodlo

Acting Judge of Appeal

APPEARANCES

For the Appellant:

L M Manzini

Instructed by:

Pretoria Justice Centre, Pretoria

Bloemfontein Justice Centre, Bloemfontein

For the Respondent:
G C Nel

Instructed by:

Director of Public Prosecutions, Pretoria

Director of Public Prosecutions, Bloemfontein