THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

NOT REPORTABLE

Case No: 20089/14

In the matter between:

THEMBANI BAMBA

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation: Bamba v S (20089/14) [2014] ZASCA 219 (11 December

2014)

Coram:
Shongwe and Swain JJA and Mocumie AJA

Heard:
27 November 2014

Delivered:
11 December 2014

Summary:
Criminal law and procedure – circumstantial evidence – failure
by the State to prove factual link between exhibits allegedly collected at scene
and tested at ballistics laboratory – utmost care required of police in
recovering, storing, recording and conveying exhibits – duty on prosecution to
prove these elements.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from Western Cape High Court, Cape Town (Nyman AJ, (Louw J
concurring) sitting as court of appeal);
1 Special leave to appeal to this court against conviction is granted.
2 The appeal is upheld.
3 The order of the court a quo is set aside and substituted with the following:
„(a)
The appeal is upheld.
(b)
The order of the trial court is set aside and substituted with the
following order:
“The accused is found not guilty and discharged”.‟

______________________________________________________________

JUDGMENT
______________________________________________________________

Mocumie AJA (Shongwe and Swain JJA concurring):

[1] This is an appeal against the conviction coupled with an application to
lead further evidence. The appellant was charged in the Wynberg Regional
Court with one count of murder. The State alleged that the appellant shot and
killed Ludwe Golotile (the deceased), a 23 year old young man, on 20 January
2007. The appellant was legally represented at the trial and pleaded not
guilty. In spite of his plea he was, however, convicted as charged and
sentenced to 10 years‟ imprisonment. Not satisfied with his conviction and
sentence, the appellant thereafter appealed against both conviction and
sentence to the Western Cape High Court (Nyman AJ, Louw J). On 3
September 2013, the court a quo dismissed his appeal against the conviction,
but altered the trial court‟s finding that he possessed the requisite intention to
murder in the form of dolus directus to that of dolus eventualis. As a result, the
court a quo remitted the matter to the trial court for sentencing afresh.
However, before this process was completed, inexplicably, the court a quo
entertained and granted an application by the appellant for leave to appeal to
this court against his conviction, on 28 August 2013. By virtue of the fact that

the Superior Courts Act 10 of 2013 (the Act) repealed the Supreme Court Act
59 of 1959, as at 23 August 2013, the court a quo did not possess the
requisite jurisdiction to do so. The special leave of this court was required.1
Before us counsel for the appellant applied for special leave to appeal on the
ground that the prospects of success were so strong that the refusal of leave
would result in a manifest denial of justice. For the reasons set out below,
dealing with the merits of the appeal, the grant of special leave to appeal is
justified.

[2] I turn to the merits of the appeal.  The appellant, Constable Khunjulwa
Koboni and Constable Lulamile Galela (Galela) together with a number of
other policemen, were on crime prevention operation/patrol duty in Samora
Machel an informal settlement in Nyanga township, on the night in question.
They came across a group of people standing in the street who then scattered
in different directions into shacks along the street. Some of the people in the
group threw rocks at the police. Galela testified that he lost sight of the
appellant who had disappeared in amongst the shacks when he heard a
gunshot. He then met up with the appellant in between the shacks and asked
him whether he had fired a shot. The appellant replied that he had not, but
there was an individual hiding amongst the shacks. They found this person
seated behind one of the shacks. The appellant searched him but found
nothing. They then returned to the road where the truck they were travelling in
was parked. As they gathered with other police officers, Inspector Sebola, the
team leader that night, asked them whether anyone of them had fired a shot.
They all replied that they had not and then continued with their patrol of the
area.

[3] Mr Mondi Golotile (Golotile), the brother of the deceased, stated that
he and the deceased had run away from the police into different directions
when he heard a gunshot. Shortly thereafter he saw the police coming from
the direction the deceased had ran. A neighbour, Mr Themba Fondezi
(Fondezi) told him that the police had shot his brother. Fondezi stated that

1 Van Wyk v The State (20273/2014) and Galela v The State (20448/2014) [2014] ZASCA
152 (22 September 2014).

after he saw the deceased run past his shack he heard a gunshot. When he
looked out of the door, he saw two policemen walking in the direction the
deceased had ran. After the police left, he went out of his shack and found the
deceased seated and he lifted the deceased‟s head and a bullet head fell
from the deceased‟s shirt. The deceased then gave a gasp and passed away,
whereafter Golotile arrived on the scene.

[4] In his defence the appellant stated that he together with Galela had
followed some of these people in amongst the shacks. As he entered the
shacks he heard a gunshot. Because it was dark he could not tell from which
direction the shot had come, he retreated to an open area to get to safety.
Under cross-examination he stated that after he heard the gunshot he saw a
person sitting down whom he thought was drunk. He asked this person who
he was but he received no response. He did not search the person but
instead said to Galela they must leave, which they did.

[5] A report made later that night to the station commander of Nyanga
Police Station was that the deceased had been shot by the police. All the
police officers who were on duty in that area were questioned and their
firearms and magazines were confiscated by the operation commander,
Captain Stephen Brian McEvoy. The matter was then handed over to the
Independent Crime Directorate (ICD)2 the following day for further
investigations, by principal investigator Nkosiyedwa Booi (Booi).

[6] Seven semi-automatic firearms and six magazines which had been
confiscated from the police officers concerned were handed to Booi which he
placed in a safe at the ICD headquarters in Bellville. Booi then visited the
crime scene on 21 January, but did not find anything. He revisited the area on
22 January where he met Golotile, who gave him a spent bullet which he
referred to as a ‟bullet point‟. Golotile also pointed out where the bullet head,
which Booi  referred to as a „cartridge case‟, was located as pointed out in
photo A, on the photo of the scene, handed in as an exhibit.

2 Independent Crime Directorate is now known as the Independent Police Investigative
Directorate (IPID).

[7] I turn to consider the manner in which Booi dealt with the exhibits he
received, which were to be taken for ballistic examination. It must be accepted
that the object of the ballistic examination was to ascertain whether the bullet
head or cartridge was fired from any of the firearms belonging to the police
officers concerned. The appellant‟s legal representative in the trial court did
not challenge the conclusion made in the ballistic report that the projectile
(bullet head) and cartridge examined by ballistics were matched to the
appellant‟s firearm. What was challenged, however, was the link between
these exhibits and the scene of the crime and specifically the reliability of the
evidence connecting the projectile to the scene.

[8] Booi said he took the „bullet point‟ to his unit headquarters at Bellville
where he placed it in a safe and entered it in the ICD 1 register. He said it
would have been placed in an exhibit bag with a serial number but he could
not remember the number. He later identified a document as a copy of the
ICD firearm register and said that the number in respect of the firearms, 6
magazines and  ‟a projectile and a fired cartridge‟ was ICD 46/2007 as well as
Nyanga case number 52201/2007. He then repeated that ICD 46/2007
included ‟a projectile and a fired cartridge‟. He said he placed the firearms in
one bag and „the fired cartridge‟ in a different smaller plastic bag. He took
these bags to the ballistic laboratory for a ballistic comparison between the
firearms and the cartridge and the bullet head which Golotile gave to him.

[9] It is difficult to understand why Booi said he placed the cartridge in a
separate plastic bag to take to ballistic laboratory, if he had already placed it
in an exhibit bag, when he placed it in the safe. If this was not done, the real
danger arises of confusion with other exhibits which may have been in the
safe before. It is for this reason that exhibits must be sealed in exhibit bags
with a specific reference number for safekeeping. The unreliability of Booi‟s
evidence concerning the preservation and conveyance of the exhibits to the
ballistic laboratory is starkly illustrated when the ballistics report is examined.
This report was admitted by the trial court in terms of s 212 of the Criminal
Procedure Act 51 of 1977 without calling the author. The relevant parts of this
report read:

„On 2007-02-12 during the performance of my official duties I received a sealed
exhibit bag with number ICD-10230 marked inter alia “NYANGA CAS 522\01\07,”
“07WC 70” from Case Administration of the Ballistic Section, containing the following
exhibits:
3.6
One (1) 9mm Parabellum calibre Republic Arms RAP401 semi-automatic
pistol, serial number R 04275.
3.9
One (1) 9 mm Parabellum calibre Republic fired cartridge case, marked by
me “13556/07 A”.
3.10
One (1) 9mm calibre fired bullet, marked by me “13556/07 B”.
8.1
There is sufficient agreement of class characteristics and individual
characteristics, therefore the bullet and cartridge case mentioned in paragraph 3.9
and 3.10 were fired from/in the firearm mentioned in paragraph 3.6…‟   (My own
emphasis).
The report patently makes no reference to ICD 46/2007. In addition contrary
to Booi‟s evidence there was no separate bag for the projectile and cartridge.
When the disparity between the ICD numbers was brought to the attention of
counsel who appeared for the State, she fairly and properly conceded that no
reliance could be placed upon the ballistic evidence.

[10] On the facts of this case this evidence was crucial in establishing the
guilt of the accused beyond a reasonable doubt. In this regard, the trial court
erroneously concluded that it was common cause that „the fired bullet as well
as the fired cartridge found at the scene were linked to and proved to have
been fired by a firearm which had been issued to the accused by the South
African Police‟. The court a quo simply stated that „a spent bullet head and
cartridge that were allegedly found in the vicinity of the shooting, were handed
to the investigating officer. Ballistic evidence linked the bullet head and
cartridge to the appellant‟s firearm‟. It did not, however, consider the reliability
of the evidence to prove that these were the same exhibits which were
subjected to ballistic testing.

[11] I turn to consider the remaining evidence led by the state. None of the
witnesses saw the appellant or any police officer shoot the deceased.
Although the appellant did not dispute that he was in the vicinity where the

deceased was found shot, he denied that he had discharged his firearm that
night. He maintained that when he surrendered his firearm and magazine at
the end of the operation, his firearm still contained its full complement of
ammunition issued to him prior to the operation. As is evidenced from the
record, there is no direct evidence to gainsay his version.

[12] In rejecting the appellant‟s denial that he was the person who shot the
deceased,  the trial court relied mainly ─ if not exclusively ─ on the results of
the ballistic examination,  concluding that the fired bullet head which killed the
deceased, as well as the cartridge case were fired from the appellant‟s
firearm. The trial court also made a finding that the only reasonable inference
that could be drawn from the established and proven facts was that the
person who fired the shot at the scene caused the death of the deceased; and
that it was the appellant who fired this shot. The trial court also accepted the
evidence of Golotile that he found the projectile and the cartridge at the scene
of crime. It surmised that it would have been impossible for Golotile to have
found the cartridge and projectile from anywhere else unless he had access to
the appellant‟s firearm. For the reasons set out above, the trial court erred in
concluding that the link between the exhibits subjected to ballistic testing and
those allegedly found at the scene, had been established.

[13] What happened on the night in question is common cause. What is in
issue is who shot and killed the deceased. The crux of the matter is then
about drawing a reasonable inference from the proven facts. In R v Blom3
this court observed:
„In reasoning by inference there are two cardinal rules of logic which cannot be
ignored:
(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.‟

3 R v Blom 1939 AD 188 at 202-203.

[14] Applying the test to the facts of this case, in the absence of the ballistic
evidence linking the appellant‟s firearm to the bullet head and fired cartridge
allegedly found at the scene, in substance, the inference that the trial court
sought to draw was not the only inference to be drawn from the proven facts.

[15] It is trite that the prosecution must prove its case beyond a reasonable
doubt. Equally trite is the observation that, in view of this standard of proof in
a criminal case, a court does not have to be convinced that every detail of an
accused‟s version is true. If the accused‟s version is reasonably possibly true,
in substance, the court must decide the matter on the acceptance of that
version.4 For the reasons set out above the appellant‟s version is reasonably
possibly true. Simply put, a reasonable doubt exists as to the appellant‟s guilt
and the appellant must be afforded the benefit of that doubt

[16] This brings me to the application by the appellant for the matter to be
remitted to the trial court for the hearing of further evidence. After counsel for
the State conceded that no reliance could be placed upon the ballistic
evidence, counsel for the appellant abandoned the application. This was
because the further evidence was aimed at establishing that the appellant had
in the past fired several warning shots in the informal settlement, to explain
the alleged presence of the bullet head and cartridge at the scene.

[17] Lastly, what this case illustrates is that the utmost care must be taken
by the police particularly investigating officers in the recovery, storing,
recording and conveying of ballistic exhibits which is to be subjected to
ballistic examination. In addition, the state must ensure that the requisite
evidence to prove these requirements is led. This is to avoid material
discrepancies seen throughout the entire proceedings in the trial court.

[18] In the light of the conclusion I have reached, the appeal ought to
succeed.

4 S v Shackell 2001 (4) All SA 279 (A).

[19]  In the result, the following order is granted:
1 Special leave to appeal to this court against conviction is granted.
2 The appeal is upheld.
3 The order of the court a quo is set aside and substituted with the following:
„(a)
The appeal is upheld.
(b)
The order of the trial court is set aside and substituted with the
following order:
“The accused is found not guilty and discharged”.‟

________________________
B C MOCUMIE
ACTING JUDGE OF APPEAL

Appearances

For the Appellant:

P V Higgo
Instructed by:
Parker & Khan Inc, Lansdowne
E G Cooper Majiedt Inc, Bloemfontein

For the Respondent:
Ms M Engelbrecht
Instructed by:
The Director of Public Prosecutions, Cape Town
The Director of Public Prosecutions, Bloemfontein