CA NO. 37/2002






This case came before me on automatic review.         The two accused were
charged with the offence of housebreaking with intent to steal and theft. They
were found guilty as charged despite their plea of not guilty. Each of the
accused was sentenced to eight months imprisonment.


On the 29 March 2002 the complainant was from work and he arrived at his
house at 21h00. He found the door broken. After entering the house, he
found that his 51cm Panasonic TV, 5 packets of meat, bag and R500-00 cash
were missing. There were two sets of shoe prints and one set of foot prints
leading from the complainant’s home to accused 2's home. From accused 2's
home these prints led complainant to a house where he found the two accused
and two other people.
Thereafter the complainant reported the matter to the police.
The meat was later recovered from the house where complainant initially found
the two accused and two other people. The TV was found at Mr Mokoto’s
in-laws. Mr Mokoto bought the TV after it was brought to him by both

The two accused, during plea explanation, denied having entered the
complainant’s house. They denied stealing his goods. Accused 1 did not
testify. Accused 2 testified. According to his evidence, he was with accused
1 when they found two boys in possession of this TV next to the road.
Accused 2 then told these boys that he is taking this TV for himself because it
was out of order. Accused 1 then went to call Mr Mokoto who came with a
motor vehicle to load this TV. Accused 2 told Mr Mokoto that he is selling
this TV for R1000-00. They left the TV with Mr Mokoto.


I had some misgivings about the conviction of accused 1.                   I then raised,
amongst others, the following queries for the response of the presiding

      “3. Does the evidence support the conviction of accused 1 in view
      of the following:-

           a)          The shoe and foot prints led the complainant and the police to
      accused 2's place and not to accused 1's place. Accused 1 cannot be linked
      with any of those sets of prints.

      4.               The house where the meat was found was pointed out by
      accused 2. Accused 1 did not even say anything about this meat.

      5.               According to Mr Mokoto, the discussion regarding the sale of
      the TV and document pertaining to this TV was between him and accused 2,
      who claimed to be the owner of the TV. Accused 1 said nothing about the TV
      which could have linked him with the commission of the offence.

      4.        Does the fact that accused 1 was with accused 2 at the house where the meat
      was found and at the house where the TV was found prove beyond reasonable doubt
      that accused 1 committed the offence in question?”
After receiving the reply from the presiding magistrate, the issue is still whether the evidence
tendered at the court a quo proves the guilt of accused 1 beyond a reasonable doubt.


The rule that the prosecution bears the burden of proving the guilt of the accused beyond a
reasonable doubt, and that there is no onus lying upon the accused to prove his innocence has
long been settled by judicial precedent. (See R v Difford 1937 AD 370; R v M 1946 AD
1023, S v Kubeka 1982 (1) SA 534 (W) and S v Munyan 1986 (4) SA 712 (V). I think it is
apposite in this regard to repeat a frequently quoted passage from the judgment of Greenberg
J in R v Difford (supra) at 383:

       “ ...... no onus rests on the accused to convince the court of the truth of any
       explanation which he gives.         If he gives an explanation, even if that
       explanation is improbable, the court is not entitled to convict unless it is
       satisfied, not only that the explanation is improbable, but that beyond any
       reasonable doubt it is false.     If there is any reasonable possibility of his
       explanation being true, then he is entitled to his acquittal”.

There is no direct evidence to the effect that the accused were seen entering the complainant’s
house and removing the goods in question. The state’s case, therefore rests on circumstantial
evidence which requires the court to decide on the guilt of the accused after drawing some
inferences.   (See R v Blom 1939 AD 288 at 202-203).              Even where the evidence is
circumstantial, the prosecution still need to prove its case beyond a reasonable doubt (See R v
Mthembu 1950 (1) SA 670 (AD) at 679-680 and S v Shepard and Others 1967 (4) SA 170
(W) at 172 F-H and 173 A-D).

I now turn to apply the afore-going legal position to the facts of this case. The magistrate, in
her reply to the query, based her conviction of accused 1 on the following findings she made:

       (1)             That Mr Mokoto stated that two accused came to his place and that
       both accused told him that they are selling the TV

       (2)             That both accused told the police where the stolen items were;

       (3)             That both accused first took the police to a wrong place and that later
       they took the police to the correct place where the TV was found;
       (4)             That accused 1 did not even give evidence to gainsay what Inspector
       Sedumedi said regarding what accused 1 told him.

I will deal with these point seriatim. Regarding the first point, it is common cause that
when the TV was taken to Mr Mokoto’s place the two accused were together. Under
cross-examination by accused 2, Mr Mokoto said accused 2 was with accused 1 when they
brought the TV to him but it was accused 2 who was talking to him. Even his evidence in
chief shows that the discussion about the sale of the TV was between him and accused 2.
This is a clear indication that, because the TV was brought by both the accused, Mr Mokoto
concluded that both accused were selling the TV.

Concerning the second point, accused 1 never told the police anything about the stolen meat.
He did not even point out the house where the meat was found. The complainant’s evidence
is to the effect that it is accused 2 who pointed out the house where the meat was found. At
the time when this house was pointed out, according to the complainant, accused 1 was not

If accused 1 took the police to Mr Mokoto’s place there is nothing sinister in that because he
was present when the TV was taken to Mr Mokoto’s place. This fact alone cannot justify the
drawing of an inference that accused 1 also took part when the TV was stolen from the
complainant’s house.

Regarding the third point, the true position is that accused 1 never misled the police regarding
the place where the TV was. According to the evidence of Inspector Sedumedi it is accused
2 who misled him regarding the place where the TV was because accused 2 firstly said the
TV was at accused 1's place.
Lastly the magistrate, in convicting accused 1, relied on the fact that accused 1 did not testify
“to counter what Sedumedi said he told him”. It is trite law that where there is evidence
implicating the accused in the commission of the offence, and the accused failed to testify, his
failure to testify strengthens the State’s case (See S v Segale and Others 1960 (1) SA 721 (A)
at 732 A-B; S v Masia 1962(2) SA 541 (A) at 547 B, S v Mehlape 1963 (2) SA 29 (A) at 34
F-G, and S v Mogotsi and Another 1982 (1) SA 190 (B) at 192 A-B).

The three state witnesses, in their evidence, did not say anything which incriminates accused
1 in the commission of the offence in question. The accused’s failure to testify can only be
used as a factor against him where at the end of the state’s case there is evidence on which a
court may convict. In other words it can only be used against the accused where the state has
prima facie discharged the onus which rests on it. It cannot be used to supplement a
deficiency in the state’s case (See S v Masia, supra, at 546 E). I, therefore ally myself with
the view that inadequate state evidence is not turned into proof beyond reasonable doubt by
the accused’s failure to testify. (See S v Matsiepe 1962 (4) SA 708 (A) at 716 G.

As I have already pointed out, the case for the state rests on circumstantial evidence.
Regarding circumstantial evidence, the accused’s failure to testify is of importance if the only
reasonable inference to be drawn from the proved facts is one of guilt. (See S v Theron 1968
(4) SA 61 (T) at 64 B-C). In the present case the inference of accused 1's guilt cannot be
drawn with the requisite degree of certainty. Accused 1's position is totally different from that
of accused 2 who was implicated by evidence of the state witness. Accused 2's false
evidence justified the drawing of inference of guilt. (See S v Rama 1966 (2) SA 395 AD).

In view of the afore-going considerations, it seems to me that the magistrate should have
entertained a reasonable doubt as to the guilt of accused 1. I am satisfied about the
conviction and sentence of accused 2. In the result:

          (1)   the conviction and sentence of accused 1 is set aside and the immediate
                release of accused 1 is hereby authorised. The Registrar is directed to
                secure the immediate release of accused 1; and

          (2)    the conviction and sentence of accused 2 is confirmed.


I agree


DATED:          30 MAY 2002

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