IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

In the matter of: 
THE STATE 
Versus
FANI MASUKI MHLONGO

JUDGMENT

The appellant, accused No 3, together with two co-accused, appeared in the regional court on five charges of robbery with aggravating circumstances, as well as illegal possession of firearms and ammunition.

All three accused pleaded not guilty to the charges, but the appellant and accused No 2 were nonetheless convicted as charged. The former accused No 1 was acquitted on all charges.

The various counts were taken together for purposes of sentence and the appellant and accused No 2 were thereupon sentenced to effective terms of 15 years imprisonment each.

The appellant noted an appeal against his convictions.

The events giving rise to the prosecution took place shortly after 10:00 p.m. on Sunday evening, 12 November 2000, at the Silverado Spur restaurant in Hout Bay. The evidence of the State witnesses establishes beyond doubt that on that occasion four men, acting in concert, robbed the restaurant of some R10 000,00 in cash. In addition, four employees and patrons of the restaurant were robbed of personal items such as jewellery and watches. Three of the robbers were armed with firearms. The robbers thereupon left the restaurant and their victims cafled the police. The three accused were apprehended by the police shortly afterwards the same evening.

At the identification parade held approximately two weeks later, a few of the witnesses identified accused No 2. Only
one of them identified the appellant, but she was not 100% certain of this identification.The evidence against the appellant therefore is largely circumstantial.

What is the evidence on which the State relies? Firstly, the Spur restaurant in Hout Bay was robbed after 10:00 p.m. on the night in question by four black men who were neatly dressed, at least three of whom were armed with firearms. Apart from approximately R10 000,00 in cash, the victims were robbed of jewellery and personal items such as wrist watches. Shortly after receiving the report of the robbery, the police observed four men walking in the street less than half a kilometre from the scene of the robbery. On the face of it, they fitted the description furnished to the police. There were four of them, they were black, male, neatly dressed and they were together. As the police van pulled up in front of the men, three of them ran away. The appellant stood still and was apprehended. The police found a silver 38 special revolver in his possession. At a later stage, so the police testified, they also found some jewellery in his possession, which was subsequently identified by some of the victims as their property.    Two of the other suspects were apprehended shortly afterwards while they were attempting to hide from the police. Firearms were found in thefr possession, as well as serviettes from the Spur.

In considering the impact of circumstantial evidence, the Court should not look at each factor in isolation, but should consider the totality of the evidence.

GRIESEL, J