James Nkosi v The State

On 9 September 2004, a gang of armed robbers attempted a cash-in-transit heist on Fidelity Cash Management Services security guards along the N12 highway between Benoni and Etwatwa. The police had received a tip-off and were strategically positioned along the route. During the attempted robbery, a gunfight ensued between the armed gang (using AK47 rifles and 9mm pistols) and police. Four men were shot - two died at the scene, one died in hospital, and the second appellant was wounded and arrested at the scene. The first appellant was separately arrested at a Daveyton taxi rank after police pursued a Mazda 626 vehicle observed fleeing the crime scene. The appellants were charged with multiple offences including robbery of a Toyota vehicle, attempted robbery of the Fidelity vehicle, attempted murder, three counts of murder of the would-be robbers, and various firearms and ammunition charges. They were acquitted of the Toyota robbery and the three murder charges (as the deceased gangsters were found to have been lawfully killed by police acting in self-defense). Both were convicted of attempted robbery, attempted murder, and the firearms/ammunition charges, and each sentenced to an effective 22 years imprisonment.

• Whether the first appellant should have been discharged at the close of the state's case in terms of section 174 of the Criminal Procedure Act 51 of 1977
• Whether the trial court properly exercised its discretion in refusing to consider a discharge application for the first appellant
• Whether the convictions of both appellants were supported by sufficient evidence
• Whether the first appellant's right against self-incrimination was violated by being placed on his defense when the state had no prima facie case
• Whether the sentences imposed on the second appellant were appropriate

1. The first appellant's appeal succeeded. His convictions and sentences were set aside. 2. The second appellant's appeal was dismissed.

1. An accused must be discharged in terms of section 174 of the Criminal Procedure Act 51 of 1977 at the close of the state's case if there is no evidence upon which a reasonable person, acting carefully, might convict. 2. A trial court acts unlawfully and violates an accused's constitutional rights (particularly the right against self-incrimination under sections 10 and 12 of the Constitution) when it refuses a discharge application where there is no possibility of conviction except if the accused testifies and incriminates himself. 3. While the prosecution may ordinarily rely on evidence from a co-accused to supplement its case, a trial court should not refuse a discharge application based merely on hope or speculation that a co-accused might provide incriminating evidence when there is no reasonable basis for such expectation and no evidence upon which to convict at the close of the state's case. 4. Where there are material discrepancies and gaps in the state's evidence linking an accused to the crime scene or criminal conduct, and the only connection is circumstantial and inherently unreliable, a conviction cannot be sustained. 5. Presence at a crime scene in suspicious circumstances, coupled with implausible explanations and contradictory evidence, can establish guilt beyond reasonable doubt, particularly where the accused was found in close proximity to the instruments of crime and fellow perpetrators.

1. The court observed that whether or in what circumstances a trial court should discharge an accused who might be incriminated by a co-accused cannot be answered in the abstract, as circumstances vary. While there might be cases where it would be unfair not to discharge, one can envisage circumstances in which to do so would compromise the proper administration of justice. What constitutes a fair trial must be determined by particular circumstances. 2. The court noted that it was a "miracle" that the civilian victim (Humphries) survived and that more people were not maimed or killed in the incident, commenting on the extreme violence and danger posed by such crimes. 3. The court made observations about the prevalence of violent cash-in-transit robberies in South Africa, stating that such offences "count among the most violent and, unfortunately prevalent in this country" and that "the harshest form of punishment is undoubtedly warranted." 4. The court noted that in this case there was "little in the circumstances...to distinguish between a completed robbery and the heinous, foiled attempt" given the use of heavy artillery, gratuitous violence, and disregard for public safety, even though the statutory minimum sentence prescribed under section 51(1) of the Criminal Law Amendment Act 105 of 1997 applies only to completed robbery and not attempted robbery.

This case is significant in South African criminal jurisprudence for several reasons: 1. It reaffirms the principle established in S v Lubaxa 2001 (2) SACR 703 (SCA) regarding the constitutional right against self-incrimination and the impropriety of refusing a discharge under section 174 when there is no possibility of conviction except through the accused's own testimony. 2. It clarifies that while the prosecution may ordinarily rely on evidence from a co-accused to supplement its case against another accused, this does not justify refusing a discharge application when there is no evidence at the close of the state's case and no reasonable basis to expect that a co-accused will provide incriminating evidence. 3. It emphasizes that placing an accused on his defense when the state has failed to establish a prima facie case violates the constitutional right to a fair trial under sections 10 and 12 of the Constitution. 4. It demonstrates the critical importance of proper evaluation of evidence at the close of the state's case and the proper exercise of judicial discretion regarding section 174 applications. 5. On sentencing for serious violent crimes involving cash-in-transit robberies, it affirms the approach of imposing harsh sentences commensurate with the prescribed minimums, reflecting the prevalence and serious nature of such crimes in South African society. 6. It illustrates the principle that appellate courts will not interfere with sentences unless they are vitiated by irregularity or misdirection or are disturbingly inappropriate (S v Rabie principle).