Norman Dlepu v The State

On 1 March 1999, Albert Henry Collin Moorcroft was robbed of his Isuzu bakkie by two young men in Newton Park, Port Elizabeth. The bakkie contained his briefcase with personal documents, a Nokia cell phone, keys, letters and R40 cash. Police officers Vosloo and Kruger, on crime prevention duties, received a radio report of the robbery. They later followed a gold Audi sedan in Newton Park and observed a male person carrying an object run from a house and enter the Audi's back seat. They stopped the Audi with five occupants and found Moorcroft's briefcase containing a .38 Rossi revolver with tampered serial number, three live rounds of ammunition, chequebooks, letters, cell phone and Moorcroft's identity document. Motor vehicle keys were found on the grass near the Audi. Police discovered Moorcroft's bakkie in a garage at the house, with a warm bonnet, which could be started with the keys found. A piece of paper with Moorcroft's name was later found under the Audi's sun visor. The appellant was one of the back seat passengers in the Audi but was not the driver nor the person seen running from the house with the briefcase. Moorcroft failed to identify any accused in an identification parade. The appellant's version was that he ran a shebeen and café, had arranged to use Ndlovu's (accused no. 5) Audi to buy stock after 14h00, and was an innocent passenger unaware of any robbery.

• Whether the regional court applied the correct test in evaluating the appellant's version against the State's evidence
• Whether the regional court erred in treating the accused persons' individual versions as a unified defence and finding contradictions between them
• Whether the circumstantial evidence excluded all reasonable inferences except the appellant's guilt
• Whether the appellant's version was reasonably possibly true
• Whether the evidence was sufficient to establish common purpose liability for the robbery

The appeal succeeded. The order of the court a quo was set aside and replaced with an order that: (1) the appeal succeeds; (2) the conviction and sentence of the appellant are set aside; and (3) the appellant (accused no. 3) is found not guilty and discharged.

The binding legal principles established are: (1) Where an accused person charged jointly with others presents an individual version, that version must be evaluated on its own merits and not contrasted with co-accused versions as if they presented a unified defense. (2) The test for conviction is whether the State has proven guilt beyond reasonable doubt; an accused must be acquitted if his version is reasonably possibly true. (3) Where the State's case rests on circumstantial evidence, all the proved facts taken together (not each fact individually) must exclude every other reasonable inference except guilt. (4) In assessing circumstantial evidence to determine whether the only inference is guilt, the court must consider the accused's version, as the court must be satisfied the version is not reasonably possibly true. (5) An accused's version cannot be rejected merely because it is improbable; it can only be rejected on the basis of inherent probabilities if it is so improbable that it cannot reasonably possibly be true. (6) A finding of common purpose requires evidence establishing: (a) causal connection to the crime; (b) presence at the scene or awareness of the commission of the crime; and (c) shared common purpose with the perpetrators. Minor contradictions in an accused's testimony do not alone justify rejection of the version or a finding of guilt.

The court acknowledged the difficulty appellate courts face in conducting the investigation into whether an accused's version is reasonably possibly true, as they must do so 'on paper' without the advantage of observing and hearing witnesses firsthand as the trial court does. The court referenced R v Dhlumayo 1948 (2) SA 677 (A) at 696 in noting this limitation. The court also observed that the appellant's evidence about receiving a call to pick up people, while supporting the State's theory that the Audi was a 'pick up' car, was 'a powerful demonstration that he was unaware what Ndlovu was up to' precisely because it was incriminating evidence that he nevertheless gave. This demonstrated his truthfulness rather than guilt.

This case is significant in South African criminal law for its clear articulation of fundamental principles in evaluating evidence and accused persons' versions. It reinforces that: (1) where multiple accused present individual defenses, each version must be evaluated independently rather than as a collective defense; (2) courts must apply the correct test of whether an accused's version is 'reasonably possibly true' rather than comparing versions for contradictions; (3) in cases based on circumstantial evidence, all proved facts taken together must exclude every reasonable inference except guilt; (4) an accused's version cannot be rejected merely because it is improbable, only if it is so improbable that it cannot reasonably possibly be true; (5) findings of common purpose require specific evidence of causal connection, presence, awareness and shared intent; and (6) the State must prove guilt beyond reasonable doubt, not on a balance of probabilities. The judgment provides important guidance on proper evaluation of evidence and accused versions in criminal trials.