Shole v The State

On the night of 3 November to the morning of 4 November 2005, at least four persons broke into the business premises (tavern and tuckshop) of Ms Manini Elizabeth Smith in Ramatlabama, District of Molopo. The robbers gained access to a money box inside a pool table and stole its contents. They then gained entry to the residential premises by breaking a dining room window. Ms Smith and her sons, Stanley and Enoch, were assaulted during the incident. Stanley was fatally assaulted and died on the premises. The first appellant (Kabelo Melvin Shole) and second appellant (Jafta Bushy Lekena) were charged with housebreaking with intent to rob, robbery with aggravating circumstances, and murder. The first appellant's conviction was based on evidence of two State witnesses (Godfrey Samuel Kutsuakai Moetaesi and Otusitse Archibald Phefo) who testified that he had 'confessed' to being involved in the incident. The second appellant's conviction was based on fingerprint and palm print evidence. His palm print was found on the windowsill of the window through which access was gained into the residence, facing away from the window about a metre from the ground. His fingerprints were lifted from the money box inside the pool table. Warrant Officer Phillipus Nel, an expert, testified the prints were fresh, having been lifted a few hours after the incident.

• Whether the evidence of witnesses regarding the first appellant's 'confession' was properly admitted and sufficient to establish guilt beyond reasonable doubt
• Whether the delay in reporting the confession affected the credibility of the witnesses
• Whether the trial court properly assessed the credibility of witnesses, particularly where one witness was found unreliable
• Whether fingerprint and palm print evidence constituted sufficient circumstantial evidence to establish the second appellant's guilt beyond reasonable doubt
• Whether the second appellant's explanation for his fingerprints and palm print being at the scene was reasonably possibly true
• Whether the inference of guilt was the only reasonable inference to be drawn from the fingerprint and palm print evidence

The appeal against conviction by both appellants was dismissed.

The binding legal principles established are: (1) When assessing the credibility of a single witness regarding a confession, the court must weigh the evidence, consider its merits and demerits, and decide whether it is satisfied that the truth has been told despite any shortcomings or defects in the evidence (applying Magadla v S). There is no magic formula. (2) For circumstantial evidence such as fingerprints and palm prints, the two cardinal rules from R v Blom apply: (a) the inference sought must be consistent with all proved facts, and (b) the proved facts must exclude every reasonable inference except the one sought to be drawn. The inference of guilt must be the only reasonable inference, not merely a reasonable inference. (3) Fresh fingerprints found on incriminating objects (such as stolen items) and at points of entry shortly after a crime has been committed have significant probative value and can support a conviction. (4) Where an accused provides an explanation for the presence of fingerprints at a crime scene, the court must assess whether that explanation is reasonably possibly true. If the explanation is so remotely possible that it can be safely rejected, and the only reasonable inference is guilt, a conviction may follow. (5) The presence of fresh fingerprints on the inside of a window soon after a robbery operates powerfully against an accused (applying R v Nksatlala and S v Legote).

The Court made several non-binding observations: (1) It would be 'absurd, and a security breach' if any patron at a tavern could touch a money drawer/box inside a pool table, as such drawers are kept inside the table for the sole purpose of keeping them away from customer access. (2) The Court noted that it was significant that the second appellant failed to put his version to key witnesses who could have corroborated it - specifically, he did not put to Ms Smith (the complainant) that customers may touch the money drawer when money was collected, nor did he put to Warrant Officer Nel his explanation for how fingerprints may be deposited on the money box, despite Nel explaining fully how prints may be deposited. (3) The Court observed that there were 'startling similarities' between the evidence of the two witnesses (Godfrey and Phefo) regarding the first appellant's confession, despite the fact that they received the information separately and not in each other's presence. This corroboration was noted even though one witness was found to be poor/unreliable overall.

This case is significant in South African criminal law for several reasons: (1) It demonstrates the proper approach to assessing confession evidence made to private individuals (not police officers) and the test for determining credibility where there is alleged delay in reporting. (2) It confirms that where one witness is found unreliable, corroboration from another witness whose credibility is accepted can still support a conviction. (3) It provides clear guidance on the application of the Blom test for circumstantial evidence, particularly in relation to fingerprint and palm print evidence. (4) It establishes that fresh fingerprints found at a crime scene in incriminating locations (such as on stolen items and points of entry) can constitute sufficient evidence for conviction where the accused's explanation is found to be not reasonably possibly true. (5) It affirms that the probative value of fingerprint evidence must be assessed in the context of where and how the prints were found, and that explanations that are 'remotely possible' can be safely rejected. (6) The case illustrates the proper approach to appellate review of credibility findings made by trial courts.