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[2016] ZAGPJHC 224
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Nxumalo and Another v S (A289/2015) [2016] ZAGPJHC 224 (19 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
Case
No A289/2015
DATE:
19 AUGUST 2016
In
the matter between:
NXUMALO,
FRANCIS
...................................................................................................
First
Appellant
SIBANDA,
ABSALOM
................................................................................................
Second
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
MAILULA,
J:
1.
The appellants were convicted by the Regional Magistrate,
Johannesburg, of housebreaking with intent to steal and theft. They
were each sentenced to 6 (six) years’ imprisonment. In addition
both appellants were declared unfit to possess a firearm
in terms of
section 103
of The
Firearms Control Act No 60 of 2000
.
2.
Subsequent thereto, the appellants lodged and filed an application
for leave to appeal against both the conviction and sentence.
On 26
February 2015, leave to appeal against the conviction was granted and
leave to appeal against the sentence was refused. The
appeal is in
the premises directed against the conviction only.
3.
The grounds of appeal may be summarised as follows:
3.1
That the learned Magistrate erred in accepting the evidence by the
state in light of improbabilities and inconsistencies/contradictions
between the state witnesses.
3.2
That the learned Magistrate failed to apply cautionary rules in
respect of single witnesses.
3.3
That the learned Magistrate totally disregarded the appellants’
version.
4.
It was common cause at the hearing of this matter in the court below:
4.1
that the complainant’s Fani Ehapi’s (Ifeanyi Iheanetu’s)
shop was broken into through the roof;
4.2
the shop is situated at the corner of President and Delvers Streets,
Johannesburg;
4.3
that the incident occurred between 18 May 2013 and 20 May 2013;
4.4
that the following items were stolen from the shop: 1500 pairs of
jeans, 32 watches, 80 belts, 102 jackets and R3150,00
cash; and
4.5
the appellants were arrested on 20 May 2015 in the early hours of the
morning, by security guards and later handed over
to the police.
5.
The real issue which the trial court had to decide was the identity
of the appellants.
6.
The state led the evidence of the complainant, Fani Ehapi (Ifeanyi
Iheanetu), the security guard Joseph Thaba as well as the
two
policemen Simon Malitsa Ramakolo and Oscar Bhekikhaya Duma,
respectively.
6.1
The complainant testified to the effect that on Saturday, 18 May
2013, he closed his shop at about 15h00. Everything was
locked and
secured. He went home and the following evening just before 20h00 he
received a call from ADT security company, informing
him that the
alarm at the shop had been triggered. He was told that a unit will be
sent to the premises and that he would be advised
if all is in order.
The security company never came back to him. The following Monday he
arrived at his business at about 08h30.
He found that there was a
break-in. Entry was gained through the roof. Both the iron/sink roof
and the ceiling had been damaged.
The items listed in the charge
sheet had been stolen. He estimated that the value of the goods
stolen was approximately R1 341
000,00. He recovered 310 pairs of
jeans with an approximate value of R93 000,00. These jeans were given
back to him by the police.
He does not know who broke into his shop.
He indicated that he knew the second appellant. The latter used to
come to his shop.
6.2
Joseph Thaba is employed with Fasda Protection Security Services. He
testified that on 20 May 2013 at about 01h30 he was
at the corner of
President and Von Wielligh streets, when he saw a male person clad in
a green jersey and blue jeans crawling/climbing
up a water pipe
towards a shop. He called his colleagues and they also went up the
pipe to the rooftop. They found two male persons
busy folding jeans.
When the two males saw them they started running away. He noticed
that there was a hole on the roof. It appeared
that the metal roofing
sheet had been removed and the ceiling cut out. He realised that the
jeans had been removed from the shelves
through that hole. The
two men ran down the stairs to the residential building next to the
shop. Thaba and his colleague(s)
gave chase. They caught up with the
two men who he identified as the first and the second appellant. The
male person he had initially
seen going up the waterpipe was not
between the two. The appellants reported that the male person is in
the lift. All three were
apprehended and later handed over to the
police. The jeans were also handed over to the police.
6.3
Ramakolo, a constable in the South African Police Service, testified
that on 20 May 2013 he was doing patrol duties together
with
Constable Duma. They were stopped by an unknown person who reported
that there was a break-in at a shop at the corner of Delvers
and
President Streets. They drove to the place and found Thaba, who
reported that they had apprehended three suspects who had allegedly
broken into the shop through the roof. The jeans stolen from the shop
were still on the rooftop. They collected these items and
later
booked them into the SAP 13 register. The three suspects, including
the appellants, were arrested.
6.4
Constable Duma confirmed that he together with his colleague, were
patrolling around President Street. They were
stopped by an
unknown male who reported a break-in into one of the shops. They
rushed to the shop where they found five security
officers from
Fasda. Thaba informed them that he had apprehended three suspects for
allegedly breaking into business premises.
They were handed over to
them. They put the suspects in the van. The items of clothing which
they had allegedly stolen were also
put in the van and later booked
into the SAP 13. He stated that it was about 01h00 to 01h30. They did
observe that the culprits
gained entry into the shop through the
roof.
7.
The appellants were the only witnesses for the defence.
7.1
The first appellant stated that on 20 May 2013 he was with the second
appellant. They were busy sewing hats in preparation of
an order
which was placed by a lady from Utopia (Ethiopia) by the name of Lee.
They had to deliver the order the following morning.
The needles on
the sewing machine broke. They decided to go and fetch some from
their residence, namely Anderson House in Von Brandis
Street. When
they reached the corner of Pritchard and Delvers streets they saw two
security officers together with accused 3 at
the hearing of the
matter in the court below. The security officers called them. They
then approached. The security officers wanted
to know where they were
going to. They explained that they were going to fetch needles at
their residence. There was a “misunderstanding”
as the
officers wanted to handcuff them. The officers pepper sprayed them
and started assaulting them. Other people also joined.
They could not
see as a result of the pepper spray. He denied that he was involved
in the break-in and stated that he knew nothing
about it. He was
resident at Anderson house. The second appellant resided at corner
Nugget and Commissioner streets. He did not
know accused 3.
7.2
The second appellant testified that he was with the first appellant
at Cambridge Flat. They, the first and the second
appellants, had
spent the night sewing. The sewing machine needles broke. They
proceeded to the first appellant’s residence
to fetch needles.
When they reached the corner of Delvers and Pritchard streets, the
security officers from Fasda approached them.
They asked where the
two were going and they explained that they were going to fetch
needles from home, but the security officers
did not accept that.
They wanted the appellants to admit that they are the ones who broke
into and stole items from the shop. The
officers pepper sprayed them.
He lost sight. They were handcuffed and assaulted. They were then put
in the motor vehicle and taken
to the police station. He denies that
he broke into the shop. He denied that he stole items from the shop.
He insisted that he
was apprehended whilst walking in the street. He
did not know accused 3.
8.
As alluded to earlier, the issue the trial court had to decide was
identity.
9.
Ms Maharaj, on behalf of the appellants submitted that the court
below failed to attach due weight to the contradictions and/or
inconsistencies in the state’s case. According to Thaba the
appellants accessed the adjacent building via the staircase.
He is
contradicted by Ramakolo who stated that there was no staircase but a
wall and that one did not need a staircase to get to
the adjacent
building. Further, that the witness Thaba, could not have had
ample opportunity to properly observe the appellants
as on his
version the appellants were on the rooftop, immediately they saw him
they ran away, it was at night, and when they were
later arrested no
housebreaking implements or any of the stolen items were found on
either of them. No fingerprints were found
on the crime scene and no
video footage placing the appellants on the scene was produced. It
was argued further that the state
relied on the evidence of a single
witness in respect of the appellants’ identity. The learned
Magistrate failed to apply
rules of caution, as required when
considering the evidence of a single witness. Relying on the dictum
in
S v Makobe
1991 (2) SACR 456
(W), the appellants’
legal representative submitted that the trial court erred in simply
rejecting the appellants’
version because it accepted the
state’s version. The court should have found that the defence
version is reasonably possibly
true as the appellants did not
contradict themselves and no objective evidence placing them on the
scene was placed before the
court.
10.
Mr Mongwane submitted that Thaba was a reliable witness and the
defence version was not reasonably possible in light of the
contradictions between them. In the premises, the appeal
against the conviction should be dismissed.
11.
The appeal is directed against the factual findings by the trial
court. It is trite that the court of appeal will only interfere
if it
is convinced that the trial court is wrong. “The appellate
court should not seek anxiously to discover reasons adverse
to the
conclusion of the trial Judge. No judgment can ever be perfect and
all-embracing, and it does not necessarily follow that,
because
something has not been mentioned, therefore it has not been
considered.” per Davis AJA in the case of
R v Dhlumayo and
Another
1948 (2) SA 677
(AD).
12.
The trial court was alive to the fact that the real issue to be
decided was identity of the perpetrators. The learned Magistrate
specifically remarked in his judgment that the main issue was whether
the appellants and the co-accused were responsible for the
break-in
at the complainant’s premises. After summarising the evidence
placed before him he correctly observed that the State
is the party
that bears the onus of proof and that the standard of proof to be
satisfied is proof beyond reasonable doubt. He further
in evaluating
the evidence relies on the principles propounded in
S v Mthetwa
1972 (3) SA 766
(AD) relating to evidence on identification. He
observes further that Thaba is the one who positively identified the
appellants.
The fact that he does not refer to him as a single
witness does not detract from the fact that he is dealing with
identification
by a single witness. The criticism leveled against the
trial Magistrate is in my view without merit. He clearly warned
himself
to approach the evidence with caution at both the level of a
single witness as well as identification.
Most
importantly, Thaba testified that the appellants ran away when they
saw him and his colleague(s) and that he never lost sight
of them.
There is therefore no room for mistaken identity. This ground of
appeal should therefore fail.
13.
On the issue of the contradictions between Thaba and Ramakolo whether
there is a staircase leading to the adjacent residential
building, I
must state that Ramakolo’s evidence is somewhat confusing and
in some respects non-sensical. The following appears
from the record:
“
And
your evidence is that they came with those suspects from the
residential, or rather from the side of the residential place?
Is
that correct? --- From that entrance. Yes because on the side of the
shop entrance they could not enter it. So they came at
the
residential.
....
:Okay.
This residential place that you have testified about, how far I [sic]
it in relation to this particular shop? --- It is there
by the wall,
because the other side is the residential place and the other side is
the shop. They said they jumped that place at
the time.
When
you said, you, you, you say they said the jumped over to, to the
residential place, did you see anything upon your observation
that
they could have used to cross over into the residential place? Moving
from this particular shop? --- You do not need to use
anything to
cross over to that residential. You use your feet.
Okay.
Are there any staircases leading to this residential place leading
from the business in question? Are there any staircases?
--- Steps
from the residential to the business?
Yes?
--- No. It is the roof of that place, and the wall and the roof of
that place.
Okay
meaning that the only way in which one can, can move from, from this
particular shop to the residential place, is through jumping
over the
wall? And there is no method which one can use except that? --- Yes
there is no other way to jump, to get to that place.
In the manner
that …..
Just
for a second Your Worship. Do, do you manage to see as to how the
suspects or the accused were clamed? --- I cannot recall
how they
were clamed?”
See:
Record page 57 line 2 to page 58 line 19.
14.
Be that as it may, from the excerpt above it is clear that what he
was asked was whether there is a staircase from the shop
to the
residential place and he understood the question to be whether there
is a staircase from the residential building to the
business, to
which the appellants agreed, and his answer was no. However, it
appears from his evidence that they had to go through
the residential
building in order to gain access to the rooftop of the shop. After he
was asked where the security officers and
the appellants as well as
the co-accused came from, he responded:
“
Because
the shop was closed and then they went to the side, where there is a
residential place. That is here they came. From that
entrance of the
residential place,
that is where they managed to get to the
top.”
(My emphasis)
See:
Record page 56 lines 18 – 21.
15.
I find that the seemingly contradiction is not material. What is
common cause between Thaba and Ramakolo is that as the shop
was at
the relevant time closed they got to the top of the roof where the
burglary occurred through the adjacent residential building.
Accordingly this ground of appeal should also fail.
16.
The last ground of appeal is whether the trial court erred in
rejecting the appellants’ version. As correctly pointed
out by
Mr Mongwane it is trite that the state must prove its case beyond
reasonable doubt and that if the accused’s version
is
reasonably possibly true, he is entitled to his acquittal.
S
v T
2000 (2) SACR 658
(Ck)
S
v V
2000 (1) SACR 453
(SCA)
S
v Van As
1991 (2) SACR 74
(W)
S
v Van der Meyden
1999 (1) SACR 447
(W)
S
v Tellingen
1992 (2) SACR 104
(C)
17.
In evaluating the evidence the court should adopt a holistic
approach. It should not look at the evidence in a piecemeal fashion.
It would be entitled to look at the probabilities of the case.
S
v Radebe
1991 (2) SACR 166
(T)
Sv
Abrahams
1979 (1) SA 203
(A)
18.
In casu the trial court did look at the evidence as a whole. It also
considered the probabilities of the state as well as the
defence
case.
19.
After analysing the evidence, the trial court correctly accepted the
evidence of Thaba. He was found to be a credible witness,
and that he
was corroborated by other state witnesses. It came to the conclusion
that the defence version is false because the
appellants contradicted
each other as to whether they were advised of the reason why the
security officers wanted to handcuff them.
The trial court further
found it improbable that the security officers would have wanted to
apprehend them whilst walking innocently
in the street. The
submission that he rejected the defence version simply because he
accepted the state version is devoid of merit.
20.
In the premises, I would dismiss the appeal.
21.
Accordingly, I make the following order:
“
The
appeal against the conviction is dismissed.”
ML
MAILULA
JUDGE
OF THE HIGH COURT
I
agree.
IS
MLABA
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For the
Appellants: Ms N Maharaj
For the
Respondent: Mr VH Mongwane
Date
of Hearing: 11 August 2016
Date
of Judgment: 19 August 2016