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[2016] ZAGPJHC 248
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Buthelezi and Another v S (A105/2015) [2016] ZAGPJHC 248 (6 September 2016)
REPUBLIC
OF SOUTH AFRICA
HIGH
COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
CASE
NO A105/2015
DATE:
6 SEPTEMBER 2016
In
the matter between
BUTHELEZI,
SIBUSISO
.....................................................................................
FIRST
APPELLANT
KHUMALO,
SENZO
.......................................................................................
SECOND
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
J
U D G M E N T
CORAM:
MODIBA, J and MOOSA, AJ
MOOSA,
AJ (MODIBA, J concurring):
[1]
The appellants, Sibusiso Buthelezi and Senzo Khumalo were tried and
convicted in the Regional Court sitting at Protea on a charge
of
robbery with aggravating circumstances as defined in Section 1 of Act
51 of 1977, read with the provisions of Section 51 and
Schedule 2 of
the Criminal Law Amendments Act 105 of 1997. For convenience, I refer
to the appellants as the first and second appellants
respectively.
[2]
The appellants pleaded not guilty to the charge. They were both
legally represented during the trial. In his plea explanation,
the
first appellant denied any knowledge of the offence. The second
appellant exercised his right to remain silent.
[3]
On 7
th
December 2009 both the appellants were convicted as charged and
subsequently sentenced to sixteen (16) years imprisonment. They
successfully applied for leave to appeal against both their
conviction and sentence. The appeal on conviction is premised on two
grounds namely, whether the state proved its case beyond reasonable
doubt and whether the court a quo erred by rejecting the appellants’
version as not reasonably possibly true.
[4]
The issue to be determined on appeal is whether the court
a
quo
erred by accepting the
identification of the second appellant by Mr Chake Molepo “Molepo”
who witnessed the hi-jacking
incident given the contradiction in his
evidence and considering that his evidence on what transpired at the
scene of the hi-jack
is that of a single witness. Furthermore,
whether the court
a quo
erred by accepting the evidence of Mukonyama given that he too was a
single witness in respect of the events that took place at
the scene
of arrest.
[5] When determining
the above issues, I am guided by the following principles:
[5.1]
Due to the fallibility of human observation, courts normally approach
the evidence of identification with some caution.
[1]
[5.2]
The identifying witness must be honest. The reliability of his
observation must be tested bearing in mind factors such as
lighting,
visibility, eyesight, the proximity of the witness, his opportunity
for observation both as to time and situation, the
extent of his
prior knowledge of the accused, the mobility of the scene,
corroboration, suggestibility, the accused’s face,
voice,
build, gait and dress as well as the evidence by or on behalf of the
accused. These factors must be weighed one against
the other, in
light of the totality of the evidence and the probabilities.
[5.3]
Caution must be applied when evaluating the evidence of a single
witness by considering its merits and demerits. Despite shortcomings,
defects or contradictions in her evidence if any, if the trial court
is satisfied that the witness has told the truth, it ought
to accept
it. The exercise of caution must not be allowed to displace the
exercise of common sense.
[2]
[6]
It is trite that the court of appeal is bound by the factual findings
of the court
a
quo
and that it may only depart therefrom in the event of
misdirection.
[3]
On
the factual findings of the court
a
quo,
the facts underlying the conviction are briefly as follows. On 9 July
2009 at approximately 23h00 at night in London Road at Alexandra,
the
complainant, one Godfrey Moeng, was robbed of his Volkswagen Velocity
Golf motor vehicle. When the incident occurred, the complainant’s
motor vehicle was parked outside the tuck shop of Molepo, the state’s
second witness.
[7]
A Venture motor vehicle, arrived, parked the complainant’s
motor vehicle in, making it impossible for the complainant
to move
his motor vehicle forward or backwards. There were 4 (four) occupants
in the Venture motor vehicle. Two of the occupants
went to Molepo to
talk to him and pretended to buy something. Two of these men were
armed with firearms. One of the attackers hit
the complainant on the
head with a firearm when he tried to start his motor vehicle. The
attackers assaulted the complainant and
the complainant then jumped
out of his motor car and ran into a little passage behind the tuck
shop. Two of the attackers got into
his car and the other two drove
off in the Venture.
[8]
The complainant’s motor vehicle was fitted with a matrix
tracking device which facilitated the easy recovery of the motor
vehicle. The motor vehicle was found approximately two hours after
the hi-jacking incident, parked outside a house in Dobsonville
where
the appellants were arrested. Mukonyama and his crew had been
patrolling the area when they encountered the matrix crew looking
for
a hi-jacked motor vehicle. They decided to support them in their
pursuit.
[9] When they
located the motor vehicle, there were two (2) people standing outside
the vehicle. The moment the police stopped these
individuals standing
next to the car ran into the house. They followed them into the house
where they found four (4) people three
(3) males and one (1) female.
[10] The appellants
were two of the four individuals in the house. Mukonyama then
searched them physically. He first searched the
first appellant and
he found the Venture keys in his pocket. When he asked the first
appellant about the keys, the first appellant
said that he did not
know how these keys came to be in his pocket. These keys fitted the
car parked outside and the immobilizer
for the car was activated by
these keys. There was no sign that the car had been tempered with or
that another immobiliser box
had been fitted.
[11]
The Complaint went to identify the hijacked motor vehicle in police
custody a week or two after the incident. The car
was still in
good condition. There was no damage. However, some of his personal
belongings which were in the motor vehicle when
it was hijacked were
missing, inter alia; a cell phone, driver’s license, money and
his identity document.
[12]
The complaint was later informed that his cell phone was recovered
and was at the Police Station. However, he never got to
identify the
cell phone. In his evidence, it was confirmed that the
complainant had the original box of his cell phone and
that the EMI
number of the recovered cell phone matched the complainant’s
box. Further, the numbers on the cell phone matched
the evidence of
the complainant about the contacts saved on the complainant’s
phone. That the recovered cell phone is his
was not disputed at the
trial.
[13]
On the second appellant Mukonyama found two cell phones. He asked him
who the cell phones belong to. The second appellant responded
that
one cell phone is his and that he does not know who the second cell
phone belongs to. Mukonyama dialled one of the numbers
appearing on
the recent calls list on the latter phone. One “Penny”
answered the phone and advised him that the
cell phone belongs to her
friend, the complainant, who had been robbed of his car, cell phone
and other personal belongings.
[14]
At a subsequent identity parade, Molepo positively identified the
second appellant as one of the hi-jackers. The complainant
could not
identify anyone at the identity parade. The identity parade was not
found to be irregular.
[15]
Molepo and Mukonyama’s evidence was pivotal in the conviction
of the appellant. Molepo’s evidence is that
of a single
witness in respect of the events that transpired at the scene of the
hi-jack. In respect of the reasons for the arrest
of the appellants,
Mukonyama’s evidence is also that of a single witness.
[16]
Molepo’s evidence has several contradictions. During his
examination in chief, he said that he had seen one of the robbers
before but later in cross examination he denied this. He confirmed
that the complainant was pushed out of his vehicle, assaulted
by
armed men and that he was pursued and ran away. Molepo initially
stated that he saw 4 men leave the complainant’s vehicle
but
later changed his evidence that he only saw the one man leave in the
complainant’s vehicle whilst the others left in
the Venture.
[17]
His identification of the second appellant is also fraught with
difficulties. He testified that there was an Apollo light that
illuminated the area and therefore his observation was unhindered. He
observed the face of the second appellant who he later pointed
out in
the ID parade. The person he pointed out was the second appellant. He
stated that he saw the tall one jumping into the driver’s
seat.
Whilst Molepo’s evidence and explanation in identifying the
second appellant was contradictory in the respect set out
above. He
was clear that it was the second appellant who jumped into the
driver’s seat. At the ID parade he stated that he
identified
the second appellant due to his complexion and that he was the same
person who had asked him for a cigarette.
[18] He denied that
he had pointed out the second appellant out due to the fact that he
was very tall. He stated that he had asked
for divine intervention to
help him point the correct person out. The learned Magistrate
explored the allegation of divine intervention
with Molepo who then
stated that even if God didn’t help him he would have been able
to identify the second appellant by
his facial features. The facial
features that he relied on were not explored further during the
trial.
[19]
Molepo’s evidence in respect of his prior knowledge of the
second appellant is also contradictory. Initially, he testified
that
he does not know the people who came to the spazashop to buy
cigarettes after the complainant parked his car outside but he
once
saw one of them. When asked how and by what would he still be able to
point this person out – he said ‘it is the
manner in
which I saw him.’ He recognised him as the person who came to
him and asked him for the cigarette. When asked if
it was the way he
looked, his answer was in the negative. He elaborated that he is the
person he had seen. He is the same person
who entered the golf. It
was the first time in his life that he saw him that evening. When
asked under-cross examination if he
would be able to point out the
other people who came out to the spazashop he said no.
[20]
Under cross examination he mentioned that in his statement to the
police, he said he will be able to identify the person who
asked for
the cigarette because he is around Alexandra. When asked what he
meant he said it was his first time seeing him. When
asked further
how he was able to identify the second appellant and specifically how
was he able to distinguish him from the other
robbers, he insisted
that he saw him without giving any identifying features.
[21]
He could not identify the others because they never came to the side
of the car where he could see them. Then he changed his
version again
to say they were on the side where the compliant was – the
driver’s side. The second appellant is the
one who pushed the
complainant out of his car. Then he changed his version to say the
second appellant is the only person who drove
off in the
complainant’s car.
[22] The court
a
quo
rejected the appellants’ contention that Mukonyama made
a second statement confirming possession of the cellphone by the
second appellant because he had no evidence to link the second
appellant to the hi-jack incident; in my view correctly so. Mukonyama
clearly testified that he found two cell phones on the second
appellant. Mukonyama’s second statement was made on the same
day as his first statement. There was no reason for him to fabricate
his evidence. His explanation for the need for the second
statement
is that he omitted to mention the cell phone in the first statement.
I find nothing sinister about this explanation.
[23]
The primary thrust of the appellants' attack against conviction is
bare denial of the state’s allegations. The first
appellant
testified that he did not know the second appellant before his arrest
and that he got to know him only thereafter. He
further denied having
been on the scene in Alexandra or being in possession of the
Volkswagen’s key. He raised an alibi as
a defense by stating
that he was at the place where he was arrested from 17h00 together
with his friend, Sipho and his girlfriend.
[24]
The first appellant testified further that Sipho, his girlfriend and
the first appellant were at her house drinking. At approximately
22h00 Sipho and his girlfriend left and they were supposed to return.
When Sipho and his girlfriend had not returned by 2h00am
in the
morning [when he was arrested], he was not concerned as he thought
they may have fallen asleep and that he would take a
taxi when the
taxis start operating around 5h00 in the morning. Given the time of
the day the first appellant would have had to
wait hours before taxis
started operating at approximately 04h00 or 05h00 in the morning and
would have had to wait in a tavern
which had already closed. I find
this improbable.
[25]
The second appellant’s defence is that he was arrested at his
place of employment. He testified that he was employed
by the owner
of the house, Moses and that at the time of the arrest he was seated
with his friend, Thabang and that he occasionally
sleeps over at his
place of employment. The second appellant denied being involved in
the robbery and also denied being in possession
of the complainant’s
cell phone.
[26]
Under cross examination, the second appellant was asked about the
phones and he responded by asking “which phone”.
He was
told that the police found two phones after which he testified that
he only had one phone. He testified that he had never
been to
Alexandra and that he only shops in Sandton and therefore passes
Alexandra on his way, yet after the ID Parade, he confirmed
that he
knew Molepo. Under cross examination he denied knowing Molepo.
Notwithstanding Captain Raymond Lebetse’s “Lebetse”
uncontested evidence that there were 6 other people of similar height
at the ID parade, the second appellant testified that he
was the
tallest person in the line-up. His version was not put to Lebetse and
thus not tested.
[27]
When weighed against the totality of the evidence, the alibis raised
by the appellant’s cannot be sustained. The second
appellant’s
testimony that he was pointed out because of his height is without
substance, particularly in the light of the
absence of evidence that
the ID parade was irregular. second At the end of the identity
parade, when he was asked whether
he had any complaints, he answered
in the negative.
[28]
I find no reason why the police would fabricate a story that the keys
of the Volkswagen were found in the first appellant’s
possession. It is also improbable on the proven facts why the police
would falsely implicate the second appellant.
[29]
Despite several contradictions in the evidence of these witnesses the
court,
a
quo
accepted their evidence and rejected the evidence of the
appellants.
[4]
Molepo’s
evidence is not satisfactory in every respect. However, the
materiality of his identification of the second
appellant at the ID
parade is not negated by the contradiction in Molepo’s
evidence, particularly because the ID parade was
not irregular. When
viewed against the totality of the evidence, I have no reason to
doubt the truthfulness of Molepo’s evidence.
[30]
The court
a
quo
did not solely rely on Molepo and Mukonyama’s evidence when
convicting the appellants. It also placed reliance on circumstantial
evidence. It is trite that the test for the admissibility of
circumstantial evidence is whether the inference to be drawn is
consistent
with all the proven facts and whether the proven facts are
such that they exclude every reasonable inference, save the one to be
drawn.
[5]
[31]
The appellants were arrested in Dobsonville Soweto, approximately two
hours after the complainant’s car was hi-jacked
from the
complainant at gun point in Alexandra. They were arrested in a house
where the hi-jacked motor vehicle was packed outside.
Two personal
possessions of the complainant which were in the motor vehicle when
it was robbed were found on the appellants. The
key found on the
first appellant was the key used to drive the hi-jacked motor vehicle
to the police station.
[32]
There is no reason to doubt that that key is the key for the hijacked
motor vehicle. Two other males were at the scene of arrest.
The
appellants were arrested because they were linked to the hi-jacked
through the items found on them. Only the appellant’s
were
arrested. It is unclear why on the appellant’s version only the
two of them were arrested and not the other two males
on the scene.
This supports Mukonyama's version that he arrested them because they
could be linked to the hi-jack incident through
the cell phone and
the motor vehicle keys. The probability that the appellant’s
were not involved in the hi-jacking of the
motor vehicle under the
circumstances of this case is very remote.
[33]
I battled to find an explanation how the motor vehicle could have
ended up in Soweto and how the complainant’s cell phone
and car
keys could have found its way into the pockets of the appellants
other than that they were two of the four males who participated
in
the hi-jack. Therefore on the proven facts, the inference that the
appellants are two of four males who hi-jacked the complainant
in
Alexandra on that fateful morning is the only inference to be drawn.
[34]
The circumstantial evidence outlined above, the second appellant’s
identification by Molepo, as well as Mukonyama's evidence
is
sufficient to establish the guilt of the appellant’s beyond
reasonable doubt. I find no misdirection by the court a quo
for
relying on this evidence to convict the appellants. The court a quo
correctly rejected the evidence of the appellants as not
reasonably
possibly true. In assessing the evidence in its totality, in my
view the state has discharged the onus of proving
that the appellants
had committed robbery with aggravating circumstances as charged.
[35] In the
premises, the appeal against sentence stands to fail.
[36]
I now turn to the question of sentence. The court below found no
substantial and compelling reasons to deviate from the prescribed
minimum sentence for robbery with aggravating circumstances and
imposed a sentence of 16 years imprisonment respectively for the
appellants.
[37]
The appellants’ personal circumstances were placed before the
court
a quo.
The first Appellant was 25 years old at the time of sentencing, he is
single, he has no children, was unemployed, lived with his
parents,
had a diploma in office assistance, was a first time offender and had
been in custody for almost six months. The second
appellant was 20
years old at the time of the incident, there was no loss, the vehicle
was recovered immediately, the complainant
sustained no injuries and
the second appellant had been in custody for 5 months.
[38]
In assessing whether substantial and compelling circumstances exist
the Court is guided by the approach laid down by the Supreme
Court of
Appeal in
SV Malgas 2001 (1)(SACR)
469 (SCA)
. In assessing all of the
circumstances viz the crime was committed in an organized manner.
There was premeditation to take the
Volkswagen to Soweto. Firearms
were wielded to threaten the complainant. The complainant was
assaulted. The appellants showed no
remorse for their actions and did
not take the court into their confidence. It is because of these
aggravating factors that the
court found it appropriate to impose a
sentence higher than the prescribed minimum sentence.
[39]
Accordingly I am of the view that the Court a quo correctly found
that the prescribed minimum sentence of 15 years was disproportionate
to the offense and that the aggravating factors justify the
imposition of a higher sentence. I align myself with the reasoning
of
the court
a quo.
The appeal against sentence stands to be dismissed.
[40]
In the result, I propose that the following order be made:
1.
The
Appeal against both conviction and sentence is dismissed.
2.
The
conviction for robbery with aggravating circumstances in respect of
both accused is confirmed.
3.
The
16 years imprisonment sentence in respect of each accused person is
confirmed.
T
MOOSA
ACTING
JUDGE OF THE HIGH COURT
I
agree and it is so ordered
MODIBA
J
JUDGE
OF THE HIGH COURT
COUNSEL/LEGAL
REPRESENTATIVE FOR THE APPELLANTS:
Adv.
M Mzamane - Johannesburg Justice Centre - first Appellant
Attorney
SW Van Der Merwe – second Appellant
COUNSEL/LEGAL
REPRESENTATIVE FOR THE RESPONDENT:
Adv.
P Nel – National Prosecuting Authority Innes Chambers
DATE/S
OF HEARING:
11
August 2016
DATE
OF JUDGMENT:
6
September 2016
[1]
S
v Mthethwa
1972
(3) SA 766
AD at 768D.
[2]
S
v Sauls and Others
1981 (3) SA 172
(A).
[3]
R
v Dlumayo and Another
1948 (2) SA 677
(A) at 706;
S
v Pistorius
2014 (2) SACR 314
(SCA) at par 10.
[4]
S
v Sauls
191 (3) SA 172(A)
at 180.
[5]
R
v Blom
1939 AD 188
at 202 and 203.