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[2018] ZAGPJHC 723
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Moabelo and Another v S (A158/2017) [2018] ZAGPJHC 723; [2022] 4 All SA 827 (GJ) (22 February 2018)
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE
NO
: A158/2017
DPP REF NUMBER: 10/2/5/1-(2017/212)
REPORTABLE
OF INTEREST TO OTHER JUDGES
REVISED
22/2/2018
In
the matter between
MOABELO
PHUTI
STANLEY FIRST
APPELLANT
NDAWONDE SIBUSISO
FUNEKA SECOND
APPELLANT
AND
THE
STATE Accused
SUMMARY
Criminal Appeal – and Procedure-
Conviction based on the
Prevention and Combating of Corrupt
Activities Act 12 of 2004
- Police officials – evidence of a
single witness as contemplated in
section 208
of the
Criminal
Procedure Act 51 of 1977
– cautionary approach – the
standard of proof in criminal trials.
JUDGMENT
MOSHIDI
J
:
INTRODUCTION
[1] This appeal turns
essentially on the question whether the state succeeded to prove the
guilt of the appellants
beyond reasonable doubt in the trial.
[2] The appellants
stood trial in the Johannesburg Regional Court on a charge of
corruption.
The
State based the charge on the provisions of
section 4(1)(g)(ii)(99)
,
read with
sections 1
,
2
,
4
(2),
24
,
25
,
26
(1)(a) of the Prevention and
Combating of Corrupt Activities. Act 12 of 2004- Corruption:
accepting a benefit. It was alleged that
the appellants, being
members of the South African Police Service, committed the offence at
the Park Station Police Station, Johannesburg
on the 30 January 2015.
In short it was alleged that the appellants unlawfully offered to
accept any gratification, namely the
cash amount of R3500-00 (three
thousand, five hundred rand), or more, from Mr Omar Vusiki Cedric, a
Malawian national (the complainant),
in order to avert his arrest and
detention.
[3] At
their trial, the appellants, who were legally represented, pleaded
not guilty to the charge and proffered
no plea explanations in terms
of the provisions of section 115(1) of the Criminal Procedure Act 51
of 1977 (the Criminal Code).
It is noteworthy that at the conclusion
of the State case, the appellants launched an application for their
discharge in terms
of the provisions of section 174 of the Criminal
Code (the discharge application), The application was refused for
reasons that
may become more relevant later below. In spite of their
plea, on 19 May 2016, the appellants were convicted as charged.
Sentence
was imposed later. The trial court declined a subsequent
application for leave to appeal against the conviction. The present
appeal
before us is with leave granted by this High Court on
petition.
[4] The
following matters are common cause: on the day of the incident (30
January 2015), the complainant was at
Park Station on his way to
Malawi. He was about to board a bus to Malawi. It was just after
06h00. His luggage consisted of bags
containing amongst others, about
five (5) old cell phones and a laptop. The complainant was approached
by the appellants in full
police uniform as well as a third female
police officer. The police officers requested to search the
complainant’s luggage
there and then. The complainant refused
to be searched in public and requested to be searched instead at the
nearby Park Station
Police Station. The police agreed. Once at the
police station, the complainant’s bags were searched by the
appellants. In
the bags, the cell phones and the laptop were found.
The appellants suspected that these items may have been stolen. The
complainant
gave an explanation for the possession of the items.
Despite the explanation, the complainant was threatened with arrest
and detention.
[5] In
the process of rendering an explanation for how he came to be in
possession of the items, the complainant
telephoned Musa his friend
(Musa) who had given him the cell phones to convey on his behalf to
Malawi. The complainant, also spoke
telephonically to his employer.
The telephonic discussion in which appellant Number 2 who took part,
occurred in the absence of
the appellant Number 1. The female police
officer took no part at all in this and nothing more needs to be said
about her henceforth.
[6] The
complainant’s brother, Allie Cedric Visiki (Allie) arrived at
the Police Station where he joined
the complainant in the company of
appellant Number 2. Allie remained there until the complainant was
eventually locked up in the
cells.
[7] The
most crucial and singular aspect of the complainant’s evidence
for consideration in this appeal is
the following:
he alleged that on
discovery of the above items in his presence, the appellants, after
threatening him with arrest and detention,
demanded money from him in
order to secure his release. He specifically mentioned in
evidence-in-chief that both appellants searched
his bags. In the
initial stages of his evidence-in-chief, the complainant made no
mention of the specific amount demanded nor did
he mention directly
the word “bribery”. It was only towards the end of his
evidence-in-chief that he testified in the
following terms:
“
Your worship
at that particular time accused two(2), he uttered and he said you
need to make a plan, you need to give us some money
because if we
arrest you and you are locked in, you need about R3500.00 for bail
and also it would cost you about R8000.00 for
a lawyer. So you need
to tell us how much you can give us in between R3500-00 and R8000-00.
Otherwise it would cost you more”.
(See page 18 of record,
lines 3 to 10).
The
appellants testified and denied that they demanded money from the
complainant. The complainant was the only witness called by
the State
on this crucial aspect.
Based on the above, the evidence of
the complainant called for closer security and cautionary approach in
order to determine firstly,
whether the evidence complies with the,
now somehow watered down, provisions of section 208 of Criminal Code.
The latter section
provides that “an accused may be convicted
of any offence on the single evidence of any competent witness”.
Secondly,
the evidence must be assessed wholly in order to establish
whether the guilt of the appellants at the trial was proved beyond
reasonable
doubt.
[8] I deal briefly
with the first requirement for the cautionary approach to the
evidence of a single witness.
In Hiemstra’s Criminal Procedure
(latest edition), paragraph 24.4, the following is stated: “The
provision that one
competent witness is sufficient stands here
without further qualification. Nevertheless, as a cautionary measure,
the courts have
read more into it. This started with R.v Mokoena
1932
OPD 79
in which the court said that the provision should only be
applied when the single witness is clear and satisfactory in every
material
respect, has no interest or prejudice, did not contract him-
or- herself, does not have previous convictions for dishonesty, had
proper opportunity for observation and so on. But this statement
should not be seen as an extension of section 208. The requirement
remains that the court must be convinced beyond reasonable doubt.
This depends on whether the court believes the witness; in its
assessment such factors will normally be taken into account. Often
the only witness is the complainant, who, in the nature of things
has
an interest contrary to that of the accused, or is prejudiced. But
the witness’s account can nevertheless certainly be
sufficient
to justify conviction depending on the circumstances.”(See also
Rv Nhlapo 1953 1 PH H11 (A); S.v. Webber 1971(3)
SA 754(A); and S.v
Sauls and others 1981(3); SA172(A) et 180 E-G, for the proper
approach to the evidence of a single witness.
[9] In
regard to the second principle, it is trite that the court should
assess and evaluate the evidence of both
parties holistically and in
a balanced manner, rather than by cross examining each in isolation,
cf S.v Van Aswegen
2001 (2) SACR 97
(SCA) at 101 a-e where reference
with approval is made to S.v Van der Meyden
1999 (1) SACR 447
(W).
For purpose of the present appeal, I must add the third and trite
principle, which is the standard of proof. “The onus
of proof
in a criminal case is discharged by the State if the evidence
establishes the guilt of the accused beyond reasonable doubt.
The
corollary is that he is entitled to be acquitted if it is reasonably
possible that he might be innocent ---. A Court does not
look at the
evidence implicating the accused in isolation in order to determine
whether there is proof beyond reasonable doubt
and so too does it not
look at the exculpatory evidence in isolation in order determine
whether it is reasonably possible that
it might be true—
“ See S.v Van der Meyden, supra, at 448 f-q. See also S.v
Sithole 1999(1) SACR 585(W).
[10] The
above principles should be applied to the facts of the instant
matter. Indeed, the essence of the grounds
of appeal is that the
court a quo was wrong in concluding that the evidence of the
complainant, as a single witness on the crucial
aspect of the matter,
was satisfactory in all material aspects and in rejecting as not
reasonably possibly true, the version of
the appellants. These
grounds were elaborated upon extensively during the application for
the discharge of the appellants at the
conclusion of the State case;
at the end of the entire case; and during the application for leave
to appeal. These grounds of appeal
are all on record, and require no
repetition here.
[11] Briefly
stated. Close scrutiny of the evidence in accordance with the
principle sketched above, shows that
the complainant’s evidence
should not have been relied upon by the court a quo. For starters,
the complainant did not lay
the charges when he should have. His
employer did so. The alleged demand for money by the appellants was
in rather vague terms.
No specific amount was mentioned until the end
of evidence-in-chief and cross examination. The complainant’s
version as to
exactly which of the appellants were present and their
respective roles when the alleged demand for money was made was
difficult
to follow. It appeared that only accused 2 (second
appellant) was present. The specific amounts mentioned, namely
R3500-00 and
R8000-00 related to bail and legal fees, respectively.
In cross-examination, the complainant was confronted with the
contents of
his witness statement, as contrasted with his oral
evidence, regarding which appellant mentioned money. He retorted that
it was
only appellant 2, who did that. (See record page 42). In
addition, the complainant tended to render extended answers in
circumstances
where it was unnecessary to do so. For this, he was
warned during cross- examination by the trial court, on several
occasions.
The list of the unsatisfactory features in the evidence of
the complainant is not exhaustive.
The
evidence show that the complainant’s brother, Allie, was
present at the Park Station Police Station until the complainant
was
led away to the cells. Allie also interacted with the appellants. He
was not called by the State to testify. In closing argument,
counsel
for the appellants placed heavy reliance on this omission. It was
contended that Allie should have been called to provide
possible
corroboration to the complainant’s version. In this regard,
reference was made to case law such as S.v Msane 1977(4)
SA758(N) at
759, and S.v Abrahams 1979(1) SA 203(A) at 207 B-H. There was
considerable merit in the submission. For, in S.v B 1976(2)
SA 54
(C)/ at 59B, It was said that: “Corroboration is independent
evidence which confirms the testimony of a witness. Such
confirmation
may be either “in a material respect” or else on a point
tending to prove the guilt of the accused---“.
[11] For
all the above reasons, it is my finding that the evidence of the
complainant above was not satisfactory
in all material respects to
secure a conviction. The court a quo ought to have regarded it
insufficient to do so. I therefore conclude
that the State failed to
prove the guilt of the appellants beyond reasonable doubt as
enshrined in the legal principle set out
earlier in this judgement.
The appeal must succeed as indicated in the order below:
ORDER
In the result the following order is
made:
1.
The
appeal against the convictions succeeds.
2.
The
convictions and sentences imposed by the court a quo are set aside.
DSS
Moshidi
Judge
of the High Court
of
South Africa, Gauteng
Local Division Johannesburg
I Concur,
Sutherland
Judge of the High Court of
South Africa, Gauteng Local Division
Johannesburg
Counsel for the appellants – Mr.
B Mzamo
Instructed by – Mzamo Attorneys
Counsel for the respondent – Ms
PP Ranchhod
Instructed by – DPP,
Johannesburg
Date of hearing – 22 February
2018
Date of Judgement – 22 February
2018