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[2021] ZAGPJHC 67
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Mntungwa v S (A117/2020) [2021] ZAGPJHC 67 (27 May 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
(1)
REPORTABLE: NO
(2)
OF INTEREST TO
OTHER JUDGES: NO
(3)
REVISED: NO
CASE
NO: A117/2020
SS
102/2018
DPP
REF NO: JPV 2017/212
In
the matter between:
MNTUNGWA,
SIPHUMELELE
APPELLANT
and
THE
STATE
RESPONDENT
J
U D G M E N T
MUDAU,
J:
[1]
The
appellant was convicted in the High Court, Johannesburg of murder
(count 1), attempted murder (count 2), unlawful possession
of a
firearm (count 3) as well as ammunition (count 4). Following the
conviction, the trial court (per Mabesele J) sentenced the
appellant
to 20 years, 5 years, 3 years and 12 months of imprisonment,
respectively. The sentences imposed in respect of counts
2, 3 and 4
were ordered to run concurrently with the sentence imposed in respect
of count 1. Consequently, the effective sentence
was 20 years of
imprisonment. The appellant now appeals against his conviction only,
with the leave of the court
a
quo
.
The crisp issue for determination in this appeal is the adequacy of
the evidence regarding identification.
[2]
It
is trite that a court of appeal is not at liberty to depart from the
trial court's findings of fact and credibility unless the
findings
are vitiated by irregularity or unless an examination of the evidence
reveals that those findings are noticeably wrong.
The trial court's
findings of fact and credibility are presumed to be correct. This
follows because the trial court, and not the
court on appeal, has had
the advantage of seeing and hearing the witnesses and is best
positioned to determine where the truth
lies.
[1]
[3]
What
are the facts in this case? At the trial, the state led evidence
placing the appellant in the vicinity of the shooting. A witness
for
the state, Mr. Nhlanhla Shezi (“Mr. Shezi”) testified
that on Saturday 4 November 2017, between 18h30 and 19h00,
he
received a call from his friend, the deceased, to meet the latter at
a residential building, Vannin Court in Hillbrow. Mr. Shezi
walked
and met the deceased there. The deceased requested Mr. Shezi to
accompany him to buy a pregnancy test for the deceased’s
wife.
They proceeded on foot to purchase same and en route, the deceased
changed his mind as it was late. The deceased suggested
that they go
and bid farewell to some of their "home boys" who resided
in Vannin Court. They proceeded to Vannin Court.
Near the entrance to
the building, Mr. Shezi saw an unknown male that he later identified
as the appellant, seated on the concrete
entrance steps smoking a
cigarette at a distance of about 3 meters away. The appellant then
threw away his cigarette, stood up
and producing a firearm, a police
standard issue from the front of his trousers, fired some three shots
at the deceased who was
walking alongside him. The deceased fell and
thereafter the appellant pointed the firearm at Mr. Shezi and
continued firing.
[4]
Mr.
Shezi was not struck and ran away to a distance of about 7 meters
away. Attempts to scale over a palisade fence were to no avail
as he
fell. He noticed the appellant leaving the scene in the company of
two or three other males and jumping over to the nearby
Quartz
Street. He returned to the scene to be met by the police traveling in
a marked van. On his version, he assured the police
that he could
point out the person who shot the deceased. A lookout for the
appellant and his companions by the police with the
help of Mr. Shezi
in the surrounding area was however, unsuccessful.
[5]
During
cross-examination, Mr. Shezi was adamant that he was hundred percent
sure that the appellant shot and killed the deceased.
Initially out
of shock, he “stood still” when the appellant drew the
firearm and only turned to run away after the
deceased had fallen and
after the firearm was pointed at his direction. He explained that the
area was well lit and as clear as
the lighting inside the courtroom
wherein he testified. That the area was well lit from an electric
lamppost at the entrance, is
clear from the photographs taken at the
scene shortly after the incident of the crimes, as counsel for the
appellant was constrained
to concede. On Mr. Shezi’s version,
he had observed the appellant for a period of approximately three
minutes as he and the
deceased were walking towards him before the
incident happened. He described the appellant as medium built, light
in complexion
and slightly tall. From the photographs exhibited,
these physical attributes cannot be faulted.
[6]
Acting
upon information received, on 8 December 2017 the police arrested the
appellant. The appellant was later identified by Mr.
Shezi as the
shooter at an identification parade. It is common cause that there
were two identification parades conducted on 10
and 11 December 2017
respectively. On both occasions, Mr. Shezi identified the appellant
as the culprit. During the first parade,
the undisputed evidence is
that the appellant refused to have his photograph taken after he was
identified through a one-way mirror.
It was as a result of the
appellant’s conduct that a second identification parade was
arranged and Mr. Shezi once again identified
the appellant. The
processes of identification were not disputed but admitted.
[7]
As
against the above version, the appellant pleaded an alibi. The
appellant testified in support of his alibi defence and called
a
witness. Both witnesses testified that on the date and at the time of
the shooting, the appellant was at a place other than the
scene of
the shooting.
[8]
On
the appellant’s version, he spent the weekend from late
afternoon on Friday 3 November 2017 with the alibi witness, Magwaza
and only returned home on Sunday, 5 November 2017 at about 1 PM. The
appellant testified that the deceased was known to him, they
were
acquaintances who grew up together. Further, he testified that he
often visits his sister at Vannin Court building, the place
of the
incident in Hillbrow. He remembered the day of the incident, 4
November 2017 as it was on the same day that his alibi witness’s
brother was also shot (in a separate incident) but survived, in
Hillbrow.
[9]
During
cross-examination, the appellant testified that he learned of the
deceased’s demise the day after the incident, from
a casual
chat over the phone with one of his homeboys. According to the
appellant they spent the weekend, occasionally having drinks,
did not
go anywhere else, except to the shops in the vicinity. The alibi
witness, who worked as a driver also “
never
took a long journey… He was the just going out and coming
back… in the vicinity
”.
[10]
Magwaza
testified that the deceased was not only his cousin, but his
“homeboy” as well in that they grew up together
and were
from the same area in KwaZulu-Natal. He testified that, after
receiving the news that his brother had been shot, he never
went to
visit him. Furthermore, he and the appellant never left his residence
throughout the entire weekend. The reason he remembered
the day so
well was because his brother was also shot in the early hours of 4
November 2017. He too confirmed hearing about the
deceased’s
demise in this matter, but was noncommittal with regard to who
conveyed the news to him, as he was disturbed by
the news of his own
brother’s shooting. He could not confirm whether he received
the news on the day of the incident or the
next day, which was a
Sunday. On his version he spent the entire weekend with the appellant
playing cards, watching TV as well
as playing music.
[11]
Contrary
to the version by the appellant, Magwaza testified that he never left
his yard for the duration of the weekend, but only
left his room to
cook. Neither did he visit his girlfriend who resided in the same
building but a separate flat, during the appellant’s
stay. On
Magwaza’s version, they never consumed alcohol. However, upon
being confronted with the appellant’s version
that they in fact
did so, Magwaza was non-committal in that regard but further
testified that he always kept beer dumpies in his
residence, but
could not confirm whether they consumed alcohol. The trial judge also
asked him clarifying questions. It was established
that the witness
had access to the company motor vehicle which he could make use of,
in case there was a need. He was asked why
he did not use the company
car to visit his injured brother. He explained that the motor vehicle
was not for private use.
[12]
The
trial court rejected this alibi defence and rejected as untrustworthy
the alibi evidence put up by the appellant and his witness.
The trial
court cast doubt on its credibility. The trial court found that the
evidence of the state witness, Mr. Shezi, placing
the appellant at
the scene of the shooting was satisfactory and adequate to secure a
conviction against the appellant.
[13]
The
appellant's primary attack against his conviction was directed at his
identification by Mr. Shezi, the differences between the
latter’s
oral evidence and his witness statement.
[14]
It
is generally accepted that the statement of a witness reduced to
writing by a police officer may often be far from an accurate
representation of what that witness actually said to the police.
[2]
The Court is accordingly required to deal with the discrepancies
between different versions of the same witness with circumspection.
[15]
The
Court must ascertain first, what the witness meant to say in order to
determine whether there was a discrepancy and the extent
of the
discrepancy. The Court must take into account the following: the fact
that a statement to the police was not subject to
cross-examination
and the fact that the police did not require any explanation of the
statement. Secondly, not every error by,
or discrepancy in the
statement of a witness affects the witness’s credibility.
Thirdly, the different versions must be evaluated
holistically. This
evaluation includes the circumstances in which the versions were
given, reasons for the discrepancies, the effect
of the discrepancies
on the witness’s credibility and whether the witness had
sufficient opportunity to explain the discrepancies.
Lastly, the
witness’s statement to the police has to be weighed up against
the witness’s
viva
voce
evidence.
[3]
[16]
The
discrepancy between Mr. Shezi’s oral testimony and his police
statement was raised with him for comment. In his statement
to the
police, which was put to him during cross-examination at the trial,
the witness alleged that: “
[O]n
Saturday 4 November 2017, I was on my way from shops to Vannin Court
together with Malibongwe Ndlovu, the deceased. When we
were at the
entrance of Vannin Court, a certain guy just came from nowhere and he
started to shoot at Malibongwe Ndlovu
”.
Mr. Shezi disputed that statement was accurately captured by the
police officer who reduced it in writing and was adamant
that his
version before court, was what he conveyed when the statement was
taken. I deal with this aspect further below.
[17]
The
identification of the appellant as the murderer is based on the
evidence of a single witness. However,
section 208
of the
Criminal
Procedure Act 51 of 1977
allows for a conviction of an accused on the
evidence of a single witness, such evidence must be clear and
satisfactory in every
material respect. In
S
v Sauls and others
[4]
the following was said about single witnesses:
“
There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness (see
the
remarks of Rumpff JA in S v Webber
1971 (3) SA 754
(A) at 758). The
trial judge will weigh his evidence, will consider its merits and
demerits and, having done so, will decide whether
it is trustworthy
and whether, despite the fact that there are shortcomings or defects
or contradictions in the testimony, he is
satisfied that the truth
has been told.
”
[5]
In
R
v J
[6]
Macdonald AJP expressed the view that the cautionary rules are “
no
more than guides, albeit very valuable guides, which assist the court
in deciding whether the Crown has discharged the onus resting
upon
it
”
(at 89F). Moreover, he added, “
the
exercise of caution should not be allowed to displace the exercise of
common sense,”
and
once a judicial officer has anxiously scrutinised the evidence of a
single witness he should not be “
swayed
by fanciful and unrealistic fears
”
(at 90E–F).
[18]
It
has repeatedly been stated by the courts that evidence of
identification must be approached with caution. In
S
v Mthetwa
[7]
Holmes JA made the following observation with regard to the approach
to be adopted when considering the evidence of identification:
“
Because
of the fallibility of human observation, evidence of identification
is approached by the Courts with some caution. It is
not enough for
the identifying witness to be honest: the reliability of his
observation must also be tested. This depends on various
factors,
such as lighting, visibility, and 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; the result of identification
parades, if any; and, of course, the evidence by
or on behalf of the
accused. The list is not exhaustive. These factors, or such of them
as are applicable in a particular case,
are not individually
decisive, but must be weighed one against the other, in the light of
the totality of the evidence, and the
probabilities . . .”
[8]
[19]
It
is trite that the state has to prove its case against an accused
beyond reasonable doubt and the evidence of a single identifying
witness must be clear and satisfactory in all material respects. But
it must not be forgotten that the court must have regard to
all the
evidence including that of an accused.
[9]
In
S
v Chabalala
[10]
Heher AJA held that:
“…
The
correct approach is to weigh up all the elements which point towards
the guilt of the accused against all those which are indicative
of
his innocence, taking proper account of inherent strengths and
weaknesses, probabilities and improbabilities on both sides and,
having done so, to decide whether the balance weighs so heavily in
favour of the State as to exclude any reasonable doubt about
the
accused's guilt.”
[11]
[20]
The
correct approach for the evaluation of an alibi defence was set out
by Holmes AJA in
R
v Hlongwane
[12]
as follows:
“…
The
legal position with regard to an alibi is that there is no onus on an
accused to establish it, and if it might reasonably be
true he must
be acquitted. R v Biya
1952 (4) SA 514
(AD). But it is important to
point out that in applying this test, the alibi does not have to be
considered in isolation. I do
not consider that in R v Masemang
1950
(2) SA 488
(AD) Van den Heever, JA had this in mind when he said at
pp 494 and 495 that the trial Court had not rejected the accused's
alibi
evidence 'independently'. In my view he merely intended to
point out that it is wrong for a trial Court to reason thus: 'I
believe
the Crown witnesses. Ergo, the alibi must be rejected.' See
also R v Tusini and Another,
1953 (4) SA 406
(AD) at p 414. The
correct approach is to consider the alibi in the light of the
totality of the evidence in the case, and the
court's impressions of
the witnesses.”
[13]
[21]
The
main thrust of the appellant’s contention is that the
identification of the appellant as the murderer was less than
adequate.
An acquaintance with the history of criminal trials reveals
that gross injustices are not infrequently done through honest, but
mistaken identification.
[14]
However, on the facts, the possibility of mistaken identification can
be eliminated. The offences were committed in a well-lit
area as
counsel for the appellant was constrained to concede. Mr. Shezi was
able to give physical attributes of the appellant with
which he
identified him.
[15]
This is supported by the photographs taken during the identification
parade. Evidently, the trial court had an independently verifiable
and objective evidence to determine the reliability of Mr. Shezi’s
evidence of identification.
[22]
Significantly,
Mr. Shezi told the police who arrived shortly thereafter that he
would be in a position to point out the assailant.
The contention
that he did not have enough opportunity to identify the perpetrator
has no merit and is accordingly rejected. The
lighting conditions
were good and accordingly Mr. Shezi had more than enough time to
observe the face and features of the assailant
who was involved. In
my judgment, the witness had ample opportunity to make a proper and
reliable observation of the appellant.
It was summer time. Between
18:30 and 19h00 it is hardly dark.
[23]
As
to the alleged discrepancy in Mr. Shezi’s statement to the
police and his oral testimony, the discrepancy complained of,
is in
my view of the type which suggests absence of manufacture rather than
unreliability. It is trite that not every error by
a witness and not
every contradiction or deviation affects his or her credibility.
[16]
Before us, counsel for the appellant, who is well experienced,
conceded that the statement complained of made before the police
officer is capable of being given more than one interpretation, in
this case, that the shooting of the deceased was for no apparent
reason.
[24]
I
find the following evidence by the appellant and his alibi witness to
be destructive to their credibility and reliability as witnesses.
According to the appellant and as indicated, Magwaza left the
residential building for short trips. In addition, that the two of
them only left when they were to conduct shopping. In contrast,
Magwaza testified they never left his residence for the entire
weekend. This does not accord with the probabilities. This is a
conspicuous and material contradiction on a solid aspect of the
case.
[25]
Before
us, counsel for the appellant conceded that this court could take
judicial notice of the fact that the address where the
incident
happened, and Magwaza’s address are in neighbouring suburbs
within a radius of not more than 6 kilometers. The trial
court took a
dim view of the fact that the alibi witness made no attempts to visit
his injured brother, whereas he was affected
by the incident and had
the means to do so.
[26]
The
unacceptable evidence which was tendered by the appellant and his
alibi witness and the cogency of the evidence tendered by
Mr. Shezi
taken together, entitled the trial court to return a verdict of
guilty against the appellant. The alibi had to be rejected
as a
fabrication. In all the circumstances, I am of the view that there is
no valid basis for concluding that the state did not
discharge the
onus of proving the guilt of the appellant beyond reasonable doubt. I
am accordingly not persuaded that the trial
court should have
rejected or doubted the evidence given by Mr. Shezi. The trial court
was justified in accepting as truthful the
evidence by the
eye-witness, Mr. Shezi. The appellant's alibi had been proved to be
false beyond reasonable doubt. I am satisfied
that the
eyewitness, Mr. Shezi was shown to be a credible, reliable and
trustworthy witness. The evidence tendered by the state
suggests no
motive for the identifying witness to falsely implicate the
appellant.
[27]
In
the result, the appellant's appeal against conviction is dismissed.
T
P MUDAU
[Judge
of the High Court,
Gauteng
Local Division,
Johannesburg]
I
agree
S
YACOOB
[Judge
of the High Court,
Gauteng
Local Division,
Johannesburg]
I
agree
M
MOLELEKI
[Acting
Judge of the High Court,
Gauteng
Local Division,
Johannesburg]
APPEARANCES
For the
Appellant:
Adv. W A Karam
Instructed
by:
Legal Aid South Africa-JHB
For the
State:
Adv. H H P Mkhari
Instructed
by:
DPP – JHB
Date of Hearing:
17 May 2021
Date of
Judgment:
27 May 2021
[1]
Rex
v Dhlumayo
1948 (2) SA 677
(A) at 705; also
S
v Francis
1991 (1) SACR 198
(A) 204C-F.
[2]
R
v Steyn
1954 (1) SA 324
(A) at 335F–H;
S
v Bruiners en 'n ander
1998 (2) SACR 432
(SE) at 437H.
[3]
S
v Mafaladiso en andere
2003 (1) SACR 583 (SCA).
[4]
1981
(3) SA 172 (A).
[5]
At
180E-F.
[6]
1966
(1) SA 88 (SR).
[7]
1972
(3) SA 766 (A).
[8]
At
768A-C.
[9]
S
v Trainor
2003 (1) SACR 35
(SCA) at para 9.
[10]
2003
(1) SACR 134
(SCA).
[11]
At
para 15.
[12]
1959
(3) SA 337 (A).
[13]
At
340H–341B.
[14]
See
generally
S
v Shekelele
1953 (1) SA 636 (T).
[15]
Contrast
with the complainant in
Magadla
v S
[2012] JOL 28415
(SCA)) in a rape matter, where there were no
physical attributes given. See para 49
[16]
S
v Govender and Others
2006 (1) SACR 322
(E).