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[2021] ZAGPJHC 65
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Chonco v S (A30/2019) [2021] ZAGPJHC 65 (9 June 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: YES
CASE
NO: A30/2019
SS
67/2014
DPP
REF NO: JPV 10/2/11/1-14/20
In
the matter between:
CHONCO,
SIPHO MSANENKOSI
APPELLANT
and
THE
STATE
RESPONDENT
J
U D G M E N T
MUDAU,
J:
[1]
This
is an appeal against conviction only with leave of the trial court
(per Karam AJ). The appellant was indicted on 16 serious
charges that
included counts of murder read with the provisions of section 51(1)
of Act 105 of 1997 related to minibus-taxi feuds.
The appellant was
acquitted for lack of adequate evidence in respect of a significant
number of the charges but for count 7 (murder),
count 8 (murder) as
well as counts 9 to 11 (attempted murder charges), which are the
subject of this appeal. He was subsequently
sentenced to life terms
in respect of the murder charges and to 10 years’ imprisonment
for each of the attempted murder charges.
The sentences in counts
9,10 and 11 were ordered to run concurrently with the life sentence
imposed for counts 7 and 8. In issue
in this appeal is whether the
appellant was correctly placed and identified at the scene where the
offences were committed.
[2]
The
background facts are largely common cause. The appellant, the
deceased in counts 7 and 8 as well as the complainants cited in
counts 9, 10 and 11 were members of rival taxi associations, being
Reiger Park Taxi Association and Vosloorus Boksburg Taxi Association
(“VBDTA”), respectively. The appellant was a member of
VBDTA but had formed a breakaway group operating under Reiger
Park
Taxi Association. A dispute arose regarding one of the taxi routes
serviced by both associations at Holomisa, Windmill Park,
Boksburg.
[3]
The
history of the dispute was outlined by Mr. Lucky Mbatha, the
secretary of VBDTA. In 2010, approximately 15 members led by the
appellant formed a splinter group. In 2012 members of the splinter
group resigned from VBDTA to join the Reiger Park Taxi Association.
During the relevant period there was taxi related violence and
casualties on either side in a series of separate incidents that
ensued until 2014, when the deceased were murdered. The complainant
in count 11 did not testify in the matter as the state could
not
secure his attendance, the appellant was however convicted of
attempting to murder him as well.
[4]
The
complainant in respect of count 9, Mr. Shadrack Ngubo (“Mr.
Ngubo”) was a taxi owner and a member of the VBDTA.
He
testified that he had known the appellant for more than 10 years. He
also knew the deceased in counts 7 and 8 as well as the
complainants
in the remaining charges as they were all members of the VBDTA. In
the morning of 5 May 2014, he received information
that taxis
belonging to the VBDTA had been stopped from operating in the
Holomisa informal settlement area. He and other members
proceeded to
the area only to establish that that was indeed the case. They then
proceeded to Boksburg and discovered that the
taxis there were
operating without hindrance.
[5]
Later
the same day, before the sun could set, all five of them, being
Ngubo, Ncube, Khoza, Mazibuko and Skosana travelled in a Toyota
Tazz
Corolla motor vehicle from Boksburg to Vosloorus along Heidelberg
Road. He was a front seat passenger. The driver of the Tazz
was the
deceased in count 8, Mr. Mncube. The complainant in count 10, Mr
Mazibuko was a rear seat left passenger. The complainant
and
surviving victim in count 11 was Mr. Skosana who was seated in the
middle of the back seat. The deceased in count 7, Mr. Khoza
occupied
the rear right seat.
[6]
Mr.
Ngubo testified that they were not traveling at a high-speed. As they
approached the right side junction, where Boundary Road
intersects
with Heidelberg Road, he heard a series of shots being fired. Out of
fear he bent down to take cover but looked up at
a distance of 20 to
25 m away in a 45° angle and saw two men, this being the
appellant and one Mdunge (since deceased in a
separate incident in
the company of the appellant) who was also involved in the taxi
business. Both were in possession of rifles
and stood next to a white
sedan. The appellant had on a powder blue shirt and stood at the
passenger’s side of the white
sedan whereas Mdunge was on the
driver’s side much closer to the headlamp.
[7]
The
deceased, Khoza cried out that he had been shot. As he looked back
through the window where Khoza was seated, he noticed the
white
sedan was at that stage following them, with the appellant and
Mr. Mdunge firing further shots at them. At some stage
Mr. Ncube
tried to overtake another vehicle in an attempt to speed away, the
car in which the appellant and his companion traveled
overtook theirs
on their left-hand side firing further shots. The deceased, Ncube,
lost control of the car which veered off the
road to the right in the
open field. Ncube and Khoza died at the scene and the remaining 3
survivors were hospitalized for an extended
period of time.
[8]
During
cross-examination, Mr. Ngubo was adamant that the incident occurred
during daylight and that the sun had not yet set. On
his version, he
and the others with whom he travelled in the Toyota Tazz left
Boksburg at about 5 PM, and that the shooting happened
about 10
minutes later. He disputed that 5 May 2014 was in the middle of
winter as suggested by counsel of the appellant. However,
he was not
in a position to identify the driver of the assailants’ car
since the windows were tinted. He disputed any conspiracy
to falsely
implicate the appellant whom he had known for many years.
[9]
The
complainant in count 10, Mr. Mazibuko testified and confirmed Mr.
Ngubo’s testimony. He too was a taxi owner and had known
the
appellant since 2003. On his version, he described the white sedan
that the appellant travelled in as a Toyota Corolla. He
noted the
Toyota Corolla in the proximity of another vehicle, a red VW Golf at
the intersection of Kingfisher and Rondebult Streets.
Three unknown
males stood outside the two cars as he and his companions drove past.
The white Toyota Corolla sedan with four occupants
proceeded to
follow and overtook them. This all happened before sunset. The sun
was still bright. From the white Toyota Corolla,
he identified the
appellant who was seated on the left back passenger’s seat and
Mdunge who was on the front passenger seat.
The windows of the Toyota
Corolla sedan though tinted, were half open.
[10]
As
the Toyota Corolla overtook theirs, the appellant and Mdunge had
turned their heads to look at them, consequently, he had sufficient
opportunity to look at the whole of the appellant’s face. The
appellant’s head and that of his companion, Mdunge were
not
covered. He confirmed that it was at the intersection of Boundary and
Heidelberg Roads that he saw the barrels of two rifles
through the
open windows of the front and the rear left seats where the appellant
and Mdunge sat, after Khoza had said to Ncube
that they were being
shot at. He confirmed that the Toyota Corolla followed them, that
they were further shot at during the chase
but had his head down. He
confirmed that they were all struck by bullets but he survived the
shooting.
[11]
During
cross-examination, Mr. Mazibuko’s statement to the police about
the incident was put to him. The statement recorded
that it was at
6:30 PM when he was on duty watching the movement of the taxis that
day. Mazibuko was adamant that reference to
6:30 PM was an error on
the part of the police official who took down the statement. The
statement had to correctly reflect 6:30
am, as the time he arrived at
the taxi rank for duty. He could not recall whether the statement was
read back to him as it was
taken from his hospital bed. He never read
the statement as English was not his language. He refuted suggestions
that he was falsely
implicating the appellant. On his version, he had
previously been shot at Holomisa informal settlement, and easily
could have implicated
the appellant had it been his desire to do so.
Further on his version, he did not see the appellant and Mdunge
standing outside
their car at the Boundary Road intersection as he
was looking down at the time. After their motor vehicle landed in the
veld, he
lost consciousness and only regained it in hospital.
[12]
It
is a trite principle that in criminal proceedings the prosecution has
to prove its case beyond reasonable doubt, on a conspectus
of all the
evidence. If the accused's version was reasonably possibly true in
substance, the court had to decide the matter on
the acceptance of
that version. The accused's version could only be rejected on the
basis of inherent probabilities; not because
it was merely improbable
but because it was so improbable that it could not reasonably
possibly be true.
[1]
[13]
The
appellant raised an alibi as a defence. It is trite that an alibi
defence is not to be treated as a separate issue to the issue
of
identification. An alibi defence is essentially a denial of the
prosecution's case on the issue of identification. As the Appellate
Division stated in R v Hlongwani
[2]
,
the correct approach is to consider the alibi in the light of the
totality of the evidence and the court's impression of the witnesses.
It is sufficient if it might reasonably be true.
[3]
[14]
The
appellant was the sole witness to testify in his defence. He
testified that at the time of the incident (5 May 2014), he had
relocated his residence from Benoni to Tsakane as he feared for his
life from the taxi feuds. This residence was more of a hideout.
He
did not walk about and never left the house except to attend meetings
on Tuesdays during some weeks. He also visited his wife
in the North
West province for 3 to 4 days at a time. He denied that he was
involved in the commission of the offences. It was
brought to his
attention that they were experiencing problems in that they were
being chased away and forbidden by mainline operators,
VBDTA members
to pick up passengers which he relayed to all other members of the
splinter group, including the late Mr. Mdunge
on the day of the
incident.
[15]
During
cross-examination, he confirmed that he is known the state witnesses
for a long-time. He was constrained to concede that
these witnesses
could easily identify him. He had resigned from VBDTA on 27 February
2012 but continued operating his taxis at
Holomisa, which was a VBDTA
pickup point. He was constrained to concede that VBDTA tried to
prevent him from operating from Holomisa
which had become a lucrative
route, as a result of which violence ensued. On his version, he had
no permit to operate from Reiger
Park Taxi Association and did so
illegally. He previously had no problems with the complainants who
testified. Regarding the events
of 5 May 2014, he confirmed that
three of his taxi drivers were operating from the rank at the high
school in Holomisa, also known
as Windmill Park. He had no
independent recollection of what day of the week that was or what
transpired on the day in question,
but lived with one Khumalo.
[16]
On
his version, he had no personal knowledge on who was responsible for
the violence on the day in question but opined that it could
have
been the drivers themselves. The Holomisa pickup point, the source of
the conflict, was not registered as a separate route
from VBDTA.
However, the appellant, as the trial court found, had difficulties in
pointing out the taxi pickup point at the high
school in Holomisa. On
the common cause evidence, the appellant and other members of the
splinter group still had permits to operate
from all routes of VBDTA.
Yet, the appellant had difficulty in explaining why they were not
permitted to operate on the main route.
[17]
The
gravamen of the appellant’s attack against his convictions lies
with the evidence of Mr. Ngubo who testified that the
appellant and
his companion were standing beside a motor vehicle when they started
shooting at them. Mr Mazibuko on the other hand
made no mention of
this, according to him the appellant and Mr. Mdunge started shooting
at them whilst they were in the vehicle
following them. The criticism
is devoid of any merit as the scene was not static. It was a moving
scene. Accordingly, there is
nothing inherently improbable with the
version of the state that both Ngubo and Mazibuko watched the
developing scene at different
intervals and evidently, from different
vantage points.
[18]
Significantly,
the state witnesses corroborated each other that the incident took
place in broad daylight with no confusion as to
who the participants
were. Furthermore, as the appellant rightly conceded, he was well
known to them for many years and they could
positively identify him.
The possibility for a mistaken identity under the circumstances is
too remote and can safely be discounted.
It is clear that the trial
judge approach this evidence cautiously.
[4]
To the credit of the state witnesses, the so-called contradictions in
their evidence clearly shows that it has not been rehearsed.
[19]
It
is generally accepted that a court of appeal would not be inclined to
reject the factual findings of the trial court in the absence
of
demonstrable and material misdirection by the trial court. The
findings of fact by the trial court are presumed to be correct
and
would only be disregarded if the recorded evidence showed them to be
clearly wrong. I have not been able to find any demonstrable
errors
on the part of the trial court to justify interference with its
credibility findings.
[5]
[20]
To
the contrary, the record proves that the trial court was correct in
its credibility findings, and that the appellant and his
companion
had motive to commit the crimes for which he was convicted. His alibi
defence was nothing more than generalities. Given
the conspectus of
the evidence, I am unable to find that the trial court erred in
finding that the appellant’s version is
so inherently
improbable as not to be reasonably possibly true. The court
a
quo
,
for sound reasons, found the appellant to be an untruthful witness.
His protestations of innocence cannot reasonably possibly
be true. In
my view he was rightly convicted, as in the court below, on all the
relevant counts. His appeal against these convictions
must
accordingly fail.
[21]
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
N P MNGQIBISA-THUSI
[Judge of the High Court,
Gauteng Local Division,
Johannesburg
I
agree
C
SWANEPOEL
[Acting
Judge of the High Court,
Gauteng
Local Division,
Johannesburg]
Date of Hearing:
31 May 2021
Date of Judgment:
9 June 2021
APPEARANCES
For the
Appellant:
Adv. L L Makoko
Instructed
by:
Legal Aid South Africa-JHB
For the
Respondent:
Adv. P Schutte
Instructed
by:
DPP –
JHB
[1]
S
v Shackell
2001 (4) SA 1 (SCA).
[2]
1959
(3) SA 337
(A) at 340H.
[3]
S
v Ngcina
2007 (1) SACR 19 (SCA).
[4]
S
v Mthetwa
1972 (3) SA 766 (A).
[5]
Livanje
v S
2020 (2) SACR 451
(SCA) at para18.