Mokoena v S (A36/2022 ; RC195/15) [2023] ZAGPJHC 523 (19 May 2023)

80 Reportability

Criminal Law

Brief Summary

Criminal Law — Robbery — Appeal against conviction — Appellant charged with robbery with aggravating circumstances — Evidence of complainant and co-accused contradictory and unreliable — Appellant's plea explanation not adequately considered by trial court — Conviction set aside due to insufficient evidence supporting the finding of guilt.

Comprehensive Summary

Summary of Judgment

1. Introduction

These were criminal appeal proceedings in the High Court of South Africa, Gauteng Local Division, Johannesburg, arising from a conviction in the regional court. The appellant, Mokoena Sunnyboy, appealed against the outcome of his trial, in which he had been convicted and sentenced for robbery with aggravating circumstances. The respondent was the State.

The procedural history was materially affected by the incomplete trial record. The matter was postponed in November 2015, and when proceedings resumed on 19 May 2016 the record did not contain a transcription of what occurred between 9 November 2015 and 19 May 2016, including the remainder of the evidence and the trial court’s judgment on conviction. The appellant was sentenced on 19 May 2016, but the appeal was only heard on 15 May 2023, resulting in a delay of approximately seven years, which the appeal court attributed mainly to difficulties caused by the incomplete record and attempts at reconstruction.

The dispute concerned whether, on the available record (including a flawed reconstruction), the conviction and sentence could be sustained, and whether the appeal court could address the conviction notwithstanding that the record suggested leave to appeal had been granted only in relation to sentence.

2. Material Facts

The appellant was charged with robbing Mosa Joseph Tshabalala on 12 March 2015, allegedly assaulting him and taking his Toyota vehicle and a Nokia cell phone. The appellant pleaded not guilty and provided a plea explanation. His explanation, as summarised in the appeal judgment, was that he worked as a metered taxi driver for a person referred to as “Tshepo”. On the day in question Tshepo asked him to drive to Alexandra, and a person (identified as Xolani Masemula, a former co-accused) was also in the vehicle. The appellant’s version was that Tshepo instructed him to stop next to the complainant’s Toyota Yaris, Tshepo interacted with the complainant, and the appellant later drove and handled the vehicle on Tshepo’s instruction. The appellant denied hijacking or robbing the complainant and stated that he was arrested while driving the Toyota Yaris and charged with possession of a suspected hijacked vehicle.

The complainant testified that he owned the vehicle and that he had received a call from a person claiming to be at his office, who wanted to meet. The complainant arranged to meet at a garage and later changed the meeting point. He testified that the appellant approached him at the garage and that another person in the appellant’s vehicle also approached. The complainant’s evidence was not consistent throughout regarding who was present: the appeal court recorded that, although the complainant initially gave the impression that the “third person” joined the appellant and his companion, he conceded during cross-examination that he got into the vehicle with the appellant, Tshepo, and Xolani.

On the complainant’s account, after travelling some distance they stopped at Olifant where a person accompanying them produced and cocked a firearm, declared that the complainant was being hijacked, instructed him to lie down, tied his hands with a rope, and placed a gun at the back of his head. The complainant testified that his cell phone and car keys were taken, and he was later untied by persons who found him. His vehicle was recovered the next day. He stated that the appellant and the former co-accused were unknown to him.

A police witness, Constable William Makela Mashishi, testified that he received a lookout for the vehicle and later spotted it. The vehicle stopped without hesitation when signalled, and the appellant was driving it with a passenger. Both occupants were taken to Midrand Police Station. According to the witness, they indicated at the station that the vehicle was not hijacked and that it came from Tshepo.

A central factual complication was the absence of a complete record. The appeal court recorded that there was no transcribed record of proceedings between 9 November 2015 and 19 May 2016, and that no further evidence or the trial court’s judgment was recorded in that period. An attempt at reconstruction occurred on 23 April 2018, but the transcript contained substantial “indistinct” portions and incomplete answers. A further attempt to reconstruct did not succeed, and the presiding magistrate later indicated (in a letter dated 16 September 2020) that he could not take the matter further due to lack of recollection.

From what could be gleaned from the reconstruction, the trial magistrate recalled evidence by Tshepo Julius Manamela (treated as a State witness) to the effect that he admitted owing the Tshabalala family money, and the magistrate expressed a recollection that Tshepo appeared to be the “principal wrongdoer” and did not impress the court. However, the appeal court noted that the magistrate nevertheless stated in reconstruction that the court had accepted the complainant’s evidence and rejected the appellant’s version.

3. Legal Issues

The central legal questions concerned the sustainability of the conviction and sentence on the record available to the appeal court. This required an assessment of whether the State had proved guilt beyond reasonable doubt in circumstances where the record was materially incomplete and where the available portions suggested material contradictions within the State’s case.

A further issue was procedural and remedial, namely whether the appeal court could address the conviction where the application for leave to appeal was missing and the remaining indication on the record suggested that leave to appeal had been granted only in relation to sentence. This raised a question of the scope of the appeal and whether the court could invoke its inherent jurisdiction to prevent injustice.

The dispute accordingly involved a combination of the application of law to fact (evaluating the reliability of the State’s case and the reasonableness of the appellant’s version on the available material) and the exercise of a value-laden remedial judgment (whether to intervene to cure procedural unfairness and avert injustice despite technical limitations in the appeal record).

4. Court’s Reasoning

The appeal court approached the matter on the basis that the record before it was “the best record available” and that, despite missing portions, it was still possible to determine whether the conviction and sentence were sustainable. It accepted that sending the matter back for further reconstruction would be prejudicial, particularly given the poor quality of the reconstruction already attempted and the later inability of the magistrate and others to reconstruct further due to lack of recollection.

On the merits, the appeal court considered the available evidence and reconstruction and concluded that the State’s case contained material contradictions, particularly relating to the presence and role of Tshepo. The court noted that the trial magistrate, during reconstruction, recalled that Tshepo had been viewed as the “principal wrongdoer” and that his evidence had not impressed the court. The appeal court reasoned that this state of affairs meant the State’s case was “on shaky grounds,” especially where Tshepo was a State witness whose version conflicted with the complainant’s evidence in material respects.

The appeal court also emphasised that the complainant’s testimony shifted on whether Tshepo was present. It treated as significant that the complainant conceded during cross-examination that he was in the vehicle with the appellant, Tshepo, and Xolani, after earlier denying Tshepo’s presence. On the appeal court’s reading, this undermined the reliability of the complainant’s account and supported the conclusion that parts of his evidence (including assertions that Tshepo was not present and not known to him) were untrue.

A major feature of the reasoning was the absence of a clear, reasoned basis (on the record) for the trial court’s acceptance of the complainant’s evidence and rejection of the appellant’s version. The appeal court observed that the magistrate stated in reconstruction that he accepted the complainant’s evidence, but the reasons for doing so were not apparent, and the contradiction between Tshepo’s and the complainant’s versions was said to have been ignored. Against that background, the appeal court stated that it was not clear on what basis the appellant’s plea explanation, described as “the only clear version on record” from the defence perspective, had been rejected.

The appeal court further reasoned that, given the magistrate’s own recollection that the “fingers of guilt pointed to Tshepo” (a State witness), it was “impossible to imagine” that the appellant’s version was not reasonably possibly true. It characterised the State’s version as contradictory, unreliable, and untrustworthy on the record available.

On the procedural scope of the appeal, the appeal court noted that the application for leave to appeal against conviction and sentence was lost, and that there was only an indication that leave to appeal sentence had been granted. It nevertheless concluded that leave to appeal against conviction should also have been granted, given the weaknesses in the State’s case. To remedy the injustice, it invoked the superior courts’ inherent jurisdiction to prevent a patent injustice, relying on authority recognising that an appeal court should not ignore an evident injustice merely because it is not formally the subject of appeal. The court also referred to authority criticising unacceptable delays in finalising appeals and emphasising the duty of officials to ensure that deprivation of liberty is attended by lawful process as quickly as possible.

Because it held that the conviction could not stand, the appeal court considered it unnecessary to deal separately with the appeal against sentence.

5. Outcome and Relief

The appeal court set aside both the conviction and the sentence.

No separate order as to costs was recorded in the judgment.

Cases Cited

Toubie v S [2012] 4 All SA 290 (SCA)

S v Ramulifho 2013 (1) SACR 388 (SCA)

Legislation Cited

No legislation was expressly cited in the judgment.

Rules of Court Cited

No rules of court were expressly cited in the judgment.

Held

The High Court held that, on the incomplete but best available record (including an unsatisfactory reconstruction), the State’s case was materially contradictory and unreliable, with particular inconsistencies concerning the involvement and presence of Tshepo, and without a clear recorded basis for rejecting the appellant’s version. In those circumstances, the appellant’s version was reasonably possibly true and the conviction was not sustainable.

The court further held that, notwithstanding the indication that leave to appeal had been granted only in respect of sentence and the loss of the leave-to-appeal application, the interests of justice required intervention. It exercised its inherent jurisdiction to prevent a patent injustice and set aside both conviction and sentence.

LEGAL PRINCIPLES

The judgment applied the principle that an appeal court, as a superior court, may invoke its inherent power to prevent a patent injustice, and should not ignore such an injustice merely because it is not formally delineated as the subject of appeal.

It also applied the principle that unacceptable delays in the finalisation of criminal processes, particularly where an individual’s liberty is affected, are inconsistent with the obligations of judicial officers and other officials involved in the criminal justice process, who must ensure that the process obtains the full stamp of legal approval as quickly as possible.

On evidentiary evaluation (as reflected in the appeal court’s approach to the available record), the judgment applied the principle that where the State’s case is contradictory, unreliable, and untrustworthy, and where the accused’s version is reasonably possibly true, a conviction cannot be sustained.