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[2010] ZAGPPHC 609
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Mthombeni and Another v S (A973/09) [2010] ZAGPPHC 609 (7 May 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG DIVISION, PRETORIA
CASE NUMBER: A973/09
DATE: 07/05/2010
SIFISO
SIBUSISO MTHOMBEN
I
1
st
APPELLANT
FRANKLIN
GLADWIN FISHER
2
nd
APPELLANT
V
THE STATE
RESPONDENT
Judgment:
Mabuse AJ
JUDGMENT
1. On 23 July 2009,
the Regional Court sitting in Benoni. convicted the two appellants of
two counts of robbery with aggravating
circumstances as contemplated
in Section 1 of Act 51 of 1997 (“the CPA).
2. The State had
alleged, in count 1, that on or upon 3 October 2008 and at Daveyton,
in the Regional Division of Gauteng, the two
appellants unlawfully
and intentionally assaulted one Thapelo Thulare and did there and
then with the use of force and violence
take from his possession a
Nokia 3410 cellphone to the value of R350.00, his property or the
property then in his lawful possession,
aggravating circumstances
being present in that the appellants used firearms in the commission
of the said offence.
3. In count 2, the
State’s allegations against the appellants were that on the
date, place and under the same circumstances
and manner as in count
1, the two appellants robbed one Ntokozo Godile of an E250 Samsung
cellphone, her property or property then
in her lawful possession.
4. The two
appellants pleaded not guilty to the abovementioned charges and,
through their legal representatives, chose to make no
plea
explanations in terms of the provisions of section 115 of the CPA.
Despite their pleas, the court a quo convicted them accordingly
and
sentenced them each to twenty years imprisonment, ten years on each
count and ordered their sentences to run concurrently.
The appellants
feel hard done by their abovementioned convictions and now appeal in
pursuance of leave to appeal against such convictions
only having
been granted by the court a quo.
5. The charges
against the appellants arise from an incident that took place on 3
October 2008 in a street in Daveyton, when the
two complainants were
robbed of their cellphones by two thugs at gunpoint while they were
walking in the street. According to the
evidence of the two State
witnesses, one of these two assailants approached the first
complainant Thapelo Thulare (Thapelo) and
demanded a cellphone from
him.
6. He asked this man
what he was doing but the assailant simply ignored him and searched
him and fished out of his pocket a cellphone
and a key which he threw
away on the ground while he made away with the cellphone. Thapelo was
able through streetlights and moonlight
to recognise his assailant as
the first appellant. According to his evidence, he knew him very
well: he had known him for sixteen
years while they stayed in the
same street and also attended the same school.
7. While one
assailant approached Thapelo, the other one approached Ntokozo
Ngodile(“Ntokozo”) the second complainant.
Thapelo does
not know what this second assailant, whom he described as a coloured
and whose face he saw briefly, did to Ntokozo.
Ntokozo herself
confirmed that the person who approached her was somewhat coloured.
The court described this person as an albino
or as a person having an
albino traits. She testified that these two people fled when a motor
vehicle appeared with its lights
on, illuminating the area where the
complainants were robbed. The following day Ntokozo was called to the
police station where
she was shown people in the back of a police van
and she was told that those were the two people who had been arrested
in connection
with their robbery the previous day.
9. She had known the
first appellant for some time before the incident. She used to see
him but did not know his name. Neither of
these two assailants had
covered his face or head.
10. Both appellants
denied that they were involved in the commission of the above
offences, the first appellant testifying that
he was at a party from
19h00 in the evening of the day of the incident to 04h00 the
following day and the second appellant testifying
that he was at his
home with one Themba at all material times.
11. In order to
counter the evidence of Thapelo that he attended the same school at
the same time with him, the first appellant
led the evidence of his
father, one Sipho Mthunzi, who contradicted Thapelo’s evidence.
According to his testimony, the First
Appellant did not attend
Siphumelelo Primary School, as testified by Thapelo, but attended
Dumehlezi Primary School and on graduating
from Dumehlezi Primary
School proceeded to Davey Secondary School. His evidence corroborated
Thapelo’s evidence that in the
time during which the offences
with which the appellants have been charged were committed, the first
appellant was staying at house
no 1622 Dungeni Street, Daveyton.
12. The second
complainant corroborated Thapelo that whilst walking they were
accosted by two males. She too described the second
person as being
“coloured” in appearance. The court’s observation
was that the second person (the second appellant)
was “albino”
in complexion. Neither of the two persons had anything on their
heads. She testified that she had known
him “for months”
having seen him especially on week-ends.
13. In the course of
her evidence the second complainant broke down in tears. No efforts
by the bench to console her were made.
The court adjourned. On
resumption the attorney representing the accused sought leave to
withdraw from the case on her clients’
instructions. On
resumption on another day the accused were represented by Attorney Ms
Bungee. The trial Magistrate set the proceedings
in motion by
remarking as follows:
“
Court:
Well, all right fair enough, you knew as far as 1 am concerned 1 made
a note she finished testifying. She said the coloured
man is accused
2? Prosecutor: Yes it was before.
Miss Bungee: So
maybe just cross-examination then Your Worship.
Court: You now have
to cross-exam (sic).....
Court: Okay, I will
be the safety net.
EVIDENCE FOR THE
STATE (CONTINUED)
NTOKOZO PROMISE
NGODILE: d.s.s”
The
cross-examination of the witness then commenced. It, the
cross-examination was perfunctory and concentrated on the proposition
that if the accused had not been pointed out in the police van as the
people who had robbed her and her boyfriend of the cellphones
she
would not have been able to identify them.
The Magistrate’s
summary of the evidence confirms that no further evidence was led by
the State when Ms Bungee took over the
defence of the accused.
14. The court a quo
accepted the evidence of the State and rejected the evidence of both
appellants. It was satisfied that the state
had proved its case
against both appellants beyond reasonable doubt. Accordingly, it
proceeded to convict the two appellants as
charged. It is these
convictions that the two appellants contest.
15. The Appellant’s
grounds of appeal, though not prepared by a legally trained mind,
have been fully set out in their applications
for leave to appeal. 1
will accept that the appellants, as well as their counsels, are
satisfied with the grounds of appeal so
set out in their application
for leave to appeal in the absence of any attempt to amend them. In a
word, the First Appellant's
grounds of appeal are directed at his
identity and the fairness of the trial. About identity he complains
that, although one of
the State witnesses knew him for at least 16
years, he failed to report the case against him on 3 August 2008 but
instead chose
to summon the assistance of his friends to look for him
and arrest him. According to him, the failure of such a victim to lay
a
charge at the local Police Station immediately after the incident
had taken place indicates uncertainty as to the identity of the
assailants. Furthermore he decries the investigating officer’s
failure to hold an identification parade in order to establish
whether or not the complainants would have been able to point out the
people they claimed had robbed them of their belongings,
but instead
called the complainants to the Police Station after their arrest and
allowed them to identify him from the back of
the stationary police
van at the Police Station.
16. Save for the
grounds that one of the State witnesses knew the first appellant for
16 years, the grounds of appeal on which the
second appellant relies
are similar to the First Appellant’s grounds of appeal.
17. The approach
that this court should adopt in this matter has been succinctly set
out in Rex v Dhlumayo And Another
1948 (2) SA 677
AD by Greenberg J
A, as he then was. The learned author A Kruger captured the summation
of the approach aptly when he stated the
following in Hiemstra’s
Criminal Procedure pages 30-45:
“
The
Court of Appeal must bear in mind that the trial Court saw the
witnesses in person and could assess their demeanour. If there
was no
misdirection of facts by the trial court, the point of departure is
that its conclusion was correct. The Court of Appeal
will only reject
the trial court's assessment of the evidence if it is convinced that
the assessment is wrong. If the trial court
is in doubt, the trial
court's judgment must remain in place. (See S v Robinson 1968 (!) SA
660 A at 667 g-e). The Court of Appeal
does not zealously look for
points upon which to contradict the trial court’s conclusions
and the fact that something has
not been mentioned does not
necessarily mean that it has been overlooked."
18. It is not the
duty of this court to substitute the judgment of the court a quo with
its own judgment. The Appeal Tribunal must
decide the appeal on the
facts before it as contained within the four corners of the record of
appeal. The duty of this court is
to establish, from the record of
appeal, firstly, whether or not the court a quo has misdirected
itself on the facts of the case
or the law: secondly, to satisfy
itself that the court a quo’s assessment of the evidence was
not wrong. Based on the authority
of Pillay v Krishna And Another
1946 AD 946
p.951, a duty lies on the appellants to satisfy the court
that the court a quo misdirected itself in so far as the facts of the
case or the law are concerned and that the court a quo’s
analysis of the evidence was wrong.
19. Although in his
heads of argument counsel for the First Appellant submitted that the
State did not prove its case beyond reasonable
doubt, he conceded,
however, during argument that in respect of the First Appellant the
State had indeed proved its case beyond
reasonable doubt. In view of
his apostasy there would ordinarily be no longer any issue between
the State and First Appellant.
20. The trial
Magistrate accepted the evidence of the two complainants and rejected
the alibi of the appellants. The issue to be
determined is whether
the trial court misdirected itself in arriving at that conclusion.
When a person who has been charged with
an offence raises an alibi as
a defence, no duty lies upon such a person to prove his alibi.
“
The
legal position with regard to an alibi is that there is no onus on
the accused person to establish it, and if it might be reasonably
possibly true, he must be acquitted."
See
R v Hlongwane
1959 (3) SA 337
A at 340 H as per Holmes J.
Accordingly,
the approach that the court a quo should have adopted would have been
to find that the State had a duty to disprove
the alibi of the
accused. Instead, the court
a
quo,
in
its judgment remarked as follows:
“
Now
why I
say, not only we
listened to the bail application tapes which Ms Bungee confirmed
there was no mention of any alibi, but why the
Court says that both
accused offers in effect the defence of an alibi except for the fact
that they are supporting each other,
is that accused 1 claims that
the night of 3 October till 04:00/05:00 the next morning he was at
this Sissy’s party.
And accused 2
claims he was in the company of Themba whom he does not know where he
stays but no effort was made and no effort was
requested to trace
him. Of course there can never be a negative inference if people do
not call witnesses but that does not discourages
the discussion about
human nature and what a person will do if that indeed was the case.
Now Mr Nthombeni,
there he was being arrested, being assaulted and he claims that he
could not tell the people who assaulted him
he also maintains as he
claimed he could not tell the police contrary to what it is known
that he gets the opportunity to speak
as he did all along since his
appearance in this court. He claimed he did not get opportunity to
say anything with his appearance
7 October. Mr Bungee confirmed that
the accused never told her about an alibi, neither of them. As a
matter of fact the first time
this alibi was raised was in
cross-examination of Mr Thu/are. Just remember the bail application
was held 12 November 2008just
over a month after their arrest and the
alibi was only raised as far as accused 1 is concerned about three
and a half months after
his arrest. That does not make sense.
It
is the most instinctive reaction if you did not want to tell the
people who assaulted you, maybe you told the police or you to/d
the
Court or at least you will tell your attorney who you had a week
after your arrest on 11 October. As far as Mr Nthombeni is
concerned
stating that to Mr Nth la/eng at the time, “I have an alibi not
only do
/
have an alibi
/
have witnesses ”.
Mr Nthombeni
accused 1 mentioned three people present, his friend Sissy, Jabu and
Sifiso. If an alibi is not raised against this
background with ample
opportunity there is only reasonable inference, it is a lie it is not
true. You have to remember that Ms
Bungee’s efforts or her
services were so much appreciated by the accused that they recalled
her.
Consistently
during the course of these proceedings, whenever there was a request
for a consultation it was granted and
/
cannot believe
that the accused will certainly or his family would not immediately
have gone to the police, come to the Court, speak
to the Prosecutor,
speak to the Court and has said that, “But listen wait a bit
I
have
got” even his family, “We have got information, we have
got people who can corroborate the fact that at the time
22:00 on 3
October, our son could not have committed the robbery”, nothing
like this was done. Mr Nthombeni preferred to
remain in custody and
the same holds to a lesser extent true for accused 2. Why did he not
tell Ms Bungee, Ms Naidoo. Mr Nthlaleng,
about the fact that he was
with Themba and the first time we heard about that, in effect the
first time we heard about that is
in effect when accused 2 testified
but he has got his friend Themba.
Most certainly if
he informed anybody or his attorney some efforts would have been made
to have traced them by this past eight months
and 19 days. Accused 2
only testified yesterday 22 July 2009. Again, as far as this Court is
concerned, the only reasonable inference
in view of the fact that
there could be no justification who would like to remain in jail when
you have got a defence, such a defence
they can corroborate it. is
that these two alibi defence are false.
Now
we still have to deal with the question of credibility but the fact
of the matter is the authority is dear, if a defence of
an alibi if
proved to be false, it is considered as if the accused did testify at
all. So the version of the two accused are rejected
as false.
”
The approach by the
trial Court was clearly wrong and it misdirected itself on that
issue. With regards to factual finding on the
identification of the
culprits the trial Court observed as follows at page 92 lines 4-7 the
following:
“
Looking
at the totality of the picture, this court believes that the State
has proved the guilt of the two accused as being the
perpetrators who
robbed Mr Thulare and Ms Ngodile on 3 October 2008 beyond reasonable
doubt."
21. The issue that
arises is whether this conclusion by the trail court accords with the
evidence. Both complainants were found
to be reliable witnesses on
their identification of the first appellant. Both testified that they
knew the first appellant for
a number of years, in respect of the
first complainant, and for a shorter time in respect of the second
complainant. The complainants
had been accosted within close
proximity of a high-mast light. The confrontation had not been a
fleeting one and the culprit/s
had made no effort to conceal their
identities. The first appellant’s defence or an alibi has to be
considered against this
backdrop and the question posed wither it can
by reasonably possibly true. The trial Magistrate rejected it. Did
she misdirect
herself in arriving at that conclusion? The reply, in
my view, is a resounding “NO”. It is my considered view
that
the State proved that the first appellant committed the offence
in count one and that there is no merit in the appeal on this count.
With regard to the
conviction of the second appellant on count no. 1 there is no
evidence that the second appellant participated
in the robbery of the
complainant on count one. He did not assist in any way. None of the
requirements for common purpose were
remotely established against the
second appellant (State v Mgedezi 1989(1) SA 687(A)). The accused in
no way contributed ‘actually
or physically’ to the
robbery of the first complainant (S v Maxaba en Andere 1981(1) SA
1148(A) and neither can it be said
that he was an accomplice. In my
view the conviction of the second appellant on count I cannot stand.
With
regards to count two there is no evidence that the first appellant
did anything to the second complainant. Even if the first
complainants evidence is accepted that the second appellant went up
to the second complainant there is no evidence firstly, that
the
second appellant did anything to the second complainant. The trial
Magistrate clearly misdirected herself with regard to the
evidence on
this count as neither of the State witnesses testified that the
second complainant was robbed. The question put to
the second
complainant by Ms Bungee cannot be considered as having constituted
an admission of the robbery having been committed.
The trial
Magistrate clearly lost track of the facts in the second count. The
trial court misdirected itself on this issue and
this court is
entitled to interfere in the finding of the court
a
quo.
22. I would
accordingly propose the following order that:
1. The first
appellant’s appeal against the conviction and sentence on count
one (1) be dismissed:
2. the first
appellant's appeal against the conviction and sentence on count two
(2) be upheld:
3. the appeal by the
second appellant on the conviction and sentence on both counts one
(1) and two (2) be upheld.
P.M. MABUSE
ACTING JUDGE OF
THE HIGH COURT
I agree and it is
so ordered.
G. WEBSTER
JUDGE OF THE HIGH
COURT
Appearances
:
Appellant's
Counsel: Adv. PM Mositsa
Respondent’s
Counsel:Adv. KM Mashile
Date Heard: 16
April 2010
Date of Judgment:
7 May 2010