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[2010] ZAGPPHC 118
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Ramabokela and Another v S (A733/2009) [2010] ZAGPPHC 118; 2011 (1) SACR 122 (GNP) (15 September 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(NORTH
GAUTENG HIGH COURT. PRETORIA
)
CASE
NO: A733/2009
DATE:15/09/2010
IN
THE MATTER BETWEEN
SELLO
RAMABOKELA
…........................................................................
1
st
APPELLANT
HENDRICK
MAKGOTA
...........................................................................
2
nd
APPELLANT
AND
THE
STATE
…..........................................................................................
RESPONDENT
JUDGMENT
BAM.
AJ
[1]
From the outset it has to be recorded that the court
a
quo
granted
the appellants leave to appeal against the convictions but refused
leave to appeal against the sentences.
[2]
The appellants have in the meantime addressed a petition to the
Judge-President of this division for leave to appeal against
the
sentences as well. The petition was successful and leave was granted.
[3]
The appeal against the convictions and sentences will accordingly be
dealt with simultaneously.
[4]
The appellants were convicted in the regional court, Pretoria,
on three counts of kidnapping (counts 4, 6 and 8), two counts
of
assault with the intent to do grievous bodily harm (counts 11 and 13)
and one count of culpable homicide (count 14). On 13 May
2009 the
appellants were sentenced as follows: counts 4, 6 and 8 taken
together for sentence purposes: one year imprisonment; counts
11 and
13 taken together for sentence purposes: one year imprisonment; count
14: six years imprisonment.
In
toto
each
of the appellants have to serve eight years imprisonment.
[5]
The charges resulted from incidents which occurred during a strike by
Tshwane municipal workers at the end of January beginning
of February
2005.
[6]
The municipal workers went on a strike resulting in the municipality
employing independent subcontractors to remove refuse from
certain
parts of the city. The
strikers
were, however, discontent with this arrangement and started attacking
the subcontractors.
[7]
During the morning of 1 February 2005 the strikers kidnapped,
assaulted and generally abused some of the subcontractors. One
of the
subcontractors died as a result of a "heart fracture"
("hart fraktuur") according to the post mortem
report. The
deceased also sustained multiple injuries all over his body caused by
"blunt" instruments.
[8]
The mob of strikers consisted of ± 600 individuals, and
accordingly, what is not strange, the identity of the strikers
involved in the assaults, is of concern to the State.
[9]
The two appellants were arrested by the police upon information that
they were actively involved in the assaults referred to
above.
[10]
Samuel Mahlangu, complainant pertaining to counts 1 (kidnapping) and
count 4 (assault to do grievous bodily harm) testified
that he was
kidnapped and assaulted and taken to a place where he was further
assaulted, his clothes were torn from his body and
water was poured
on him.
[11]
According to this witness he knew two of the assailants personally in
that he had been working with them for six months. One
he knew by
name and the other one from having seen him on a daily basis. He
substantiated his evidence by pointing out the two
appellants in the
dock. He told the court that the first appellant was armed with a
screwdriver and second appellant with a knife.
The two appellants
played an active role in his kidnapping and assault. During his
evidence he corrected himself and testified
that the knife was
actually in possession of the first appellant and the screwdriver in
possession of the second appellant.
[12]
The witness described in detail how the two appellants and other
members of the striking group hit and kicked him. He further
testified that his clothes, as well as the clothes of some of the
other subcontractors, were torn from their bodies and how they
were
generally abused by the strikers. He also testified that the two
appellants were actively involved in the assault on the deceased.
The
deceased was being kicked, jumped upon and trampled by members of the
group. Although the first appellant aimed a blow with
the knife at
the deceased the deceased was not struck. This witness attended to
the deceased but the deceased died at the scene.
[13]
Dr Rossouw, the pathologist examining the body of the deceased, found
the cause of death to be as recorded above. The body
had no knife or
other wounds caused by a sharp object.
[14]
The witness Thomas Ramasodi (complainant count six) who was in the
company of the first witness Mr Mahlangu, corroborated the
evidence
of Mahlangu.
Although
he did not know the appellants beforehand he pointed them out in
court in what is called a "dock identification".
[15]
Mr Rautenbach SC, for the appellants, criticised the court
a
quo
for
having admitted the evidence of Thomas Ramasodi. This was Mr
Rautenbach's point of departure. In developing his argument he
leveled severe criticism against the so-called dock identification
procedure, more specifically in this matter the identification
by
Ramasodi. He argued that Ramasodi was totally unreliable and
untruthful and the court
a
quo
misdirected
itself to accept the evidence of this witness. One of the reasons
advanced by Mr Rautenbach why Ramasodi's evidence
should not have
been accepted is the fact that Ramasodi and Mahlangu talked about the
case, outside the court before the case started.
[16]
Mr Rautenbach endeavoured to persuade us that the evidence of
Ramasodi should have been totally ignored by the court
a
quo.
Mr.
Rautenbach SC. who appeared for the appellants in the regional court,
submitted that Ramarodi's evidence was totally contaminated
by the
dock identification.
In
this regard Mr Rautenbach further pointed out that the court
a
quo
should
have rejected the evidence of Ramasodi and that the court then should
have dealt with the evidence of Mahlangu as that of
a single witness.
The learned regional magistrate, in his judgment, clearly indicated
that Ramasodi's evidence was not of the same
quality as that of
Mahlangu. However, the magistrate in his judgment found that both
witnesses impressed him as being both truthful
and reliable.
[17]
Mr Rautenbach specifically pointed out that the dock identification
by Ramasodi lacks credibility. In this regard it was submitted
that
the said pointing out should have the same evidential value as the
answer to a leading question, which is no value at all.
In this
regard I was referred to the case of
S
v Moti
1998(2)
SACR 257 (SCA) at 257H where the Supreme Court of Appeal Court held
that identification of an accused in the dock is suspect
per
se;
and
Sv
Maradu
1994(2)
SACR 210 (W) at 413J-414A Blieden, J held as follows:
"To
my mind the danger of a dock identification is the same as that
created by a leading question in examination in chief It
suggests the
answer desired. As the latter type of question is inadmissible I see
no reason why dock identification should also
not be inadmissible
save in certain special circumstances."
and
Sv
Daba
1996(1)
SACR 243 (E) Kroon.
.1
made the following remarks pertaining to the identification in the
dock by a witness:
"...
if it has been no more than a dock identification, then for reasons
stated in Maradu's case, that identification should
carry no weight."
[18]
From
Maradu's
case
supra
it
appears that the learned judge did not as in
Daba's
case,
draw a line through dock identification, in the former case it was
with respect foreseen by the learned judge that circumstances
may
exist where dock identification could be admissible. I humbly agree.
[19]
It is trite that evidence of identification should be treated with
caution. Much has been said about this issue in the past.
Our courts
however deem it necessary to, from time to time, repeat the law in
this regard. See
Sv
Mthetwa
1972
(3) SA 766
(A) where the following was laid down:
"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 its
observation must also be tested."
See
also
S
v Caroius
2008
(2) SACR 217
SCA.
[20]
Experience has taught that prosecuting counsel/prosecutors will take
precautions not to bluntly draw a witness' attention to
the person(s)
in the dock. A proper basis for adducing such evidence should be
laid: for instance to ask a witness how he would
describe the
suspect, by what features if any he would recognise him, what the
circumstances were when he saw the suspect, what
elumination there
was, etc.
[21]
It may also be true that dock identification may never carry the same
weight as evidence of identification emanating from a
proper and
formal identification parade. However, I am not convinced that dock
identification should be equated with an answer
to a leading
question. To my mind it should be evaluated in the same manner all
evidence regarding identification is evaluated
- with caution,
nothing more, nothing less.
In
S
v Tandwa
2008
(1) SACR 613
SCA at 652 [129]g the Court said the following:
"Dock
identification ... may be relevant evidence, but generally,
unless
it is shown to be sourced in an independent preceding identification
it carries little weight
.
"
(My underlining.)
The
latter part of the quoted remark, with respect, indicates that the
weight to be attached to dock identification depends on the
circumstances of the case which may differ from case to case.
[22]
To admit evidence of dock identification does not mean that it will,
at the end of the case, necessarily carry adequate evidential
proof
of identity. It would still depend on the evaluation of the evidence
after having applied the usual cautionary rule and after
having
considered the totality of evidence.
[22]
In passing, it is not strange that evidence of identification
emanating from a formal identification parade does in any event,
not
mean
per
se
that
it could not be rejected at the end of the case. It is not uncommon
that positive identification evidence from a formal identification
parade had been rejected as a result of some or other irregular
interference by individuals influencing witnesses by
inter
alia
the
showing of photographs of the suspects, before the parade, to
prospective attendants.
[23]
The evidence of the witness Mahlangu calls for a somewhat different
approach as he knew the two appellants beforehand. He was
criticised
by Mr Rautenbach on the basis that he was untruthful and unreliable.
Mr Rautenbach advanced several reasons for this
submission. It
included the contention that this witness initially lied when he said
that the first appellant had the screwdriver
in his hand and the
second appellant the knife. Later on the witness corrected himself by
saying that the two objects should change
hands, first appellant had
the knife and second appellant the screwdriver. Mr Rautenbach relied
heavily on this "lie"
for his contention that the witness
was untruthful. Mr Rautenbach again also referred to the concession
that the two witnesses
discussed the case before they gave evidence.
•
I
considered the arguments of counsel in this regard and I am satisfied
that the magistrate was correct in finding that both witnesses
were
honest and reliable. The alleged "contradiction" is nothing
more but a correction of the witness' own evidence which
does not
amount to a contradiction as suggested by Mr Rautenbach. In this
regard Mr Roberts for the respondent pointed out that
in any event
the two objects did not play a role at all in the assaults or the
death of the deceased. There was no evidence that
anybody sustained
an injury caused by any of the two weapons, and there was no reason
to lie about possession of the weapons. The
mere fact that Mahlangu
knew the appellants beforehand would render the holding of a formal
identification parade, for obvious
reasons, of no value at all.
•
Regarding
the discussion of the case by the two witnesses I am of the opinion
that it proves nothing. There was no suggestion even
that they tried
to influence each other. The dock identification of the appellants by
Mahlangu in the circumstances should be held
to be admissible on the
same basis as that of Ramasodi. Again the evidential value of the
dock identification is something to be
considered upon the due
applying of the cautionary rule regarding identification as discussed
above.
[25]
Mr Rautenbach further submitted that many grounds exist upon which
the reliability of an identification witness can be criticised.
I
agree with this submission, however as stated before, hence the
cautionary rule to be applied before such evidence should be
found to
have sufficient evidential value.
[26]
The learned regional court magistrate relied heavily upon the
evidence of Mr Mahlangu for the positive identification of the
appellants. In this regard the learned regional court magistrate was
satisfied that Mr Mahlangu was both reliable and honest regarding
the
aforesaid identification. From the judgment it appears that the
magistrate at all relevant stages kept in mind all the criticism
that
could be levelled against the evidence of Mahlangu and Ramasodi
including the more specific reference to the "dock
identification.".
[27]
I have considered the submissions made by counsel as well as the
regional court's decision pertaining to the acceptance
of the
evidence of identification of Mahlangu and Ramasodi. I could find no
reason to say that the learned regional court magistrate
has
misdirected himself or erred in any material respect. •
The magistrate clearly took into consideration the totality
of the
evidence pertaining to the identification of the two appellants. To
my mind Ramasodi's evidence corroborated the evidence
of Mahlangu
regarding the identification of the two appellants.
[28]
The evidence of the said two witnesses proved beyond reasonable doubt
that the two appellants were actively involved as alleged
by the
State. I have come to this conclusion after having considered the
totality of the evidence including the issues referred
to hereafter.
It
was further contended on behalf of the appellants that the regional
court magistrate should have found that their version, consisting
of
virtually a complete denial of the evidence regarding their
involvement in the alleged crimes, should be at least reasonably
and
possibly true.
In
this regard I was referred to
Sv
Munyai
1986
(4) SA 712
(V) at 715 where VAN DER SPUY, A.T stated the following
regarding the state's
onus
as
far as the version of an accused is concerned:
"In
other words, even if the state case stood as a complete acceptable
and unshakened edifice, the court must investigate the
defence case
with the view to discern whether it is demonstrably false or
inheritably so improbable to be rejected as false. There
is no rule
for balancing the two versions, it is the state's case as against the
accused's case and to act on preponderances. That
is clear from the
next case to which Mr Bursey refers namely S v Singh (supra), in
which their Lordships held that: 'In criminal
cases, where there is
conflict between the evidence of the state witnesses and that of the
accused,
if
would be quite impermissible to approach the case on the basis that,
because the court is satisfied as to the reliability
of
the state witnesses, it therefore must reject the accused's evidence
.
It was held that a proper approach in such case is for the court to
apply its mind not only to the merits and demerits of the
state's
case that depends on the witnesses but also to the probabilities of
the case. It is only after applying its mind to such
probabilities
that the court would be justified in reaching a conclusion as to
whether the guilt of the accused had been established
beyond all
reasonable doubt."'
(My
underlining.)
•
From
the above authority it appears that even in the event of the court
being satisfied that the state's case "
stood
as a complete acceptable and unshaken edifice
"
the court must still investigate the defence's case to determine
whether it is not reasonably and possibly true. Such an
approach, to
my mind, in view of what follows hereunder, is
clearly
wroim
.
See
Sv
Trainor
2003(1)
SACR 35 (SCA) at 40 par [6] where NAVSA, JA in referring to the
following passage in the judgment of the magistrate in that
matter:
"Even
though I have accepted the complainant's evidence, the court must
still look at the accused's version and if the accused's
evidence is
reasonably possibly true, even though I do not accept it, even though
I find that he is lying in certain instances,
as the rules of the
High Court ... have put down, then I am bound to accept that version,
there should be a doubt in my mind, and
the benefit of the doubt will
then go to the accused. "
remarked
as follows in par [8]f-g:
"
The
passage from the magistrate's judgment quoted in par
[6]
demonstrates
a misconception
of
how evidence is to be evaluated
.
In
Sv
Van Aswegen 2001(2) SACR 97 (SCA) CAMERON, JA (at lOla-e), after
observing that this misconception has its origins in cases like
Sv
Kubeka
1982 (1) SA 534
(W) at 537F-G and S v
Munyai
1986 (4) SA 712
(V) at 715G, referred with approval to
Sv
Van
Tellingen 1992(2) SACR 104 (C) at 106a-h and
Sv
Van der Meyden 1999(1) SACR 447 (W) at 449h-450h. In the latter case
NUGENT, J, with reference to the dictum in the Kubeka case,
said the
following (at 449h-450b):
'It
is difficult to see how a defence can possibly be true
if
at the same time the stale's case with which it is irreconcilable is
"completely acceptable and unshaken
".
The passage seems to suggest that the evidence is to be separated
into compartments, and the "defence case" examined
in
isolation, to determine whether it is so internally contradictory or
improbable as to be beyond the realm of reasonable possibility,
failing which the accused is entitled to be acquitted. If that is
what was meant, it is not correct. A court does not base its
conclusion, whether it be to convict or to acquit, on only part of
the evidence. The conclusion which it arrives at must account
for all
the evidence. ..."'
(My
underlining.)
In
SvChabalala
2003(1)
SACR 134 (SCA) at 139 par [15] HEHER, AJA with reference to
Sv
Van
Aswegen
2001(2)
SACR 97 (SCA) said the following:
"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."
•
In
view of the guidelines in the abovementioned decisions regarding the
facts
in
casu
it
can be safely stated that once the state has proved the commission of
the alleged crimes and the court has accepted the identification
evidence adduced by the state, after having considered the totality
of the evidence, there is no room for a finding that the appellants'
version of non-involvement, can be reasonably and possibly true.
[29]
When the totality of the evidence is considered I am satisfied that
the learned regional court magistrate was correct in his
finding
that, regarding the crux of the matter, the state has proved the
identity of the appellants beyond reasonable doubt. The
state further
adduced adequate evidence to prove, as was found by the court
a
quo,
that
the appellants in fact committed the crimes of kidnapping, counts 4,
6 and 8; - assault with the intent to do grievous bodily
harm; and
count 14 — culpable homicide - count 14.
•
The
state adduced sufficient evidence to prove that the appellants in
fact committed kidnapping in that the witnesses concerned
were
forcibly put under control and removed from point A to point B. It is
further clear that the evidence proved beyond reasonable
doubt that
the appellants and other members of the crowd, committed assault with
the intent to do grievous bodily harm. There can
be no question that
the mob, including the two appellants, if not co-perpetrators then at
least aiders and abettors, with a common
intent assaulted the
complainants with the intention to do them serious bodily harm.
•
Culpable
homicide is a competent verdict on a charge of murder. The magistrate
found that he was not convinced that the appellants
had
dolus
directus
to
kill the deceased. The learned regional court magistrate referred to
the matters of
Sv
Tenqwa
1970
(3) SA 529
(SCA)
Amagmud
v Jansen van Rensburg
1993(1)
SACR 67 (SCA) and
S
v Nkombesi
1972
(3) SA 476
(AD) at 478 as well as
S
v Ngwenya
1985
(2) SA 560
(SCA). The learned magistrate was clearly aware of the
principles pertaining to common purpose, and
mens
rea
regarding
the question of culpable homicide in matters as
in
casu.
I
have no doubt in my mind that the learned regional court magistrate
correctly applied the law to the facts in convicting the appellants
of culpable homicide.
[30]
Accordingly I am of the opinion that the appeal against the
convictions should not succeed and that the convictions of the
appellants pertaining to the six counts referred to above should be
confirmed.
Ad
sentence
[31]
This court has limited powers to interfere with a sentence imposed by
the court
a
quo.
It
has to be established that the court
a
quo
misdirected
itself or erred in
one
or other material respect or imposed a sentence that is so improper
and severe that it causes a sense of shock. See in this
regard
Sv
Pieters
1987
(3) SA 717
(A);
S
v Roberts
2000(2)
SACR 522 (SCA);
S
v Sadler
2000(1)
SACR 331 (SCA) and
Michele
& Another v S
[2010]
(1) All SA 446
(SCA).
[32]
Public order is of main concern to the community and the government.
No citizen should be subjected to disorder and violence
when somebody
else decides to strike, whether it is a legitimate strike or an
unlawful strike does not matter.
[33]
The behaviour of the appellants on that day cannot be tolerated in
view of the resulting kidnapping, serious assault and death
of a
human being.
[34]
The learned magistrate, in considering the sentence, took into
account the abovementioned issues as well as other relevant
and
material aspects which usually play a role in the consideration of
sentence.
[35]
It is clear that the magistrate also considered other sentence
options excluding a direct prison sentence.
[36]
Sentence, as remarked by the magistrate, is one of the most difficult
judicial exercises that can be undertaken by a judicial
officer.
[37]
In deliberating whether the sentence imposed by the regional court
magistrate was in fact appropriate and not a result of a
misdirection
or error by the learned regional court magistrate. I am of the
opinion that the following aspects are also of importance
(1)
the appellants are first offenders;
(2)
the appellants have family lives and families to look after;
(3)
the appellants were gainfully employed on the day of the incident;
(4)
the appellants are respectively 29 and 36 years of age;
(5)
both were armed respectively with a knife and a screwdriver although
there was no evidence that the weapons were in fact used
upon any of
the complainants or the deceased;
(6)
the strikers, including the appellants, were on the probabilities
incited to strike - it appears that the strike was initially
a lawful
strike but later got out of hand;
(7)
it goes without saying that the emotions ran high on that day and in
the circumstances there was very little to do to control
the mob;
(8)
The fact that a human being died is
per
se
very
serious.
(9)
Innocent breadwinners were the targets of the unruly members of the
mob of strikers;
(10)
The violence was uncontrolled, vicious and unprovoked.
(11)
Some of the victims sustained serious injuries and were hospitalised.
[38]
Mr Rautenbach
SC
submitted
that the fact that the municipal workers participated in the legal
strike should have a mitigating effect on the sentence.
I
do
not agree. No strike, whether it be legal or not. should have
violence involved. The strikers should have kept that in mind.
Unfortunately the appellants did not.
[39]
I
could
find no reason to interfere with the court
a
quo.
There
was no misdirection and the sentence is appropriate.
Accordingly
I
would
suggest that the appeal against the sentence should also fail and the
sentence imposed by the learned regional court magistrate
confirmed.
AJ
BAM
ACTING
JUDGE
OF
THE
NORTH
GAUTENG
HIGH
COURT
I
concur.
The appeal against both the convictions and sentences fail. The
conviction and the sentences imposed are confirmed.
PC
VAN DER BYL
ACTING
JUDGE
OF
THE
NORT
H
G
AUTENG
HIGH
COURT
A733-2009
HEARD
ON:
FOR
THE
APPELLANT:
ADV
J
G
RAUTENBACH
SC
INSTRUCTED
BY:
FRIEDLAND
HART
SOLOMON
&
NICHOLSON
FOR
THE
RESPONDENT:
ADV
F
C
ROBERTS
INSTRUCTED
BY:
DIRECTOR
OF
PUBLIC
PROSECUTIONS,
PRETORIA