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[2011] ZAGPPHC 66
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Mabotja and Another v S (A 397/2008) [2011] ZAGPPHC 66 (1 May 2011)
NOT REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
(TRANSVAAL PROVINCIAL
DIVISION)
CASE NO: A 397/2008
DATE:01/05/2011
In
the matter between:
DONALD
MABOTJA
....................................................................................
FIRST
APPELLANT
JOHAN
THSEPO
LAKA
.........................................................................
SECOND APPELLANT
and
THE
STATE
.........................................................................................................
RESPONDENT
JUDGMENT
MAVUNDLA
J.,
[1]
The appellants, were convicted at the Regional court Polokwane on 4
April 2006 on a count of robbery committed on 18 October
2004 in that
they unlawfully and intentionally assaulted Mr. Moses Ledwaba and
with force and at gun point took his property or
property in his
lawful possession, to wit a Toyota Corolla motor vehicle with
registration number DHT 411N and 2 cell phones and
an amount of
R3000, 00. They were both sentenced to 8 years imprisonment and it
was further ordered that they are, respectively,
unfit to possess a
firearm in terms of section 103 of Act 60 of 2000.
[2] The appellants are
approaching this court on appeal against conviction after they were
granted leave to appeal respectively.
[3] Both appellants, who
were dully represented during the trial pleaded not guilty to the
charges and chose to exercise their right
of silence and did not
disclose their defence.
[4] The conviction of the
appellants is a sequel to certain events that occurred on 18 October
2007 and described by Mr. Moses Ledwaba,
and Ms Lu Wang. They were
accosted by two men armed while they were sitting in a car and robbed
at gunpoint of the items referred
to in the charge sheet. Besides
these two witnesses, the State also led the evidence of the following
witnesses, Mr. Andrew Seemela,
a taxi driver, who said that he
witnessed the two robbers running away, Inspector Isaac Rammala and
Sergeant Ramphele Ismail Maditsi
both of whom are police officers and
arrested the appellants.
[5] According to Mr.
Ledwaba on the 18 October 2007 he was in the company of Ms Wang, in a
Toyota motor vehicle that he was driving.
They had parked along the
road when they were accosted by the appellants who, at gun point,
robbed Ms Wang of an amount of R3000.
00 and her cell phone. They
also robbed Mr. Ledwaba of his Alcatel cell phone and the Toyota
motor vehicle. The vehicle belonged
to Ms Wang but he was the driver
thereof at the time. He first saw the appellants when they were
already at the window of their
motor vehicle. After robbing them the
two appellants ran away. He saw the two appellants again on the same
day when they were brought
back to the scene by the police. He
confirmed to the police that the two were the same people who robbed
them earlier.
[6] Mr. Seemela's
evidence was that on 18 October 2004 he was driving in his Kombi when
he saw two people running out of a motor
vehicle that had gotten
stuck in sand. On approaching this motor vehicle he found a Chinese
lady. In passing, I should comment
that it is unfortunate that the
Magistrate allowed the witnesses to continue referring to Ms Wang as
the Chinese lady even when
that description was no longer warranted.
It is necessary that courts should move away from unnecessary
race discretions. When
Mr. Seemela gave chase after the two fleeing men, one produced a
firearm and pointed it at him. He went back
to Ms Wang and the motor
vehicle. Police came and he gave them description of the clothes the
fleeing persons were wearing. In
his evidence, he said that the one
who pointed him with a firearm was the first appellant. The first
appellant was wearing brown
pair of trouser. The second appellant was
wearing a short cream white Bemuda pair of trouser, and a T-shirt the
colour whereof
he cannot recall. He said that the fleeing persons
were the appellants. He accompanied the police into some camp where
the second
appellant was found hiding in a tree with a black bag with
money. The first appellant was found hiding in a hole. He was certain
that the latter was the one who pointed him with a firearm but
nothing was found on his arrest.
[7] Inspector Rammala's
of the South African Police Service testified that he saw the first
appellant running in some direction.
He gave chase and arrested him
and took him back
to the scene of crime
where he was identified by Ms Wang as one of her robbers.
[8] Ms Wang's evidence
was that the two appellants robbed them and ran into what she
described as a jungle. The two appellants were
subsequently arrested
by the police. She identified the two appellants by their height.
First appellant was short and the second
appellant taller. It was not
very long after the robbery when she saw them again already arrested
by the police.
[9] The evidence of
Sergeant Madisti was that on the day in question he went to the
direction pointed out to him by community members.
He did not specify
who exactly pointed the direction to him. He found second appellant
with a bag with money and an Alcatel cell
phone. He arrested him and
took him back to the scene of crime where Ms Wang identified the ceil
phone. The taxi driver (Mr. Seemela)
and the man who was with Ms Wang
identified the second appellant, it is not clear whether the second
cell phone was recovered.
[10] The first
appellant's version was that, whilst walking in a field, he saw a
police van coming towards him at a fast speed.
He decided to run
away. He then ran in circles to avoid being run down by the speeding
police van. He was ordered to stop, which
he did. He was then
arrested. He denied any knowledge or involvement in the robbery.
[11] The second
appellant's version was that, whilst he was on his way home, the
police stopped him and inquired from him what he
had done and asked
him about guns. When he said he knew nothing thereof they assaulted
him. They took him to a place where there
was a gathering of people.
Seeing that he was in a van, he had no knowledge of what then
happened there. He did not know why he
was arrested and only came to
lean thereof at the police station.
[12] The magistrate
evaluated the evidence. In rejecting the version of the appellants,
the magistrate had regard to the fact that
the description of the
clothes they were wearing was given to the police. The police, armed
with the description of the clothing,
were lead to the
direction towards which the mean, reportedly, had run. Both
appellants were found hiding. A black bag with money
and cell phones
belonging to the complainants was recovered from the second
appellant. The magistrate found the version of both
appellants not
reasonably possibly true and rejected it as false.
[13] It is trite that the
State must prove the guilt of the appellants beyond reasonable doubt,
but not beyond any shadow of doubt.
1
[14] Criticism was
levelled at the State witness. It was pointed out that there were
discrepancies in their evidence, such as to
who was arrested first.
It further should be borne in mind that the witnesses testified two
years after the event. Such discrepancies
are not material in my
view. They do not call for the entire State evidence to be thrown out
through the window, vide S v Mkohle
2
.
[15] Both appellants deny
that they were at the scene of the crime. Their version is akin to an
alibi. I am alive to the fact that
they dispute identity. I am
satisfied that they were correctly identified by the respective State
witness, in different circumstances.
[16] It is trite that the
trial court need not look at the evidence of the accused in
isolation, thereafter look at the evidence
of the State witnesses. It
must look at the totality of the evidence that is before it, and have
regard to the impressions it has
of the witnesses. If it finds that
the version of the appellant is not reasonably possibly true, in the
totality of the evidence
before it, it must reject the accused
person's version and accept that of the State (vide S v Van
Aswegen
3
).
The finding of the complainant's items with the second appellant, the
positive identification of both appellants and their hiding
leave no
room for their alibis. Their versions cannot be reasonably possibly
true.
[17] I am in agreement
with the Magistrate's finding that the appellants were positively
identified, his rejection of their versions
and his conclusion that
their guilt had been proven beyond reasonable doubt. (Vide S v
Nseie
4
).
In the result I am of the view that the conviction of the appellants
by the magistrate cannot be disturbed and that it must be
confirmed.
[18] The appeal was
against conviction only. Consequently I recommend that the following
order be made:
1. That the appeal of
both appellants is dismissed;
2. That the conviction of
both appellants is confirmed.
N.M. MAVUNDLA
JUDGE OF THE HIGH COURT
I agree and it is so
ordered
J.
M. N. POSWA
JUDGE
OF THE HIGH COURT
Delivered
on 31 APRIL 2011.
1
Vide
S
v Mafiri
2003 (2) SACR 121
(SCA) at 125c-d;
S
v Ntsele
1998
(2) SACR 178
2
1990(1)
SACR 95 (A).
3
2001
(2) SACR 97
(SCA).
4
supra
at
182d-h.