Brief Summary

Criminal Law — Robbery — Appeal against conviction — Appellants convicted of robbery with aggravating circumstances and sentenced to fifteen years imprisonment — Appellants contending trial court erred in accepting State's version over theirs, failing to apply cautionary rule regarding single witness, and misapprehending discrepancies in evidence — Court found complainant's evidence credible and corroborated by witness — Appeal dismissed as trial court's findings were upheld and no material misdirections identified.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter was a criminal appeal to the High Court of South Africa, Free State Division, Bloemfontein, against convictions imposed by a Regional Court. The appeal was heard by Mbhele DJP and Mpama AJ, with Mpama AJ delivering the judgment.

The appellants were Paseka Issacs Salman (Appellant 1), Thabo Andy Sondag (Appellant 2), and Lebohang Mokgethi (Appellant 3). The respondent was the State. The appellants had been tried in the Regional Court sitting in Excelsior on a charge of robbery with aggravating circumstances, as defined in section 1 of the Criminal Procedure Act 51 of 1977, read with section 51(2) of the Criminal Law Amendment Act 105 of 1997. They pleaded not guilty but were convicted on 1 August 2017 and each sentenced to 15 years’ imprisonment.

Following conviction and sentence, the appellants applied to the trial court for leave to appeal. They obtained partial leave, limited to an appeal against conviction only (and not sentence). The appeal before the High Court therefore concerned whether the trial court was correct to convict, with the primary focus on the evaluation of the complainant’s evidence as a single witness, the treatment of alleged contradictions, and whether the defence version was reasonably possibly true.

The general subject-matter of the dispute concerned events at the complainant’s tuck shop on 30 May 2016, where the State alleged that the appellants robbed the complainant while one appellant threatened him with a knife, and the appellants contended that they were present for a dispute relating to a cellphone and an alleged debt rather than a robbery.

2. Material Facts

On 30 May 2016 at about 14h30, the complainant, Mr Degefa Temesgen Dobamo, was at his premises where he operated a tuck shop. Three male persons entered. According to the complainant’s evidence, the three demanded money from him, and he identified the assailants as the three appellants.

The identity of the appellants as the persons who were present at the complainant’s shop was treated by the appeal court as not in dispute, because the appellants admitted being at the complainant’s shop. The disputed issue was therefore not whether they were present, but what occurred during that encounter and whether their conduct constituted robbery with aggravating circumstances.

On the complainant’s version, Appellant 3 went to the till and removed R900, and also took the complainant’s cellphone valued at R500. The complainant further testified that Appellant 1 wielded a knife and threatened to kill him, while Appellant 2 demanded money. After the incident, the complainant testified that Appellants 1 and 2 ran out, followed by Appellant 3, and that he chased them without success. The complainant denied that he repaired phones for business purposes and denied that he took Appellant 3’s phone.

The State also led the evidence of Ms Modiehi Mabokwane, who testified that she received a call at about 14h00 reporting that the complainant was being robbed. When she approached the complainant’s shop, she heard swearing from inside, and she observed two male persons run out of the premises with the complainant chasing them. She identified those two persons as Appellant 1 and Appellant 2.

A document relating to an identification parade, namely a SAP 329, was admitted as Exhibit “A” by formal admission. The contents recorded that the complainant positively identified the appellants at an identification parade.

The appellants’ version was that they went to the complainant’s premises at Appellant 3’s instance because the complainant allegedly owed Appellant 3 R1000 relating to a Blackberry phone sent for repairs, and that the complainant’s boss (referred to as “Zalek”) had allegedly taken the phone and promised payment. On this version, Appellant 3 spoke to the complainant without hostility; the complainant handed Appellant 3 a cellphone so that the complainant could contact Appellant 3 when the boss arrived; and they then left. Appellant 3 said he gave that phone to Appellant 2 for charging. Later, the appellants were arrested individually, and the complainant’s cellphone was recovered from Appellant 2.

A further material aspect addressed on appeal was that the complainant was cross-examined in the trial court on a previous statement to the police. The appeal court noted that the defence cross-examined on the statement without laying a proper basis, that the prosecution did not object, and that the trial court permitted this line of cross-examination.

3. Legal Issues

The central legal questions concerned the correctness of the trial court’s factual findings and credibility assessments, and whether the conviction could stand on the evidence as presented. Although framed as several grounds of appeal, the appeal court treated the core enquiry as whether the trial court was correct in accepting the State’s version and rejecting the appellants’ version, and specifically whether the appellants’ version was reasonably possibly true.

A significant issue was the proper application of the cautionary approach to single-witness evidence, given that the complainant was a single witness in relation to the commission of the robbery, and the appellants contended that the complainant was not satisfactory and that contradictions undermined his credibility.

There was also a legal issue concerning the permissible use of a witness’s prior police statement in cross-examination, including the requirement that a basis be laid and the consequences where the witness does not acknowledge ownership of the statement. This issue related to the probative value of evidence elicited through that cross-examination.

Overall, the dispute primarily involved the application of legal principles to facts (credibility evaluation, probabilities, and the reasonable-possibility standard), rather than the interpretation of legal rules in the abstract.

4. Court’s Reasoning

The appeal court began from the established principle that an appellate court is generally reluctant to interfere with a trial court’s factual findings and evaluation of evidence, particularly on credibility, and will only interfere where there is a wrong finding of fact and material misdirection. In this context, the appeal court referred to the appellate restraint principles in the cited authorities.

The appeal court identified the decisive question as whether the trial court was correct to accept the State’s version and reject the appellants’ version, asking whether the defence version was reasonably possibly true. In addressing the appellants’ complaint that the trial court failed to apply the cautionary rule, the appeal court accepted that the complainant was indeed a single witness, but emphasised that a conviction may be sustained on single-witness evidence if the witness is found credible and the evidence is satisfactory in material respects, or corroborated.

In relation to the alleged contradictions between the complainant’s viva voce evidence and his police statement, the appeal court recorded that counsel for the appellants was asked to identify material contradictions and ultimately conceded that there were no material contradictions in the complainant’s evidence. The appeal court accordingly did not accept that this ground undermined the complainant’s credibility.

The appeal court further considered the handling of the complainant’s police statement during cross-examination. It observed that the defence cross-examined on the statement without laying the necessary foundation, that the trial court failed to ensure that the basis was first laid, and that the complainant did not acknowledge ownership of the statement. In those circumstances, the appeal court accepted the submission that evidence arising from such cross-examination should be ignored and that no probative value could be attached to it.

On the merits of credibility and corroboration, the appeal court held that the trial court was correct to find the complainant to be a credible and honest witness who provided a clear account of what took place and of each appellant’s role during the robbery. The appeal court also relied on corroboration in respect of what happened immediately after the incident, noting that Ms Mabokwane’s evidence supported the complainant’s version insofar as she saw Appellants 1 and 2 running out of the shop while the complainant chased them.

Turning to the defence version, the appeal court endorsed the trial court’s rejection of that version as inherently improbable and not reasonably possibly true. The appeal court reasoned, first, that on the appellants’ own evidence there was no hostility in the interaction, and the complainant was said to have been cooperative (including handing over a phone), which the appeal court regarded as inconsistent with an inference that the complainant would then falsely implicate the appellants. Second, the appeal court found an internal improbability in the defence explanation for possession of the cellphone: if the phone was given to facilitate contact so that the complainant could reach Appellant 3 when the boss was available, the decision by Appellant 3 to leave the phone with Appellant 2 would undermine that very purpose.

In light of these considerations, the appeal court concluded that the trial court’s finding that the State proved guilt beyond reasonable doubt could not be faulted, and that the appeal against conviction had to fail.

5. Outcome and Relief

The High Court dismissed the appeal. The conviction for robbery with aggravating circumstances remained intact.

No further relief was granted. The judgment recorded no costs order, and the operative order was confined to dismissal of the appeal against conviction.

Cases Cited

R v Dhlumayo and Another 1948 (2) SA 677 (A); S v Francis 1991 (1) SACR 198 (A); Makate v Vodacom Ltd 2016 (4) SA 121 (CC); S v Sauls 1981 (3) SA 172 (A); S v Webber 1971 (3) SA 754 (A); S v Mahlangu 2011 (2) SACR 164 (SCA); S v Jolingana 2016 (2) SACR 404 (ECBC).

Legislation Cited

Criminal Procedure Act 51 of 1977, section 1 (definition of “robbery with aggravating circumstances” as referenced) and section 208; Criminal Law Amendment Act 105 of 1997, section 51(2).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The High Court held that the trial court’s acceptance of the State’s version and rejection of the appellants’ version disclosed no basis for appellate interference under the applicable principles governing appeals on fact and credibility.

It held that, although the complainant was a single witness to the robbery, his evidence was found to be credible and satisfactory in material respects, and it was corroborated in part by the evidence of Ms Mabokwane regarding the appellants fleeing the premises.

It further held that cross-examination on the complainant’s prior police statement occurred without a proper foundation, that the complainant did not acknowledge ownership of the statement, and that evidence arising from that cross-examination carried no probative value and should be disregarded.

On these findings, the court held that the appellants’ version was inherently improbable and not reasonably possibly true, that the State proved guilt beyond reasonable doubt, and that the appeal against conviction had to be dismissed.

LEGAL PRINCIPLES

An appellate court will generally be slow to interfere with a trial court’s factual findings, including credibility assessments, and will do so only where the trial court’s conclusions are shown to be wrong and affected by material misdirection.

A conviction may follow on the evidence of a single witness provided that the evidence is found to be credible and substantially satisfactory in material respects, or there is corroboration. The evaluation requires a weighing of merits and demerits rather than the application of a mechanical formula.

In a criminal trial, where an accused advances a version, the central enquiry remains whether that version is reasonably possibly true when assessed against the State case; if not, and if the State’s evidence is accepted, guilt may be found proved beyond reasonable doubt.

Where a witness is cross-examined on a previous police statement, a proper foundation should be laid to establish the making, adoption, and accuracy of the statement, and where this is not done and the witness does not acknowledge ownership, the resultant “contradictions” derived from that process may be treated as lacking probative value.

Salman and Others v S (A59/2021) [2022] ZAFSHC 306 (3 November 2022)