About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2022
>>
[2022] ZAFSHC 340
|
|
Malia v S (A20/2022) [2022] ZAFSHC 340; 2023 (1) SACR 438 (FB) (25 November 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A20/2022
Reportable:
YES/NO
Of
interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
GODFREY
MALIA
Appellant
and
THE
STATE
Respondent
CORAM:
MBHELE,
J et MPAMA, AJ
HEARD
ON:
07
NOVEMBER 2022
DELIVERED
ON:
25 NOVEMBER
2022
JUDGMENT
BY:
MPAMA, AJ
[1]
The appellant was convicted in the
Regional Court sitting in Welkom, on a charge of robbery with
aggravating circumstances
as
intended in s 1(1) (b) of the Criminal Procedure
Act, read with the provisions
of section 51(2) of Act 105 of 1997.
The appellant pleaded not guilty to the
charge and despite his plea he was convicted and on 02 November 2021
sentenced to seven
(07) years imprisonment.
[2]
The
appellant
successfully
applied
for
leave
to
appeal
his
conviction
in
the court a
quo.
[3]
The appellant's appeal is premised
essentially,
on the following grounds:
That
the court a
quo
erred:
1.
In finding that the State proved their
case beyond reasonable doubt.
2.
In not applying the cautionary rule to
the State's single witness' evidence adequately.
3.
In rejecting the alibi of the appellant
and finding defence witness's contradictions material.
4.
In finding the evidence of the State
witnesses were material and satisfactory in all instances despite the
discrepancies between
the viva voce evidence of the complainant and
his statement.
5.
In
accepting the version of the State and
rejecting that of
the
appellant.
[4]
It
is
common
cause
that
at
about
15h00
on
18
February
2019
the
complainant,
Mr
Welcome Dlamini was accosted by three male persons at G Hostel
in Welkom and robbed an amount of R3100.00. Mr Dlamini had
just
alighted from his vehicle when three males appeared behind him. They
were between 8-10 metres away from him.
He could only identify the appellant. He
knew the appellant as a taxi driver with a grey Cressida vehicle
conveying people
from
Shoprite
in
T[....].
The
complainant
further
testified
that
he
had seen the appellant for between two and three years even though he
had never spoken to him or gotten into his car.
[5]
The appellant
approached
him
and
pointed
him
with
a
firearm.
The
complainant
grabbed
the
appellant's
hand
and
pointed
the
firearm downwards. The appellant shot
the complainant
twice
on the leg.
[6]
When shots were fired people who were
nearby came to the scene. The other assailant took out a firearm and
fired at the people in
order to dissuade them from
coming
to
the
scene.
Indeed
people
ran
back
leaving
the
complainant behind with his assailants.
The third male person approached the complainant, searched his
pockets and removed an amount
of R3100.00 from one of his pockets.
Thereafter, the three males left the scene. People came to the
complainant's rescue as he
was bleeding profusely and took him to
hospital. The J88- Medico Legal Report pertaining to the complainant
was handed in as Exhibit
"A" and the contents were formally
admitted in terms of section 220 of Act 51 of 1977. The examination
was performed
at Bongani Hospital, Welkom, on 18 February 2019 at
21h10. It was recorded that the complainant sustained two gunshot
wounds.
[7]
During cross examination it was put to
the complainant that the appellant is not a taxi driver; however he
does some work as an
assistant mechanic on a casual basis and does
not own a grey Cressida vehicle. It was denied that the appellant was
at the scene
of the incident. An alibi was raised, being put to the
complainant that at the time of the incident he was at her wife's
sister's
place who was unwell. The complainant refuted these claims
and in amplification said he knows the appellant so well, he is
nicknamed
Mazet. The appellant was questioned on the statements he
made to the police. It was put to him that on the statement he first
made
on 19 February 2019 he did not mention that he was able to
identify his assailants and his response was that he described the
appellant
to the police.
[8]
Mr Bertus Maritz Olivier is a member of
SAPS, holding a rank of a Warrant Officer with 22 years' experience
and an investigating
officer of the case.
Mr Olivier interviewed the appellant and
obtained his warning statement on 15 March 2019. When he was taking
down appellant's statement
he used a proforma document which required
an accused to disclose his personal details. The appellant informed
him that he was
Thabiso Godfrey Malia, nicknamed Dawie and Mazet, a
taxi driver and that he resides at no.[....] T[....].
The appellant also gave him his ID
number and his cellphone numbers.
Mr
Olivier recorded all these details in the appellant's warning
statement which was handed in as Exhibit D.
[9]
During cross examination the appellant
denied ever providing his personal information. It was put to Mr
Olivier that on March 2019,
the appellant was about to appear in
court when Mr Olivier informed him to sign a certain document. He
agreed and signed the document
without reading it. It was further put
to Mr Olivier that he did not take any statement from the appellant
and that the appellant
has never provided his personal details to
him. Mr Olivier denied that he has falsified all this information
about the appellant
and said he was not privy to appellant's personal
details; it is the appellant who favoured him with the information
when he was
taking his warning statement.
[10]
This concluded the State's case.
[11]
The appellant testified and called his
wife as a witness. His evidence is as follows: On the day in question
he was never at the
scene of the incident. The appellant testified
that on this day he was at home when his wife came to him at about
08h30 and informed
him that her sister was indisposed. Together they
proceeded to the sister's place in another section of T[....]. To
reach this
place they had to take a taxi. On arrival they found his
wife's sister unwell. The appellant's wife gave her some medication
and
she fell asleep. They remained in the house until 17h30 when they
proceeded home.
Appellant's
wife corroborated this version of events.
[12]
The appellant categorically denied that
the complainant knew him, he was a taxi driver, owned a Cressida
vehicle, he is nicknamed
Mazet and that he provided his personal
information to Mr Olivier.
[13]
It
is
trite law that the onus rests on the State to prove the guilt of the
accused beyond reasonable doubt. If the version of the appellant
is
reasonably possibly true, he must be acquitted.
[14]
A court of appeal will be hesitant to
interfere with the factual findings and evaluation of the evidence by
a trial court. See
R v DHLUMAYO
AND ANO
1948
(2) SA 677
(A)
at
705.
[15]
In
S
v
HADEBE
AND
OTHERS
1997(2)
SACR
641(SCA)
at
645
it
was
held:
"In
the absence of demonstrable and material misdirection by the trial
court, its findings of fact are presumed to be correct
and will only
be disregarded if the recorded evidence shows them to be clearly
wrong".
See
also
S
v
FRANCIS [1991)
2
ALL SA 9 (C)
.
[16]
At issue in this appeal is whether the
appellant was properly identified as one of the perpetrators of the
robbery. In addition
the court must consider if the court a
quo
was correct in rejecting the
appellant's alibi. The court must determine if the guilty of the
appellant has been proven beyond reasonable
doubt by the State.
[17]
It is common cause that the court a
quo
dealt with the evidence of a single
identifying witness. The evidence of a single witness needs to be
approached with caution.
Where
the single witness is also an identifying witness the evidence needs
to be approached with more caution.
[18]
Section 208
of the
Criminal Procedure
Act 51 of 1977
provides that 'an accused person may be convicted of
any offence on the single evidence of any competent witness'.
However, the
court must be satisfied that the evidence of a single
witness is clear and satisfactory in all material respects.
[19]
In
S
v
SAULS 1981 (3) SA172 (A)
at 180 D-F the following was held
with reference to
section 208:
"The
absence of the word 'credible' is of no significance; the single
witness must still be credible, but there are, as
Wigmore
points out 'indefinite degrees in
this character we call credibility'. (Wigmore on Evidence vol I11
para 2034 at 262.) There is
no rule of thumb test or formula to apply
when it comes to a consideration of the credibility of the single
witness (see the remarks
of RUMPFF JA in S
v
Webber
1971 (3) SA 754
(A) at 758).
The trial Judge will weigh his evidence; will consider its merits and
demerits and, having done so, will decide whether
it is trustworthy
and whether, despite the fact that there are shortcomings,
contradictions and defects in the testimony, he is
satisfied that the
truth has been told."
[20]
The Supreme Court of Appeal further
determined in
STEVENS v
S
2005
(1)
ALL SA 1
(SCA)
at para 17 that:
"As
indicated above, each of the complainants was a single witness in
respect of the alleged indecent assault upon her. In
terms of
s 208
of the
Criminal Procedure Act 51 of 1977
, an accused can be convicted
of any offence on the single evidence of any competent witness. It
is, a well-established judicial
practice that the evidence of a
single witness should be approached with caution, his or her merits
as a witness being weighed
against factors which militate against his
or her credibility ( see, for example,
S v Webber
1971
(3) SA 754
(A) at 758G-H)".
[21]
In the case of
S
v RAUTENBACH
2014 SACR 1
(GSJ)
the court expressed itself as
follows:
"The
courts have on more than one occasion noted the difficulties and
dangers associated with uncritically accepting the evidence
of a
single witness, especially one who may have every reason to implicate
the accused, in convicting the accused. Thus the need
to tread
cautiously. However, there is no rule that the evidence, whether
critical to the case or not, has to be rejected because
it is that of
a single witness. Only that it has to be treated with caution.
Consequently, the State is entitled to rely on the
evidence of a
single witness, and the court is obliged to give due weight to it if
the evidence is competent and compelling"
[22]
The complainant was not only a single
witness but also an identifying witness. It is trite that a court
must exercise caution when
dealing with the identity of an accused.
In the classic case of
S
v MTHETHWA
1972
(3)
SA
766
(A)
at
768 Holmes JA held:
"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 his
observation must also be tested. This depends
on various factors,
such as lighting, visibility, and eyesight; the proximity of the
witness; his opportunity for observation,
both as to time and
situation; the extent of his prior knowledge of the accused; the
mobility of the scene; corroboration; suggestibility;
the accused's
face, voice build, gait, and dress; the result of identification
parades, if any; and, of course the evidence by
or on behalf of the
accused."
[23]
In
S
v NGCINA 2007(1) SACR (SCA)
it was held:
"The
identification of the appellant as the armed robber is based on the
evidence of a single witness. As correctly pointed
out by DT Zeffert,
AP Paizes and A St Q Skeen The South African Law of Evidence (2003) p
143, appellate Courts have frequently
remarked upon the danger of
relying on the identification of a single witness."
[24]
The court a
quo
was alive to the aforesaid
cautionary rules and it found the evidence of the complainant
credible .I am unable to fault the court
a
quo's
finding. The complainant had ample
opportunity to observe his assailants. The incident took place at
broad daylight; therefore there
was good lighting. The appellant
was
the
first
to
pounce
on
the complainant
and
he pointed
him with a firearm. A scuffle ensued
between the appellant
and
the complainant
when
the complainant grabbed the appellant's hand holding a firearm. The
complainant was without any doubt focussed on the appellant
and
nothing obstructed his view at the time of the incident. The
commission of the offence took
place
over
a
period
of
time.
He
had
a
prior
knowledge
of
the
appellant; he knew the appellant
as a taxi driver at T[....] and in
addition he knew that he was nicknamed 'Mazet'.
[25]
The complainant's
evidence finds corroboration in the
evidence of Mr Olivier who
recorded
on appellant's
statement
that
the
appellant
was
a taxi driver and nicknamed "Mazet".
Mr Olivier did not thumb suck this information or
falsify it; he received same from the
appellant.
[26]
The complainant admitted during cross
examination that his first statement to the police did not describe
the appellant.
However,
he
was
adamant
that
he
had
provided
such
description
to the
police
when
he made
his
statement.
In my
view
I
find
what
was
expressed
almost
29
years
ago
in
S
v
XABA
1983 (3) SA 717(A)
at 7308-C still applicable even
today:
"
that the police statements are, as a matter of common experience,
frequently not taken with the degree of care,
accuracy and
completeness which is desirable "
Furthermore,
as it was pointed out in
S
v
BRUINNERS
EN
'N
ANDER
1998(2) SACR
432 (SE)
'the purpose of a police
statement is to obtain details of an offence so that a decision can
be made whether or not to institute
a prosecution, and the statement
of a witness is not intended to be a precursor to that witness'
evidence in court.' Despite this
shortcoming, the evidence of the
complainant cannot be faulted. It is not uncommon for the court to be
confronted with the same
situation, where a witness is adamant that
he narrated everything to a police officer obtaining his statement
but essential information
is found lacking in the witness' statement.
Despite a loud outcry for more training to be provided to police for
the purposes of
improving the taking of statements, nothing much has
improved.
[27]
The version of the appellant is that he
was not one of the perpetrators
of
robbery. The appellant
raised
an alibi. It is a well-established principle
of our law that
where an alibi is raised
by an accused,
there is no onus
on him
to
prove his alibi. If the accused's
alibi
evidence is reasonably possibly true he must be acquitted.
[28]
In the case of
R
v HLONGWANE
1959
(3) SA 337(A)
at
340H-341B the court set out the legal position
with regard to proof of an alibi as
follows:
"The
legal position with regard to an alibi is that there is no onus on an
accused to establish it, and if it might reasonably
be true he must
be acquitted.
R v Biya
1952 (4) SA 514
(A). But it is
important to point out that in applying this test; the alibi does not
have to be considered in isolation. I do not
consider that in
R v
Masemang
1950 (2) SA 488
(A), Van Der Heever JA, had this
in mind when he said at pp 494 and 495 that the trial Court had not
rejected the accused's alibi"
independently "
independently. In my view, he merely intended to point out that it is
wrong for a trial court to reason thus:
"I believe the Crown
witnesses,
Ergo,
the alibi must be rejected". See also
R
v
Tusini
and
Another
1953 (4) SA
406
(A) at p414. The correct approach
is to consider the alibi in the light of the totality of the evidence
in the case, and the Court's
impressions of the witnesses."
[29]
It is my respectful finding that there
is corroborative evidence in this case identifying the appellant as
one of the perpetrators
who committed the robbery against the
complainant.
The
appellant's alibi is false. I am satisfied that the court a
quo
correctly
found that the State has proven the
identity of
the
appellant beyond reasonable doubt and that the appellant's alibi is
false. The guilty of the appellant has been proven beyond
reasonable
doubt.
[30]
I now wish to comment
on two aspects
I find disturbing in this case. First,
the manner
in
which
the
regional
magistrate
(the
magistrate)
conducted
herself during the trial calls for a
formal expression of disapproval. The magistrate, at the close of the
State's case commented
as follows:" you can change your plea,
either way" directing this comment to appellant's attorney. The
magistrate did
not end there; when the appellant and his witness
testified during examination by the court she asked the appellant and
his wife
more than 50 questions, to be exact 53. The tone, length,
form and content of the court's questions conveyed an impression that
the presiding officer did not believe the truthfulness of appellant's
alibi or version. The appellant's wife was asked to recount
the dates
upon which she attended the case. When she could not give the exact
dates,
the
presiding officer commented that she was in court two months before
the date of her testimony and cannot recall that, however
she is able
to recall what happened two and half
years ago.
The
appellant was asked several questions about a cellphone. At some
instance the appellant indicated that he does not follow the
court's
question and apologised for that. The presiding officer responded as
follows:" no, no, I do not want your apology;
I am just asking
you why'', which according to me displays a sign of irritation or
impatience with the appellant.
[31]
Before us the issue of the presiding
officer's conduct was raised with both counsel. The appellant and
respondent's counsel submitted
that the trial court's questions were
improper, however, it cannot be said that the appellant did not
receive a fair trial.
[32]
The following has been expressed by my
sister, Mbhele J, as she then was in
S
v SIMBONGILE
JACOB
SEALE R204/2017
delivered
on 22 June 2018:
"The
court may at any stage of the proceedings examine any person. Such
examination must be done in such a way that it does
not bring the
court's open mindedness and impartiality into question. Officers of
the court must at all times protect the dignity
and decorum of the
court."
[33]
The presiding officer's conduct was
indeed uncalled for and improper, nonetheless, it is trite that not
every shortcoming or point
of criticism in the conduct of a trial
supports the conclusion that the proceedings were not conducted
substantially in accordance
with justice. I am inclined to agree with
the
submission
made
by
counsel
that
despite
the
magistrate's
improper conduct, it cannot be said that
the appellant did not receive a fair trial.
[34]
Second, the presiding officer having
convicted the appellant of robbery with aggravating circumstances
sentenced the appellant to
seven years imprisonment. I raise the
issue of sentence mindful of the fact that the appellant (took a
smart move) is not appealing
his sentence.
The prescribed sentence for the offence
the appellant has been convicted of is fifteen years imprisonment.
The court has discretion
to increase this sentence with a period not
exceeding five years if the interest of justice demands so. The court
is allowed to
deviate from this sentence if it is satisfied that
there are substantial and compelling circumstances warranting
deviation. It
has been said in
S V
MALGAS
2001 (1) SACR 469
(SCA)
that the specified sentences are not
to be departed from lightly and for flimsy reasons. The test for
deviation is whether on consideration
of the circumstances of the
particular case the court is satisfied that they render the
prescribed sentence unjust in that it would
be disproportionate to
the crime, the criminal and the needs of the society, so that an
injustice would be done by imposing that
sentence.
[35]
The magistrate referred to the case of
Malgas in her judgment.
Further,
she expressed herself as follows":
"After
weighing all the factors the court concludes that in this case the
accused can be rehabilitated":
Without
any further ado, the magistrate proceeded and imposed a sentence of
seven years imprisonment.
[36)
The court is in terms of
section 51(3)
of Act 105 of 1997 required to
place on record the reasons for deviating from the prescribed
sentence. As expressed in the case
of Malgas these prescribed
sentences are not to be departed from for flimsy reasons. The
magistrate provided no reasons for deviating
from the prescribed
sentence. It is also very difficult to comprehend what persuaded her
to deviate from the prescribed sentence.
This was a gruesome robbery
where the complainant was shot at twice and injured in broad
daylight. When members of the public came
to intervene more shots
were fired to scare them away. This is one example of a court having
deviated from the prescribed sentence
for flimsy reason or no reason
at all. This conduct needs to be discouraged. A court must conduct a
proper enquiry to determine
if there are substantial and compelling
circumstances warranting deviation from the prescribed sentence and
should it arrive at
a conclusion that such circumstances exist, it
must record those circumstances.
[37]
In my view the appeal against
conviction must consequently
fail.
[38]
In the premises,
I would make the following order:
1.
The appeal against the conviction is
dismissed.
L
MPAMA AJ
I
agree and it is so ordered:
N
M MBHELE DJP
On
behalf of the appellant: Ms
V. C. Abrahams
Instructed
by: Legal
Aid South Africa
Bloemfontein
On
behalf of the respondent: Adv.
D Pretorius
Instructed
by: Office
of the DPP
Bloemfontein