Brief Summary

Criminal Law — Robbery with aggravating circumstances — Appellant convicted of robbery after being identified by a single witness — Appellant denied involvement, claiming he was at a spaza shop during the incident — Court emphasized the need for caution in relying on single witness testimony — Conviction upheld as evidence deemed credible and reliable despite the absence of corroboration.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was a criminal appeal in the High Court of South Africa, Gauteng Division, Pretoria, against a conviction for robbery with aggravating circumstances. The appellant, Monyeki Ezekiel Thobile, had been convicted in the Mamelodi Regional Court (as accused 1) and sentenced to 15 years’ imprisonment in terms of section 51(2)(a) of the Criminal Law Amendment Act 105 of 1997.

The respondent was the State. The appellant had pleaded not guilty at trial and was legally represented. After conviction and sentence, the appellant applied for leave to appeal against both conviction and sentence, but leave was granted on conviction only.

The appeal concerned whether the Regional Court correctly evaluated the evidence—particularly the single-witness incrimination, the presence of material contradictions, and the appellant’s version that he was not one of the perpetrators—and whether the State had proved guilt beyond reasonable doubt.

2. Material Facts

On 3 June 2015, between approximately 10h00 and 10h30, the complainant, Mr Robertus Ronald Jordaan, a DSTV installer, was driving in Mamelodi in a Toyota Tazz while trying to locate an address and speaking on his cellphone. He stopped after someone shouted at him and, after rolling down his window, he was confronted at his vehicle by assailants.

It was common cause that the complainant was robbed and injured during the incident. The complainant testified that two men approached his vehicle: one at the driver’s side and one at the passenger’s side. A struggle followed at the driver’s side, and the complainant was stabbed in the leg; his cellphone was taken. At the passenger’s side, property including a hands-free cellphone car kit, a bag, and a wallet with its contents was taken. The complainant was taken for medical assistance and the police attended the scene. The complainant could not identify the perpetrators and stated he could not remember distinguishing features that would allow identification of the appellant or his co-accused.

The evidence diverged materially on how many perpetrators were involved and whether the appellant was one of them. Mr France Lephako, who said he had known the appellant for about 10 years, testified that he observed the robbery from approximately 30 to 50 metres away. He stated that the appellant went to the driver’s side, produced an object that looked like a knife, and stabbed the complainant on the thigh, while also grabbing at the complainant’s phone. Lephako further testified that a third person, unknown to him, assisted in wrestling the phone away, and that the appellant and his co-accused then ran away.

Mr Lesley Oupa Morima, who lived about 4 to 5 metres from where the incident occurred, testified that he saw the co-accused (Baleseng) and another man (Mpho) running towards the complainant’s vehicle. Morima stated that it was Mpho who went to the driver’s side, stabbed the complainant, and took the phone, and that he did not see the appellant at the scene. Despite extensive questioning and cross-examination, Morima remained adamant that the appellant was not present. Morima also described additional features of the incident (including his description of the knife and further events at the vehicle) and maintained that five people were involved.

The investigating officer testified, in essence, that the appellant was traced and arrested on 16 June 2015 with the help of a paid informer.

The appellant’s version was that he went to the spaza shop to buy cigarettes while on his way to work. He heard commotion suggesting someone should not be injured, and then his co-accused informed him that a white man had been robbed and asked him to assist in chasing the robbers. The appellant said they were unable to catch the perpetrators, he returned to the scene where there was chaos, and he then proceeded to work.

The co-accused testified consistently with a version that Mpho attacked and robbed the complainant and that the co-accused and appellant were not perpetrators, but instead attempted to chase the robbers.

3. Legal Issues

The central question on appeal was whether the State had proved the appellant’s guilt beyond reasonable doubt on the charge of robbery with aggravating circumstances, given that the complainant could not identify the perpetrators and the State’s case implicating the appellant depended materially on the evidence of a single identifying witness (Lephako), in the face of contradictory evidence (particularly Morima’s evidence and the co-accused’s account).

A further issue was whether the trial court committed a material misdirection in its evaluation of the evidence—especially in assessing credibility, observation, contradictions, and corroboration—such that the appeal court was entitled to interfere with factual findings ordinarily left to the trial court.

The dispute primarily concerned the application of legal standards to fact, including the cautionary approach to single-witness evidence, the treatment of contradictions, the approach to alibi, and the overarching standard of proof in criminal matters.

4. Court’s Reasoning

The High Court approached the appeal by restating that, while a conviction may follow from the evidence of a single competent witness under section 208 of the Criminal Procedure Act 51 of 1977, the court must be mindful of the risks inherent in single-witness identification and apply an appropriate cautionary approach. The judgment referenced the approach in S v Sauls and Another 1981 (3) SA 172 (A), emphasising that there is no mechanical formula and that the evidence must be weighed in its merits and demerits to determine trustworthiness.

The court also articulated the limited basis on which an appeal court interferes with factual findings, noting that, absent misdirection, a trial court’s credibility findings are presumed correct and interference occurs only in exceptional cases. In this regard, the judgment relied on S v Francis 1991 (1) SACR 198 (A). However, the court emphasised that where a material misdirection is shown, appellate interference becomes justified.

On the facts, the court disagreed with the Regional Court’s conclusion that Lephako had superior powers of observation compared to Morima. It highlighted that Lephako was 30 to 50 metres away, whereas Morima was 4 to 5 metres away. The High Court further noted that Morima could describe the knife, suggesting closer observation of key aspects. The judgment also treated the co-accused’s evidence as corroborative of the appellant’s and Morima’s versions to the extent that it pointed to Mpho rather than the appellant as the person at the driver’s side who stabbed the complainant and took the phone.

The High Court then considered the presence of material contradictions among the witnesses, while acknowledging that contradictions do not automatically justify rejection of evidence and must be evaluated for nature, number, importance, and impact, as described in S v Mkohle 1990 (1) SACR 95 (A). The contradictions identified were not treated as peripheral. They related to core features of the State’s case, including the number of assailants, who was at the driver’s side, who took the cellphone, and whether the appellant was present at all. The court noted that the complainant insisted on only two assailants; Lephako spoke of three participants; Morima described five. There were also divergent versions about who took the cellphone and how, and about the stabbing.

The court accepted that the complainant was honest but could not identify the perpetrators, meaning that the complainant’s evidence did not assist in placing the appellant at the scene as a perpetrator. The High Court considered that the trial court did not sufficiently address the significance of Lephako’s distance from the incident, particularly given the acknowledgement that it was a “moving scene” with people gathering.

In assessing the appellant’s version, the High Court reiterated that the proper inquiry is whether, on the totality of evidence, the State proved guilt beyond reasonable doubt, and that an accused is entitled to acquittal if there is a reasonable possibility that the defence version might be true. The court relied on S v Van Der Meyden 1999 (2) SA 79 (WLD), and on the foundational formulation in R v Difford 1937 AD 370, which makes clear that even an improbable explanation cannot be rejected unless it is shown beyond reasonable doubt to be false. The judgment also referred to S v Shackell 2001 (4) SA 1 (SCA) in emphasising that the prosecution bears the burden and that a court need not be convinced that every detail of the accused’s version is true; it must be accepted if it is reasonably possibly true in substance.

Although the trial court had criticised the appellant as a witness and referred to his alibi being introduced later, the High Court restated the position that there is no onus on an accused to prove an alibi and that it must be assessed in the light of all the evidence. The judgment cited R v Hlongwane 1959 (3) SA 337 (AD) and Rex v Bea 1952 (4) SA 514 in this regard. The High Court concluded that, on a holistic assessment of the evidence, it could not reject the appellant’s account as false beyond reasonable doubt, particularly given the corroborative elements between Morima’s testimony, the appellant’s version, and the co-accused’s evidence pointing away from the appellant as perpetrator.

The court ultimately held that the Regional Court erred in concluding that the State had discharged its onus. The misdirection lay materially in the trial court’s evaluation of the comparative reliability of the eyewitness accounts and its failure to give proper weight to the corroborative features supporting the defence version that the appellant was not among the perpetrators.

5. Outcome and Relief

The High Court upheld the appeal against conviction. The conviction and sentence were set aside, and the order of the Regional Court was replaced with an order that Accused 1 is acquitted on the charge of robbery with aggravating circumstances.

No costs order was recorded in the judgment.

Cases Cited

Racks v Mokwana 1932 OPD 79.

Ev W 1949 (3) SA 772 (AD).

S v Sauls and Another 1981 (3) SA 172 (A).

S v Francis 1991 (1) SACR 198 (A).

S v Van Der Meyden 1999 (2) SA 79 (WLD).

S v Mkohle 1990 (1) SACR 95 (A).

R v Hlongwane 1959 (3) SA 337 (AD).

Rex v Bea 1952 (4) SA 514.

S v Chabalala 2003 (1) SACR 134 (SCA).

R v Difford 1937 AD 370.

S v Shackell 2001 (4) SA 1 (SCA).

Legislation Cited

Criminal Law Amendment Act 105 of 1997, section 51 and Schedule 2, and section 51(2)(a).

Criminal Procedure Act 51 of 1977, section 208.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The High Court held that the Regional Court materially misdirected itself in its evaluation of the evidence, particularly in preferring the evidence of the single identifying witness (Lephako) despite significant contradictions and despite evidence from Morima and the co-accused that supported the defence version placing a different person (Mpho) at the driver’s side as the stabber and phone-taker.

It held that, on the totality of the evidence, the State failed to prove the appellant’s guilt beyond reasonable doubt, and that the appellant’s version was reasonably possibly true. The conviction and sentence were accordingly set aside and replaced with an acquittal.

LEGAL PRINCIPLES

A criminal conviction may follow from the evidence of a single competent witness in terms of section 208 of the Criminal Procedure Act 51 of 1977, but courts must remain alive to the dangers inherent in relying on single-witness testimony and must apply a cautionary evaluation of credibility and reliability, as described in S v Sauls and Another 1981 (3) SA 172 (A).

An appeal court’s power to interfere with findings of fact and credibility is limited; absent misdirection, the trial court’s acceptance of evidence is presumed correct, and interference is warranted only in exceptional cases. Where a material misdirection is present, appellate interference is justified, consistent with the approach described in S v Francis 1991 (1) SACR 198 (A).

Contradictions do not automatically justify rejecting evidence; they must be evaluated by considering their nature, number, importance, and impact on the rest of the evidence, as explained in S v Mkohle 1990 (1) SACR 95 (A).

The State bears the burden to prove guilt beyond reasonable doubt; the corollary is that an accused is entitled to acquittal if there is a reasonable possibility that the accused may be innocent. This is expressed as a single test viewed from opposite perspectives, as set out in S v Van Der Meyden 1999 (2) SA 79 (WLD) and rooted in R v Difford 1937 AD 370.

There is no onus on an accused to prove an alibi. An alibi must be assessed in the context of the totality of the evidence, and if it may reasonably possibly be true, the accused must be acquitted, consistent with R v Hlongwane 1959 (3) SA 337 (AD) and Rex v Bea 1952 (4) SA 514.

In evaluating an accused’s version, a court is not required to accept every detail as true; it must accept the version if it is reasonably possibly true in substance. A version may not be rejected merely because it is improbable; it may be rejected only if it is so improbable that it cannot reasonably possibly be true, as stated in S v Shackell 2001 (4) SA 1 (SCA).

Monyeki v S (A202/2019) [2021] ZAGPPHC 71 (8 January 2021)