About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2021
>>
[2021] ZAKZPHC 3
|
|
Mbongwa v S (AR397/2019) [2021] ZAKZPHC 3 (20 January 2021)
IN
THE HIGH COURT OF SOUTH AFRICA KWAZULU-NATAL DIVISION,
PIETERMARITZBURG
CASE NO. AR397/2019
In the matter between:
KWANELE
SBONELO MBONGWA
APPELLANT
and
THE
STATE
RESPONDENT
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and released to SAFLII.
The
date and time for hand down is deemed to be 11h30 on 20 January 2021.
ORDER
The
following order is issued:
(a)
The appeal against the conviction is upheld.
(b) The
conviction and sentence imposed on 7 December 2018 are hereby set
aside.
JUDGMENT
Chetty J (Koen J et Tsautse AJ concurring):
[1]
The appellant was indicted together with his co-accused Mr Nelson
Monde Bhengu (‘Mr
Bhengu’) on a count of theft of a motor
vehicle in the regional court, KwaZulu-Natal, sitting at Ezakheni.
Both were found
guilty and sentenced on 7
December
2018. The appellant was sentenced to six years’
imprisonment while Mr Bhengu was sentenced to five years’
imprisonment. The appellant applied for leave to appeal against
his conviction only, which application was refused by the
learned
magistrate. After petitioning this court, leave to appeal
against conviction was granted on 9 September 2019.
The matter
came before Seegobin and Mngadi JJ on 5 June 2020. The court,
however, was unable to reach agreement as to the
outcome of the
appeal with the result that the matter was referred to a full court.
By agreement of the parties this appeal
has been dealt with pursuant
to the provisions of
s 19
(a)
of the
Superior Courts Act 10 of
2013
without hearing oral evidence from the parties. The appeal is
accordingly determined on the papers.
[2]
The appellant and Mr Bhengu were legally represented at the trial and
pleaded not guilty
to the charge against them. While the appellant
elected not to disclose the basis of his defence, Mr Bhengu admitted
to being in
possession of the vehicle in question, but contended that
he had no knowledge that the vehicle had been stolen.
[3]
The facts of the matter are relatively uncomplicated. The State led
the evidence of Mr Warrasamy,
the complainant in the matter, who
confirmed that on the night of 30 October 2014 he visited a family
member at hospital in Ladysmith.
He parked his vehicle, an Isuzu
double cab bakkie, registration number NKR 37694, in the hospital
parking lot. Upon returning to
where he had parked his vehicle, he
found that the parking spot was now occupied by a different vehicle,
a Hyundai, belonging to
another visitor to the hospital.
[4]
The complainant, having established that his vehicle had been stolen
at approximately 18h25
that evening, being the time when the Hyundai
had parked in the bay which his vehicle had occupied, contacted the
police in Ladysmith.
Later that evening he was informed that his
vehicle had been found in Greytown. The complainant travelled
to the police station
the following day to identify his vehicle and
found that his bank cards had been scattered on the floor in the
vehicle, and that
the front suspension and the ignition appeared to
be damaged. He noticed that the entire dashboard and console of the
vehicle had
been removed, resulting in damages of approximately R57
000. After his initial evidence, the complainant was recalled
following
allegations that surfaced during the course of the trial
that he had been offered a monetary settlement by the appellant to
drop
the charges against him. This was disputed by the appellant.
I find the evidence of the complainant to be unsatisfactory on
this
aspect, particularly if one has regard to his version that an offer
of R30 000 had initially been made and rejected by him,
only to be
followed by a lower offer of R20 000. It seems highly
improbable that after the rejection of the first offer,
the appellant
(or anyone acting on his behalf) would have offered a lesser amount
the second time. In addition, despite the evidence
of the complainant
that this offer to withdraw the charges against the appellant was
facilitated by the public prosecutor and the
investigating officer,
the State did not see it fit to pursue this evidence and put this
version to the State witnesses.
[5]
Mr Sudesh Maharaj, the owner of a security business operating in
Greytown, testified that
on the evening in question he was in the
company of his colleague, Mr Zama, when they received information of
a stolen vehicle
heading towards Greytown. He received an update that
the vehicle had proceeded down the main road in Greytown and pulled
into a
petrol station. Mr Maharaj and his colleague then approached
the petrol station, parking their vehicle in front of the Isuzu.
They alighted their vehicle with Mr Zama proceeding to the passenger
side of the Isuzu,. where according to Mr Maharaj, the appellant
was
seated. The appellant got out of the Isuzu and stood alongside it,
while Mr Maharaj pulled out Mr Bhengu who was in the driver’s
seat. According to Mr Maharaj the ignition in the vehicle was broken.
Under cross-examination there was some dispute as to whether
the
appellant was found inside the vehicle or whether he was found close
by, standing outside the vehicle. Mr Maharaj was
adamant that
the appellant was seated inside the vehicle at the time when he and
Mr Zama approached it.
[6]
Thereafter Constable Moodley testified that he was on duty when he
received information
on the night in question of a stolen vehicle
heading from Ladysmith to Greytown. He then received a further update
that the vehicle
had been apprehended at a Caltex petrol station in
Durban Street, Greytown. On inspecting the vehicle, Constable
Moodley
testified that the ignition of the vehicle had a homemade
device in it, instead of a normal key. In addition, he confirmed
having
found a bag in the vehicle containing ‘housebreaking
implements’. Constable Moodley confirmed that a ‘coding
key’ as well as the tools which were found in the vehicle were
recorded in the SAP 13 register. Under cross-examination
by the
attorney acting for the appellant, it emerged for the first time that
the appellant’s version was that he was in Greytown
on the day
in question, and that he was on his way to Durban when he was
arrested. Constable Moodley denied that the appellant
made any
mention of his plans to travel to Durban or that he intended getting
a lift with the driver of the stolen vehicle. Constable
Moodley was
adamant that the appellant chose to remain silent despite being
warned of his constitutional rights and refused to
make a statement
at the time of his arrest.
[7]
Mr Nkosinathi Zuma, a security officer who was on patrol with the
earlier witness, Mr Maharaj,
on the night of 30 October 2014,
testified that they had spotted a vehicle parked at the Caltex garage
on Durban Street, Greytown.
According to him, they found two male
occupants inside the vehicle. Once the occupants alighted from
the vehicle, they were
handcuffed. The police thereafter
arrived on the scene and the occupants, one of whom was the
appellant, were taken to the
police station. During the
cross-examination of this witness, much time was spent on the
condition of the interior of the vehicle,
the extent of the damage,
and whether the appellant had been found by the witness either inside
or outside of the vehicle. Mr Zama
was consistent in his version that
the appellant was inside the vehicle at the time he arrived on the
scene.
[8]
There was some discrepancy in the evidence of this witness and that
of his colleague, Mr
Maharaj, and that of the police witnesses as to
the extent of the damage inside the vehicle, and the particular
nature of the improvised
Allen-key which had been used to start the
complainant’s vehicle. The investigating officer, Sergeant
Mynhardt, testified
that neither of the occupants of the vehicle
provided any explanation to her as to where the vehicle had been
taken from. She further
testified that if the appellant had mentioned
his alibi, she would have followed up on it. Sergeant Mynhardt
further stated that
among the items lodged with the police in the SAP
13 register were two Black Nokia cell phones.
[9]
Against this backdrop of the evidence by the State, the appellant
elected to testify and
informed the court that he lives in
Hammersdale from where he travelled on 30 October 2014 to Greytown
earlier that day in order
to get a ride with Mr Bhengu, as both the
appellant and Mr Bhengu were to attend a ceremony at Ingoma.
According to the appellant
he had made plans earlier in the week that
he would accompany Mr Bhengu to the ceremony, which was to be held
over the weekend.
He travelled from Hammersdale to Greytown using
public transport. Upon arriving in Greytown between 17h00 and 18h00,
the appellant
contacted his cousin, Mr Soso Ngcobo. He
testified that he had spent his time that evening with his cousin,
who dropped him
off at the Caltex garage at approximately 23h00 that
evening. The appellant stated that he had been in communication with
Mr Bhengu
earlier that day, and during which discussion Mr Bhengu
informed the appellant that he would be borrowing a vehicle from
someone
else as his vehicle was giving him some problems. As such,
the appellant met up with Mr Bhengu later than had been initially
arranged.
[10]
The appellant testified that while he was standing in the precinct of
the garage he received a call from
Mr Bhengu who informed him that he
was close by and that he was driving an Isuzu bakkie. On Mr
Bhengu’s arrival, the
appellant and Mr Bhengu had a discussion
relating to the filling of petrol in the vehicle. It is at that stage
that a vehicle belonging
to the security company arrived, with the
two officers alighting from their vehicle, carrying firearms.
According to the appellant
he was apprehended without ever being
inside the stolen vehicle. During the course of his evidence-in-chief
the appellant stated
that he had informed his previous attorney to
obtain video footage from the garage where he was arrested, which
would corroborate
his version that he had never been inside the
stolen vehicle. It is pertinent to point out that no attempts
were made by
the State to attempt to secure such footage, either at
the time when the incident occurred or even shortly thereafter.
It
would be highly improbable that such footage would have been
available at the time of the trial, as security cameras are often
programmed to overwrite earlier footage after a few days. This is a
shortcoming on the part of the State as there is no onus on
the
appellant to prove his innocence. Moreover, to the extent that the
appellant’s version had been put forward to the State
witnesses
in cross-examination that he had not been inside the stolen vehicle
when it arrived at the garage, the State could have
easily secured
the attendance of the employees of the petrol station on duty at the
time of the arrest of the appellant and Mr
Bhengu.
This
would have resolved, by direct evidence, whether the version of the
appellant could be rejected as being false beyond reasonable
doubt.
[11]
The defence of the appellant is essentially that he was not in
Ladysmith at the time when the vehicle of
the complainant had been
stolen and that he had only met Mr Bhengu in Greytown, in accordance
with a prior arrangement made between
the two. The appellant’s
version is corroborated by the evidence of Mr Bhengu who stated that
he only ‘found’
the appellant at the garage in Greytown
shortly before their apprehension by the security officers. Mr Bhengu
further testified
that the appellant was never inside the vehicle at
any time.
[12]
The prosecution appeared to be content that the evidence against the
appellant of the disclosure of his alibi
at the trial only and the
disputed evidence as to whether or not he was inside the vehicle at
the time of his apprehension, was
sufficient for a conviction. While
it would generally be the case that a person arrested for an offence,
together with another,
would immediately proclaim his innocence and
inform the police that he has an alibi which should be investigated,
if the alibi
were found to be true, he would be exonerated without
having to spend any further time as an inmate awaiting trial, as was
the
case with the appellant. As stated in
R v Hlongwane
1959
(3) SA 337
(A), 340H, ‘[t]he 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.’
[13]
It is common cause that the appellant did not pursue this avenue, and
as the investigating officer testified,
made no mention of an alibi
at the time of his arrest or even while he was in custody awaiting
trial. While this may cast some
doubt as to the veracity of his
alibi, this alone is not a basis to reject the version of the
appellant as being false. His evidence
that he was to meet Mr Bhengu
in Greytown is not contradicted by any evidence from the State. It is
consistent with the evidence
of Mr Bhengu, as well as the evidence
that both the appellant and Mr Bhengu were in frequent communication
by cell phone on the
night of their arrest.
[14] It is pertinent to point out that while the
phones of both the appellant and Mr
Bhengu
were confiscated and recorded as exhibits by the police, no attempt
had been made from the time of the confiscation, to have
recorded
calls from the cell phones analysed to ascertain whether there was
indeed communication between the appellant and Mr Bhengu,
as they
allege. If so, this would strongly suggest that the appellant was not
physically present at the time of the theft of the
vehicle, and
indeed only met his co-accused at the petrol station in Greytown. It
could also have exonerated the appellant as being
party to the chain
of persons involved in the planning of the theft and disposal of the
vehicle. The prosecution appeared to simply
ignore this aspect of
vital evidence despite ample opportunity to verify it, even after the
trail began and during the numerous
adjournments which punctuated the
trial.
[15]
In
S v Liebenberg
2005 (2) SACR 355
(SCA), paras 14-15, the
court set out the position relating to alibi evidence as follows:
‘
[14]
The approach adopted by the trial court to the alibi evidence was
completely wrong. Once the trial court accepted that the
alibi
evidence could not be rejected as false, it was not entitled to
reject it on the basis that the prosecution had placed before
it
strong evidence linking the appellant to the offences. The acceptance
of the prosecution's evidence could not, by itself alone,
be a
sufficient basis for rejecting the alibi evidence. Something more was
required. The evidence must have been, when considered
in its
totality, of the nature that proved the alibi evidence to be false.
In
S v Sithole and
Others
1999
(1) SACR 585 (W)
the test
applicable to criminal trials was restated in the following terms at
590
g - i
:
“
There is only one test in
a criminal case, and that is whether the evidence establishes the
guilt of the accused beyond reasonable
doubt. The corollary is that
an accused is entitled to be acquitted if there is a reasonable
possibility that an innocent explanation
which he has proffered might
be true. These are not two independent tests, but rather the
statement of one test, viewed from two
perspectives. In order to
convict, there must be no reasonable doubt that the evidence
implicating the accused is true, which can
only be so if there is at
the same time no reasonable possibility that the evidence exculpating
him is not true. The two conclusions
go hand in hand, each one being
the corollary of the other. Thus in order for there to be a
reasonable possibility that an innocent
explanation which has been
proffered by the accused might be true, there must at the same time
be a reasonable possibility that
the evidence which implicates him
might be false or mistaken.” See also
S
v Van Aswegen
2001
(2) SACR 97 (SCA)
.
[15]
Where a defence of an alibi has been raised and the trial court
accepts the evidence in support thereof as being possibly true,
it
follows that the trial court should find that there is a reasonable
possibility that the prosecution's evidence is mistaken
or false.
There cannot be a reasonable possibility that the two versions are
both correct. This is consistent with the approach
to alibi evidence
laid down by this Court more than 50 years ago in
R v Biya
1952
(4) SA 514
(A). At 521C - D
Greenberg JA said:
“
If
there is evidence of an accused person's presence at a place and at a
time which makes it impossible for him to have committed
the crime
charged, then if on all the evidence there is a reasonable
possibility that this alibi evidence is true it means that
there is
the same possibility that he has not committed the crime.”’
[16]
Mr Sbuniso Ngcobo (also known as Soso) testified on behalf of his
cousin, the appellant, confirming that
he had met the appellant
between 17h00 and 18h00 on the afternoon of 30 October 2014 in
Greytown. He stated that he was aware
of the appellant’s
plans to travel with a friend to attend an unveiling ceremony in
Ingoma. After having a meal with the
appellant at his home, Mr Ngcobo
then dropped the appellant off at a petrol station in Greytown
between 22h00 and 23h00 that evening.
He did not see the ‘friend’
that the appellant was due to meet at the garage. The
high-water mark of the State’s
interrogation of this witness
was his failure to inform the police after the appellant’s
arrest that the appellant had been
in his company in Greytown earlier
in the day, essentially vouching for his alibi.
[17]
In its judgment, the court a quo placed much emphasis on the enquiry
as to whether the appellant was inside
or outside of the stolen
vehicle at the time when he was apprehended by the security
officers. The court, despite the conflicting
evidence before
it, accepted the version of the two security officers that the
appellant was found inside the stolen vehicle at
the time he was
apprehended. I agree with the submission of Mr
Barnard
on behalf of the appellant that whether or not the appellant was
found inside the vehicle at the petrol station is immaterial to
the
issue of his guilt. There is no evidence on record to indicate
that the appellant was inside the vehicle as it made its
way into
Greytown and when it arrived at the petrol station. If the
vehicle had initially been observed by officers other
than those who
apprehended the appellant and Mr Bhengu, these witnesses ought to
have testified. This dispute could have
been resolved by the
State obtaining video footage from the petrol station of events on
the night in question. They failed
to do so. They also
failed to call any of the attendants at the garage on duty that
night. No finger prints were lifted off
the stolen vehicle to
ascertain whether the appellant was ever inside.
[18]
I agree with the appellant’s counsel that even if the appellant
were found to be seated inside the
stolen vehicle when the security
officers arrived at the scene, this alone does not lead to the only
inference that the appellant
must have been complicit in the theft of
the vehicle. The appellant’s version is that he had no
idea that the vehicle
was stolen. In addition, he was aware that Mr
Bhengu was using a different vehicle as his car had broken down.
None of this
evidence could be gainsaid by the witnesses called by
the State. Something more was required from the State to prove that
the appellant
knew that the vehicle was stolen and that he had
associated himself with the theft of the vehicle by Mr Bhengu.
On that basis,
he could have been found guilty of possession.
However, not only is there no evidence to prove the appellant was
involved
in the theft of the vehicle; there is also no evidence to
sustain a guilty finding on a competent verdict of possession of
stolen
property.
[19]
As regards the alibi defence raised by the appellant, the magistrate
accepted the evidence of Mr Ngcobo that
the appellant was with him
earlier in the day and that Mr Ngcobo dropped the appellant off at
the petrol station later that evening.
Mr
Ngcobo’s
evidence was not shaken under cross-examination and his evidence
confirms that of the appellant in all material respects
as it
pertains to his alibi. The court recorded further that it could
‘
not find that accused 1’s family member was lying
when he testified. He was not lying because he told the truth
.’
In
Tshiki v S
[2020] ZASCA 92
, para 48 the court held the
following:
‘
. . . once it is found
that on the face thereof an alibi defence cannot be rejected as
false, something more is required to prove
that the alibi is false.
This then pertinently raises the question whether in the context of
the facts of this case the appellant’s
alibi can properly and
safely be rejected as false beyond reasonable doubt.’
[20]
Notwithstanding the acceptance of Mr Ngcobo’s evidence which
would have been sufficient to exonerate
the appellant, the trial
court went further to conclude that Mr Ngcobo would have had no
knowledge of the appellant’s ‘
part of the chain of
theft of this vehicle’
. What exactly is the
appellant’s ‘
part in the chain of theft
’?
If the court accepted the evidence of Mr Ngcobo, it would suffice
that the appellant could not have been in Ladysmith
at the time that
the vehicle was stolen. His alibi should therefore have been
accepted.
[1]
The only remaining evidence that would implicate the appellant is
that he was inside the vehicle when he was apprehended.
As
stated earlier, this does not prove theft, nor knowledge that the
vehicle in which Mr Bhengu arrived, was stolen. I am unable
to find
any basis in fact or in law for the trial court to have concluded
that the appellant was part of, and involved in ‘
the
planning, removal and disposal
’ of the stolen vehicle.
This is not borne out of the evidence and there is nothing on record
that justifies this conclusion,
as it pertains to the appellant.
Suspicion alone is not a basis for surpassing the test of criminal
liability.
[21] According, the following order is issued:
a. The appeal against the
conviction is upheld.
b. The conviction and
sentence imposed on 7 December 2018 are hereby set aside.
Chetty J
APPEARANCES
Counsel for the
appellant
:
Mr L Barnard
Instructed by
:
WA Mapanza
Attorneys
Durban
Email:
:
mamapanza12@gmail.com
Barnard.dalene@gmail.com
Counsel for the
respondent
:
Mr NF Mlotshwa
Instructed by
:
DDP
Email:
:
nmlotshwa@npa.gov.za
Date of Hearing
:
20 January 2021
Date of
Judgment
:
20 January 2021
[1]
The alibi defence can only be rejected if the evidence is
overwhelming. If it is not overwhelming and the court is faced
with two conflicting versions, the benefit is then for the accused -
S v Van Eck en 'n ander
1996 (1) SACR 130
(A) which states
the following in the English headnote: ‘The Court firstly
discussed the legal position concerning the
assessment of alibi
defences and held that the appellants' evidence of their alibis
could only be rejected if the State's evidence
against them was
overwhelming. If this were not the case the court would merely have
two versions before it which stood in conflict
with one another and
the appellants would accordingly have to receive the benefit of the
doubt. In the instant case the magistrate
had not referred at all in
his judgment to the quality of the appellants' evidence or the
impression which they had made on him.
The Court held that the only
reasonable inference was therefore that there was no or little
criticism of the appellants' versions.
As the magistrate had found
that the evidence against the appellants was overwhelming the Court
analysed this finding and came
to the conclusion that the State's
evidence could not be regarded as overwhelming. It followed
accordingly that the appellants'
defence had to succeed. The
convictions and sentences were set aside.’