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[2017] ZASCA 70
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Machete v S (167/17) [2017] ZASCA 70 (31 May 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case no: 167/17
In the matter between:
THABO WILLIAM
MACHETE
APPELLANT
and
THE
STATE
RESPONDENT
Neutral citation:
Machete
v S
(167/17)
2017 ZASCA 70
(31May 2017)
Coram:
WALLIS and DAMBUZA JJA and GORVEN AJA
Heard
:
No hearing in terms of
s 19
of the
Superior Courts Act 10 of
2013
Delivered
:
31 May 2017
Summary:
Robbery – prosecution submitting
that evidence of identification of accused unsatisfactory and that
accused should be acquitted
on appeal to full bench – appeal
nonetheless dismissed – appeal upheld – function of
appeal court where prosecution
does not seek to uphold conviction.
ORDER
On appeal from:
Limpopo Division of High Court
(Makhafola J, Kgomo J concurring) on appeal from Regional Court:
1
The appeal is upheld.
2
The appellant’s conviction and
sentence are set aside.
JUDGMENT
Wallis JA (Dambuza
JA and Gorven AJA concurring)
[1]
Mr Machete, the appellant, was charged in
the regional court, Tzaneen, with robbery with aggravating
circumstances and after conviction
sentenced to imprisonment for 15
years. On appeal to the Limpopo Division of the high court his
conviction was upheld but his appeal
was reduced to one of eight
years’ imprisonment. This appeal against his conviction alone
is with the special leave of this
court.
[2]
In the high court the prosecution concluded
its submission as follows:
‘
We
pray that the conviction be set aside.’
In this court the
prosecution repeated that submission. It summarised its submissions
in the following terms:
‘
The
trial court and the high court adopted a wrong approach in their
evaluation of the complainant’s evidence taking into
account
his evidence was that of a single witness whose evidence had to be
clear and satisfactory in all respects and the fact
that for
identification to be satisfactory it ought to comply with certain
requirements. It is submitted that the complainant’s
evidence
which forms the mainstay of the state’s case falls short of the
onus resting upon the state.’
Accordingly the
prosecution concluded its submission by saying that they ‘cannot
support the finding that the Appellant was
properly identified as one
of the robbers’.
[3]
It is surprising in the light of the clear
statement by the prosecution that Mr Machete’s conviction in
the regional court
was unsafe, that it was not overturned by the high
court on appeal. It is astonishing that the high court could
disregard the submission
by the prosecution that the evidence did not
justify the conviction, without even mentioning it or dealing with
the careful exposition
by the prosecution of the weaknesses in the
evidence of identification.
[4]
It is open to a court of appeal to uphold a
conviction by a lower court in the face of a concession by the
prosecution that the
evidence led at the trial was insufficient to
discharge the onus of showing the accused’s guilt beyond
reasonable doubt.
[1]
But it should only do so after the most careful consideration of the
evidence and the reasons for the prosecution adopting that
view. If
the prosecution has no faith in its case it will be an unusual
outcome for the court to say that the evidence nonetheless
suffices
to discharge that onus. In this instance the high court did not
examine the prosecution’s reservations and I am
satisfied that,
had it done so, it would have held that the approach of the
prosecution was entirely proper and correct. It must
be borne in mind
that the function of the prosecution is not to obtain a conviction at
all costs, but to present the prosecution
case fairly, which includes
making concessions whenever it is appropriate to do so. That is what
it did in this case and it is
to be commended for its stance.
[5]
The sole issue at the trial was whether Mr
Machete was properly identified as one of three assailants who
attacked and robbed the
complainant, Mr Mabeka, as he was making his
way home from a tavern after watching a football match. Mr Mabeka
claimed to have
known Mr Machete before the attack, but it was
unclear from his evidence where he had previously encountered him. He
claimed that
Mr Machete was known to his brother-in-law, who had
‘shown’ Mr Machete to him. The brother-in-law was not
identified
and the circumstances of this identification were never
clarified.
[6]
The assault and robbery occurred at night
and a tavern was the source of the light by which Mr Mabeka claimed
to have recognised
Mr Machete. But there was no evidence of the
proximity of the tavern to the place where the robbery occurred, so
that there was
no basis for the court to assess its sufficiency for
that purpose. His evidence was that he had not seen his assailants
until they
were ‘too close to me’. Although three people
perpetrated the attack, Mr Mabeka disavowed any ability to identify
the
other two robbers and no identification parade was convened. In
addition, Mr Mabeka had been drinking in the tavern where he was
watching the football and there was no endeavour to ascertain whether
his powers of observation were impaired to any degree.
[7]
There were also significant contradictions
between the evidence of Mr Mabeka and that of the investigating
officer regarding the
circumstances of Mr Machete’s arrest. In
that regard Mr Machete’s evidence was detailed and convincing.
Certainly there
was no apparent basis upon which it could be rejected
and the magistrate ignored it. Indeed his judgment lacked any
reference to
this evidence and gave no reason for rejecting Mr
Machete’s denial that he was involved in the robbery
perpetrated on Mr
Mabeka.
[8]
The approach adopted by the prosecution in
the high court and in this court was entirely proper and justified by
the evidence. The
appeal succeeds and Mr Machete’s conviction
and sentence are set aside.
M J D WALLIS
JUDGE OF APPEAL
Appearances
For appellant:
D J Nonyane
Instructed by:
Polokwane Justice Centre,
Biccard & Bodenstein, Bloemfontein
For respondent:
N Mathabatha
Instructed
by: Office of the Director of
Public Prosecutions, Polokwane
[1]
S v E
1995 (2)
SACR 547
(A)