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[2020] ZALMPPHC 24
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Moloto v S (08/2019) [2020] ZALMPPHC 24 (6 May 2020)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
PROVINCIAL DIVISION, POLOKWANE)
CASE NO: 08/2019
In the matter between:
DENVER
HLAYISANI MOLOTO
: APPELLANT
And
THE
STATE
: RESPONDENT
JUDGMENT
SEMENYA
J:
[1]
The issue in this appeal is whether the trial court’s findings
that the evidence presented in this case proves beyond
reasonable
doubt that the appellant was the perpetrator of the offences he was
convicted of. The appellant was convicted in the
regional court
sitting at Nkowankowa on a charge of robbery with aggravating
circumstances as intended in section 1 of the Criminal
Procedure Act
51 of 1977 (the CPA). He was sentenced to fifteen (15) years’
imprisonment in terms of section 51(2) read with
Part II of Schedule
2 of the
Criminal Law Amendment Act 105 of 1997
. Leave to appeal was
granted on petition to the Judge President of this Division.
[2]
The appellant raised a defence of alibi, thereby denying all
allegations levelled against him-
S v Ngcina
2007 (1) SACR 19
(SCA)
. He alleged that he was at his uncle’s place on the
date and time of the commission of the offence. This version was
corroborated
by that of his uncle Willy Matjebele. It was held in
S
v Malefo en Andere 1998(1) SACR 127 (W) at 158a-e
that there is
no burden of proof on the accused to prove his alibi and that the
burden is on the prosecution to prove that the accused’s
alibi
is not reasonably possibly true. The state relied on the evidence of
three identifying eyewitnesses as well as the results
of the
identification parade in its endeavour to discharge the onus that
rests on it.
[3]
The summary of the evidence presented before the trial court, that is
relevant to the appeal before us, is that on the 25 December
2013 at
about 16:00 to 17:00, Fekado Sankuro Hegano (Hegano) was serving
customers in his shop when three male persons arrived.
He was seeing
them for the first time on that date. He identified one of them as
the appellant in this matter. The three stood
in front of the counter
and gave all customers who came in after them an opportunity to buy
before they did. They eventually bought
coke and chewing gum. The
appellant was at all times engaging in some small talk with Hegano.
At some stage one of the three
persons went outside and returned
shortly thereafter. He closed the door and they all produced
firearms. The appellant hit him
with a firearm on his forehead and
demanded money. He showed the appellant where the money was. After
taking the money which was
estimated at R6480.00, airtime vouchers
and some cigarettes, the three male persons continued to severely
assault him and left.
Hegano stated that he was able to identify the
appellant because he spent about 15 to 20 minutes in the shop and
also because he
is the one who was doing much of the talking before
the offence was committed. He attended an identification parade where
he identified
the appellant as one of the perpetrators. During
cross-examination he stated that the appellant approached him on two
occasions
with a request that he should either withdraw the case or
disappear.
[4]
Few minutes after the three assailants had left the shop, Hegano went
out and shouted for help. Gift Dlamini (Dlamini) was at
that stage
seated at a house next to Hegano’s shop when he heard a sound
of a gunshot coming from the direction of Hegano’s
shop. He
also saw three male persons whom he had earlier on found in Hegano’s
shop, coming from the same direction heading
to the bushes. Hegano
was running after the three male persons shouting that he had been
robbed. He identified the appellant as
one of the three male persons
and as the person who allowed him to buy before he (the appellant)
could buy. He, Dlamini and others
joined Hegano and they all pursued
the three males. As they were about to catch the three persons, a gun
shot was fired from the
direction of the male persons. One of the
three persons warned them not to get involved unless they want to be
killed for an Indian
person’s money. The group discontinued
their chase out of fear. Dlamini attended an identification parade
where he managed
to identify the appellant as one of the people that
he had been pursuing.
[5]
Themba Golden Kwanya Nkuna initially refused to be sworn in and
stated that he was in police custody in respect of an unrelated
matter . He stated that he was not willing to testify because he
will, in so doing, put his life in danger. He only testified after
he
was warned in terms of
section 189
of the CPA. He testified that he
was at a certain homestead on the date of the incident and that he
joined members of the community
in pursuit of the perpetrators. He
and one Zoro used another rout to corner the fleeing perpetrators and
came close to apprehending
one of them. However, one of the
perpetrators pointed them with a firearm and warned them not to get
involved as they will be killed.
They halted the chase. He attended
an identification parade where he pointed at the appellant as one of
the people he had been
chasing after on the date of the incident. He
testified that he did so with the assistance of police officers who
told him about
the built of the appellant and the type of clothes he
was wearing. The police further threatened him with arrest should he
refuse
to do as ordered.
[6]
Makoma Innocentia Molamudi, an administrative officer at Letsitele
Police Station, captain Rabothata, the investigating officer,
captain
Mhlongo, constable Mapula Glacious Sekgota, constable Shipalane
(photographer), Matimba Motaga and sergeant Vicky Norah
Nkuna are all
witnesses who took part during the identification parade.
Crucial in the evidence of what happened during the
identification
parade is that the investigating officer requested the identifying
witnesses to attend the parade. She further arranged
the
abovementioned witnesses to take part in guarding the witnesses
before, during and after the parade. She also chose people
who will
be in the line-up, most of whom were police officers who were
servicing the area where the offence was committed. Captain
Mhlongo
testified that the investigating officer had shown him who the
suspect was prior to the identification parade. He further
stated
that all three identifying witnesses pointed the appellant as the
person who committed the offence. Captain Mhlongo conceded
that
people who were on the line-up were not of the same age, physique and
appearance.
[7]
The main criticism levelled against the evidence of identification
during trial was that the identification parade was not conducted
in
compliance with the National Instruction 1 of 2007 on Identification
Parades. It was argued on behalf of the appellant that
according to
the said standing instructions, the investigating officer cannot be
involved in the parade. This statement was made
in view of captain
Mhlongo’s version that the investigating officer arranged
people who were on the line up as well as police
officers who took
part in the conduct of the parade. It was contended on behalf of the
appellant that the trial court erred in
rejecting the version of
Nkuna that he pointed at the appellant at the identity parade because
had been threatened with arrest
and further that he was told who to
point.
[8]
I deliberately omitted to summarise the evidence of Ouma Ndlovu as it
consisted of unconfirmed hearsay evidence. In the same
breath, I will
not deal with the unmeritorious criticism levelled against the trial
court’s failure to evaluate that evidence.
Her version did not
take the matter further as she testified that she heard some gunshots
and saw people running out of Hegano’s
shop. Although she saw
three people running out of the shop shortly after she heard the
gunshot, she could not identify them as
she was not close to them.
The trial court stated in the judgment that it will not attach any
value on the version of Nkuna on
the basis that he had deliberately
intended to mislead the court and to subvert the wheels of justice. I
couldn’t agree more
with the trial court. The reason furnished
by Nkuna in support of his reluctance to testify boils down to this:
if he decides to
testify and to tell the truth about what happened on
the date of the incident, he will in so doing, put his life in
danger. It
follows therefore that a reasonable conclusion one may
draw out of his version is that he lied when he testified that he was
advised
as to whom to identify as the culprit and warned that he will
be arrested if he doesn’t, which was contrary to the true
facts.
The version of the State witnesses who took part in the
identification parade to the effect the Nkuna positively identified
the
appellant as one of the persons he saw at the scene is therefore
correct.
[9]
With regard to the version of Hegano, it was argued that the court
ought to have rejected his evidence in as far as it contradicts
the
version of other witnesses. It was contended that his version differs
from that of Ndlovu with regard to the event that took
place few days
after the commission of the offence as to what happened at the
satellite police station. I find the evidence as
to whether police
were found at the station or not to be irrelevant to the issues
whether the appellant was properly identified
as the perpetrator. The
same applies to the injuries sustained by Hegano.
[10]
It was contended on behalf of the appellant that the trial court
ought to have rejected the version of Hegano in that the offence
was
committed on the 25 December 2013. The identification parade was held
on the 17 February 2014. It was submitted that doubt
exists as to
whether Hegano would still have been able to have a proper
recollection of the facial features and other characteristics
of the
appellant and to be able to identity him as one of the persons he had
seen at the scene. More so in that he was seeing them
for the first
time on that date of the incident. It is indeed so that when it comes
to the evidence of identity, it is not enough
for the court to accept
that the witness was honest. The court must go further and
satisfy itself that the witness’s
recollection is reliable- See
S v Mthetwa
1972 (3) SA 766
(A)
. I am in agreement with the
trial court’s findings that the version of Hegano is indeed
reliable. The appellant stood
in front of him for about 20
minutes, which in my view is sufficient time, more so in that the
appellant was busy talking to him
and allowing other customers to be
served before him. In any event, the incident took place during the
day.
[11]
I find no fault in the value that the trial court attached to the
evidence that the appellant approached Hegano with a view
of
influencing him not to testify against him. This is certainly not the
conduct of an innocent person. Hegano testified that the
appellant
came to him before he made his appearance in the magistrate court and
before the matter was transferred to the regional
court for trial.
Captain Mhlongo testified that he was informed that the appellant was
not yet charged and had not made his appearance
in court when he
attended the identification parade. It is therefore evident that the
meeting between the two took place before
the holding of
identification parade. This dispels the view that he may have already
seen the appellant at the time he attended
the identification parade
[12]
In
S v Chabalala
2003 (1) SACR 134
(SCA) at 142b-d (Chabalala)
it
was held that:
“…
,although the
evidence about the parade was less than the court was entitled to
expect from the prosecution, its fairness, judged
according to the
objective facts
( S v
Mlati
[1984] ZASCA 88
;
1984 (4) SA 629
(A) at 635G)
was not
seriously challenged and the shortcomings were not such as to place
the value of the identification parade in doubt. More
particularly,
there was, in my view, no danger that the parade created ‘an
impression which is false as to the capacity of
the witness to
identify the accused without the aid of his compromising position in
the dock.”
The
weaknesses pointed out in Chabalala were that the parade officer was
not called to testify. There apparent contradictions in
the notes
made by the parade officer was common cause. The identifying witness
travelled with the investigating officer, the parade
officer and
other police officers who may or may not have been involved in the
parade. There was evidence that the parade officer
left the room at
some stage during the parade and that the parade took place nearly a
year after the event. In the appeal before
us, it was contended that
the investigating officer can as much be regarded as the parade
officer in that she transported the identifying
witnesses to the
venue where the parade was held and further that she arranged the
police officers who were to assist in the parade
as well as those who
were on the line-up. I find this argument to be without merits.
[13]
I am of the view that there is no irregularity in the conduct of the
investigating officer in this regard. It was her duty
to make
preliminary arrangements as long as she was not at the place when the
identification parade was conducted at the crucial
time. There was in
any event no evidence to that effect. The evidence clearly shows that
Captain Mhlongo is the one who was the
parade officer. The trial
court remarked that there is no evidence that suggested that the
investigating officer influenced the
witnesses. The trial court was
further satisfied that, notwithstanding the fact that the
investigating officer arranged the participants,
that fact in itself
is detrimental to the State’s case.
[14]
I am satisfied that there is no evidence that suggest that there was
a startling dissimilarities between persons who were on
the line-up.
I agree with the trial court that it would be very difficult, if not
impossible, to find eight people who look exactly
the same, both in
physique and complexion, and who are also dressed in the same way. It
was contended that the evidence proved
that the participants were
police officer who were servicing the area where the offence was
committed. It was submitted that the
danger thereof is that there is
a possibility that the identifying witnesses may have had prior
knowledge of police officers on
the line-up. It is unfortunate that
that question was put to the parade officer and not to the
identifying witnesses. Witnesses
were therefore denied the
opportunity to state whether they had that prior knowledge that they
know the participants as police
officers.
[15]
In
S v Moyane and Others
2008 (1) SCAR 543
(SCA) at paragraph [15]
Ponnan JA stated that:
“
This court’s power to
interfere with the findings of fact of the trial court are limited…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 clearly shows them to be
clearly wrong”
There
is no evidence to suggest that the trial court misdirected itself in
its factual finding with regard to the evidence of identification
of
the appellant as the person who committed the offence. There is no
reason to interfere with that finding. As a result the appeal
on
conviction stands to be dismissed.
[16]
On sentence, it was submitted on behalf of the appellant that the
trial court failed to give proper consideration to the personal
circumstances of the appellant, more in particular his chances of
rehabilitation. The appellant is a married man of 35 years of
age
with two children. He was a first offender. He had already lost his
job and is unable to maintain his three minor children.
It was
contended that the trial court failed to have regard to the fact that
no one was injured during the commission of the offence.
In
S v
Malgas
2001 (1) SACR 469
(SCA)
it was held that courts should
approach sentencing bearing in mind that the legislature created, in
terms of
section 51
of the
Criminal Law Amendment Act, a
benchmark
which the court should have regard to when sentencing those who have
been convicted of offences listed in the schedule
thereto.
[17]
The trial court found, as aggravating factors, the fact that the
appellant was a police officer tasked with keeping the citizens
of
this country safe and has therefore abused the trust that members of
the community bestowed in him. Although there were no injuries,
the
evidence proved that a number of gunshots were fired. That in itself
is a conduct that endangers the safety of members of the
community.
The offence the appellant was convicted of is serious in nature. I am
of the view that the sentence imposed by the trial
court fits the
crime, the criminal and the interest of the community. There are
further no substantial and compelling circumstances
that ought to
have persuaded the trial court and this appeal court into imposing a
lesser sentence that the minimum prescribed
sentence of 15 years’
imprisonment as envisaged in
section 51(3)
of Act 105 of 1997.
[18]In
the result I make the following order:
The appeal against
conviction and sentence is dismissed.
M.V SEMENYA
JUDGE
OF THE HIGH COURT; LIMPOPO DIVISION.
I agree
CG
MULLER
JUDGE
OF THE HIGH COURT; LIMPOPO DIVISION.
APPEARANCES
ATTORNEYS
FOR THE APPELLANT :
NYAKANE ATTORNEYS.
COUNSEL
FOR THE APPELLANT
: MR. RM NYAKANE
ATTORNEY
FOR THE RESPONDENT : DPP
COUNSEL
FOR THE RESPONDENT
: ADV. M SEBELEBELE
RESERVED
ON
: 28 FEBRUARY 2020
JUDGMENT DELIVERED ON
:
06 MAY 2020