About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2020
>>
[2020] ZALMPPHC 62
|
|
Mathebula v S (A51/2018) [2020] ZALMPPHC 62 (13 August 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NUMBER: A51/2018
In
the matter between:
THOMAS
MATHEBULA
APPELLANT
AND
STATE
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The appellant was arraigned in the Regional Court Phalaborwa before
the Regional Magistrate
Adv. P.D Nkuna on one count of robbery with
aggravating circumstances read with the provisions of section 51(2)
of Criminal Law
Amendment Act 105 of 1997 (the Act). He was found
guilty as charged and sentenced fifteen (15) years imprisonment. The
appellant
is appealing the conviction and sentence. The appeal is
with the leave of this court.
[2]
The background facts are as follows. The complainant testified
as the State’s
first witness. He testified that on 23
rd
March 2015 between 15h00 and 16h00, he was at his shop John’s
Supermarket. Whilst busy serving his customers, three male
persons
entered his shop. As he was busy attending to one of the three males,
one of them picked up a bottle and hit him on his
head with it. He
fell to the ground and lost consciousness. When he regained his
consciousness, he went to the door of his supermarket
and shouted for
help. The neighbours came and gave chase to the three males.
[3]
The complainant thereafter phoned his brother who took him to
the hospital. He was
admitted to hospital for three (3) days. The
person who hit him with a bottle is the one whom he had attended in
the shop and he
was the appellant.
[4]
Under cross examination the complainant stated that when the three
males entered the shop,
there were no other customers inside the
shop. The complainant further stated that the three males have spent
a minute or less
in the shop. When asked whether there was any
distinctive feature he used to identify the appellant, he stated that
the appellant
was close to him and he has seen him properly with his
eyes when the appellant strike him with a bottle.
[5]
The second State witness Q[….] M[….] testified
that on 23
rd
March 2015 at about sunset she was next to
John’s Supermarket. Whilst there she saw three unknown boys and
one of them was
the appellant. The appellant entered John’s
Supermarket whilst the other boys did not enter but remained on the
street. Later
the appellant came out of the shop and left with the
two boys and went to the homestead of one R[….] M[….].
Whilst
at R[….] M[….]’s place the appellant
called her and asked her if she did not want a coke. After talking to
her, the appellant and his two companion left and went back to John’s
Supermarket.
[6]
When the three (3) boys came back from John’s
Supermarket, one of them was
in possession of fanta orange and a
plastic bag. R[….] M[….] saw them walking and asked her
whether those boys did
not steal from the supermarket. She and Rose
rushed to the supermarket where they found an Indian man bleeding
from his eyes and
was crying. The Indian man told them that three
boys have assaulted him. Next to the supermarket they saw one S[….]
who
had parked his vehicle. They explained to Sam what had happened
and they boarded his vehicle and started looking for the three (3)
boys until they reach another village.
[7]
They could not find the three (3) boys and when they came back they
found that the members
of the community have already assaulted the
appellant and was lying on the ground and was unconscious. By then
police members have
also arrived at the scene where the appellant was
assaulted. One police official searched the appellant and took out
coins, 30
Peter Stuyvesant cigarette and airtime from the appellant’s
pocket. The appellant was taken away by an ambulance.
[8]
Under cross examination she conceded that she did not know the
three (3) boys who
had entered John’s Supermarket. She could
not tell who of the three (3) boys was carrying a plastic bag and a
cool drink
when he came out of the shop. When counsel for the
appellant asked the witness that if the person who had a plastic bag
and cool
drink was the appellant, she would have remembered, the
trial court intervened and said the question was unfair to the
witness.
When counsel for the appellant tried to ask the witness as
to which direction did the three boys took after walking past them,
the trial court intervened and dismissed the question and stated that
how would she have seen them as they have disappeared. Again
when the
counsel for the appellant wanted the witness to describe any
distinctive feature on the appellant that he was the person
who had
offered to buy her cool drink on 23
rd
March, the trial
court intervened and stated that it was during daylight, she had
talked to him, and it was not necessary that
she must have noticed
certain special features. The witness stated that when she found the
appellant being assaulted by members
of the community, she recognised
him by his height and his dark complexion. When counsel for the
appellant tried to ask a follow-up
question regarding the appellant’s
height, the trial court intervened and stated that the witness was
speculating and did
not have a ruler to measure him, and what she can
only say was whether he was tall or short.
[9]
The
third State witness R[….]
M[….]testified that on 23
rd
March 2015 she was next to John’s Supermarket when she saw the
appellant and two (2) boys. The appellant entered inside John’s
Supermarket whilst the other two (2) boys walked passed the
supermarket. Later the appellant came out of the supermarket and
joined
the two (2) boys. From there the appellant and the two (2)
boys came to where she was sitting with the second State witness. On
arrival the appellant called the second State witness and talked to
her. After talking to her, the appellant called the two (2)
boys and
left heading towards John’s Supermarket.
[10] On
arrival at the supermarket, they all entered the supermarket. After
some while they came out of the supermarket
and headed upwards and
walking in a hurry. After the appellant and the two boys have left, a
certain lady came out of the supermarket
calling for help. She and
the second State witness ran to the supermarket and found the
shopkeeper bleeding. They asked the shopkeeper
what had happened and
he pointed to the appellant and the two (2) boys.
[11]
There was a bakkie that was driving out of the supermarket, and they
explained to the driver of the bakkie
what had happened and he
allowed them to board it and they went to go and look for the three
(3) boys. They could not find the
three (3) boys. As they were
looking, they came across the community members who told them that
they have found the boys. They
proceeded to the scene where the boys
were found. On arrival, they found that the community members have
assaulted the appellant
and he was lying on the ground unconscious.
The other two boys were not there. The police members have already
arrived at the scene.
One of the police official searched the
appellant and found that he was in possession of airtime, 30 Peter
Stuyvesant packet and
coins. An ambulance was then summoned and the
appellant was taken away by it.
[12]
Under cross examination the witness stated that where they found the
appellant lying unconscious was on
a side road in the bushes. The
witness stated that even though the appellant was lying on the
ground, she could still identify
him by his height as he was taller
than the other two boys. When counsel for the appellant wanted to ask
a follow-up question in
relation to the height of the appellant, the
trial court stated that the witness had identified the appellant by
his face and also
she could see the appellant whilst lying on the
ground that he was the tallest amongst the three. The witness could
not tell what
was it about the appellant’s face that was
distinguishable to say it was the person whom she saw at the
supermarket. When
asked as to when she became sure that the person
lying there was the appellant, she stated that when she arrived where
the appellant
was lying, she looked at him, and in her mind just
silently thought that he was the person who was pointed out by the
Indian person
as the person who had assaulted him together with two
boys.
[13]
The State fourth witness M[….] R[….] testified that he
is a police official and Warrant Officer
by rank. On 23
rd
March 2015 whilst at work he received a report that the community had
apprehended a person at Honeyville village. He went to the
scene and
upon arrival he found an unknown person lying on the ground
unconscious with injuries on his head and body. He then summoned
an
ambulance to come and examine his condition. Thereafter he searched
the pockets of that person and found one packet of 20 Peter
Stuyvesant, coins which amount to R140-00, and either MTN, Vodacom or
Cell C airtime. The person he found lying there was the appellant.
The ambulance on its arrival took the appellant to hospital.
[14]
The witness was cross examined and he stated that when he arrived at
the scene where the appellant was lying,
he did not ask the people
that he found there as to what had happened. He stated that the
appellant was arrested by the community
members at another village
and not the village where John’s Supermarket was situated. When
counsel for the appellant tried
to ask the witness the name of the
police officer who arrested the appellant, the court intervened and
stated that the appellant
was never arrested by any police officer,
but was arrested by members of the community. However, it later
transpired that in the
witness’s police statement, the witness
has stated that he was the one who had arrested the appellant.
[15]
The appellant has testified and he denied all the allegations
levelled against him. He stated that on 23
rd
March 2015 he
was at his brother’s house in the company of his brother and
his brother’s wife. At about 18h00 he left
his brother’s
house heading to Sewera village to go and collect his wife.
[16]
On the way to Sewera village he met four (4) unknown men. As he was
passing those man, one of
then struck him with a stick and he lost
consciousness. When he regained his consciousness he discovered that
he was in the hospital,
and his hands were handcuffed. He further
stated that the four men that he met did not utter a single word to
him.
[17]
The appellant further stated that when he left his brother’s
house, he was in possession of one A[…]’s
Nokia
cellphone and about R100-00 cash. He had shaved his head and was
wearing a pink trouser, red t-shirt and Nike sundowns shoes.
[18]
The appellant under cross examination stated that he was staying with
his brother at his brother’s
house.
[19]
The appellant called his brother Elvis Mathebula as his witness. He
testified that he was staying with the
appellant at his (witness)
house at the time of the appellant’s arrest. The day the
appellant was arrested, the appellant
came back from work around
17h00. On his arrival the appellant stayed at home for about twenty
(20) to thirty (30) minutes and
thereafter left saying he was going
to fetch his wife. He never came back. Around 19h00 to 20h00 that
evening he was told that
the appellant has been severely assaulted.
When he saw the appellant again he was in jail. The witness was not
cross examined.
[20]
The test in a criminal trial is whether the
evidence establishes the guilt of the accused beyond reasonable
doubt. The corollary is that an accused person is entitled to be
acquitted if there is no reasonable possibility that an innocent
explanation which he had proffered might be true. These are not two
independent tests but rather the statement of 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
S v Sithole and Others
[1]
)
[21]
The appellant’s defence was that of an
alibi
. There is
no onus on the accused person to prove
alibi
. An
alibi
defence is essentially a denial of prosecution case on the issue of
identity. What the accused is simply saying is that he could
not have
committed the offence as he was somewhere else at the relevant time.
[22]
The appellant in support of his
alibi
defence has called his
brother to testify. His brother corroborated his alibi and stated
that the appellant came back from work
around 17h00 and thereafter
left after twenty (20) to thirty (30) minutes to go and fetch his
wife. The appellant has testified
that he had left his brother’s
homestead before 18h00 to go and fetch his wife at another village.
His brother was staying
at N[….] which is not the place where
the alleged robbery took place. As per the State witnesses, the
alleged robbery took
place between 15h00 to 16h00. The appellant’s
witness was not cross examined and his version thereafter remained
unchallenged.
[23]
It is trite that once the appellant raised the
alibi
defence, that
alibi
has
to be accepted unless it was proved to be false beyond reasonable
doubt
.
(See S v Musiker
[2]
).
In the case at hand the appellant’s
alibi
was not proved to be false beyond reasonable as the evidence of the
appellant’s brother that the appellant who was from work
arrived home at 17h00 was not challenged. The trial court was faced
with the evidence of the three State witnesses that placed
the
appellant at the scene of the incident and the appellant’s own
evidence together with that of his brother’s that
the appellant
was at work. The trial court was therefore faced with two versions
that were mutually destructive of each other.
[24]
Faced with two versions that were mutually destructive of each other,
the trial court was therefore duty
bound to give sound reasons why it
preferred the evidence of the State to that of the appellant. The
trial court has failed to
do so. What the trial court did was merely
to state that the four State witnesses have corroborated each other
to the effect that
there were three perpetrators and that one of them
was the appellant. The trial court did not even attempt to deal with
the appellant’s
evidence and that of his witness.
[25]
In
S
v Liebenberg
[3]
the Court said:
“
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.
”
[26]
The evidence of the State
witnesses is to the effect that the robbery at John’s
Supermarket was committed between 15h00 and
16h00 and were all
consistent on that time. There is also evidence by the appellant that
at that time he was at work. There is
no evidence to prove that that
appellant
alibi
was false beyond reasonable doubt. The trial Court’s approach
to the appellant’s
alibi
was wrong as it failed to take into account that once the appellant
had raised the
alibi
defence it had to be accepted unless it is proved to be false beyond
reasonable doubt, and that the onus remained on the State
to prove
the guilt of the appellant beyond reasonable doubt. The trial court
was also supposed to consider the evidence in its
totality and not
decide the matter only on the State version. Had the court considered
the evidence in its totality, it would have
realized that it was
faced with two versions that were mutually destructive of each other,
which would have made it to give sound
reasons why it prefers one
over the other. Its failure to do so in my view constitute a serious
misdirection and on this point
alone, the conviction cannot stand.
[27]
If I am wrong on this, the next question to be determined is whether
the State had proved the
offence of robbery against the appellant
beyond reasonable doubt. The complainant did not give evidence about
any items that the
perpetrators had robbed him. The complainant’s
evidence proved assault only. The two State witnesses who allegedly
saw the
perpetrators leaving the complainant’s supermarket,
could not tell what the perpetrators were having except to say an
orange
coke and a plastic bag. To make matters worse, the two State
witnesses could not tell who was in possession of the plastic bag.
[28]
The State in trying to prove that the appellant was involved in the
robbery at John’s Supermarket
is also relying on the evidence
of Warrant Officer Raletsatse who testified that when he searched the
appellant who was unconscious,
he found one packet of Peter
Stuyvesant cigarette; either MTN, Vodacom or Cell C airtime; and
coins to the value of R140-00.
However, the police have failed to
establish where these items originate from. The complainant did not
confirm whether these items
originate from his supermarket.
[29]
It is not strange for a person to have a cellphone with different
networks. The police officer
who searched the appellant is not even
sure from which network the airtime were from. The police where
therefore duty bound to
gather more evidence about how the airtime
came into possession of the appellant and where they originate from.
They have failed
to do so. There is nothing strange for a person to
be in possession of one packet of Peter Stuyvesant cigarette and
R140-00 coins.
That on its own does not prove any offence. The
State was therefore supposed to have led evidence that link the items
found in
possession of the appellant to any items that might have
been robbed at John’s Supermarket. Even if the complainant was
knocked
unconscious and he could not have seen what was actually
taken, when he regained his consciousness, if money was taken from
the
till he would have noticed that. If some of his airtime and
cigarettes were missing he would have noticed that. It is not even
clear whether the complainant was selling airtime as no evidence to
that effect was led.
[30]
In my view, taking into account the evidence presented in its
totality and holistically, the
State has failed to prove beyond
reasonable doubt the offence of robbery against the appellant. If
there was sufficient evidence
linking the appellant to John’s
Supermarket, the least he could have been convicted of was the
offence of assault. However,
with the appellant’s
alibi
defence which was not proved to be false beyond reasonable doubt,
there is no sufficient evidence to sustain a conviction on a
competent
verdict of assault. In my view, the evidence before the
trial court did not prove beyond reasonable doubt that the appellant
was
guilty and should have been acquitted.
[31]
Another area of concern in the proceeding in the court
a quo
is the unwarranted interruptions and unjustifiable entry into the
arena by the presiding magistrate. It will therefore be prudent
to
quote a few examples to show the seriousness of the misdirection by
the trial magistrate. In the first instance this is what
happened
when counsel for the appellant was cross examining Ms M[….]
the second State witness:
“
Mr
M[….]
: Madam you cannot say before
this court with certainty that the three boys entered the shop after
they left you? Not so? …
[intervened]
COURT
:
Entering, Madam, the question is about entering …. I did not
see them.
MR
M[….]
: Am I correct to say that if the
person who had a plastic and a cool drink was the accused before
court, you are going to remember
it….[intervened]
COURT
:
No the question is not fair.”
[32]
The question was vital as the issue was about the identity of the
appellant. This was the relevant
witness to have answered the
question as per her evidence in chief the appellant had called her
and she had talked with the appellant
at close range. It would have
been easy for this witness to tell whether the appellant was the one
who was carrying the plastic
or not. There was no unfairness in this
question. The appellant counsel was therefore denied an opportunity
to test the witness’s
credibility in relation to the identity
of the appellant. The did not even object to the line of questioning.
[33]
Again in relation to the same witness this is what transpired:
“
After …
did you see the direction they took… [intervened]
PROSECUTOR
:
They disappeared your worship.
COURT
:
Aah, thank you, prosecutor.
PROSECUTOR
:
She said they lost sight [intervened]
COURT
:
He is the one who came with that question that when she was looking
at them, she said then they disappeared.
`
Now how would she have seen the direction they have taken if they
disappeared?
MR
M[….]
: Your worship it is not that
despite the fact that a person gets out of the court, he takes a
particular direction [intervened]
COURT
:
That question is dismissed.”
[34]
The appellant was apprehended by the members of the community in
another village. The direction
was relevant as that would have
assisted the court to find out whether the village where the
appellant was apprehended was in the
same direction which the witness
would have pointed out. However, in his judgment the presiding
magistrate said the following:
“
But
the accused was found in another direction. When these boys ran they
were not running in a tunnel. They were running in an open
space.
They could change direction at any time. So the fact that when he
started running he ran in the eastern direction and was
later found
in other direction it does not mean anything.”
[35]
The State has failed to call any witness from the community members
who apprehended the appellant
to testify about the circumstances
under which he was apprehended, the direction of the village from the
village in which John’s
Supermarket is situated, and also the
distance from John’s supermarket and the place where the
appellant was apprehended.
The question by the counsel for the
appellant was not whether they have disappeared or not. Even if they
have disappeared, they
have disappeared in a certain direction. In my
view the question was unfairly dismissed and the presiding magistrate
analysis of
the direction was based on speculation and not
facts.
[36]
Again this is what transpired still with the same witness:
“
MR
M[….]
: What makes you say the accused
is the person who approached you and offered to buy you cool drink of
the 23
rd
March …
Your worship, he said he wanted me, he … Yes but … Yes
my question is, what makes you looking at him
to say this person is
the one who told me he loved me on the 23
rd
Mach? [intervened]
PROSECUTOR
:
I think that should be [indistinct-11:07]
COURT
:
Even despite that, I mean it was during the daylight, she talked to
him, it is not always necessary that you must have, you know
noticed
certain special features.
Just like me, I know
Mr M[....], but if somebody can ask me: Hey, what special features
does he have which you...? I cannot, I cannot
say anything but I can
tell you even I can find you in Durban, I can find you right in the
ocean, you know.”
[37]
I doubt whether the presiding magistrate was alive to the principle
of identification as formulated
in
S
v Mthetwa
[4]
where
the court said:
“
Because of
the fallibility of human observation, evidence of identification is
approached by courts with some caution. It is not
enough for the
identifying witness to be honest: the reliability of his observation
must also be tested”.
[38]
The appellant’s counsel was prevented from testing the
reliability of the witness’s
observations. That in my view
amounted to a serious misdirection by the trial magistrate.
[39]
When Ms M[….] the third State witness was cross examined this
is what transpired:
“
MR M[....]:
Let us take away the blue t-shirt and the maroon trouser, what is it
that you identified the accused with as the person
you saw on that
day. Without him, identify him without clothing. What is it on in
physical appearance that you can say, I know
him because of this…This
one is taller than those who was in his company.
Where
you found being assault, he was lying down. Is that correct…?
Yes
Those
other two, you referred to as being shorter to him were not even
there …[intervened]
PROSECUTOR:
Your worship, in evidence, but in evidence, Your worship, there is
evidence to the effect that all three, the accused
and two companies
at some stage they came to the homestead of the woman. If I remember
very well. Now, yes of course they were
not there. Now, I do not know
whether Mr M[….]is suggesting that because they were then he
could not take the height of
that.
Yet
he had seen them before at that homestead of the witness.
COURT:
Yes
PROSECUTOR:
I honestly do not know.
MR
M[....]: Your worship, this is identification now. She has seen the
person previously at the scene. There was a time when this
person was
no longer within her sight. Now she must come and identify him as the
person she previously see. She says she identified
him with the
height compared to who?
There
were no other, those other people who have been short [intervened]
COURT:
No, Mr M[....]. At the time when you saw them the first time, she is
saying she first and foremost, she identified him with
his face.
PROSECUTOR:
Exactly.
COURT:
And secondly she identified him with his height because he was taller
than the two.
PROSECUROR:
Yes that she has said:
COURT:
And when she saw him again for the second time when he was still
lying, I mean when was…?
Lying
on the ground she could see that this person I saw was the taller
amongst the three.”
[40]
The witness did not say she had identified the appellant by his face,
but had said by his height.
The witness did not say when she saw the
appellant for the second time lying on the ground, she could see that
this is that person
I saw who was the tallest amongst the three.
These statements are misleading and in my view, amount to gross
misdirection by the
presiding magistrate.
[41]
It is trite law that the court may intervene at any time during the
proceeding to get clarity
on any point, but should not take over the
examination or put leading questions to support the State case before
the parties have
finished their examination of the witness.
(
See
S v Rall
[5]
)
.
A criminal trial is not a game. The presiding officer’s
position is not merely that of an empire to see that the rules of
the
game are observed by both parties. The presiding officer is the
administrator of justice, he is not a figure head, he has not
only to
direct and control the proceedings according to recognised rules of
procedure, but to see to it that justice is done. (
See
R v Hepworth
[6]
).
[42]
In the case at hand the trial court did not intervene to get clarity
or to establish the truth,
but was answering for witnesses, which
answers in some instances were misleading as witnesses never gave
those answers. The trial
court did not allow the free flow of the
trial but was unnecessarily interrupting time again and also
preventing the appellant’s
counsel from asking relevant and
pertinent questions which would have assisted the appellant as well
as the court. In my view,
the appellant was not given a fair trial.
This unfairness is so gross and on that point alone the conviction
cannot be sustained.
[43]
I therefore make the following:
4.1.1 The appeal is
upheld
41.2 The conviction
and sentence are set aside.
41.3
Unless the appellant is serving sentence for other offences, he
should be released immediately.
MF. KGANYAGO J
JUDGE OF HIGH
COURT OF SOUTH AFRICA, LIMPOPO DIVISION, POLOKWANE
I
concur
M. G PHATUDI J
JUDGE OF HIGH
COURT OF SOUTH AFRICA, LIMPOPO DIVISION, POLOKWANE
APPEARANCE:
COUNSEL
FOR APPLICANT : DJ NONYANE
INSTRUCTED
BY :
POLOKWANE JUSTICE CENTRE
COUNSEL
RESPONDENT :
ADV JJ JACOBS
INSTRUCTED
BY
: DIRECTOR OF PUBLIC PROSECUTION
DATE
OF HEARING
: 31
JULY 2020
DATE
OF JUDGEMENT
: 13
TH
AUGUST 2020
[1]
1999 (1) SACR 585
W
[2]
2013
(1) SACR 517
(SCA) at para 15
[3]
2005
(1) SACR 355
(SCA) at para 14
[4]
1972 (3) SA 766
(A) at 768
[5]
1982 (1) SA 828 (A)
[6]
1928 AD 265
at 277