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[2020] ZALMPPHC 68
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Mathebula v S (A51/2018) [2020] ZALMPPHC 68 (13 August 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
(1)
REPORTABLE:
YES/
NO
(2)
OF
INTEREST TO OTHER JUDGES: YES/
NO
(3)
REVISED
CASE
NUMBER: A51/2018
13/8/20
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 Queen Maleto
testified that on 23rd 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 Rose Magata. Whilst at Rose Magata'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. Rose
Magata 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 Sam 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 23rd 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 Rose Magata
testified that on 23rd 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 (2)
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 Mokete
Raletsake 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
23rd 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 Asha'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 Namakgale
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 Maleto the second State
witness:
"
Mr
MAFU :
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
MAFU:
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
MAFU:
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
MAFU :
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 Mafu, 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 Magata the third State witness
was cross examined this is what transpired:
"MR
MAFU : Let us take away the bluet-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 Mafogo 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
MAFOGO: 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 Mafogo. 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.
KGANYANGO 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
DIVSION, 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 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