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[2019] ZAGPPHC 35
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Mahlangu v S (383/2017) [2019] ZAGPPHC 35 (25 February 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case
No. 383/2017
In
the matter between
Josiah
Mduduzi Mahlangu
Appellant
and
The
State
Respondent
Heard
:
05
November 2018
Delivered
: 25
February 2019
Coram
:
Munzhelele
AJ, Nair
AJ
JUDGMENT
MUNZHELELE
AJ
[1]
This is an appeal against conviction by Josiah Mduduzi Mahlangu, ‘the
Appellant’
after leave to appeal was granted by the North
Gauteng High Court. Appellant appeared in the Vereeniging Regional
Court on the
charges of housebreaking with intent to rob and robbery
with aggravating circumstances as intended in terms of
section 1
of
the
Criminal Procedure Act 51 of 1977
read with the provisions of
section 51(2)
of the
Criminal Law Amendment Act 105 of 1997
.
[2]
Throughout the proceedings the appellant was legally represented by
Mr. Van der Berg.
The appellant pleaded not guilty to both counts on
the 2
nd
of July
2015 denying any involvement in the commission of the offences.
Despite appellant’s plea of not guilty, the magistrate
found
him guilty on both counts on the 16
th
of November 2015. Appellant was sentenced on count one to five years
imprisonment and on count two to 12 years imprisonment. The
two
sentences were ordered to run concurrently. By operation of the law
the appellant was deemed unfit to possess a firearm.
[3]
The appellant brought an application for leave to appeal against the
conviction and
sentence to the Regional Magistrate and the
application was denied. He petitioned the Judge President of the
North Gauteng High
Court in Pretoria for leave to appeal against
convictions and sentence before Judge Nxumalo and Acting Judge
Mahalelo who granted
the leave to appeal only against the conviction
on the 25
th
of
April 2017. The appellant contended that the Regional Magistrate
materially misdirected himself by convicting him without credible
and
reliable identification evidence.
[4]
On the night of the 1
st
of March 2015 at around 01:34 am the house of Anna Kubane Baloyi was
broken into. She heard the noise coming from the side of the
kitchen.
She peeped through the window and saw two men by the door. She
quickly ran and hides in the bedroom together with her
children. She
was not able to identify the intruders. Some of the intruders went to
the room where Given Baloyi was asleep and
he was assaulted with a
hammer on the head. He testified that he was not able to identify
them because the room was too dark. Anna
Kubane called her son Oscar
Baloyi to come to the rescue, and her neighbours to call the police.
Selina Baloyi was also present
with her mother hiding in the bedroom.
Both Anna Kubane and her daughter Selinah were not able to see who
the intruders were.
The police arrived and took statements of
the witnesses. Anna Kubane went out of the room where she was hiding.
She found that
the children’s shoes, laptop, cell phones, TV,
were scattered on the kitchen floor.
[5]
Oscar Baloyi arrived together with his friends Ncube, Gonolo and
Tsabelo. While entering
the yard a light was seen with the figure
that was jumping the fence. Lungane Ncube who went to investigate
brought back the appellant.
At that time the state witnesses were
outside the kitchen, where there was a light. Ncube took the
appellant to the state witnesses,
where he was searched. The Toyota
car keys and a Samsung cellular phone were found in the appellant’s
jacket. Cellular phone
was generally identified to be that of Anna
Kubane. The Toyota car keys were also identified to be for the old
truck which was
sold long time ago. There were no specific features
which were mentioned by all the state witnesses including Thabo
Baloyi in identifying
these two items.
[6]
The court a quo rejected the version of the appellant when he said
that he was randomly
picked up by Lungani Ncube on the street. There
was however no evidence by Lungane on record that he indeed did not
pick him up
randomly along the street. The appellant testified that
he was from the party. The court a quo rejected this version of the
appellant
without any evidence on record suggesting otherwise. The
trial court overlooked the fact that the witness Anna Kubana said
that
people who came to her house were speaking Sesotho and the
accused was a Zulu speaking person.
[7]
The appellant’s counsel, Mr van As in his appeal argued that
the court a quo
erred in making a finding that the appellant was
identified, whereas there was no proper identification of the
appellant in the
state witnesses’ evidence. He further argued
that the court a quo erred in relying on the doctrine of common
purpose to convict
the appellant for robbery and house breaking
offences. His other concern is that the person who apprehended the
appellant was also
not called to testify. The counsel further
contended that the recovered items were not properly identified with
specific features.
It is therefore contended that the state did not
prove its case beyond reasonable doubt.
[8]
On the other hand counsel for
the respondent, Mrs Marriot argued that the witness Anna
Baloyi was
able to recognise the appellant as a person who came to her house
asking for her husband and Karabo a day before the
incident. Counsel
further argued that Selinah was also present when the search was
conducted and cellular phone and Toyota car
keys were recovered from
the appellant. The counsel further contended that Oscar, Selinah and
Thabo Baloyi identified the recovered
items as belonging to the
complainant. The counsel submitted that out of the totality of
evidence, the only reasonable inference
to be drawn is that the
appellant was one of the housebreakers. Mrs Marriot further argued
that the doctrine of recent possession
permits the court to make the
inference that the properties were taken during the commission of the
offence and that the appellant
was one of the perpetrators.
[9]
It is trite law that a court of appeal should refrain from lightly
interfering with
the credibility findings of a trial court which are
presumed to be correct. This is so because the trial court had the
benefit
of being steeped in the atmosphere of the trial, observing
and hearing the evidence first-hand. The trial court is therefore "in
the best position to determine where the truth lies. See
S
v Hadebe and Others
1997 (2) SACR 641
(SCA)
at 645e.
[10]
Before considering whether or not the conviction of the appellant is
supportable on the evidence
adduced at the trial, it is necessary to
reiterate the proper approach to be adopted when analysing the
version of an accused in
a criminal trial. It is trite law that there
is no obligation upon an accused person, where the state bears the
onus, to convince
the court about his version. If his version is
reasonably possible true he is entitled to his acquittal. It is
permissible to look
at the probabilities of the case to determine
whether the accused’s version is reasonably possibly true, but,
whether one
subjectively believes him is not the test. As pointed out
in many judgments of this court and other courts the test is whether
there is a reasonable possibility that the accused’s evidence
may be true. See
Mulovhedzi v The State
(257/13)
[2013] ZASCA
201
(2 December 2013) para 12;
S v V
2000 (1) SACR 453
(SCA)
at 455a-c.
[11]
In this case at hand the state failed to call a witness who
could have clarified the facts
whether this appellant was the one who
jumped the fence from Anna Kubane’s place or not. Lungane was
not dead or untraceable.
Such failure to call a competent and
compellable witness leads naturally to the inference that perhaps the
state feared that
such evidence would expose unfavourable facts. See
Ntsomi v Minister of law and order
1990 (1) SA 512
(CPD) at 525E per Van Deventer AJ. The state was left
with no evidence to link the appellant to the people who broke into
the house
of the complainant. The court a quo misdirected itself by
relying on the common purpose in convicting the appellant. The state
failed to discharge the onus to prove that appellant was part of the
people who were in the house and as such he was entitled to
an
acquittal.
[12]
It is of importance that I deal with the value of the evidence where
a witness is confronted
with the suspect by any person, a community
or the police and then ask such a witness if this is the suspect or
not. A witness
will be prone to identify the person who is brought to
him by the police or the community members as a culprit. For this
reason
it was important that an identification parade be held where
the person can be identified while in the company of many others. A
proper identification parade could have confirmed if indeed the
appellant was the perpetrator with greater identified value. (See
S
v T
2005 (2) SACR 318
[E] at 322 para 12;
Madubedube
1958 (1) SA
276
(0)).
[13]
The court a quo found that the accused possessed the Toyota car keys
and a Samsung cellular phone belonging
to the complainant unlawfully.
The court a quo rejected the testimony given by the accused that the
Toyota car keys belonged to
his sister’s company where she
works. As to why no investigation was conducted to verify the
information provided by
the appellant it is anyone’s guess. The
police were present and they heard what the appellant was saying.
What they should
have done was to follow up on the appellant’s
explanation to test its truthfulness. The appellant could not be
blamed for
the police’s shady investigations of this case. The
state had the opportunity and the means to verify the truth about the
Toyota car keys, Samsung cell phone and party issue. The state failed
to do so. It is the duty of the state to prove its case beyond
reasonable doubt; this duty should never be shifted to the appellant.
See
Mothwa v The State
2016 (2) SACR 489
(SCA) para11 by Mathopo JA.
[14]
Regarding the cellular phone; the accused testified that the cellular
phone was not found in
his possession. The crucial issue is the
identification of this phone. The court a quo found that the phone
was identified by the
state witnesses as belonging to Anna Kubane.
All the witnesses who testified including Thabo who alleged that he
bought the cellular
phone, were not able to state specific feature in
identifying the cellular phone except to say that they know it
because it has
scratches and that their niece use it. The state could
reasonably be expected to have produced better evidence on
identification
of the cellular phone by way of obtaining information
of ownership from the service provider. They could obtain further
information
of ownership from Rica (Regulation of Interception of
Communication and Provision of Communication Related Information Act
70 of
2002). This identification by means of scratches was not enough
to prove beyond reasonable doubt that the cellular phone belonged
to
the complainant.
[15]
The finding by the court a quo that appellant was one of the robbers
who stormed the complainant’s
house and robbed them, assaulted
Given Karabo Baloyi with a hammer, while acting in common purpose was
not supported by the evidence
on record. The inference to be drawn
should have been in line with the principles set out in R v Blom
1939
AD 188
at 202 for drawing an inference from proven facts namely; the
inference sought to be drawn must be consistent with all proven fact.
If it is not, then, the inference cannot be drawn. The proven facts
should be such that they exclude every reasonable inference
from them
save the one to be drawn. If they do not exclude other reasonable
inferences, then there must be a doubt whether the
inference sought
to be drawn is correct. See Ngwenya v S (A41/2016)[2017] ZAGPPHC
302(27 June 2017) at para 21. The state
failed to prove those facts
upon which an inference could have been drawn.
[16]
It is trite law that the state is required, when it tries a person
for allegedly committing an
offence, to prove the guilt of the
accused beyond reasonable doubt. This high standard of proof
universally required in civilised
systems of criminal justice is a
core component of the fundamental right to a fair trial enjoyed by
every person in accordance
with the Constitution, and in line with
common law. When a court finds that the guilt of an accused has not
been proven beyond
reasonable doubt, that accused is entitled to an
acquittal, even if there may be suspicions that he or she was,
indeed, the perpetrator
of the crime in question. That is an
inevitable consequence of living in a society in which the freedom
and the dignity of the
individual are properly protected and are
respected. The convictions based on suspicions or speculation is the
hall mark of a tyrannical
system of law.’ See S
v
T
2005 (2) SACR 318(E)
para 37 Plasket J; See
also
Phetoe v State
[1361/2016)
2018 ZA SCA 20
(16 March 2018) Mocumie JJA. In this case
the court a quo convicted the appellant on suspicion of guilt as the
state failed to
prove its case beyond reasonable doubt.
[17]
It is trite law that the appeal court may interfere with the findings
of the court in respect of conviction
in the following circumstances:
(a) where there is a misdirection of facts or law. (b) Where reasons
for its findings are shown
by the record to be unsatisfactory or
though satisfactory, it is shown that the learned judge overlooked
other facts or probabilities.
(c) Further, the misdirection must be
shown to be material even though not every misdirection will enabled
the Court of Appeal
to disregard the findings of the trial court. See
R v Dlumayo and another
1948 (2) SA 677
at 701-703;
Engelbrecht v The
State
(CA 42/2016) [2016] NAHCMD 386 (9
December 2016) para 27. The appeal court will interfere with the
findings of the court a quo
because the court a quo has overlooked
other facts and probabilities which are material to this case. The
appeal against the conviction
should succeed.
[18]
In the circumstances, the following order is made:
1.
The appeal is upheld.
2.
Conviction and sentences are set aside.
___________________________
M.M. Munzhelele
Acting
Judge of the High Court
I
agree
____________________________
D.Nair
Acting Judge of the
High Court
Appearance
:-
For
the Appellant
: Adv Van As
Instructed
by
: Legal Aid of South Africa
For
the respondent
: Adv Marriot
Instructed
by
: Director of Public Prosecution