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[2019] ZAFSHC 10
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Monyane and Another v S (A77/2018) [2019] ZAFSHC 10 (18 February 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: A77/2018
In
the matter between:
JONAS
NHLOPHEKO MONYANE
1
st
Appellant
BONGANI
MONYANE
2
nd
Appellant
and
THE
STATE
Respondent
CORAM:
DAFFUE, J
et
MATHEBULA,
J
JUDGMENT
BY:
DAFFUE,
J
HEARD
ON:
18
FEBRUARY 2019
DELIVERED ON:
18 FEBRUARY 2019
INTRODUCTION
[1]
On 3 November 2016 the two appellants were convicted in the
Magistrate’s court, Welkom on separate charges of assault
with
intent to do grievous bodily harm and on 29 November 2016 they were
sentenced to two years’ imprisonment. Their
application
for leave to appeal was dismissed by the trial court.
[2]
On 3 November 2017 the High Court granted leave to appeal against the
convictions and sentences and the matter was eventually
set down for
the appeal to be argued on 18 February 2019.
[3]
In my view the judicial system has failed appellants. There is
no explanation why the appeal procedure could not be finalised
sooner. On 20 February 2017 the appellants’ affidavits in
support of their petition to the High Court were filed (incorrectly
with the clerk of the court, Welkom). On even date Legal Aid SA
applied for a transcription of the court record. Nine
months
later the petitions were granted, but another fourteen months lapsed
before the appeals were heard. By now appellants have
served their
sentences and their only solace is that the offences will be expunged
from their records.
THE
GROUNDS OF APPEAL
[4]
Several grounds of appeal are relied upon, the main grounds being
that the trial court erred in the following respects:
(1) The first and third
State witnesses contradicted each other insofar as the first witness
testified that he was unarmed whilst
the third witness testified that
that witness was in possession of a weapon, to wit a rod.
(2) It disallowed the
introduction of the third State witness’ police statement and
cross-examination in that regard to the
prejudice of the defence.
(3) It did not find that
several improbabilities appeared from the evidence tendered on behalf
of the State.
(4) It rejected
appellants’ versions as not reasonably possibly true.
(5) In not finding that
the complainants started the fight and that they were the aggressors.
THE
JUDGMENT OF THE TRIAL COURT
[5]
The judgment of the trial court
(1) does not contain a
proper summary of the evidence, and more importantly, no evaluation
thereof and
(2) is not structured at
all.
[6]
The trial court considered common purpose at length and even gave a
long explanation of its understanding of the concept, but
failed to
summarise her factual findings properly in order to conclude why the
matter could not be decided on common purpose.
[7]
The trial court acknowledged that Mr Andrew Mogosi, the complainant
in count 1, was a single witness. It found that his
evidence
was clear and consistent and passed the test applicable to single
witnesses. She found corroboration for his version
that he was
stabbed and bleeding insofar as Mr Thabang Metsiso (spelt Dietsiso in
the record), the third State witness and the
complainant in count 4,
saw him bleeding; also he was able to point out a scar in court.
The trial court did not consider
that Mr Metsiso testified that Mr
Mogosi was in possession of an iron rod when he came across him and
also that the two State witnesses’
versions of the events
differ completely. I shall deal with that later.
[8]
The trial court found that Mr Thabang Metsiso is related to accused 3
and that this witness had no reason to falsely accuse
accused 3 as
his attacker. This finding was made notwithstanding the
contradictory versions of the State and the defence
and the court’s
acceptance
“…
that
this was a mob fight and there was not (sic) person that was
specifically fighting a specific person, it was a group against
a
group,….”
ADJUDICATION
OF THE APPEAL
[9]
When an appeal is lodged against the trial court’s findings of
fact, the appeal court should take into account that the
trial court
was in a more favourable position than itself to form a judgment
because it was able to observe the witnesses during
their questioning
and was absorbed in the atmosphere of the trial. See Schmidt
and Rademeyer,
Law
of Evidence
3-40.
The appeal court will normally accept factual findings made by the
trial court
,
unless there is some indication that a mistake was made. See
R
v Dhlumayo
1948 (2) SA 677
(A) at 696 and 705. The Court of Appeal
summarised this issue as follows in
S
v Hadebe and Others
1997
(2) SACR 641
(SCA) at 645e - f:
“
Before considering these
submissions it would be as well to recall yet again that there are
well-established principles governing
the hearing of appeals against
findings of fact. In short, 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 shows them to
be clearly wrong.”
[10]
If the appeal court is merely left in doubt as to the correctness of
the factual conclusion arrived at by the trial court,
it will uphold
it. The Supreme Court of Appeal in
S
v Naidoo and Others
2003 (1) SACR 347
(SCA) reiterated this principle as follows in
paragraph [26]:
‘
In the final analysis, a court
of appeal does not overturn a trial court’s findings of fact
unless they are shown to be vitiated
by material misdirection or are
shown by the record to be wrong.’
[11]
No judgment is perfect and the fact that certain issues were not
referred to does not necessarily mean that these were overlooked.
It is accepted that factual errors do appear from time to time, that
reasons provided by a trial court are unsatisfactory or that
certain
facts or improbabilities are overlooked. The appeal court
should be hesitant to search for reasons that are in conflict
with or
adverse to the trial court’s conclusions. However, in
order to prevent a convicted person’s right of
appeal to be
illusionary, the appeal court has a duty to investigate the trial
court’s factual findings in order to ascertain
their
correctness and if a mistake has been made to the extent that the
conviction cannot be upheld, it must interfere. See
S
v M
2006 (1) SACR 135
(SCA) paragraph [40] at 152a - c.
[12]
I do not want to be unnecessary critical, but the trial court should
reconsider the manner of judgment writing. It is
suggested that
she either follow a course in judgment writing or be trained by more
experienced colleagues. It was difficult
to read and understand
the judgment, but I am satisfied that the trial court made incorrect
factual findings. Several misdirections
occurred which led to
wrong factual conclusions. I shall elaborate later.
[13]
To secure a conviction the State has to prove all the elements of the
crime beyond reasonable doubt. The test in a criminal
case has been
restated in
S v V
2000 (1) SACR 453
(SCA) in paragraph [3].
If there is a reasonable possibility that the accused is not guilty,
he should be acquitted. The
accused should be convicted if the court
finds not only that his version is improbable, but also that it is
false beyond reasonable
doubt. It is not necessary for the court to
believe an accused person in order to acquit him
[14]
It is trite that an accused may be convicted on the single evidence
of any competent witness if such evidence is clear and
satisfactory
in every material respect. Our courts have indicated that
evidence can be satisfactory, even if it is open to
a degree of
criticism. See
S
v Sauls
1981 (3) SA 172
(A) at 180G–H. Furthermore, the exercise
of caution should not be allowed to displace the exercise of common
sense.
See
S
v Artman
1968 (3) SA 339
(A) at 341C.
[15]
I alluded to the fact that Mr Andrew Mogosi was a single witness. The
same applies to Mr Thabang Metsiso. I shall return
to their
evidence later. Probabilities play a role in evaluation of
evidence, even in criminal cases, and this will be referred
to in the
next paragraph.
[16]
The State has to prove its case against an accused beyond reasonable
doubt, but in evaluating the evidence, the trial court
is entitled to
consider the probabilities and improbabilities. This issue was
considered in S v Chabalala
2003 (1) SACR 134
SCA at para [15] where
Heher AJA (as he then was) held:
“
The correct approach is to
weigh up all the elements which point towards the guilt of the
accused against all those which are indicative
of his innocence,
taking proper account of inherent strengths and weaknesses,
probabilities and improbabilities on both sides and,
having done so,
to decide whether the balance weighs so heavily in favour of the
State as to exclude any reasonable doubt about
the accused’s
guilt.”
See
also:
S
v Trainor
2003
(1) SACR 35
(SCA) at 41b – c.
[17]
An accused’s version cannot be rejected merely because it
appears to be improbable. It must be shown, in light
of the
totality of the facts, to be so untenable and/or improbable and/or
false that it cannot reasonably possibly be true.
See S v
Schackell
2001 (2) SACR 185
(SCA) at para [30] and
S
v V
supra
.
[18]
The following
dictum
of Plasket, J in
S
v T
2005 (2) SACR 318
(E) in paragraph [37], recently approved by the SCA
in
S v
Phetoe
2018 (1) SACR 593
(SCA) in paragraph [21], should be adhered to.
The State is required to prove the guilt of the accused beyond a
reasonable
doubt. This high standard is a core component of the
fundamental right to a fair trial as enshrined in the Constitution.
If the guilt is not proven beyond reasonable doubt, the accused is
entitled to an acquittal, even if there may be suspicions that
he was
indeed the perpetrator. The inverse - convictions based on
suspicion or speculation - is the hallmark of a tyrannical
system of
law.
[19]
In casu
and
ex
facie
the judgment, the trial court did not even consider the evidence of
the appellants and no proper evaluation was undertaken as explained
in the authorities quoted.
[20]
Mr Andrew Mogosi’s version must be considered with caution.
Not only is he a single witness in respect of the attack
on him, but
his version is contradicted by the third State witness, Mr Metsiso,
as well as the appellants. I am of the view
that Mr Mogosi felt
aggrieved about the remarks made to him and he called upon his son,
Itumeleng, to assist and to sort out the
troublemakers, being the
appellants and their cohorts. Itumeleng intervened and as
testified to by Mr Metsiso, he and others
left the tavern when they
heard news of the fight.
[21]
On probabilities Mr Mogosi, who on his own version tried to intervene
to stave off the attack on Itumeleng, backed off at stage,
standing
aside. It was at this moment that he was assaulted by first
appellant. This appears to be highly improbable. It
is much
more probable that he, armed with a rod – whether an iron rod
or a kierie – participated in the general fight
between two
groups of men and that he got injured in the process. Mr Masisi, the
second State witness, referred to the situation
as chaotic.
[22]
Mr Metsiso followed the group leaving the tavern and he must have
known that a fight is going to ensue. He was a willing
participant as is the case with Mr Mogosi. It is accepted that
these two persons were injured, but it is not so clear who
landed the
actual blows. As the trial court found, a group fight took
place involving several participants from each side.
The
appellants’ versions cannot be rejected as not reasonably
possibly true.
ORDERS
[23]
The appeal against both the convictions and sentences should be
upheld.
[24]
Consequently, the following orders are made:
(1) The appeals against
the convictions and sentences of both appellants are upheld.
(2) The trial court’s
orders are set aside and substituted with the following:
“
The first and
third accused are found not guilty on all charges and discharged.”
_______________
J.
P. DAFFUE, J
I
concur
__________________
M
A MATHEBULA, J
On
behalf of appellant: Mr L M THABALALA
Instructed
by:
JUSTICE
CENTRE
BLOEMFONTEIN
On
behalf of respondent: Adv M STRAUSS
Instructed
by:
Director:
Public Prosecutions
BLOEMFONTEIN