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[2019] ZAFSHC 257
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Mhlongo and Another v S (A273/2018) [2019] ZAFSHC 257 (19 September 2019)
IN THE HIGH COURT OF
SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No: A273/2018
In
the matter between:
MANDLA
MHLONGO
1
st
Appellant
OUPA
SHADRACK
SITHOLE
2
nd
Appellant
And
THE
STATE
Respondent
CORAM:
CHESIWE, J
et
MOENG,
AJ
JUDGMENT
BY:
MOENG, AJ
HEARD
ON:
16 SEPTEMBER 2019
DELIVERED
ON:
19 SEPTEMBER 2019
[1]
The appellants, together with two other accused persons, were
convicted in the Welkom Regional Court on three counts of robbery
with aggravating circumstances, one count of contravention of section
3 (possession of an unlicensed firearm), and another count
of
contravention of section 90 (unlawful possession of ammunition) of
the Firearms Control Act 60 0f 2000.
[2]
They were sentenced to 15 years imprisonment on each of the robbery
counts, 15 years imprisonment on the possession of an unlicensed
firearm count and three years’ imprisonment on the unlawful
possession of ammunition count. The trial court ordered the sentences
imposed on the possession of a firearm and ammunition counts to run
concurrent with the sentences imposed on the robbery counts.
An
effective term of 45 years imprisonment was therefore imposed on each
accused person.
[3]
Both appellants petitioned the Judge President of this Court after
the trial court refused their applications for leave to appeal
their
convictions and sentences. The first appellant’s petition
against conviction was refused and he was granted leave to
appeal his
sentence only, whereas the second appellant was granted leave to
appeal both his conviction and sentence.
[4]
The grounds of appeal pertaining to the second appellant’s
conviction are in a nutshell that the trial court erred in
concluding
that the State witnesses proved his identity beyond reasonable doubt.
In regard to sentence, both appellants submitted
that an effective
term of 45 years imprisonment is strikingly inappropriate as it is
disproportionate to the facts in aggravation
and mitigation.
[5]
I will for practical considerations first deal with the second
appellants appeal against conviction and sentence, and thereafter
deal with the first appellant's appeal against his sentence.
[6]
The second appellant’s appeal centres on the issue of his
identity. The evidence presented by the State during the trial
suggested that the second appellant, in the company of other
perpetrators, robbed the complainants as alleged in the charge sheet.
The robbery was not in dispute but the second appellant raised an
alibi and denied that he was on the scene of the crime.
[7]
The alibi therefore called into question the State’s evidence
concerning his identity. An alibi is not a kind of special
defence
which has to be proved by the defence (See
R v Biya
1952 (4) SA 514
(AD). The State must prove that the accused
committed the crime and it must therefore disprove the alibi. The
correct approach
is to consider the alibi in the light of the
totality of the evidence. As was stated in
R v Biya
supra, '. . . if
on all the evidence
there is a reasonable
possibility that this alibi evidence is true it means that there is
the same possibility that he has not committed
the crime'.
[8]
In
R v Masemang
1950 (2) SA 488
(A) 493 Van den
Heever JA relied on his own experience in stating that even an honest
witness quite often makes a positive identification
of the wrong
person. The Court should be alive to the inherent and natural desire
of victims of crime to have retribution and in
so doing, may identify
the wrong person.
[9]
In
R v Shekelele
1953 (1) SA 636
(T) at 638G
Dowling J said that ‘an acquaintance with the history of
criminal trials revealed that gross injustices are not
infrequently
done through honest but mistaken identifications. People often
resemble each other. Strangers are sometimes mistaken
for old
acquaintances. In all cases that turn on identification the greatest
care should be taken to test the evidence’.
The judge believed
that a bald assertion that the crime was committed by the accused is
insufficient.
[10]
Most recently, Cameron JA held in
Charzen and Another v S
2006
(2) SACR 143
(SCA) that:
“
But, as our
courts have emphasised again and again, in matters of identification
honesty and sincerity and subjective assurance
are simply not enough.
There must in addition be certainty beyond reasonable doubt that the
identification is reliable, and it
is generally recognised in this
regard that evidence of identification based upon a witness’s
recollection of a person’s
appearance can be ‘dangerously
unreliable’, and must be approached with caution. This case
illustrates the
risks.”
[11]
Mr Van Rensburg, counsel for the second appellant painstakingly
highlighted each and every conceivable contradiction and discrepancy
in the evidence of the three State witnesses in his heads of
argument. He maintained during the appeal deliberations that these
discrepancies were fatal to the State’s case regarding the
second appellant’s identity. Mr Bontes, counsel for the
respondent, acknowledged that there were contradictions but submitted
that these contradictions, viewed in the totality of the
evidence,
were not material.
[12]
The evidence the State relied on to prove the guilt of the second
appellant during the trial was the following: On the day
of the
incident, the first State witness, Hester Hanekom, was from town on
her way to their farm, accompanied by the second state
witness Ester
Fourie and a minor child. The third state witness, Adri Conradie, was
also on the farm accompanied by another child
who was asleep in the
bedroom. Shortly after their arrival on the farm, three men accosted
them in the house.
[13]
The second appellant was identified as one of the men. He was,
according to Hanekom, the one who pushed Fourie into the kitchen.
Hanekom testified that the second appellant also threatened to kill
the child who was crying and the dogs that were barking. She
says the
second appellant is the one who took Conradie into the bedroom to
open the safe and brought the child who had been sleeping
in the
bedroom to her. She described him as the one who was light in
complexion. It is common cause that she also pointed him out
at the
identity parade.
[14]
Contrary to this evidence, she testified during cross examination
that the person who pushed Fourie into the kitchen, who threatened
to
kill the child and who brought the child from the bedroom, wore a
face mask or so called balaclava and he was dark in complexion.
It
was not in dispute that the second appellant was light in complexion.
Hanekom testified that she initially thought that the
second
appellant was one of their farmworkers whom he resembled.
[15]
Fourie in turn testified that she has poor eyesight and she cannot
see properly without her glasses. Her glasses fell off her
face
during the robbery. The only description she could give of the second
appellant was that he had “evil eyes”. She
indicated in
examination in chief that she will not be able to point the robbers
out, but despite this, she pointed the second
appellant out. After
having taken more than 20 minutes to observe the participants in the
identity parade, she pointed two innocent
persons out. It was
striking that she said “na die voorval het ons bespiegel…
ek weet nie ons sal maar wag vir die
DNA”. They were clearly
uncertain about the identity of the perpetrators.
[16]
Contrary to what Hanekom said, Fourie stated that the second
appellant was the one who was dressed in police uniform and that
he
did not accompany Conradie to the safe but kept her guard. It is at
that stage that she realised that he had “evil eyes”.
Conradie in turn testified that the second appellant accompanied her
to the safe contrary to what Fourie said. It was not clear
whether
the second appellant or accused 4 resembled one of the farm workers.
[17]
Apart from these contradictions, there were a number of other
contradictions in relation to the other perpetrators which had
a
bearing on the identification of the second appellant which I do not
deem necessary to highlight in this judgment.
[18]
I can similarly not ignore the fact that the identification of the
second appellant was made while the witnesses were extremely
traumatised. Hanekom testified that “…Dit was so
deurmekaar en ons was bang, want hulle het heeltyd gese hulle gaan
ons doodmaak”. Innocent persons were pointed out at the
identity parade by all three witnesses. Hanekom intimated that the
one innocent person demanded to search the house. She however later
admitted that she made a mistake.
[19]
The witnesses were clearly confused and this points to the
unreliability of their observations. This is reflected in the words
of Hanekom “onthou net, dit is, dit is deurmekaar in so ‘n
situasie. Jy sien mense. Die volgende oomblik het een ‘n
balaklava op. dan is daar niks. Dan kom daar ander in”
[20]
It should be noted that unlike the other two accused persons who were
in the get-away car and the one who was arrested close
to the stolen
items, there was no other admissible evidence against the second
appellant, except the say so of the three witnesses.
The fact that
the second appellant was pointed out by his co accused was disputed
during the trial. The only feature which the
second appellant was
identified with was his light complexion. This is admittedly not a
reliable method of identification. The
second appellant in turn gave
a credible account of his whereabouts when the robbery took place and
his version was corroborated
by two other witnesses.
[21]
Viewed in the totality of the evidence, I am satisfied that the
identification of the second appellant was not reliable. All
the
discrepancies in the State case, in my view, ought to have created
doubt in the mind of the magistrate. Such doubt should have
been
exercised in his favour.
[22]
I will now deal with the appeal on sentence of the first appellant.
It is common cause that the offences in all the counts
flow from the
same criminal conduct. Count one to three relates to the robbery of
three complainants on the same day and during
the same incident. We
are bound to take the cumulative effect of the sentences into
account.
What
has to be prevented is for the appellant to undergo an unjustifiably
severe sentence for the same criminal conduct.
[23]
Ms Kruger submitted that considering the personal circumstances of
the appellant, an effective term of 25 years imprisonment
ought to
have been imposed. Mr Bontes, counsel for the respondent contended
that the magistrate did not misdirect himself as he
found no
substantial and compelling circumstances existing. He however
conceded that we may interfere in as far as the cumulative
effect of
the sentences is concerned. He suggested an effective term of 25
years imprisonment.
[24]
After having considered the above, I am of the view that there were
indeed no substantial and compelling circumstances that
warranted a
deviation from the prescribed minimum sentences. I am however of the
view that an effective term of 45 years imprisonment
is shockingly
disproportionate to the crimes. The seriousness of the crimes does
however still warrant a long term of imprisonment
under the
circumstances.
[25]
In the result I make the following order:
a. The first appellant’s appeal
against sentence is upheld to the extent indicated below;
i. The sentences imposed on count,
three, four and five are to run concurrent with the sentences imposed
on count one and two.
ii. A further five years imprisonment
imposed on count two is to run concurrent with the sentence imposed
on count one;
iii. An effective term of 25 years
imprisonment is therefore imposed.
iv. The sentence is antedated to 30
March 2017.
b. The second appellant’s appeal
against his conviction and sentence is upheld;
c. The second appellant’s
conviction and sentence is set aside.
_____________________
L.B.J. MOENG, AJ
I
concur.
_____________________
S. CHESIWE, J
On
behalf of the 1
st
appellant: Ms S Kruger
Bloemfontein
Justice Centre BLOEMFONTEIN
On
behalf of the 2
nd
appellant: Adv. TB Van Rensburg
Jacques
Groenewald Attorneys KROONSTAD
On
behalf of the respondent: Adv. DW Bontes
Director
of Public Prosecutions: Free State
BLOEMFONTEIN.