Brief Summary

Criminal Law — Appeal against conviction — Public violence and attempted murder — Appellants convicted based on witness testimony — Inability of accused to explain why witnesses would falsely implicate them not sufficient for conviction — Test remains whether guilt proved beyond reasonable doubt — Appellants’ versions found to be reasonably possibly true — Appeals upheld, convictions and sentences set aside.

Comprehensive Summary

Summary of Judgment

1. Introduction

These were criminal appeals to the High Court of South Africa, Free State Division, Bloemfontein, against convictions and sentences imposed by the Regional Court sitting at Welkom. The appellants were SS Myohlakale (first appellant), KN Phatsoane (second appellant), and XL Bokoloshe (third appellant). The respondent was the State.

The matter arose from events at Beatrix Mine involving conflict between members of two trade unions, the Association of Mineworkers and Construction Union (AMCU) and the National Union of Mineworkers (NUM). The appellants had been jointly convicted of public violence (count 1). In addition, the first appellant was convicted of assault with intent to cause grievous bodily harm (count 3), and the second and third appellants were convicted of attempted murder (count 2).

After conviction, the Regional Court imposed three years’ imprisonment on count 1 for each appellant; a further five months’ imprisonment wholly and conditionally suspended for the first appellant on count 3; and a further four years’ imprisonment for the second and third appellants on count 2, ordered to run concurrently with the sentence on count 1. The appellants appealed against both conviction and sentence, with leave granted on petition to the High Court.

The central subject-matter of the dispute on appeal concerned whether the State had proved the appellants’ guilt beyond reasonable doubt in circumstances where the trial court had treated the appellants’ inability to explain why witnesses would falsely implicate them as supporting conviction, and where there were concerns about identification evidence and the treatment of the defence versions as allegedly amounting to a “bare denial”.

2. Material Facts

The court relied primarily on the evidence of two complainants who testified for the State and on the appellants’ accounts of the broader incident.

It was common cause, in general terms, that there was a tense and volatile situation at Beatrix Mine involving AMCU and NUM members, and that violence broke out in the vicinity of buses and the bus terminus area. The appellants’ evidence placed them at or near the relevant scene, and their versions accepted that there was conflict between groups, although they denied personal participation in specific assaults.

On count 2 (attempted murder), the complainant Sinothembile Madiloye, an NUM shop steward, testified that he observed AMCU members outside the NUM offices, and that AMCU members were removing people from buses. He stated that the third appellant issued instructions about taking people out of buses and directing AMCU members into buses. He described stones being thrown, and testified that the third appellant struck him with a brick on the head, after which the second appellant struck him with a pick handle. He sustained serious injury and lost consciousness.

On count 3 (assault with intent to cause grievous bodily harm), the complainant Bongani Masikisiki testified that AMCU members approached while he was standing and chatting, and that the first appellant, whom he knew from prior NUM association, struck him at the right temple with a stone.

In relation to disputed facts, the appellants each denied committing the assaults attributed to them. Their versions described arrangements for AMCU members to travel by bus to a mass meeting at a different shaft, delays in transport, and a confrontation that escalated after a car associated with an NUM leader allegedly blocked the road, preventing buses from proceeding. The appellants’ evidence further suggested that a fight erupted between union members and that efforts were made by some, including the third appellant and a mine security officer, to stop the conflict. The appellants also alleged that Madiloye grabbed a stick from Masikisiki and used it to strike AMCU members, contributing to escalation.

A further fact treated as significant by the appeal court was that Madiloye had made an inconsistent earlier statement to the police implicating persons other than the second and third appellants (including the first appellant and another person who was acquitted), and that it was common cause at trial that Madiloye suffered amnesia following the attack. The appeal court noted that there was no medical or psychiatric evidence led to explain the condition and to support certainty in identification at trial despite inconsistency and amnesia.

3. Legal Issues

The central legal questions were whether, on a proper evaluation of the evidence, the State proved each appellant’s guilt beyond reasonable doubt on the respective counts, given conflicting versions and concerns about the reliability of identification.

A key issue was whether the trial court had applied an incorrect approach by effectively reasoning that the appellants’ inability to provide an acceptable reason why State witnesses would falsely implicate them supported a finding of guilt. This raised a question about the proper allocation of evidentiary burdens in criminal trials and the correct test when an accused denies guilt.

A further issue concerned the trial court’s characterisation of the defence as a “bare denial”, and whether the defence versions were instead sufficiently detailed and reasonably possibly true, requiring acquittal under the established criminal standard.

Although sentence was also challenged on the basis that alternatives to imprisonment were not considered, the appeal court’s determination ultimately turned on the convictions themselves and whether they could stand on the evidence.

Overall, the dispute primarily concerned the application of legal standards to factual assessment, particularly the evaluation of conflicting versions, probabilities, and identification reliability, rather than the resolution of a purely abstract point of law.

4. Court’s Reasoning

The High Court approached the appeal by restating the governing principles for resolving conflicting versions in criminal proceedings. It emphasised that it is not a sufficient basis for conviction that an accused cannot explain why witnesses would falsely incriminate them. The court relied on authority indicating that such inability is not, in itself, a proper ground to reject an accused’s version or to infer guilt, and that convicting on the basis that complainants have no apparent motive to lie is a dangerous approach.

The court further restated the proper method for evaluating conflicting evidence, namely a holistic assessment of the totality of evidence, weighing the merits and demerits of the competing versions and considering probabilities. It reiterated the principle that if, after such evaluation, the accused’s version is reasonably possibly true, the accused is entitled to an acquittal even if the version appears improbable or contains some untruths. The ultimate question was framed as whether the State discharged its burden to prove guilt beyond reasonable doubt.

Applying those principles, the court held that the trial court’s reliance on the appellants’ failure to provide reasons for false implication was inconsistent with the absence of any evidentiary burden on accused persons to establish such reasons. The appeal court treated this as an incorrect approach to the standard of proof and the evaluation of defence evidence.

On the factual evaluation, the High Court disagreed with the trial court’s finding that the defence amounted to a “bare denial”. It considered that each appellant provided a detailed narrative of movements and events, including contextual background about the union meeting, the bus arrangements, the blocking of the road by a car associated with a local NUM leader, and the escalation into violence. The appeal court regarded this detail, including the explanation that the incident was triggered by the road obstruction and union conflict, as demonstrating that the defence was not merely a simple denial without content.

The court also evaluated probabilities connected to identification. It reasoned that, if the State contended it was inherently improbable for complainants to falsely incriminate individuals they knew well, it was likewise inherently improbable that persons in leadership positions (notably the third appellant, travelling in his own car, and the first appellant, previously a NUM branch chairperson), would deliberately assault persons known to them and thereby risk arrest and identification. This probability assessment was used to support the conclusion that the defence versions could not be rejected as false beyond reasonable doubt.

In respect of Madiloye’s evidence, the court attached weight to the fact of prior inconsistent statements and the common-cause amnesia. It highlighted that no expert evidence was presented to explain how Madiloye’s condition affected his memory and reliability, and it therefore questioned whether the trial court was justified in treating Madiloye as “certain and adamant” in a manner sufficient to prove identification beyond reasonable doubt, given the inconsistency and the acknowledged memory impairment.

Finally, regarding count 1 (public violence), the appeal court noted that the trial court appeared to have treated the evidence supporting counts 2 and 3 as establishing public violence, and that there was no other evidence of the appellants’ participation in public violence beyond those contested allegations. Once the evidence on counts 2 and 3 was not reliable enough to sustain convictions beyond reasonable doubt, the public violence conviction could not be sustained on the remaining record as described by the appeal court.

5. Outcome and Relief

The High Court upheld the appeals. It set aside all convictions and sentences imposed on the appellants.

No separate costs order was made in the judgment, and the operative relief was the setting aside of the convictions and sentences.

Cases Cited

Maseti v S [2013] ZASCA 160.

S v Ipeleng 1993 (2) SACR 185 (T).

S v Singh 1975 (1) SA 227 (N).

S v Guess 1976 (4) SA 715 (A).

S v Van der Meyden 1999 (2) SA 79 (W).

S v Shackell 2001 (4) SA 1 (SCA).

S v Francis 1991 (1) SACR 198 (A).

Legislation Cited

No legislation was cited in the judgment.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The High Court held that the trial court adopted an incorrect approach by effectively treating the appellants’ inability to provide reasons for false implication as supporting guilt, despite the State bearing the burden to prove guilt beyond reasonable doubt. On a holistic evaluation of the evidence, including the detailed defence versions, the probabilities associated with identification by known complainants, and the material concerns arising from inconsistent statements and amnesia affecting the attempted murder complainant, the appellants’ versions were found to be reasonably possibly true. Consequently, the State had not proved guilt beyond reasonable doubt on any of the counts, and the convictions and sentences were set aside.

LEGAL PRINCIPLES

The judgment applied the principle that an accused person’s failure to provide an explanation for why State witnesses would falsely implicate them is not, on its own, a sufficient basis to reject the accused’s evidence or sustain a conviction. A conviction cannot be grounded merely on the reasoning that complainants have no apparent motive to lie and the accused cannot suggest one; the correct inquiry remains whether the State has proved guilt beyond reasonable doubt.

In cases involving conflicting versions, the proper approach is a holistic evaluation of the totality of the evidence, weighing the competing accounts and considering probabilities and inherent improbabilities. The court reaffirmed that an accused is entitled to an acquittal where the defence version is reasonably possibly true, even if it appears improbable or contains false aspects.

The judgment further reflected the principle that while a trial court’s findings on oral evidence are generally accorded deference on appeal in the absence of misdirection, appellate intervention is justified where the trial court’s approach discloses a misdirection in the evaluation of evidence or in applying the standard of proof.

Myohlakale and Others v S (A133/2017) [2018] ZAFSHC 58 (10 May 2018)