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2018
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[2018] ZAFSHC 143
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Magadlela and Another v The State (A290/2017) [2018] ZAFSHC 143 (20 September 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates:
YES/NO
Appeal
number: A290/2017
In
the matter between:
NKOSINATHI
PHILLIP MAGADLELA
1
st
Appellant
SABATA
CLEMENT
MATHIJOA
2
nd
Appellant
and
THE
STATE
Respondent
CORAM:
MATHEBULA, J
et
CHESIWE,
J
HEARD
ON:
27 AUGUST 2018
JUDGMENT
BY:
MATHEBULA, J
DELIVERED
ON:
20
SEPTEMBER 2018
[1]
The appellants were charged together before a district magistrate
sitting in Kroonstad on
two (2) counts of housebreaking with intent
to commit a crime unknown to the state and one count of malicious
damage to property.
They were both found guilty on two (2) counts of
housebreaking with intent to commit a crime unknown to the state and
sentenced
to three (3) years imprisonment on each count. In
terms of section 103 of Act 60 of 2000 they were declared unfit to
possess
firearms. Leave to appeal against both convictions and
sentences was initially denied by the district magistrate but granted
by members of this court on petition.
[2]
The facts are briefly as follows: On 29 October 2016 at around
2H00am Paballo a security
guard at a tavern situated at 13142 Snake
Park, Maokeng, Kroonstad heard someone breaking the main gate and
subsequently opening
it. He went to stand behind the window to
investigate. He observed two (2) male persons approaching the
building. One
was wearing a balaclava and another, a bandana.
One was having in his possession a tool colloquially called a
bobbejaan spanner
and a screwdriver. They proceeded to break
the window where he was standing with these tools.
[3]
They opened the window and stood staring at each other. He
poked them and enquired
what was the purpose of their visit there.
They did not proffer any response.
[4]
He could identify the two (2) because he saw them earlier in the
day. Even though
they hid their faces, he could identify them
with the clothes they were wearing. One was wearing an
overall and the
other mission cover. The one wearing a bandana
even pulled it down at the time the window was broken. This was the
second
appellant.
[5]
He informed the owner of the tavern who came over to assist.
They left in his bakkie
to look for the two (2) and met them in the
street. The second appellant voluntarily entered their bakkie
and the first appellant
just left the scene. He was arrested by the
angry community members the next day.
[6]
Cross-examination revealed that although the lights were off in the
tavern, the television
set was on. There were also lights
outside the tavern which were on. In addition the second
appellant had injured his
leg and was limping at the time.
[7]
In the early hours of the same day Ditaba Joseph Motaung heard a
window breaking at his
house situated at 13130 Snake Park, Maokeng,
Kroonstad. His premises is only three (3) houses from the
tavern referred to
in the preceding paragraphs. He went to
investigate and opened the door leaving the steel burglar proof door
locked. He observed
two (2) men running away and he contacted
the police for assistance. Typically they did not arrive citing
lack of resources.
[9]
As a member of the Community Policing Forum he organized patrollers
to look for the first
appellant. They confronted and
apprehended him that for the crimes he had committed with his friend
(referring to the second
appellant). They paraded him infront
of the community members who were extremely agitated and wanted to
attack him.
He was saved from their wrath. He was shown
the place he had broken into.
[10]
He was able to recognize them because they were known to him.
It was also not the first time
they tried to gain forced entry into
his house. The first appellant was wearing a brown “hoody”
and “yellow machine
cover”. The second appellant was in a
full brown overall. They were in possession of two (2) big pliers
usually used to cut
big iron rods and pipes. He could also recognize
their body features.
[11]
Under cross-examination he conceded that there was a marked
difference between the so-called bobbejaan
spanner and pliers. He
also did not see any screwdriver(s) in their possession. The whole
incident happened in a short time. At
the time he went to investigate
he was not wearing his spectacles. On the issue of the adequacy of
the lighting he relied on the
floodlight that was positioned about
250-300 meters away from his house.
[12]
The evidence of both appellants in the trial court boiled down to
bare denial. They testified that
they were mistakenly identified as
they were nowhere near the scenes of crime. They were simply being
falsely implicated in the
matter that they had no knowledge about it.
[13]
The appeal turns on the issue of identification. It is accepted that
such evidence must be approached
with caution particularly where
there is a single witness because of the inherent dangers. The key
aspect is that the observation
of the person identifying another must
not only be credible but reliable as well. This approach laid in the
often quoted
S
v Mthethwa
[1]
has been followed in our courts for decades and it is still good law.
[14]
In evaluating the evidence before him, the district magistrate
remarked that the complainants identified
the applicants because they
knew them. He also referred to their clothing and was satisfied that
indeed the appellants were the
same people who attempted to break
into the premises of the complainants. He alluded to the fact that
the complainant Victor Kganuoe
met the appellants later that morning
in the street and this was overwhelmingly convincing that they were
the perpetrators of the
offense that early morning of 29 October
2017. He concluded by saying the following:
“
In this circumstances with
this manner of identification with
[2]
clothing
and the face of accused nr. 2 at both crime scenes and accused nr. 1
later in the street it is too much to say it is a
coincidence and
that they the 2 witnesses try to frame these two people.”
[15]
According to the witnesses the two (2) people had their faces masked
with a balaclava and bandana respectively.
None gave a detailed
account or description relating to the appellants’ voice, face,
build or gait. The witness Victor Kganuoe
stated the fact that the
second appellant was limping because he had sustained an injury on
his leg. It remains unexplained
which one was affected by the
injury. It was not
tested
to any significant extent the issue around the lighting and
visibility. I find it insufficient that the light provided by
a
television set and a floodlight which is far away can be deemed to be
adequate for one to make a proper observation. Similarly,
there is no
evidence to suggest that the complainants had sufficient time to
observe and conclude that the
appellants
were
their assailants on the day.
[16]
This leaves the state case with one aspect namely clothing. The
description about the clothing of the
appellants is very generic.
There is nothing distinctly unique to their clothing which can lead
one to conclude that it was them.
These items could have been worn by
any person in the vicinity on that day. The description given by
Paballo on clothing is that
”one of them was wearing an
overall, the other one was wearing a mission cover, they were just
faced simple”.
[3]
it
is unclear as to who specifically was he referring to.
[17]
The description provided by the witness Ditaba Motaung was that
“accused number 1 was wearing
a coat that has hoody it was
brown in colour and he was wearing a yellow machine cover. Accused
number 2 was wearing a full overall
that is brown in colour”
[4]
.
Both these descriptions are unhelpful. It is therefore my considered
opinion that the state did not prove its case beyond
reasonable
doubt. The learned district magistrate committed a misdirection in
convicting the appellants based on the evidence discussed
above.
[18]
For all these reasons, I make the following order:-
18.1
The appeal is allowed and the convictions and sentences are set
aside.
MA
MATHEBULA, J
I
concur
S
CHESIWE, J
On
behalf of appellant: Adv.
P. Van der Merwe
Instructed
by:
Justice Centre
Bloemfontein
On
behalf of respondent: Adv. M. M. Moroka
Instructed
by:
Director of Public Prosecutions
Bloemfontein
[1]
1972(3) SA 766 (AD) at 768 A-C
[2]
Page 68 line 8 -12 of the Record.
[3]
Page 5 line 18 to 20 of the Record
[4]
Page 32 line 13 to 16 of the Record