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[2017] ZAGPPHC 840
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Maswanganye v S (A696/15) [2017] ZAGPPHC 840 (17 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
17/3/2017
CASE
NO: A696/15
NOT
REPOTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
TINYIKO
VINCENT
MASWANGANYE
Appellant
And
THE
STATE
Respondent
JUDGMENT
Tuchten
J
:
1.
The appellant was convicted in a regional court of assault with
intent to do grievous bodily harm and robbery in relation to
a
robbery committed at 563 Block M Soshanguve on 17 May 2010 and of
attempted robbery committed at 1105 Block L Soshanguve on 30
July
2010. The complainants in relation to the earlier crime were Mr
Chretien and Mrs Priscilla Baloyi. The complainant in relation
to the
later crime was Mr Morake Sydney Malope. The appellant was also
convicted of the unlawful possession of a firearm on the
scene of the
later crime. The appellant was one of two men charged. He pleaded not
guilty but was convicted as I have said and
sentenced to an effective
20 years imprisonment. Leave to appeal was granted against the
convictions only. The appellant was admitted
to bail pending appeal.
2.
It was not in dispute that the complainants on the two counts were
robbed and that a firearm was recovered as alleged. The defence
related to the identify of the robber or robbers. The appellant's
version was that he was incapacitated as a result of a gunshot
wound
he had sustained to his left lower leg on 29 January 2010 and was
hospitalised at the Pretoria Academic Hospital the following
day.
During the appellant's case the records of the hospital were handed
in by consent as to their accuracy.
3.
The appellant was diagnosed with an open comminuted fracture of the
left tibia. The bullet passed right through the leg; there
was both
an entry and an exit wound.
4.
The contents of the hospital records are important because the
appellant's defence was that he could not possibly have been the
robber on the occasion with which the earlier crimes were committed
because when the robberies were committed, the appellant was
still
incapacitated by the injury to his leg.
5.
In regard to the earlier crime, the appellant gave a plea explanation
that on 17 May 2010, he was not in a position to commit
robbery as he
was discharged from hospital and walked with crutches and had a pop
(plaster of paris cast) on his leg. In relation
to the later crime,
he said that although he was walking in the streets near the place of
the incident he had not been the perpetrator
but had seen people
fleeing the scene.
6.
Mr and Mrs Baloyi, the victims of the earlier crime, were severely
traumatised by the incident. Their home was invaded by three
men, all
of whom were armed with firearms. Both of them were shot. Mrs Baloyi
was nine months pregnant at the time. Mercifully,
and in no way
thanks to the robbers, Mrs Baloyi gave birth to her baby.
7.
Both Mr and Mrs Baloyi testified and identified the appellant as one
of the men who robbed them. The house was well lit and they
were able
to observe the features of the appellant. Mr Baloyi testified that
the appellant had held a gun to Mrs Baloyi's head
while the robbers
demanded that Mr Baloyi give them the key to his BMW motor car. He
ultimately did so. The appellant's features
were not covered and the
whole incident took some 15 to 20 minutes.
8.
After the appellant was apprehended, Mr and Mrs Baloyi were called to
attend an identity parade. They identified the appellant
at the
parade. But the evidence of the identity parade was found to be
inadmissible because of the shortcomings of the procedures
which
attended the parade. I mention this not because the evidence of the
parade may be used to reinforce the state's case but
because it was
argued on behalf of the appellant that the exclusion of the identity
parade evidence should cast doubt on the evidence
of Mr and Mrs
Baloyi. I do not agree with this submission. The defective parade
procedures have no bearing on the credibility or
reliability of Mr
and Mrs Baloyi.
9.
Counsel for the appellant submits that although credible, Mr and Mrs
Baloyi are not reliable witnesses. Their evidence must be
evaluated
as part of the totality of evidence which was before the court.
10.
A useful and lucid analysis of the manner in which evidence should be
dealt with in a criminal trial was presented in
S v Van Der Meyden
1999 2 SA 79
W, where they court said the following at 80-81:
The onus of proof in a
criminal case is discharged by the State if the evidence establishes
the guilt of the accused beyond reasonable
doubt. The corollary is
that he is entitled to be acquitted if it is reasonably possible that
he might be innocent (see, for example,
R v Difford
1937 AD
370
especially at 373, 383). These are not separate and independent
tests, but the expression of the same test when viewed from opposite
perspectives. In order to convict, the evidence must establish the
guilt of the accused beyond reasonable doubt, which will be
so only
if there is at the same time no reasonable possibility that an
innocent explanation which has been put forward might be
true. The
two are inseparable, each being the logical corollary of the other.
In whichever form the test is expressed, it must
be satisfied upon a
consideration of all the evidence. A court does not look at the
evidence implicating the accused in isolation
in order to determine
whether there is proof beyond reasonable doubt, and so too does it
not look at the exculpatory evidence in
isolation in order to
determine whether it is reasonably possible that it might be true. In
R v Hlongwane
1959 3 SA 337
A, after pointing out that an
accused must be acquitted if an alibi might reasonably be true,
Holmes AJA said the following at
340H-341B, which applies equally to
any other defence which might present itself:
'But it is important to
bear in mind that in applying this test, the alibi does not have to
be considered in isolation....The correct
approach is to consider the
alibi in the light of the totality of the evidence in the case, and
the Court's impressions of the
witnesses.'
Counsel for the accused
referred us to three cases which are frequently cited in this Court
in elaboration upon that test. In
S v Kubeka
1982 (1) SA 534
(W) Slomowitz AJ said the following at 537F-H:
'Whether I subjectively
disbelieve (the accused) is not the test. I need not even reject the
State case in order to acquit him.
I am bound to acquit him if there
exists a reasonable possibility that his evidence may be true.'
That passage does no
more, in effect, than to reiterate that the conclusion of a criminal
court is not to be reached merely by choosing
what it considers to be
the better of two competing versions
(Hlongwane's
case supra
at 341A;
S v Singh
1975 (1) SA 227
(N)). Purely as a matter of
logic, the prosecution evidence does not need to be rejected in order
to conclude that there is a reasonable
possibility that the accused
might be innocent. But what is required in order to reach that
conclusion is at least the equivalent
possibility that the
incriminating evidence might not be true. Evidence which incriminates
the accused, and evidence which exculpates
him, cannot both be true -
there is not even a possibility that both might be true - the one is
possibly true only if there is
an equivalent possibility that the
other is untrue. There will be cases where the State evidence is so
convincing and conclusive
as to exclude the reasonable possibility
that the accused might be innocent, no matter that his evidence might
suggest the contrary
when viewed in isolation.
11.
The learned judge went on to say at 82C-E:
The proper test is that
an accused is bound to be convicted if the evidence establishes his
guilt beyond reasonable doubt, and the
logical corollary is that he
must be acquitted if it is reasonably possible that he might be
innocent. The process of reasoning
which is appropriate to the
application of that test in any particular case will depend on the
nature of the evidence which the
court has before it. What must be
borne in mind, however, is that the conclusion which is reached
(whether it be to convict or
to acquit) must account for all the
evidence. Some of the evidence might be found to be false; some of it
might be found to be
unreliable; and some of it might be found to be
only possibly false or unreliable; but none of it may simply be
ignored.
12.
These passages have been cited with approval by the Supreme
Court of Appeal. See
S v Mdlongwa
2010 2 SACR 419
SCA para 11;
Director of Public Prosecutions, Gauteng v Pistorius
2016 2 SA
317
SCA para 34.
13.
Counsel for the appellant criticised the evidence of Mr Baloyi
because in a follow up police statement taken on 1 June 2010 the
following was recorded:
I CAN'T IDENTIFY the
three suspects if I see them again.
14.
Mr Baloyi testified that he had told the police officer who wrote
down his statement: "I CAN identify the three suspects
if I see
them again" but because of the way the statement was written out
he did not notice that his words had been wrongly
recorded. The
statement is before us and in my view, because of the way the words
in question were written, Mr Baloyi could certainly
have made the
mistake to which he testified. As the regional magistrate found, the
fact that an identity parade was arranged at
which Mr Baloyi was
asked to identify the perpetrators is a strong indication that Mr
Baloyi had indeed told the police that he
could identify the robbers.
The regional magistrate found Mr and Mrs Baloyi to be good witnesses
and accepted their testimony.
In my view he was right to do so.
15.
The evidence relating to the later crime was that Mr Malope was
leaving home in his car in his garage at home at 05h40. It was
"a
little bit dark." He got out of his car, leaving the car door
open and taking the keys with him, and went to close
the garage door
and the entrance gate. On his way back to his car, he was approached
by two men. One of them was armed with a firearm
and fired a shot and
Mr Malope decided to try to overpower this man. He seized him and
they fell to the ground. A struggle for
possession of the firearm
ensued. The second man ran away. Mr Malope's daughter, Mahiti, came
from inside the house to help him.
They then dragged the man into the
yard. Members of the community were then also on the scene, as was Mr
Malope's son, Robbie.
The assailant was disarmed and detained. The
weapon was handed over to the police when they arrived on the scene
as was the assailant
who by that stage had been so severely assaulted
by members of the community that he had to be hospitalised. After the
assailant
had been subdued, Mr Malope left to take children to
school.
16.
Both Mr Malope and Miss Mahiti Malope, who also gave evidence,
identified the assailant as the appellant. The light was improving
throughout the incident and enabled them to make a reliable
identification. The version of the appellant was that he was simply
dragged into Mr Malope's yard although he had nothing to do with the
attempted robbery.
17.
In view of the fact that the assailant was effectively in the custody
of Mr Malope and then his children and members of the
community until
he was handed over to the police, there is simply no room for the
version of the appellant which, if it were to
be reasonably possibly
true, must included the possibility that the true assailant somehow
escaped and was replaced by the entirely
innocent appellant.
18.
The appellant's version becomes preposterous when it is analysed in
the light of the hospital records and his evidence. The
hospital
records show that he was discharged from hospital on 5 February 2010.
After a follow up examination on 17 March 2010 the
appellant was
walking on a single crutch.
19.
However, the appellant's evidence was that at the time of the earlier
crime, he was walking with
two
crutches and at the time of the
later crime he was "just limping". He said he heard a shot
being fired and tried to "walk
faster" from the scene but
could not run due to the effect of the gunshot injury to his leg. He
was assaulted, he said, lost
consciousness.
20.
A further piece of evidence is that of the police witnesses who
testified that the co-accused who featured as accused no. 2
in the
court below pointed out the house where the key to Mr Baloyi's BMW
motor car which had been hidden on a roof. The regional
magistrate
found the police witnesses to be credible in this regard and once
again there is no reason to differ from that finding.
This evidence,
even if not directly admissible against the appellant, reinforces the
finding that the Baloyis were reliable witnesses
because they
identified accused no. 2 as one of the criminals. A further factor
which reinforces the finding that the evidence
of the Baloyis was
reliable was that they were both able to give detailed accounts of
each other's movements during their ordeal.
And finally, the
appellant has been shown to have relied on a false alibi and falsely
denied his guilt in relation to the later
crimes. This too reduces
the risk that the appellant was wrongly identified by the Baloyis.
21.
And finally, the regional magistrate has not been shown to have
misdirected himself in his assessment of the evidence. The powers
of
an appeal court in a criminal appeal are circumscribed. Where it
cannot be shown that the evaluation of the evidence by the
trial
court is flawed or tainted by misdirection, an appellate court, which
does not have the benefit of seeing and hearing the
witnesses and of
being steeped in the atmosphere of the trial, will be slow to
interfere with the findings of the trial court.
R v Dhlumayo
1948
2 SA 677
A.
22.
In my view the totality of the evidence against the appellant is
overwhelming. There is simply no room for a finding that the
appellant's denials of complicity in the crimes are reasonably
possibly true. It follows that the appeal cannot succeed.
23.
I make the following order:
The
appeal against the convictions is dismissed and the convictions and
sentences imposed upon the appellant are confirmed.
NB
Tuchten
Judge
of the High Court
7
March 2017
I
agree
N
Janse van Nieuwenhuizen
Judge
of the High Court
13
March 2017