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2017
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[2017] ZAFSHC 87
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Moloi v S (A24/2017) [2017] ZAFSHC 87 (25 May 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A24/2017
In
the matter between:
MALEFETSANE
ISAAC
MOLOI
Appellant
and
THE
STATE
Respondent
CORAM:
LEKALE, J et NAIDOO, J
HEARD
ON:
15 MAY 2017
JUDGMENT
BY:
LEKALE, J
DELIVERED
ON:
25 MAY 2017
SUMMARY:
Criminal law – Magistrate’s acceptance of evidence of
single witness as satisfactory in all material respects
not shown to
be wrong on adequate grounds. Appellant’s version correctly
found by trial court to be false beyond reasonable
doubt. Conviction
on murder charge and sentence confirmed.
[1]
On 29 April 2016 the appellant, who was legally represented, was
sentenced to 20 years imprisonment after he was convicted of
murder
by the Regional Court at Welkom. He feels aggrieved by the
conviction and now approaches us on appeal against the
same with
leave of the trial court.
[2]
On returning the guilty verdict the trial court accepted, as
satisfactory in all material respects, the evidence of the single
witness who identified the appellant as the perpetrator in the murder
of his (the witness) brother. The court below found no shortcomings,
defects or contradictions in his evidence and was satisfied that the
truth had been told. The trial court, further, found
the
appellant’s version to the effect that the witness was
implicating him falsely because they belonged to rival gangs
inherently improbable and rejected it as false beyond reasonable
doubt.
[3]
On the papers and in argument before us the appellant, through Mr
Makhene, contends,
inter
alia,
that the trial court erred in accepting the evidence of the state and
in rejecting his evidence and that of his mother as not reasonably
possibly true. In his view there were many factors which could easily
have influenced the making of an honest, but mistaken identification
such as the juxtaposition of the deceased and his assailants,
visibility, the opportunity to observe and inadmissible hearsay
evidence as to the identity of the culprit.
[4]
The State, on its part, supports the conviction and submits, through
Ms Moroka
,
to,
inter
alia,
the
effect that the trial court correctly accepted the evidence of its
single witness as satisfactory in all material respects insofar
as he
had known the appellant for many years as at the fateful morning .
[5]
The State’s case, as accepted by the trial court, was based on
the evidence of a single witness, one Thabang Phillip Phakela,
who
testified to,
inter
alia
,
the effect that he was at the tavern at
Meloding
Virginia around 3:00 in the morning enjoying beer when he was alerted
to an incident involving his younger brother, the deceased,
in the
street. He followed the information and went out to the
street where he saw the appellant and two other people
fighting the
deceased. Visibility was clear as flood lights were on some
100m from the scene. He was about 14 to 15
metres from the
scene when he saw the appellant stab the deceased with a knife at the
back of his head. He knew the appellant
and had known him for
more than 12 years as at the date of the incident. When the
appellant and his companions saw him they
ran away and he gave chase
all in vain. He went back to the deceased who was following him
and eventually called an ambulance
as the deceased was injured.
The deceased confirmed that the appellant had stabbed him. He
had no problems with the
appellant before the incident. He
could not recall the appellant’s dress code on the fateful
morning and had seen him
two days before the incident. He saw
the appellant’s face. He is a member of Scorpion gang
while the appellant
belongs to Portuguese gang.
[6]
The appellant raised an alibi in his defence and maintained that he
was sleeping at his parental home at the relevant time as
he was on
parole. He, further, called his mother who confirmed, in
evidence, that as he was on parole and under house arrest
at the
relevant time he could not leave the house without the permission of
correctional officers. She, however, conceded
that she would
not have heard when the appellant left the house at night if she was
asleep. She could, in fact, not testify
as to the exact
whereabouts of the appellant the morning in question and only assumed
that he was home as he was under house arrest.
[7]
The trial court’s acceptance of oral evidence and its
conclusions thereon are presumed to be correct until and unless
they
are shown to be clearly wrong (See
S
v Francis and Others
1991 (1) SACR 198
(A)).
[8]
When evaluating evidence the trial court adopts a holistic approach
by considering available evidence in its entirety and has
regard to
probabilities. (See
S
v Guess
1976(4) SA 715(A) @ 718E-H).
[9]
The application of cautionary rules to the evidence of a single
witness in essence requires the court to satisfy itself that
despite
the defects or shortcomings or contradictions in such evidence the
truth has been told. (See
S
v Sauls and Others
1981(3)
SA 180 (A)
[10]
It was not in real dispute before the court below that visibility was
good on the part of the State’s witness at the
scene of the
crime even though the defence’s opinion was that the said
witness’ evidence in this regard was difficult
to believe.
It was, further, clear, as correctly and effectively found by the
trial court, that the state’s sole witness
and the appellant
knew each other as at the date of the crime insofar as they belonged
to rival gangs. It was, furthermore,
not in dispute that the
deceased was the said witness’ brother.
[11]
The real issue for determination by the court
a
quo
was
whether or not the State’s witness was able to identify and
recognise the deceased’s assailant regard being had
to the
lateness of the hour, his state of sobriety, juxtaposition of the
deceased and his assailant when the fatal blow was delivered
and the
distance between the witness and the assailant at the critical
moment.
[12]
In my judgment there is nothing before us to suggest that the trial
court was wrong in accepting the evidence of the state
and in
concluding that the appellant’s version was inherently
improbable and false beyond reasonable doubt. It is clear
from
the record that the state’s witness managed to answer the
relevant questions clearly and logically as correctly found
by the
court below. In this regard his version that he was not drunk
despite having consumed half of seven quarts (750ml)
of Hansa beer
was not challenged. He explained that both the appellant and
the deceased were facing him when he witnessed
the fatal blow. His
undisputed version was, further, that the deceased was shorter than
the appellant. Visibility was good
to allow him to see and
recognise all the people involved in the altercation.
[13]
It is, further, apparent
ex
facie
the record that the trial court applied caution when dealing with the
relevant evidence and when it,
inter
alia
,
found that the State’s evidence was not exaggerated. In
this regard it can be noted that the witness stated that he
did not
witness how the deceased sustained the injury on his arm and he only
learnt the identity of the assailant responsible for
the same from
the deceased. In my view if he was determined to implicate the
appellant falsely he would simply have maintained
that he also saw
the appellant inflict the relevant injury. The court below, further,
had regard to probabilities when it rejected
the appellant’s
version as false.
[14]
In my view the conviction cannot be faulted
,
as correctly submitted for the State. The same applies to the
sentence insofar as the appellant sought to assail it in the notice
of appeal. In this regard it should,
inter alia,
be noted that
he was a repeat offender who was on parole for a similar offence when
he committed the offence in the instant matter.
ORDER
[15]
In the result the appeal fails.
[16]
The conviction and sentence are confirmed.
_____________
L.J.
LEKALE, J
I
concur
___________
S.
NAIDOO, J
On
behalf of appellant: Mr JS Makhene
Instructed
by: Bloemfontein Justice Centre
Bloemfontein
On
behalf of respondent: Adv. MMM Moroka
Instructed
by: Office of Director of Public Prosecutions
Bloemfontein