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[2016] ZAGPPHC 235
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Thobejane v S (A545/2015) [2016] ZAGPPHC 235 (26 February 2016)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE NO: A545/2015
DATE: 26 FEBRUARY 2016
In the matter between
PRINCE BUDA
THOBEJANE
........................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT
VAN OOSTEN J:
[1] The appellant was arraigned for
trial, as accused 4, on the following four charges: murder (count 1);
robbery with aggravating
circumstances (count 2) and unlawful
possession of unknown firearms and an unknown number of rounds of
ammunition (counts 3 and
4). He pleaded not guilty to all charges,
but at the conclusion of the trial, convicted by Ismail J on all
counts as charged. He
was sentenced to life imprisonment on count 1,
15 years’ imprisonment on count 2, and 5 years’ and 1
year imprisonment
on counts 4 and 5 respectively. The first and third
accused were likewise convicted on all counts and the same sentences
as in
the case of the appellant imposed. Accused 2 was convicted on
counts 1 and 2 and sentenced to life imprisonment and 15 years’
imprisonment respectively. Some measure of concurrency was ordered
which for present purposes I need not repeat. The appeal before
this
court is against conviction and sentence and is with leave of the
Supreme Court of Appeal.
[2] The charges arose from an incident
that occurred on 23 December 2006, at Tjetje Bar Lounge, in Martisi,
in the district of Rietfontein.
The deceased was the owner of the
Bar, which consisted of a bar lounge facility and a shop housed in
one building. In the early
hours of the morning the deceased was shot
outside the building and a till machine, which was in use inside the
building, was unplugged
and removed. The deceased died instantly on
the scene from a single gunshot wound of the neck.
[3] The crucial issue before the court
a quo and on appeal concerns the identity of the perpetrators of the
offences. In this regard
the evidence of three of the five state
witnesses, who were called to testify at the trial, is pertinent. The
first is Mr Mohlala,
the son of the deceased, who was present at the
scene of the incident but unable to identify any of the perpetrators.
The second
witness is Ms Makgatla, who was employed at Tjetji and
serving customers at the bar when the incident occurred. In her
evidence
she described the events and she identified the appellant as
one of the perpetrators albeit only during her evidence in court. The
third witness, Mr Shongwe, was an accomplice and he was duly warned
in terms of the relevant provisions of the Criminal Procedure
Act by
the learned judge. Shongwe implicated the appellant as well as his
co-accused in the commission of the offences. The appellant
and his
co¬accused testified and they all relied on an alibi defence.
[4] The learned judge a quo summarised
and reviewed the circumstances in which Makgatla’s
identification of the appellant
was made, which he accepted as both
honest and reliable, in view of corroboration found to have existed
in the version of Shongwe.
The ‘few differences' that their
evidence revealed, the learned judge reasoned, were not material and
did not impact on their
credibility. The alibi defences of the
appellant and his co-accused, on the other hand, were rejected as
false. For the reasons
that follow I am unable to agree with the
court a quo that the appellant’s identity was proved beyond all
reasonable doubt.
[5] Makgatla’s identification of
the appellant was substantially based on one of his upper front teeth
having a gold filling,
which she testified was pertinently
perceptible.
At the trial, more than 4 years after
the incident, the appellant appeared with two front teeth missing and
of course no gold filling.
He testified that he had lost his front
teeth in accident in 2005. Whether his front teeth were still intact
at the time of the
incident is crucial to Makgatla’s
identification of the appellant. Shongwe’s evidence on this
aspect is significant
and cannot be ignored. He testified that the
appellant was well known to him from early stages when they attended
school together
and later when they stayed in the same area. In
cross-examination Shongwe was asked to look at the appellant, with a
specific reference
to the gap in his teeth, and he was asked whether
he knew the appellant ‘like that’. Shongwe’s
immediate response
was ‘Even now when he is having a gap I know
him by that’. He was then specifically referred to the date of
the incident
in respect of which he initially vaguely sought to
pretend that he had not taken notice of the teeth, but immediately
followed
that up in conceding that some teeth in fact were missing,
albeit stating that he was not sure - how many. His evidence
accordingly
does not corroborate the version of Makgatla on this
aspect.
[6] The only further identifying
feature mentioned by Makgatla was that the appellant was wearing a
black Lacoste t-shirt. No attempt
was made to obtain corroboration on
this aspect from Shongwe. I should add in passing that the learned
judge a quo incorrectly
in his judgment referred to Makgatla also
having described a woollen cap the appellant was wearing.
[7] But it goes further: Makgatla based
her ability to recall the identifying facial and general appearance
features of the appellant
on the fact that he had arrived at the bar
where she was on duty, early in the morning from around 10h00, and
that for 18 hours
thereafter, until the occurrence of the incident,
she had served him intermittently with soft drinks. Shongwe directly
contradicted
her on this point: he testified that he had been with
the appellant and his co-accused earlier that day and that they had
only
arrived at the scene between 21h00 and 22h00.
[8] On the evidence as whole I am not
satisfied that the identity of appellant was proved beyond all
reasonable doubt. Makgatla,
who was the main identifying witness in
regard to the appellant, was not asked to attend an identification
parade. The circumstances
in which she made the identification, if
Shongwe is to be believed concerning
the time of their arrival, were less than optimal. There were hordes
of people in and around
the building and the scene was volatile and
moving. She was behind the counter in the bar section of the building
while the deceased
and this assailants were outside the building, at
the spot depicted on the photograph of the scene which,
significantly, is some
distance away from the building. Her evidence
concerning the vantage points from which she made observations is
seemingly unsatisfactory
and in certain respects, plainly improbable.
At some point she indicated that she was outside the building
‘guarding the
deceased’ which she later retracted. When
she realised that danger was looming she hastened to the pool table
area where
she hid lying flat on her stomach between pool tables. In
that position she persistently maintained that she was still able to
observe the events as they occurred outside. I am hesitant to make
any positive findings concerning the events based on her evidence.
The sequence of events described by her is difficult to follow. On
material aspects her evidence is at variance with the events
described by Mohlala and Shongwe. For all these reasons I am not
inclined to afford sufficient weight and credence to her version.
[9] A person featuring prominently in
the evidence of Mokgatla and Mohlala is a one Mahlamola. A summary of
Mohlala’s testimony
is the following. ‘Some male persons’
inside the bar lounge ‘were fighting amongst themselves over a
woman’.
The deceased was called and promptly arrived on the
scene. Mahlamola arrived in the lounge, said ‘the fight was
against him’
and took Mohlala’s cell phone. He requested
the deceased to follow him outside for him to explain why he had
taken the cell
phone. As they were talking outside two men arrived,
they ‘sandwiched’ the deceased, Mahlamola retreated and a
shot
was fired. Mohlala fled the scene.
[10] Mahlamola, as is apparent from his
version, was a vital witness but he was not called to testify and no
explanation for his
absence was tendered. A further insurmountable
difficulty comes to the fore: Makgatla’s version of the events
prior to the
shooting, differ materially from that of Mohlala.
According to Makgatla it was between 03h00 and 03h30 when the
incident occurred.
A fight ensued between ‘a young man’
and ‘a young girl’. He was pulling her and she was
holding onto the
burglar door frame which caused damage to it.
Makgatla reprimanded the young man and he promised to have the
burglar frame repaired.
An argument then ensued between the employees
pertaining to their safety. The deceased arrived. She explained to
him what had happened.
The deceased was talking to Mahlamola outside
the building. Two men entered and ‘they arrived’ at the
place where the
deceased and Mahlamola were standing. She heard a
shot being fired. In cross- examination she said she saw both men,
who later
entered the lounge, shooting at the deceased. She proceeded
to the cafe section where it was dark and hid lying on the floor
between
two pool tables next to a window ‘straight from up
there down to the bottom’. I interpose to remark that her
evidence
concerning the size of the window, from top to bottom, which
enabled her to see the events happening outside, is in stark contrast
with what is depicted on the photograph of the building which was
taken on the day of the incident. With reference to the photograph,
she pointed the particular window out as being the one behind a
pillar in front of the building. It was correctly put to her in
cross-examination that the window was at least a metre above ground
level and in any event much smaller as she had indicated. In
addition
there appears to be veranda in front of the entrance to the building
as well as possibly obscuring the view from that
particular window.
Faced with this difficulty when the photograph was shown to her she
even went as far as to state that the ‘windows
were taller than
what they are today1. I am satisfied that Makgatla, had she been
lying on the floor between two pool tables, at
this window, would not
have been able to see the events occurring on the outside of the
building. Her evidence on this aspect,
accordingly, must be rejected.
[11] The further events she described
are the following: One ‘of these boys’ came into the
store, picked up a crate,
‘fired some shots’ and ordered
all to lie down. The other person whom she said was the appellant,
was standing outside
and ‘was shooting from the outside’.
She realised it was the appellant because she saw the legs and the
body of the
person who was firing the shots, but added that she could
not see his face. They both were in possession of firearms. At some
stage
she said that the appellant was handling the crate and that he
was shooting. One of the patrons refused to lie down and the intruder
hit him on the head with the firearm. He then proceeded to the till
and in vain tried to open it. He unplugged the till, removed
it and
handed it to another man whom she stated was the appellant. The
‘other man’
later returned with a bucket which he
filled with ‘strong liquor’ and left. He ran to a white
car that looked like a
Venture, which had In the meanwhile showed up,
got into it and the vehicle drove off.
[12] Lastly, the evidence of Shongwe.
In my view he was an unsatisfactory witness. In summary he denied
that he was friends with
any of the accused, although he knew each
one of them. For some unknown reason he lent his vehicle, a charcoal
coloured Ford Laser,
to accused 2, who went on a mission of his own.
Upon his return they then planned a robbery in his presence and he
decided to accompany
them in his vehicle, without becoming involved.
He testified that the appellant was given a firearm by accused 1.
Having arrived
at the scene the appellant and the others went to the
shop. He stayed behind in the vehicle at or near a bush but made
certain
that he was able to see what was happening at the building.
Accused 1 and 3 entered the shop and the appellant started firing
random
shots and chasing people around insulting them. Accused 3
returned to the vehicle in which he was waiting and told him that he
had shot ‘somebody in there and the person is dead’.
Accused 3 was carrying a bucket and container with cigarettes.
Accused 1 and the appellant arrived and wanted to know if they had
any money. Accused 3 said they didn’t have any. Accused
1 and
the appellant returned to the shop and came back with a till machine
in their possession. They all got into the vehicle.
Accused 3 once
again confirmed that he had shot a person, They proceeded to the
appellant’s home where the spoils were shared.
[13] No corroboration for Shongwe’s
version is to be found in the evidence of the other witnesses. Indeed
his evidence cannot
be reconciled with objective facts, for example,
that the body of the deceased was found on the ground outside the
building. A
reasonable doubt as to the guilt of the appellant
accordingly exists.
[14] For all these reasons the appeal
must succeed.
[15] In the result the following order
is made:
1. The appeal is upheld.
2 The appellant’s convictions and
sentences are set aside.
FHD VAN OOSTEN
JUDGE OF THE HIGH COURT
I agree.
HJ DE VOS
JUDGE OF THE HIGH COURT
I agree.
OS MOLEFE
JUDGE OF THE HIGH COURT
A TTORNEY FOR APPELLANT MR S MOENG
(PRETORIA JUSTICE CENTRE)
COUNSEL FOR RESPONDENT ADVAJ FOURIE
DA TE OF HEARING 26 FEBRUARY 2016
DA TE OF JUDGMENT 26 FEBRUARY 2016