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[2016] ZAGPPHC 437
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Moriri and Another v S (A572/2015) [2016] ZAGPPHC 437 (15 June 2016)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO: A572/2015
DATE:
15/6/2016
Reportable: No
Of interest to other
judges: No
Revised.
In the matter between:
PIET
MORIRI
1
st
Appellant
JACK
TLAKA
2
nd
Appellant
and
THE
STATE
Respondent
JUDGMENT
AC BASSON, J
[1] The two appellant
were arraigned with another accused in the Benoni Regional Court on
one count of robbery with aggravated circumstances.
During the trail
the first appellant was accused number 1 and the second appellant
accused number 3.
[2] Both appellants were
convicted as charged. The first appellant was sentenced to a term of
15 years’ imprisonment. The
second appellant was sentence to 20
years’ imprisonment. It was ordered that the second appellant’s
sentence must run
concurrently with the sentence the second appellant
was already serving at the time of sentencing. Both appellants were
granted
leave on petition to appeal against both conviction and
sentence.
Ad conviction
[3] It was not disputed
that an armed robbery occurred on 22 February 2016 during which the
complainant (Ms Elizabeth Monjane) was
robbed on her way to the bank
of a substantial amount of cash. The complainant was in the company
of another lady who was the second
witness for the state.
[4] The complainant
testified that four men participated in the robbery. She was only
able to identify accused number 2 who was
known to her. Although the
complainant testified that she knew the first and second appellants
very well because they used to buy
from her business, she did not
identify them as her attackers. In fact, she testified that she was
surprised to see them in court.
The second witness was also not able
to place the two appellants at the scene of the robbery.
[5] The crucial issue
before the trail court was the issue of the identification of the two
appellants. In this regard the State
relied on the sole evidence of
Mr. Retshepile Skosana (“Skosana”) who became a 204
witness.
[6]
It is trite
that, as a general rule, the evidence of a single witness must be
approached with caution and that the evidence of a
single witness
will only be accepted if it is in every important respect
satisfactory or if there is corroboration for such evidence.
(See,
inter
alia,
in this regard
S
v Miggel
[1]
;
and
S v Mahlangu and another
[2]
). In
the present case there is an added factor that has to be taken into
account and that is the fact that not only was Skosana
a single
witness, he also appeared to have been an accomplice in the armed
robbery. As such his evidence had to be approached with
added caution
as set out by the court in
S
v Hlapezula And Others
:
[3]
“
It
is well settled that the testimony of an accomplice requires
particular scrutiny because of the cumulative effect of the following
factors. First, he is a self-confessed criminal. Second,
various considerations may lead him falsely to implicate the
accused,
for example, a desire to shield a culprit or, particularly
where he has not been sentenced, the hope of clemency. Third, by
reason
of his inside knowledge, he has a deceptive facility for
convincing description - his only fiction being the substitution of
the
accused for the culprit. Accordingly, even where sec. 257 of the
Code has been satisfied, there has grown up a cautionary
rule
of practice requiring
(a)
recognition by the trial
Court
of the foregoing dangers, and
(b)
the safeguard of some factor reducing the risk of a wrong conviction,
such as corroboration implicating the accused in the commission
of
the offence, or the absence of gainsaying evidence from him, or his
mendacity as a witness, or the implication by the accomplice
of
someone near and dear to him; see in particular
R
v Ncanana
,
1948
(4) SA 399 (AD)
at pp. 405 - 6;
R
v Gumede
,
1949
(3) SA 749
(AD)
at p. 758;
R
v Nqamtweni and Another
,
1959
(1) SA 894
(AD)
at pp. 897G - 898D. Satisfaction of the
cautionary rule does not necessarily warrant a conviction, for the
ultimate requirement
is proof beyond reasonable doubt
,
and this depends upon an appraisal of all the evidence and the
degree of the safeguard aforementioned.”
[7] It was submitted on
behalf of both appellants that the learned magistrate ought to have
rejected the evidence tendered by Skosana.
In this regard the court
was referred to numerous examples of inconsistencies, contradictions
and improbabilities in the evidence
of Skosana. I do not deem it
necessary to give a detailed exposition of the numerous
contradictions and improbabilities in light
of the concession made on
behalf of the State that that the evidence of Skosana was not frank
and honest and that no reliance could
therefore be placed on his
evidence. It is a concession well made.
[8] I have considered the
evidence of Skosana and I am of the view that, in light of the fact
that his evidence was riddled with
inconsistencies and
improbabilities, it cannot be said that his evidence complied with
the legal safeguards set for the evidence
of a single accomplice
witness.
[9]
In light of the aforegoing I propose the
following order:
The
appeal against conviction and sentence is upheld and the conviction
and sentence is set aside.
_________________________
AC BASSON
JUDGE OF THE HIGH
COURT
I agree and it so ordered
_________________________
W HUGES
JUDGE OF THE HIGH
COURT
Appearances:
For the first
appellant
:
Adv. R
Gissing
Instructed by
:
Marius Botha Attorneys
For the second
appellant :
Adv. FJ van der Westhuizen
Instructed by
:
Legal Aid South Africa
For the respondent
:
Adv. MJ Nethonhonda
Instructed
by
: The State
Attorney
[1]
2007 (1) SACR 675
(C) at 678A – B.
[2]
2011 (2) SACR 164
(SCA).
[3]
1965 (4) SA 439
(A).