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[2016] ZAGPPHC 474
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Sibeko v S (A36/15) [2016] ZAGPPHC 474 (17 June 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: A36/15
DATE: 17
June 2016
Not
reportable
Not of
interest to other judges
Revised.
BONGANI
SIBEKO
Appellant
V
THE
STATE
Respondent
JUDGMENT
MABUSE
J
:
[1]
This is an appeal against both conviction and sentence.
[2]
The appellant, Mr. Bongani Sibeko, accused 1 in the court
a quo
,
appeared with accused 2 and accused 3, before the regional court
magistrate in Benoni where they were charged with armed robbery
with
aggravating circumstances as envisaged in s 1 of the Criminal
Procedure Act 51 of 1977 (“the CPA’). The
said
charge was read subject to the provisions of s 51(2) of the Criminal
Law Amendment Act No. 105 of 1997 (“the Minimum
Sentence Act”).
[3]
The appellant, who enjoyed legal representation by a certain Mr.
Kathrada throughout the entire trial, pleaded not guilty to
the said
charge and made a plea-explanation in terms of the provisions of s
115 of the CPA. In such plea-explanation, he
denied all the
allegations against him.
[4]
The charges against the appellant arose from an incident that took
place on 7 August 2011 at house no. […] Dumashi Street
in
Daveyton. The complainant in the matter was one Reuben Vusimuzi
Sibeko, the appellant’s uncle. The incident
took place at
night in a shack in which the complainant was sleeping.
Earlier, the complainant had been watching television,
in particular
movies, on a dvd. Present with him, at the same time, were the
appellant, one Lesuku Mfecane (“Mfecane”)
and Mpho
Ngabisa (“Ngabisa”). Mfecane did not live far from
the house where the incident took place. Mfecane
and Ngabisa
were friends. The complainant referred to Mfecane and Ngabisa as the
appellant’s friends whom he, the complainant,
knew only by
sight.
THE
COMPLAINANT
[5]
This is now the complainant’s testimony. While they were
watching television, the appellant told him that he would
be going to
a night service at his church. The appellant left for church.
He left his two friends, that is Mfecane
and Ngabisa, behind.
Around 02h00 and whilst he was asleep some people, four in number,
arrived where he was sleeping.
Two of those four people were
Mfecane and Ngabisa and the others, accused 2 and accused 3.
While either of accused 2 or accused
3 pointed him with a knife, the
other of the two pointed him with a firearm. Both of them
demanded money from him.
By the use of the knife and the
firearm, they took away from him a sum of R110.00 and his Vodaphone
cell phone. During this
incident accused 3 kicked him on his
chest.
[6]
He recovered his cell phone after the police had arrived and after
the police had threatened and assaulted his assailants.
The
cell phone was recovered from the one that had a knife and who was
the last one to be arrested. When the cell phone was
recovered,
he could not see who it was recovered from because he was inside the
police van.
MPHO
ALFRED MAGWALU (“MAGWALU”
)
[7]
Magwalu, a member of the South African Police Service with three
years’ experience in the Police Service, was the State’s
second witness. On 7 August 2011 he was on duty and was the
investigating officer of the complainant’s complaint.
In
the execution of his official duties, he arrested the appellant,
accused 2 and accused 3 for robbery. He arrested them
following
the information he had received from the witnesses who saw them
commit the offence. These witnesses were the complainant
and
another one who was at court during his testimony.
[8]
Following the report that he had received from the “
guys
”
who were watching television and who were present when the robbery
was committed, he went to accused 3’s residential
place. On
their arrival they were directed to accused 3’s bedroom by his
mother. They found accused 3 sleeping in the said
bedroom. In this
bedroom he recovered the weapon that was used in the commission of
the offence and the complainant’s cell
phone. After
finding the complainant’s cell phone he asked accused 3 about
it and accused 3 told him that he had received
the cell phone from
the appellant and accused 2. Accused 3 was the last one of the three
accused to be arrested. At the time
he arrested accused 3, the
appellant and accused 2 were in the police van.
[9]
The complainant was present when he arrested accused 3. After
recovering the cell phone, he showed it to the complainant who
identified it as his. The complainant also recognised the knife
as the weapon which was used during the robbery.
[10]
During cross-examination he told the court that he arrested the
appellant, accused 2 and accused 3 following the reports that
he had
received from two witnesses. By the two witnesses he referred to the
two witnesses who were watching television. These two
witnesses were
Mfecane and Ngabisa. He told the court that the complainant had
told him that his nephew, the appellant, was
among the people who
robbed him and that three people robbed him.
[11]
At the conclusion of the evidence of the second state witness, the
state informed the court that it had no more witnesses to
call.
The state indicated immediately thereafter to the court that it
intended calling another witness to testify and for
that purpose it
would have to make a formal application for the re-opening of its
case. Despite the objection by Mr. Kathrada
against the
postponement of the matter, the court duly granted the application
for postponement.
KWENA
FIDAS MAROKANE (“MAROKANE”
)
[12]
When the matter resumed on 3 May 2012, the state applied for the
re-opening of its case to enable it to lead the evidence of
another
witness. As the application was not opposed, Mr. Kathrada had
no objection against it, the court granted it.
Thereupon the
state led the evidence of Marokane, an English speaking member
of the South African Police Service stationed
at Daveyton Police
Station. In his testimony Marokane told the court that on 7
August 2013 he was on duty with Magwalu.
He confirmed in his
testimony the arrest of the appellant and his co-accused in the court
a quo
and the offence for which the three of them were
arrested. He also confirmed the evidence of Magwalu in respect
of the cell
phone and knife. He told the court that these objects
were found where accused 3 was sleeping. This cell phone was
found
in the presence of the complainant. Over and above, he
told the court that the complainant identified not only the cell
phone
as his but also the knife but also found in the room in which
accused 3 was sleeping alone as the knife that was used during the
robbery. Accused 3 did not tell him anything about the cell
phone and the knife.
[13]
He was unwavering in his evidence during cross-examination that the
cell phone and the knife were found in the room in which
accused 3
was sleeping alone. He described the shack as consisting of one
room with only one entrance. There was no
separate room.
That room was pointed to them by a certain woman whom she presumed to
be accused 3’s mother as accused
3’s bedroom.
[14]
The state closed its case at the conclusion of this witness’s
testimony. Mr. Kathrada then applied in terms of
s 174 of the
CPA for the discharge of the appellant, accused 2 and accused 3.
The said application was “
brought on identity, on the
version put or given by the accused that at the time of the incident
being the nephew, he was not at
home.”
That is how
Mr. Kathrada put it. It was furthermore brought on the basis
that “
it was the, I think confirmed by the complainant that
indeed his nephew has no motive, whatsoever, in fact, robbing him;
and furthermore
that the complainant was uncertain about the people
who robbed him.”
It was specifically argued that
there was no case for the appellant to answer. The State
opposed the application. In
opposing the application the state made a
concession. It stated that: “
it is true what Mr.
Kathrada says, but part thereof is not true.”
It
pointed out that the complainant identified accused 2 and accused 3
as some of the perpetrators of the offence.
It also submitted
that the appellant and accused 2 were implicated by accused 3.
[15]
The court
a quo
, having considered the evidence before it at
that stage and the submissions made both by the state and the
defence, refused the
application in terms of s 174, the court stated
that:
“
It
is so, that there is some evidence by the police officials, referring
to accused one. It is, from what I see, eminent that
accused
three might testify against accused one or implicate accused one.
It is not really correct to say that the court
cannot take cognisance
of evidence of one accused against the other. It is just a
matter of cautionary rules being applicable
to the evidence of
co-perpetrators. In the interest of justice then the
application is denied.”
[16]
Although the refusal of the court
a quo
to grant the
application in terms of s 174 of the CPA was not an issue raised in
the application for leave to appeal, I am
satisfied that the
court
a quo
exercised its discretion properly in doing so.
APPELLANT
[17]
Upon the court refusing to grant the application for the discharge in
terms of s 174 of the CPA, Mr. Kathrada then called the
appellant
into the witness box to testify in his defence. The appellant
told the court that on 7 August 2011 he was at home
in the company of
the complainant who was visiting and two other boys, Mfecane and
Ngabisa. These two were not his friends
but were people who had
merely asked to come and watch a movie at his place. He knew
them by sight, one was a neighbour and
the other one was a
neighbour’s friend. He was cooking and when he wanted to
dish for the complainant he told
him that he did not want
food. He told his uncle that he would be going to church.
Before leaving he told the complainant
that he would be leaving and
asked him to chase Mfecane and Ngabisa away. He had himself
asked them to leave but they refused
saying that they were still
watching a movie. He left. He went to the church where he
spent the whole night.
It was a church gathering. At the
church gathering he spent time with a certain Sibusiso Simelane
(Simelane) who used to
stay in Daveyton but who, due to the passing
of his family, had moved to Mfecane in Brakpan. He pointed
Simelane out as the
only person he spent the entire night with
because he was the one who came to fetch him. The church
gathering started at
23h00 and ended at 06h00 the following day.
He did know accused 2 and accused 3 by sight. Initially the
police had
also arrested Mfecane but was released later and made a
state witness.
[18]
Under cross-examination he told the court that that evening they were
attending a night prayer at church. He raised an
alibi
defence. He conceded that if Mfecane was one of the people who
had accosted his uncle, his uncle would have been able
to identify
him. The complainant told him that when the robbery took place
it was dark in the shack.
MILTON
SIBEKO (“MILTON”
)
[19]
In support of his case the appellant called two witnesses, one Milton
Sibeko and a certain Nombula Sibongile Sibeko (Nombula).
Milton
was the pastor’s assistant of the Apostolic Church. The
pastor of the church was William Sibeko. He told
the court that
on 7 August 2011, from 23h00 to 07h00 on 8 August 2011 he was with
the appellant at church at Extension 3.
He saw the appellant.
He described the event he was attending with the appellant as a
cleansing ceremony which was held at
the house of the woman who had
passed away. That woman who had initially stayed at a section of
Daveyton called Vergenoeg had later
relocated to Extension 3 of the
same township. The ceremony was held at a house and not in Church.
He told the court furthermore
that he saw the appellant at some stage
because at some point he had to sit with another man. The
appellant never went anywhere.
[20]
During cross-examination he was adamant that it was a cleansing
ceremony and not a night prayer meeting and that it was held
at a
house and not in a church. It was not a night prayer. Simelane
was no ordinary member of the church. He held an
important
position in the church. He was a pastor’s assistant with
responsibilities. Therefore the appellant
could not simply
refer to him as another “guy”.
[21]
Nombula Sibongile Sibeko (“Nombula”),
Nombula, the complainant’s sister described the premises where
the incident took place as follows. There are two structures
in
those premises. There is a main house which she occupied.
There is in the same premises also a one room shack which
was used by
the complainant and someone else. At the time of the robbery at
23h00 she was in the main house. She knew
who robbed the
complainant and she went on to describe how she came to know the
perpetrators.
[22]
She saw Mfecane at the shack. She saw four people come into the
yard. As the four people got into the yard she
walked into the
dining room. As these four people were talking to each other,
next to her window, she thought that the appellant
had come back.
But when she looked properly she noticed that it was not the
appellant. She saw Mfecane. He had a jacket
with its hood
pulled over his head. She went to her bedroom from where she
observed the event unfolding outside.
[23]
Whilst she was looking outside through her bedroom window she saw the
four of them get into the shack. One of them was
heavily built
and the other one was light in complexion. The third one was
short and the fourth one resided in the same street
as one Mike.
These latter two were chasing each other with a knife in the
premises. The police did not take her statement
of the event.
ACCUSED
2
[24]
Accused 2 said that knew nothing about the robbery. He was not
present where and when it was committed or on the evening
of the
robbery. He was at his home. Present with him at home at
the relevant time was his sister. The only reason
he was able
to remember that he was at home on 7 August 2011 was that he was
arrested the following day at home. Mfecane
and Ngabisa pointed
him out to the police because they knew him by his nickname. He
knew nothing about the cell phone and
the knife that were found in
the possession of accused 3. His defence was therefore an
alibi.
ACCUSED
3
[25]
Accused 3 told the court in his testimony that he knew accused 1 by
sight and accused 2 from their days at school where they
both
participated in school events. He knew accused 2 by his other
name as Scarro too. On the day of his arrest, he
continued with
his testimony, at 12h00 he was found at his home in the main house
and not in his bedroom. As he stepped into
the house the police
found him in the kitchen as he stepped into the house. They
asked him who Abraham Nel was and if he
knew Bongani and Scarro.
He told them that he knew Bongani Kunene, his cousin. The
complainant’s cell phone and
knife were found in the house.
He only saw them when they were discovered by the police. The
police retrieved these
items not from his bedroom but inside the
house. This was in a room that was utilised by Bongani whenever
he paid them a
visit. Later he told the court that the police
found him eating inside the kitchen. He denied that he brought
the items
to the house and insinuated that they were brought by
Bongani. His mother was not present on the day the police were
at his
home but his aunt was. He denied that he took part in
robbing the complainant. He denied furthermore that he told the
police that he received the complainant’s cell phone and a
knife from the appellant and accused 2. He called no witnesses
in support of his case.
[26]
At the close of the defence case, the court, in the exercise of its
powers conferred by s 186 of the CPA, called two witnesses,
one
Lesuku Mfecane and a certain Mpho Ngabisa to testify about the events
of 7 August 2011.
LESUKU
MFECANE (“MFECANE”
)
[27]
Mfecane told the court that he knew the complainant because he lived
near his (the complainant’s) home. He and
the complainant
were not friends but he would go to the complainant’s home from
time to time. He would go there for
diverse purposes, either to
watch dvd’s on the television or to smoke or for both.
[28]
He knew about the incident that took place in the complainant’s
shack on 7 August 2011 because he was present when it
took place.
He saw it. According to him, they were in Bongani (the
appellant’s) shack, watching movies with the
complainant.
The appellant left the shack but later returned in the company of
some friends of his. He then ordered
them, that is Mfecane and
Ngabisa, to leave or to give them space as they had something to do.
They left and when he was
at the gate he heard the appellant’s
uncle scream. He then saw the appellant and his friends run
away. He identified
the friends who ran away as the appellant,
accused 2 and accused 3. He never went back to investigate in
the shack as the
appellant had ordered them out of the place.
The event took place around 24h00.
[29]
During cross-examination by the State he told the court that he was
with Ngabisa. He disputed the appellant’s version
that
when the incident took place he was at church. He told the
court that the version that the appellant had gone to church
was
untrue.
[30]
Mfecane was put under intense cross-examination by Mr. Kathrada.
During such cross-examination, he was unwavering in
his testimony
that he was present when the incident of 7 August 2011 took place in
the complainant’s shack. Furthermore
he told the court
that before the appellant and his co-accused were arrested, he and
Ngabisa were questioned by the police.
He denied that he and
Ngabisa participated in the event that took place in the shack.
He was resolute in his evidence that
on his return, the appellant had
told him that: “
I want you to leave. I want to do
something.”
MPHO
NGABISA (“NGABISA”
)
[31]
Ngabisa confirmed Mfecane’s testimony that both of them were in
the complainant’s shack on 7 August 2011 and in
particular when
the complainant was robbed. He was present when part of the
incident took place in the shack. He set
out that part of the
incident that he saw as follows. They were seated in the shack
watching movies. The appellant
said he would be going to church
where there was going to be a night vigil. The appellant left
Mfecane and Ngabisa with the
complainant. Before he left the
appellant he asked them, Mfecane and Ngabisa, to close the door when
they left.
[32]
The appellant came back. He found them still in the house and
still watching movies. He asked them when they would
be leaving
but they told him that they were still watching movies. He
asked them how long they were still going to be and
they told him
that they would be done any time soon. The appellant went out
again telling them that he was going to a night
vigil.
[33]
Around 23h00, the appellant came back. This time he was in the
company of two of his friends. They sat down.
One of them
asked for a smoke from him. As he was smoking they stood up.
At this stage the complainant was already
asleep on the other side of
a curtain that divided the shack into two sections. The side of
the shack on the other side of
the curtain, where the complainant was
sleeping, had no light.
[34]
The appellant stood by the door while two of his friends grabbed the
complainant. He heard one of them say “
where is the
money”?
At this stage Mfecane had risen from
where he had been sitting. He picked up their stuff and left.
When he left the
shack the appellant’s two friends were still
wrestling with the complainant on the other side of the curtain.
He went
out and stood at the gate with Mfecane. While still at
the gate he heard the door of the shack banging and thereafter saw
the trio, i.e. the appellant, accused 2 and accused 3, coming out
running.
[35]
He knew accused 2 because he attended school with him and accused 3
only by sight. Between him and Mfecane, Mfecane was
the first
to stand up where he had been sitting and to walk towards the door.
When Mfecane left he was still gathering the
tools that they used to
smoke. Mfecane stopped in the alcove of the door and shouted at
him to hurry up so that they could
leave.
[36]
During cross-examination by the State he told the court that the
complainant did not scream but spoke normally. Nombula
was the
last witness to testify after his evidence and Kathrada told the
court that he no longer had any witnesses to call.
[37]
The court
a quo
analysed the entire evidence and concluded
that the State had proved beyond reasonable doubt that the appellant
was involved in
the robbery that was committed on 7 August 2011.
It rejected the appellant’s version on the basis that it was
not reasonably
possibly true and convicted him accordingly. Upon
conviction it sentenced him to ten (10) years imprisonment after
finding substantial
and compelling circumstances in his favour.
It is accordingly this conviction and the subsequent sentence of ten
years’
imprisonment imposed on him by the court
a quo
that he is dissatisfied with. He has in his application for
leave to appeal set out numerous grounds of appeal against the
conviction and sentence afore mentioned.
[38]
The crucial questions that the court a quo had to determine were
firstly, whether the appellant had been reliably identified
as one of
the people who were present in or at the shack when the complainant
was robbed and secondly, whether the appellant was
party to a common
purpose to rob the complainant. The onus was on the state to prove
these. The duty of the state to prove its
case beyond reasonable
doubt includes the duty to prove the identity of the perpetrators.
The court a quo correctly pointed out
that the question that needed
to be answered was who the robbers were. In
S v Van der Meyden
1999(2) SA 79 (WLD) at page 81 A-B
the court set out the manner
in which evidence should be assessed when it stated that:
“
In
which ever form the test is expressed, it must be satisfied upon the
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.”
The
incident in question took place in a one room shack divided into two
sections by a curtain. At all material times it took
place it
was dark, according to the complainant, so dark that if he looked at
himself in the mirror, he would not have been able
to see himself in
it. Notwithstanding the darkness in the room, there is evidence
though that the television was on at the time
and its light
illuminated the shack to a certain degree. The complainant was,
it is his evidence, only able to see in the
dark four people among
whom he identified accused 2 and accused 3. Again in the dark he was
able to see that accused 2 had a firearm
and accused 3 had a knife.
He was able to describe accused 2 by his built and his weight. He was
able to identify accused
2 and accused 3 but was unable to identify
the other two assailants, in particular the appellant. According to
him light came into
his side of the shack through a big window of the
shack. One cannot fault him for failing to mention the light
from the television.
The television was not on his side of the
curtain. The television light was therefore prevented from reaching
his side of the curtain.
[39]
The court a quo was dissatisfied with the evidence of the complainant
with regard to the identification of his assailant. On
this important
aspect it stated quite clearly that the complainant was not the best
of witnesses. Thereafter it made an adverse
inference about him as a
witness. Based on his evidence the court remarked that the
complainant was bent on trying to protect
the appellant. It is a
mystery that in the same circumstances the complainant was able to
identify accused 2 and accused 3 but
unable to identify the other two
assailants, in particular the appellant. Considering that, on the
complainant’s version,
it was dark in the shack and that the
only source of illumination in the shade was through the window
light, the court
a quo
was correct in finding that the
complainant did not have a clear opportunity to identify his
assailants and on that basis to reject
the complainant’s
evidence.
[40]
Not all of the complainant’s evidence was rejected by the court
a quo
though. For good reasons, the court
a quo
accepted the complainant’s evidence that he had been robbed of
his cell phone and money. This evidence stood uncontested.
It was
furthermore not in dispute that the cell phone found in accused 3’s
bedroom belonged to the complainant.
[41]
There are other portions of the complainant’s evidence which
were not contested. His evidence that he had watched television
earlier with both Mfecane and Ngabisa while the appellant was present
and working was not contested. This evidence enjoyed the
support of
both Mfecane and Ngabisa. Finally, it was never disputed that the
incident took place in the complainant’s shack,
which consisted
of one room.
[42]
The court
a quo
was satisfied with the evidence of Magwalu and
Marokane. It made no adverse remarks about them or their evidence.
The evidence
of Marokane corroborated the evidence of Magwalu in all
material respects, in particular, with regard to the aspect that the
complainant’s
cell phone and a knife were found in the room in
which accused 3 was found sleeping. The court
a quo
remarked
that the two police officers were independent witnesses who had
nothing to gain by testifying that they found the cell
phone and the
knife in a certain room. It found their evidence reliable and
credible.
[43]
The court
a quo
accepted the evidence of the two court
witnesses that they were present when the robbery took place. In fact
their evidence on
the afore going aspect was never challenged and
never assailed. It was never suggested to them that they did not
properly see the
incident take place. In fact their whole evidence
relating to the incident itself was never contested. There is not a
suggestion
that they had schemed to give false evidence against the
appellant. It was never in dispute that they both knew the appellant.
The appellant himself testified Mfecane and Ngabisa were people who
used to come to his house to watch movies. Apart from that he
testified that Mfecane was his neighbour. The evidence of Nombula is
even clearer. She told the court that Mfecane was their opposite
neighbour. In the circumstances it is highly unlikely that they
might have made a mistake with regard to the identity of
the
appellant. The fact that they knew the appellant enhanced the value
of their identification. See in this regard
R v Dladla
1962 (1) SA
307
(A)
where the court had this to say about prior knowledge by
a witness of the identity of a perpetrator:
“
One
of the factors which is of great importance in the case of
identification is the witness’ prior knowledge of the person
sought to be identified. If the witness knows the person well or has
seen him frequently before, the probability that his identification
will be accurate is substantially increased.”
They
were present in the shack when the robbery took place. They were
sitting on the side of the curtain where there was television
light.
They were therefore favourably placed to see clearly what happened at
the time. The court
a quo
was
satisfied that their evidence established beyond reasonable doubt the
identity of the appellant at the scene. Their evidence
therefore
answered the first question that the court a quo had to determine,
whether the appellant was reliably identified as one
of the people
who were in the shack when the complainant was robbed.
[44]
It is indeed so that there were contradictions in the evidence of
these two court witnesses. The one notable contradiction
that the
appellant relied on is whether or not the complainant screamed.
It was pointed out by Mr. van As, counsel for the
appellant, that
while the complainant and Ngabisa never testified that the
complainant screamed during the robbery, Mfecane told
the court that
the complainant screamed. If anything this contradiction shows that
the court witnesses did not plan to mislead
the court and furthermore
that they had not been coached as to what they should tell the
court. More importantly this contradiction
is immaterial.
[45]
Contradictions only show that witnesses are capable of making
erroneous statements. Once the witnesses give two different
versions about the same thing, it only proves that one of them is
wrong but does not prove who of the two is wrong. “
It
follows that the mere fact of contradiction does not support any
conclusion as to the credibility of either person. It
acquires
probative value only if the contradicting witness is believed in
preference to the first witness, that is, if the error
of the first
witness is established.”
See in this regard
S v
Oosthuizen 1982(3) 571 TPD at 576 B-C
.
[46]
The fact that Mfecane told the court that he went home from the
complainant’s place and later contradicted himself under
cross-examination when he told the court that he went to Siphiwe’s
place after leaving the appellant’s shack constitutes
an
immaterial contradiction that did not eviscerate the core of his
evidence. The fact that constable Magwalu told the court
that
the complainant told him that his nephew was present when the robbery
took place cannot be regarded as a contradiction
vis-a-vis
what the complainant told the court. It is indeed so that the
complainant never told the court that the appellant was present
at
the robbery. Absence of evidence is not evidence of absence. In
his heads of argument Mr. Kgagara had referred the court
to the
authority of
S v Oosthuizen
supra
to demonstrate that
contradictions per se do not lead to rejection of a witness’s
evidence.
[47]
The court
a quo
was aware that the evidence of both court
witnesses was in some respects deficient and inconsistent.
However, the court
a quo
was satisfied that, despite all the
deficiencies and inconsistencies, the truth had been told. The
principle of our law with
regard to inconsistencies and
contradictions was clearly explained in
S v Mkohle 1990(1) SACR
95(A) at page 98
. The court in that authority had this to
say:
“
Contradictions
per se do not lead to the rejection of the witness’ evidence.
As Nicholas J, as he then was, observed
in S v Oosthuizen 1982(3) SA
571 T at 576 B-C, they may simply be indicative of an error …
Not every error made by the witness
affect his credibility: In
each case the trier of facts has to make an evaluation, taking into
account such matters as the
nature of the contradictions, their
number and importance and their bearing on other parts of the
witness’ evidence.”
From
the above passage it is abundantly clear that the fact that, in his
testimony a witness was shown to be inconsistent, does
not mean that
the court should reject his evidence. There may be a reason for such
inconsistency and it is for the court to establish
the reasons for
the witness’ inconsistency. Once the court has
established that the testimony of a witness is contradictory
it must
go further and establish whether such inconsistencies are material
and what the effect of such inconsistencies are on the
entire
evidence of a witness. If the court is satisfied that, despite
the inconsistencies the core of a witness’ evidence
contains
the truth and that such inconsistencies do not eviscerate the
credibility of the witness, the court is entitled to make
its finding
on such parts of the witness’ testimony as containing the
truth. In my view, the contradictions that have
been pointed
out by the appellant in the application for leave to appeal and also
in his counsel’s submissions do not affect
the credibility of
the two court witnesses. Accordingly, I find that the court
a
quo
was
correct in finding the two court witnesses to be convincing
witnesses; ultimately in accepting their version and furthermore
in
finding that their credibility could not be challenged. Their
evidence, in my view, was beyond reproach.
[48]
It was submitted by counsel for the appellant that the court should
have treated the evidence of the two court witnesses with
caution.
It is so because both of them had testified that they were smoking
dagga. Counsel for the appellant submitted that
the only reasonable
inference that could be drawn was that they were smoking while they
were in the appellant’s room and
that even after leaving the
appellant’s room they still wanted to smoke. There is no iota
of evidence before the court that
these two court witnesses were
rendered truculent or dazed by the dagga they had smoked. There is no
suggestion, as already had
been pointed out, that they did not see
well. In my view, this submission is fallacious. Finally,
there was no duty
imposed on them to report what they had witnessed
in the shack. The fact that they did not report the incident not even
to the
police does not detract from their evidence as witnesses who
had seen it happen.
[49]
I now turn to the evidence of the appellant and of the witnesses who
testified in support of his case. It is quite clear
that, apart
from denying all the allegations of the offence against him, the
appellant had another defence. That defence
was an alibi, in
other words, he was not at house number […] Dumashi Street,
Daveyton, when and where the complainant was
robbed. According
to his evidence, during the material time in which the robbery on the
complainant would have been committed,
he was at a church gathering
until he came back home at 07h00 the following day. His alibi
evidence was supported by Milton
and Nombula.
[50]
The court
a quo
rejected, on grounds that it pointed out, the
appellant’s alibi. It rejected that alibi on the grounds
that Milton
and the appellant differed materially with regard to the
venue where the event of 7 August 2011 was held and the nature of the
event that they attended. Each one of them testified about a
different event that was held on the evening of 7 August 2011
until
the following day. The appellant testified that he attended a night
vigil at a church at Extension 3 whereas Milton himself
was adamant
that it was a cleansing ceremony, and not a night prayer, that he
attended at a house of a certain member of church
at Extension 3. Two
people who attend the same event at the same place are unlikely to
describe it wrongly and to say that it was
held at two different
places.
[51]
The court
a quo
was also not prepared to rely on the evidence
of Nombula which tended to support the appellant’s alibi.
While she had
not accompanied the appellant to where he testified he
had gone, she told the court that the appellant had attended a night
vigil
at a school, which contradicted not only the appellant’s
version but also Milton’s version. Overall Nombula was
not a good witness. Her evidence did not tally at all with the
evidence of the other defence witness, including the complainant’s
evidence.
[52]
The court quite correctly remarked that a possibility existed that
the appellant might have gone to where Milton was, shown
his face and
thereafter returned. There are other problems though with the
appellant’s evidence. According to
his evidence, he was
with Sibusiso Similane the whole night at a church prayer. He
does not mention other people who were
present, for instance,
Milton. It is difficult to imagine how he could have missed
Milton at the ceremony that they both
attended and this is despite
the fact that Milton himself told the court that he was with the
appellant at the ceremony that he
attended. Quite conveniently
he mentioned Sibusiso and thereafter told the court that he was not
available to testify on
his behalf. No reasons have been
furnished why he was not able to see Milton at the event.
[53]
During his testimony, even before he was asked, Milton told the court
that on 7 August 2011 he was with the appellant.
This response
shows quite clearly that he had been coached what to say. Milton
himself did not mention Simelane. Surely if he saw
the appellant at
the ceremony then he should have seen Simelane who was at all
material times with the appellant. Finally, they
could not have seen
each other because they were at different places where they each
attended different events. Milton himself
prevaricated with regard to
the nature of the event he attended that evening. Initially he
testified that the event he attended
was a prayer service. Later he
changed and told the court that it was a cleansing ceremony. In his
evidence-in-chief he testified
that the event they both attended with
the appellant was held at a church. Later under cross-examination
they did not have a church.
[54]
In his heads of argument Mr. Kgagara had referred to the authority of
R (and not S) v Hlongwane 1959(3) SA 337 A
and stated that the
legal position with regards to an alibi was that there is no onus on
the accused to establish it and if it
might be reasonably possibly
true he must be acquitted. This was indeed the test that the
said authority set out. But
in the same matter the Court had
this to say about an alibi at pages 340 B to 341 A:
“
But
it is important to point out 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 this case, and the court’s impression
of the
witnesses.”
Again
on this point the words of the court in S v Van der Meyden supra in
paragraph 38 become even more important.
[55]
Upon a consideration of the whole of the evidence, the court
a quo
concluded that the appellant’s evidence regarding his alibi was
not reasonably possibly true. It found, still upon
a
consideration of the entire evidence, that the evidence of Mfecane
and Ngabisa convincingly established that the appellant was
part of
the group of people that included accused 3 and accused 4 that on 7
August 2011 robbed the complainant.
[56]
The following evidence is relevant to the second question, that is,
whether the appellant was a party to a common purpose to
rob the
complainant:
56.1 the appellant came
together with accused 2 and accused 3 to the shack;
56.2 it is clear from the
following circumstances that what was about to happen had been
planned. On their arrival the appellant
chased Mfecane and
Ngabisa and told them that they had something to do. Clearly he
did not want them to witness what they
were about to do;
56.3 it is equally clear
that a knife and firearm were intended to be used in the commission
of the robbery. It is highly
unlikely that the appellant did
not know that his companions were armed. Certainly that they
were armed.
56.4 the evidence
indicates that while accused 2 and accused 3 robbed the complainant,
the appellant stood in the alcove of the
door or in the doorway;
56.5 the appellant did
not assist the complainant to fight off accused 2 and 3. He did
nothing to disassociate himself from
the actions of accused 2 and 3;
56.6 even after the
robbery he was seen fleeing with accused 2 and 3.
The
conclusion is therefore inevitable that the appellant was a party to
a common purpose to rob the complainant. All this evidence,
in my
view, satisfied the requirements of guilt to be proved on the basis
of common purpose as set out in
S v
Mgedezi and Others 1989(1) SA 687(A) at 688B-E
:
“
In
the absence of proof of a prior agreement, an accused who was
not shown to have contributed causally to the killing or
wounding of
the victims………can be held liable for those
events on the basis of the decision of S v Safatsa
and Others
1988
(1) SA 868(A)
only if certain prerequisites are satisfied. In the
first place, he must have been present at the scene where the offence
was being
committed. Secondly, he must have been aware of the assault
on the victims. Thirdly, he must have intended making common cause
with those who were actually perpetrating the assault. Fourthly, he
must have manifested his sharing of a common purpose with the
perpetrators of the assault by himself performing some act of
association with the conduct of the others. Fifthly, the requisite
mens rea; so, in respect of the killing of the deceased, he must have
intended them to be killed, or he must have foreseen the
possibility
of their being killed and performed his own act of association with
recklessness as to whether or not death was to
ensue.
Inherent in the
concept of imputing to an accused the act of another on the basis of
common purpose is the indispensable notion
of an acting in concert.
From the point of the accused, the common purpose must be one that he
shares consciously with the other
person. A ‘common’
purpose which is merely coincidentally and independently the same in
the case of the perpetrator
of the deed and the accused is not
sufficient to render the latter for act of the former.”
The
principle set out above applies in equal measures in the case, like
the instant one, where robbery of whatever class, is applicable.
The
court
a quo
was,
in my view, correct in its finding that the State had proved beyond
reasonable doubt that the appellant had committed the offence
he has
been charged with.
APPEAL
AGAINST SENTENCE
[57]
The appellant has also noted an appeal against sentence imposed on
him by the court
a quo
. This is clear from the
application for leave to appeal in which he has set out his grounds
of appeal against the sentence
as follows:
“
10
years convicted, however I feel that I was wrongfully arrested and
convicted. On this particular day I attended a night
vigil
church service and I only returned the next morning to my uncle’s
house. None of the said stolen goods was found
in or on my
possession. No fingerprint of mine was found at the place of
robbery and no firearm was found in my possession.
I do feel
that I was wrongfully arrested and sentenced.”
Quite
frankly no grounds of appeal against the sentence have been set out
in the afore going paragraph. That, however, does not
exempt this
appeal tribunal from enquiring into the appropriateness of the
sentence. This appeal tribunal is still under
an obligation to
carefully scrutinize the judgment of the court
a
quo
on
sentence and to carefully consider the correctness of its conclusions
or reasoning.
[58]
Firstly, in his heads of argument, Mr. Kgagara had pointed out that
the charge in the court
a quo
did not indicate that the State
would rely on
s 51(2)
of the
Criminal Law Amendment Act 10 of 1997
.
This is incorrect because in the court a quo the appellant was
charged with:
“
Robbery
with aggravating circumstances as he tendered in
section 1
of Act 51
of 1977.
That the accused
is/are guilty of the crime of robbery with aggravating circumstances
(read with the provisions of
section 51(2)(a)
of the
Criminal Law
Amendment Act of 1997
) and further with
section 1
of Act 51 of 1977
(CPA).
It
is therefore clear from the charge sheet that served before the court
a quo
that
the State had given ample indication to the appellant that it would
rely on the provisions of s 51(2) of Act 105 1997.
In
S
v Mthembu 2012(1) SACR 517 SCA at page 523 paragraph 15
the court stated that:
“
At
present an accused person is warned at the time of the charge or the
indictment that section 51 of Act 105 of 1997 will be applicable
in
the event of a conviction. A reference to the Act in the charge
forewarns the accused not just that he or she is on the
risk for the
minimum sentence ordained by the legislature unless substantial and
compelling circumstances are found to exist, but
also that the
sentencing jurisdiction of the regional court (should that be the
forum) has been enhanced to give practical efficacy
to the
legislature. At the commencement of the trial therefore an
accused person can hardly be under any illusion as the
risk that he
or she faces. Thus, the warning to an accused person where the
minimum sentence applies is far more comprehensive
than would be the
case if it does not apply.”
[59]
In
S v Malgas 2001(1) SACR 469 (SCA)
the court concluded that:
“
This
court can of course only interfere with the sentence imposed by the
trial court where it is vitiated by a material misdirection,
or where
the disparity between the sentence of a trial court and the sentence
which the appellate court would have imposed, have
it been the trial
court, is so marked that it can properly be described as “shocking”,
“startling” or “disturbingly
inappropriate”.
See
Malgas at paragraph 478 E-H.
In
the above matter the court set out the circumstances that must exist
before an appeal court can interfere with the sentence imposed
by the
trial court. Absent such circumstances an appeal court is not
justified to interfere with the sentence imposed by the trial
court.
[60]
In assessing the sentence it contemplated imposing on the appellant,
the court
a quo
considered the personal circumstances of the
appellant as placed before it in Exhibit ‘A’ and as
contained in a pre-sentencing
report that had been prepared for it
and for that purpose. It took into account the fact that the
complainant had suffered
no injuries despite having been kicked in
the chest by accused 3 and the fact that the complainant’s cell
phone was recovered.
It considered the fact that the amount of
R110.00 was not recovered and that it was not a lot of money. It
considered the seriousness
of the offence the appellant had been
convicted of. On the seriousness of the offence, the court
a
quo
took into account the fact that the crime that the appellant
had been charged with and convicted of was rife in its area.
The court in
R v Mapumulo and Others,
1920 AD 56
at page 57
had the following to say:
“
The
infliction of punishment is pre-eminently a matter for the discretion
of the trial court. It can better appreciate the
atmosphere of
the case and can better estimate the circumstances of the locality
and the need for a heavy or light sentence than
an appellate tribunal
and we should be slow to interfere with its discretion.”
Accordingly,
in assessing the appropriate sentence to be imposed on the appellant
the court
a quo
was
entitled to take into account the prevalence of the offence in its
area of jurisdiction as enjoined by the authority
of
R v Mapumulo and Another supra
.
The purpose of taking into account the prevalence of a certain
offence in its area was accordingly to determine the purpose
for
which the sentence should be imposed. That purpose is to
discourage like-minded offenders from committing a similar offence.
[61]
The court
a quo
also took into account that such offences are
committed by people of the appellant’s age group.
[62]
It analysed all the relevant factors necessary in the determination
of an appropriate sentence, paying very careful attention
to the
personal circumstances of the appellant even at the expense of the
interests of the society and the seriousness of the offence,
weighed
all the factors and distilled from such factors what it considered to
be an appropriate sentence. It concluded that there
were substantial
and compelling circumstances. Once it found the existence of such
circumstances it decided to deviate from imposing
the ordained
sentence.
[63]
In his heads of argument Mr. Mashile, on whose behalf Mr. Luyters
appeared at the hearing of this appeal, had referred this
court to
the case of
S v Chowe 2010(1) SACR 141 GNP
, in which the court
a quo
had found substantial and compelling circumstances.
The appellant was 26 years of age; the value of the cell phone that
the
appellant had robbed the complainant of was R600.00 and the
complainant in that matter was unharmed. The appeal court found
substantial
and compelling circumstances. The sentence of 15 years
imprisonment that had been imposed on the appellant by the court
a
quo
was on appeal set aside and in its place was substituted with
a sentence of 10 years imprisonment.
[64]
In the circumstances I am satisfied that the trial court took into
account all the relevant factors in its determination of
an
appropriate sentence and furthermore that in the process it imposed a
just and appropriate sentence on the appellant. The
sentence so
imposed, considering the facts before the court, was neither harsh
nor shocking, nor disproportionate to the offence
of which the
appellant had been convicted. I have found no misdirection
committed by the court
a quo
in the assessment of the
conviction of the appellant nor in the sentence imposed.
[65]
Accordingly I propose the following order:
1. That the appeal
against both the conviction and sentence be dismissed;
2. That the conviction of
the appellant by the court
a quo
and the subsequent sentence
imposed on him be confirmed.
_____________________
P.M.
MABUSE
JUDGE
OF THE HIGH COURT
I agree
and it is so ordered
______________________
C.P.RABIE
JUDGE
OF THE HIGH COURT
LEGODI
J
; (DISSENTING)
[66]
I have had the opportunity of reading the judgment by my bother
Mabuse J, and unfortunately I am unable to agree that the trial
court
correctly found that the guilty of the appellant (accused 1) was
proved beyond reasonable doubt through the evidence of the
two
witnesses called by the court.
[67]
The appellant Mr Bongani Sibeko will be referred to in the
proceedings as accused 1 as he was the case in court
a quo
. He
appeared in the Regional Court sitting in Benoni on one count of
robbery with aggravating circumstances, the complainant being
his
uncle and they were staying together. He was charged together
with two other accused persons, Mr Mtsolisis Buthelezi
(accused 2)
and Mr Abraham Nel (accused 3).
[68]
The three of them were convicted as charged and sentenced to 10 years
imprisonment, the trial court having found that there
were compelling
and substantial circumstances, justifying lesser sentence than the
prescribed minimum sentence. The appeal
is with the leave of
the court
a quo
.
[69]
The trial court in convicting accused, inter alia, expressed itself
as follows:
“
I find that I
can rely on the evidence presented to court by the state in order to
come to a finding. Accused, expected, or
wanted the court to
believe that he has got alibi… As far as accused’s alibi
is concerned, I find that there are so
many contradictions between
himself and these alibis and witnesses that I cannot find it to be
reasonably possibly true.”
[70]
In a nutshell, the evidence presented by the state was to this
effect: On the evening of 7 August 2011 complainant was
robbed
of his cellular phone and money at his place of residence in
Daveyton. His evidence regarding the reliability of his
evidence on identity was rejected by the trial court and in my view,
correctly so. He was also found not to be a credible witness
for not
implicating accused 1. There were four people who robbed him
including accused 2 and 3 the other two could not be recognised.
[71]
In convicting accused 1 and his co-accused the trial court relied
heavily on the evidence of the two witnesses called by it,
namely Mr
Lesuku Mfecane. (“Mfecane”) and or Mpho Ngabisa (Ngabisa)
who testified after the three accused had testified,
but before two
witnesses called by accused 1 had testified.
[72]
Mfecane and Ngabisa were together with the complainant and accused 1
at the latter’s home that evening. Accused
1, later that
evening left for church or a night vigil. Mfecane, and Ngabisa
remained behind with the complainant.
They were busy smoking,
apparently dagga or some form of substance and also watching movies.
Later that evening after the
accused 1 had left the complainant went
to sleep in the same room but, separated apparently by a curtain.
[73]
What had happened thereafter became the subject of a dispute before
the court, accused 1 having indicated that he was at church
or a
prayer meeting the whole night until the following day. On the
other hand, Mfelane and Ngabisa suggested that accused
1 returned
that evening together with two other persons and that the three of
them assaulted the complainant and robbed him. The
trial court
accepted their evidence and found the accused 1 guilty as charged
It is this finding that I am having difficulties
with and the
rejection of accused1’s evidence as having been shown to be
false beyond reasonable doubt, in particular that
he was at church.
[74]
Mabuse J in his judgment also moved from the premise that an identity
was an issue as the trial court did and that the trial
court
correctly found that accused 1 was placed at the scene of the crime
and that he shared common purpose in the commission of
the offence
against his uncle. I do not think that an identity was an issue
regarding accused 1 seen in the light of the fact the
court’s
witnesses and accused 1 knew each other very well. The real issue was
whether the witnesses did not falsely implicate
accused 1.
[75]
Firstly, Mfecane and Ngabisa’s evidence should have been
approached with caution. In the course of cross-examination,
Mfecane’s evidence unfolded as follows:
“
Now, you will
agree that, before the accused were arrested, yourself and Mpho were
the first people that the police had apprehended
or in fact,
questioned? --- Yes, they did question us.
It is not that you
went to the Police. The police came to you? --- Yes.
Similarly,
the evidence of Ngabisa was even much revealing at it in
cross-examination it
inter alia
, unfolded:
“
You know that
the complainant was being robbed, ---Yes---yes.”
You knew exactly who
robbed him---Yes.
But you did nothing
around it?---Yes.
You did nothing about
it? You did not tell anybody. You did not get the police.
You did absolutely nothing, until
the police came to you. They
put you, they put you in a van?---I was not in the van. I was
in the vehicle.
Sorry, I apologise, in
the police vehicle? --- Yes.
And then you made a
statement, saying that: I know the people who robbed him? ---
Before we made a statement, the police did assault the
three accused
. Then the police thought that we were
involved in this incident. They put Lesuku in a separate room.
I was put in the
other room”.
(My emphasis)
.
[76]
What else one was to expect from Mfecane and Ngabisa. They were
the first people to be arrested. That alone would
have put them
on the defensive, and unfortunately a lead was given to them at whom
to point finger to. Accused 1, 2 and 3
were there and were
being assaulted and thereafter Mbelane and Ngabisa were questioned.
Any suggestion that they had no motive
to implicate accused 1 or any
of accused for that matter, on my view, flew in the face of what was
before the trial court.
[77]
Another important consideration, which in my view, the trial court
overlooked was their unwillingness to come to the rescue
of the
complainant if one was to go by their version. As quoted above,
absolutely nothing was done to help the complainant.
They told no one
what had happened to the complainant and made no efforts to notify
the police. Mfecane indicated that he
was staying about 10
meters, 15 metres from the complainant’s place and he used to
go to the complainant’s home.
His evidence under
cross-examination by prosecutor unfolded:
“
You said the
uncle was screaming, was he, what was said, did he say anything
that you could tell us about, or he was just
shouting?--- He was
crying, like someone was screaming, [indistinct].
Did you not go to find
out what was happening with the uncle? --- As he had chased us away,
we had no interest of returning to find
out what was happening.”
[78]
Then the defence attorney took it further:
“
---Mr Mbelane,
the way I understand it, the complainant in his matter, you in
fact, might not be friends, but you will spend
time together, you
will smoke together?--- Yes. He was not our friend, but we used
to go to his place or residence and smoke
there.”
“…
So, it
is not someone that, if something has happened to him, be it that he
is mugged, he is robbed, in your presence you would
help him.
You will not turn you back and walk away, obviously not? --- We could
not help them, because he chased us away.
Who had chased you
?
--- The chased us away, He said there is something that he wanted to
do and to [indistinct].
(
My emphasis
).
…
Fair enough,
you were outside. The fact of the matter is, you heard him
screaming, as if someone was throttling him.
You were there,
you heard it? --- Yes. That happened.
And obviously, you
heard what was going on. You were just smoking with him a few
minutes ago. But you continued to go
home? --- Because we were
not scared (sic), as these guys had chased us away. I said to
my other friend that it is best we
go home.”
[79]
Mfecane was clearly in trouble with the questioning and started being
evasive and contradictory. Who had chased him away?
Was
it the complainant? If not why they did not help him? But of
course it could not have been the complainant because on
Ngabisa’s
version, the complainant had gone to sleep when the other people
arrived and when Mfecane and Ngabisa left.
[80]
Clearly if they were as innocent as they alleged, they would have
come or should have come to the assistance of the complainant.
They did not act in accordance with human experience. You spent
the night with someone, you have together been smoking whatever
they
were smoking, you used to visit and smoke with that person and when
that person was in trouble you become indifferent to his
plight.
Instead of going to the police or scream for help for him, you decide
to go and look for another smoke.
[81]
In my view, the trial court considered its witnesses’ evidence
in isolation and did not evaluate their evidence with
other evidence
placed before it. For example, it should have been difficult to
reject the evidence of the complainant’s
sister that the two
witnesses called by the court were part of the people who had robbed
the complainant or at least her evidence
should have left some doubt
in the case against accused 1.
[82]
Dealing with credibility, in my view, the trial court did not
consider other aspects of the evidence of Mfecane and Ngabisa.
Their evidence in chief as led by the court left much to be desired.
Mbfecane’s evidence in chief unfolded as follows:
“
We were inside
Bongani’s shack. As we were in the shack, whilst working
he made us to watch movies. We were in
the company of his
uncle. Bongani was working. He needs to come and left
there. He came back in the company of
his other friends and
then he asked that we should give him space and that we should
leave. That is when leaving, at the
gate, we heard his uncle
screaming and the friends ran-away”.
[83]
This evidence in my view, was materially in contrast to the version
of Ngabisa which in chief led by the court emerged as follows
and I
quote at the risk of prolonging this judgment:
“
We were smoking
and we were seated. What made us to leave, Your Worship, is that
accused 1 came with his friends and they robbed
his uncle. That
is what made us leave.
Were you present when
the robbery took place? --- I was present when part thereof was in
the process, not the rest of it, Your Worship.
Can you tell us then,
what you know? --- We were seated watching movies, smoking.
Accused 1 said he is going to church.
There is a night vigil.
Then he left us with his uncle. We were still watching.
Then, he said, when we were about
to leave, we should close the door
and that is when he left us with his uncle. He came back.
That was the first time
and he still found us there. Then, he
asked us as to when we will be done. We said we will be done
any time soon.
Then, he went out again. He said he is
going back to the night vigil. Around 11, he came back with two
of his friends.
They sat down. Then the third one said he
asked a smoke from me. As they were, as he was smoking, the
[indistinct]
stood up. It is a two roomed house, it has been
partitioned. The uncle stays on the other side and there is no
light.
The uncle was already asleep and he left us, because we
were watching movies and he said he was going to sleep. Bongani
stood
by the door and the other two and then these other two grabbed
the uncle and I heard the voice of one then saying: “Where
is the money?” The other one, the other one, had already left.
I was busy picking up some of my stuff. Then we
left them, once
(whilst?) they were still wrestling with him. They reside in,
along the same [indistinct], we stood by the
gate and as I heard the
door, a door that was being slammed or banged. Then they came
out running. They went, or rather,
into Mabasa and, then that
is how it ended up. From there, I went to, I went home and the
police came in the morning.”
[84]
The contradictions are obvious. These are very material
contradictions, which in my view, should have watered down the
credibility of the court’s witnesses. I cannot agree that the
contradictions were not material. For example, Mfecane
said
nothing about accused 1 having stood and watched at the door whilst
the other two people were robbing the complainant.
This is very
material non-corroborative evidence which one would have been
expected to be corroborated by Mfecane if it did happen
as testified
by Ngabisa. The principle of common purpose could not have been
invoked on the facts of the case.
[85]
The evidence about the participation of accused 1 in the commission
of the offence was as quoted above. The difficulty
with this
evidence was of a single witness. A single witness who in my
view could not have been a neutral, seen in the
light of how
the police dealt with accused 1, 2 and 3 in the presence of the
witnesses. The police arrested the two
witnesses. In
their presence questioned and assaulted accused 1, 2 and 3 and only
thereafter were the court’s witnesses
questioned.
[86]
It was almost like: ‘‘
If you do not talk this is what
will happen to you
”. The credibility of these witnesses was
in my view, at stake right at the outset. If they are such reliable
witnesses who
had seen the commission of the offences, as they
testified, why did the prosecution elect not to call them as state
witnesses?
The state first closed its case and later applied
for the reopening, but still elected no to call them. Instead, he
called the
arresting police officer, whose evidence was on the report
made to him. Still the prosecution elected not to call any of
the alleged eye witnesses. This gives the impression that the
prosecution knew that it could not rely on their evidence.
[87]
For Ngabisa to say that accused 1 left for church, and then came back
and enquired as to when the court’s witness were
going to leave
and then thereafter left again and later returned with accused
2 and 3, in my view, without the corroboration
of Mfecane should have
been found fatal to any reliance on their evidence. What made
Ngabisa to see what he said he saw and
Mfecane did not see? Was
it because it never happened or was it because they were under the
influence of whatever they were
smoking?
[88]
Ngabisa said accused 1 when he returned for the last time with
accused 2 and 3, sat down and accused 3 then asked for a smoke.
As accused 3 was smoking, he stood up. That Mfecane must have seen if
it happened. Accused 1 stood by the door and accused
2 and 3
robbed the complainant and either accused 2 or 3 then said to the
complainant “
Where is the money?
” These are
details which Mfecane would not have missed if accused 1 returned
twice to the house that evening. To suggest
that, the fact that
their evidence did not tally, was a reflection of their honesty and
credibility, in my view, goes far beyond
acceptable differences in
their evidence.
[89]
Alleged evidence of standing at the door by accused 1, sitting down
together with accused 2 and 3, asking for the smoke
and
grabbing the complainant by accused 2 and 3 were so material that
Mfecane should have volunteered for the information without
been
asked. The fact that Mfecane left room, the evidence did not
suggest that, that was before accused 1 allegedly stood
at the door
and before the three accused sat down when accused 3 allegedly asked
for a smoke. In fact according to Mfecane
what happened was
that accused 1 ‘
came back in the company of his other
friends’,
and then he asked that, they ‘
should
give him space’
and they ‘
should leave’
.
They then left and at the gate, they heard ‘the uncle screaming
and the friends ran away’.
[90]
So, on Mfecane’s evidence, he left the room together with
Ngabisa, except to say he was not consistent with this version.
Therefore if what Ngabisa said had happened, did happen, Mfecane
should have seen. The suggestion that Mfecane left first
and
that he could not have seen everything ought to be seen in context.
The context is that most of the critical things would
have happened
in his presence if they were to be believed.
[91]
I am also not satisfied that the trial court correctly rejected
accused 1’s evidence and that of his witnesses as being
proved
to be false beyond reasonable doubt. For example, in its
judgment the trial court stated:
“
I find that I
can rely on the evidence presented to court by the state, in order to
come to a finding. Accused 1 expected, or wants
the court to believe
that he has got an alibi. It called two witnesses to
corroborate that. It is however, a problem
that Mr Milton
Sibeko testified that he saw accused at this night vigil.
The accused before
court,
accused 1, does not indicate the same
locality
, as to where this vigil would have taken
place. Accused 1 stated it was at the church at Extension 3.
Initially, Mr
Milton also referred to a church in Extension 3, but
eventually ended up saying that, in fact, it was in the tent at this
Emily
person’s family’s house. Both cannot be true”.
(
My emphasis
).
[92]
This finding is also echoed by Mabuse J in his judgment to which as I
said, I am unable to agree. I can do no better
than quoting the
relevant portion of accused 1‘s evidence. But before
that, it is important to state how Mabuse J deals
with the issue in
his judgment:
“
[50] The court
a quo rejected, on grounds that it pointed out, the appellant’s
alibi. It rejected that alibi on the
grounds that Milton and
the appellant differed materially with regard to the venue where the
event of 7 August 2011 was held and
the nature of the event that they
attended. Each one of them testified about a different event
that was held on the evening
of 7 August 2011 until the following
day. The appellant testified that he attended a night vigil at
a church at Extension
3 whereas Milton himself was adamant that it
was a cleansing ceremony, and not a night prayer, that he attended at
a house of a
certain member of church at Extension 3. Two
people who attend the same event at the same place are unlikely to
describe
it wrongly and to say that it was held at two different
places.”
[93]
Whether a terminology is given to the church event as “
night
vigil
”, “
cleansing ceremony
” or “
night
prayer
”, in my view, is not material and I do not think
that the evidence suggested that the ‘
event was held at two
different places
’. Of relevance, accused 1’s evidence
was as follows:
“
Where were you
going? ---
I
was going to church.
Where is this church
that you are attending? --- It was at Extension 3.
Was there anyone in
specific that you can recall that you spent time with or can confirm
that you were
at the church gathering
that evening? --- Yes.
There is someone, this guy, he used to stay at Daveyton.
Due to the passing away of his
family he lives now and moved, he
relocated to Tsakane.
He was present that
evening. He spent the entire night there with you up until
the
gathering
had ended?--- Yes.
What time did you, did
this
gathering
end…it was seven in the
morning that it ended or started? --- The gathering started around 11
and ended around six o’clock
in the morning”.
(
My
emphasis
).
[94]
Then in cross-examination, of relevance, his evidence proceeded:
“
Sir, what
church
ceremony
were you
attending that evening? ---
It
was a night prayer
.
An overnight
prayer
? ---
That is an all night
prayer
,
All night prayer and
the pastor was there? It is correct?—Yes.”
(
My
emphasis
).
[95]
This evidence must be seen in the context of the remarks Mabuse J
makes in paragraph 53 of his judgment:
“
[53] During his
testimony, even before he was asked, Milton told the court that on 7
August 2011 he was with the appellant.
This response shows
quite clearly that he had been couched what to say. Milton
himself did not mention Simelane. Surely
if he saw the
appellant at the ceremony then he should have seen Simelane who was
at all material times with the appellant
.
Finally, they could not have seen each other because they were at
different places where they each attended different events.
Milton himself prevaricated with regard to the nature of the event he
attended that evening. Initially he testified that
the event he
attended was a prayer service. Later he changed and told the
court that it was a cleansing ceremony. In
this evidence- in
–chief he testified that the event they both attended with the
appellant was held at a church. Later
under cross- examination
they did not have a church.”
(My
emphasis).
[96]
“…
They could not have seen each other because they
were at different places, where they each attended different
events…,
” with respect, cannot be correct.
Clearly, that there was a church gathering was not in dispute.
The evidence
of accused 1 quoted earlier lays emphasis on a ‘
church
gathering
’. Nowhere did he mention that the gathering
was inside a church
building
. ‘
Church
gathering
’, does not have to be inside a church building in
order to qualify as a “
church gathering
”.
Members of a particular church who come together and pray can in my
view, constitute a “
church gathering
”.
Reference to the “
night prayer
”, “
night
vigil
” or “
cleansing ceremony
”, without
details from the user of the words cannot be concluded to constitute
a contradiction, particularly used in a language
that is not one’s
mother tongue.
[97]
Both accused 1 and his witness Mr Milton Sibeko indicated that the
event was at Extension 3. Accused 1 was never asked exactly
where in
Extension 3 was the event, neither was he asked what was the nature
of the “
church gathering
”. Details only
emerged during the evidence of his witness and in my view, Mr Hilton
Sibeko was a good witness.
[98]
Perhaps examination and evaluation of his evidence is important.
On the evening in question he attended a church service.
His
evidence in chief unfolded
inter alia,
as follows:
“…
Now,
so obviously, you know the reason why you are here Mr Sibeko, accused
1 is charged with a certain robbery. The incident,
according,
it would have happened on the 7
th
August
last year, August? --- Now, before the Lord, I was with this boy in
church. You’re Worship, on the 7
th
August
2011,
in
Extension
3
”.
(My emphasis).
[99]
I see no contradiction about the area where the ceremony was held.
“
In church
”, must be seen in the context of what
is stated later hereunder. It suffices to mention that ‘
in
church
’, cannot be confined to its literal meaning, say, of
being inside a church building. In any event, the witness’s
evidence
was later clarified and I am unable to see any
contradiction.
[100]
His evidence furthermore proceeded in chief as follows:
“
Is it said time
that
this
thing
,
this
ritual
,
or wherefore you go there. Was
like
a specific prayer or just a normal routine prayer
?
--- In fact, Your Worship, this was
specifically
a ceremony
,
or
a
ritual
,
Your Worship, after a certain lady had passed on. So,
this
was a cleansing
,
one
of the cleansing ceremony
”
.
(My
emphasis).
[101]
It is important, to note that until the defence counsel came with
words like “
this ritua
l
”, “
this
thing
” “
specific prayer
” or
just “
a normal routine prayer
”, the
witness had only referred to the event of having been at a
church or gathering “
for prayer purpose
”.
So, the mentioning of several words like, it was “
specifically
for a ceremony
” or “
a ritual
” and “
a
cleansing, one of the cleansing ceremony
”, should be seen
in context, also bearing in mind that an interpreter was used during
the witness’s evidence.
To see usage of these various
words, as a contradiction in my view, would not be justified.
[102]
Again his evidence further in chief, proceeded:
“
And, lastly, Mr
Sibeko, tell me, at who, was this held in the church or where was
this ceremony held? --- Okay, the church
was being used
by, the church building was being used at the time, your
worship. Other people had, I think
they hired the church
building. So, we got a tent and we conducted the ceremony at
the residence, Your Worship, or that the
particular family.”
[103]
The trial court saw this as a contradiction, the witness
contradicting himself and accused 1. Mabuse J also seems to
agree in this regard with the trial court’s finding. I do not.
I see this as a clarification. It was a clarification
which appears
to confirm my sentiments earlier. In all probabilities, if accused 1
was asked the same question the answer would
have been the same as
clarified by Mr Milton Sibeko. That is, being at church or
going to church does not necessarily mean
inside a church building.
You can attend church or prayer meeting anywhere, whether being
inside tent and at another person’s
home, as was the case here.
For this, accused 1 in his evidence as quoted above, never mentioned
that he was at a church inside
a church building. ‘
I was
with this boy in church
’ as indicated by Mr Milton Sibeko,
in my view, was satisfactory clarified. The evidence as clarified by
the witness that
there was a tent erected at this particular home and
“
I was with this boy in church
”, should have been
understood in proper context and not as a contradiction.
[104]
Similarly, I do not think the evidence of Mrs Sibeko should have been
rejected as completely unreliable. She must have
been the one
who led to the arrest of the two court’s witnesses, if not the
complainant or accused 1. As I said earlier,
the conduct
of the two witnesses in being indifferent to what had happened or was
happening to the complainant on their
own version , did not
portray them as innocent people, otherwise, they would
have come to the assistance of the complainant.
[105]
There is another factor which concerns me. The complainant is
an uncle to accused 1. The court’s witnesses were
well known to
him although they were not friends. The three of them were
staying in the same vicinity. On Ngabisa’s
version,
accused 1 returned with accused 2 and 3, sat down and then accused 1
stood up and moved to the doorway almost like blocking
the way out or
watching who was coming whilst at the same time accused 2 and 3 were
robbing and assaulting his uncle. That does
not make sense. Why
would accused 1 do that to his uncle? But, most importantly,
why would accused 1 participate in
the robbery of his uncle in full
view of the two people who knew him so well? If accused 1 was there
and wanted to rob or have
his uncle robbed, he could have done so
after he had ensured that the two court’s witnesses had gone.
But according
to Ngabisa, the robbery started whilst he was still
inside the house and accused 1 stood at the doorway.
[106]
The trial court did not have to accept accused 1‘s version in
order to have found him not guilty. Even if the trial
court had
rejected accused 1’s version, it still had to be satisfied that
the guilt of accused 1 was proved beyond reasonable
doubt.
Reliance on the evidence of the court’s witnesses for proof of
the guilt of accused 1 beyond reasonable,
in my view, was not in line
with the evidence presented.
[107]
Had it not have been for my finding above, I would have difficulties
in finding that the trial court erred in finding that
there were
compelling and substantial circumstances justifying a lesser sentence
than the prescribed minimum sentence of 15 years
imprisonment. Having
found that there were compelling and substantial circumstances
justifying a lesser sentence, the trial court
in the exercise of its
discretion imposed a sentence of ten years imprisonment. I am unable
to find any misdirection in this regard.
[108]
Consequently I would make an order as follows:
108.1 The appeal of the
appellant (accused 1) on both conviction and sentence is hereby
upheld.
108.2 The conviction and
sentence are hereby set aside and substituted as follows:
“
Accused 1 is
hereby found not guilty and discharged
.”
_________________________
M F
LEGODI
JUDGE
OF THE HIGH COURT
Appearances
:
Counsel
for the Appellant: Adv.
F van As
Instructed
by: Pretoria
Justice Centre (Legal Aid Board)
Counsel
for the Respondent: Adv.
PCB Luyt
Instructed
by: Director
of Public Prosecutions
Date
Heard: 29
April 2016
Date
of Judgment: June
2016