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[2016] ZAGPPHC 657
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Skhosana v S (A126/15) [2016] ZAGPPHC 657 (15 July 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
15/7/2016
CASE
NO: A 126/15
NOT
REPORTABLE
MFANAFUTHI
WONDERBOY
SKHOSANA
Appellant
and
THE
STATE
Respondent
JUDGMENT
TEFFO,
J:
[1]
The appellant was convicted in the regional court, Heidelberg, of
murder and attempted murder. He was sentenced to 20 years
imprisonment for murder and 10 years imprisonment for attempted
murder. The court further ordered that the sentence of 5 years
imprisonment imposed on the charge of attempted murder, should run
concurrently with the sentence imposed on the count of murder.
Effectively the appellant had to serve a sentence of 25 years
imprisonment. He now appeals against his conviction and sentence
leave having been granted by the trial court.
The
appeal against conviction
[2]
The issues raised in the appeal against conviction were that the
trial court erred in finding that the State proved its case
beyond a
reasonable doubt. It was argued that although the appellant did not
testify, that did not relieve the State of its duty
of proving its
case beyond a reasonable doubt. A submission was made that the
evidence of Mr Petrus Engelbrecht and Mr Thabang
Mosweli, was not
credible. It was pointed out that even if the trial court found that
the appellant's alibi was false, that did
not make the appellant the
perpetrator of the offences. It was further submitted that the mere
fact that the appellant did not
testify, had been held against him.
It was accordingly pointed out that the regional court's evaluation
of the evidence was flawed
and misdirected.
The
appeal against sentence
[3]
A submission was made on behalf of the appellant that the trial court
erred in sentencing him to an effective term of 25 years
imprisonment. It was argued that the trial court erred in
over-emphasising the seriousness of the offence and the interest of
society while under-emphasising the personal circumstances of the
appellant. The trial court did not put any weight, so it was argued,
to the period of time the appellant spent in custody while awaiting
trial. It was accordingly pointed out that the sentence imposed
is
shockingly disproportionate to the offences.
[4]
The State disagreed with the submissions made on behalf of the
appellant on both conviction and sentence. It was argued on behalf
of
the State that the appellant was correctly convicted on the two
offences and that the sentence imposed is justified.
The
evidence
[5]
The State called three witnesses, namely Mr Petrus Engelbrecht, Mr
Thabang Mosweli and Ms Refilwe Theresa Molau in support
of its case,
while the appellant did not testify and/or call any witness in
defence of the allegations against him.
[6]
Mr Petrus Engelbrecht testified that on the night of 27 to the
morning of 28 November 2010, he was at Nigel at the old beer
hall
where he resided. He was in the company of his deceased brother, Mr
Hans Engelbrecht, sleeping in their room. At approximately
24:00 he
heard people fighting in front of the beer hall. Suddenly someone
came to their room, approached the deceased and fought
with him with
fists. He woke up from his sleep and noticed that Sugarboy was busy
assaulting the deceased. Sugarboy was carrying
a hammer in his hand.
At the time he wanted to stand up to go and help his brother, he
realised that Sugarboy had already injured
him.
[7]
Sugarboy also fought with him with the intention to injure him. The
hammer fell from his hand. He ran for it, picked it up and
came to
him. He pushed him to the bed repeatedly and he fell on his knees. He
subsequently hit him with the hammer at the back
on the middle part
of his head and he lost consciousness. He fell on the bed, could not
do anything and eventually woke up at the
hospital where he was
treated for the injuries he sustained during the incident.
[8]
He spent three days at the hospital. His brother later passed
on. He knew the appellant prior to the incident. He
met him in
town. In the room where he was attacked together with his deceased
brother, there was no electricity but a candle light
was on when the
incident took place. There was also moonlight outside. The appellant
kept him and his brother busy for a period
of between 35 to 45
minutes. The appellant was wearing a black jean, a blue top and a
hat. He never saw the appellant again after
the fight but only
started seeing him in court.
[9]
Under cross-examination he testified that he knew the nickname of the
appellant as Sugarboy and Two boy. When told that the
appellant would
testify that he did not know the two nicknames, he said many people
including his friends knew the appellant as
Wonderboy, Sugarboy and
Two boy. Prior to the incident he did not know the appellant's real
name. He only knew him by sight. He
saw him 3, 4 or 5 months prior to
the incident. When the appellant entered their room on the night of
the incident he knew it was
Two boy. He met the appellant many a
times prior to the incident at Jabula tavern where he used to work
with his deceased brother.
He could not say which year but said it
was not the year of his brother's death. Later on he said it could
have been in September
2009. Prior to the incident he had taken four
bottles of 750 ml Reds cider. He disputed that he made a mistake that
it was the
appellant he saw in his room, who fought with his deceased
brother and him. When told that the appellant was in custody from
October
2009 to 18 November 2010, he was adamant that although he
cannot say which month, he saw the appellant in 2009. It was put to
him
that the appellant would testify that after his case was
finalised in Nigel on 18 November 2010, he went to stay with his
sister
in Orange Farm. He reiterated that he personally saw him in
his room fighting with him and his deceased brother. He further
stated
that it was him who injured him and his deceased brother.
[1
0]
Mr Thabang Mosweli also testified. His evidence was briefly as
follows: On the night of 27 to 28 November 2010 at midnight,
he
was at the old Nigel beer hall sleeping. A certain male person who he
heard people calling him Two Boy, arrived at the beer
hall and broke
one of the windows that was not being used. Subsequently he went to
speak to the old woman in one of the rooms in
the building. Later on
he heard him speaking in the deceased and Mr Petrus Engelbrecht's
room. He did not see him assaulting the
Engelbrecht brothers in their
room. He had visited his brother at the building. As he lit a
cigarette, the appellant approached
him and asked him what did he
want there. He explained to him that he was from Tsakane and that he
came there to visit his brother.
As and when he spoke to him, he
grabbed him with his hair. He left him, asked for a cigarette and
left. When he spoke to him his
candle light was on. Their
conversation could have lasted for 5 minutes. He did not know his
name but used to see him walking on
the street. He could have seen
him two to three days before the incident. He was wearing short pants
and black grasshopper shoes.
He never saw him again after the
incident but was seeing him in court.
[11]
As and when the appellant went to speak to other people in the
building he could not hear properly what they were saying but
heard
when he was speaking to the old woman where mention was made of the
two Engelbrecht brothers. The old woman that the appellant
spoke to,
passed on.
[12]
When told under cross-examination that the appellant would testify
that he was never at the beer hall that night, he was with
his sister
in Orange Farm, he was adamant that it was him and said when he
grabbed him with his hair, he told him that he was Two
Boy from
Newcastle and that his surname was Skhosana. He further testified
that as he was assaulting the two Engelbrecht brothers,
they were
calling each other with their names until the other one just went
quiet while the other one continued screaming. When
he woke up in the
morning, he saw that the two Engelbrecht brothers were injured. His
further evidence was that the appellant was
in the company of a
certain lady who was left outside when he entered the building. In
the three months preceding the incident,
he saw the appellant at
least 3 or 4 times. Although he saw him, the appellant was not the
person he was used to.
[13]
He conceded that the appellant was in prison from October 2009 to
November 2010 as he heard from people who knew him saying
he came
from prison. He heard that the appellant and the deceased were
fighting for Manyani. He heard that the deceased had a love
relationship with Manyani and when he was hit with a hammer, he was
asked why did he have a relationship with Manyani. When the
appellant
was assaulting the two Engelbrecht brothers, Manyani was outside the
building crying.
[14]
Ms Refilwe Theresa Molau testified as follows: The appellant is her
ex boyfriend. He is the father of her children. She
also knew
the deceased. He was working at Jabula tavern at night. She also knew
the deceased's brother, Mr Petrus Engelbrecht.
On 27 November 2010
she was also at Jabula tavern in Nigel. Upon her arrival at the
tavern, she went to sit with her friend. Afterwards
she went to the
toilet. She saw the appellant sitting with his friends while she was
on her way to the toilet. The appellant greeted
her and she
responded. She went into the toilet. When she came out of the toilet,
the appellant called her. She did not go to him,
instead, she went to
join her friend for some time and later on she went out. She
requested one Fox to accompany her to Elra
Park. She left the tavern
with Fox. She did not see the Engelbrecht brothers at Jabula tavern
that night.
[15]
Under cross-examination she testified that Jabula tavern and the old
beer hall are far away from each other but the distance
is not long.
She testified that she left Jabula tavern after 24:00 but before
01:00. She disputed that the appellant was not in
the Nigel/Aura Park
area on 27 and 28 November 2010 and that he visited his sister at
Orange Farm. She maintained that she saw
the appellant on 27 and 28
November 2010 in the night. The court asked her how did she remember
the two days as the incident happened
a long time ago, she said
during at the time of the incident she had relocated to Mpumalanga. A
day after the incident she left
to Mpumalanga and two days later, she
received a call where she was informed that the police were looking
for her. She did not
have a relationship with any of the Engelbrecht
brothers. They were just friends.
[16]
The appellant closed his case without testifying and/or calling any
witnesses. This completes the summary of the evidence led
in the
regional court.
[17]
The crux of this appeal revolves around the identification of the
appellant as the perpetrator of the offences committed. It
has been
argued that the trial court should not have relied on the evidence of
Mr Petrus Engelbrecht and Mr Thabang Mosweli when
it made its
findings as their evidence was not credible and reliable.
[18]
In
R
v
Shekelele
and
Another
1953
(1)
SA
636
(T)
at 638F-G the court remarked that honest but mistaken
identification frequently caused gross injustices. To avoid such
injustices
the court remarked that in all cases that turn on
identification of an alleged offender by a witness, the greatest care
should
be taken to test the evidence. A bold statement that the
accused was the one who committed the crime, is not enough. Answers
to
relevant questions about the culprit's physique, complexion,
peculiar features and wearing apparels, if not properly interrogated,
just like an untested and unexplored bold statement which has not
been inquisitively investigated, can leave the door wide open
for the
reasonable possibility of a big mistake.
[19]
In
S v Mthethwa
1972
(3)
SA 307
(A)
at
768A the court said the following:
"...because
of
the
fallibility
of
human
observation,
evidence
of
identification
is
approached by
the
courts
with
some
caution.
It
is
not
enough
for
the
identifying
witness
to
be
honest:
the
reliability of
his
observation
must
also
be
tested.
This depends
on
various
factors,
such
as
lighting,
visibility
and
eyesight,
the proximity
of the witness,
his opportunity
for observation,
both
as to the time and
the situation,
the
extent of his prior
knowledge
of the accused,
the mobility
of the scene,
corroboration,
suggestibility,
the accused's
face,
voice, build, gait
and dress,
the
result of the identification parade, if
any, and of
course, the
evidence by or
on
behalf of the
accused.
The
list is not
exhaustive.
These
factors
or
such of them that are applicable
in
a
particular
case
are not
individually
decisive,
but must
be
weighed one
against
the
other,
in
the light of the
totality of the evidence and the probabilities."
[20]
Both Mr Petrus Engelbrecht and Mr Thabang Mosweli testified that they
knew the appellant by sight. Mr Petrus Engelbrecht further
testified
that he saw the appellant many a times prior to the incident at
Jabula tavern where he previously worked. Coupled with
this evidence
he also stated that he saw the appellant 3, 4 or 5 months prior to
the incident. He also mentioned that he last saw
the appellant in
September 2009 at Jabula tavern. When he was told under
cross-examination that the appellant was in prison from
October 2009
to 18 November 2010, he testified that although he could not remember
the month he could have seen him in 2009. According
to his evidence
he and his deceased brother used to work at Jabula. From his evidence
there are many versions. Firstly, he stated
that he saw the appellant
many a times at Jabula tavern prior to the incident. Secondly, he saw
him 3, 4 or 5 months prior to the
incident and thirdly, he last saw
him in 2009. The incident took place on 27 November 2010. If Mr
Petrus Engelbrecht last saw the
appellant in 2009 as he testified,
that could not have been 3, 4 or 5 months prior to the incident. His
evidence needed to be interrogated
further as it was not clear.
Further to this evidence I find it strange that if Mr Petrus
Engelbrecht last saw the appellant in
2009 suddenly someone entered
their room at night and he boldly said he knew it was the appellant.
He did not give any description
of the appellant. All what he stated
was that he was wearing a black jean, a blue top and a hat. He did
not say whether he was
able to see his face, could not explain how
the appellant was and there was no evidence to indicate which side of
the appellant
was he. He did not say which side of the appellant was
he able to observe to boldly say it was him. Nowhere in the evidence
did
he mention that he observed the appellant's face. There is
nothing in his evidence that said up to where on the appellant's head
and face did his hat sit and whether the hat did or did not obscure
his face.
[21]
Further to this evidence it is important to note that both Mr
Engelbrecht and Mr Mosweli mentioned that in the rooms where
they
were when they saw the appellant, there were no electricity lights
but only a candle light was on. Mr Engelbrecht also mentioned
the
moonlight. Illumination from a candle light is not as clear as light
from an electric light and neither can the moonlight provide
such
illumination. This coupled with the circumstances under which the two
state witnesses observed the appellant,
viz,
the fact that Mr Engelbrecht was drunk, was awaken from
his sleep by the fight, he did not state how or what he observed from
the
person who attacked him and his brother, the period that he
alleged he last saw the appellant, and the mobility of the scene,
puts
his identification of the appellant in doubt.
[22]
Mr Mosweli's evidence regarding the identity of the appellant was
also not convincing. His evidence was that he came to the
beer hall
where the incident took place on the day of the incident but also
mentioned that he saw the appellant on the street two
to three days
prior to the incident. I find it strange that the assailant could
have told him his name as he testified under the
circumstances of
what was happening at the time. He also did not give a description of
how the assailant looked like. At some stage
during cross-examination
he testified that he saw the appellant at least 3 or 4 times in the
three months preceding the incident.
His description of the clothes
that the assailant was allegedly wearing is different from what Mr
Engelbrecht said he was wearing.
Mr Mosweli mentioned the short pants
and grasshopper shoes while Mr Engelbrecht mentioned the black jeans,
a blue top and a hat.
It is surprising that while Mr Petrus
Engelbrect testified that the assailant had a hat on, Mr Mosweli did
not see it. The
assailant only spent 5 minutes with Mr Mosweli
according to his evidence.
[23]
I must mention that there were material contradictions in the
evidence of Mr Mosweli and Ms Molau (the last state witness).
Mr
Mosweli's evidence was that the appellant was in the company of Ms
Molau at the beer hall. According to him when the appellant
was busy
fighting with the Engelbreacht brothers inside the building, Ms Molau
was outside the building, crying. Ms Molau disputed
that she was in
the company of the appellant on the night of the incident. She
testified that she saw him at Jabula tavern but
did not go to him
even though he called her. She eventually left with one Fox to Elra
Park.
[24]
Nugent J in
S v Van den
Meyden
1999
(1) SACR 447
(W)
at 449C - 4508 said the following:
"Purely
as
a
matter
of logic, the
prosecution evidence does not need to be
rejected in order
to
conclude
that
there
is
a
reasonable
possibility
that
the
accused
might
be
innocent
but
what
is
required
to
reach
that
conclusion
is
at
least
the
equivalent possibility
that
the
incriminating
evidence might not be
true.
Evidence which incriminates
the
accused, and evidence
which exculpates him cannot both
be true. There is not even
a
possibility
that both might be true, the one
is possibly true only if there is an equivalent possibility
that the other is untrue
........ The
proper test is that
an
accused
is
bound
to be
convicted
if
the
evidence
established
his
guilt
beyond
reasonable
doubt, and the logical corollary is that he must be acquitted if it
is reasonably possible that he might be innocent.
The process of
reasoning which is appropriate to the application of that test in any
particular case will depend on the nature
of the evidence which the
court has before it. What must be borne in mind, however, is that the
conclusion which is reached (whether
to convict or acquit) must
account for all the evidence. Some of the evidence might be found to
be unreliable, and some of it might
be found to be only possibly
false or unreliable, but none of it may simply be ignored."
[25]
In
S
v
Chabalala
2003
SACR
134
(SCA)
at 140A-B it was held that when dealing with the
criminal trial, the correct approach is to weigh up all the elements
which points
toward the guilt of the accused against all those that
are indicative of his innocence, taking proper account of the
inherent strength
and weaknesses, probabilities and
improbabilities on both sides and, having done so, to
decide whether the balance
weighs so heavily in favour of the state
as to exclude any doubt to the accused's guilt.
[26]
In
S
v
Boesak
[2000] ZACC 25
;
2001
(1) SA 912
(CC)
at para
[24]
the court said
the following:
"The
fact
that
and
accused
person
is
under
no
obligation
to testify
does
not
mean that
there
are
no
consequences
attaching
to
a
decision
to remain
silent
during
the trial.
If there is
evidence
calling for an answer,
and an
accused person
chooses
to remain
silent in the face of such evidence,
a
court may
well be entitled to conclude that
the evidence is sufficient in the absence
of an
explanation
to prove
the guilt
of
the accused.
Whether such
a
conclusion is
justified
will
depend on the weight of the evidence.
What is stated
above is consistent
with the remarks
of
Madala
J,
writing for the court, in
Osman
and Another
v
Attorney-General, Transvaal,
when he said the following:
'
Our
legal
system
is
an
adversarial
one.
Once the
prosecution
has produced evidence sufficient to
establish
a
prima
facie case, an accused who fails to produce
evidence to
rebut that case is at risk.
The failure to testify does
not relieve the
prosecution of
its
duty
to
prove
the
guilt
of
the
accused
beyond
reasonable doubt.
An
accused,
however,
always
runs
the
risk
that,
absent
any
rebuttal,
the
prosecution's
case may be sufficient
to
prove the elements of the offence.
The fact that an
accused has to make such an election is not
a
breach of the right to silence.
If
the
right
to
silence
were
to
be
so
interpreted,
it
would
destroy
the
fundamental nature of
our
adversarial system of the criminal
justice."'
[27]
The state relied on the cases of
R
v Biya
1952
(4) SA 514
(A)
and
Abader
v
S
2010 (2) SACR
558
(WCC)
and argued that where a defence of an alibi
has been raised and the trial court accepts the evidence in support
thereof as being
possibly true, it follows that the trial court
should find that there is a reasonable possibility that the
prosecution's evidence
is mistaken or false. It was further pointed
out that the fact that an accused does not have to prove his alibi
does not meant
that he may not need to present evidence which may
support the alibi. In the end, the test is still whether, in view of
the totality
of the evidence, the State proved its case beyond a
reasonable doubt and whether the accused's version is reasonable
possibly true.
[28]
In the present matter the appellant raised an alibi at plea
explanation and this alibi was put to all the state witnesses that
testified. Ms Molau, was adamant that she saw the appellant at Jabula
tavern on the night of the incident as against what was put
to the
state witnesses by the appellant's counsel that he was in custody
from October 2009 to 18 November 2010 when he was released
and that
he went to reside with his sister at Orange Farm. Although it was
argued on behalf of the appellant that if Ms Molau left
Jabula tavern
before 01:00 where the appellant was still sitting with his friends,
he could not have also been at the beer hall
at the same time. That
argument has no merit in that none of the state witnesses were sure
about the times or said they looked
at their watches. Those times
were estimated times.
[29]
The trial court could have been correct in rejecting the alibi of the
appellant on the basis of the evidence of Ms Molau that
she saw him
at Jabula tavern but what is crucial is whether the appellant's
identification at the beer hall on the night of the
incident by Mr
Petrus Engelbrecht and Mr Mosweli was proved beyond a reasonable
doubt. I have analysed their evidence
supra
and have found them to be lacking.
[30]
It may very well be that the appellant was involved in the commission
of the offences but the evidence that he was seen at
the beer hall by
Mr Engelbrecht and Mr Mosweli is just a mere suspicion. The fact that
the appellant was seen at the tavern does
not necessarily mean that
he is the person who committed the offences at the old beer hall. In
the absence of the evidence by the
State proving the identity of the
appellant as the perpetrator at the beer hall on the night in
question beyond a reasonable doubt,
the court is left with the doubt
in its mind as to whether the appellant was properly identified as
the perpetrator.
[31]
In my view the evidence that was adduced by the State with regard to
the identification of the appellant at the beer hall was
poor. That
evidence accordingly did not call for an answer from the appellant.
His failure to testify can therefore not be used
against him. In my
view in the face of the State's unsatisfactory evidence, failure of
the appellant to testify did not advance
the State's case in anyway.
Failure by the appellant to testify, did not take away the onus which
rested on the State to prove
his guilt beyond reasonable doubt.
[32]
In my view the trial court erred in accepting that the evidence of Mr
Petrus Engelbrecht and Mr Mosweli was credible and reliable
in so far
as the identification of the appellant as the person who committed
the offences on the night of 27 November 2010 at the
old Nigel beer
hall. I am persuaded considering the totality of the evidence that
the State failed to prove the identification
of the appellant as the
perpetrator on the night of the incident at the Nigel old beer hall
beyond a reasonable doubt. The trial
court has therefore misdirected
itself by convicting the appellant on both counts. Its findings are
patently wrong.
(S
v
Hadebe
and
Others
1997 (2)
SACR
641
(SCA)).
[33]
It is therefore my view that the appellant could not be convicted on
the basis of a mere suspicion. The State has to prove
his guilt
beyond a reasonable doubt.
[34]
l find it unnecessary to deal with the issue of sentence. [35]
In the result I make the following order:
35.1
The appeal against the conviction and sentence of the appellant is
upheld;
35.2
The conviction and sentence of the appellant by the court a
quo
are set aside and replaced with the following:
"The
accused is found not guilty and discharged."
_______________________________
M
J TEFFO
JUDGE
OF THE HIGH OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
I
agree
_________________________________
M
MADIMA
ACTING
JUDGE OF THE HIGH COURT SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Appearances:
For
the appellant :
MB Kgarara
Instructed
by :
Pretoria Justice Centre
For
the Respondents :
H Creighton
Instructed
by :The
Director of Public Prosecutions
HANDED
DOWN ON 15 JULY 2016.