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[2016] ZAGPPHC 860
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Maimela v S (A89/2016) [2016] ZAGPPHC 860 (21 September 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH
A
FRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO: A89/2016
DATE:
21/9/2016
In
the matter between:
THABO
.
MARCUS
.
MAIMELA
.
................................................................................
Appellant
and
THE
.
STATE
.......
.................................................................................................
Respondent
Case
Summary: Criminal Law - Robbery with aggravating circumstances; Rape
of a 14 year old girl ; Discharging a firearm in a built
up area or
any public place; and Kid napping- An appeal against conviction on
Robbery with aggravating circumstances; one count
of Rape;
Discharging a firearm in a built up area or any public place; and
Kidnapping-Conviction confirmed on appeal.
ORDER
The
appeal against conviction is dismissed.
JUDGMENT
MOLOPA-SETHOSA
J (Van der Westhuizen AJ concurring)
[1]
The appellant in this matter, Thabo Marcus Maimela (1st accused in
the court
a quo),
together with his co-accused, Mpho Moloi
(2nd accused in the court
a quo),
appeared in the Regional
Court for the Regional Division of Gauteng, held at Benoni, on the
following charges:
[1.1]
Count 1: Robbery with aggravating circumstance;
[1.2]
Count 2: Contravening Section 3 of Act 32 of 1997 (Rape), read with
the provisions of section 51 (1) of
Criminal Law Amendment Act 105 of
1997
;
[1.3]
Count 3: Contravening Section 3 of Act 32 of 1997 (Rape), read with
the provisions of section 51 ( 1) of
Criminal Law Amendment Act 105
of 1997
;
[1.4]
Count 4: Discharging a firearm in a built up area or any public
place; and
[1.5]
Count 5: Kidnapping.
[2]
On the 25th of September 2013 the appellant pleaded not guilty to all
charges. The appellant was subsequently found guilty on
counts 1, 2,
4 and 5 on the 29th of June 2015, and was found not guilty and
acquitted on count 3.
[3]
On the 04th August 2015 the appellant was sentenced as follows:
[3.1]
Count 1: 15 years' imprisonment;
[3.2]
Count 2: 18 years' imprisonment;
[3.3]
Count 4: 2 years' imprisonment;
[3.4]
Count 5: 5 years' imprisonment;
[4]
The sentences in counts 1, 4 and 5 were ordered to run
concurrently
with the sentence in count 2. The effective sentence of the appellant
is therefore 18 years' imprisonment.
[5]
The appellant was legally represented during the proceedings in the
court
a
quo.
[6]
On the 31st of August 2015 the appellant brought an application for
leave to appeal only against his conviction before the learned
magistrate. The application for leave to appeal against his
conviction was granted. The present appeal is directed only against
conviction
[7]
The genesis of the convictions and the sentences arose from events
which occurred on 26 August 2012 at Wattville, Benoni. The
appellant,
together with his co-accused ("accused no.2"), robbed the
complainant in count 1[one T R] ("R")
of an LG 100
cellphone, using a firearm. R was at the time in the company of the
complainant in count 2 [one G Marobane] ("M"),
and one S M
("M"). Thereafter the appellant and his co-accused
forcefully pulled/took the complainant in count 2, M,
against her
will, to an open veld, where he and his co-accused both raped her. R
and M who witnessed the appellant and his co-accused
pulling M
towards the veld ran away and sought help from members of the
community to help in rescuing M. When members of the community
approached the veld where M was pulled to, the appellant fired shots
towards the members of the community; one of the community
members
also retaliated by firing shots. The appellant and his co-accused
then ran away, but the members of the community gave
chase and the
appellant was caught and assaulted by the members of the community,
there and then, near the scene of rape. The police
also arrived at
the scene and the appellant was then arrested near the scene of the
crime. These facts are borne out of the evidence
of R, M, and M,
which were accepted by the trial court.
[8]
In appealing against his conviction, the appellant disputes that he
committed the offences he has been convicted of. He disputes
that he
was ever in the company of his co-accused/accused no.2 when the
offences were committed. His co-accused/accused no.2 admitted
having
committed the offences together with the appellant as testified by
the state witnesses/complainants.
[9]
The three state witnesses aforesaid, i.e. T R, G M and S M all
maintained that accused no.2 was in company of the appellant
during
the commission of the offences herein. They identified the appellant
as the man who was in possession of a firearm, and
who had fired
shots during the commission of the offences aforesaid.
[10]
From the evidence on record, and as correctly set out by the
respondent in its heads of argument, the following are common
cause
and/or are not disputed that:
[10.1]
R, M and M were sitting in the soccer field watching music videos on
a big screen television set.
[10.2]
Accused no.2 (Mpho Moloi), who was well known to M and M, and another
man approached them. The other man produced a firearm
and fired
several shots, and demanded whatever they had.
[l
0.3] Accused no.2 and his companion robbed R of his LG 100 cell
phone, valued at approximately R600.00. An LG 100 cellphone was
found
in the possession of the appellant upon his arrest shortly after the
robbery.
[10.4]
Accused no.2 and his companion forcefully pulled M, against her will,
to the veld where they both raped her.
[10.5]
R and M approached community members and requested them to assist
them in rescuing M.
[10.6]
When the community members together with R and M approached the scene
of rape, accused no.2' s companion fired several shots
at the
community members at the scene to try to scare away the community
members together with R and M.
[10.7]
One of the community members also retaliated by firing shots. Accused
no..2 and his companion then began to run away and
members of the
community chased them.
[10.8]
M correctly identified accused no.2 [who admitted this], as one of
the perpetrators.
[l
0.9] There were no lights at the scene except the lighting of the big
screen television; however, all three state witnesses could
see
exactly what was happening at the scene, including the robbery of the
cell phone.
[10.10]
M could see that both accused no.2 and his companion raped her.
[l0.11]
Even the community members, together with R and M could see accused
no.2 and his companion with M in the veld and approached
them.
[11]
There is also no dispute [on appellant's vers10n, m his plea
explanation, as well as put to G M and accused no.2 under cross
examination], that on the night in question, the appellant was in the
company of accused no.2.
[12]
It is also common cause that on the night in question the appellant
had consumed liquor/alcohol, and smelt of alcohol. This
was not
disputed. It is further common cause that the appellant wore a red
jacket on the night in question, with which M identified
him. The
only difference is that the appellant says the red jacket also had
some back colour as well whereas M said it had yellow
stripes on the
shoulders.
[13]
The only issue on this appeal is whether the appellant is the man who
was in company of accused no.2, as testified by the state
witnesses,
and corroborated by his co-accused [accused no.2], who is his cousin,
when the offences herein were committed.
[14]
Counsel for the appellant submitted that the state did not prove its
case beyond reasonable doubt because the guide lines laid
in S
v
Mthetwa
1972 (3) SA 766
(A) were not completely followed, in that
there were no lights at the scene of crime except for the lighting of
the big screen
television; that therefore the appellant could not
have been properly identified by the state witnesses, including the
complainants,
as the perpetrator. Further that the firearm was not
recovered from the appellant even though he was arrested immediately
near
the scene.
[15]
The appellant testified at the court
a quo
that on the night
in question he was just standing in the street next to the gate at
his home when members of the community approached
and enquired from
him if he had seen Mpho, accused no.2, and another boy who was dark
in complexion, to which he replied that he
had not seen them. That
without any reason whatsoever the members of the community then
started assaulting him. Counsel for the
appellant then submitted to
this court that it was unfortunate that we, the appeal judges, were
not familiar with Watville, and/or
with the area where the offences
were committed; that the appellant's home is in the vicinity of the
veld where the crime was committed,
hence he/appellant having been
assaulted and arrested nearby the veld. It is significant to mention
at this stage, that this aspect
[of the appellant's home being in the
vicinity of the veld where the crime was committed; hence
he/appellant having been assaulted
and arrested nearby the veld] was
never raised and/or mentioned in his evidence under oath at the court
a quo.
In his plea explanation the appellant stated that on
the night in question he was in the company of accused no.2 at the
street where
accused no.2 resides, which street is not even next to a
veld. That the members of the community came looking for two
gentlemen,
one fat and one tiny, and that since he and accused no.2
fitted that description they were chased by the members of the
community
and they were both caught and arrested there and then. I
deal with this aspect in detail further below.
[16]
Basically the issue at hand pertains to the identity of the appellant
as one of the perpetrators of the offences in question
herein. It is
so that guide lines were set out in S
v Mthetwa
1972 (3) SA
766
(A) at 768A-B, and S
v Miggel
2007 (1) SACR 675
(C) at
678d-h, which may assist the court in determining whether there has
been proper identification of a perpetrator.
[17]
Holmes JA in S
v Mthetwa supra,
at 768A-B stated 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
time
and
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
identification
parades,
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 as 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.
"
[My underlining]
[18]
As already mentioned above, the three state witnesses aforesaid,
i.e.
T R, G M and S M all maintained that accused number 2 was in company
of the appellant during the commission of the offences
herein. They
identified the appellant as the man who was in possession of a
firearm, and who had fired shots during the commission
of the
offences aforesaid.
[19]
Besides being identified by these three witnesses, there is abundant
evidence that link the appellant to the commission of
the offences.
Immediately after the robbery, the appellant was found in possession
of the LG 100 cell phone which belonged to T
R M was adamant that he
could clearly see the appellant and accused no.2 through the light
reflection from the big screen television,
as the two came from the
direction of the television screen that he was watching at the time.
G M never lost sight of the appellant
as he was chased and eventually
caught by the members of the community. She/M further confirmed to
the police immediately after
his arrest that the appellant was one of
the perpetrators that raped her. She identified him, amongst others,
by his very light
complexion [which is not in dispute] and the red
jacket he had been wearing on the night in question. From the
evidence on record
M was in the presence of the appellant and accused
no.2 for a significant period of time. The appellant held her very
closely as
he forcefully pulled her towards the veld where she was
eventually raped by the two perpetrators. She had ample time to see
and
to recognize him.
[20]
The appellant testified in his own defence and closed his case
without calling any defence witnesses. As already stated here
above,
the appellant testified that on the night in question he was just
standing next to the gate at his home when members of
the community
enquired from him if he had seen Mpho, accused no.2, and another boy
who was
dark
in complexion, to which he replied that he
had not seen them. That without any reason whatsoever the members of
the community then
started assaulting him; that he lost consciousness
and only woke up at hospital surrounded by two police officers, [my
underlining].
As already stated here above also, in his plea
explanation the appellant stated that on the night in question he was
in the company
of accused no.2 at the street where accused no.2
resides, which street is not even next to a veld where the crimes
were committed.
That the members of the community came looking for
two gentlemen, one fat and one tiny, and that since he and accused
no.2 fitted
that description they were chased by the members of the
community and they were both caught and arrested there and then.
[21]
In cross examining G M, the rape victim, counsel for the appellant
put to her that the appellant's instructions are that on
the night in
question "he/appellant was standing with Mpho [accused no.2] and
they [members of the community] said that he/appellant
is light in
complexion he ought to be arrested because he was in the company of
Mpho." His evidence as to how he came to be
arrested differs
completely with his plea explanation, as well as with the version put
to the state witnesses, especially M, and
to his co-accused. However
both versions confirm that he was in the presence of accused no.2 on
the night in question. In cross
examination of all state witnesses it
was never disputed that accused no.2 managed to run away, and that
the only person arrested
on the night in question was the appellant,
that accused no.2 was only arrested the next day at his home after M
took the police
there.
[22]
The appellant could not explain why he was in possession of R' s cell
phone. It was put to R under cross examination that the
cell phone
found in the possession of the appellant belonged to his/appellant
girlfriend. This version was never repeated under
oath . It was never
disputed that the cell phone found in the possession of the appellant
was an LG 100. R positively identified
the said cell phone as his.
The evidence directly links the appellant to the offences he has been
convictedof.
[23]
M saw the appellant when he ran away, she/M further saw the community
members when they chased and arrested the appellant near
the scene of
crime and when the police arrived and apprehended him. Both R and M
were also present when the appellant was apprehended
by the community
members, and they confirmed that he was one of the perpetrators.
[24]
His version of how he came to be assaulted and arrested is riddled
with contradictions, is a fabrication and highly improbable;
and was
correctly found not to be reasonably possibly true and rejected by
the court
a quo.
[25]
As already mentioned above, Counsel for the appellant submitted to
this court that it was unfortunate that we, the appeal judges,
were
not familiar with Watville, and/or with the area where the offences
were committed; that the appellant's home is in the vicinity
of the
veld where the crime was committed; hence he/appellant having been
assaulted nearby the veld. This aspect [of the appellant's
home being
in the vicinity of the veld where the cnme was committed; hence
he/appellant having been assaulted nearby the veld],
as already
mentioned above, was never raised and/or mentioned at the court
a
quo,
and this for obvious reasons, because that places the
appellant at the scene of the crime.
[26]
It is opportunistic of the appellant's counsel to now raise/mention
that the appellant's home is in the vicinity of the veld
where the
crime was committed when no evidence to this effect was never even
tendered by the appellant at the court
a quo,
where the court
a quo
may even have conducted an inspection in loco if it saw
it fit to do so; and the state would also have had an opportunity to
deal
with this aspect during the trial. This is also contrary to the
appellant's plea explanation in which he stated that on the night
in
question he was in the company of accused no.2 at the street where
accused no.2 resides when they were both apprehended by members
of
the community; that the street in question is
not even
next
to the veld
where the crime was committed, [my underlining]. One
can see that the appellant's version keeps changing; a new version is
now raised
on appeal by the appellant's counsel, which counsel
represented the appellant during the trial at the court
a
quo.
Clearly the version of the appellant is a fabrication; and his
counsel, an officer of this court, disturbingly perpetuates the lie
by the appellant knowing it to be so. Counsel is the one that put the
various versions of the appellant on record at the court
a quo;
surely any sensible person can discern that these are
fabrications on the part of the appellant. Hence I stated above that
counsel
is opportunistic in now raising a new version on appeal.
[27]
It is also significant that the state witnesses also testified that
the appellant was very light in complexion and that he
smelt alcohol
during the attack and still smelt alcohol when he was apprehended.
The appellant himself confirmed that indeed on
the night in question
he had taken alcohol, which would obviously lead to him smelling
alcohol. It was never disputed that he is
very light in complexion.
In fact in his evidence he seeks to create confusion by testifying
that the members of the community
asked him if he had seen accused
no.2 and a boy who is
dark
in complexion; yet it was
put to M that the members of the community apprehended him because he
was
light:
in complexion and they found him in the
presence of accused no.2.
[28]
Accused no.2 also testified under oath and confirmed that he was in
the company of the appellant during the commission of these
offences.
[29]
In evaluating the evidence before him, the trial magistrate
approached the evidence of M with the necessary caution because
she
was a minor child and a single witness in respect of the rape.
[30]
The learned magistrate correctly found that the medical report (J88)
corroborates the version of the complainant/M that there
was recent
sexual penetration. Accused no.2 also corroborates this version, that
the appellant and he/accused no.2 raped the complainant
on the night
in question.
[31]
Where the evidence of a single witness was corroborated in anyway
which tended to indicate that the whole story was not concocted,
the
caution enjoined may be overcome and acceptance facilitated, but
corroboration may not be essential. Any feature which increased
the
confidence of the court in the reliability of the single witness may
overcome the caution. Refer S
v Banana
2000 (2) SACR 1
(ZS).
[32]
The cautionary rule was set out by Diemont JA in S
v Sauls and
Others
1981 (3) SA 172
(A) as follows:
"The
absence of the word "credible" in
s 208
of the
Criminal
Procedure
Act 51
of
1977
,
which provides
that "an accused
may be
convicted
on
the
single evidence of
any competent
witness",
is
of
no
significance; the
single
witness must
still
be
credible, but
there
are,
as
Wigmore
on
Evidence vol
III
para 2034
at
262
points
out,
"indefinite degrees
in
this
character
we
call
credibility". There
is
no
rule
of
thumb
test
or formula to apply
when it comes to a consideration of the credibility of
the
single witness. The
trial
Judge will
weigh
his
evidence,
will
consider its
merits
and
demerits
and,
having done so,
will
decide
whether, despite the fact that
there are
shortcomings or defects or contradictions in the
testimony,
he is
satisfied
that the
truth
has
been told. The
cautionary
rule
referred
to
in
R
v
Mokoena
1932
OPD
79
at
80
may
be
a
guide to
a
right
decision
but
it
does
not
mean
"that the
appeal
must
succeed if
any
criticism,
however
slender, of the witnesses' evidence were well
founded". It has
been said more than once that the
exercise of caution must not be allowed to displace the exercise of
common sense."
[33]
It is trite that a court of appeal is not at liberty to depart from
the trial court's findings of fact and credibility, unless
they are
vitiated by irregularity or unless an examination of the record of
evidence reveals that those findings are patently wrong.
The trial
court's findings of fact and credibility are presumed to be correct,
because the trial court, and not the court of appeal,
has had the
advantage of seeing and hearing the witnesses, and is in the best
position to determine where the truth lies. These
principles are no
less applicable in cases involving the application of a cautionary
rule.Refer S
v Leve
2011 (1) SACR 87
(ECG);
R v Dhlumayo
and another
1948 (2) SA 677
(A). See also S
v Hadebe and
Others
1997(2)
SACR
641 at p. 642, where the following is
stated:
"It
was well to recall yet again the well-established principles
governing the
hearing
of
appeals
against
findings
of fact,
which were,
in
short,
that in
the
absence of
demonstrable
and material misdirection by the trial court,
its findings
of fact
were presumed
to
be
correct,
and
would
only
be disregarded
if the recorded
evidence
showed
them
to
be clearly wrong"
[34]
In S
v Francis
1991(1) SACR 198 at page 198 to 199, the court
held that:
"The
powers of a court of appeal to interfere with the findings of fact of
a trial court are limited. In the absence of any
misdirection the
trial court's conclusion, including its acceptance of a witness'
evidence is presumed to be correct. In order
to succeed on appeal,
the appellant must therefore convince the court of appeal on adequate
grounds that the trial court was wrong
in accepting the witness'
evidence - a reasonable doubt will not suffice to justify
interference with its findings. Bearing in
mind the advantage which a
trial court has of seeing, hearing and appraising a witness, it is
only in exceptional cases that the
court of appeal will be entitled
to interfere with a trial court's evaluation of oral testimony"
[35]
The absence of a firearm on the appellant during his arrest does not
mean that the appellant was not at the scene, and/or that
he did not
commit the offences. He may have thrown it away for fear that he
might be caught with it in his possession; it might
have fallen when
he was running away or when he fell into the water.
[36]
As much as the onus to prove the guilt of the accused beyond a
reasonable doubt rests on the State, it is clear from our authorities
that there is no obligation on the State to close every avenue of
escape open to the accused. Malan JA in
R
v Mlambo_l
957(4) SA 727 (A) at 738A-B stated this principle as follows:
"...there
is no obligation upon the Crown to close every avenue of escape which
may be said open to be open to an accused.
It is sufficient for the
Crown to produce evidence by means of which such a high degree of
probability is raised that the ordinary
reasonable man after mature
consideration comes to the conclusion that there exists no reasonable
doubt that the accused has committed
the crime charged. "
See
also S
v Phallo and Others
1999(2) SACR 558 SCA at 562g-j.
[37]
The trial magistrate thoroughly considered and evaluated the evidence
of all witnesses, the state and the defence, looked at
the
probabilities and improbabilities and found on the totality of the
evidence before him that the state had proved beyond reasonable
doubt
that on the night of 26 August 2012 the appellant and the erstwhile
accused no.2, Mpho Moloi, had robbed T R and had and
raped G M.
Further that the appellant discharged a firearm to scare the
community members and indeed had kidnapped M. He correctly
rejected
the appellant's version. On the totality of the evidence before the
trial court, there is no doubt that the appellant
was properly
identified by the state witnesses as the man who was with accused
no.2 on the night in question, and who committed
the offences with
accused no.2. Accordingly the finding that the appellant's version
was not reasonably possibly true cannot be
faulted.
[38]
I am in full agreement with the findings of the trial magistrate. I
cannot find any misdirection of whatever nature on his
part as
regards the conviction. Looking at the probabilities and
improbabilities, the farfetched and fabricated version of the
appellant, the learned magistrate correctly accepted the evidence of
the State as having been overwhelming, correctly found the
State to
have proved its case beyond reasonable doubt and correctly rejected
the version of the appellant. I am consequently of
a view that the
appeal on conviction should fail.
[39]
In the result, I would make the following order:
1.
The appeal against conviction is dismissed.
_____________________
L
M MOLOPA-SETHOSA
JUDGE
OF THE HIGH COURT
I
agree
_____________________
C
VAN DER WESTHUIZEN
ACTING
JUDGE OF THE HIGH COURT
It
is so ordered
For
the Appellant : Adv: M E Tshole
For
the Respondent : Adv: L A More
Instructed
by :
National Prosecuting Authority