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[2016] ZAGPPHC 1242
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Thubeni and Others v S (A509/2015) [2016] ZAGPPHC 1242 (14 October 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
14/10/2016
CASE
NO: A509/2015
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
SONWABILE
THUBENI
1
st
Appellant
SIBEKO
SINDEKILE
2
nd
Appellant
MONDE
PAKINE
3
rd
Appellant
and
STATE
Respondent
JUDGMENT
AC
BASSON, J
[1]
The appellants were the first three of five accused before the Benoni
Regional Court on charges of murder (count one) and assault
with
intent to do grievous bodily harm (count two). They pleaded not
guilty. The three appellants were convicted of murder and
acquitted
on count two. They were sentenced to effective terms of 12 years'
imprisonment each.
[2]
Leave to appeal against both conviction and sentence was granted
pursuant to a petition.
[3]
Appellant 1, 2 and 3 were accused number 1, 2 and 3 respectively in
the trial court. Accused number 4 and 5 are not the subject
of this
appeal.
[4]
It is not in dispute that on the evening of 26 March 2011 there was a
stokvel held at the premises of the deceased, which stokvel
was
attended by many people. A tent was erected on the premise and a
generator was used to provide light in the tent. It was the
evidence
of Mr Mpanza (one of the state witnesses) that it was dark. He
testified that he could not see who were throwing stones
at the
deceased.
[5]
It was not in dispute that the deceased was killed in the early hours
of the morning. According to the post mortem report the
cause of
death was a head injury: "Satured skull wound left temple, right
eyebrow and left earlobe”.
[6]
One of the state witnesses, Mr Johannes Sabangu, took the deceased to
the hospital after the deceased was injured. Sabangu was,
however,
not present at the meeting and was therefore unable to identify any
of the perpetrators.
[7]
At issue is the question whether the State has proved beyond
reasonable doubt that the three appellants were involved in the
attack on the deceased which ultimately resulted in his demise.
[8]
The State called three witnesses in an attempt to prove that the
three appellants were involved in the attack on the deceased.
The
first witness Ms Ntshwangase - the deceased's girlfriend -was present
at the stokvel on the evening the deceased was killed.
She explained
that she knew accused number 5 and that she saw him there the evening
of the stokvel. She also testified that she
heard accused number 4
say "Boetie, I will kill you" and saw accused number 4 in
possession of two stones.
[9]
Ntshwangase testified that she saw five men and that all of them were
throwing stones. She, however, conceded that she did not
really pay
much attention to what the others did and that she only noticed
accused number 4 and what he did. At the identity parade,
despite the
fact that the other appellants were present, she was, however, only
able to identify accused number 5. In her evidence
she also stated
that she did not see who threw the stones that struck the deceased on
the head.
[10]
The second State witness, Ms Memela, was also present at the stokvel.
Although she also placed all five accused at the scene,
she only
managed to identify accused number 4 and 5 at the identify parade.
Memela testified that she saw appellant 1 for the first
time that
evening. She testified that she knew appellant number 2 because they
were renting at the same premises. She knew appellant
number 3 but
only by sight. However, despite the fact that she testified in court
that she had seen all three appellants and in
fact knew appellant 2
and 3 previously, she did not point them out at the identify parade.
[11]
The third State witness Mr Mpanza was only able to identify appellant
2. He was, however, not able to explain what role appellant
number 2
played in the assault. He also testified that it was dark and that he
was unable to say who had hit the deceased with
a stone.
[12]
It is trite that the State bears the onus to prove the guilt of the
accused beyond reasonable doubt. I am not persuaded that
the State
has proven the guilt of Memela was able to identify the three
appellants at the identity parade despite their best efforts
to
implicate them in the assault when giving evidence in court. In this
regard the Court is reminded of the dictum in
R
v Masemang
[1]
where
the Court held as follows:
"The
positive assurance with which an honest witness will sometimes swear
to the identity of an accused person is in itself
no guarantee of the
correctness of that evidence. One often finds that a woman who was
totally unable to point out her assailant
on an identification parade
will, when the accused is arrested on the strength of other evidence,
swear positively at the trial
that she recognises him as her
assailant. The innate and instinctive desire that there shall be
retribution may be conducive to
this. In Wills on
Principles of
Circumstantial Evidence
(7th Edit. p. 193) the learned author
cites a number of cases in which persons have been wrongly convicted
(and even executed) on
this type of evidence, which fills one with
apprehension. At p. 36 the learned author observes:
'"The
testimony of the senses cannot be implicitly depended upon, even when
the veracity of the witness is above all suspicion.
An eminent
barrister, a gentleman of acute mind and strong understanding, swore
positively to the persons of two men whom he charged
with robbing him
in the open daylight. But it was proved by conclusive evidence that
the men on trial were, at the time of the
robbery, at so remote a
distance from the spot as to render their guilt impossible.'
[13]
I am therefore not persuaded that the three appellants have
positively been identified as having been part of the five
individuals
who attacked the deceased. The State has therefore not
succeeded in proving its case beyond reasonable doubt. The
convictions and
sentences should therefore be set aside.
[14]
The order that I propose is the following:
The
convictions and sentences of the three appellants are set aside and
substituted with the following:
Accused
number 1 (Sonwabile Thubeni}; Accused number 2 (Sibeko Sindekile} and
Accused number 3 (Monde Pakine) are found not guilty
and are
discharged.
AC
BASSON
JUDGE
OF THE HIGH COURT
I
agree
M
SENYATSI
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
the first appellant
: Adv. S
Moeng
Instructed
by
:
Pretoria Justice Centre
For
the respondent
: Adv. A
Coetzee
Instructed
by
: The
State Attorney
[1]
1950 (2) SA 488
(A) at 493