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[2016] ZAGPPHC 1188
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Matabane and Others v S (A58/2016) [2016] ZAGPPHC 1188 (9 November 2016)
SAFLII
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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: A58/2016
Date:
9 November 2016
Not
reportable
Not
of interest to other judges
Revised.
In
the matter between:
SICELO
MATABANE
FIRST
APPELLANT
NONKWENKWE
GANDA
SECOND
APPELLANT
GABARONE
AARAM
PHETO
THIRD
APPELLANT
VUSI
MOKATAKA
FOURTH
APPELLANT
And
THE
STATE
RESPONDENT
JUDGMENT
PRETORIUS
J.
(1)
The four appellants appeared in the Regional Court, Oberholzer, in
the Gauteng region on 4 May 2015 and was convicted on 8 October
2015
and sentenced on 9 October 2015.
(2)
They appeared on the following charges:
"Count
1: Robbery with aggravating circumstances read with the provision of
the colloquially named Minimum Sentences Act 105
of 1997.
Count
2: Sexual assault in contravention of Section 5(1) read with other
relevant provisions of the Sexual Offences and Related
Matters Act 32
of 2007.
Count
3:
Murder read with the provisions of the
Criminal Law Amendment Act 105 of 1997
."
They
were sentenced as follows:
"Count
1: Each 15 years' imprisonment;
Count
2: Each one year imprisonment;
Count
3:
Each life imprisonment."
(3)
This is an automatic appeal in terms of section 10 of the
Judicial
Matters Amendment Act
[1]
to this court due
to the fact that life imprisonment was imposed on all four
appellants.
(4)
All appellants were legally represented at trial.
BACKGROUND:
(5)
Mr Isaac Nqoko testified for the State that on 16 May 2014 he and his
friends, Mazama and Thulani, were on their way from church
at
approximately 20h00. They were walking next to Relabogili Secondary
School when they met a group of boys. One member of the
group
approached the witness and stabbed him and robbed him of his
cellphone. He could not identify any of the group of boys who
numbered more than ten. Both his friends could not identify any of
the perpetrators, although Mr Thulani Thlapi testified that
he saw
Dimakatso, the State witness, at the scene.
(6)
Ms K. M. testified as the complainant in count 2. Her evidence was
that she was in the company of the deceased, Mr Mandia Nkosi,
at
approximately 23h30. They were walking and he was taking her home.
She then saw eight people approaching them. They searched
her and
took her cellphone and money. She ran to Mandia and saw one of the
group members stabbing him, after which he ran away.
Mandia jumped
over the fence of her home and fell inside the yard. He passed away
as a result of the stab wound in his neck. She
did not testify that
she had been raped. Her evidence was that two of the group members
approached her. The person dressed in a
skinny pink jean and a white
cloth top touched her breasts, put his hand inside her bra and kissed
her on her cheeks.
(7)
The next witness for the State was Ms Dimakatso Mabono. She was not
warned that she would be testifying as a witness in terms
of section
204 of the
Criminal
Procedure Act.
[2]
The magistrate
only made the following observation after she had been sworn to tell
the truth:
"COURT:
The Court can even explain to her the Court can indemnify her from
prosecution in counts of either robbery and [indistinct]
assault if
she gives honest [indistinct] satisfactory
--
Understand
Your Worship.”
[3]
She
testified that:
".
. .she was with the four Appellants at the Second Appellant's
(Nonkwenkwe's) place of abode smoking dagga and Nyaope and
thereafter
it was agreed that they should go and rob people. They armed
themselves with knives and bottles and they indeed robbed
people they
met in the street. "
[4]
(8)
According to her evidence they were five people when they attacked
the complainants. Her evidence regarding the first attack
was that
they were five people and that they attacked a group of four people,
two males and two females and all four were stabbed
and one robbed of
his wallet and phone. There was no evidence that the attack in the
first charge had taken place in such a manner
or that any such an
attack had taken place. Her further evidence was that accused 1 had a
bottle with which he stabbed someone
and that person never testified
in court. In evidence in chief, her evidence was that whilst she was
in the company of the four
appellants in the vicinity of a school two
boys appeared and the second and fourth appellant robbed them. She
gave evidence that
she was able to see everything as she was standing
next to the appellants. This is in contrast to her evidence that she
had stood
at the corner of the street and could not see everything.
Her evidence and that of Ms K. M. differ completely. Ms M. testified
that eight people had approached her and the deceased, whilst
Dimakatso was adamant that they were only five. Ms M.'s evidence was
that the deceased was stabbed in the street and then he jumped over
the fence into the yard, whilst Dimakatso's evidence is that
the
deceased and the lady entered a yard, the appellants followed and
attacked them in the yard, where the deceased was stabbed.
(9)
In her statement to the police Dimakatso said that the lady was
struck with a bottle, but in her evidence, under cross-examination
she said the lady was not assaulted, they only touched her private
parts. Ms M.'s evidence was that she could not identify any
of the
appellants in court as being the people who had attacked her.
(10)
Dimakatso's further evidence was that the first appellant had stabbed
the deceased, but during cross-examination she conceded
it was a lie
as she was waiting in the street and did not see this happening.
(11)
The evidence of the defence was that Dimakatso and appellants 1 and 2
were together at appellant 2's place where they were
all smoking
dagga. A certain Nene joined them. Both appellant 3 and 4 were not
present according to appellants 1 and 2's evidence,
this was
confirmed by all appellants when testifying.
ACCOMPLICE EVIDENCE:
(12)
It is trite that the court should warn itself of the danger of
convicting upon the evidence of an accomplice, even more so
where the
accomplice's evidence is the only evidence linking the appellants to
the crimes.
(13)
In
S v
Hlapezula and Others
[5]
Holmes JA
formulated the cautionary rule, as applied to accomplices as:
"It
is
well settled that
the testimony of an accomplice requires particular scrutiny because
of the cumulative effect of the following
factors.
First,
he is a self-confessed criminal.
Second,
various considerations may lead him falsely to implicate the accused,
for example, a desire to shield a culprit or, particularly
where he
has not been sentenced, the hope of clemency. Third, by reason of his
inside knowledge, he has a deceptive facility for
convincing
description
-
his
only fiction being the substitution of the accused for the culprit.
Accordingly, even where sec.
257
of the Code has been satisfied, there has
grown up a cautionary rule of practice requiring (a) recognition by
the trial Court of
the foregoing dangers, and (b)
the
safeguard of some factor reducing the risk of a wrong conviction,
such as corroboration implicating the accused in the commission
of
the offence, or the absence of gainsaying evidence from him, or his
mendacity as a witness, or the implication by the accomplice
of
someone near and dear to him; see in particular ...
"
(Court emphasis)
These
principles apply even more so 1n the present case where Dimakatso had
not been properly warned in terms of section 204 of
the Criminal
Procedure Act
[6]
.
(14)
In
S v
Makeba and Another
[7]
the court held:
"'It
is clear from the authorities that if corroboration was required it
had, for the purpose of the so-called cautionary rule,
to
be
corroboration implicating the
accused and not merely corroboration in
a
material respect or respects. (See Ncanana's
case at 405; R v Mpompotshe and Another
1958 (4) SA 471
(A) at 476;
S
v Avon Bottle Store (Pty) Ltd and Others
1963
(2) SA 389
(A) at 392.)
I
would like to emphasise that, as was pointed out by Schreiner JA in
Ncanana 's case supra at 405,
it is not
a rule of law or practice that requires the Court to find
corroboration implicating the accused, but what is required
is that
the Court should warn itself of the peculiar danger of convicting on
the evidence of the accomplice and seek some safeguard
reducing the
risk of the wrong person being convicted, but such safeguard need not
necessarily be corroboration.
Once,
however, the Court decides that in order to be so satisfied it
requires corroboration, it would be pointless to look for
corroboration other than corroboration implicating the accused."'
(Court emphasis)
(15)
The State set out in the heads of argument the following in relation
to Dimakatso, the accomplice's evidence:
"Dimakatso's
evidence was found wanting in
a
number
of
respects.
She gave thoughtless answers. Nonetheless she provided satisfactory
answers for her thoughtless answers.”
[8]
And
"She
could not provide a satisfactory answer why she testified that each
of the victims was stabbed by each appellant.”
[9]
And
"She
could also not provide a satisfactory answer why she testified that
each of the four appellants stabbed the four people
that they first
met and robbed ..."
[10]
And
finally,
"It
is respectfully submitted that there are quite a number of
contradictions in the evidence of the State however they do
not
materially affect the credibility of the witnesses.”
[11]
It
is clear from her evidence that she contradicted herself on numerous
occasions and was a very unsatisfactory witness. These contradictions
are material as it impacts directly on the crimes the appellants had
allegedly committed.
(16)
If the formulation as set out in
Hlapezula
[12]
and
Makeba
[13]
is taken into
consideration and applied to the present case, it is clear that the
State has not proven its case against the appellants
beyond a
reasonable doubt.
(17)
This court cannot find under these circumstances that the magistrate
had not misdirected himself in accepting Dimakatso's evidence
and
convicting the appellants as charged on her evidence without any
corroboration. It does not mean that this court finds that
the crimes
were not committed. On the contrary the crimes were committed and
Dimakatso evidently was an accomplice, but due to
her evidence being
littered with contradictions and improbabilities the court cannot
rely on her evidence at all to find that the
appellants were the
perpetrators. The State conceded as much during argument when
referred to the heads of argument and numerous
material
contradictions by Dimakatso, by the court.
(18)
Therefor the appeal of all four appellants must succeed.
(19)
In the result the following order is made:
1.
The appeal against conviction and sentence is upheld;
2.
All four appellants' convictions and sentences are set
aside.
-------------------
Judge
C Pretorius
I
agree.
Case
number : A58/2016
Matter
heard on : 31 October 2016
For
the Appellants : Adv RS Matlapeng
Instructed
by : Pretoria Justice Centre
For
the Respondent : Adv BE Maoke
Instructed
by : Director of Public Prosecutions
Date
of Judgment :
[1]
Act 32 of 2013
[2]
Act 51 of 1977
[3]
Record page 28 line 25 to
page 29 line 2
[4]
Appellants
Heads of Argument, paragraph 14
[5]
1965(4) SA 439 (A) at 440 D
- H
[6]
Supra
[7]
2003(2) SACR 125 (SCA) at
paragraph 12
[8]
Respondent's Heads of
Argument paragraph 10
[9]
Respondent's Heads of
Argument paragraph 11
[10]
Respondent's Heads of Argument paragraph 12
[11]
Respondent's Heads of
Argument paragraph 19
[12]
Supra
[13]
Supra