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[2016] ZAGPPHC 1173
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Sojane v S (A715/2015) [2016] ZAGPPHC 1173 (21 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE:
21/11/16
CASE
NO: A715/2015
In
the matter between:
MPHO
GIVEN
SOJANE
Appellant
and
THE
STATE
Respondent
JUDGMENT
DE
VILLIERS, AJ:
1
This is an appeal against the conviction of the appellant. He was
charged in the Regional
Court, Pretoria with robbery.
2
The appellant was legally represented at the trial. He pleaded not
guilty.
3
The trial commenced on 3 April 2014, the appellant was convicted on
22 January 2015
and he was sentenced to eight years imprisonment.
4
The appellant obtained leave to appeal against his conviction on 16
July 2015.
5
The appellant's case was in its heads of argument was based on:
5.1
In the main, on an attack on the alleged identification of the
appellant;
5.2
An attack on the admissibility of hearsay evidence about the
ownership of cellular
phones found in the possession of the appellant
(and a purported confession by the appellant).
6
According to the heads of argument, the State is of the view that the
only issue in
question is if there are reasonable doubt if the
identity of the appellant were proven beyond reasonable doubt.
7
In making this submission, the state did not rely on a purported
confession by the appellant
in its submissions, but did rely on the
hearsay evidence about the ownership of cellular phones found in the
possession of the
appellant. This aspect was not pursued in argument.
It did not take the matter further as no evidence was led as to which
cellular
phones were allegedly robbed.
8
I intend dealing with the matter on the identification ground too.
9
However, there was another matter that troubled me. It was common
cause that the appellant
played no active role in the robbery. The
robbery was carried out outside a spaza shop whilst the appellant was
inside the shop.
The robber took at gunpoint a Mr Pashoka's keys to a
delivery truck, money (the amount was not alleged) and cellular
phones (the
quantity and makes were not clarified). Mr Pashoka,
testified that the appellant played no role in the robbery, save that
he left
with the robber afterwards in the truck-
"Then
what was accused 2 (i.e. the appellant) doing while the other one was
busy with you? --- He was inside the tuck shop.
Doing
what? --- They did not do anything. The only person that came is the
only one that come and took the cell phones and the money
from me.
Then
you also explain to this court that after they took the vehicle or
the truck to you, who was the driver? --- The short one,
the one that
took the keys (i.e. not the appellant)
What
happened to accused 2 (i.e. the appellant)? Where was accused 2? They
both were
inside the truck when they
put
us
inside the store"
.
10
The matter remained as unclear as this evidence, save for in cross
examination
the witness was adamant that he saw the appellant in the
truck with the robber when it drove away.
11
The State properly conceded during argument, without being pressured
to do so, that
it had failed to prove common purpose as set out in
S
v Mgedezi and Others
1989 (1) SA 687
(A) at 7051 to 706C
(underlining added):
"
In
the
absence
of
proof
of
a
prior
agreement,
accused
No
6,
who
was
not
shown to
have
contributed causally
to
the
killing
or
wounding
of
the
occupants of
room
12,
can
be
held
liable
for
those
events,
on
the
basis
of
the
decision
in
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 violence was being
committed.
Secondly
, he must have been aware of
the assault on the inmates of room 12.
Thirdly
,
he must have intended to make 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
,
he must have
had
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. (As to the
first four requirements, see
Whiting
1986
SALJ
38
at 39.) In order to secure a conviction
against accused No 6, in respect of the counts on which he was
charged, the State had to
prove all of these
prerequisites beyond reasonable doubt. It failed so to
prove
a single one of them."
12
The state did not seek a conviction on a less serious offence. In my
view the matter
ends here. I do not make such a finding, as these
matters have not been fully ventilated in argument.
13
That brings me back to the identification issue. The facts are
uncomplicated:
13.1
The state led the evidence of the victim, referred to above, who saw
two people leave
in the truck, one of whom he identified as the
appellant in the dock;
13.2
The state led the evidence of several police officers who were at the
scene where
the truck had collided with a wall and two people ran
away;
13.3
Two police officers chased after the passenger and after a while
arrested the appellant.
14
What had been fully ventilated in argument was the aspect of
identification. Different
versions arose:
14.1
Mr Pashoka described the appellant as wearing
"
a
jean,
a
kaki jean
and
also takkies also
and
a
hat
on his head".
He only
made a dock identification but had seen the appellant in
custody.
14.2
The one police officer who chased the driver from the scene of the
collision, constable
Nkosi, saw that the passenger wore
"something
like
a
grey top
and
a
blue
jean
"
,
and " ...
he
was
having
a
green
hat
and
also,
a
grey
hat
and
also
a
grey
jacket
and
a
blue
jean
"
.
14.3
Constable Masindi who chased the passenger from the scene of the
collision and arrested
the appellant said he was wearing
"
a
jean, tekkies, and a
lumber
jacket,
brown
in colour and a
beanie
"
.
14.4
Constable Khoza who followed Constable Masindi from the scene of the
collision described
the passenger's clothes as
"
a
green jacket
and a
blue
jean" .
The appellant averred that he wore a yellow
jacket, a blue jean and did not wear a hat.
15
There are material differences between these descriptions.
16
No proper evidence was led to explain the chase by the police
officers and what they
observed as they were running. One does not
know how far behind the running person they were, if they gained or
lost ground, how
far they ran, if the route was straight, what
the distance between Constable Khoza and Constable Masindi was, if
Constable
Khoza gained ground or lost ground on Constable Masindi,
how tired they became. The only evidence of some value was by
Constable
Masindi. According to him, he was that at one stage the
person running away stumbled, but got up before he started running
again.
Yet before the fall he was
"
17 metres"
from the person and thereafter
"
20
metres"
with no attempt made to see how
accurately he can judge distance. In addition, he testified that the
chase took less than "
5 minutes"
which could
reflect a chase over a few hundred metres to a much longer distance.
17
I also need to reflect Constable Masindi's description of the arrest
of the appellant.
He did not mention a tired person, someone
sweating, or fearful. Instead he said;
"I
ordered him, I called and ordered him to stop and that suspect was
co-operative and
he
managed to
stop.
At the
same
time
when
the
suspect
stop
my
colleague who
was following
me
was
already
there
too.
I
asked to
search
the
suspect,
in
the
presence
of
my
colleague,
he
was
humble and co-operative as
if
was
not
a
person who
have
just committed
a hi-jacking."
18
The statement in
S v Mthetwa
1972 (3) SA 766
(A) at
768A to C is, with respect, appropriate (underlining added):
"
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
t
ested.
This
depends on various factors, such as
lighting,
v
isibility, and eyesight;
the
proximity of
the
witness
;
his opportunity
for
o
bservation.
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
d
ress;
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;
see
cases
such
as
R.
v
Masemang,
1950
(2)
SA
488
(AD);
R.
v
Dladla
and Others,
1962
(1)
SA
307
(AD)
at
p.
310C;
S.
v
Mehlape,
1963
(2)
SA
29
(AD)."
19
The appellant's version is that he was walking in the area, he ran
away when shots
were fired, he was seated in the tavern and he was
arrested inside the establishment. Although once could raise
difficulty with
the probability of an aspect of his version (why did
he chose to go into the tavern and not his brother's adjacent store),
this
aspect was not pursued in cross-examination. In addition, there
are doubts as to whether or not shots were fired that allegedly
caused him to run, and why he did not give a version to his attorney
that two of the cellular phones were not found in his possession,
but
near him as he later testified.
20
But, taken into totality and against the onus that rests on the
state, it is my view
the appellant's guilt has not been proven beyond
reasonable doubt. His identity is in doubt. Also on this ground, the
appeal must
succeed.
Consequently,
I make the following order:
1
That the appeal be upheld; and
2
That the conviction and sentence of the appellant be set aside.
_____________________
DP
de Villiers
Acting
Judge of the High Court
Gauteng
Division
I
agree, it is so ordered.
_____________________
N
Janse Nieuwenhuizen
Acting
Judge of the High Court
Gauteng
Division
Heard
on:
15 November 2016
On
behalf of the Appellant:
Adv D P Van den Berg
Instructed
by:
Du Toit Attorneys
On
behalf of the Respondent: Adv L Williams
Judgment
handed down:
21 November 2016