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[2016] ZAGPPHC 982
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Sibeko v S (A8/16) [2016] ZAGPPHC 982 (1 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: A8/16
01/12/2016
Reportable
Of
interest to other judges
Revised
In
the matter between:
SIYABONGA
SIBEKO
Appellant
and
THE
STATE
Respondent
Date
heard: 28 November 2016
Date
delivered: 01 December 2016
JUDGMENT
TSHABALALA,
AJ:
This
is an appeal against the conviction and sentence imposed on the
appellant after being found guilty on a count of robbery.
The
appellant pleaded not guilty. He was sentenced to a fine of R6000 or
one year imprisonment, suspended for five years.
The
court a
quo
granted the appellant leave to appeal against the
abovementioned conviction and sentence.
The
state called four witnesses to testify on its behalf. The defence
did not call a witness. The appellant did not testify in
his defence
and the magistrate did not evaluate the evidence, this is crucial
point in this matter as it forms the focal point
of the appeal as
stated below.
The
first witness to testify on behalf of the State was the complainant,
Mathabelo Meisie Nkadimeng. She testified that on 24
May 2014
approximately 20h00 she was at East Rand at Las Vegas. She stated
that she saw the appellant approaching, he was wearing
a jacket with
a hoody. He was busy with his mobile phone. She described the
appellant's jacket as "black and grey and white".
She
stated that she took out her mobile phone, the appellant was now
behind her, he snatched her mobile phone and ran away. She
estimated
that the appellant was approximately 5 metres away when she saw him
for the first time. She stated that there were
no street lights but
motor vehicles illuminated the place as they passed.
The
complainant testified that she screamed immediately the appellant
snatched her phone because she intended to alert the public
to
assist her.
The
complainant followed the appellant from where he snatched tier phone
towards the direction he had ran to despite discouragement
from
three taxi drivers. Her persistence paid off according to her
evidence, because she found that some boys had arrested the
appellant. There was a security guard and two policemen as well when
she arrived at the scene. She was asked whether the mobile
phone
belonged to her. The police took the complainant and the appellant
to the appellant's residence. The complainant described
the phone as
a black Samsung Galaxy Pocket.
The
complainant also testified that when she arrived at the scene where
the appellant was arrested there were three young men,
two police
officers and a school security guard. There was also her mobile
phone and a torch.
Linda
Samuel Ndlovu, was the second witness to testify on behalf of the
State. Linda testified that he was in the vicinity of
his residence
on 24 May 2014. He stated that at approximately 20h00 they heard a
woman scream, it was him and other young men.
They were curious
about the scream, they went to investigate and came across the
appellant who was running. They stopped the
appellant and asked him
why he was running away. Ndlovu testified that he knew the
appellant.
Linda
further testified that his group asked the appellant why he was
running away, the appellant replied that he was pursued
by thieves
who wanted to rob him. Linda and his group decided to confront the
thieves but they were met by a security guard.
The
complainant testified that she arrived immediately after the mobile
phone was discovered, she was screaming. The complainant
said this
is the person who snatched my mobile phone. The police asked the
complainant if the mobile phone was hers, when the
phone was
switched on, it had her profile picture. Linda confirmed to her that
he was familiar with the appellant because they
grew up in the same
area.
The
third witness to testify on behalf of the State was Constable Junior
Likulani Makeke. Mr Makeke testified that he was on duty
on 24 May
2014. He testified that he was on patrol with Constable Lengobela
when they spotted a group of six young men who were
holding another
young man. The young men explained that they were restraining the
appellant because they heard a woman scream
and the appellant
materialised running immediately after the screams.
Makeke
testified that he and Const Lengobela stopped the vehicle and
alighted, the appellant dropped the phone on the ground.
The
complainant was still some distance away from where the police had
stopped their vehicle.
The
complainant arrived thereafter, she was hysterical according to
Makeke. She immediately said, without being prompted, this
is the
man who took my mobile phone. The appellant was restrained by Linda
and his friends from leaving the scene at that point
in time. Makeke
described the phone as a Galaxy Pocket. The complainant was asked
about the type of phone that was snatched from
her, she informed the
police that it is a Galaxy Pocket mobile phone. Makeke saw the
picture of the complainant on the phone,
a profile picture, when the
phone was switched on.
Makeke
confirmed during cross-examination that he saw the appellant drop
the phone. According to the Constable they witnessed
the appellant
when he dropped the phone, namely, a security personnel who was
behind the school fence, Const Lengobela, Linda
and five other young
men. Makeke insisted under cross-examination that he saw the
appellant dropping a cell phone because there
was light.
The
defence closed its case without calling a witness after the State
had closed its case. The Court a
quo
concluded that the
State's evidence was uncontested, and that there was
prima facie
proof of guilt and the appellant was found guilty of robbery.
The
focus of this appeal is firstly against the Magistrate's failure to
make a credibility finding on the State witnesses and
secondly
against the Magistrate's subsequent conviction of the accused merely
on the basis that the accused did not testify and
the Magistrate
therefore found the evidence of the State to be conclusive. It is
contended that the Magistrate misdirected himself
in failing to make
a credibility finding before reaching the conclusion that the State
has proved its case beyond a reasonable
doubt. It is common cause
that the trial court's judgement on conviction consists of
approximately ten typed lines. The Magistrate
merely stated that the
evidence as presented by the State, as well as the fact that the
defence closed their case without leading
any evidence and therefore
left the State evidence uncontested, was sufficient for the court to
find prima facie proof of guilt
and therefore the accused was found
guilty as charged. It is further contended by the appellant that the
trial court neglected
to apply the cautionary rules applicable to a
single witness and that the Magistrate failed to evaluate the
evidence on identification.
Furthermore, the trial court omitted to
evaluate the evidence presented by the State and ignored the
discrepancies and inconsistencies
in the State case. Lastly, the
Magistrate failed to give adequate reasons for its judgement.
It
is trite law that a conviction can only follow upon a proper
evaluation of the evidence led before the court. Only then can
it be
concluded that there exists a prima facie case for the accused to
answer. The failure by the Magistrate to evaluate the
evidence
places this court in the awkward position in that we are unable to
estimate the value to be attached to each individual
witness's
evidence. This aspect is of utmost importance, as the complainant in
the matter was a single witness who testified
that this incident
happened at night with only apollo lights lighting up the area.
Secondly the complainant also conceded that
she does not know the
appellant and only recognised him by his clothing and bodily
features after he was arrested a couple of
hundred metres away from
the scene where her cell phone was robbed.
Section 208
of the
Criminal Procedure Act 51 of 1977
provides that an accused may only
be convicted on the evidence of a single and competent witness. As
far as the actual robbery
is concerned the complainant was a single
witness. Our law requires that the evidence of a single witness must
be approached
with caution. The courts have laid down the rule that
before any reliance can be placed on the testimony of a single
witness,
such evidence must be clear and satisfactory in every
material respect. See in this regard
R v Mokoena
1956
(3) SA 81
(A); S
v Webber
1971 (3) SA 754
(A)
at 758G; S
v Sauls
&
Others
1981
(3) :SA 172 (A) at 179G-180G; S
v Stevens
2005
(1) All SA 1
(SCA) at 5D-H
and
S
v Gentle
2005
(1) SACR 420
(SCA) at para 17.
In their absence of a proper
evaluation of the complainant's evidence, being a single witness, no
credibility finding can be made
in this regard. There is no
indication that the court treated the complainant's evidence with
caution. It follows from the aforesaid
that this court cannot test
and/or evaluate the judgement aforesaid.
It
is furthermore contended on behalf of the appellant that where
identification of an appellant is in dispute, it was held in
S
v
Mthetwa
1972 (3) SA 766
(A) at 768
that evidence of
identification should also be approached with the necessary caution
because of the fallibility of human observation.
It follows that a
failure to do so constitutes another misdirection.
The
appellant submits that the court a
quo
also misdirected
itself with regard to the position of an accused who opts to
exercise his right to remain silent in a criminal
trial. An accused
who decides to close his case without calling any evidence does so
because there is no obligation on an accused
to testify at the end
of the State case. Only when the evidence presented by the State
calls for an answer, and an accused person
chooses to remain silent
in the face of such evidence, a court may be entitled to conclude
that the evidence, in the absence
of an explanation, is sufficient
to prove the guilt of the accused. However, whether such a
conclusion is justified will depend
on the weight of the evidence.
See in this regard
S
v Boezak
[2000] ZACC 25
;
2001 (1) SACR
1
(CC).
It follows from the aforesaid that negative consequences
will follow upon an accused's decision not to testify only
after
a court has properly evaluated the evidence presented by the State
and
then
concludes that there is sufficient evidentiary proof
to establish a prima facie case. In
S
v Boesak
[2000] ZASCA 112
;
2000
(1) SACR 633
(SCA) at para 47
it was held:
"Of
course,
a prima facie
inference does not necessarily mean
that if no rebuttal is forthcoming, the onus will have been
satisfied. But once the main acknowledged instances where it can
be said that
a prima facie
case becomes conclusive in the
absence of
a
rebuttal, is where it lies exclusively within
the power of the other party to show what the true facts were and he
or she fails
to give an acceptable explanation...".
Where
there is evidence against an accused calling for an answer, an
accused who chooses not to testify will be at risk. However,
the
court must still evaluate same evidence before concluding that, in
the absence of an explanation, the evidence is sufficient
to prove
the guilt of the accused. This evaluation depends on the weight of
the evidence. However, the failure to testify does
not relieve the
prosecution of its duty to prove the guilt of the accused beyond
reasonable doubt. An accused person's election
not to testify in his
own defence does not necessarily convert prima facie proof into
proof beyond a reasonable doubt. There
cannot be any doubt that the
appellant disputed his identity. The quality of the evidence led to
prove identity was to be an
important factor for evaluation before a
conclusion could be reached that a prima facie case which calls for
an answer exists.
The application of the cautionary rules and
evaluation of evidence are prerequisites before a finding of a prima
facie case can
be made. The same principles apply to the test of
proof beyond a reasonable doubt. Taking into account that the
complainant confirmed
that she could not see face of the person who
robbed her, that there were no street lights in the immediate
vicinity, and that
the incident occurred in the main road where many
taxis were moving around, it can safely be concluded that the
complainant's
visibility was obscured. This is confirmed by the
complainant's evidence that she did not see the accused approaching
as she
was approached from behind. Immediately thereafter the
assailant ran away in the direction from which he initially came.
Sometime
later the appellant was apprehended and the complainant
only arrived at the place where he was apprehended some twenty
minutes
later. The complainant's testimony is that she only
recognised the assailant from the jacket he was wearing as well as
his tekkies.
She testified that she has a similar jacket as the one
worn by the appellant.
The
State case further reveals that the appellant was not found in
possession of the cell phone when he was arrested. The police
official, Mr Makeke, testified that the appellant was in possession
of the phone and dropped it on the ground in his presence.
Makeke
also testified that "Linda" later picked up the cell phone
from the ground and handed it over to the police
officials who
attended the crime scene. Another State witness, Linda, the second
state witness, however had a different version.
According to Linda
he requested the appellant to accompany him to the police vehicle
and on their way, a security officer and
other boys indicated that
there is a cell phone on the ground, in a different street, lying on
the ground as if lost. Only a
proper evaluation of the evidence
could have established which of the two witnesses, Makeke or Linda,
should be believed. If
Linda was to be believed it would mean that
there is no corroboration that the appellant had possession of the
said cell phone.
Contrary to that, if Makeke's evidence is to be
believed, proof of possession co1Jld have been established on the
part of the
appellant, which could have been used against him. In
the absence of a proper evaluation of the evidence of the
complainant as
a single witness on identification, scrutinised with
the necessary caution, and in the absence of a clear evaluation of
the evidence,
it cannot be concluded that the State succeeded in
proving a prima facie case. As a result no finding could have been
made that
the accused's guilt was proved beyond a reasonable doubt.
In
the absence of any reasons for the decisions of fact or law as
provided for in terms of s93(3)(c), (d) and (e) of the Magistrates'
Court Act 32 of 1944, this court cannot find that it is in the
interest of the open and proper administration of justice that
the
conviction and sentence should be upheld. In this instance there is
no assurance that the court gave due consideration to
the matter and
did not act arbitrarily. We are therefore placed at a distinct
disadvantage. In the present case we do not know
which witnesses the
Magistrate accepted as truthful or why he did so. We also do not
know on which facts he based his decision
to come to a finding that
the accused's guilt was proved beyond a reasonable doubt. See in
this regard
S
v Van den Berg
&
Another
2009 (1) SACR 661
(C) at 665H-J; S
v Maake
2011
(1) SACR 263
(SCA)
and
S
v Mo/awa;
S
v
Mpengesi
2011 (1) SACR 350
(GSJ).
The
trial court's omissions to substantiate the judgment and to do a
proper evaluation of the evidence infringes upon an accused's
right
to a fair trial, which includes the right to have his appeal
properly adjudicated by a higher court. See in this regard
S
v
Molawa;
S
v Mpengesi
where the court
stated:
"There
is indeed
a
further compelling reason why reasons for
judgement ought to be furnished. The right to appeal
or
review
is entrenched constitutionally for every accused person. In this
regard s35(3)(O) of the Constitution of the Republic of
South
Africa, 1996, provides as follows:
'(3)
Every accused person has the right to a fair trial, which includes
the right –
…
(o)
of appeal to, or review by, a higher court'
These
are certainly important rights that should not be overlooked".
Accordingly
the conviction and sentence imposed on the appellant cannot be
upheld.
I
THEREFORE PROPOSE THE FOLLOWING ORDER:
1.
The appeal against both the conviction and sentence is upheld. The
conviction and sentence imposed are set aside.
____________________
D.B.
TSHABALALA
ACTING
JUDGE OF THE HIGH COURT
I
agree
____________________
H.J.
DE VOS
JUDGE
OF THE HIGH COURT
Appearances:
For
the applicant: Adv. F Van As
Instructed
by: Pretoria Justice Centre
For
respondent: Adv. C.P. Harmzen
Instructed
by: Director of Public Prosecutions