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[2015] ZAGPPHC 102
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Kgafela v S (A753/2013) [2015] ZAGPPHC 102 (17 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO:A753/2013
DATE: 17 February
2015
In the matter
between:
ANDRIES TEBOGO
KGAFELA
..............................................................................
Appellant
And
THE
STATE
..............................................................................................................
Respondent
JUDGMENT
PHATUDI AJ
[1]
INTRODUCTION:
The Appellant in
this matter Andries Tebogo Kgalefa together with his co-accused,
Jerry Sithole and Thato Charles Mothiba, had been
charged and
convicted in the Regional Court, of Oberholzer, on two (2) counts of
robbery with aggravating circumstances, and one
(1) count of
kidnapping. The three were however, acquitted on count four (4),
which involved illegal possession of a firearm and
ammunition. For
their conduct, the accused were each sentenced to ten (10) years’
imprisonment in respect of each of the
counts for which they were
found guilty. The sentences were ordered to run concurrently. They
were at all material times assisted
by a legal representative in the
course of the trial to its conclusion.
The three accused,
after conclusion of the trial, applied for leave to appeal against
conviction and sentence. The application was,
however, refused by the
trial magistrate. The three accused subsequently petitioned the Judge
President of this Division for leave
to appeal both their convictions
and sentences.
Accused
1, Andries Kgafela’s (“the appellant”) petition for
leave to appeal, in particular, was confined to leave
to appeal his
conviction only, while accused 2 and 3 did not prosecute their
appeals any further, and were also not represented
when the appeal
was argued. The petition in terms of Section 309c of the Criminal
Procedure Act, 1977 (“the Act”)
1
,
for leave to appeal against accused 1, 2 and 3’s convictions
was granted by this court on 16 August 2013, while leave to
appeal
the sentences imposed was refused.
It was against this
backround that accused 1 (“the appellant”) brought this
appeal before this court for determination
on whether he has been
correctly convicted.
[2]
SUMMARY
OF THE MATERIAL FACTS:
This appeal concerns
robbery with aggravating circumstances and kidnapping which allegedly
took place at or near Carletonville on
13 August 2007. The appellant
and his co - accused were arrested and charged with two counts of
robbery with aggravating circumstances,
and one count of kidnapping.
They were all acquitted on the fourth count, namely, that of unlawful
possession of a firearm and
ammunition.
The state alleged
that the complainant in count 1 Ms Maria Magdalena de Wit, who has
since died, was the co-owner of a filling station
known as Waters
Edge Garage which is situated in Carletonville. The deceased was in
the company of her employee, one Violet Musi,
(complainant in counts
2 and 3) on their way to the bank. They travelled in a Toyota Corolla
motor vehicle bearing registration
RVJ 384 GP on the day in question.
While so travelling, they were confronted by three assailants at a
T-junction, and were pointed
with a firearm. The three assailants
feigned distribution of fliers or pamphlets out to members of the
public at the said T-junction.
The deceased Ms de
Wit, was forcefully pulled out of her motor vehicle which was
hijacked at gun point. Ms Musi who was in the hijacked
vehicle while
kept hostage at gunpoint as the episode unfolded, was robbed of her
possessions, namely, her cell-phone, earrings,
a wrist watch and
finger ring. The deceased’s hand bag which contained some R4
000, 00 cash, driving license, bank cards,
including the hijacked
motor vehicle valued at R188 000, 00, were also taken forcefully at
gunpoint.
While they sped off
from the hijacking spot, with Ms Musi still inside the vehicle, some
members of the public, Messrs, M J Lombard
and W C Van Der Merwe who
witnessed the incident, pursued the hijackers in their respective
vehicles. The robbers later ordered
Ms Musi out of the vehicle, and
then thereafter sped off. While being pursued, the driver of the
Toyota Corolla failed to stop
at the intersection and went through a
red traffic light in Hendrick Potgieter Street.
It was at this stage
that Inspector Dannie Smith and Ms Thembi Goodness Malope, (traffic
officers) joined in the pursuit and cornered
the robbers who were
trapped in the Cal-de-sac at the Waterberg Street, Noord Heuwel,
Krugersdorp. The robbers then alighted the
hijacked vehicle and fled
on foot. Inspector Malope who fired two warning shots, managed to
capture one of the suspects, while
the other two scaled a wall, as
they were followed by Inspector Jones and Messrs, M J Lombard and W C
Van Der Merwe. One of the
two suspects was arrested and brought back
to the scene, and handed over to Inspector Malutsi of SAPS, who then
formally placed
them under arrest and later detained them. The
suspects were identified as accused 1 and 2.
The third suspect,
was pointed out and implicated by the first and second accused.
Inspector Smith arrested accused 3 who attempted
to flee but ended up
arrested on the same day as he tried to elude arrest.
Furthermore, the
evidence of Inspector Van Wyk, the officer who lifted the
finger-prints off the window of the hijacked motor vehicle,
on the
day of the offence, confirmed accused no. 2 as one of the assailants.
The evidence of Ms
Musi, complainant in counts 2 and 3 respectively, corroborated the
evidence of the police officers and the traffic
officials in so far
as the robbery that had taken place was concerned. The issue of
kidnapping required no corroboration since
it was a matter of direct
evidence.
[3]
THE
DEFENCE’S CASE:
The
appellants elected to testify in own defence. I will summarise the
evidence of each accused
seriatim
as
follows:
Appellant’s
evidence was that he was allegedly pushed out of a vehicle by two
gentlemen. He did not describe them and gave
no reason for being
pushed out of the vehicle. He denied any involvement in the
commission of the offences.
Accused 2, although
he denied his participation in the commission of the offences, could
not offer any reasonable or credible evidence
as to why his
finger-prints were lifted from the window of the hijacked vehicle.
His initial version of the alleged assault by
the police, navigated
from the search the police conducted on him after he was brought to
the vehicle. His evidence could therefore,
not exculpate him from
blame for want of merit.
As to accused 3, he
was implicated by his co-accused 1 and 2 as being their
co-perpetrator in the offences. He did not dispute that
accused 1 and
2 had pointed him out.
The
appellant’s evidence, lacks merit and credibility, and the
court
a quo
was
therefore, correct in having rejected his version not only as false,
but also improbable.
[4]
ISSUES
FOR DETERMINATION:
The issues before
the court are, by and large, two-fold, namely:
4.1
Whether the appellant was properly or wrongly convicted and sentenced
by the court
a
quo,
4.2 Whether the
trial court was correct in finding that the identity of the appellant
was properly proved and that he was linked
to the commission of the
offences.
It is trite that the
onus to establish the accused’s guilt requires proof by the
state beyond reasonable doubt. Put differently,
there is no
obligation upon an accused person where the State bears the onus “to
convince the court”. If his version
is reasonably possibly
true, he is entitled to his acquittal even though his explanation is
improbable.
[5]
FACTS
WHICH ARE COMMON CAUSE:
These are:
5.1 The deceased Ms
De Wit and Ms Violet Musi were robbed of their possessions on 13
August 2007.
5.2 The motor
vehicle hijacked with registration RVJ 384 GP was driven by the
deceased, who was the owner thereof.
5.3 Some of the
items forcefully removed from Ms Musi were later recovered and handed
back to her by Inspector Mostert, the investigating
officer.
5.4 After pursuit by
the police, the traffic officers and two members of the public,
namely Messrs, M J Lombard and W C Van Der
Merwe, two men were
arrested at the scene of crime on the day in question.
5.5 Accused 2’s
finger-prints were lifted off the window of the hijacked vehicle
under consideration.
5.6 The deceased was
pulled out of the motor vehicle.
5.7 Ms Musi was also
ordered out of the motor vehicle.
5.8 Inspector Malope
fired a warning shot in the air and one man surrendered.
[6]
THE
LEGAL PRINCIPLES:
In
S
v Francis
2
the
court held:
“
This
courts’ powers to interfere on appeal 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 correct. In order
to succeed on appeal,
the appellant must therefore convince the court appeal on adequate
grounds that the trial court was wrong
in accepting the witnesses
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 circumstances that the court of appeal
will
be entitled to interfere with a trial courts’ evaluation of
oral
testimony”
(own
emphasis)
None of the state
witnesses who testified could have made errors of identity of the
appellant, and his co-accused for their testimony
was purely a matter
of direct evidence. Needless to say, the finger prints lifted from
the window of the vehicle concerned on the
day, put the identity of
accused 1 and 2 beyond doubt. The state witnesses evidence was on the
other hand correctly found to be
reasonable, honest, credible,
reliable and probable in the circumstances.
Equally trite, is
the principle that a court does not have to be convinced that every
detail of an accused version is reasonably
possibly true in
substance, but the court must decide the matter on the acceptance of
the version and can only be rejected on the
basis of inherent
probabilities and that it cannot reasonably be true.
See
also:
S
v Olawale
3
It is generally
accepted in our law that “a court is not entitled to convict,
unless it is satisfied that not only the explanation
is improbable,
but that beyond any reasonable doubt it is false. It is permissible
to look at the probabilities of the case to
determine whether the
accused’s version is reasonably possibly true, but whether one
subjectively believes him, is not the
test....the test is whether
there is a reasonable possibility that the accused’s evidence
may be true.”
See:
S
v V
4
[7]
Turning to the facts of this case, the following become noteworthy:
•
Accused
2 was arrested on the same day with acc 1
•
Inspector
Mai ope’s evidence is clear. She saw the 3 occupants of the
deceased’s motor vehicle coming out of the motor
vehicle and
running away. She fired a shot in the air and one man surrendered.
•
Of
the two who scaled the wall and ran away, one man was arrested and
brought back to the scene.
•
Finger
prints were lifted from the window of the hijacked motor vehicle. The
finger prints were proved to be those of accused 2.
Having identified
accused 2 by his finger prints, it now leaves us with one man who was
arrested with accused 2, who according
to Inspector Malope, was
accused 1.
•
While
arguing appellant’s case, Mr Prinsloo for the appellant
conceded that the second man was indeed accused 1. The evidence
at
the disposal of the court demonstrate that accused 1 is the man who
surrendered when Inspector Malope fired a shot in the air.
[8]
The evidence against the appellant is overwhelming. His version has
properly been proved to be improbable and beyond doubt false.
It was
therefore correctly rejected by the court
a
quo.
Applying
the principles referred to above to the facts of the case, the State
clearly has, beyond reasonable doubt proved that appellant
was one of
the assailants on the day in question. The trial court, in my view,
correctly convicted him. The evidence at the disposal
of the court
demonstrates that the appellant’s appeal against conviction
should fail.
In the result the
order that I propose is as follows:
COURT ORDER:
1. The appeal
against conviction is dismissed.
M.G PHATUDI
ACTING JUDGE OF THE
HIGH COURT
GAUTENG DIVISION
PRETORIA
I concur
M.W.MSIMEKI
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION
PRETORIA
And
it is so ordered
1
Act
51 of 1977, as amended
2
1991 (1) SACR 198
at pp 198-199
3
2009
(JOL) 24335 (SCA)
4
2000
(1) SACR 453
(SCA) at 455 b - c