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[2015] ZAGPPHC 1010
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Mabaso and Others v S (A 9/2014) [2015] ZAGPPHC 1010 (19 August 2015)
REPUBLIC OF SOUTH
AFRICA
GAUTENG DIVISION,
PRETORIA
(REPUBLIC OF SOUTH
AFRICA)
CASE NO: A 9/2014
DATE: 19 AUGUST 2015
In the matter between:
Stephen Mfakazeni
Mabaso
................................................................................................
1st
Appellant
Zibhekele
Dlamini
..............................................................................................................
2nd
Appellant
Siboniso
Buthelezi
...............................................................................................................
3rd
Appellant
AND
The
State
.................................................................................................................................
Respondent
JUDGMENT
MAKUME J
[1] The three appellants were convicted
in the Regional Court Benoni on the following counts:
1.1 Count 1 - Robbery with aggravating
circumstances. Only the 3rd Appellant Siboniso Buthelazi was
convicted on this count and
sentenced to 10 years imprisonment.
1.2 Counts 3 and 4 possession of a
firearm without a licence as well as possession of ammunition. On
these two counts the second
Appellant Zibhekele Dlamini was convicted
and sentenced to an effective term of imprisonment.
1.3 Counts 5 & 6 unlawful
possession of a firearm and ammunition. The 1st Appellant Stephen
Mfakazeni Mabaso was convicted and
sentenced to an effective term of
imprisonment for 10 years.
[2] All three appellants were granted
leave to appeal against conviction only by the trial court. The 3 rd
Appellant challenged
his conviction in count 1 on the basis that Mr
Suleiman the only witness on this count was not a satisfactorily
witness in all
material respects. Mr Suleiman testified how he was
confronted by three men in his shop on the night of 18th July 2010
and that
3rd Appellant was one of them. He could not identify the
other two who were armed.
[3] The 1st and 2nd Appellant’s
conviction arises out of their arrest by Warrant Officer Lebisi on
the 20th August 2010. Warrant
Officer Lebisi testified that he found
both of them in a room at Actonville Hostel in possession of firearms
and ammunition. These
are the offences on counts 3, 4, 5 and 6.
[4] 1st and 2nd Appellants challenged
their conviction on various grounds. Firstly it is argued that the
evidence of Warrant Officer
Lebisi was riddled with inconsistence,
Secondly that the state failed to call Constable Mangena who was
present during the arrest
to corroborate the version of Lebisi as to
where the firearms and ammunition were found and lastly but not the
least that the firearms
were not in their possession but were
discovered under the bed in Shezi’s room and not on their
persons. It was argued that
the trial court should have found that
the Appellant’s versions were reasonably possibly true and
should have been acquitted.
[5] The issue in dispute in Count 1 is
identity. The 3rd Appellant places himself on the scene of the
robbery not as a participant
but as an innocent customer who had come
to buy a soft drink and then witnessed the robbery.
[6] The complainant Mr Suleimann stuck
to his version under cross examination that he knows the 3rd
Appellant for more than a year
prior to the incident, 3rd Appellant
was not only a regular customer at his shop he also used to wash cars
not far from his shop.
This was not denied by the 3rd Appellant.
[7] Mr Suleiman told the court that 3rd
Appellant came in to buy airtime for R5.00 and then two men who were
armed came in and robbed
him. The two handed the money taken from his
till to 3 rd Appellant where after all three fled the scene together
in the direction
of the Railway Station. The version of 3 rd
Appellant as to what he was doing in the shop was never
put to the witness neither was it
disputed that 3 rd Appellant and Suleiman knew each other.
[8] I am satisfied that the Magistrate
correctly found that Mr Suleiman correctly identified 3rd Appellant.
His shop in which the
incident took place was well lit with
electricity. He had ample opportunity to notice what 3rd Appellant
was doing in the shop.
[9] The 3 rd Appellant confirmed in his
evidence that a robbery took place in the shop of Mr Suleiman. He
denied that he was a participant.
His version that he had come to buy
a bottle of coke when the incident happened was correctly rejected by
the Magistrate. He was
part of the three men who robbed the
complainant he received money and fled the scene.
[10] The 3rd Appellant’s conduct
after this incident is indicative of his guilt because he stopped
coming to wash cars where
he used to prior to the incident which
explains why he was only arrested about a month later. I accordingly
hold the view that
the appeal by the 3rd Appellant against conviction
falls to be dismissed.
[11] Warrant Officer Lebisi was cross
examined extensively on the arrest of not only the 3rd Appellant but
also on the events that
unfolded in the room at Actionville Hostel
where 1st and 2nd Appellant were arrested.
[12] It was not disputed that the
firearms and ammunition were found in the room in which not only 1st
and 2nd Appellants were present.
Evidence is that besides them there
was a Mr Shezi the owner of the room who fled the scene as well as
two other men one of them
being Mr Sipho Mnyando who testified as a
defence witness.
[13] Warrant Officer Lebisi says that
he found the firearms and ammunition mentioned in counts 3, 4, 5 and
6 on the persons of 1st
and 2nd Appellant. The 1st and 2nd Appellants
say the firearms were found under the mattress in Shezi’s room.
Their witness
Sipho Mnyando contradicts both of them in a crucial and
material aspect for he said that he saw the three firearms on the
floor
after they had been searched by the police. He does not know
where the firearms came from.
[14] It was put to Warrant Officer
Libisi under cross examination that the Appellants would testify that
as soon as he Lebisi entered
the room with his colleagues accompanied
by 3 rd Appellant that Shezi took out his firearm and put it on top
of his bed he was
then handcuffed but managed to run away through the
door . That version was contradicted by 1st Appellant who testified
that the
police came in and arrested Shezi and after they had
handcuffed him he ran away and shot s were fired. He later changed
and said
he did see Shezi take out a firearm and put it on the bed
before he was handcuffed and ran away.
[15] The version of the Appellants as
to where the firearms were found by the police is contradicted by a
number of improbabilities.
Firstly if it is correct that the firearms
were found under the bed then all the five occupants of the room
would have been arrested
and charged alternatively the police would
have only laid charges against Shezi as the owner of the room.
[16] Secondly despite Warrant Officer
Lebisi having testified that only 1st and 2nd Appellants were
arrested in the room the Appellants
still insists that two other
people including their witness Sipho Mnyando were arrested. There is
no proof that indeed other people
besides 1st and 2nd Appellants were
arrested.
[17] Warrant Officer Lesibi reiterated
his version of events in the room during cross examination which
version was not discredited
by any inconsistence or ambiguity on his
part. The Magistrate was correct in accepting that version and
rejected that of 1st and
2nd Appellant.
[18] The version of the 1st and 2nd
Appellant raised serious concerns and could not be relied upon
individually and collectively
it is full of contradictions and
inconsistences.
[19] I have no doubt that the finding
of the court a quo was arrived at after all the evidence had been
looked at holistically.
The version by the Appellants is false and
was correctly rejected. I accordingly make the following order.
ORDER
The Appeal by all three Appellants
is dismissed.
Dated at Pretoria on the 17th day of
August 2015.
MAKUME A.M.
(JUDGE OF THE HIGH COURT)
I agree
TUCHTEN N.B.
(JUDGE OF THE HIGH COURT)
Date of hearing: 30 August 2015 Date
of Judgments:
Counsel for Appellant: ADV. MOENG
Instructed by: Legal Aid of South
Africa
2nd Floor FNB Building 206 Church
Street Pretoria
Tel: 012 401 9200
Counsel for Respondent: ADV.
MAKGWATHA Instituted by: Office of the DPP
Private Bag X 300 Pretoria 0001
Ref: SA 1/2014 (9/3 MJM)