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[2015] ZAFSHC 223
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Matabane and Another v S (A105/2015) [2015] ZAFSHC 223 (5 November 2015)
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IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Appeal Number: A105/2015
DATE: 05 NOVEMBER 2015
In the matter between:
MALESA
MATABANE
...................................................................................................
First
Appellant
ERNEST
MOKHOSI
...................................................................................................
Second
Appellant
And
THE
STATE
............................................................................................................................
Respondent
CORAM: JORDAAN, J et BOKWA, AJ
JUDGMENT BY: BOKWA, AJ
HEARD ON: 19 OCTOBER 2015
DELIVERED ON: 5 NOVEMBER 2015
[1] The Appellants were charged in the
regional court in Virginia with two counts of robbery with
aggravating circumstances, one
count of assault with the intend to do
grievous bodily harm and one count of illegal possession of an
automatic firearm. With
the state having withdrawn charges against
Accused number one, at the trial they were Accused number two and
three respectively.
They were convicted as charged and sentenced to
20 years imprisonment. After their application for leave to appeal
against conviction
and sentence was dismissed by the trial court, the
Appellants petitioned the Judge President and were granted leave to
appeal against
both the conviction and sentence. They are before us
on an appeal against both the conviction and sentence. Mr. Van der
Merwe
appeared for the First Appellant, Mr. Van Rensburg appearing
for the Second Appellant and Ms. Fereira on behalf of the state.
[2] The Appellants have raised a number
of grounds against their conviction at the heart of which is the
acceptance by the trial
court of the evidence of Matladi Sylvia
Maele, Nondwe Constance Mance and Danile Daniel Hlahla that the
Appellants committed the
offences.
[3] On behalf of the First Appellant it
was submitted that the trial court erred in accepting that the state
proved the identity
beyond reasonable doubt because none of the state
witnesses could give a description of the First Appellant’s -
facial features
or clothing during the incident. The First
Appellants counsel submitted that no identity parade was held
although Sylvia Maele
was allowed to identify the First Appellant
through a police vehicle. The fact that Sylvia Maele did not mention
to the police
that they had arrested the right suspects when she
looked at the suspects in the police vehicle was submitted to be a
material
error. Furthermore counsel submitted that the trial court
failed to recognize the contradictions in the evidence of the two
police
officers who contradicted each other in material respects in
that Daniel Hlahla testified that Nondwe Mance did hide herself under
the police vehicle during the shooting whereas Nondwe Mance denied
having done so. A further aspect highlighted as a material
error on
the part of the trial court was the testimony of both officers that
they did not have the robbers within their sight until
they were
arrested. Of more importance is the fact that the police officers
who actually arrested the suspects were not given
the opportunity to
testify at the trial by the state. It was submitted that all these
contradictions supported the argument that
the evidence of
identification given at the court a quo is not reliable. It was
further submitted that another important aspect
which the court a quo
failed to take into account was the fact that the First Appellant was
justified to close his case without
leading any evidence in his
defense. Had it apparently done so, it ought to have made a finding
that the First Appellant was entitled
to close his case as there was
no evidence that he was involved in the commission of the offences
when the state closed its case.
[4] Furthermore it was argued that the
sentence imposed by the trial court failed to take into cognizance
the triad principles elucidated
in S v Zinn
1969 (2) SA 537
and
consequently that the sentence of 20 years imprisonment was
unreasonably excessive. Had the trial court taken the age of the
First Appellant into account, it would have tempered its sentence
with mercy and found substantial and compelling circumstances
to be
present in the First Appellants case.
[5] Counsel for the Second Appellant
argued that the trial court erred in convicting him on the
unconvincing and unsatisfactory
evidence of the identifying
witnesses. In the premise the evidence of the identifying witnesses
is impeached on the grounds that
it is unreliable and contradictory.
[6] A point was made that no
fingerprints evidence was produced by the state both as far as the
rifle and the vehicle hijacked is
concerned so that the Second
Appellant is linked to the crimes. Had the state led such evidence,
it would have confirmed that
the Second Appellant handled the R5
rifle especially because the firearm was not found in his possession.
It was submitted that
one would have expected to find evidence of
gunfire residue on the hands of the Second Appellant since it was
alleged that the
rifle was fired.
[7] The undisputed evidence before the
trial court was that on the 24th December 2012 there was an armed
robbery at Saaiplaas Cash
& Carry. The disputed fact is the
identity of the robbers.
[8] In the matter of S v Chabalala
2003
(1) SACR 134
SCA, Heher AJA (as he then was) stated as follows at
paragraph 15 [I] of the judgment:
“The trial court’s approach
to the case was, however, holistic and in this it was undoubtedly
right: S v Aswegen
2001 (2) SACR 97
(SCA). The correct approach is
to weigh up all the elements which point towards the guilt of the
accused against all those which
are indicative of his innocence,
taking proper account of inherent strengths and weaknesses,
probabilities and improbabilities
on both sides and, having done so,
to decide whether the balance weighs so heavily in favour of the
State as to exclude any reasonable
doubt about the accused’s
guilt. The result may prove that one scrap of evidence or one defect
in the case for either party
(such as the failure to call a material
witness concerning an identity parade) was decisive but that can only
be an ex post facto
determination and a trial court (and counsel)
should avoid the temptation to latch on to one (apparently) obvious
aspect without
assessing it in the context of the full picture
presented in evidence. Once that approach is applied to the evidence
in the present
matter the solution becomes clear.”
[9] The state case relied on the
testimony of three witnesses. The honesty of Sylvia Maele’s
testimony stands out. She was
on duty on the day of the armed
robbery at the till when she felt two people colliding with the till
behind her. One person approached
her from behind the till and
another pointed a firearm at her. She saw the face of the Second
Appellant for approximately one
minute when he instructed her to open
the till whilst pointing her with the firearm. She gave a
description of Second Appellant’s
facial features to the police
as being “dark in complexion”, “big eyes” and
that his nose was structured
in a way that is “coming out”.
She saw the Appellants again after they were arrested in the police
van. During cross
examination Maele stated that she “will not
easily forget the face of the First Appellant as this was a day she
will never
forget in her life.” The First Appellant was in
possession of a “small firearm”, black in color whereas
the
Second Appellant had a big firearm, “a long one”.
Furthermore she described the Second Appellant as “black in
complexion” with “long cheekbones” and “big
eyes”. He was the one who approached her with a firearm
and
instructed her to open the till. Clearly she had ample opportunity
to study the facial features of her assailants and for
this reason
the trial court found her testimony credible and corroborative.
[10] It was the evidence of Nondwe
Mance, a member of the South African Police Service with 8 years in
the police that she received
information that the Spar at Saaiplaas
was being robbed. On arrival they found a person in possession of a
firearm who also fired
at them. It was an R5 rifle. Three people ran
out of Spar. They followed them and found a Mr. Mandigeleni who
reported that his
vehicle had just been hijacked by three men. One
of the men had a long rifle and the two others had small firearms.
They found
the car on the down street overturned on the side of the
road. They received information from members of the public about the
directions which the suspects took and went to Florien Street. When
the suspects saw them, they started to fire shots at them.
They
called for backup and members of the police service arrived and
arrested the suspects. Mance identified the Second Appellant
who
shot at the police using the R5 rifle. She remembers the Second
Appellant because he was the “tallest” of the
two
suspects and that he had “big eyes” and a “dark
complexion”.
[11] Daniel Hlahla the third state
witness is a police official with 11 years of service. On the day of
the incident he was a driver
of the police vehicle and was
accompanied by Constable Mance. Upon arrival at the Saaiplaas spar,
he saw three men exiting the
shop who were all armed. One had a R5
rifle and two were in possession of 9mm firearms. The one with the
R5 rifle tried to shoot
at them but the firearm jammed since it was
not cocked and this gave them the opportunity to hide behind the
police vehicle. The
one with the R5 rifle then fired shots. He
realized that the rifle was set on automatic. He also fired one shot
at the suspects
as they ran away. They set on chase and lost sight
of the suspects but members of the community pointed the direction in
which
the suspects went. They were also stopped by a man who
reported that his Camry vehicle was hijacked by three men. As they
drove
four kilometers away they saw the Camry which was lying upside
down.
[12] Mr. Mandlakayisa Madingeleni
stopped the police vehicle in front of Saaiplaas clinic on the day of
the incident to report that
he was hijacked. Him and his children
were pulled from his vehicle, a Toyota Camry 2.2, white in color and
bearing registration
number [B…….. FS].
[13] The First Appellant elected not to
testify in his own defense and closed his case.
[14] The Second Appellant testified in
his own defense and stated that on the day of the incident he was in
Virginia busy at work
doing garden services. Whilst he was busy
talking to a lady the police arrived and ordered him to lie down.
They asked him whether
he saw people jumping the fence into that
yard. He was searched assaulted and place at the back of the police
vehicle. He was
taken to the shop where he saw a number of people at
the shop. He was later taken to the police station. It was the first
time
he saw his co-accused on that day.
[15] In evaluating the evidence it is a
view of this court that the trial court took a correct approach in
analysing the evidence
before it. The identity of the robbers of the
complainants was properly dealt with by the trial court. The court a
quo followed
the correct approach in the case where the version of
the State stood in direct conflict with the version of the
Appellants.
[16] Heher AJ in S v Chabalala
2003 (1)
SACR 134
at p. 142 para 20(d) stated as follows:
“As was pointed out in S v
Mthetwa
1972 (3) SA 766
(A) at 769D: Where … there is direct
prima facie evidence implicating the accused in the commission of the
offence, his
failure to give evidence, whatever his reason may be for
such failure, in general ipso facto tends to strengthen the State
case,
because there is nothing to gainsay it, and therefore less
reason for doubting its credibility or reliability; see S v Nkombani
and Another
1963 (4) SA 877
(A) at 893G and S v Snyman
1968 (2) SA
582
(A) at 588G.”
[17] The court went further in the same
judgment at para 21G and stated that:
“The appellant was faced with
direct and apparently credible evidence which made him the prime
mover in the offence. He was
also called on to answer evidence of a
similar nature relating to the parade. Both attacks were those of a
single witness and
capable of being neutralized by an honest
rebuttal. There can be no acceptable explanation for him not rising
to the challenge.”
[18] In the circumstances, it was
damning for the First Appellant to close his case in the face of
evidence of the 3 state witnesses
who implicated him in the robbery.
He thereby left the prima facie case to speak for itself. One is
bound to conclude that the
totality of the evidence taken in
conjunction with his silence excluded any reasonable doubt of his
guilt.
[19] With regard to the sentence, the
trial court took into consideration all the relevant circumstances of
the Appellants and concluded
that there are no substantial and
compelling circumstances justifying the departure from the prescribed
minimum sentences. Consequently
the imposition of a twenty years
imprisonment sentence was a result of the exercise of the judicial
discretion allowed to a trial
court, after careful consideration of
all the relevant factors. There was no misdirection on the part of
the trial court regarding
sentence.
[20] The appeal against the convictions
and the sentence imposed by the trial court is dismissed.
[21] In the circumstances, I would have
made the following order.
The appeal against the conviction and
sentence is dismissed.
I.R.O BOKWA, AJ
I concur
A.F. JORDAAN, J
On behalf of the 1st Appellant: Mr.
Van der Merwe
Instructed by: Bloemfontein Justice
Centre
BLOEMFONTEIN
On behalf of the 2nd Appellant: Mr.
T.B. Van Rensburg
Instructed by: Jacques Groenewald
Attorneys
BLOEMFONTEIN
On behalf of the Respondent: Mrs.
Ferreira
Instructed by: Office of the
Director:
Public Prosecutions
BLOEMFONTEIN