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[2014] ZAGPPHC 200
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Kato v S (A634/13) [2014] ZAGPPHC 200 (31 March 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION
PRETORIA
Case
number: A634/13
DATE:
31 MARCH 2014
In the matter
between:
KATO SHADRACK
MFUNDISI
..........................................
APPELLANT
And
THE
STATE
.........................................................................
RESPONDENT
JUDGMENT
MOSEAMO AJ
[1] Appellant was
charged in the Benoni Regional Court on a charge of Robbery with
aggravating circumstances. He was convicted
and sentenced to 15
years imprisonment.
[2] Appellant was
granted leave to appeal on both conviction and sentence.
[3] The charges
arose out of an incident that took place at Barcelona on the 10th
February 2012. The appellant together with two
friends unlawfully
and intentionally assaulted Ntandoyenkosi Theze and Joel Thusi. He
took from them a cell phone using a knife
and a firearm. The
appellant was caught by members of the community and assaulted. He
was later arrested by the police.
[4] Appellant
submits that the state did not prove its case beyond reasonable doubt
and as such the court a quo should have given
him the benefit of the
doubt as his evidence is reasonably possibly true.
[5] Appellant
further submits that failure by the state to call further witnesses,
particularly one Mthembu who was informed about
the robbery weakened
the state’s case.
[6] The appellant
further points to the contradictions between the evidence of
complainant and Thusi on the one hand that the cell
phone was found
in the grass and the evidence of the Police Officer who testified
that the cell phone was found in the possession
of the appellant.
[7] According to the
appellant the court a quo erred in finding that: (a) by failing to
explain the reason for his possession of
the cell phone in his
warning statement or in his plea explanantion; (b) The fact that no
money was found in this possession when
he was searched, presupposes
that the evidence by the appellant was false.
[8] The appellant’s
counsel submits that the appellant did not have to prove his
innocence but it was for the state to prove
its case beyond
reasonable doubt.
[9] The version of
the appellant is that Thusi gave him the phone as security for a
loan. According to the accused Thusi lost money
in a game of dice
and he borrowed R100.00 (Hundred Rand) from the accused. The
appellant took the phone with the understanding
that once Thusi will
have raised the R100.00 (Hundred Rand) he will pay back and the
accused would return the phone. When evening
was approaching the
appellant decided to leave. The complainant became aggressive. Then
the appellant ran off with the phone
of the complainant.
[10] At the hearing
of this appeal, counsel for the respondent conceded that if there is
any doubt to the guilt of the appellant
then the appellant should be
given the benefit of the doubt.
[12] In convicting
the appellant, the court a quo considered the fact that the appellant
did not at any point in time, either during
the assault by members of
the community or during his arrest make an exculpatory statement to
the effect that he did not rob the
appellant. The court a quo drew a
negative inference from his failure to explain how he came to possess
the complainant’s
cell phone.
[13] It is trite
that the state has to prove its case beyond reasonable doubt.
In S v Van Der
Meyden 1999(2) SA 79 (W) it was stated that the corollary to the
abovementioned onus of proof is that the accused
is entitled to be
acquitted if it is reasonably possibly true that he might be
innocent.
The court further
held that:
“In order to
convict, the evidence must establish the guilt of the accused beyond
reasonable doubt, which will be so only
if there is at the same time
no reasonable possibility that an innocent explanation which has been
put forward may be true. The
two are inseparable, each being the
logical corollary of the other”
[14] The version of
the state witnesses as to where the cell phone was found was
contradictory.
[14.1] According to
the complainant, the appellant offered to show them where he had
hidden the cell phone and as they were going
back they came across
the police. The appellant took the police to a place where they
initially found him hiding and there the
police found two cell phones
in the grass.
[14.2] Under cross
examination, the complainant denied that the phone was found on the
appellant’s person. He even said the
police would be lying if
they were to come and say that the phone was found on the person of
the appellant.
[14.3] According to
Thusi he reported the incident to one Mthembu who also chased after
the appellant and his friends but turned
back after one of the fiends
the friend fired a shot.
[14.4] Despite
having stated that Mthembu turned back, Thusi mentions that later
when they got to the Appellant’s home, Mthembu
suggested that
they should take the appellant back to where the incident took place
and then call the police.
[14.5] Thusi further
testified that the appellant said he was going to show the police
where his friends were but they did not find
them. He then told them
that the cell phone is where he was hiding and the cell phone was
recovered there. They recovered two
cell phones from the grass.
[15] The evidence of
Thusi contradicts with the evidence of the complainant regarding
where they went after the police arrested
the appellant.
[16] When confronted
with his statement made at the police station, Thusi changed and
confirmed that the phone was found in the
appellants’
possession.
[17] The reason for
the postponement was for the state to subpoena Vusi who allegedly
alerted Thusi about the appellant’s
whereabouts and for Mthembu
who allegedly turned back after a shot was fired.
[18] It appears from
the record that on the 18th of September 2012 when the case resumed,
an affidavit was produced where the Investigating
Officer states that
neither Vusi nor Mthembu could be found despite his attempts to look
for them. The affidavit confirmed that
the complainant was
approached and he indicated that he knew them facially and he does
not know where they reside.
[19] It is clear
from the evidence of Thusi that he knew where Vusi stays; On page 19
of the record Thusi was asked:
“Do you know
Vusi’s addresss?”
Answer: “No I
do not”
“Would you be
able to point out the address to the police?”
Answer: “Yes
I can”
It is also clear
from the evidence of Thusi that he knew where Mthembu stays. “I
took another street; I told Qanisela that
I will inform Mr Mthembu
about the incident first.”
[20] From the above
it can be inferred that Mthembu is someone that the complainant and
his brother knew very well.
[21] In my view, the
evidence of the two state witnesses is riddled with inconsistencies.
Some of the evidence is unreliable and
some of the evidence seems to
be false.
[21] The court
called the arresting officer, Figile Eric Motha. He testified that
he arrested the appellant after he found him
being assaulted by
members of the public who told him, the appellant and his friends had
robbed people of their cell phones. He
then took him to the Police
Station. The complainant’s cell phone was found in his
possession.
[22] The version of
the Police Officer contradicts the version of the state’s
witness that the cell phone was found in the
grass.
[23] The
contradictions in the state’s case are material and cannot be
attributed to mere lapses of memory.
[24] The Appellant’s
version is that he took the phone from the complainant as security
for the R100.00 (Hundred Rand) that
he lent to him during a game of
dice. To his credit, the appellant corrected his attorney who had
put it to the complainant that
the phone was returned to him. The
appellant indicated to his attorney that the phone was found in his
possession.
[25] In S v
Tshabalala
2003 (1) SACR 134
SCA it was stated that in determining
the guilt of the accused the correct approach is to “weigh up
all 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, decide whether balance weighs so
heavily in favour of the state as to exclude any reasonable doubt
about the accused’s guilt.
The court cautioned
against wrongly latching on to one obvious aspect without assessing
it in the context of the full picture presented
in evidence.
[26] In my view the
court a quo erred in finding that because the appellant did not make
an exculpatory statement, then the only
inference was that he robbed
the complainant.
[27] The court a quo
also found the version of the accused not to be reasonably possibly
true because: “there is no indication
that any money was found
on him. Where are his winnings”
[28] In S v Kubeka
1982 (1) SA 534
at 537 F-H Slomowitz AJ, stated that “The
accused’s evidence did not impress me. It contained various
unsatisfactory
features. Whether I subjectively disbelieve him is
however not the test. I need not even reject the state’s case
in order
to acquit him. It is not enough that he contradicts other
acceptable evidence. I am bound to acquit him if there exists a
reasonable
possibility that his evidence may be true. Evidence ought
not to be looked piecemeal and in isolation. All of it should be
analysed
and weighted together in determining whether the state has
proved its case beyond reasonable doubt”
[29] In considering
the totality of the evidence the following deficiencies emerge in the
state’s:
[29.1] It is
questionable why the two state witnesses lied about where the phone
was found, when the appellant was adamant that
it was found in his
possession.
[29.2] Why were
there no other witnesses to confirm their version of events,
especially Mthembu and Vusi?
[29.3] Is it
probable that complainant and his friend, would chase three suspects
suspect armed with a firearm and a knife while
they were not armed.
[29.4] There were
many people there, but it appears that members of the community
apprehended the appellant on the information they
obtained from the
complainant and Thusi.
[29.5] Despite clear
evidence that Thusi knew where to find Vusi and Mthembu, both of them
could not be located by the Investigating
Officer when they were
required to give evidence.
[30] Considering the
totality of the evidence, the evidence of the state witnesses does
not in my view establish the guilt of
the appellant beyond reasonable
doubt. There is a reasonable possibility that an innocent
explanation which has been put forward
might be true.
[31] In my view, the
court a quo misdirected itself as it did not consider the totality of
the evidence in convicting the appellant.
As a result the appeal
against conviction should succeed.
The following order
is made:
1. The appeal
against conviction is upheld.
P D MOSEAMO
ACTING JUDGE OF
THE HIGH COURT OF PRETORIA
I agree,
T A MAUMELA
JUDGE OF THE HIGH
COURT OF PRETORIA
It is so ordered.