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2014
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[2014] ZAGPPHC 289
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Mabuza v S (A861/2013) [2014] ZAGPPHC 289 (29 April 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA)
CASE
NUMBER: A861/2013
DATE:
29 APRIL 2014
In the matter
between:
ERNEST
MABUZA
..................................................
Appellant
And
STATE
....................................................................
Respondent
JUDGMENT
THE COURT
[1] This is an
appeal against conviction and sentence. The appellant was convicted
of robbery with aggravated circumstances in the
regional court,
Benoni, and sentenced to 15 years’ imprisonment. The appeal is
with leave of this court.
[1] Only the
complainant, Mr Edward Fagute testified. A witness statement of Mr
Joshua Mahlangu (Mahlangu) was admitted into evidence
by agreement.
The appellant testified in his defense and closed his case without
calling any witnesses.
[2] The complainant
testified that he and the appellant were neighbours, and well-known
to each other. On 22 November 2009 at approximately
02h00 in the
morning, he and Mahlangu were asleep in his shack when the appellant
and two unknown men stormed the shack. The appellant
produced a
firearm and pointed it at him. The appellant also assaulted him
repeatedly on his knees with a hammer that was in the
shack. One of
the assailants was wielding a golf stick. The appellant took two cell
phones and a wallet with R680 inside, which
were on the table, and
fled with the other assailants. Due to the injuries he had sustained
as a result of the assault on him by
the appellant, he was unable to
walk and Mahlangu had to assist him to his brother’s home, from
where he was carried to hospital.
During cross- examination it
emerged that the previous day he was involved in a fight with his
business partner, a brother to one
Bheki, who was referred during the
trial as Mbeki.
[3] In his
statement, Mahlangu stated that he and the complainant were asleep
when they were woken up by the door being forced open.
The appellant
and Bheki entered the shack. The appellant was having a firearm,
which he pointed at him. Bheki was having a hammer,
which he used to
assault the complainant on his knees. The appellant instructed them
to put their cell phones and money on the
table. When he realized
that Bheki’s assault on the complainant was unrelenting, he
took out R680 from his wallet and gave
it to them. The appellant also
took three cell phones which were on the table. The appellant and
Bheki dragged the complainant
outside, still demanding money. Outside
the shack he observed a third assailant, armed with a golf stick,
whom he pushed aside
and fled. The complainant also managed to flee.
They reported the matter to the police the following day.
[4] The appellant
testified that, the day prior to the incident, he witnessed a fight
between the complainant and his business partner,
who is Bheki’s
brother. He intervened in the fight and separated them as the
complainant was hurting his business partner.
He later accompanied
Bheki to the complainant’s place after he, Bheki, heard about
the assault on his brother. A fight broke
out between complainant and
Bheki and he, the appellant intervened trying to separate them. The
complainant hit him and he retaliated.
The following morning the
complainant and his brothers approached him, wielding pangas and he
ran away. He knows the complainant
well as he is a neighbour to his
brother. He denied any knowledge of, or participation in, the
robbery.
[5] The appellant
attacks the conviction on the sufficiency of the evidence. In
particular, it is contended that there were material
contradictions
between the evidence of the complainant and the statement of
Mahlangu. The State supports the conviction.
[6] The appeal
court’s powers to interfere with the factual findings of a
trial court are limited to instances where there
has been a material
misdirection on the part of the trial court. See R v Dhlumayo and
Another
1948 (2) SA 677
(A).
[7] In our view,
there were a number of internal inconsistencies in the evidence of
the complainant, as well as contradictions between
his evidence and
the statement of Mahlangu. We deal first with the inconsistencies.
First, in his statement he stated that the
incident took place at
04h00 while at the trial he testified that the incident took place at
02h00; Second, he testified that he
did not know the people who were
accompanying the appellant while later he identified one of the
assailants as Bheki. Third, he
testified that he was taken to a
hospital and when asked of the name of the hospital he changed and
said he was taken to a clinic.
[8] As to the
contradictions between the complainant’s evidence and the
statement of Mahlangu, they are the following: First,
the complainant
testified that the appellant took his wallet that had R680 in it; in
his statement Mahlangu mentioned that he took
R680 out of his wallet
and gave it to the assailants, seeing that they were hurting the
complainant. Second, the complainant testified
that the assailants
took two cellphones; while Mahlangu mentioned three cellphones.
Third, the complainant testified that the assailants
left after
taking the money and the cel! phones; while Mahlangu stated that
after taking the items they took the complainant outside
and demanded
more money.
[9] Fourth, Mahlangu
stated that he and the complainant fled the scene after the robbery,
while the complainant testified that their
assailants left them in
the shack and that he, the complainant, was so badly injured, and
could not walk, that he had to be carried
and helped to his brother’s
house. Fifth, according to complainant the man with the golf stick
was inside the shack, while
Mahlangu stated that he only observed his
presence when he went outside.
[10] In its
evaluation of the evidence, the trial court dealt only with one of
the contradictions referred to above, namely one
relating to the
wallet. It concluded that the contradiction was immaterial, and
speculated that there might have been two wallets
containing the same
amount of R680. A court is required to base its findings and
conclusions on the facts before it, and not to
engage in conjecture
or speculative hypotheses. In our view, to the extent the trial court
did so, it misdirected itself materially.
The further misdirection is
its failure to consider the other contradictions pointed out above,
either severally or cumulatively.
[11] On behalf of
the state, reliance was placed on S i/ Mkohle
1990 (1) SACR 95
(A) to
explain away these inconsistencies and contradictions. The submission
is that they are not material, and could merely be
indicative of an
error. We do not agree. We conclude that the nature of the
contradictions, their number, importance and their
overall bearing on
the totality of the
evidence, cast doubt
on the cogency of the state’s case. They are simply too
coincidental to be ascribed to mere error.
[12] It is clear, on
close examination of all the evidence, that there was bad blood
between the complainant and the appellant emanating
from the fight
they engaged in the previous day. This provided the motive for the
complainant to falsely implicate the appellant.
The trial court did
not investigate this aspect in any manner. It is clear that the
complainant and Mahlangu’s versions were
contrived. What they
failed to do was to consider the finer details of their story, which
could not bear scrutiny of cross- examination.
In the result we are
of the view that the state had not established the guilt of the
appellant beyond a reasonable doubt. In the
circumstances the appeal
has to succeed.
[13] In the result
we make the following order:
1. The appeal
against conviction is upheld;
2. The order of the
regional court is set aside and the following is substituted for it:
‘The accused
is acquitted’
3. The sentence
imposed on the appellant is set aside.
TM MAKGOKA
JUDGE OF THE HIGH
COURT
P.D. MOSEAMO
ACTING JUDGE OF
THE HIGH COURT