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2013
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[2013] ZAFSHC 145
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Masilo v S (A16/2012) [2013] ZAFSHC 145 (29 August 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A16/2012
In the appeal between:-
WELLINGTON MASILO
...........................................................
Appellant
and
THE STATE
..........................................................................
Respondent
_____________________________________________________
CORAM:
MOLOI, J
et
PHALATSI, AJ
_____________________________________________________
HEARD ON:
19 AUGUST 2013
_____________________________________________________
JUDGMENT BY:
PHALATSI, AJ
_____________________________________________________
DELIVERED ON:
29 AUGUST 2013
_____________________________________________________
[1] The appellant was
charged with robbery with aggravating circumstances in the Regional
Court at Welkom. He was convicted on the
said charge on 7 June 2011
and sentenced to 10 (ten) years imprisonment. He came before us on
appeal against his conviction, by
leave of the Court
a quo
.
[2] The evidence in this
matter is largely common cause in that it was not disputed by the
appellant that a robbery took place at
Edgars, Welkom, on 1 February
2009, where cash in the amount of R8 550.00 was taken from the
personnel of the said Edgars.
The only point in issue was the
identity of the appellant, as he (appellant) raised the defence of an
alibi.
[3] The State called the
evidence of four witnesses, as well as the record of the identity
parade and the video footage, in support
of its case that the
appellant was one of the two people who committed the robbery. For
the purpose of the appeal, the evidence
of Annie Blom is not
relevant, as she testified that she did not see the appellant on the
said day. The appellant testified in
his own defence and called
Walton Tyala as a witness to confirm his alibi.
[4] The first state
witness was Kgotleng Hlohlolo, who testified that at the time of the
incident he was employed by Edgars and
on the morning of 1 February
2009, he was on duty. He saw two male persons standing with his
co-employee, Maluka, but what was
strange was that the two male
persons were on the other side of the counter, which was reserved
only for the personnel of Edgars
and not members of the public. He
went to enquire, but one of the assailants pointed him with a firearm
and he was ordered to go
and knock at the “cash office”,
where money was taken from. He, Maluka, and the other witness,
Kholoane were forced
into the cash office where Annie Blom was
ordered to put money in the sports bag. He saw the appellant as one
of the assailants
and he pointed him (appellant) out at the identity
parade, which was held later. Before he could attend the identity
parade on
28 May 2009, he had occasion to look at the video footage
of the robbery and also discussed the matter with his colleagues. It
appeared, from the information he gained from other colleagues, that
the appellant had worked at Edgars in Welkom before.
[5] Thabang Eric Kholoane
was the next witness who testified. He testified that he firstly met
the appellant on the day of the robbery
at the bathroom of Edgars and
a certain Gert told him (the witness) that the appellant was
Wellington and was previously employed
at Edgars. Gert greeted the
appellant, but he (the appellant) avoided them and pretended to be
talking on his cell phone. He again
saw the appellant when he was
holding a shining object against the neck of Maluka when they were
taken to the cash office. The
appellant was wearing a white cap and
white striped T-shirt. He later, during cross-examination, said he
heard the name Wellington
in court. He also pointed the appellant out
at the identity parade. He could identify the appellant even though
he froze for a
while when he saw the appellant holding a shining
object against the neck of Maluka.
[6] Lazarus Mokoena
testified that he was employed at Wimpy, which is in the same Liberty
Centre as Edgars in Welkom. On the morning
of the robbery he was
going to deliver food to one of the personnel at Edgars. He had to go
to Edgars through the security gate
from the basement. He knocked for
security officers to open and two unknown male persons responded by
opening the door. He later
identified one of these male persons as
the appellant and also pointed him out at the identity parade. The
appellant was wearing
a cap and had a bag in his possession when he
saw him. He did not identify him by any special features.
[7] Maluka Sylvia
Ramosedi testified that she was helping a customer when two male
persons came to where she was in the shop. She
wanted to help them,
but the other one was busy on his cell phone. After helping this
customer, the two males came to her to the
side of the counter where
she was. She asked them whether she could help them as they were not
allowed to be on that side of the
counter. They then took out a
firearm and told her that she could be helpful by knocking at the
door. They showed the door where
she was supposed to knock with the
firearm. She became frightened and Khotleng came. Khotleng was then
pointed with this firearm
and Eric also came and was told to join
them. They then all went to the cash office, together with the two
assailants. She identified
one of the robbers as the appellant and
testified that she also pointed him out at the identity parade. Some
unknown object was
placed on her neck and she thought that she was
dead. All this happened very quickly and in the cash office, they
were tied up
and left there.
[8] The report of the
identity parade was read into the record and accepted as Exhibit “F”.
What is worth noting from
this report is that there were nine people
in all, including the suspect (appellant), who were said to be more
or less of the same
age. The ages of the people are noted as 25, 26,
27, 28, 30, 39 and two who are 29 years of age. Only the suspect
(appellant) is
45 years of age. In the light hereof I find it
interesting that it is said that the people who were there were of
more or less
the same age, except for the appellant. The court also
put on record what it had observed from the video footage. The
essence thereof
is that the faces of the people committing the
robbery are not visible from the footage, but the person with a white
cap is wearing
a floral shirt. The State then closed its case.
[9] The accused then
testified that he went from Bloemfontein to Kimberley on the 31
st
of January 2009 to go and visit his ailing father. After buying
groceries with his mother, he went to a tavern, where he met a
prostitute lady called Naomi. He then went to a guest house called
Didimalang there in Kimberley, where he booked in from the 31
st
of January to the 2
nd
of February 2009 with this lady,
Naomi. He also produced a receipt as proof of the fact that he was
booked there and it was accepted
as exhibit “H”. In
cross-examination, other than it being put to him that he was the one
who robbed at Edgars in Welkom,
as identified by the State witnesses,
nothing more came out.
[10] Mr Walton Tyala
testified that the guest house, Didimalang, is a family business and
he is the one who is running it. He further
testified that he is
always there, as he is staying on the premises. He further testified
that on the 31
st
of January 2009 the appellant booked a
room at the guest house in the company of a female companion. He
furthermore testified that
the following day, the 1
st
of
February 2009, between 10h00 and 11h00 in the morning, the appellant
gave him the key to the room which he (the appellant) had
booked, in
the driveway of the guest house and told him that they (the appellant
and his companion) were going to town. In cross-examination
by the
prosecutor he testified that he knows the appellant from Kimberley by
sight, but that he does not know his parents. On the
question as to
how was it possible that he remembered what happened two years prior
to his testimony so vividly, he replied that
some days after the
appellant had stayed at the guest house, he received a telephone call
from a policeman who enquired whether
the appellant had stayed there
and he confirmed after he had checked his books. That, he said, is
what made him not to forget the
incident. The court then asked
questions, which, I must say, was an unusually lengthy judicial
questioning. Be that as it may,
it was put to the witness that the
times that he testified on were an estimation, which he confirmed.
Then it was put to him that
the time that he saw the appellant on the
1
st
of February 2009, could have been earlier and the
witness replied that it could have been earlier or a little later.
[11] In its judgment, the
trial court finds that Tyala could not
precisely
recall the
date
on which the incident occurred and he was not
precisely
sure
of the actual
time
at which he saw the appellant and
the lady when he was at the driveway and conceded that it could be an
hour or two earlier than
10H00 or 11H00. The trial court is further
of the view that the evidence of Tyala did not corroborate the
appellant’s version
as to where he (appellant), was on the 1
st
of February 2009.
[12] These findings and
observations are difficult to comprehend, for the following reasons:-
Firstly, it is trite that
where the defence of the accused is an alibi, that fact should be
disclosed to the State at the earliest
possible opportunity, to
enable the State to investigate and verify the alibi.
In casu
,
it would seem that the police were told about the alibi upon the
arrest of the appellant and they did call Tyala, who confirmed
it
(the appellant’s alibi). It would seem, however, that the
police did not follow it up, for the reasons that are not apparent
from the record. The trial court, however, does not question this
obvious omission on the part of the State, which should have
put this
matter to rest, without having to speculate.
[13] It is also never
possible for a witness to precisely recall the date and time as to
when an incident occurred and to criticise
and reject the evidence of
a witness on the basis that he/she was not precisely sure of the
time, is to place too high a burden
on the witness.
In casu
,
the witness Tyala did say that he was not making a mistake about the
date on which the appellant booked in at the guest house
and the day
that he saw the appellant when he gave him the keys, which was the
1
st
of February 2009. He did concede that the time between
10h00 and 11h00 is an estimate and that it could have been earlier or
a
little later, but he never said an hour or two earlier, as found by
the trial court. The uncontested evidence is that the robbery
was
committed on the 1
st
of February 2009, at about 10h00 in
Welkom and Tyala testified that he saw the appellant on the 1
st
of February 2009 at about 10h00 or 11h00 in Kimberley. I therefore do
not understand how the trial court could have come to the
conclusion
that this uncontested evidence of Tyala did not corroborate the
appellant’s version as to where the appellant
was on the 1
st
of February 2009. This is a clear misdirection on the part of the
trial court.
[14] The trial court also
appears to have rejected the evidence of Kgotleng Hlohlolo, on the
basis of, among other reasons, that
he did not have sufficient time
to observe the appellant, because he was frightened. This finding was
made despite the fact that
the witness identified the appellant at
the identity parade. The trial court, however, accepts the evidence
of the other witnesses
and finds that the State’s case against
the appellant is overwhelming. The common aspect of the evidence of
all the witnesses
who identified the appellant is that they had very
limited time to observe the appellant, yet they were very sure that
it is the
appellant who they saw on the day of the robbery. It would
seem from the report of the identity parade that they all did not
take
time to identify him. I have already alluded to the fact that
the appellant was the only “oldie” of all the other
participants
at the identity parade, which would make him easily
distinguishable from the others. The date of arrest of the appellant
is 2 March
2009 and the date of his first appearance in court is 28
April 2009, according to the charge sheet. The appellant again
appeared
in court on 22 May 2009 and on 28 May 2009, six days after
the second appearance by the appellant in court, the identity parade
was held. This leads to the unsatisfactory state of affairs where the
suspect is taken to the identity parade after he has twice
appeared
in open court, which could have given the state witnesses the
opportunity to identify the suspect beforehand.
[15] In
S v
Liebenberg
2005 (2) SACR 355
(SCA) at 359c – d the
court found at follows:
“
Where a
defence of an alibi has been raised and the trial court accepts the
evidence in support thereof as being possibly true,
it follows that
the trial court should find that there is a reasonable possibility
that the prosecution’s evidence is mistaken
or false. There
cannot be a reasonable possibility that the two versions are both
correct.
”
I have already found that
the trial court misdirected itself by rejecting the evidence in
support of the appellant’s alibi
and I find that the said
evidence is possibly true. I have also shown the pitfalls in the
State’s evidence, which indicate
that there is a reasonable
possibility that the said evidence is mistaken or false. In the light
of these findings, it is clear
that the appellant’s conviction
cannot be sustained and should be set aside.
[16] I therefore make the
following order:
The appeal succeeds.
The Court
a quo
’s
order is set aside and replaced with the following order:
“
The
accused is found not guilty and discharged.”
_________________
N.W. PHALATSI, AJ
I concur.
____________
K.J. MOLOI, J
On
behalf of appellant: Adv L. Smit
Instructed
by:
Justice
Centre
BLOEMFONTEIN
On
behalf of respondent: Adv C.F. Steyn
Instructed
by:
Director
of Public Prosecutions BLOEMFONTEIN
/spieterse