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[2013] ZAFSHC 146
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Motloung v S (A316/2012) [2013] ZAFSHC 146 (5 September 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : A316/2012
In the matter between:-
TEBOHO
JOSIAS MOTLOUNG
...............................................
Applicant
and
THE STATE
..........................................................................
Respondent
_____________________________________________________
CORAM:
MOCUMIE J et FISHER, AJ
_____________________________________________________
HEARD ON:
6
MAY 2013
_____________________________________________________
DELIVERED ON:
05 SEPTEMBER 2013
_____________________________________________________
JUDGMENT
_____________________________________________________
MOCUMIE, J
[1] On 28 November 2010
the appellant and his co-accused were charged with robbery in the
Magistrate court Bethlehem. On 7 February
2012, the appellant was
convicted as charged and sentenced to three years imprisonment. His
co-accused was found not guilty and
discharged. On 14 November 2012
he was granted leave to appeal against his conviction only by this
Court after petitioning the
Judge President of this Division. During
the trial the appellant was legally represented.
[2] Mrs Shai Zheng, the
complainant, was assaulted and robbed of R2000,00 cash and two
packets of cigarettes on 28 July 2011 around
18h00 inside her grocery
store in Petsana, Reitz, by two men. She sustained injuries around
her neck but did not seek medical attention.
She later, on the same
day, identified the appellant as one of the assailants at the police
station. The appellant’s co-accused
was arrested later after
being pointed out by the appellant as the person who had been in his
company when this offence was committed.
[3] Mrs Zheng stated that
she knew the appellant some few weeks prior to 28 July 2011 and
explained to what degree. She stated that
the appellant came to her
grocery store several times during the day. He would ask for prices
of items and then leave without buying
anything. That is why during
the assault she was able to identify him. Apart from her prior
knowledge of the appellant as she explained,
the grocery store had
bright electric lights inside. These lights were on. The appellant
and his co-accused were in close proximity
with her, about two meters
from her, behind the counter, when the appellant took the money from
the till where it was kept. The
incident took place for about fifteen
minutes.
[4] The appellant was
further implicated through the evidence of Captain Mokhethi who
testified that on the day in question a group
of people including the
appellant had just been arrested on various charges not related to
this case. As they were brought into
the charge office, the
complainant, who had just walked into the police station, pointed the
appellant out as her assailant during
the robbery at her store. The
appellant was there and then confronted with the complainant’s
allegations. During the interview,
the appellant made certain
admissions to Captain Mokhethi which were however not reduced to
writing but included in the Captain’s
own statement. Although
he denied telling Captain Mokhethi that he was the perpetrator,
Captain Mokhethi maintained he did. He
had no reason to falsely
implicate the appellant. He was not the investigating officer and did
not have any interest in the matter
which would adversely influence
him. As a result of those admissions the appellant was charged and
locked up and his co-accused
was arrested later.
[5] Captain Mokhethi was
corroborated by Warrant officer Fivas in so far as the arrest of the
appellant at the police station was
concerned. Although he could not
confirm the content of Captain Mokhethi’s evidence and what
transpired between Captain Mokhethi,
the appellant and the
complainant, he however confirmed that on that day the appellant was
pointed out by the complainant.
[6] The appellant
testified in his defence and did not call any witnesses. He denied
any involvement in the robbery. He insisted
that he did not know the
complainant and was never at her grocery store on the day in question
or prior to 28 July 2011.The reason
he remembered this was because he
had just been released on parole. As on 28 July 2011 he had fifty
five (55) days outside the
prison on parole. Thus the complainant
could not have known him prior to the day in question.
[7] His defence was that
of an alibi that on that day from 16h00 he was at his home. He
recalled that he was home from 16h00 because
he was waiting for
officers of Correctional Services who visited him from that time as
part of his conditional release on parole.
He closed his case without
calling anyone at his home or in the neighbourhood if he was not
staying with anyone at his home.
[8] In a response to the
prosecutor’s question during cross examination he admitted that
he made an admission to Captain Mokhethi
that he committed the
robbery. He alleged that he made the admission because Captain
Mokhethi and Warrant officer Fivas had assaulted
him and forced him
to make the admission. He denied that he said anything to the police
about his co-accused. He alleged that he
made the statement in the
presence of Warrant officer Fivas. However, he could not explain why
this was not put to the two police
officers when they testified.
Neither could he explain
(a) how Captain Mokhethi
would have known about the admission if the appellant did not make
such admission to him,
(b) why would Warrant
officer Fivas write down something he did not say.
(c) how would both know
that his co-accused was his friend and that they had been together
when this robbery was committed if he
did not tell them.
[9] It was common cause
that the complainant was robbed on 28 July 2011 by two men at her
grocery store at 18h00. The only point
in issue during the trial and
in the appeal before us was the identity of the complainant’s
assailants.
[10] In convicting the
appellant the trial court held that it was satisfied based on the
evidence of all state witnesses that the
appellant was one of the
complainant’s assailants. It rejected the appellant’s
alibi in the light of the complainant’s
evidence of
identification which was strengthened by the fact that:
(a) the complainant knew
the appellant some few weeks prior to the day she was robbed;
(b) hardly two hours had
lapsed when the complainant pointed out the appellant out of her own
amidst a group of other unknown suspects
that had been arrested with
the appellant on other cases, whilst the incident was still fresh in
her mind;
(c) that the incident
happened inside the grocery store where there were no other customers
except the two;
(d) the grocery store was
sufficiently lit with electric lights;
(e) the complainant could
clearly explain what each participant did during the commission of
the robbery.
[11] In its reasoning,
the trial court was alive to the pitfalls of evidence of a single
witness as well as evidence of identification.
There was no material
discrepancies the appellant could point to, to indicate that the
trial court did not apply its mind judicially
to the evidence
presented. What seemed to be the only aspect that the appellant
referred to as ‘material contradiction’
was the fact that
the complainant stated in her evidence-in-chief that she was called
by the police to come to the police station
to identify the suspect
whereas the police testified that she identified the appellant on her
own. This on it’s own cannot
be regarded as a material
contradiction. The differrence in the witnesses’ evidence in
this regard was taken into account
appropriately by the trial court.
The trial court stated categorically that it rejected that version
because Warrant officer Fivas
was originaly not aware why the
complainant was at the police station, and secondly the appellant
made admissions to Captain Mokhethi
which corroborated the
complainant’s version. What also counted against the appellant
and strenghthened the complaint’s
version more was the fact
that he had denied being at the complaint’s store because fifty
five (55) days before 28 July 2011
he was still in custody on some
other case, but when calculated backwards, the appellant was out of
prison on 04 June 2011 already.
[12] The trial court
applied its mind as a trial court should. It considered the
probabilities and improbabilities on both sides
and preferred the
state’s version as the more probable. There is no reason for
this Court to interfere with the conviction
of the trial court.
[13] The appellant was
granted leave to appeal against his conviction only, it is as a
result not necessary to traverse the sentence
imposed.
[13] In the result the
following order is granted.
ORDER
The conviction is
confirmed.
The appeal is dismissed.
_______________
B.C. MOCUMIE, J
I
concur.
________________
P.U.
FISCHER, AJ
On behalf of appellant:
Adv L.M. Tshabalala
Instructed by:
Bloemfontein Justice
Centre
BLOEMFONTEIN
On behalf of respondent:
Mr W.Z. Sampisi
Instructed by:
Director of Public
Prosecutions
BLOEMFONTEIN
BCM/sp