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[2006] ZASCA 173
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S v Sithole (54/06) [2006] ZASCA 173 (28 September 2006)
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
CASE
NO: 54/06
Not
Reportable
In
the matter between
SINAMISO
SITHOLE Appellant
and
THE
STATE Respondent
Coram
: HOWIE P, NAVSA JA,
THERON AJA
Heard:
15 SEPTEMBER 2006
Delivered:
28 SEPTEMBER 2006
Summary:
Evidence – contradictions in the evidence of witnesses not
sufficiently material to justify rejection of the state’s
version.
Neutral
citation: This case may be cited as Sithole v The State [2006] SCA
126 (RSA)
JUDGMENT
THERON
AJA
[1] The appellant was convicted in
the Balfour Regional Court of the unlawful possession of an R6 rifle
and 23 rounds of ammunition
in contravention of ss 2 and 36, read
with ss 1, 12, 39 and 40 of the Arms and Ammunition Act 75 of 1969,
and sentenced to an effective
term of imprisonment of four years. The
appellant’s appeal against his convictions to the Transvaal
Provincial Division was
dismissed (Preller J, Ismail J concurring).
This is a further appeal against both convictions, with the leave of
the High Court.
[2] The
issue in this appeal is whether the contradictions in the evidence of
the state witnesses were material, warranting a rejection
of the
state’s
version
of events.
[3] The case for the state rests
on the evidence of three witnesses, namely, Inspector Mhlambi and
reservist Constables Miya and Twala,
all members of the South African
Police Service. A summary of the cumulative evidence of these
witnesses is set out in the following
two paragraphs.
[4] On the morning of 11 June
2002, Miya and Twala were on duty in the vicinity of the post office
in Greylingstad. The post office
is a designated pension paypoint and
pension payments were to be made that day. Miya and Twala were alive
to the dangers associated
with pension payouts and their brief was to
secure the area.
[5] The appellant and others
arrived on the scene in a red Volkswagen Golf motor vehicle. The
appellant’s behaviour aroused
the suspicions of both Miya and
Twala. They reported their suspicions to the police station. In
consequence, Mhlambi proceeded to
the scene. Miya and Twala either
pointed out or described the appellant to Mhlambi. (The evidence in
this regard is not clear.) The
appellant, unsuccessfully, attempted
to flee from the scene and in the process discarded a black canvas
bag which he had been carrying.
It is common cause that the black
bag, containing the firearm and ammunition forming the subject matter
of the charges proffered
against the appellant, was recovered from
the scene.
[6] The appellant’s version
is that he had arranged to meet an associate in Greylingstad who had
undertaken to convey him to
Standerton. Soon after his arrival in
Greylingstad he heard gun shots and in a state of panic ran for
cover. The appellant suggested
that in the resultant pandemonium of
people scurrying for shelter and shops hastily being closed, Mhlambi
mistook him for the suspect
who had earlier been identified by Miya
and Twala. He denied knowledge of the black bag and its contents.
[7] It is trite that not every
error made by a witness will affect his or her credibility. It is the
duty of the trier of fact to
weigh up and assess all contradictions,
discrepancies and other defects in the evidence and, in the end, to
decide whether on the
totality of the evidence the state has proved
the guilt of the accused beyond reasonable doubt. The trier of fact
also has to take
into account the circumstances under which the
observations were made and the different vantage points of witnesses,
the reasons
for the contradictions and the effect of the
contradictions with regard to the reliability and credibility of the
witnesses.
1
[8] I turn now to deal with the
contradictions raised in support of the contention that the evidence
of the state witnesses is untruthful
and at the very least,
unreliable. The first conflict relates to where the appellant was
when Mhlambi arrived on the scene. According
to Mhlambi the appellant
was standing near a tree behind the post office, while Miya’s
evidence was that the appellant was
seated on a railing along side
the road and had at no stage been near a tree. The trial court, in
dealing with this conflict, was
mindful of the fact that Mhlambi and
Miya:
‘nooit heel tyd op presies dieselfde plek
was nie, so hulle waarnemings gaan verskillend van mekaar wees. Dit
is menslikerwys
te verwagte.’
It does not necessarily follow
that Mhlambi or Miya or both must be untruthful or unreliable simply
because there are differences
in their observations.
2
This is the kind of discrepancy to be expected from two eyewitnesses
who are recounting the events from their respective viewpoints;
their
observations were made in tense circumstances. Experience has shown
that two or more witnesses hardly ever give identical accounts
of the
same incident.
3
[9] Another contradiction relied
on by the appellant relates to the question of whether the appellant
was in possession of the canvas
bag when he was apprehended. Mhlambi
said the appellant had discarded the bag prior to his arrest. Miya
said the appellant had been
in possession of the bag upon his arrest.
[10] It is significant that Miya
remained behind while Mhlambi pursued the appellant. It is possible
that Miya may have assumed, incorrectly,
since the police and the
appellant returned with the bag, that the appellant had been in
possession of the bag at the time he had
been arrested. Mhlambi, the
arresting officer, was in the best possible position to testify about
the arrest of the appellant and
whether or not he had been in
possession of the bag at that time.
[11] It was submitted on behalf of
the appellant that Mhlambi was not being honest when he said he had
not lost sight of the appellant
from the time the appellant was
pointed out to him up until the time of his arrest. It was not
suggested during the trial that Mhlambi
was dishonest. On the
contrary, the appellant’s legal representative put the
following to Mhlambi during cross-examination:
‘… ek [wil] dit aan u stel dat u
maak waarskynlik ‘n
eerlike
fout, u het die verkeerde
man gearresteer.’ (Emphasis added.)
[12] In my view the
contradictions referred to do not detract from the trial court’s
findings in respect of Mhlambi, Miya and
Twala. The contradictions
are not material and relate to details. It must be borne in mind that
we are dealing with a tense moving
scene. Of significance is the fact
that the state witnesses corroborate each other in material respects,
especially regarding the
identity of the appellant. There can be no
doubt that Miya and Twala either pointed out or described the
appellant to Mhlambi, as
a result of which Mhlambi pursued and
apprehended the appellant. The evidence of all three state witnesses
inextricably connects
the appellant with the black bag. It is clear
from the record that the finding that Mhlambi and the other state
witnesses were credible
and reliable, is well founded.
[13] The trial court was correct
in disbelieving the appellant and finding that his version was not
reasonably possibly true. His
version as to how he fortuitously came
to be in Greylingstad is fraught with improbabilities. It is
noteworthy that his version as
to the circumstances surrounding his
arrest, particularly the general pandemonium which broke out as a
result of the shooting and
which was the cause of him being
incorrectly identified, was not pertinently put to the state
witnesses. At best for the appellant,
his legal representative
tentatively sought, during cross-examination, to get Mhlambi to
concede that there had been more than just
a warning shot or two
fired during the incident. Nothing concerning the pandemonium so
graphically described by the appellant was
put to Miya or Twala.
[14] It is clear from the judgment
of the trial court that the magistrate was acutely aware of and
considered the conflicts and discrepancies
in the evidence fully and
carefully. The trial court, following the approach suggested in
Sauls
,
4
correctly found, despite the apparent shortcomings in the evidence of
the state witnesses, that the ‘truth has been told’.
In
my view the reasoning of the trial court is unassailable. I am
satisfied, having regard to the evidence as a whole, that the
conflicts
were not sufficiently material to warrant a rejection of
the version presented on behalf of the state.
[15] Finally, I consider it
necessary to deal with further aspects concerning the prosecution of
this matter. First, according to
the ballistics report the firearm
was ‘selflaaiend maar nie in staat … om meer as een
skoot met ‘n enkele drukking
op die sneller te vuur nie’.
This would appear to have been a semi-automatic firearm. Conviction
of the unlawful possession
of such a firearm would attract a minimum
sentence. As a result of inadequacies in the charge sheet the state
was precluded from
seeking the imposition of the prescribed minimum
sentence. Secondly, the geography and topography of the scene was not
adequately
dealt with. This was a matter where an inspection
in
loco
would have been of great benefit. Alternatively, plans
depicting the scene should have been made available to the court. It
is difficult,
on the current record, to fully appreciate the
different vantage points of the witnesses. Thirdly, the prosecutor
lamely conceded,
in regard to a statement by the appellant on arrest
that the firearm was his, that this was a confession when plainly it
was just
an admission. Whether it was made should have been
investigated and if necessary its admissibility dealt with.
[16] For the reasons set out, the
appeal must fail.
_________________________
L
V THERON
ACTING
JUDGE OF APPEAL
CONCUR:
HOWIE P
NAVSA JA
1
S v Sauls
1981 (3) SA 172
(A) at 180E-F;
S v Oosthuizen
1982 (3) SA 571
(T) at 576G-H;
S v Mkohle
1990 (1)
SACR 95
(A) at 98f-g;
S v Jochems
1991 (1) SACR 208
(A) at
211g-j;
S v Mlonyeni
1994 (2) SACR 255
(E) at 261c-d;
S
v Bruiners
1998 (2) SACR 432
(SE) at 439c-f;
S v Mafaladiso
2003 (1) SACR 583
(SCA) at 593f-594h.
2
S v Safatsa
1988 (1) SA 868
(A) at 890F-G.
3
S v Bruiners
1998 (2) SACR 432
(SE)
at 439e-f.
4
S v Sauls
1981 (3) SA 172
(A) at 180E-F.