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2010
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[2010] ZAFSHC 15
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Moeletsane v S (A214/08) [2010] ZAFSHC 15 (11 February 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : A214/08
In
the
matter
between:-
TSHIDISO
MOELETSANE
Appellant
and
THE
STATE
Respondent
_____________________________________________________
CORAM:
H.M.
MUSI, JP
et
EBRAHIM,
J
et
MOOLLA,
AJ
_____________________________________________________
HEARD
ON:
1
FEBRUARY 2010
_____________________________________________________
DELIVERED
ON:
11
FEBRUARY 2010
_____________________________________________________
JUDGMENT
_____________________________________________________
H.M.
MUSI, JP
[1] This
is an appeal against a judgment of
the
regional court at Welkom wherein the appellant was convicted on a
charge of housebreaking with intent to commit robbery and
robbery
with aggravating circumstances and sentenced to 15 (fifteen) years
imprisonment. The appeal is against both conviction
and sentence and
is with leave of the court
a
quo
.
The appeal was initially heard by two Judges of this court but they
could not agree on the outcome.
[2] The
factual background to the appeal is briefly as set out hereunder.
On
the night of 19 October 2005 at about 2 am Mrs Leah Nchoba (wrongly
spelt Nchaba in the charge sheet) and her three daughters,
namely,
Mpho Violet, Dikengkeng Anna and Jane, alongside her little
grandchild, Kekeletso, were asleep in their shack dwelling
in
Thabong, Welkom, when three men armed with a variety of weapons broke
down the door of their house and entered it. Once inside,
the men
demanded that the lights be switched on whereafter two of them
removed several appliances including a TV set, a cellphone
as well as
a handbag containing a bank card, a Foschini card and cash in the
amount of R200,00. One of the three men threw one
of the girls onto
a bed and raped her. The house is a single structure divided by
curtains into a bedroom and kitchen. The family
shared the bedroom
which had two beds. During the attack Mpho hid underneath a bed and
apparently saw nothing and was consequently
not called to testify.
The mother, Anna and Kekeletso sat on the one bed and observed events
from there whilst Jane was thrown
onto the other bed and raped. She
could not observe the rapist as she had been instructed not to look
him into the face but rather
to look to the side. She observed some
of the goings on as she looked sideways away from the rapist.
[3] All
the complainants who testified pointed to the appellant as one of the
attackers. Each one of them gave an account of how
she was able to
observe him and each vouched that it was him that removed the TV set.
The appellant, on the other hand, denied
being involved in the
crimes charged and pleaded an alibi. He said that on the date and at
the time that the offences were committed,
he was at a tavern called
Chico in Thabong, which is apparently far from the scene, given that
he said that he had to board a taxi
therefrom to his home which is in
the vicinity of the home of the complainants. The court
a
quo
found that the appellant had been positively identified as one of the
robbers and rejected his alibi.
[4] Two
issues fall for decision in this appeal. Firstly, whether the
magistrate was correct in rejecting the appellant’s
alibi and
secondly, whether she was correct on the issue of identity. A
finding in favour of the appellant on any of the two issues
will
necessarily lead to the appeal succeeding.
[5] The
court
a
quo
found the witnesses for the State to have been credible and that
there were factors that guaranteed the reliability of their
observations.
However, it gave no reasons for rejecting the
appellant’s case and, significantly, it made no credibility
findings in respect
of the appellant. It seems to have rejected the
appellant’s version purely on the basis that once he had been
positively
identified as one of the robbers, his alibi version could
not stand. This approach was clearly wrong. The strength of the
identifying
evidence is one side of the coin. The alibi had to be
considered in the light of the totality of the evidence, including
that
of the appellant. See
R
v HLONGWANE
1959 (3) SA 337
(AD) at 340H – 341B. In
S
v LIEBENBERG
2005 (2) SACR 355
(SCA) Jafta JA (as he then was) said the following
at 358 i:
“
The
acceptance of the prosecution's evidence could not, by itself alone,
be a sufficient basis for rejecting the alibi evidence.
Something
more was required. The evidence must have been, when considered in
its totality, of the nature that proved the alibi
evidence to be
false.”
[6]
The
major difficulty in this case is that the learned magistrate did not
conduct a meaningful assessment, if any, of the appellant’s
evidence and made no definite findings in regard thereto. Yet the
appellant (though not impressive, in my view) was not discredited
at
all. Cross-examination by the prosecutor did not test the
credibility of the alibi but rather focussed on peripheral issues
like why would the state witnesses falsely implicate the appellant.
The appellant even said in his evidence that he had disclosed
his
alibi to the investigating officer and had invited the latter to
verify it. Of course this version was not put to Inspector
Twala,
but then again no attempt was made to recall him to respond to it.
[7]
I
therefore come to the conclusion that the learned magistrate erred in
rejecting the appellant’s alibi. It stands to reason
that once
the alibi is found to have been reasonably possibly true, it could
not be said at the same time that the State had proved
the guilt of
the accused beyond a reasonable doubt. See
S
v VAN ASWEGEN
2001 (2) SACR 97
(SCA) at 101 a – e where the SCA quoted with
approval a passage to that effect in
S
v VAN DER MEYDEN
1999 (1) SACR 447
(W) at 449 f – 450 b;
S
v LIEBENBERG
,
supra
,
at 358 i to 259 e. On this score alone the conviction stands to be
set aside.
[8] I
now turn to consider the issue of identity. In this regard there is
a serious defect in the case against the appellant which
seems to
have eluded the attention of the magistrate, to which I shall revert
shortly. In my view, no fundamental fault can be
found in the
evidence of the witnesses Leah and Anna Nchoba regarding their
ability to make proper observation. The electric lights
were on and
the TV was removed from the room in which they were seated. It is
clearly a small room and the person who removed
the TV must have been
very close by. The evidence that they were able to see his face
after he had picked up the TV and turned
towards them, is credible.
Whereas the evidence is that the robbers had covered their faces with
their jackets, quite clearly
this person must have used both hands
when lifting the TV, thus for the first time exposing his face. Both
witnesses gave a description
of his face and complexion and said that
he wore a hat and khaki jacket. Anna said that she had seen the
person the previous day
and that he had been wearing the same
clothes. It is common cause that the appellant was known to the
witnesses by sight and that
he stayed in the same vicinity. They
even knew his place of residence. I should say though at this stage
that I would not place
much reliance on the evidence of Jane
regarding her description of the person who removed the TV set. She
was being raped and
how could she possibly have been in a position to
make any meaningful observation when somebody was busy physically
violating her
body and soul? She could only have made a glancing
observation of the person.
[9] The
really worrying aspect of the case is the intervention of other
people in the morning after the crimes had been reported
to the
police and statements taken. Significantly, no statement was taken
from Anna whereas she was an important witness. Be
that as it may,
throughout their statements to the police the witnesses told the
police that the robbers were unknown to them.
How come then that a
few hours later they came up with the name of Tshidiso (the
appellant) as one of the robbers? The answer
is to be found in the
fact that the matter was subsequently discussed with the brother of
the girls and neighbours. This emerges
from the evidence of the
complainants themselves. Leah says that whereas she had known the
appellant by sight, she did not know
his name and that the name was
furnished by her children. Anna says that she gave a description of
one of the robbers to her brother
and the brother said it was
Tshidiso. Likewise Jane confirms that the name was given during
those discussions. Now Mr. Nkhahle,
for the appellant, argued that
this has seriously tainted or, to use his language, “contaminated”
the evidence as to
identity. I agree.
[10] In
a situation like this where the identifying witnesses conferred with
other people about a possible suspect prior to pointing
him out, many
worrying possibilities present themselves. The one possibility is
that someone may have suggested the appellant
as the most likely
suspect based on the fact that he is known in the vicinity to have
criminal tendencies. In fact, Anna said
that she had heard negative
things about him and Inspector Twala inadvertently mentioned that he
had arrested him on previous occasions.
The other possibility is
that alluded to by the witnesses, namely, that the name simply fitted
the description they gave. The
fact of the matter, however, is that
a scenario where witnesses elicit the views of other people on the
identity of the suspect,
is fraught with dangers and is enough to
cast doubt on the reliability of the identifying evidence. Inherent
in it is the risk
of a wrong conviction. It is not known, for
instance, whether but for the intervention of other people the
complainants would
have been able to positively identify the
appellant.
[11] Now
doubts could have been cleared had the investigating officer,
Inspector Twala, not rushed to arrest the appellant in the
presence
of the complainants, but had rather quietly arrested him and then
arranged for the holding of an identification parade.
In fact, it is
questionable why he had to take the complainants along for, on his
own version, he had known the appellant and
where he stayed. The
matter is compounded by the fact that in the police statement earlier
that morning, the witnesses did not
mention, at least, that one of
the robbers was familiar. On the contrary, they said that the
robbers were unknown to them. Under
those circumstances the
appellant was entitled to the benefit of the doubt.
[1
2] In
the result, the appeal succeeds and the following order is made:
Both the conviction and
sentence imposed on the appellant are set aside.
___________
_
H.M.
MUSI, J
P
I
concur.
___________
__
S.
EBRAHIM
,
J
I concur.
___________
____
E.A.
MOOLLA
,
AJ
On
behalf
of appellant: Adv. R.J. Nkhahle
Instructed
by:
Justice
Centre
BLOEMFONTEIN
On
behalf of
respondent: Adv.
V.Z. Nel
Instructed
by:
Director
Public Prosecutions
BLOEMFONTEIN
/sp