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[2024] ZAFSHC 123
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Ncobela and Another v S (A15/2022) [2024] ZAFSHC 123 (29 April 2024)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
No: A15/2022
In
the matter between:
MDUDUZI
NCOBELA
1
st
APPELLANT
MOEKETSI
ISHMAEL MAKORO
2
nd
APPELLANT
and
THE
STATE
RESPONDENT
CORAM:
VANZYL, J
et
BOONZAAIER,
AJ
JUDGMENT
BY:
BOONZAAIER, AJ
HEARD
ON:
4 MARCH 2024
DELIVERED
ON:
29 APRIL
2024
[1]
The Appellants
and a co- accused were charged on a count of Robbery with aggravating
circumstances, two counts of being in possession
of two unlicenced
firearms and being unlawfully in possession of ammunition. The co-
accused was aquitted
on
all
charges.
Appellant
1
and
Appellant
2
were
convicted
on
the
charge
of Robbery with aggravating circumstances but aquitted on the other
charges by the Regional Court, Bloemfontein on the 13
May 2016. Both
the Appellants were sentenced to 8 years imprisonment.
[2]
The Appellants
pleaded not guilty on all four (4) charges and offered no plea
explanation.
[3]
The appeal is
against the conviction only.
[4]
It is common
cause that on
25
th
day
of August 2013
an
armed robbery took place at Milwaukee Spur at Preller Plein,
Bloemfontein. Approximately eighty thousand Rands (R 80 000) in
cash,
cell phones, Volkswagen car keys and a Toshiba laptop were taken by
force.
[5]
According to
the evidence the perpetrators were armed with firearms. The
Appellants simply denied any involvement in the commission
of the
crime.
[6]
The events
giving
rise to
the Appellants conviction were briefly as ffollows:
The
complainant,
Magdalena Gouws
testified that on the specific
day at about 22h00, she was on duty as a manager at the Spur at
Preller Plein.
The
lights were on. She was sitting at a table doing administrative work
when two African males walked in. Something about the way
they looked
at her when they had entered, scared her. She immediately phoned
Bloemsec Security services.
[7]
She went to
her office to fetch her car keys and laptop before she tried to leave
the shop. On her way out she talked to one Tina,
a co- worker. When
she looked up, she saw a person with a gun. The one guy instructed
Tina to open the till, whereafter he told
the complainant to open the
safe. At that stage he was facing her.
[8]
Complainant
went into the office, opened the safe and took out the money to put
into a bag. It was roughly Eighty Thousand Rand
(R 80 000). This
person wanted to reload or cock the shotgun, but it got stuck. While
he tried to fix the gun, he asked her where
all the camera boxes
were. After she showed him where the cameras were, he removed it.
[9]
He also asked
her where her cell phone was and she told him that the previous
person took it. He instructed her to leave the office
and to lie
down. He then instructed
all of them in
the restaurant to go into the storeroom.
She then heard
a gunshot. They closed the door, whereafter several more gunshots
were fired outside. Somebody later came to open
the door and released
them.
[10]
Complainant
was unable to identify this person. She only said that he was wearing
a red hoody. They took her Samsung Galaxy X3 cell
phone, Toshiba
laptop and her Volkswagen Vivo car keys.
[11]
Everything
that was robbed was later recovered at the Police station.
[12]
Sydney
Makatsa
testified
that he was serving customers at their table when two people walked
in just before closing time at 22h000. They pointed
guns at the
customers. They ordered the customers and waiters to the front of the
restaurant. Another ·person entered from
the front also armed
with a shotgun and blocked the people from outside. They ordered all
to lie down on the ground and ordered
Tina to open the safe
.
Thereafter
they ordered them all to go to the storeroom. Someone fired a shot in
the storeroom. They also heard gunshots outside.
The security forces
came in and released them.
[13]
Mr.Makatsa
also
testified that there were four persons in the restaurant and the
fifth one came from the stairs.
[14]
Mr.
Makatsa
was able
to identify Appellant 2 in the dock. He testified that he served
Appellant 2 earlier that night. Appellant 2 was also the
one with a
shotgun. He later also identified Appellant 2 at an identification
parade.
[15]
Captain
Thabo
Robert Mokhobo
with
27- years' experience in the South African Police testified that he
was the officer in charge of the identification parade
("ID
parade") which was held at Mangaung Police station. This ID
parade was held according to the specifications and
requirements of
the Criminal Procedure Act.
[1]
At the dentification parade were fifteen (15) male persons, including
the Appellants. Three witnesses made a positive identification
by
pointing out the two Appellants at the identification parade. The
witnesses were not able to see the persons who were lined
up for the
identification parade beforehand.
[16]
Gert
Hendrik Prinsloo
is
employed as an armed response officer at Bloemsec Security Service.
The night in question he was called from the control room
at about
22h45 and instructed to stop as a back -up around the corner from
where the suspects were. Two of the suspects ran down
the stairs
where they grabbed Piet, the FNB Fidelity Guard. He shouted and they
left Piet and Prinsloo fired a shot. Both of the
suspects ran away.
One had stolen goods in a light blue rubbish bag. Prinsloo couldn't
run as fast as them as he was wearing a
bullet proof vest.
[17]
He still heard
shots as he ran to the opposite side of Lauw Wepener Street where his
senior officer and another patrol security
was. He helped Louw van
Jaarsveld to arrest the one suspect in possession of the keys of a
White Opel Kadette. Appellant 1 was
the driver of the Opel Kadette.
[18]
By looking
through the window he saw a Bible and a blue shotgun shell lying on
the backseat of the car. The visibility was good
as many lights were
on. He identified the co accused on his was tall and skinny
appearance.
[19]
Kagisho
Molejane
testified
that he was a waiter at the point where the food is prepared. It was
a Sunday night. He heard a noise from the side where
the customers
were seated. He saw that there were people running in different
directions. He went to the front side of the restaurant
when he was
pointed with a firearm by one of the perpetrators. He was about a
meter from the perpetrator when he pointed him with
the firearm. It
was Appellant 2.
[20]
Appellant 2
directed Mr. Molejane to go where the other people were lying on the
ground. Appellant 1 stood right in front of him
when he directed him
to put his cell phone in a plastic bag. It was a Samsung Omnia. The
two other robbers' faces were covered
and he could not identify them.
They were all ordered to go to the storeroom where they were kept.
Mr. Molejane heard a gunshot
and about five minutes later they heard
some gunshots outside the restaurant. He later recovered his cell
phone from the Police.
[21]
He further
revealed during cross examination that he saw the two Appellants and
the co accused amongst other people about a week
before the incident.
He served them and he could remember that Appellant 2 took the sweets
from the bowl they keep on the desk.
He said that he was taking the
sweets for his children. Appellant 2 was also under the influence of
liquor at the time. Mr Molejane
identified Appellant 2 positively
together with three (3) other people at the Identification parade.
[22]
Constable
Teboho William Motabeng
testified
that he is a member of the South African Police Service and also the
investigating officer in this matter. He was also
the one who later
arrested the co accused in this case, at Batho location. He and
Warrant Officer Lebudi together with Appellant
2 went to the co
accused's house where they recovered a shotgun and ammunition from
the premises where the co accused was staying.
The firearms were all
sent for ballistic analysis. Constable Motabeng took the exhibits
(nine firearms) to Pretoria to be tested.
[23]
Warrant
officer
Dawid
Gerhard Raath
a
policeman with 22-years' experience stationed at the police emergency
services testified that at the night in question he was
in full
police uniform and driving with Warrant officers Opperman and April
in a marked police vehicle. They received a call of
a business
robbery in progress at Milwaukee Spur. They were not far from the
Spur and just when he drove into the parking area
beside the Spur, he
saw a black male running from the Spur towards the police vehicle.
[24]
Warrant
Officer Opperman and himself got out of the vehicle and Opperman
instructed the guy running towards them to stop and lie
down.
Opperman apprehended the and Raath together with Lieutenant Colonel
van der Merwe went up to the Spur to enquire what happened.
After
they had been informed about the robbery, they left the Spur at the
top level where there is another parking area for vehicles.
[25]
In
that
area
there
was
a
white
Opel
Kadette
parked.
It
was
locked.
On
the backseat
of this vehicle was a blue shotgun round. He took down the vehicle's
registration number
and went down
to the Police vehicle
to verify the
owner
of
.
vehicle. On
his way to the police vehicle Raath received a call from Constable
Schlebush of Park Road Police station. He asked Raath
to accompany
him to a house at, 55 General Hertzog Street about 400 to 500 m from
the Spur at Preller.
[26]
Schlebush
indicated that when they were passing that house, they saw two
unknown black males in front of the private residential
house trying
to get over the wall. The gates were locked but found the door in the
side wall was open and they obtained entrance
to the premises. When
they entered the garden, they saw on top of the steps going up to the
house a blue plastic bag lying on the
ground. Raath and Schlebush
searched the area. When they opened the blue plastic bag they found
some cash money, cell phones, a
car key and a laptop there.
[27]
Schlebush
looked over the fence and saw fresh shoe marks in the garden next
door. The owner of number 53 opened the gate for them
and there was a
passage between the house and the garage. They went through that
passage to enter the backyard to search the back
side as well. At the
end of the passage, they discovered a black shotgun standing upright
against the wall. Raath noticed that
the rounds inside the shotgun
were also of a blue colour. There was a steel table and a pile of
steel construction against the
back wall of the premises. Schlebush
climbed up on that steel construction to have a look. He took the
flashlight and lighted the
top of the roof. He called Raath
immediately and indicated that there was an unknown black male lying
on top of the roof. This
black male also had a backpack with him. He
was arrested and they opened the
backpack
and there was a lot of money inside the backpack. Sergeant Nel from
Park Road Police station arrived and helped them to
descend from the
roof.
[28]
The person who was taken from the roof was Appellant 2. Raath also
identified him in the dock at the hearing.
[29]
Warrant officer Willem Gerhardus Opperman
a police officer at
the Flying Squad Unit with 28 -years' experience confirmed what Raath
testified about the robbery that evening.
He further testified that
after he arrested the perpetrator, he asked him to identify himself.
The names he gave Opperman was Dudusa
Petrus Ncobela, Appellant 1. He
also provided his ID number and where he lives.
[30]
The First Appellant's
version:
Appellant
No.1 testified that he went to the Spur that night to buy a take
away. He drove up the parking area with to park but the
doors were
closed. He went downstairs to enter where the doors were open. At th
t stage he was on foot Before he could enter, he
was arrested. The
security guard pointed a firearm at him and instructed him to lay
down. This Security guard wore a black uniform.
This Security guard
explained to him that there was a robbery. He kneeled down with his
arms in the air. Then he heard shots going
off. After a while Police
Officers appeared and cuffed him. His rights were not explained to
him. He tried to explain to the Police
that he was only there to buy
a take away. They searched him and found a car key, a cell phone and
a wallet. He also explained
to the police that he parked his vehicle
where vehicles are normally parked.
[31]
An identification parade was held sometime after his arrest. His
evidence is that the witnesses saw him prior to the identification
parade. He doesn't know Appellant 2.
(32)
The Second
Appellant's
version:
He
came from duty and was walking in the street when he was arrested. He
was carrying a black bag and inside the bag was his ID
and his
lunchbox.
[33]
Counsel
for the
state
submitted
t at
on
a proper
analysis
of the
totality
of
the evidence
there are some inherent improbabilities namely:
i)
Would the
police arrest appellant 2 when merely walking in the street at night?
ii)
Would
appellant 1 be arrested for merely going to the Spur as a customer to
buy takeaways?
iii)
Is it a
coincidence that the very people, the Appellants, who were arrested
so innocently as
they allege
are the same people which the witnesses identified as the robbers?
iv)
Is it a
coincidence that both witnesses, Sydney Makatsa and Kagiso Molejane,
testified that Appelant 2 was in possession of a shotgun
during the
robbery but both say that Appellant 1 was unarmed.
v)
Is it a mere
coincidence that the person whom the two abovementioned witnesses say
was in possession of a shotgun (Appellant2) was
arrested at house 53
General Hertzog Street where a shotgun was later recovered?
vi)
Is it a
coincidence that the shotgun that was recovered at the house where
Appellant 2 was arrested had a blue round(ammunition)
in it and a
blue cartridge was also seen in Appellants 1
's
Opel Kadette?
vii)
Is it a
further coincidence that Appellant 2 was arrested with a backpack
containing money?
viii)
Is it probable
that Appellant 2, being wrongly accused of a robbery he did not
commit, would not call his employer to support his
version that he
was at work and had just knocked off?
x)
Is the evidence of the police officers and the identifying witnesses
a conspiracy against
the appellants in as far as it is unfavourable
to them?
[34]
It
is the State's submission that the requirements for sufficient
identification of the
Appellants
have
been
fully
satisfied.
[2]
The
State proved
its
case
beyond
reasonable doubt and accordingly, the Appellants were correctly
convicted.
[35]
The
Appellants'
issues raised
in the appeal can be summarised to be that the trial court erred in
finding that the identity of the Appellants had
been proved beyond a
reasonable doubt.
[36]
The Appellants
submit that the identification of the appellants as the assailants
were not properly made due to the following:
i)
The court a
quo relied on the evidence a per the identification parade to convict
the appellants; however, the co-accused was also
identified in the
identification but was acquitted because the witnesses testified that
they could be making a mistake to his identification.
ii)
The witness
Kagiso Molejane's identification of Appellant 1 is unreliable. He
identified two wrong persons unrelated to this case
during the
identification parade and only while testifying in court did, he
identify Appellant 1. This amounts to dock identification.
iii)
During the
time, that Kagiso Molejane identified Appellant 2, he was afraid and
his attention was focussed on the firearm as well
as the person
pointing the firearm. A further aspect is that he never informed the
police that he saw Appellant 1 and 2 in the
Spur a week before the
incident. Therefore, this witness's testimony cannot be trusted
because he was not sure of the identity
of the perpetrators.
iv)
The
identification of Appellant 2 by Mr. Sydney Makatsa was also
unreliable. This witness pointed out a person unrelated to the
offences that the Appellant was charged with. Even though this
witness pointed out both Appellant 2 and 2 the co- accused, the
court
found that there was doubt to the identification of the co -accused.
v)
The witnesses
never saw Appellants 1 and 2 before the date of the incident except
for Kagiso Molejane.
[37]
The Appellants
are also of the view that the court a quo erred in finding that there
were no improbabilities in the state's case
.
i)
According to
the evidence of Mr. Raath, Appellant 2 was found on the roof not far
from where the items were found.
However, there
were no fingerprints and or footprints found that linked Appellant 2
to the blue bag that contained the stolen items
or to any of the
stolen items or the firearms.
ii)
The evidence
of Mr. Raath, Mr Schlebush was never tendered which raised a question
why he was not called to testify?
iii)
Appellants
submit that the police were looking for the suspects in the area and
it is probable that Appellant 2 could have just
been walking in the
street on his way home.
[38]
The court a
quo also erred in finding that the witnesses testified in a
satisfactory manner. Me. Abrahams submitted that that there
were
material contradictions in the evidence of the state witnesses;
i)
The
arrest
of
Appellant
1
is
a
material
aspect
especially
when Appellant
1 is denying how the arrest happened.
ii)
According to
Mr Gert Prinsloo of Bloemsec he assisted Louis van Jaarsveld in the
arrest of Appellant 1, however Mr. Willem Opperman
contradicted this
version. According to Mr Opperman, he arrested Appellant himself.
iii)
This issue is
further exacerbated by the fact that Louis van Jaarsveld was not
called to give evidence.
iv)
Based on the
contradictions as to the arrest of Appellant 1, appellant 1 's
version that
he went to buy a take - away and never entered the Spur is probable.
v)
Only in
cross-examination did Mr. Willem Prinsloo testy that he asked
Appellant 1 where he came from however this aspect was not
mentioned
in evidence in chief.
vi)
According to
Mr. Kagiso Molejane's evidence, appellant 2 pointed him with the
firearm in the face and Appellant 1 asked him for
his cell phone.
However, in his statement he said that he handed his cell phone to
the person who pointed him with the firearm.
THE
LAW:
Appeal
on the Conviction:.
[39]
Section 322(1)
of the CPA reads
inter
alia
as
follows:
"In
the case of an appeal against
a
conviction
...
the court
of appeal may-
(a)
allow the appeal if it thinks that the judgment of the trial court
should be set aside on the ground of
a
wrong
decision of any question of law or that on any ground there was
a
failure of
justice; or
(b)
give such judgment as ought to have been given at the trial or impose
such punishment as ought to have been imposed at the trial;
or
(c)
make such order as justice may require
:
Provided
that, notwithstanding that the court of appeal is of opinion that any
point raised might be decided in favour of the accused,
no conviction
or sentence shall be set aside or altered by reason of any
irregularity or defect in the record or proceedings,
unless
it
appears to the
court of appeal that
a
failure
of iustice has in fact resulted from such
irregularity or defect
."
[My own emphasis]
[40]
It
is thus trite that a trial court must consider the totality of the
evidence which led to determine whether the essential elements
of a
crime have been proved. As Nugent J stated in
Van
der Meyden,
[3]
cited
as follows:
"The
proper test is that an accused is bound to be convicted if the
evidence establishes his guilt beyond reasonable doubt,
and the
logical corollary is that he must be acquitted if it is reasonably
possible that he might be innocent
.
The
process of reasoning which is appropriate to the application of that
test in any particular case will depend on the nature of
the evidence
which the court has before it. What must be borne in mind, however,
is that the conclusion which is reached (whether
it be to convict or
to acquit) must account for all the evidence.
Some
of
the evidence might be found to be false; some of it might be found to
be unreliable; and some of it might be found to be only
possibly
false or unreliable; but none of it may simply be ignored
."
[41]
In dealing
with this matter this court is mindful that a court of appeal is not
at liberty to depart from the trial court's findings
of fact and
credibility, unless they are vitiated by irregularity, or unless an
examination of the record reveals that those findings
are patently
wrong. In
S
v Monyane and others
2008 (1) SACR 543
(SCA) at paragraph
[15]
the
learned Ponnan JA stated the following which is relevant.
"This
court's
powers to interfere on appeal with the fin.dings of fact of
a
trial court
are limited
.
...
In the
absence of demonstrable
and
material misdirection
by the
trial court, its findings of fact are presumed to be correct and will
only be disregarded if the recorded evidence shows
them to be clearly
wrong
.
(S v Hadebe and Others
1997 (2) SACR 641
(SCA) at 645e
-
f)."
[42]
It
is consequently settled law that the powers of a court of
appeal
to interfere with the findings of fact of a trial court are strictly
limited. If the court of appeal is satisfied that there
has been
.
no
misdirection on the facts, it ought to accept that the trial court's
evaluation of the evidence is correct. A court of appeal
will
interfere if it is convinced that that the evaluation is wrong.
S
v Bailey
2007 (2) SACR 1
(C).
It
is therefore only in exceptional cases that an appeal court will be
entitled to interfere with a trial court's findings of fact
and
credibility
[4]
[43]
The
cautionary rule requires that courts treat evidence of identification
of the accused person with caution, as eyewitness identifications
are
notoriously fallible and prone to error.
"[i]t
is not enough for the identifying witness to be honest: the
reliability of his observation must also be tested.
This
depends on various factors, such as lighting, visibility, and
eyesight; the proximity of the witness; his opportunity for
observation, both as to time and situation; the extent of his prior
knowledge of the accused; the mobility of the scene; corroboration;
suggestibility; the accused's face, voice, build, gait, and dress;
the result of identification parades, if any; and, of course,
the
evidence by or on behalf of the accused.
The
list is not exhaustive.
These
factors, or such of them
as
are
applicable in
a
particular
case,
are
not individually decisive, but must be weighed one against the other,
in the light of the totality of the evidence.
"
[12]
[44]
The
reliability of a witness testifying as to the identification of an
accused must be considered against the evidence as a whole.
[45]
In
S
v Lubaxa
[5]
it
was held that what a fair trial entails must be determined by the
circumstances of each case. The circumstances of this case
required
independent corroborative evidence on the identification issue, in
particular the presence of the Appellants when the
robbery was
perpetrated and their involvement therein
.
[46]
The State
tendered the above evidence to link the Appellants to the crime.
CONCLUSION:
[47]
Considered
holistically, it is clear what exactly happened the night of this
event.
[48]
Applying the
principles as stated above to the facts, the court a quo found the
State witnesses to be beyond reproach and the appellant's
version as
riddled with improbabilities.
[49]
I am satisfied
that the conviction of the Appellants by the court a
quo
in respect
of count 1 was correctly arrived at.
There was no
irregularity and/or misdirection in
the
conviction as
alleged by
the
Appellants. There are consequently no grounds on which this court is
entitled to interfere with the conviction of the Appellants.
[50]
In the premise
the appeal, which is against the conviction only, stands to be
dismissed.
ORDER
[51]
In the result
the following order is made
:
51.1.
The appeal against the conviction is dismissed.
BOONZAAIR,
AJ
I
agree and it is so ordered.
VAN
ZYL, J
For
the Appellants:
Adv.Venecia
Abrahams
Instructed
by:
Legal
Aid South Africa
4th
Floor, Fedsure Building
49,
Charlotte Maxeke Street
BLOEMFONTEIN
For
the Respondent:
Adv.
Moseme Lencoe Komane
Counsel
for the Respondent
Office
of the Director of the Prosecutions
Waterfall
Building
BLOEMFONTEIN
[1]
CPA,
Act 51 of 1977.
[2]
S
v Charzen
(2006) 2 ALL SA 371(SCA)
.
[3]
1999(2)
79 W p 82.
[4]
S
v Francis
1991' (1) SACR 198
(A) at 204b
-
e;
S v Hadebe and Others 1997(2) SACR 641(SCA) at 645e - f.
[5]
[2001]
ZASCA 100
;2001(4) SA 1251 SCA para 21.