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[1988] ZASCA 157
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S v Baloyi (605/87) [1988] ZASCA 157 (29 November 1988)
SAFLII Note:
Certain personal/private details of parties or witnesses have
been redacted from this document in compliance with the law and
SAFLII
Policy
/MC
Case
nr 605/87
IN THE SUPREME COURT OF SOUTH
AFRICA
(APPELLATE DIVISION)
Between
MINSTON BALOY
I
Appellant
and
THE STATE
Respondent
CORAM:
VAH
HEERDEN, HEFER et VIVIER JJA.
HEARD:
22
November 1988
DELIVERED:
29 November 1988
JUDGMENT
VIVIER JA/.......
2
VIVIER JA:
During the night of 16 December
1985 P.N. and his wife A. were asleep in their house at 800, Dâ¦Vâ¦,
near Johannesburg when a
group of about twelve young men broke into
the house. The youths assaulted P. by kicking and hitting him. They
demanded from him
the keys of his Kombi which was parked outside. P.
and his wife fled, but she was dragged back into the house and raped
by one
of the youths. The keys to the Kombi were found by one of the
intruders and removed, together with R220-00 in cash. A great deal
of
damage was done to the Ntibanes' possessions: 16 windows of the
house, a kable, doors, chairs, a hi-fi set and the back window
of the
Kombi were broken and a front door of the Kombi and the fence in
front of the house damaged.
Following upon
these events the appellant ("accused no 1") and four
others, to whom
I
shall
refer as accused nos 2, 3, 4 and 5 respectively, were charged in the
Regional
3/. . .
3 Court at Johannesburg on five
counts: housebreaking with intent to commit an offence unknown to the
State (count 1); rape (count
2) ; assauit with intent to do grievous
bodily harm (count 3); theft (count 4) and malicious injury to
property (count 5).
The charges against accused no 3
were withdrawn when he failed to appear at the trial and accused no 4
was found not guilty on all
the charges. The other accused were
convicted as follows: on count 1 accused nos 1, 2 and 5 were found
guilty of housebreaking
with intent to commit robbery; on count 2
only accused no 2 was found guilty and on count 3 only accused no 5
was found guilty;
on count 4 all the accused were found not guilty
and on count 5 only accused no 1 was found guilty. On count 1 accused
nos 1, 2
and 5 each received a sentence of 6 years' imprisonment. On
count 5 accused no 1 was sentenced to one year's imprisonment. On
count
2 accused no 2 was sentenced to 5 years' imprisonment
4/...
4
and on count 3 accused no 5 was
sentenced to one year's imprisonment.
Accused nos 1,
2 and 5 appealed to the Witwatersrand Local Division against their
convictions and sentences. The appeals were dismissed,
save that in
the case of accused no 2, two years of his sentence on count 2 was
ordered to run concurrently with his sentence on
count 1. With the
leave of the Court
a
quo
accused no 1 now appeals to this Court against his convictions and
sentences.
The main issue
before us was whether accused no 1 was correctly identified as one of
the men who entered the complainants' house
on the evening in
guestion. Miss Borchers, who appeared on behalf of accused no 1,
submitted, firstly, that the evidence of the
State witnesses P. and
A.N., who both identified accused no 1 as one of the intruders, was
unsatisfactory and unreliable in a number
of respects, and secondly,
that the evidence of accused no 1
5/...
5
that he was not inside the house,
should not have been rejected by the trial court.
P.N.'s evidence was that he awoke
when the kitchen door, which had been locked, was knocked from its
frame and fell in. He went
into the kitchen and saw a number of
youths, led by accused nos 1 and 5, entering the kitchen. The
intruders demanded from him
the keys of his Kombi which was parked
outside. He returned to his bedroom, followed by the youths. One of
them switched on the
lights in the house. From outside others were
throwing stones at the house. He tried to get hold of his stick in
order to defend
himself but he was kicked on the forehead by accused
no 5. P. said that he fought with the intruders who assaulted him.
One of
the youths took the keys of the Kombi from his jacket pocket
together with R220-00 in cash. P. said that he and his wife
eventually
managed to escape, but that she was dragged back into the
house. He went to the neighbours for help and
6/...
6
upon his return saw the police van
parked in front of his house. He saw the police arriving with accused
no 1 whom he identified
to the police as one of the intruders.
A.N.'s evidence differed in a
number of respects from that of her husband. She said that when they
awoke the intruders were already
in their bedroom. She switched on
the bedroom light. All four accused were there, led by accused no 5
who was the one nearest their
bed. He was the one who first demanded
the Kombi's keys and he started hitting P. with a kierie. According
to A. a general fight
then ensued in which they were assaulted by all
the accused and they also fought back. During the course of th
e
fight they moved to the kitchen and eventually to the
outside
of the house. P. managed to escape but she was dragged back into the
house by accused no 2. It was at this stage that she
saw accused no 1
in the dining room breaking the window with a brick which he had in
his hand. She was
7/...
7
forced into the
children's room and raped by accused no 2. After he had finished with
her he joined the other youths who were at
that stage ransacking the
house and breaking the windows and furniture. It was then that the
keys of the Kombi and money were found
and taken by the intruders. A.
managed to flee to the neighbours where she came across her husband.
Later that evening she saw
accused no 1 in the police van and
identified him to the police as one of the intruders.
The evidence of accused no 1 was
that, although he was among the group of youths who went to the
complainants' house on the night
in question, he at no stage entered
the house but remained outside. He said that he had met the group
earlier that evening in Meadowlands.
The members of the group were
armed with an assortment of weapons, including a knife, sticks and
horsewhips. The leader of the
group ordered him not to do or say
anything but to join them and he
8/...
8
obeyed because he was afraid that
they might hurt him. He thought that the group intended fetching
school children from places where
liquor was sold. After about half
an hour's walk they came to the complainants' house. He heard that
they intended taking the Kombi
even before some members of the group
entered the house. He and some others remained in the street. He did
not see the members
of the group entering the house. He heard
shouting from inside the house and then saw P. running to the house
next door. He neither
saw nor heard anything being broken in the
house. He saw people running to and fro and although he now had an
opportunity to escape
he was too drunk to do so. He said that the
leader of the group must have noticed his condition, yet he threw the
keys of the Kombi
at him and told him to drive the Kombi. Although he
protested and said that he could not drive, the leader of the group
insisted
that he drive the Kombi. He got into the Kombi which was
parked
9/...
9
inside the grounds of the house
and started the engine. When he was questioned by the magistrate at
the commencement of the trial
after his plea of not guilty,accused no
1 said that he could not start the Kombi and that some of the youths
then pulled him from
the Kombi. In his evidence he said that after
starting the Kombi he saw the rest of the group running towards the
Kombi and that
he then ran away. He ran to the third or fourth house
which was about fifty metres away and because he was so drunk he lay
down
in the grounds and fell asleep. Shortly afterwards he was
apprehended by the police, who took him back to the Ntibanes' house,
where he was seen by both complainants. They also saw him later that
same night at the charge office.
The magistrate found that both P.
and A. were honest and reliable witnesses, despite the differences
between their evidence. He
rejected the evidence of accused no 1. The
magistrate held that accused no 1 was part of the
10/...
10
group who broke into the house
with the common purpose of robbing P. of the keys of the Kombi so
that they could take the Kombi.
The magistrate also found, wrongly in
my view, that it had not been proved that the men who entered the
house had a common purpose
to damage the Ntibanes' property.
Conseguently only accused no 1 who, according to A., had smashed a
window with a brick, was convicted
of malicious injury to property.
Miss Borchers's main criticism of
the reliability of the identification of her client by the two State
witnesses, P. and A.,was
based on the fact that both saw accused no 1
on two occasions while he was in police custody and before an
identification parade
was held. The first occasion was outside the
Ntibanes' house after the arrest of accused no 1 and the second
occasion was later
that same night at the charge office. It is quite
clear, however, that the magistrate attached little, if any, weight
to the
11/...
11
identification of accused no 1 by
P. and A. at the identification parade.
P. did make a
mistake when he claimed in his evidence in chief that he had
identified all the accused at the identification parade.
In
cross-examination by accused no 4 he conceded that he had not
identified him at the parade. There are, in my view, other
unsatisfactory
aspects in his evidence. One gets the impression that
he was badly shaken by the events and that this affected the
reliability
of his observations. It would be safe therefore, in my
view, to disregard his evidence concerning identification. A. appears
to
have been a far more impressive and convincing witness. The only
points of criticism levelled by Miss Borchers against her
identification
of accused no 1, apart from the fact that she saw him
before the identification parade, which
I
have dealt with, was that she had little
opportunity for a reliable identlfication due to the nature
12/...
12
of the
attack on her and her husband.
I
do
not agree. She saw accused no 1 in her bedroom and later in the
dining room and she gave a clear account of his movements on
the
latter occasion. In my view there is no reason to disburb the
magistrate's acceptance of A. as a reliable witness.
Any doubt
remaining after A.' s evidence is dispelled by accused no 1's own
evidence. He admitted that he had been in possession
of the Kombi's
keys and that he had succeeded in starting the Kombi's engine. his
explanation for how he obtained the keys is so
unlikely, however,
that it can safely be rejected as false.
I
simply cannot accept that the leader of the
group would have given the keys ot the vehicle to a drunken stranger
who had informed
him that he could not drive a car. Once his
explanation for his possession of the keys is rejected the only
inference left is,that
he was one of the men inside the house. It
follows that he was correctly convicted.
13/...
13
That leaves the appeal against the
sentence. Miss Borchers, quite correctly in my view, made no
submissions before us in regard
to sentence. The magistrate did not
misdirect himself and, considering the very serious nature of the
crimes, the sentences are
certainly not so severe that they justify
interference on appeal. The appeal is dismissed.
W. VIVIER JA.
VAN HEERDEN JA)
Concur.
HEFER JA)