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[1] The appel lant, Mr Siyabonga Perseverance Maseko, was arraigne d on a
charge of robbery in the Carolina Magistrate Court for the district of Chief Albert
Luthuli. He was legally represented throug hout the duration of his trial. He pleaded not
guilty to the charge. He was nonetheless convicted and sentenced to 26 months
imprisonment.
[2] The appeal on both conviction and sentence is bef ore this Court with the leave
of the court a quo . The application is opposed by the respondent.
Grounds of Appeal
[3] The grounds of appeal on conviction that the appellant relies on are that the
Court a quo erred in finding that:
3.1 The State’s evidence of a single witness was clear and satisf actory in all
material respects.
3.2 The appellant was properly identified by the complainant.
3.3 The contradictions in the evidence of the complainant were immaterial.
3.4 The evidence of the appellant was not reasonably possibly true.
[4] With regard to sentence , the trial cou rt erred in:
4.1 Overemphasising the seriousness of the offence over the personal
circumstances of the appellant and the c ontext in which the offence was committed.
4.2 Failing to consider the rehabilitative element of sentencing.
4.3 Not considering that the appellant was a first offender capable of rehabilitation.
Background Facts
[5] The complainant testified that on 9 August 2020, at about 20 h30, he was on his
way home when he came across two young men. He identified one of them as
Siyabonga , the appellant in this matter. His companion was unknown to him. They
walked past him , turned around and walked back to him. The one that was unknown
grabbed him and held him tight by the neck , demanding his cell phone, while the
appellant stood in front of him, armed with a knife . He handed his cell phone and a
wallet to appellant’s companion who in turn handed same to the appellant . They
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requested the phone’s pin, which he gave to them. They took R70,00 from his wallet
and gave him his wallet back . They repeatedly instructed him to keep quiet during the
entire time .
[6] He was able to identify the appellant with the help of a streetlight at the scene.
He knew the appellant from his childhood , since he attended pre -school close to his
home. He actually grew up in front of him. He also stated that the appellant had a gold
tooth. The complainant used to play soccer with his father and attended the same
school with his mother. They all lived in the same neighbourhood.
[7] After reporting the robbery to the police , he wen t to the appellant’s mother and
informed her. Her response was that she could not do anything since she was
unemployed. She referred him to appellant ’s father. The appellant’s father promised
to compensate him for the phone on his payday , but he never did. He went to the
appellant’s family three to four time s trying to recover his cell phone to no avail. At on e
stage the appellant took him to the gent leman who bought the phone , but he denied
knowledge of the phone.
[8] The complainant conceded the fact that he did not include in his statement the
fact that his wallet was handed back to him by his assailants.
[9] The appellant’s version was that he never robbed the complainant. He was
never at the scene of the robbery. In fact , he was at his home together with his mother,
his girlfriend and child from 12 h30 until bedtime. The appellant denied knowing the
complainant. He could not dispute the fact that the complainant knew him, his father
and mother. The appellant denied going to the home of the alleged cell phone buyer
in the company of the complai nant.
[10] Before closure of the defence case the appellant indicated that he would call a
defence witness. On the said date the defence indicated that no witness will be called,
and the appellant closed his case.
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The Law
[11] It is trite that the right to appeal is part of an accused ’s right to a fair trial. In
general, the trial court is better suited to make findings of fact, as the trial court directly
observes the witnesses and is involved in the proceedings. This allows the trial court
to con sider the witness ’s appearance, behaviour and personality, which enables the
court to make its findings. For these reasons, a court of appeal is usually hesitant to
interfere wi th the findings of a court a quo , unless the findings are plainly wrong . Such
interference cannot be based on the opinion of the court of appeal that, after
scrutinising the record and evidence, would have come to different factual conclusions.
See Siphoro v S .1
[12] Specific care must be taken when there are findings of fact based on oral
evidence. This was emphasised in S v Hadebe ,2 where the court stated that :
“. . . 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 show s them to be clearly wrong.”
[13] In criminal cases, the onus to prove the guilt of an accused beyo nd reasonable
doubt rests with the State. If the accused’s version is reasonably possibly true, then
he stands to be acquitted. As it was held in S v Mafiri ,3 this remains the position , even
if the version of the accused is found to be improbable , he w ill be entitled to an
acquittal .
[14] As laid down in R v Hlongwane ,4 this determination rests on the evidence
considered holistically. In other words, an accused’s version is considered in the
totality of the evidence of th e case rather than in isolation.
1 Siphoro v S [2014] ZAG PJHC 168 para 7 .
2 S v Hadebe 1997 (2) SACR 641 (SCA) 645 E–F.
3 S v Mafiri 2003 (2) SACR 121 (SCA).
4 R v Hlongwane 1959 (3) SA 337 (A).
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[15] The State relied on the evidence of a single witness. Section 208 of the Criminal
Proced ure Act 51 of 1977 provides that an accused can be convicted on the single
evidence of any competent witness.
[16] However, a single witness must be approach ed with caution . In S v Sauls ,5 it
was held that the exercise of such caution should not be allowed to displace the
exercise of common sense.
[17] The appellant contended that the court a quo erred in finding that the
contradictions in the complainant’s evidence were immaterial. In this regard ,
Nestadt JA in S v Mkohle6 remarked as follows :
“Contradictions per se do not lead to the rejection of a witness’ evidence. As
Nicholas J, as he then was, observed in S v Oosthuizen 1982 (3) SA 571 (T) at 576B -
C, they may simply be indicative of an error. And (at 576G -H) it is stated that not every
error made by a witness affects his credibility ; in eac h case the trier of fact has to make
an evaluation; taking into account such matters as the nature of the contradictions,
their number and importance , and their bearing on other parts of the witness’ evidence”
[18] The complainant gave an explanation for the contradictions that were id entified
by the defence , stating that while making his statement, his focus was on his new cell
phone rather than the wallet and the R 70,00 cash.
[19] It is trite that evidence of identification should be treated with caution as laid
down i n S v Mthethwa .7 The complainant knew the appellant very well from his pre -
school age. There is undisputed evidence that he knew his name, which he gave to
the police the next morning. There is also undisputed evidence that he knew his
parents and their homes very well. He gave the police the appellant’ s name and went
to his home the next morning. The trial court correctly found him to be a reliable and
credible witness.
5 S v Sauls 1981 (3) SA (A) at 180E -G.
6 S v Mkohle 1990 (1) SACR 95 (A) at 98E -F.
7 S v Mthethwa 1972 (3) SA 766 (A) at 768A.
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[20] Contrary to the State’s case , the appella nt’s case was riddled with material
contradictions and inherent improbabilities which justified the rejection of his
exculpatory version as false beyond a reasonable doubt.
[21] In the result , I am un able to find any misdirection in the decision of the trial court
on conviction. Accordingly, no reason exists to interfere, and I propose that the appeal
on conviction be refused.
Sentence
[22] Marais JA provided guidance in S v Malgas8 as to when can an appellate court
interfere with sentence , stating as follows:
“A court exercising appellate jurisdiction cannot, in the absence of material
misdirection by the trial court, approach the question of sentence as if it were the trial
court and then substitute the sentence arrived at by it simply because it prefers it. T o
do so would be to usurp the sentencing discretion of the trial court. Where material
misdirection by the trial court vitiates its exercise of that discretion, an appellate Court
is of course entitled to consider the question of sentence afresh. In doing so, it
assesses sentence as if it were a court of first instance and the sentence imposed by
the trial court has no relevance. As it is said, an appellate Court is at large. However,
even in the absence of material misdirection, an appellate Court may yet be justified
in interfering with the sentence imposed by the trial court. It may do so when the
disparity between the sentence of the trial court and the sentence which the appellate
Court would have imposed had it been the trial court is so marked that it can properly
be described as ‘shocking ’, ‘startling ’ or ‘disturbingly inappropriate ’.”
[23] A mere misdirection is not by itself sufficient to entitle the Appeal Court to
interfere with the sente nce. I t must be of such a nature, degree, or seriousness that it
shows, directly , that the trial court did not exercise its discretion at all or exercised it
improperly or unreasonably.9
8 S v Malgas 2001 (2) SA 1222 (SCA) para 12 .
9 S v Pillay 1977 (4) SA 531 (A) 535E -F.
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B A MASHILE
JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION , MBOMBELA
Appearances
Counsel for the Appellant: Mr H Phaswana
Instructed by : Phaswana Attorneys
Counsel for the Respondent: Adv I M Phatudi
Instructed by : Director of Public Prosecutions