IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISIO N, CAPE TOWN )

Appeal case number: A 177/2024
Regional Court case number : SH2/157/19

In the matter between:

MICHAEL MEINTJIES Appellant

and

THE STATE Respondent


JUDGMENT DELIVERED ON 4 JUNE 2025


VAN ZYL AJ :

Introductio n

1. The appellant appeals against his conviction in the Bellville Regional Court on
a charge of robbery with aggravating circumstances , read with the provisions
of section 51(2) of the Criminal Law Amendment Act 105 of 1997 .1


1 The appellant was expressly warned at the outset of the trial that the provisions of section
51(2) read with Schedule 2 Part 2 of th is Act would apply should he be found guilty.

2. The appellant was one of three accused before the regional court.2 He was
legally represented throughout the trial, and pleaded not guilty on 12 May
2021 . On 1 8 October 2023 he was convicted as charged, and on 25 October
2023 he was sentenced to ten years’ direct imprisonment, of which four years
were suspended for a period of five years.

3. The appellant subsequently successfully applied for leave to appeal against
his conviction. It appears from the record that the appellant has been, and
remains, in custody.

The grounds of appeal

4. It was common cause at the trial that the complainant's cellphones and
R500,00 cash were stolen. It was also common cause that two of these
cellphones and R300,0 0 cash were found in the possession of the appellant's
co-accused, referred to as accused 1. It was further not disputed that the
appellant and accused 3 (the appellant's other co -accused) were arrested at
the house of accused 3, and that the complainant , Mr Kabango, pointed them
out to the police as the people who had robbed him.

5. The issues in dispute at the trial were whether Mr Kabango was robbed at
gunpoint by the appellant , whether the appellant was on the crime scene at
all, and whether he was positively identified by the complainant as the person
who pointed the firearm at him during the robbery.

6. Mr Kabango was a single witness with regard to the identification of the
appellant. As such, his evidence is to be treated with caution.

7. The nub of this case is thus whether the appellant was correctly identified as
one of the perpetrators of the crime. This is because t he appellant’s defence
at the trial was that he was not near the scene of the crime at the material
time, and therefore did not hav e any involvement in the robbery .

2 The appellant was referred to in the regional court as “accused 2”.

8. The grounds for his appeal are, in essence, that the regional court erred in:

8.1. Not attaching any weight to the statement of Mr Kabango ’s partner, Ms
Baartman , who did not give viva voce evidence but whos e statement
was handed in by consent. The regional court therefore erred in finding
that the affidavit does not assist the court in deciding whether the
appellant had pointed a firearm at Mr Kabango . The appellant further
complains that the regional court erred in failing to invoke section 186
of the Criminal Procedure Act 51 of 1977 (“CPA”) and calling Ms
Baartman to clarify th is issue .

8.2. Finding that the appellant was on the crime scene with his co -accused ,
and that Mr Kabango positively identified him as one of the
perpetrators. The regional court accordingly erred in f inding that Mr
Kabango was an honest and reliable witness.

8.3. Finding that the State had proved its case beyond reasonable doubt.

9. As a general principle in the consideration of this appeal, it is trite that a court
of appeal will very rarely interfere with the findings of fact of the trial court,
including credibility findings about witnesses.3 In the absence of
demonstrable and material misdirection by the trial court, its findings of fac t
are presumed to be correct, and will be disregarded only if the recorded
evidence shows them to be clearly wrong.4 A court of appeal would therefore
only interfere with the trial court's evaluation of oral evidence in exceptional
circumstances.5

10. I turn to consider whether there is merit in these grounds of appeal.

Ms Baartman’s statement in the context of p roof beyond a reasonable doubt

3 R v Dhlumayo and another 1948 (2) SA 677 (A) at 705 -706.
4 S v Hadebe and others 1997 (2) SACR 641 (SCA) at 645e -f.
5 S v Monyane and others 2008 (1) SACR 543 (SCA) para 15.

11. Mr Kabango’s partner, Ms Baartman, was not called as a witness to give oral
evidence at the trial , despite the f act that she was in the vicinity when the
crime was committed . She was the one who phoned the police to report the
crime . Her statement to the police was merely handed in by consent between
the parties’ legal representatives . In her statement, Ms Baartm an does not
mention either the appellant or the fact that one of the perpetrators pointed a
firearm at Mr Kabango.

12. The appellant says that the regional court should have invoked section 186 of
the CPA to call Ms Baartman as a witness so that she could “c lear up” the
discrepancy between the content of her statement and Mr Kabango’s
evidence. Section 186 of the CPA provides as follows:

“186 Court may subpoena witness
The court may at any stage of criminal proceedings subpoena or cause to be
subpoenaed any person as a witness at such proceedings, and the court shall
so subpoena a witness or so cause a witness to be subpoenaed if the
evidence of such witness appears to the court essential to the just decision of
the case. ”

13. There are several important considerations in evaluating this aspect of the
appellant’s case.

14. First, i n R v Blom6 it was held that when reasonin g by inference in criminal
proceedings , there are two cardinal rules of logic that cannot be ignored : the
inference sought to be drawn must be consistent with all the proved facts , and
the proved facts should be such that they exclude every reasonable inference
from them save the one sought to be drawn.

15. Second, the correct approach for the court to follow in the event of
contradictions between the evidence of the state witnesses and the defense is

6 1939 AD 188 at 202 -203.
to apply its mind not only to the merits and demerits of the state and defense
witnesses, but als o to the probabilities of the case. The evidence must be
considered as a whole. In S v Mafaladiso en andere7 the Court held as
follows:8

"The judicial approach to contradictions between two witnesses and
contradictions between the versions of the same witness (such inter alia,
between her or his viva voce evidence and previous statement) is in principle
(even if not in degree), identical. Indeed in neither case is the aim to prove
which of the versions is correct, but to satisfy oneself that the wi tness could
err, either because of defective recollection or by dishonesty. …
The mere fact that there are self -contradictions must be approach with caution
by the court. Firstly, it must be carefully determined whether there is an actual
contradiction and what the precise nature thereof is. ... Secondly , it must be
kept in mind that not every error by a witness and not every contradiction or
deviation affects the credibility of a witness. Non -material deviations are not
necessarily relevant…. Thirdly, the contradictory versions must be considered
on a holistic basis. The circumstances under which the versions were made,
the proven reasons for the contradictions, the actual effect of the
contradictions with regard to the reliability and credibility of the w itness, the
question whether the witness was given sufficient opportunity to explain
contradictions - and the quality of the explanations - and the connection
between the contradictions and the rest of the witness' evidence, amongst
other factors, to be ta ken into consideration and weighed up…. Lastly, there is
the final task of the trial Judge, namely to weigh up the previous statement
against the viva voce evidence, to consider all the evidence and to decide
whether it is reliable or not and to decide whe ther the truth have been told,
despite any shortcomings. "

16. Third, as regards proof beyond reasonable doubt, in S v Chabalala9 the
Supreme Court of Appeal (”SCA”) formulated the principles for evaluating the

7 2003 (1) SACR 583 (SCA) at 593F -594G. Emphasis supplied.
8 My translation from the original Afrikaans text. Emphasis supplied.
9 2003 (1) SACR 134 (SCA) para 15. Emphasis supplied.
evidence of the State and the accused in criminal trials as follows:

"The trial court's approach to the case was, however, holistic and in this it was
undoubtedly right: S v Van Aswegen 2001 (2) SACR 97 (SCA). The correct
approach is to weigh up all the elements which points towards the guilt of the
accused against all those which are indicative of his innocence, taking proper
account of the inherent strengths and weaknesses, probabilities and
improbabilities on both sides and, having done so, to decide whether the
balance weighs so heavily in favour of the State as to exclude any reasonable
doubt about the accused's guilt .”

17. In S v Van der Meyden10 the Court held:

“A court does not base its conclusion, whether it be to convict or to acquit, on
only part of the evidence …. The proper test is that the accused is bound to
be convicted if the evidence established his guilt beyond reasonable doubt,
and the logical corolla ry 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 befor e 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 unreliable; some of it
might be found to be possibly false or unreliable; but none may simply be
ignored .”

18. Proof beyond reasonable doubt must thus be determined by assessing all
probabilities and improbabilities, not only in the evidence of the state, but also
in the evidence o f the accused:11

"But whilst it is entirely permissible for a court to test an accused's evidence
against the probabilities, it is improper to determine his or her guilt on a

10 1999 (1) SACR 447 (W) at 449I -450B. Emphasis supplied.
11 Monageng v S [2009] 1 All SA 237 (SCA) paras 13 -14. Emphasis supplied.
balance of probabilities. The standard of proof remains proof beyond
reasonable doubt, i.e. evidence with such a high degree of probability that the
ordinary reasonable man, after mature consideration comes to the conclusion
that there exists no reasonable doubt that an accused has committed the
crime charged . An accused's evidence th erefore can be rejected on the basis
of probabilities only if found to be so improbable that it cannot be reasonably
possibly true ... ”

19. There is no obligation on the State to close every avenue of escape for the
accused. The State’s evidence must, however , be of such a degree that upon
mature consideration a reasonable person would have no doubt that the
accused committed the offence. In evaluating the evidence, a court must
adopt a holistic approach and consider and evaluate all the evidence as
presented.12 The accused does not bear any onus.13

20. In the present matter the parties did not, by consenting to the handing in of
the statement, admit the truth of its contents. The statement therefore did not
constitute evidence before the regional court. Ms Baartman was not cross -
examined thereon. I t is not clear what her ob servation capabilities were at the
time, whether there w ere any obstructions in her line of sight, or whether she
was pre -occupied with being on the phone with the police. In light of the
evidence given by the appellant and his co -accused, it does not app ear that
Ms Baartman’s oral evidence would have taken the evidence already on
record any further.

21. It is no use speculating as to why the State decided not to call Ms Baartman
to give oral evidence. For that matter, I do not know why the appellant did not
call her , as she would have been available to him as a witness . It is in my
view reasonable to assume that the State was of the opinion that the evidence
already on record was sufficient to discharge the onus of proof beyond a
reasonable doubt. The regi onal court agreed with the State, and I cannot find
fault with its approach. In considering the statement, the regional court

12 R v Mlambo [1957] 4 All SA 326 (A) at 337.
13 See S v V 2001 (1) SACR 453 (SCA) para 3.
commented as follows:

“I have read the affidavit of Ms Baartman and when one takes that evidence
of the complainant holistically and the suggestions made to the complainant, it
becomes clear that a lot if information is lacking from the said affidavit. The
affidavit was not tested. … It is my view that this affidavit does not serve to
assist the court in arriving at a decision … ”

22. The magistrate carefully considered the questions arising from Ms Baartman’s
statement in the light of the evidence led by the accused and Mr Kabango.
He clearly did not find it necessary to invoke section 208 of the CPA to clarify
those questions, beca use the available evidence as a whole answered the
core issues in the matter. This included evidence other than Mr Kabango’s
evidence, for example, the appellant’s demeanour when he was taken into
custody, and the admitted whereabouts of his co -accused at the time of the
robbery.

23. I am thus of the view that the regional court did not err in failing to call Ms
Baartman to give oral evidence.

Identification and the single witness

24. Section 208 of the CPA provides for the conviction of an accused person on
the single evidence of any competent witness:

“208 Conviction may follow on evidence of single witness
An accused may be convicted of any offence on the single evidence of any
competent witness .”

25. As indicated, Mr Kabango was a single witness in respect of the identification
of the appellant at the scene of the crime. His evidence is, however,
corroborated by the other facts placed before the regional court. In S v Sauls
and others14 it was held that :

“There i s no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of a single witness. The trial judge will weigh
his evidence, will consider its merits and demerits and having done so, will
decide whether it is trustworthy an d whether despite the fact that there are
shortcomings or defects or contradictions in the testimony, he is satisfied that
the truth has been told … It has been said more than once that the exercise
of caution must not be allowed to displace the exercise of common sense. ”

26. In R v Mokoena15 the Court remark ed:

“Now the uncorroborated evidence of a single competent and credible witness
is no doubt declared to be sufficient for a conviction by [the section], but in my
opinion that section should only be relied on where the evidence of a single
witness is clear and satisfactory in every material respect. Thus, the section
should not be invoked where, for instance the witness has an interest or bias
adverse to the accused, where he has made a previous inconsistent
statement, where he contradicts himself in the witness box, where he has
been found guilty of an offence involving dishonesty, where he has not had
proper opportunities for observation , etc. ”

27. In the present matter, Ms Kabango’s evidence was clear and satisfactory in
material respects . He w as consistent in h is identification of the appellant as
the one pointed the gun at him during the robbery. There was no suggestion
of an i nterest or bias adverse to the appellant . He had not made a previous
inconsistent statement, and did not contradict himself in the witness box . He
had not been convicted of dishonesty previously , and had sufficient
opportunity when the crime was committed to observe the appellant.

28. In S v Mthetwa16 it was stated that :

14 1981 (3) SA 172 (A) at 180F -H.
15 1932 OPD 79 at 80. Emphasis supplied.
16 1972 (3) SA 766 (A) at 768 A-C.

"Because of the fallibility of human observation, evidence of identification is
approached by the courts with some caution. It 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; the 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 d ress; the result of any identification parades, if any; and of
course the evidence 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 weigh ed one against the other, in the light of
the totality of the evidence, and th e probabilities... "

29. Applying the test set out in S v Mthetwa in the present case, it appears from
the record that Mr Kabango was honest in his evidence, and his observation
of the appellant was reliable. He knew the appellant from having seen him on
previous occasions. During the robbery, he was in close proximity to the
appellant, and in fact observed him directly from the front, in daylight.
Although the incident happened fast, Mr Kabango’s prior knowledge of the
appellant meant that he did not need much time to recognize him . Mr
Kabango also managed to identify the appellant again wit hin a few minutes
after the incident . He as consistent not only in identifying the appellant, but
also in describing the role the appellant (and his co -accused) had played in
the robbery.

30. In Abdullah v S ,17 the SCA stated :

"…when seeing a person who is known to you, it is not a process of
observation that takes place but rather one of recognition . This is a different
cognitive process which plays a vital role in our everyday social interaction.
The time necessary to recognize a known face as opposed to identifying a

17 [2022] ZASCA 33 (31 March 2022) para 13. Emphasis supplied.
person for the first time, is very different. It has been recognized by our courts
that where a witness knows the person sought to be identified, or has seen
him frequently, the iden tification is likely to be accurate. "

31. Thus, where a witness know s a person, questions of identification, of facial
characteristics, and of clothing are of m uch less importance than in cases
where there is no previous acquaintance with the person sought to be
identified. What must be tested is the degree of previous knowledge and
the opportunity for a correct identification, having regard to the
circumstances in which the identification was made.18 The way in which
Mr Ka bango described his encounter with the appellant during the incident
leaves little room for doubt, let alone reasonable doubt. The only
reasonable inference to be drawn from the evidence , viewed holistically, is
that the appellant was one of the perpetrators o f the crime.19

31. In my view, the regional court gave due regard to the fallibility of identification,
and properly addressed the manner in which the appellant was identified.
The facts indicate that Mr Kabango was familiar with all three accused. He
had s een them in the vicinity on previously occasions, and thus recognized
them. He was clear in cross -examination that he had not only known the
appellant from the day of the incident, but had seen him previously. Mr
Kabango was certain about the identificat ion of the appellant when he pointed
him out to the police. There was no hesitation on his part. He remained clear
and consistent in this respect even under cross -examination.

32. It follows that Mr Ka bango ’s identification of the appellant as one of the
perpetrators , and particularly as the one who had pointed the firearm at him,
cannot be faulted. The appellant was correctly convicted on the charge of
robbery with aggravating circumstances.

33. There is accordingly no merit in the appellant’s argument in this respect.

18 R v Dladla 1962 (1) SA 307 (A) at 310C -E.
19 See S v Teixeira 1980 (3) SA 755 (A) at 761: “… in evaluating the evidence of a single
witness, a final evaluation can rarely, if ever, be made without considering whether such
evidence is consistent with the probab ilities .”

Order

34. In the circumstances , I suggest that the appeal be dismissed.


____________________
P. S. VAN ZYL
Acting Judge of the High Court

I agree, and it is so ordered.

____________________
D. M. THULARE
Judge of the High Court


Appearances:

For the appellant : Mr M. W. Strauss, instructed by the Cape
Town Justice Centre

For the respondent : Ms C. Monis , Directorate of Public
Prosecutions, Western Cape