REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number: A357/2017
(1) REPORTABLE : NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
20/0h/202~
DA TE· SIGNATURE
In the matter between:
MOKONE , TN
and
THE STATE
CORAM: MDALANA-MAYISELA, MALINDI AND MOOSA JJ
JUDGMENT
MALINDI, J
Introduction Appellant
Respondent
[1] The appellant was convicted of charges related to the so-called second Omar
robbery, being counts 13, 14, 15, 16, 17, 18 and 19, and those related to the
Viviers robbery, being counts 25, 28, 29, 30, 31, 32, 33 and 34:
[2] He was sentenced as follows:
a. Count 13 -4 years;
b. Count 14 -12 years;
c. Count 15 -3 years;
d. Count 16 -1 year;
e. Count 17 -4 years;
f. Count 18 -1 year;
g. Count 19 -6 months;
h. Count 25 -robbery -12 years;
i. Count 28 -12 years;
j. Count 29 -10 years;
k. Counts 30 to 34 -taken together -6 years.
[3] The sentences imposed in respect of counts 13, 15, 16, 17, 18 and 19 were
ordered to run concurrently with the sentence imposed on count14 and the
sentences imposed in respect of counts 29, 30, 31, 32, 33 and 34 were ordered
to run concurrently.
[4] The Appellant 's effective sentence was therefore 36 years direct imprisonment 1
[5] The appellant appeals against all of the said convictions and sentences , leave to
appeal having been granted by a different Judge to the trial Judge who had
already passed away at the time leave was sought. 2
[6] The appeal revolves around whether the appellant was one of the perpetrators of
the crimes involving the second Omar and Viviers robberies . The reliability of his
identificat ion is challenged in both cases.
1 Caselines 007-4 to 007-5
2 Caselines 004-963
2
The Second Omar Robbery
[7] The Omar family had suffered two robberies. The first one on 28 November 2008
Vyas when Mr Ismail Yacoob Omar (Mr Omar) was robbed at gunpoint near the
Sasol Garage on Main Reef Road in Johannesburg. The appellant was acquitted
in respect of these charges. They are counts 1 to 5 of the indictment.
[8] Counsel for the appellant , Ms Kolbe, submits that the reasons why the Court
below found the evidence of Mr Omar completely unreliable remains relevant with
regard to the second Omar robbery referred to in counts 13 to 19 of the indictment
which took place on 9 April 2009.
[9] Mr Omar was the only identifying witness in the first robbery. He, his wife and
their domestic worker were the identifying witnesses in the second robbery.
[1 O] The appellant was arrested on 31 October 2011 during the Viviers robbery which
will be dealt with later in this judgment.
[11] '.he Learned Judge in the Court below criticised Mr Omar's evidence regarding
his identification of the appellant, in the first robbery, inter alia, for the following
reasons: 3
a. Mr Omar's identification of the appellant as part of the first robbery is
unreliable because if the appellant was part of it Mr Omar would have
immediately said so to the investigating officer after the second robbery. In
other words, Mr Omar would have immediately told the police at the scene
of the second robbery that the appellant had been part of the first robbery
too.
b. If the appellant had been part of the first robbery Mr Omar would have said
so to the police after viewing the security video footage of the robbery.
c. Mr Omar missed the opportunity to mention that the appellant was part of
the first robbery later when the police returned to him some of his robbed
3 Caselines 004-907 line 23 to 004-908 line 17.
3
items after the second robbery and during the identification parade where
he identified Mr Mbatha as being part of the first robbery.
[12] The sum total of this criticism of Mr Omar's evidence is that he included the
appellant as part of the first robbery without any evidence to do so. The reason
why remains unknown. Although section 208 of the Criminal Procedure Act, 51
of 1977 ("CPA") provides that an accused may be convicted on the evidence of
a single witness, such evidence has to be substantially satisfactory in relation to
all material aspects or be corroborated. 4
[13] When testifying about the second robbery, Mr Omar stated that the appellant was
the person who jumped into the front passenger side of his vehicle after his car
was intercepted by the robbers. At this moment he remembered the appellant
from a previous robbery (the first Omar robbery) in November (2008). 5
[14] It is evident from Mr Omar's evidence and that of Mrs Omar and Ms Dikolomela ,
that all three had an opportunity to observe the appellant over a long period during
the robbery in the house. How they were able to identify him is challenged on
several grounds by the defence. In as far as Mr Omar is concerned , his evidence
is challenged on the basis that he contradicted himself in material respects when
asked whether he had told the police that he could identify the appellant after the
second robbery, and whether he had stated this in his statements . In evidence
under cross-examination he testified that he had not been asked to give any
description of the robbers in both incidents but changed his evidence to say that
he mentioned this to the police but that they did not write it down in his statement.6
[15] The above contradictions must be considered in the context of Mr Omar having
said in his statement made to Warrant Officer Haynes on 26 July 2011 that he
would not be able to identify the suspects in the first robbery. 7 This can only mean
that Mr Omar falsely included the appellant in the first robbery and that there was
no other evidence linking him to that robbery.
4 Rugnanan v S (2020] ZASCA 166 (SCA) at [23].
5 Caselines 004-315 lines 15 to 18.
6 Caselines 004-376 to 004-379.
7 Caselines 004-382.
4
[16) His explanation that he did not mention that the appellant was involved in the first
robbery is because he was traumatised by the second robbery is itself a
contradiction of his specific statement to Warrant Officer Haynes that he would
not be able to identify the suspects in the first robbery. 8 He was now testifying
that he would have been able to identify the suspects but being traumatised led
to him forgetting to mention it to the police.
[17) The contradictions and inconsistencies must be seen in the context that objective
evidence in the form of the security video footage had been "changed" or
swapped or altered by the time the investigations were concluded. This resulted
in the footage not being presented in Court. 9 This evidence was crucial, not only
for placing the appellant at the second robbery but also the first robbery by Mr
Omar mentioning it to the police that the appellant was also involved in the first
robbery. Counsel for the appellant, Mr Meiring's submission in the Court below
that the footage would have resolved the issue of the appellant's identification at
the second robbery was on point. Its disappearance is indeed mysterious as
submitted by Ms Kolbe in argument. In view of Mr Omar's unsatisfactory evidence
it is probable that the footage may have proved the appellant's absence during
the second Omar robbery.
[18] Mrs Omar testified that she gave the police a description of the appellant and was
thereafter able to identify him at the identification parade and in Court. 10 However,
she had not given such a description in her statement.11 It is inconceivable that
the police would have asked her for the description of the assailants but not Mr
Omar as he had testified.
[19] Mrs Omar identified the appellant on the third occasion of attending identity
parades. The appellant had not been present at the first two.
[20] Ms Dikolomela (Tsholofelo Wilhemina) testified that she was able to identify the
appellant because she would never forget his face. 12 This response is usually
8 Caselines 004-391 to 004-392.
9 Caselines 004-414 line 11.
1° Caselines 004-502.
11 Caselines 004-505 lines 16 to 18.
12 Caselines 004-553 lines 1 to 9.
5
most decisive because what a witness means is that the event was so profound
that they would have paid particular attention to the persons involved and their
faces were imprinted in their minds. However, she was not honest when she said
that the identity of the robberies was never discussed between her and the
Omars.13 This is improbable in the circumstances . It is only logical that after such
an experience they would have discussed what happened. Her denial suggests
that she was concealing that she was coached.
[21] It is submitted on behalf of the appellant that all witnesses in the second robbery
were made aware of the appellant's identity before they pointed him out at the
identity parade. It is not necessary to survey the evidence of all the police officers
who were involved in the identity parade process. The contradictions in their
evidence is what is to be expected when witnesses testify about such processes
without the assistance of contemporaneous notes or statements. However, the
evidence of Warrant Officer Haynes and Warrant Officer Elvis Mgiba warrants
such examination.
[22] Warrant Officer Haynes testified that he left the Omars and Ms Dikolomela in his
office when he went downstairs to meet the appellant and his attorney in the
parking area.14 Before leaving his office he had, for no apparent reason, told them
not to look through the window. 15 At this time he had left the witnesses with
Warrant Officer Mgiba in his office16 which overlooked the parking area where he
was going to meet the appellant and his attorney. 17 When Warrant Officer Mgiba
testified he was at pains to distance himself from the identity parade and the
witnesses by claiming that he was preparing to go to Court at 09h00. Warrant
Officer Mgiba shared the office with Warrant Officer Haynes. The witnesses
would not have been left unattended to while Warrant Officer Haynes went to the
parking area to meet the appellant. Warrant Office Mgiba had no intelligible
answer when it was put to him that if he was preparing to go to Court at 09h00,
he would not have seen the witnesses at all because they had arrived shortly
before the identity parade scheduled for 11 h00. This scenario leaves an
13 Caselines 004-559 lines 16 to 26.
14 Caselines 004-627 lines 1 to 5.
15 Caselines 004-634 lines 11 to 25.
16 Caselines 004-644 lines 11 following.
17 Caselines 004-627 lines 3 to 4.
6
impression that it was at this time that the witnesses were primed as to the
appellant's identity. Warrant Officer Mgiba conceded that a person standing in
the parking area can be identified from the window of his and Warrant Officer
Haynes' office.18
[23] The trial Court erred in its assessment of this evidence. The conclusion that the
witnesses would not have had a clear view of the appellant from Warrant Officer
Haynes' office was not based on the facts of Warrant Officer Haynes and Warrant
Officer Mgiba's evidence. 19 The trial Court erred in concluding that the
identification parade was reliable. The evidence of the witnesses shows that they
had not provided descriptions of the appellant to the police which would have
been useful in their investigations. It is inexplicable how they were thereafter able
to identify the appellant at the identification parade. It would have been expected
that they would give reasonable descriptions of the appellant if he was present at
the second robbery considering the long period of time the robbers were at the
house and each of the robbers having interacted with each of the witnesses for a
considerable length of time. The only reasonable inference is that the witnesses
were primed as to the identity of the appellant, and this probably happened in the
circumstances stated above when Warrant Officer Haynes and Warrant Officer
Mgiba were readying them for the identity parade and at the same time meeting
the appellant in a spot where the witnesses could see the appellant shortly before
participating in the identity parade.
[24] The State failed to prove beyond reasonable doubt that the appellant was present
at the second Omar robbery. The appellant stands to be acquitted of counts 13
to 19.
The Viviers Robbery
[25] The appellant's version is that he was arrested on 31 October 2011 at the
intersection of Church Street and Crownwood Street. He had been walking from
Langlaagte Traffic Department which is a block away from the intersection where
18 Caselines 004-761 lines 7 to 9.
19 Caselines 004-913 lines 17 to 23.
7
he had gone to apply for a temporary driver's licence since he had misplaced his
driver's licence at the time.
[26] The appellant alleged that he was walking away from the Traffic Departme nt in
order to have photographs of him taken at the Home Affairs office further down
the road when a car came at high speed, with tyres screeching and followed by
a bump or thud. As his sight of the car was obscured by a truck he walked in the
direction of the noise in order to see what had happened. Before he could reach
the scene he heard gunfire and he hid himself at the wall behind the API signage.
[27] After the gunfire ceased a male person came towards him and pointed a gun at
him and arrested him. At this stage he was about to stand up from where he had
taken cover.
[28] The appellant denies that he was the driver of the silver bakkie that the State
alleges was pursued by the police after a gang of robbers had committed a
robbery.
[29] The Court below assessed the evidence of two police officers, Constable
Bonongo and Warrant Officer Mofokeng, who testified that they saw the appellant
run away from the bakkie that had been pursued by them after it had crashed into
a traffic light. They both testified that he was the driver of the silver bakkie. The
Court pointed out discrepancies in their evidence as to how far they were from
the bakkie when they observed the driver and in which direction he ran from the
bakkie.
[30] The Court below accepted the police evidence on the appellant's identity despite
the criticism of their evidence and rejected the appellant's version as not
reasonably probably true. It pointed out that it is improbable that he could have
been so brazen as to attend to a driver's licence, when by his own admission , he
was a fugitive from justice after having breached bail conditions in another trial
for which a warrant of arrest had been issued against him. He testified that he
was in hiding at the time to avoid being arrested. Reference was made to S v
Sauls and Others20 for accepting that the truth had been told by the State
20 1981 (3) SA (AD) 173.
8
witnesses. He was accordingly convicted of counts 25 and 28 to 33 in respect of
the Viviers robbery. For sentencing purposes the appellant was to serve 12 years
for count 25, 12 years for count 28 and 10 years for counts 29 to 34 which run
concurrently.
[31] The robbery was admitted in terms of Section 220 of the CPA during the trial. Mr
Viviers received back from the police items that he confirmed he was robbed of,
including a rifle.
[32] The evidence of the incident was briefly as follows. On 31 October 2011 police
staked out China Mall after receiving intelligence that a robbery involving a bakkie
and a Corolla would take place. 21 While they were there and being briefed by
Warrant Officer Motlha, a bakkie left the Mall and they followed it to the
intersection where they stopped next to the bakkie and ordered the driver to stop
after displaying their police badges and announcing themselves as the police.
They (Constable Bonongo, Warrant Officer Montane, Constable Kganyago and
Warrant Officer Njeya) gave chase in a silver BMW vehicle driven by Warrant
Officer Montane.
[33] The bakkie drove off at high speed and Constable Kganyago and Constable
Njeya gave chase on foot. Soon thereafter the bakkie came to a stop after
crashing into a traffic light and the one robber who was shooting from the back of
the bakkie and the driver alighted and ran in different directions. 22
[34] Warrant Officer Mofokeng testified that he was 60m to 80m from the bakkie when
the driver jumped out of the bakkie and ran towards him23, not aware that he was
a policeman as he was dressed in civilian clothes.
[35] He saw the driver for the first time at point C14 in photograph 24 and point Z1 in
photograph 15. 24
21 Caselines 004-86.
22 Caselines 004-93.
23 Caselines 004-154 lines 19 to 20.
24 Caselines 004-188 to 004-189.
9
[36] Constable Bonongo testified that he saw the driver after he (driver) had opened
the driver's door after the bakkie had crashed into a traffic light. He chased after
the driver and pushed him to the ground. 25
[37] Constable L M Masangwane was not part of the team that was staking out China
Mall. She was attending to a different complaint when she heard gunshots and
went out onto the street where the gunshots came from. She saw Constable
Bonongo struggling with the appellant in the road. Constable Bonongo instructed
her to assist him to handcuff the appellant, which she did. This was near point D
on photographs 16 of exhibit B. 26
[38] The appellant submits that this evidence is not sufficient as proof of his identity
as the driver beyond reasonable doubt. The testimonies of the officers are
criticised on the basis that:
a. Constable Bonongo did not see the bakkie crash into the traffic light and
therefore that he was not observing the bakkie at that stage.
b. Constable Bonongo did not see the driver getting out of the bakkie but only
saw a man running away.
c. Constable Maswangane testified that the appellant was wrestling with
Constable Bonongo on the tarmac of the road whereas Constable Bonongo
pointed out an area on the pavement.
d. Warrant Officer Mofokeng testified that he was the first to confront the
appellant whereas Constable Bonongo said that he chased and arrested
the appellant and did not mention Warrant Officer Mofokeng 's presence.
[39] Further criticisms of the contradictions and inconsistencies of the police officers
are made. Most of these criticisms are not pertinent to the identity of the appellant
but to how the chase took place. The critical witnesses as to whether the appellant
was in the bakkie is that of Warrant Officer Mofokeng and Constable Bonongo.
The evidence of Constable Bonongo is corroborated by that of Constable
25 Caselines 004-90 to 004-93.
26 Caselines 004-133 to 004-136.
10
Masangwane that the appellant was being wrestled with on the road and not on
the pavement against a wall near the API street sign age that the appellant alleges
to have taken cover at after hearing gunshots.
[40] Constable Bonongo's evidence under cross examination that he did not see the
driver getting out of the bakkie must be seen in context. His evidence in chief is
that:
"Yes, so what did you see with regard to the driver of the bakkie, what did you see?
-At the time when we were still approaching the intersection with the other
unknown person busy shooting at us the driver opened the driver's door as I was
looking at him. '127
[41] Under cross-examination he testified as follows:
and "CROSS-EXAMINATION BY MR MEIRING (Continued): Thank you,
M'Lord. Constable Bonongo, in your evidence-in-chief you have been
questioned by my learned colleague for the state you said the following, and
you will recall that I actually objected to the following question, you said: 'I
came out of our motor vehicle, but that time I got out from the back of the
BMW, the person firing the shots had run away and by that time the driver
of the bakkie also fled'. Do you remember that? -Yes 28
... Are you saying that at the time when you got out of your vehicle vehicle, the
BMW, from the back that the driver of the bakkie had already fled, is that your
evidence? -He was already out of the vehicle, and not having as yet ran far away.
You say not having as yet ran far away, so he was away from the vehicle when
you saw him?-Yes, he was away from the bakkie.
How far away? -It is from her where the witness is standing to the end of the table
here.
About six metres, M'Lord.
MR LE ROUX: I agree, M'Lord. 29
"Are you saying for the first time at the robot where the bakkie collided with the
robot you saw him in the middle of the road as you have indicated a few minutes
27 004-93 lines 18 to 21.
28 004-94 lines 12 to 19.
29 004-113 line 13 to 004-114 line 7.
11
ago, is that right? -No, I saw him for the first time at the time when this car was
stopped, and also saw him for the second time, after he got out of the vehicle,
being there where I have pointed, that is where I saw him.
Mr Bonongo, I do not know whether my questions are not clear or maybe the
interpreter is not interpreting it correctly to you, but all I want to know is at the stage
where the bakkie collided with the robot, forget about the first stop, at the robot
where he collided with the bakkie, or where he collided with the robot you saw the
driver of the vehicle there for the first time standing in the middle of the road, that
is where you saw him. -That is correct.
To make it more clear, you did not see him getting out of the bakkie? -I did not
see him.
Now let me read you your evidence that my teamed colleague led you on a little bit
earlier. She referred you to photograph 15. Sorry Your Lordship, it should be
photograph 16. This was your response , my teamed colleague asked you: 'What
did you see on photograph 16 of EXHIBIT B at the bakkie' and the following: 'At
that stage my mind was that I wanted to see everything inside the bakkie that we
were chasing. The driver opened the driver's door as I was looking at him. Now
this, I must tell you, my teamed colleague listened to the recording during the lunch
break, and this is what came out -so your evidence now is, you did not see him
met off the bakkie, you only saw him the time, is that correct -I responded by
saying that what I saw was that there was someone who was standing at the back
of the vehicle towards the right, shooting towards us. The canopy at the back
flipped open and these other two doors were opened and the driver's side door
was opened at the time when the driver got out and running.
You did not see him get out. Your evidence is that you did not see him. You cannot
say the driver's door, got out then the driver ran away. Your evidence is that you
did not see him in the car. -I did not see him getting out of the vehicle, I only saw
him at the time when he was now running away.
Yes. So when you said to this honourable court earlier on that you saw him getting
out of the vehicle that was wrong? -Will you kindly repeat the question?
I said when you told his Lordship and the teamed assessors a little while ago that
you saw the driver opening the door and getting out as you were looking at him.
That evidence of yours is wrong, ;t is incorrect? -I did not see him when he got
out of the vehicle. 30
[42] The evidence is that there were no other people near the crash scene. Only the
person who was shooting with a rifle from the back of the bakkie and the driver
ran away from the bakkie.
[43] The Learned Judge's assessment of the evidence in the court below of these
three witnesses cannot be seriously characterised as fraught with misdirections
or errors of fact. The scene was by all accounts a fast moving scenario. However,
30 004-118 line 1 to 004-19 line 19.
12
what has been established beyond doubt is that the appellant exited the bakkie
after it had crashed into a traffic light. As he was running away from the bakkie,
Constable Bonongo fired a warning shot to the ground and the appellant stopped
running. He was then wrestled to the ground by him and an arrest effected with
the help of Constable Maswangane on the tarmac. The Court below properly
rejected the appellant's averments that he was an innocent pedestrian walking
on the pavement and having taken shelter against a wall after hearing gunshots.
[44] The Court below was alive to the fact that even if the appellant's version is
rejected, the State still bore the onus to prove its case beyond reasonable doubt.
In considering whether the state has discharged its burden of proof as enunciated
in S v Ntsele31 and S v Jackson32, the evidence has to be evaluated in its totality. 33
I am satisfied that this is what the Learned Judge in the Court below did.
[45] For these reasons I find that the case against the appellant was proved beyond
reasonable doubt as found by the trial Court. The appeal therefore falls to be
dismissed.
Sentence
[46] It is submitted on behalf of the appellant that the sentence was startlingly severe.
It is submitted in respect of count 28 that the killing of the co-perpetrator of the
robbery as a result of his conduct of shooting at the police and other people who
were in the line of his fire did not involve a deliberate act by the appellant. It is
accordingly submitted that an effective 24 years imprisonment in respect of the
Viviers robbery is exceedingly harsh and warrants interference and amelioration
by this Court. A sentence not exceeding 10 years imprisonment is proposed.
[47] Sentencing is pre-eminently within the discretion of the trial Court. A Court of
Appeal may only interfere with such sentence if the trial Court did not exercise its
discretion judiciously or applied wrong principles on sentencing. This Court has
not been pointed to any such misdirections save that the circumstances of the
31 1998 (2) SACR 178 (SCA).
32 1998 (1) SACR 4 70 (SCA).
33 S v Van der Mayden 1999 (1) SACR 447 0N) at 450; S v Chabalala 2003 (1) SACR 134 (SCA) at
[15].
13
robbery are unknown and its victim did not testify as he was untraceable at the
time of trial. In this regard the only reasonable inference to be drawn is that the
firearms that the robbers had, and were used against the police were also used
in the robbery.
[48] It would be inappropriate for this Court to interfere with the sentence unless the
trial Court was wrong in imposing such a sentence.
[49] Having upheld the appeal in respect of the second Omar robbery, the appellant
is left with serving the sentence imposed in respect of the Viviers robbery, that is,
t~e effective 24 years imprisonment.
Order
[50] In the circumstances the following order is made:
I concur 1. The appeal on conviction in respect of counts 13 to 19 is upheld.
2. The appeal on conviction and sentence in respect of counts 25 and 28
to 34 is dismissed .
G MALINDI
JUDGE OF THE HIGH COURT
JOHANNESBURG
MMP MDALANA-MAYISELA
JUDGE OF THE HIGH COURT
JOHANNESBURG
14
I concur
For the Appellant:
For the Respondent: CI MOOSA
JUDGE OF THE HIGH COURT
JOHANNESBURG
15