IN THE HIGH COURT OF SOUTH AFRICA
FREE ST A TE DIVISION, BLOEMFONTEIN
In the matter between:
TUMELO DONALD MAKETEKETE
TSHEPO LETSOAKA
KARABO PHAMOLI
and
THE STATE Reportable / Not reportable
Case number: A84/2023
FIRST APPELLANT
SECOND APPELLANT
THIRD APPELLANT
RESPONDENT
Neutral citation: Tumelo Donald Maketekete and Others v The State (A84/2023) [2025]
ZAFSHC 198 (25 June 2025)
Coram: Chesiwe J et Deane AJ
Heard: 26 May 2025
Delivered: This judgment was handed down electronically by circulation to the parties'
representatives by email and released to SAFLII. The date and time for hand-down is
deemed to be 13h00 on 25 June 2025.
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Summary: Appeal application against conviction -Premised on a petition for leave to
appeal conviction denied by the trial court -Conviction on charges of Public Violence and
contravening the provisions of section 12 (1) (e) of the Regulation of Gatherings Act 205
of 1993 -Appellants were subsequently convicted on one of the counts and were
sentenced in terms of section 276 (1) of the Criminal Procedure Act 51 1977 to 18 months
correctional supervision .
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ORDER
1 The Appeal against the conviction of all the three (3) Appellants is dismissed ;
2 The conviction of the trial court is confirmed ;
3 The sentence imposed by the trial court on the 12 January 2023 is confirmed .
JUDGMENT
Chesiwe J (Deane AJ concurring)
[1] This is an appeal application against conviction. The Appellants. petitioned the
Judge President of this Division for leave to appeal against their conviction as their appeal
was denied by the trial court. The application is opposed by the State (Respondent)
[2] The Appellants were charged of two counts, namely a charge of public violence
and contravening the provisions of section 12 (1) (e) of the Regulation of Gatherings Act
205 of 1993. The Appellants were subsequently convicted on one of the counts and were
sentenced in terms of section 276 (1) of the Criminal Procedure Act 51 of 1977 (hereafter
referred to as the CPA) to 18 months correctional supervision .
[3] The Appellants grounds of appeal are as follows: the trial court erred in finding that
the state proved its case beyond reasonable doubt; that there were no improbabilities in
the state's case; that the state witnesses gave evidence in a satisfactory manner; not
ta kin into consideration the contradictions of the state 's case; the rejection the version of
the Appellants as not being reasonably and possibly true; accepting the evidence of the
state witnesses ; not considering the contradictions between the Appellants and the state
witnesses and; that the court did not apply the cautionary rule to the single witness.
[4] The issue for determination by this Court is whether the Appellants were correctly
identified by the state witnesses and whether the trial court has misdirected itself in
convicting the Appellants .
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(5) During oral submissions, counsel for the Appellants submitted that, she stands by
the written head of argument in that the appeal against conviction be upheld. Counsel
for the respondent submitted that the trial court did not misdirect itself and the
identification of the Appellants was correctly applied by the trial court and that the appeal
against conviction ought to be dismissed.
(6) It is trite that the state bears the onus of proving the guilt of an accused person
beyond reasonable doubt. The crisp issue in this appeal is the identity of the Appellants
and if the State has pertinently proven its case beyond reasonable doubt including the
identification of the Appellants as the persons that were involved in the protesting.
The relevant legal principles on identification
(7) It is trite that evidence on identification must be approached with caution. The
dangers of an incorrect identification are well-known . The pointing out of a wrong person
by witnesses who act in good faith has led to notorious cases of injustice. The evidence
of identifying the accused because of the ever-present possibility of an honest mistake
being made by witnesses, evidence of identification has to be treated with caution. In the
S v Mthetwa 1, Holmes JA stated that:
"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; 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, and the
probabilities ." 2
(8) Identification is often a central question in a trial, and courts attach value to an
identification parade. The identification parade is a safety mechanism. However, the
1 S v Mthetwa 1972 (3) SA 766 (A).
2 S v Mthetwa above at 768 A-E. See also S v Khumalo en Andere 1991 (4) SA 310 (A) at 328E -G;
S v Mlati 1984(4) SA 629 (A) at 632F -633C.
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dangers of identificatio n are compounded when a witness is asked to point out the
accused in court and it has been submitted in S v Mdlongwa 3, that:
"Generally, a dock identification carries little weight, unless it is shown to be sourced in an
independent preceding identification ." 4
[9] In Magadla v S 5 , the court was of the view that:
"The fact that a witness failed to provide a description of the accused does not always assist him
or her in the event where the witness was in a situation where he or she had ample opportunity
to make a proper and reliable observation of the perpetrator , especially where the witness did not
have any reason to falsely implicate the perpetrator 6."
[10) The Appellants were all arrested on the 9 of August 2018 by the members of the
Public Order Police Unit of the SAPS (South African Police Services) . At the time of the
arrest of the Appellants , there was a public unrest and protesting going on in Meloding
(Virginia). Tyres were set alight, rocks were rolled on to the road to disrupt traffic, stones
and bottles were thrown at the police.
[11) According to the first state witness, Mr Labothe, a police officer who was part of
the Public Policing Unit was focused for more than 30 minutes on one particular protester
who rolled a big rock on to the road. 7 This person was wearing a red top with pink on the
upper part of the top and blue jeans. He chased after this person that he has been
targeting . The person ran into a house. The door was opened by a lady who came out
and informed him that a male person had run into her house and that she said she does
not know this person. The person's hands were smelling of burnt tyres. Labothe arrested
the person and questioned him whereupon the person stated that his name was Tumelo
[sic] Makelekele . 8 In court, Labothe could not identify the person but could only recall his
name as Tumelo [sic] Makelekele.
[12] According to the transcribed records the second state witness, Mr Matebesi, was
in the nyala when he saw the suspect throwing stones at it. He alighted out of the nya/a
3 S v Mdlongwa 2010 (2) SACR 419 (SCA).
4 S v Mdlongwa above para [8]; (See also S v Tandwa and Others 2008 (1) SACR 613 (SCA) at
617B-D.
5 Magadla v S (80/2011) [2011] ZASCA 195 (16 November 2011).
6 Magadla v S above para [9].
7 Page 37 line 9 of the Transcribed Record.
8 Transcribed record page 41 line 1.
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and chased after the suspect. He had marked the suspect with the clothes that he was
wearing. Matebesi arrested the suspect inside the shack that was behind the shop. The
owner of the shack informed Matebesi that he did not know the suspect. At the Police
station, the suspect said he name is Tshepo [sic] Lusaka 9. Matebesi was able to identify
the suspect with the clothes he was wearing as he had observed him for more than 30
minutes.
[13] According to the State's third witness, Mr Magwele also a police officer, he also
identified the suspect throwing stones and had been observing for 30 minutes by his
clothes. According to Magwele, the suspect was wearing a top which was written New
York with sky blue pants and a black beanie with black shoes. He had a beard on his
face, and he was light in complexion . Magwele arrested the suspect, whereupon the
suspect gave his name as Karabo [sic] Poludi. 10
[14] It is not in dispute that none of the witnesses gave any facial description of the
protesters . The Public Order Police Unit were able to identify all three Appellants with
their clothes that they wore on the day of the unrest and arrested them immediately after
chasing them. The police officers do not know the Appellants and are indeed trained on
public unrest and on how to identify suspects. Even if there were over 40 protestors , they
were focused on certain individuals. Further that the Appellants gave the police officers
their names. This are the same names that were used in the charge sheet as well as at
the trial court, that is accused 1 -Tumelo Donald Maketekete ; Accused 2 -Tshepo
Letsoaka, Accused 3 -Karabo Phamoli. The Appellants were arrested immediately
during the unrest and protest. Thus, the identification of the Appellants by the state
witnesses who are public order police, was reliable and the trial court had no reason to
doubt their evidence, nor did the police had any reason to implicate the Appellants.
[15) In the evaluation of the evidence on identification, the trial court correctly applied
the correct legal principles and was mindful of the cautionary rule and pertinently sought
to seek some safeguard to eliminate the risk of a wrong conviction. Therefore , the trial
court correctly evaluated and analysed the evidence of the state in respect of identificati on
of the Appellants and settled the issue of identification .
9 Page 59 line17 of the transcribed record.
10 Page 86 line 12 of the transcribed record.
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Single witness -Cautionary Rule
[16] According to the transcribed record, there is no evidence the police officers were
posted in the same vehicle or at the same position during the unrest. The evidence is
clear that they were posted in different vehicles and at different positions. And for obvious
reason their observations of the situation would be different. The trial court correctly
applied s 208 of the CPA which states that the court can convict on a single witness who
is competent , credible and reliable. The Appellants were not credible in the evidence as
to why out of a group of over 50 protesters the police would target and implicate them.
[17] Courts of appeal are generally hesitant to interfere with the credibility findings of a
trial court. (See S v Hadebe and Others 1997 (2) SACR 641 (SCA0 at 645 E-F, J v S
ALL SA 1998 (2) SA 271 (A))
[18] An appeal court will only tamper with the trial court's findings if it is shown that the
findings made were clearly wrong. It has not been submitted that the trial court committed
any misdirection of the facts. Furthermore , when consideration is paid to all
inconsistencies and improbabilities , there is no reason to doubt the correctness of the
credibility findings made by the trial court. I am satisfied that the state at the trial court
proved its case beyond reasonable doubt. Moreover , the trial court correctly found the
Appellants to be untruthful witnesses and correctly rejected their version as false beyond
reasonable doubt. In my view the trial court correctly convicted the Appellants and there
is no reason to tamper with the trial court's findings on the conviction . 11
[19] Accordingly , the following order is made:
1 The appeal against the conviction of all the three appellants is dismissed .
2 The conviction of the trial court is confirmed .
3 The sentence imposed by the trial court on 12 January 2023 is confirmed .
11 See S v Francis 1991 (1) SACR 198 (A) 198j -1999.
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S CHESIWE J
I concur
T DEANE AJ
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Appearances
On behalf of the Appellants : S Kruger
Instructed by: Legal Aid South Africa
On behalf of the Defendant: J Harrington
Instructed by: Director of Public Prosecutions