SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Not Reportable
Case no: A151/2023
In the matter between:
NDUBUSI JOSHUA OGUH APPELLANT
and
THE STATE RESPONDENT
Neutral citation: Oguh v The State (A151/2023) [2025] ZAFSHC 220 (18 July 2025)
Coram: Daniso et Van Rhyn JJ
Heard: 14 April 2025
Delivered: This judgment was delivered by email to the parties and release to SAFLII. It
shall be deemed to have been delivered at 14h00 on 18 July 2025
Summary: Criminal procedure – appeal against conviction – assessment of
identification evidence – identification reliable-appeal against conviction dismissed.
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_______________________________________________________________________
ORDER
_______________________________________________________________________
The appeal against conviction is dismissed.
_______________________________________________________________________
JUDGMENT
_______________________________________________________________________
Daniso J (Van Rhyn J concurring)
[1] The appellant , who was accused number two in the Bloe mfontein Regional
Court, was convicted together with Mr Alfonso Alan Cogill (Cogill), as accused number
one, after pleading not guilty to a charge of robbery involving aggravated circumstances
as predicated in s 51(2) of the Criminal Law Amendment Act 105 of 1997. They were
subsequently sentenced to eight years’ imprisonment respectively.
[2] The appellant is aggrieved by the conviction. The appeal is with leave of the trial
court and it is opposed by the State.
[3] The complainant, Mr Mzikayise Makame , is a taxi operator. On 17 November
2017, he was assaulted and robbed of his motor vehicle a Toyota with registration
numbers and letters FJL[ …] by three men brandi shing firearms. The appellant, Cogill
and a third gentleman who is still at large were identified by the complainant as the
perpetrators.
[4] In the court a quo, it was not in dispute that the complainant was robbed of his
motor vehicle under the circumstances alleged by the State. The only issue for
determination by the trial court was the identity of the perpetrators.
[5] In convicting the appellant and Cogill, the trial court relied on the testimony of the
complainant, warrant officers in the South African Police Services (SAPS) Phillina Maria
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Charlotte du Preez , Stefanus Johannes Wessels and Efraim Rakwena and held that it
pointed towards the guilt of the appellant beyond a reasonable doubt.
[6] The summary of their testimony is the following: Shortly after 20h00, the
complainant was parked at the taxi rank situated next to Stadium Fast Foods at Small
Street in Willows when he was approached by Cogill accompanied by the appellant and
a third gentleman who is at large. They asked to be taken to Windmill Casino and, after
a discussion regarding the trip and the far e, all three gentlemen climbed into the
complainant’s vehicle. The appellant and Cogill occupied the back seat with the
appellant sitting directly behind the complainant. The third gentleman sat in the front
passenger seat. The complainant was about to reach the Windmill Casino when he
heard a strange sound. He thought he had driven over an obstacle on the road
however, when he looked into the rear mirror , he saw Cogill pointing a firearm at him .
He then reali sed that the strange sound he had heard was in fact a sound of cocking
gun. The appellant also produced a firearm and pointed it at the back of the
complainant’s head.
[7] The third gentleman ordered the complainant to keep driving and listen to his
instructions otherwise they will blow his head off. He also asked about his name, how
much money he had made and where he keep it.
[8] As a taxi operator , the complainant was trained to ensure that he concentrates
on the perpetrators’ features during a hijacking so that he can be able to identify them
as a result he continued to drive whilst observing the appellant and Cogill from his rear-
view mirror . Being well aware that , in these kinds of hijackings , drivers are not only
robbed, they are also killed and their bodies dumped in a dam. He jumped out of the
motor vehicle whilst it was still in motion. After landing on the tarmac , he saw his motor
careering towards a pavement . He flagged down a motorist who allowed him to climb
careering towards a pavement . He flagged down a motorist who allowed him to climb
into the back of his bakkie and drove him to Windm ill Casino . The complainant was
thereafter assisted by the police who were passing by the Windmill Casino.
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[9] Warrant officer du Preez is attached to the flying squad, a unit in the SAPS which
responds to crimes in progress such as armed house robberies, hijackings and crime
intelligence. On the night of the incident , she was on night duty when information came
in about a highjacked Toyota Tazz. Upon being informed that it had a tracking device,
she contacted the relevant tracking company Cartrack and they provided her with the
coordinates of the vehicle’s location. The coordinates led her and her colleagues ,
warrant officers Wessels and Fouche, to a house in Exton Road. When they entered the
yard, a male person took off running, jumped over the fence and fled. The complainant’s
vehicle was found at the back of the house.
[10] In the house, they found two occupants, a lady and another Nigerian man. They
asked to be shown the room of the person who ran away . They were show n the
appellant’s room. Inside the appellant’s room they found asylum seeker documents with
a photograph of a Nigerian man attached thereto . Motor vehicle registration documents
with several photographs were found in the complainant’s motor vehicle. Warrant officer
du Preez confiscated the asylum seeker documents for investigation.
[11] Warrant officer Wessels corroborated warrant officer du Preez’s version
regarding the circumstances under which the complainant’s motor vehicle was
recovered from the appellant’s residence and that he subsequently seized the motor
vehicle and its contents. A message was then left for the appellant to report to the police
station.
[12] A few days after the incident, the documents seized from the complainan t’s were
presented to the complainant to establish whether he could identify the people on the
photos. He positively identified the appellant as one of the perpetrators who robbed him.
[13] Approximately a month later , on 17 December 201 7, Cogill was arrested by
warrant officers Wessels and Rakwena after the complainant spotted him at a shopping
warrant officers Wessels and Rakwena after the complainant spotted him at a shopping
mall and called the police.
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[14] The appellant was arrested a day later on 18 December 2017 at the police
station. He had gone there accompanied by another Nigerian male to enquire about his
documents. Again, the complainant was asked to identify hi m and he pointed him out of
four other males who were seated next to him at the waiting area of the police station.
[15] It was the State’s case that t he taxi rank and the interior of the complainant’s
vehicle was well illuminated by the streetlights . The incident also took quite some time.
Aside from the time spent discussi ng the trip and the fare, the appellant and his co-
perpetrators were in the applicant’s motor vehicle for about 10-11 minutes before he
jumped out fearing for his life. During that period, the complainant was able to observe
the appellant and his co- perpetrators’ physical appearances namely : that they all
appeared to be foreign nationals . The appellant was dark in complexion, his
companions were light skinned and spoke English with a distinctive accent. Cogill
appeared to be coloured and the third gentleman Indian. He also took note of the
appellant’s shape of his head. The entire incident stuck to his mind he could still see his
attackers in his visions and it is for that reason that he informed the police shortly after
the incident that he would be able to identify them if he saw them again. Due to his
previous ownership of a firearm, the complainant was also able to identify their firearms
as 9mm pistols.
[16] The trial court rejected the appellant’s version as false beyond a reasonable
doubt on the premise that he provided contradictory versions regarding the
circumstances under which the complainant’s vehicle was found at his residence and
also raised a false alibi.
[17] The record of the proceedings reveal that , in his defence, the appellant told the
court that he was not involved in the robbery as , at the time of the robbery , he was with
his friend Rasta in Grassland from 19h00 until 22h00. Thereafter, he went to Pitseng
his friend Rasta in Grassland from 19h00 until 22h00. Thereafter, he went to Pitseng
tavern where he spent the remainder of the evening with his brother until 00 h00
whereas, Mr Wendel Wadro (Rasta), who testified as an alibi witness, told the court that
the appellant was at his residence from between 17h00 and 18h00 and left around
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19h00 or 20h00 after receiving a call from someone. He said he does not know the
appellant, he was just a client who regularly bought herbs from him.
[18] The appellant confirmed that, when he arrived home after the police had left, his
housemates told him that the police broke into his room, searched it and confiscated his
asylum documents, his wristwatch and the motor vehicle that was parked outside his
room. The police also left a message that he must come to the police station for
questioning.
[19] Initially, he averred that he knew nothing about how the complainant’s vehicle got
to be at his residence and explained that it could have been brought there by any of his
other housemates. He then changed his version and stated that he was informed by
housemates that the motor vehicle was brought there by one of his friends who ran
away when the police arrived. Another version that he proffered was that , whilst at the
tavern, he met some friends , one lived in Aliwal North , and offered them a place to
sleep as they had no money to pay for a guest house. When he woke up on Friday
morning, they were still asleep, he left his residence and, when he returned later , they
were no longer there. They returned later with the complainant’s vehicle. When asked
why he never informed the police about these details , h is explanation was that the
police did not ask.
[20] He also confirmed that he was arrested at the police station when he went there
to collect his documents. The complainant pointed him out as one of his assailants.
[21] The appellant challenges his conviction essentially on the grounds that, in
convicting the appellant, the trial court relied on the State’s evidence which did not
prove beyond reasonable doubt that the appellant was one of the perpetrators who
robbed the complainant in that, the complainant was a single witness and, prior to the
robbery, he had never seen the appellant . The robbery took place at night and it was
robbery, he had never seen the appellant . The robbery took place at night and it was
dark. T he complainant only relied on the streetlights for illumination. The scene was
also mobile and everything happened very fast ending with the complainant jumping out
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of the vehicle fearing for his life. After the robbery, the complainant did not describe the
assailant’s clothing an d bodily features to the police. He was only able to identify the
appellant because he was shown his photograph. There is no other evidence linking the
appellant to the crime such as fingerprints and identification parade. The appellant’s
conduct of going to the police station to claim his documents i s uncharacteristic of a
person who was involved in the robbery.
[22] Tritely: in determining an appeal directed against a trial court’s findings of fact
regarding conviction, the appeal court takes into account that the trial court was in a
more favourable position than itself to form a judgment as it was able to observe the
witnesses during their questioning and was also absorbed in the atmosphere of the trial.
The appeal court therefore initially assumes that the trial court’s findings were correct
and will normally accept those findings unless there is some indication that the trial
court misdirected itself as regards its findings of facts or the law.1
[23] On the facts germane to this matter, the complainant was a single identifying
witness implicating the appellant and his co-perpetrators to the robbery charge. In terms
of s 208 of the Criminal Procedure Act 51 of 1977, an accused may be convicted of any
offence on the single evidence of any competent and credible witness.
[24] Indeed, the reliability of the complainant’s observations must be tested however
factors such as a witness’s prior knowledge of the perpetrator, evidence of identity
parade, fingerprints and conditions of the scene are but some of the factors impacting
on the reliability of the identification evidence. They are not individually decisive, they
include factors such as lighting, visibility, and eyesight; the proximity of the witness;
his opportunity for observation, both as to time and situation; corroboration;
his opportunity for observation, both as to time and situation; corroboration;
suggestibility; the accused's face, voice, build, gait, and dress; and, of course, the
evidence by or on behalf of the accused. These factors, must be weighed one against
the other, in the light of the totality of the evidence, and the probabilities of the case to
1 Rex v Dhlumayo & Another 1948 (2) SA 677 (A).
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decide whether it is satisfied that the truth has been told despite the shortcomings or
defects in the evidence.2
[25] Furthermore, alibi evidence should be tested or corroborated. In S v Carolus ,
3
the Supreme Court of Appeal pointed out the importance of confirming or verifying alibi
evidence of an accused. Witnesses should be able to corroborate the actual defence or
evidence of an accused. The importance of corroboration of alibi evidence by other
witnesses was also restated in Mathebula v S,4 where it was held that the ‘vulnerability
of unsupported alibi defences is notorious, depending, as it does, so much upon the
court's assessment of the truth of the accused's testimony’.
[26] On the available facts, the complainant’s evidence pertaining to the description of
the identification was succinct and corroborated by the discovery of his stolen motor
vehicle from the appellant’s residence. The discrepancies in the appellant’s version
regarding the circumstances under which the complainant’s vehicle was found at his
residence shortly after it was stolen including his uncorroborated alibi affected his
credibility.
[27] Resultantly, the trial court was correct to reject the appellant’s alibi defence as
false and to accept that the State’s evidence proved that the appellant committed the
offence he was charged with beyond a reasonable doubt. The appellant was convicted
correctly.
Order
[28] In light of the conclusions reached, the following order is made:
The appeal against conviction is dismissed.
2 S v Sauls 1981 (3) SA 172 A at 180E-G; see also S v Mthetwa 1972 (3) SA 766 (A) 76.
3 S v Carolus [2008] ZASCA 14; [2008] 3 All SA 321 (SCA); 2008 (2) SACR 207 (SCA) para 28-31.
4 Mathebula v S [2009] ZASCA 91; 2010 (1) SACR 55 (SCA); [2010] 1 All SA 121 (SCA) para 11.
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_______________
DANISO J
I concur
_______________
VAN RHYN J
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Appearances
For the appellant: T Diba
Instructed by: Molefe Attorneys, Bloemfontein
For the respondent: S Tunzi
Instructed by: The Director of Public Prosecutions, Bloemfontein.