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THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: A20/2025
In the matter between:
SERJO CWAICWAI Appellant
and
THE STATE
Respondent
This judgment has been delivered by uploading it to the Court online digital data
base of the Gauteng Division, Pretoria and by email to the attorneys of record of the
parties. The date of the delivery of the judgment is deemed to be 10 September
2026.
JUDGMENT
(1) REPORTABLE: NO / YES
(2) OF INTEREST TO OTHER JUDGES: NO / YES
(3) REVISED: NO / YES
……………………… …………………….
SIGNATURE DATE
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MAKHOBA J
[1] The Appellant was convicted and sentenced in the Regional Court in
Oberholzer. He was convicted on count 1 of Housebreaking with intent to rob
and robbery, acquitted on count 2 of contravening section 5(2) of the Criminal
Law Amendment Act (Sexual Offences and Related Matters) Act 32 of 2007.
[2] On Count 3 he pleaded guilty and was convicted as charged.
[3] On Count 1 he was sentenced to 15 (fifteen) years imprisonment, count 3
(three) he was sentenced to 3 years imprisonment. It was ordered that count
3 is to run concurrently with count 1.
[4] The appeal before us is conviction on count 1 only.
Grounds of Appeal
[5] The only ground of appeal is that the evidence of the three state witnesses on
identification of the appellant as one of the robbers does not amount to proof
of identification beyond reasonable doubt.
Appellant’s Submission
[6] It is submitted on behalf of the appellant, that it is improbable that a person
with a salon in the area of the complainant’s residence will rob complainants
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without covering his face. There is a material contradiction between the state
witnesses as to whether the appellant’s face was covered or not.
[7] The state failed to present the evidence of two witnesses, namely Zamo and
Sergent Ngobeni.
Respondent’s Submission
[8] Counsel for the Respondent argued that, the state witnesses identified the
appellant and gave an elaborate description which suites the appellant.
The evidence
[9] All three witnesses that were in the house on the day of the robbery testified
that they were watching television when the robbers entered the house and
took items mentioned in the charge sheet. They also demanded money from
the complainants.
Witness Thandi Nthambayo
[10] she testified that the appellant entered the house carrying a firearm. The other
person with the appellant had his face covered with a surgical mask and was
carrying a hammer.
[11] During cross-examination it was put to the witness that, when the appellant
was brought to her house after the robbery, she could not identify him. The
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witness answered in the positive. She again testified that, after the appellant
left she “…… thought it over and then I managed……...”1
[12] In paragraph 10 of her statement to the police she says the following, “the one
with the hammer I know him, I have seen him around Fidas blyvoor”. It must
be remembered that, in her evidence in chief she testified that this suspect
had his face covered in a surgical mask.2
Witness Thikiswa Nhlabeng
[13] She testified that, the appellant was carrying a firearm, and his face was not
covered or hidden. She has seen the appellant before at the barber shop the
very same week and the barber shop is located near her place of residence.
[14] She informed her boyfriend about what had happened and provided him with
the description of the appellant. At the time, her boyfriend was in the company
of other people. It is these people who informed them that the description
given by her fits or suite the appellant.
[15] She identified the appellant at her mother’s house. In cross-examination3 she
conceded that, her mother was unable to identify the appellant but one of the
suspects look similar to the appellant because of the disfigured teeth but it is
not the appellant.
Witness Thando Matwanda
1 Pages 42-45 of the transcribed record.
2 Page 291 of the transcribed record paragraph 10.
3 Page 85 of the transcribed record lines 1-13.
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[16] She was also in the house during the robbery. She testified that both robbers
had covered their faces. One had a balaclava on and the second one his face
was covered from the nose to the mouth. She told the court that she cannot
identify any of them.4
Witness Bongani Nthambayo
[17] He testified that the appellant was armed with a firearm. In cross -examination
he testified that the appellant face was not covered. When the appellant was
brought into the house, he did not go outside to identity him.
Legal framework and discussion
[18] The legal position is that the powers of the court of appeal are limited. More
specifically a court of appeal is not entitled to interfere with the findings of fact
of a trial court unless the appeal court is satisfied that the trial court was
wrong.
[19] In S V Francis 5 the then Appellate Division described these limited powers of
the court of appeal as follows:
“the powers of a Court of Appeal to interfere with the findings of fact of a trial
court are limited. In the absence of any misdirection the trial court’s
conclusion, including its acceptance of witnesses’ evidence, is presumed to
be correct. In order to succeed on appeal, the Appellant must therefore
convince the Court of Appeal on adequate grounds that the trial court was
wrong in accepting the witness evidence-reasonable doubt will not suffice to
justify interference with its findings. Bearing in mind the advantage which a
4 Pages 92-110 of the transcribed record.
5 1991 (1) SACR 198 (A)
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trial court has of seeing, hearing and appraising of a interfere with trial court’s
evaluation of oral testimony”.
[20] Similarly in S V M 6 the SCA per Cameron JA, as he then was, stated the
proper approach to be adopted as follows:
“the point is that the totality of the evidence mut be measured, not in isolation,
but by assessing properly whether in the light of the inherent strengths,
weaknesses, probabilities and improbabilities on both sides the balance
weighs so heavily in favour of the state that any reasonable doubt about the
accused’s guilt is excluded.”
[21] The important question to be answered in this matter before us is therefore
that upon proper consideration , can it be said that the trial court erred and or
misdirected itself in the analysis of the evidence and its final findings and
conclusions in relation to the identification of the appellant.
[22] Therefore, this court must determine whether the state succeed ed in proving
the identity of the appellant beyond a reasonable doubt.
[23] Evidence of identification must be approached with caution.7
[24] All three witnesses in the court a quo testified that the appellant’s face was
not covered whereas the fourth witness testified that both assailant’s faces
were covered and hence she could not identify any of the assailants even
though she was the one who was not tied up and had best advantage of
observing the assailants.
6 2006 (1) SACR 67 (CA)
7 S V Gordon 1970 (1) PH68 (A), S V Mthetwa 1972 (3) SA 766 (A) at par 768 and S V Charzen and Another
2006 (2) SACR 143 (SCA)
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[25] In my view this is a material contradiction which the trial court ignored. The
other th ree witnesses were at a disadvantage to can properly identify the
appellant. Whereas the witness who had the best view told the court that both
assailants faces were covered.
[26] They were tied and were lying on the floor except the one who testified that
both the appellant and his accomplice covered their faces.
[27] All four witnesses who were in the house during the robbery their evidence
have discrepancies, shortcomings and full of intricacies.
[28] The appellant’s version that the was not at the scene of crime was
corroborated by his girlfriend Miss Makamo.
[29] In contrast the evidence of identification against the appellant was not proved
beyond a reasonable doubt by the state. Three witnesses testified that the
appellant’s face was covered. The fourth witness testified that all two robbers’
face were covered.
[30] It is further impro bable that the appellant will go and rob at a house not far
from where he is residing and employed without covering his face.
[31] I am therefore of the view that the identification of the appellant was not
proved beyond a reasonable doubt, the learned Magistrate err ed in convicting
the appellant on count one. I am of the view that the trial court misdirected
itself by convicting the appellant on the contradicting evidence of whether the
appellant’s face was covered or not.
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[32] This court is therefore free to reconsider the strength of the case against the
appellant.8 Again the appellant’s version was not shown to have been not
reasonably possibly true.
[33] In the circumstances, the state’s case had to fail because the state evidence
is contradictory in material respect.
[34] In the premises. I make the following order:
34.1. The appeal against the conviction and sentence on count 1 succeeds.
34.2. The conviction and sentence on count 1 are set aside.
______________________________
D. MAKHOBA
JUDGE OF THE HIGH COURT
PRETORIA HIGH COURT
I agree
______________________________
MBOWENI
ACTING JUDGE OF THE HIGH COURT
PRETORIA HIGH COURT
8 Nyabo V S [2008] JOL 22823 (SCA)
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Date of hearing: 01 September 2026
Date of Judgment: 10 September 2026
For the Appellant: Adv S Simpson
Instructed by: Legal Aid South Africa
For the Respondent: Adv MJ Makgwatha
Instructed by: Director of Public Prosecutions, Gauteng
Division