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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

Date: 2008-10-09

Case Number: A1337/2005

In the matter between:

MESCHACK MANDLAZI Appellant

and

THE STATE Respondent

JUDGMENT

SOUTHWOOD J

[1] On 15 February 2005 the appellant was found guilty of robbery with aggravating circumstances in the Daveyton regional court and sentenced to the prescribed minimum sentence of 15 years imprisonment. The court found that there were no substantial and compelling circumstances to justify the imposition of a lesser sentence.

[2] With the leave of the court a quo the appellant appeals against the conviction and sentence.

[3] The commission of the crime was not disputed. The issue in the court a quo and on appeal is whether the state proved that the appellant attacked and robbed the complainant.

[4] The complainant testified that at about 22h00 on 6 August 2004 he was walking in darkness along an unlit passage, after leaving a tavern, when a man caught up with him, swore at him and then struck him on the upper thigh with a heavy blunt object. After he fell to the ground the man robbed him of R12,80. The complainant testified that he was moderately (‘medium’) intoxicated and that the attack took place about halfway down the passage connecting the two well-lit streets.

[5] The complainant was a single witness and the court accepted his evidence and rejected that of the appellant. The complainant and the appellant live near each other in Daveyton and know each other well. The court found that the complainant was a good witness whose evidence was concise and satisfactory and that he did not contradict himself. The court a quo found that the appellant did not make a good impression and that he had to be led throughout his evidence. The court a quo did not explain how the state discharged the onus or why the appellant’s version that he was asleep at home could not be reasonably possibly true.

[6] Section 208 of Act 51 of 1977 provides that ‘an accused may be convicted of any offence on the single evidence of any competent witness’. In S v Sauls and Others 1981 (3) SA 172 (A) at 180D-H the court commented on this section as follows:

‘The absence of the word “credible” is of no significance; The single witness must still be credible, but there are, as Wigmore points out, “indefinite degrees in this character we call credibility”. (Wigmore on Evidence Vol III para 2034 at 262.) There is no rule of thumb test or formula to apply when it comes to a consideration of the credibility of the single witness (see the remarks of Rumpff JA in S v Webber 1971 (3) SA 754 (A) at 758). The trial Judge will weigh his evidence, will consider its merits and demerits, and having done so, will decide whether it is trustworthy and whether, despite the fact that there are shortcomings or defects or contradictions in the testimony, he is satisfied that the truth has been told. The cautionary rule referred to by De Villiers JP in 1932 may be a guide to a right decision but it does not mean

“That the appeal must succeed if any criticism, however slender, of the witnesses’ evidence were well-founded”

(per Schreiner JA in R v Nhlapo (AD) 10 November 1952) quoted in R v Bellingham 1955 (2) SA 566 (A) at 569). It has been said more than once that the exercise of caution must not be allowed to displace the exercise of common sense.’

It is trite that where the issue relates to identification the court must be satisfied that the evidence is not only credible but reliable – see S v Mthethwa 1972 (3) SA 766 (A) at 768A-C; S v Mehlape 1963 (2) SA 29 (A) at 32F-G.

[7] The attack took place in a dark passage. The evidence indicates that it was not possible to see in the passage. At first the complainant said he saw the appellant in the dark passage and then he said he saw the appellant in the street light before he entered the passage. This is an important contradiction. In addition the complainant consistently avoided answering the point of the questions. Many of his answers were non-sequiturs. In the light of these shortcomings the regional magistrate’s finding that the complainant was a good witness cannot be supported. It is significant that he did not say that he recognised the attacker’s voice as being that of the appellant and that the appellant was not arrested immediately after the incident. His evidence that the appellant was the robber cannot be accepted at face value and appears to be unreliable.

[8] As against that evidence the appellant said that he was at home asleep. The appellant did not deviate from this version. The court a quo did not give any reasons for rejecting the appellant’s evidence. On reading the appellant’s evidence I cannot agree that he was a poor witness. The only criticism that could be brought against the appellant is that his version was not fully put to the complainant. But in the circumstances of the case that cannot justify his conviction. The court a quo did not use this to support the conviction.

[9] It is trite that it is not sufficient to simply prefer the state’s evidence to that of the accused. There must be good reasons for rejecting the accused’s evidence and finding him guilty and this must appear from the record. In S v Guess 1976 (4) SA 715 (A) at 718D-719A the court said:

‘The magistrate obviously misdirected himself in accepting Makapan’s evidence without stating his reasons for believing him and without stating his reasons for disbelieving the appellant and Miss Brown. The correct approach which the magistrate should have adopted in weighing up the evidence of the State and that of the defence appears from dicta of the following two reported cases:

(1) per De Villiers, JP, in Schoonwinkel v Swart’s Trustee, 1911 TPD 397 at p401:

“This Court, as a Court of appeal, expects the court below not only to give its findings on the facts, but also its reasons for those findings. It is not sufficient for a magistrate to say, ‘I believe this witness, and I did not believe that witness’. The Court of appeal expects the magistrate, when he finds that he cannot believe a witness, to state his reasons why he does not believe him. If the reasons are, because of inherent improbabilities, or because of contradictions in the evidence of the witness, or because of his being contradicted by more trustworthy witnesses, the Court expects the magistrate to say so. If the reason is the demeanour of the witness, the court expects the magistrate to say that; and particularly in the latter case the Court will not likely upset the magistrate’s finding on such a point.”

This dictum was intended for a civil case but it is equally applicable to a criminal case.

(2) Per Leon, J, in S v Singh, 1975 (1) SA 227 (N) at p228:

“Because this is not the first time that one has been faced on appeal with this kind of situation, it would perhaps be wise to repeat once again how the court ought to approach a criminal case on fact where there is a conflict of fact between the evidence of the state witnesses and that of the accused. It is quite impermissible to approach such a case thus: because the court is satisfied as to the reliability and the credibility of the State witnesses that, therefore, the defence witnesses, including the accused must be rejected. The proper approach in a case such as this is for the court to apply its mind not only to the merits and demerits of the State and defence witnesses but also to the probabilities of the case. It is only after so applying its mind that a court would be justified in reaching a conclusion as to whether the guilt of an accused has been established beyond reasonable doubt. The best indication that a court has applied its mind in the proper manner in the above-mentioned example is to be found in its reasons for judgment including its reasons for the acceptance and the rejection of the respective witnesses.”’

[10] In my view the evidence does not show beyond a reasonable doubt that the appellant attacked and robbed the complainant. As already mentioned the appellant does not appear to have been arrested immediately after the incident. His first appearance in court was on 4 October 2004: i.e. two months after the incident. In view of the fact that the complainant and the appellant know each other well this is very strange. In the absence of an explanation this indicates that the complainant was not sure about the identity of his attacker.

[11] The appeal is upheld and the conviction and sentence are set aside.

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B.R. SOUTHWOOD

JUDGE OF THE HIGH COURT

I agree

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M.W. MSIMEKI

JUDGE OF THE HIGH COURT

I agree

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T. VILAKAZI

ACTING JUDGE OF THE HIGH COURT

CASE NO: A1337/2005

HEARD ON: 8 October 2008

FOR THE APPELLANT: MR. L.M. MANZINI

INSTRUCTED BY: Legal Aid Board

FOR THE RESPONDENT: ADV. S.D. NGOBENI

INSTRUCTED BY: Director of Public Prosecutions

DATE OF JUDGMENT: 9 October 2008

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