---

IN THE HIGH OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: A 37412017

7 May 2020

In the matter between:

MBHEKISENI  MKHIZE                                          1^ST Appellant

MZWAKHE MNCHUNU                                         2^nd Appellant

and

THE STATE                                                               Respondent

JUDGEMENT

YENDE AJ: (KUBUSHI J, CONCURRING)

INTRODUCTION

1.    This is an appeal instituted by the 1^st  and 2^nd Appellants arising from both being convicted on the 24th November 2015 on a charge of robbery with aggravating circumstances. The Appellants were both sentenced to 10 years imprisonment on the 26^th  November 2015 in the court a quo.

2.    Both the Appellants,;  were duly represented during the tri al and pleaded nor guilty  to  one charge of robbery with aggravating circumstances read with Section 51(2) of the Criminal Law Amendment Act 105 or 1997 (as amended). On 1he 8'" March 2016 both the Appellants applied for  leave to appeal  in  respect of  both conviction and sentence but  leave was only granted in respect of conviction.

3.     At the time of the  hearing  of the Appeal the  Record appeared ,to be wholly complete.  It is necessary that I should provide a concise summary of the evidence. The Appellants' conviction stemmed from an incident which took place on the 24^th   January 2013 at approximately 12  noon in which a bread delivery truck (the truck) was robbed. Mr. Tshingaya (" Mr. Tshingaya " ) testified to the effect that he was the driver of a bakery delivery Isuzu truck (the truck) and was travelling with two passenger assistant crew and they were heading to Everton.

4.   

After  delivering  bread  at  Mavivi  Supermarket  an  unknown  Venture  Taxi suddenly  blocked his way of travel. He observed from his rear view mirror seven (7) unknown men coming from behind. four of the men came to his side and one pointed him with a firearm. They opened the door. forced him out of the front  of  the truck and  put him  at the  back of  the truck  together with  his two passenger assistant crew.  All  these seven  (7)  men  were  unknown  to  him  and  their  faces were no! concealed. Two of the men got into the back of the truck with them, guarding them.

5.    According to Mr. Tshingaya the 1^st  Appellant and  the 2^nd Appellant  were the  two assailants who were at the back of the truck guarding them during the whole ordeal. The 1^st Appellant had an axe with him and was wearing a white jacket. the 2^nd Appellant had an earring on his left ear. They were ordered not to make noise. Mr Tshingaya further stated during cross examination that when they got into the truck he looked at the 1^st Appellant and the 2^nd Appellant as they were standing by the door at the back of the truck. Both the Appellants ordered them to face the opposite direction the front of the truck which they complied with.

6.    Mr. Tshingaya further testified that after his two passenger assistant crew and himself were put at the back of the truck they were five all together at the back of the truck. The truck was then driven to  an unknown place and it stopped.  As the door was open he could see the bushes outside  and  he  heard  that  the assailants  were trying to remove the  steel  safe that   was welded on the truck in between the passenger seat and the driver' s seat in the front of the truck.

7.    He overheard some of the assailants telling the 1^st  ' and     2 ^nd   Appellants that they were unable to remove the safe. The back door of the truck was closed and the truck started to move again to another place where it stopped. Some of the assailants came to open the back door of the truck. The  1st and 2^nd  Appellants got off the truck and ordered him and his passenger assistant crew not to make noise and closed the door from outside. He again heard the sound of  people talking outside the truck. After a while all the sound was gone, There was no more sound of something being broken or people talking.

8.    One of  the  passenger   assistant  crew  put  his  hand   through   the  trap  door,  reached  for the handles outside and  managed  to  open  the door, They found themselves in the open bush veld. Mr. Tshingaya testified that  he  was able  to  identify both the  1^st  and 2^nd  Appellants while inside the back of the truck with them because visibility was good, the back of the truck had a sunroof which provided light. According to his testimony the truck was driven for approximately 30 minutes  from Mavivi Supermarket to  where it first stopped and for approximately 45 minutes from the first stop to where it was finally abandoned in the open veld, At all material times they were with the  1st  and 2^nd Appellants at the back of the truck.

9.    They managed to get out of the truck and got help from a passerby who was driving a MercedesBenz motor vehicle. This unknown motorist gave him (Mr. Tshingaya) a lift Orange Farm Police Station where he reported the incident. The police drove with him in a police van back to the scene of the crime. On arrival at the scene he observed that the safe had been removed from the truck where it was welded. The police had activated an armed response and there was a helicopter and the dog unit scouring the scene.

10. He was taken to Everton Police Station to make a statement while the other policemen continued with the search for the suspects at the scene of the crime. At  the  Everton  Police  Station after making his statement and while waiting for transport  to take him to Orange  Farm,  the  other police   arrived   in    police   vans   together    with    the   truck   driven    by   its   owner   Mr. Ashfalki

) .

 Mohammed (Mr. Mohammed). He saw the 1^st  and 2^nd Appellants alighting from one of the police vans and he immediately identified them as the robbers who were with them at the back of the truck. He further testified that the safe was never recovered.

11. During cross-examination Mr. Tshingaya confirmed the identification and description of the Appellants he gave to the. police. He described the 1^st Appellant as a short man, dark in complexion and  had a  scar on the  left cheek below the eye and the 2^nd Appellant as a tall man, light in complexion and had earrings on the left ear. He further confirmed during cross examination that he clearly saw both Appellants while standing next to each other at the back of the truck next to the rear door. He further conceded that although he was scared he had about 5 to 10 minutes to see the faces of his assailants. It was bright inside the back of the truck and the light came from the transparent sunroof. He further stated that although they were instructed not to look at their assailant, as the truck was moving at times he would peep and look at them so at times when the truck was swerving they would switch, somebody would switch. Mr Cliff Tshingaya was adamant that he was making any mistaken identity about the 1^st and 2^nd Appellants as he was with them at the back of the truck.

12. Emma Thabo Mfekane (Constable Mfekane), the second witness, is a police constable with five years experience. He was in the company of Constable Ratide. They received a report on the radio about the crime and he proceeded to the crime scene where it was an open veld. According to him when he arrived at the scene it was about 13h00. He saw the truck parked between the trees. He proceeded to search the truck. Inside the cab of the truck he noticed that the steel built – in unit had been removed and there were some damages to the cab. He further proceeded to the back of the truck, and found an axe that was left inside the base of the truck.

13. There was nobody inside the truck and other police officers arrived  and  continued  with  the search. In a short while the owner of the truck, Mr,  Mohammed,  arrived  and  assisted  with searching and tracking down the suspects. Mr. Mohammed called him (Constable Mfekane) and showed  him two  men who were hiding on  top  of the  tree. Upon inspection  he observed  two men sitting on top of the tree and did not have T-shirts on their torso. He referred to those two men as the 1^st and 2^nd Appellants. He drew his pistol and ordered the two  men to come down from the tree which they did. The two men were identified by the passenger assistant crew as their assailants. He handcuffed them. read them their constitutional rights and took them back to where. the truck was parked. When he asked them why they were on the tree lop they could not give him an explanation. He testified that the tree from which the Appellants climbed off was about 100 meters away from the truck.

14. Constable Mfekane testified that Mr Mohammed pointed to the front of the truck where the safe was mounted it had been removed. and was never recovered. He also testified that after arresting the 1^st and 2^nd Appellants he, together with the other policemen drove to Everton Police Station where Mr Tshingaya identified the Appellants.

15. Constable Mfekane also gave a description of the scenery as an open bush veld with trees about 2 kilometers away from a train station. There were houses that looked habitable and some derelict. Accordingly, ‘ during that time they were searching or even arresting these accused persons there was not any movement of the trains either driving into the station or pulling off of the station the movement happened after the accused persons were arrested and when they were with us. During cross-examination he confirmed that he arrested both the 1^st and 2^nd Appellants and that he found an axe at the back of the truck. He further conceded that he never took cognizance about any peculiar marks of identification on the faces of the Appellants.

16. Richard Samuel Valentino (Mr Valentino) is one of the complainants, he testified that he was employed at Native Dreams Bread, a bakery in Roodepoort. He confirmed the testimony of Mr Tshingaya that he was a passenger assistant crew in the truck that was hijacked by about seven (7) assailants and that the 1^st and 2^nd Appellants got into the back of the truck with them and guarded them throughout the ordeal. He further confirmed that the 2^nd Appellant had an axe in his possession and the man who approached Mr Tshingaya from the driver’s side had a firearm in his possession. Mr Valentino testified that one of the assailants was wearing a white jacket and the other a pair of black jeans and that none of them were wearing hats and their faces were not concealed.

17. He further testified that the 2^nd Appellant  searched  him and  took  his cellular  phone  as well as an amount of R300.00 while inside the back of the truck. He was present  when  the  truck owner, Mr. Mohammed, arrived and asked the police to assist  with the  search.  He confirmed that while searching with his boss they saw a white jacket under the tree and an axe. On top of the same tree he spotted the 1^st and 2^nd Appellants who were hiding at the top of the tree without their T-shirts on. The police were called and both the 1^st and 2^nd Appellants were ordered by the police officer to climb down the tree. He identified both of them on the scene and they were later identified by Mr Cliff Tshingaya at the Everton Police Station the same day. He also confirmed that the built in safe was removed from the truck and was never recovered.

18. The Appellants testified in their own defence and called no witnesses to testified on their behalf. The brief summary of their respective testimonies is stated herein under. According  to  Mbhekiseni Mkhize  (" the 1^st Appellant") on the date  of his arrest being the 24^th January2013 he was in the company of Mr  Mzwakhe Mchunu (" the 2nd Appellant") , Sifiso and Takalani. They had gone to the mountain in search of his  19 year old  brother  who had  run away from his home with some initiates to an initiation school. When they could not find his younger brother they decided10 sit under a tree where the police arrived and arrested them. They were fully clothed at the time of their arrest and the police assaulted !hem forcing them to  admit chat they had robbed the complainants and  that they must produce  the  money.  They denied involvement in the crime at the scene of the arrest.

19. The. 1^st  Appellant further testified that the police had in their possession an axe and a hammer which they used to assault them. They were assaulted until the 2^nd Appellant fainted thereafter they were arrested and taken to Everton Police Station where they we-recharged.

20. Mzwakhe Mcbunu ("the 2^nd  Appellant")  testified and  confirmed the  evidence of  the 1^st Appellant and further added that at the lime of their arrest both Sifiso and Takalani had proceeded towards the initiation school and he never saw them again.

The issue to be determined

21. In casu the issue is about the identity of the Appellants and the credibility and reliability of the state witnesses. It is common cause : and an undisputed fact that the robbery took place as described by the witnesses at 12 noon on 24 January 2013. It is contended on behalf of the Appellants that the complainants did not pass the litmus test for the evidence with regards the identity of the robbers.

Evaluation of evidence

22. It is trite that in criminal proceedings the State bears the burden and/or the onus to prove the guilt of the accused beyond reasonable doubt. The converse applies that the version  of  the  accused cannot be rejected solely on the basis that it is improbable, but only once the  trial  court has found on the credible evidence that the explanation is false beyond doubt. Therefore,. in casu. the State bears the onus of establishing the guilt of the Appellants beyond reasonable doubt and the converse is that both the Appellants are entitled to be acquitted if there is a reasonable possibility that they might be innocent (See R v Difford 1937 AD 370 AT373,383). In assessing , whether the Appellants are guilty. it goes without saying that  the  State  must  prove  its  case beyond  reasonable doubt. If  the   case reaches a stage where the Appellants have a duty to answer the State 's testimony, accordingly the Appellants must provide evidence that is reasonably possibly true.

23. The mere fact that the appellants testimony is unlikely is not enough to reject it. It must be so unlikely to be false beyond reasonable doubt. In S v V 2000 (1) SAVS 453 (HHA) at 455 a-c Zulman AR stated that

‘ it is sad that there is no bond upon an accused person where the State bears the onus to convince the court. If his version is reasonably possibly true he is entitled to his acquittal even though his explanation is improbable. A court is not entitled to convict unless it is satisfied not only that the explanation is improbable but beyond any reasonable doubt it was false. It is permissible to look at the probabilities of the case to determine whether the accused’s version is reasonably possibly true, but whether one subjectively believes him is not the test. As pointed out in many judgments of this Court and other courts, the test whether there is a reasonable possibility that the accused’s evidence may be true.’

24. In Sv Mbuli (422)/2001[2002) ZASCA 78 Nugent JA (as he was then) said the following

"It is trite that the State bears the onus of establishing the appellant's guilt beyond a reasonable doubt. and the converse is that he is entitled to be acquitted if there is a reasonable possibility that he might be innocent. Whichever form of test is applied it must be satisfied upon considerations of all the evidence. Just as a court does not look at the evidence implicating the accused  in isolation to determine whether there is evidence beyond a reasonable doubt. so too does it not look at the exculpatory evidence  in isolation to determine whether it is reasonably possibly that it might be true".

This view was approved in S v Hadebe and Others 1998 (1) SACR 422 (SCA) at 426f-h where the court said the following

"The question for determination is whether. in light of all the evidence adduced at the trial, the guilt of the appellants was established beyond a reasonable doubt. The breaking down of a body of evidence into its component parts is obviously a useful aid to a proper understanding and evaluation of it. But. in doing so. one must guard against a tendency to focus too intently upon the separate and individual pan of what is, afterall. a mosaic of proof. Doubt about one aspect of the evidence led in a trial may arise when that aspect is viewed in isolation. Those doubts may be set at rest when it is evaluated again together with all the other available evidence. That is not to say that a broad and indulgence approach is appropriate when evaluating evidence.  far  from  it. There is no substitute for a detailed and -critical examination of each and every component in a body of evidence. But, once that has  been done. it is necessary to step back a pace and consider  the  mosaic as a whole. If that is not done.one may fail to see the wood for the trees·.’

25. J In casu Counsel for both Appellants as well as Counsel for the State averred that the. conviction  of  the   Appellants   was   based   on   the   identification   of   both   the   appellants. In S v Shekelele195 3(1) SA 636(T) al 638 Dowling R said the following about identification

·’Questions of identification are always difficult. That is why such extreme. care is always exercised in holding of identification parade - to prevent the s lightest hint of reaching the witness of the suspects identity. An acquaintance with the history of criminal trials reveals that gross injustices are not infrequcnt1y done through honest but mistaken identifications. People often resemble each other. Strangers are sometimes mistaken for old acquaintances. In all cases that tum on identification the greatest care . should be taken to test the evidence .Witnesses should be asked what features. marks or indications they identify  the person  they  claim  10  recognize.  Questions  related  to  height.  build, complexion, what clothing he was wearing and so on should be put. A bold statement that the accused  is the  person who committed the crime is  not enough.  Such an unexplored untested and uninvestigated statements  leaves the door wide open of mistake.''

26  The court went further and staled in S v Mthethwa 19 72(3) SA 766(A) that

" because of the fallibility of human observation. evidence of identification is approached by courts with some caution. It is not enough for the identifying witness to be honest. The reliability  of  his  observation  must  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 parade, 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 mu.st be weighed one against the other, in light of the totality of the evidence, and the probabilities·.

27 

It is indeed so, as expressed supra in R v Shekelele and Another 1953 (1) SA 636 (f),Sv Mthethwa 1972 (3) SA 766 (A) and many other cases that followed them, that the evidence of identification must. for various reasons stated in those cases-, be approached by the Courts with caution.  The  evidence  of  identification  of  both  the 1^st and    2^nd  Appellants  by  the  identifying witnesses.. coupled with collateral evidence of the witnesses. points to both 1^st  and, 2^nd  Appellants as the persons who robbed the complaints beyond a reasonable doubt.

28  Both Mr. Tshingaya and Mr. Valentino were able to identify the Appellants in  various ways. According to the undisputed evidence. of Mr. Tshingaya the incident took place at 12h00 . A Toyota  Venture  blocked  his  route and  the  occupants  approached  the  truck.  He  was pointed with a  firearm and  taken to  the  back of  the truck together with his two  passenger assistant crew. Two of the assailants being the  1st  and  2nd  Appellants .  whose  faces  were not concealed,  got  into the  back  of  the  truck  guarding  them  during   the  whole  ordeal.  According  to  his  testimony   the truck was driven for approximately .30 minutes from Mavivi  Supermarket  to  where  it  first  stopped and  for  approximately  45  minutes  from  the  first  stop  10  where  it  was  finally  abandoned in the open veld. During all this time they were with  the  1^st and  2^nd Appellants  at the  back of  the truck.

29  Although he conceded that he was scared, but, he testified that he had about 5 to 10  minutes to see the faces of his assailants as it was bright inside the  hack of  the  truck  because  the  light came from the transparent sunroof. Even though he was instructed to look at the front of  the truck  he  testified that  he  had  an  opportunity  to   peep and  look  at  the  111     and  2^nd  Appellants. During cross-examination Mr. Cliff Tshingaya confirmed the identification and description of the  Appellants as he  had  given  it  to  the  police. He described  the  1^st  Appellant as  a  short  man, dark in complexion and had a scar on the left cheek below the eye and the 2^nd  Appellant as a tall man.  light  in  complexion  and  had earrings  on the  left  ear.  Mr.  Valentino corroborated the testimony  of  Mr. Tshingaya  as  to  how  the  robbery occurred  and the  fact that both  the  1^st  and 2^nd Appellants were with them at the back or the truck and that none of their assailants were wearing hats nor had their faces concealed.

30 

Mr. Ricardo Samuel Valentino was present when both the 1^st and 2^nd Appellants were found hiding on the tree and were ordered to climb down the tree and arrested by Constable Mfekane. He identified both of them on the scene and was present when they were later identified by Mr Cliff Tshingaya at the Everton Police Station the same day. Constable Mfekane also corroborated the testimony of Mr Ricardo Samuel Valentino in that he arrested both the 1^st and 2^nd Appellants after they were spotted by the owner of the truck hiding at the top of the tree. He confirmed that they were found hiding at the top of the tree without t-shirts on. They , thereafter drove to the Everton Police Station where the 1^st and 2^nd Appellants were also identified by Mr Cliff Tshingayi. This was the second time they were identified. Even though he did not take cognizance of any peculiar marks on the faces of the 1^st and 2^nd Appellants. Constable Mfekane arrested the Appellants on the strength of the evidence of Mr Cliff Tshingaya and Mr Ricardo Samuel Valentino.

31  In casu at the scene of the crime both the 1^st and 2^nd Appellants were positively identified by Mr Ricardo Samuel Valentino as the persons who committed the robbery. Later on the same day at the Everton Police Station they were identified by Mr Cliff Tshingaya as their robbers. The incident took place during broad day light. There were only two people to be observed by the complainants and accordingly they had ample opportunity to observe both the Appellants. They spent approximately 75 minutes with them in the back of the truck.

32 

I found that there are no material contradictions in the testimony of the State witnesses that raise the question of credibility and reliability with regards to the identity of the two  Appellants. Mr. Tshingaya made three statements to the police about the incident; he admitted all  the statements as his own. He did not change his version with regard to the recollection of events. Actually. he gave more  distinct information  regarding the  Appellants.  Constable  Mfckane could not give more information with regard to the identity of both the  Appellants as he testified that at the time of arresting the Appellants he did not take cognizance of any peculiar marks on their faces.

33  Mr.  Tshingaya  with  regards   to   the   2^nd Appellants  identification   testified   that   the 2 ^nd Appellant had an earring on his left ear and had a scar on his left cheek below the eye whereas the 2^nd  Appellant admitted  having had an  earring  on  his left ear but denied that he had a scar at the time of his arrest instead he sustained the scar as a result of the assault on him by the police after his arrest on the. scene. Mr. Valentino testified that when he was searching the scene together with Mr Mohammed, a while jacke1 and an axe were found under the tree whereas Constable Mfekane. testified to the effect that he found the axe at the back of the truck base.

34  The aforesaid contradictions do not in any form appear as material and/or crucial in regard to the question of the identity of the Appellants. See the remarks made by Muller JA in Magerman 1981(1) PH H17 (A) and Diemont JA in Nyembe 1982 (1) SA 835 (A) 842 G . In the last mentioned case , amongst other things the following was said:

‘the contradictions were of a trivial nature. I am always surprised that witnesses can , or think they can after a passage of weeks or months, recollect what route they travelled and at what time they reached their venue. I am not surprised that they fall into contradictions. The wise Judge knows that human memory is only too falliable’.

In Mputing 1960 (1) SA 785 (T) 788 B-E Boshoff J pointed out ‘that the accuracy of memory depends upon the following factors:

26  The ability and importance to remember specific happenings;

27  The impression which the observation had on the observer;

28  The time lapse after such observation

29  The inferences which the observer has drawn after making the observation

30  The ability of the observer to distinguish between what (s)he actually remembers and what (s)he infers from the observation(s)he made",

35  It is evidently clear from the testimonies of Mr. Tshingaya and Mr. Ricardo Samuel Valentino that within the space of time in which they were confined by the Appellants at the back of the truck they were able 10 clearly identify the two Appellant and had nothing thnl preoccupied them save for the robbers they were facing on that fateful day.

36  The evidence of State witnesses including that of the Appellants cannot be approached and/or evaluated independently of the entire evidence in this regard, See S v Civa 1974 SA 884(f) where Margo J stated that

·' The evidence must be weighed as a whole, taking account of probabilities. the reliability and opportunity for observation of the respective witnesses, the absence of  interest or bias, the intrinsic merits or demerits of the testimony itself any inconsistencies or contradictions. corroboration, and all other relevant factors.

37  This approach was amplified and endorsed in S v  Chabalolo 2003 (I) SACRl34 (SAC) at 139i-140 b where the court held

" The correct approach to evaluating evidence is to weigh up all the elements which points towards the guilt of the accused all those which are indicative of innocence, taking proper account of inherent strengths and weakness, probabilities and improbabilities on both sides and having done so, to decide whether the balanace weigh so heavily in favour of the state as to exclude any reasonable doubt about the accused guilt. The result may prove that one scrap of evidence or one defect in the case can only be ex-post facto determination and a trial court shuld avoid the temptation to latch on to one obvious aspect without assessing it in the context of the full picture presented in evidence''.

38  Generally a Court of Appeal will be hesi1an t to interfere with the factual findings and evaluation of the evidence by the Court a qou and will  only interfere: where the Court a quo materially misdirects itself insofar as its factual and credibility findings are concerned (see R v Dhlumayo and another 1948(2) SA 677(A). The principle applicable on the merits (including credibility findings) of a case and the approach to be followed by  the  Court  of  Appeal  was  further clearly formulated in matter of S v Francis 1991(I) SASV198 (A) a t par I98 j -I 99a w here the Court remarked us follows:

"'The powers of a Court of Appeal to interfere with the finding.. of fact of a trial Court are limited, in the absence of any misdirection the trial Court's conclusion. including its acceptance of a witness' s evidence is presumed to be correct. In order to succeed on Appeal, the Appellant must therefore convince the Court or Appeal on adequate grounds that the trial Court was wrong in accepting the witness evidence - a reasonable doubt will not suffice to justify inteerference with its  findings. Bearing in mind the advantage which a trial Court has of seeing, hearing and appraising a witness. it is only  in exceptional cases that the Court of Appeal will be entitled to interfere with the trial Court's evaluation of oral testimony'' .

39  The same principle  was  reaffirmed  by  the  Supreme  Court  of  Appeal  in  the  matter  of S v Hadebe others 1997 (2) SACR 641(SCA). at p645 e-f where the Court held

"'in the absence of demonstrable and material misdirection by the trial court its findings of facts are presumed to be correct and will only be disregarded if the recorded evidence shows them to be clearly wrong·.

40  What is of paramount in this case are the established and proven facts, which in my view make out an overwhelming and solid case against both the Appellants. The circumstances in which both the Appellants were found in the absence of an alternative explanation, points to them as being the two robbers who were with the victims at the back of the truck on the day of the commission of this armed robbery. They were found together hiding on the tree top without clothes on their torso and with the item that was used in the robbery the axe, under the same tree including a white jacket which was worn by one of the Appellants. It is indeed so as expressed supra in R v Shekelele and Another 1953 (1) SA 636 (T) , S v Mthethwa 1972 (3) SA 766 (A) and many other cases, be approached by the Courts with caution, I am, therefore satisfied that the trial court applied the necessary caution to the evidence of the States witnesses in regard to the identification of the Appellants.

41  The Appellants denial of being the robber as  well as  the  improbabilities inherent  in  their alibi defense, appears to be improbable to such an extent that the trial Court correctly and rightly so rejected it as false. As a consequence, I find that the Court a qou correctly rejected the 1^st and 2^nd Appellants version as not being reasonably possibly true.

42  In  light  of  the  principle enunciated  by the  Court  in  S  v  Francis  mentioned supra, the interference in the trial court 's credibility and reliability findings is not justified. I come to the conclusion that this Court cannot interfere with the trial Court's evaluation in this regard, as a consequence. the appeal against the conviction of  both the  1^st   Appellant and the 2^nd  Appellant should be dismissed.

Order:

Accordingly, I recommend the following order:-

1.    The appeal by both the 1^st  Appellant and 2^ndAppellant against conviction is dismissed.

2.    The sentence imposed by the trial Court on the 1:st . Appellant and the 2^rd Appellant is confirmed.

YENDE AJ

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA,

GAUTENG DIVISION,

I agree, and it is so ordered.

KUBUSHI J

JUDGE OF THE HIGH COURT Of SOUTH AFRICA

GAUTENG DIVISION

DATE OF HEARING: 11^TH  March 2020

DATE OF.J UDGMENT:

FOR 1^ST  AND 2^ND  APPELLANT ADVOCATE L A VAN WYK

Instructed by Legal Aid South Africa

4'' FLOOR LOCARNO HOUSE

317 FRANCIS BAARD STREET

Pretoria

Cell: 082 308 5567

E- mail: LillianV@legal-aid.co.za

FOR THE RESPONDENT: Advocate JJ KOTZE

Senior State Advocate

INSTRUCTED BY: THE office of the Director of Public Prosecutions

Gauteng Local Division, Pretoria.

---