---

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

CASE NUMBER: A08/17

 

In the matter between:

 

MOLANTOA MBUNDU                                                                          FIRST APPELLANT

 

RAMAHLODI TSOLO                                                                             SECOND APPELLANT

 

and

 

THE STATE                                                                                              RESPONDENT

 

JUDGMENT

 

TLHAPI J

INTRODUCTION

[1]          The appellants appeared before the Regional Court, Sebokeng, on a count of robbery with aggravating circumstances. They were both convicted and sentenced to five years imprisonment. They were both granted leave to appeal their convictions.

 

BACKGROUND

[2]          The complainant, Mr Kgotso Mohlakada testified that on 4 July 2016, he was accompanied on his way to school by his friend, Mr Kgotso Mokoena. He had to go via his church first. His friend walked ahead of him. He walked past a certain tavern which had a tent close by and, between the tavern and the tent, he was attacked by four individuals who encircled him. Without saying a word, one robbed him of the hat he was wearing. The hat was called a Strachan and it had a woollen pompon on top. In response to the prosecutor's question, he did a doc-identification and, identified the first appellant as the one who took his hat. He testified that after taking his hat, the first appellant gave it to the second appellant, whom he also identified in court.

[3]          A third person who accompanied the appellants wanted to rob him of his phone and, when he declined to hand it over the assailant took out a folding knife, unfolded it, searched him and robbed him of the R110.00 which was in his possession. His phone was not taken. The complainant testified that he could identify this person because he had a mark which looked like a burn mark on his nose and, that he was not one of the accused before court.

[4]          After the robbery he proceeded to his church and called his parents and the police. His parents and his uncle arrived before the police did. The complainant testified that he took them to the scene of the crime. They met some individuals who claimed to have witnessed the incident. They gave his uncle information on the incident. His uncle was directed by them to a certain corner house. On arrival at this house they found an old lady and gentleman and, certain enquiries were made. They were informed that the person they were looking for was not present. The gentleman promised that should this person return, he would tell him to go to the complainant's home.

[5]          A formal report was made to the police. The complainant testified that he accompanied the police to the corner house on two occasions, On the first occasion they found a lady in a shack, on the premises, the first appellant was not present. The lady was instructed by the police to call the first respondent and he arrived at the shack. The complainant testified that in the presence of the police, he identified the first appellant as one of the assailants and as the one who took his hat. The first appellant told the police he did not know the complainant and he denied knowledge of or having participated in the robbery. The first appellant refused to accompany the police in their vehicle. The police offered to take the complainant home and they promised to attend to his complaint.

[6]        The complainant testified that on the second occasion, later that evening he accompanied a different police officer to the corner house. The first appellant was found in a the shack which was on the property. The first appellant was questioned by the police officer about the robbery. He at first denied involvement in the robbery but he changed his mind and admitted having taken the complainant's hat. The first appellant informed them that he had given the hat to another person. The first appellant took them to the residence of the second appellant.

[7]          The complainant testified that on arrival at the second appellant's residence, the second appellant was wearing his hat. He recognized the hat by its colour which was brown and black, although the one worn by the second appellant did not have a woollen pompon.

[8]          In cross examination the complainant testified that he did know the appellants and he could not give a description of them or what they were wearing on the day of the incident. He was however positive about the description of the one who took his R110.00, but who was not before the court. This person was short and he had a mark which looked like a burn mark on his nose. The complainant testified that he did not hear the police warn the first appellant of his constitutional rights, neither did the police officer give the first appellant any warning regarding his rights in the pointing out of the second appellant. He also did not hear the police warn the second appellant of his rights.

[9]          Mr Kgotso Mokoena confirmed that he was in the company of the complainant and that they were on their way to school. He witnessed when the complainant's assailants surrounded him and robbed him of his hat. He testified that the one who took the hat was not present in court. He did not give a description of the assailants to the police and he not know the said appellants before the court, however, he identified them because he was present when they were arrested.

[10]       The police officer Mr Mgcina was called to testify on the arrest of the appellants. He testified that after effecting an arrest on the first appellant, the complainant led him to the residence of the second appellant. After finding the complainant's hat with the second appellant the complainant did not report to him that the ping-pong had been removed. He testified that he had warned the appellants of their constitutional rights before interviewing them.

[11]       The first appellant testified that on the first visit by the complainant and the police at his home, he was asked about the people who were in his company at Dingane's tavern. The complainant gave several descriptions. He accompanied the police and the first appellant in search of the people whom he knew, and who were present at the tavern that morning. Some fitted the description given by the complainant. He recalled that on that day there were more than twenty people at the tavern, some were outside the premises and he was occupying a seat inside the premises. When he could not trace some of these people, he took the police to the second appellant's residence, because one of them was known to the second appellant. He denied that he took the police to the second appellant's residence because he was in possession of the complainant's hat.

[12]       The second appellant testified that when the police arrived at his residence with the first appellant and the complainant, he was asked to go and show them where they could find one Mahlohonolo, who was in his company on the day of the incident. He did not know the complainant. He denied that the hat he was wearing was that of the complainant. He bought his hat during 2015 and one of his friends had removed the pompon.

[13]       The issue to determine is whether the State had discharged its onus and established and proved the guilt of the accused beyond a reasonable doubt. It is submitted in the appellants' grounds of appeal that the learned magistrate had misdirected himself, by disregarding material contradictions in the evidence of the State and, by failing to have regard to the admissibility of the evidence regarding the pointing out which resulted in the recovery of the complainant's hat. Another issue raised was whether the identity of the accused had been proved beyond a reasonable doubt.

 

THE LAW

[14]       It is trite that a court of appeal has limited power to interfere with the findings of fact of a trial court and may only do so if there was demonstrable and material misdirection by the trial court; R v Dhlumayo and Another 1948 (2) SA 677(A).

[15]       Furthermore, it is trite law that the State bears the onus to prove the guilt of an Accused person beyond a reasonable doubt. The accused bears no onus. If his version is reasonably possibly true, he is to receive the benefit of the doubt and is entitled to be acquitted; S v Van Der Meyden 1999(1) SACR 447(W); S v Shackell 2001 (2) SACR 185 (SCA) at paragraph 30.

[16]       It was contended by counsel for the appellants that the learned magistrate failed to take into account the cautionary rules pertaining to identity and, that the identity of the appellants as the perpetrators had not been proven beyond a reasonable doubt. According to counsel for the respondent the robbery occurred in broad day light and the complainant had ample opportunity to see his assailants, that is why he was able to identify the appellants later that evening when he accompanied the police during their arrest.

[17]       In my view a court should always approach the evidence of a single witness regarding the identity of an accused person with caution, more especially where the witness does not have prior knowledge of such person, or where there is a lack of corroboration regarding identity or other factors linking the accused to the crime. The guidelines in S v Mthetwa 1972 (3) SA 766(A) are apposite, where the following was said at 768 A-C:

 

"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 be tested. This depends on various factors such as lighting, visibility and eyesight; the proximity of the witness; his opportunity of observation, both as to time and situation; the extent of prior knowledge of the accuse; 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; see cases such as R v Masemeng 1950 (2) SA 488 (AD); R v Dladla and Others 1962 (1) SA 307 (AD) at p 310C; S v Mehlape 1963 (2) SA 20(AD)."

 

[18]       According to the complainant, someone who apparently witnessed the incident gave information on the perpetrators to his uncle and, pointed to a corner house. This eye witness was not called as a witness. The occupants of the corner house were not called as witnesses, in order to establish why the first appellant was identified as a probable suspect. When the complainant and his family went to the corner house for the first time, it is not clear whether they were accompanied by a witness to the incident. There is no evidence on why the occupants of the house suggested that they would ask the first appellant to go to the complainant's house on his arrival. The first appellant was not present so he could not have been identified by the complainant at that moment.

[19]       No evidence was adduced as to why or how the complainant identified the first appellant as the one who took his hat when he returned to the corner house with the police. The first appellant denied involvement and refused to accompany the police in their police vehicle. At night another police officer accompanied the complainant to a shack on the premises of the corner house. The complainant testified that the first appellant again denied involvement in the robbery but later he changed his mind. Still at this stage, other than his word there is no evidence on his positive identification of the first appellant. He testified that he was certain about the identity of the one who took his money as being short, with a burn mark on his nose.

[20]       In cross examination the complainant could not give a description of any feature or clothing the appellants were wearing during the alleged robbery. In my view, if the first appellant was the one who took complainant's hat then he could have been more specific in identifying the first appellant. It is also probable that he did not see who took his hat because he was encircled. This is seen from the evidence of his friend Kgotso Mokoena who contradicted the complainant by testifying that the one who took the complainant's hat was not before the court.

[21]       In my view this uncertainty called for caution because there was no assurance that the identification by the complainant of the first appellant could be relied upon. Mr Kgotso Mokoena, testified that he had identified the appellants because he was present during their arrest and not because he had seen them during the robbery. He testified that he stood six metres away from the complainant during the robbery. Another factor is that the complainant could not prove that the hat worn by the second appellant was his, it was similar to his only in colour but it did not have a pompon as his did.

[23]       The complainant did a doc identification of both appellants. The police failed to take advantage by conducting an identification parade prior to the hearing, which could have involved the witnesses who gave information, but who were not called to testify. It is my view, that the complainant's positive identification was not as a result of a spontaneous recognition of the appellants after the incident. The complainant was responding to a suggestive question put to him by the prosecutor.

[24]       The learned magistrate incorrectly stated in the judgement that the second appellant testified that he got the hat he was wearing from the first appellant. It is the police officer who testified that, that is what he was told by the second appellant. According to the second appellant no one asked about the hat he was wearing when the police arrived and he denied that he got it from the first appellant, it was his.

[25]       While it is my view that this matter revolves around the identity of the appellants, it is apposite to comment on what seemed to be a down playing by the learned magistrate of the need that suspects be warned of their Constitutional Rights, before making statements that might incriminate them or before engaging in a pointing out. The complainant had gone to the first appellant's house with the police on two occasions, following up on information he had been given. The first appellant's initial response was that of a denial of involvement in the robbery and he refused to accompany the police. It is obvious that on the second visit in the evening he was considered a suspect. The complaint testified that appellants were not warned of their rights before being interviewed by the police, while Mr Mgcina testified that he had warned the appellants of their rights before interviewing them and finally arresting them.

[26]       It is my view that given the contradictions in the evidence of the state witnesses, the learned magistrate misdirected himself by not even considering the issue of identity in his judgement, which was a material factor in establishing the guilt of the appellants. It is to the surrounding circumstances pertaining to how the arrests of the appellants took place, that the court should have had regard to, in considering whether the identity of the appellants had been proved beyond a reasonable doubt. In R v Masemeng 1950 (2) SA 488 (AD) at 493 the court held that:

 

" The positive assurance with which an honest witness will sometimes swear to the identity of an accused person is in itself no guarantee of the correctness of that evidence."

 

[27]       Counsel for the respondent contended that the appellants failed to put their version of the incident to the complainant, thereby depriving the complainant the opportunity to give answers to the evidence that was being challenged. While it is true that the first appellant gave a long account of the events, some of which was never put to the complainant in cross­ examination, one of the issues challenged in cross examination was that of the identity of the appellants and whether or not the hat the second appellant was wearing belonged to the complainant. It was common cause that the type of hat was fashionable and easily attainable. The complainant bought two similar ones in Bloemfontein and the second appellant purchased his in 2015.

[28]       In order to secure a conviction, the evidence of a single witness must be substantially satisfactory in all material respects, or unless there is corroboration from another source of evidence, S v Artman 1968 (3) SA 339(A) at 341 C. In determining the credibility of the single witness the court must look to the entire evidence presented, and ultimately the court must be satisfied that the guilt of the accused was proved beyond a reasonable doubt. It is my view that the state failed to discharge its onus and that the appeal on conviction be upheld in respect of both appellants.

[29]       In the result the following order is given:

1.       The appeal on conviction in respect of both appellant is upheld.

2.       The sentences imposed on 27 February 2017 of five years imprisonment are hereby set aside.

 

 

 

TLHAPI VV

(JUDGE OF THE HIGH COURT)

 

 

 

I agree,

 

 

 

HAUPT L

(ACTING JUDGE OF THE HIGH COURT)

 

 

 

MATTER HEARD ON                                           :           11 MAY 2020

JUDGMENT RESERVED ON                              :           11 MAY 2020

ATTORNEYS FOR THE APPELLANTS            :           LEGAL-AID SOUTH AFRICA

ATTORNEYS FOR THE RESPONDENTS         :           DIRECTOR OF PUBLIC

PROSECUTIONS

---