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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISON, PRETORIA)

 

  CASE NO.: A144/2018

 

In the matter between:

SIPHO NGWENYA                                                                                                            Appellant

 

And

                       

THE STATE                                                                                                                       Respondent

 

JUDGEMENT

NQUMSE AJ

 

[1]     The appellant was convicted in the Gauteng regional court on the following charges:

              I.         One count of robbery with aggravating circumstances;

            II.         One count of murder and

          III.         Two counts of attempted murder.

 

[2]     Following his conviction, he was sentenced to 15 years in respect of the robbery charge; life imprisonment in respect of the murder charge the attempted murder on the life of Vera Magoo and 4 years in respect in respect of the attempted murder on the life of Pradeep Magoo.

 

[3]     He now appeals with the leave of the court against his conviction and sentence.

 

[4]     The evidence tendered by the prosecution revealed that all the charges arose from an incident that allegedly took place at the shoe repair shop of Mr Magoo, the deceased. The shop also renders service to cut keys.

 

[5]     Mrs Vera Magoo who testified through a CCTV facility stated that on 15 March 2016 she and her husband were seated in their shop in front of the counter, when two males entered and one of them needed a key in his possession to be cut. She took the key and gave it to her husband to cut it. 

 

[6]     The man who had a key followed her husband behind the counter whilst the other one stood at the door inside the shop. Whilst waiting for her husband who had gone to cut the key, the man at the door was facing her and made a sign to her to give him money by rubbing his two fingers against each other at the same time he instructed her at the same time he instructed her with a gun to get behind the counter. She tried to establish how far her husband was with the cutting of the key. She heard a number of shots being fired. Whilst not certain on the direction where the gunshots came from, one of the shots was from the direction of the man who was at the door.

 

[7]     She testified that she was hit by the shots as a result of which she suffered a scar on the nose, she also lost part of her tongue as a result of a bullet that struck her and got lodged behind the left jaw, and her jaw was cracked in three different places. And as a result of this injury a steel plate was inserted in her jaw, she also sustained a bullet wound on her left forefinger as well as an injury above her breast. During the shooting she fell on the bench she was sitted on before the man entered the shop. According to her, she lost consciousness for two seconds, she thereafter walked out of the shop.

 

[8]     When she looked again she saw both men running down the street and they were still firing shots indiscriminately towards the direction of the shop. As the two men were running, they were chased by her son, Pradeep. She therefore sat down over caved by shock.

 

[9]     She was later taken by her son, Pradeep and other family members to hospital where she was admitted for two months.

 

[10]   Upon her return from hospital, she was taken to an identity parade where she pointed out one of her assailants.

 

[11]   During her testimony she was invited to point out in court the person she had pointed out at identity parade and she pointed out the accused who was sitted in the dock.

 

[12]   Under cross examination, she stated that she could identify one of her assailants because of a distinct feature of a lump on his cheek.

 

[13]   Pradeep Magoo the son Mrs Vera Magoo testified confirmed that whilst at his shop which is two stores away from his parent’s shop, he heard gun shots close to his father’s shop. He ran towards his father’s shop. When nearer to the shop he saw two black males who were running out of the shop. One of them was taller than the other and the shorter one was carrying a firearm.

 

[14]   He later attended an identity parade in which he pointed out both men. He learned that the shorter one who was called Shorty died in a shootout with the police and the other one is the accused before court.

 

[15]   On the fateful day of his father’s killing, it was about 14H00 when he saw the accused and Shorty running out of his father’s shop. He gave chase. He was in possession of a firearm. He took this firearm from one of his patrons from his shop/tavern. Whilst busy chasing them, they turned their faces towards him and they started to fire shots at him. He managed to avoid the bullets that were directed at him by hiding behind a stationery vehicle on the street.

 

[16]   He stopped a minibus that was travelling on the road. He got into it and asked the driver to give chase. Whilst giving chase with the minibus the two men turned again towards them and fired shots towards them and thereafter disappeared into the squatter camp underneath a bridge.

 

[17]   They went back to his father’s shop where he found his mother full of blood sitting on a chair half-slumped and his father was lying on his stomach in a pool of blood. His mother was taken to hospital.

 

[18]   He further stated that when the appellant and Shorty turned towards him, that gave him the opportunity to see their faces at a distance of between ten to fifteen meters. When he was asked by the prosecutor to mention any distinct features of the accused and Shorty that were identifiable on them, he said Shorty appeared to have Chinese eyes and the nose of the appellant was distinctive. He was however not asked to explain in what way was it distinctive. He further said the appellant’s head was egg shaped.

 

[19]   Under cross examination he said he does not know the appellant personally but he may have seen his face at his tavern. He was pressed further to confirm if he had seen the face of the appellant before the incident. He responded in the affirmative and further gave an explanation that he could have seen him at his tavern or around Actonville or Wattville which is a very small place. When asked if he had informed the police that one of his father’s killers is someone he had seen before, he said he probably may not have told the police. He also does not remember mentioning it in his statement that was taken down by the police.

 

[20]   He further confirmed that when he was at the identity parade, he knew he had seen the face of the appellant before the incident. When it was put to him that the appellant knew him before the incident of the shooting, he said that was possible because he was a famous person. It was further put to him that he could have told the police before the identity parade that he had seen the face of the appellant before the incident. He said he is not sure if he had told them or not neither can he confirm remembering that he had seen the face of the appellant at that stage. He gave a dubious answer when asked whether it dawned in him at the identity parade that he had seen the face of the perpetrator before the incident. His reply was that he truly cannot say when, the only comfort he had is to know that the perpetrator is behind bars, because at some point the appellant and his companion escaped from court and that caused them to live in fear. The incident of their escape was reported on newspapers. He denied that the appellant tried to sell him a radio nor borrowed money from him as alleged by the appellant.

 

[22]   The magistrate asked him when the appellant and Shorty turned around to face him, and whilst firing shots at him, for how long did they face him. He said it was probably for a duration of 10 to 15 seconds. The court further asked him when he was in the kombi or minibus chasing the appellant and his companion and when Shorty turned to fire shots at them, for how long did it take and what was the distance between them. He said when he heard the shots, he estimates their duration to have been 10 - 15 seconds and they were at a distance of about 10 meters away from each other and the chase was over a distance of about 50 meters. It took about half a minute.

 

[23]   The evidence of warrant officer is to the effect that he held an identity parade in respect of Mr Magoo who according to him had pointed out the appellant.

 

[24]   Captain Motshegwa testified with regard to an identity parade she held in respect of Pradeep Magoo who had pointed out both the appellant and Siphamandla Dlamini albeit protested by both accused on the basis that the witness did not want to touch them physically and that the witness knew both of them very well.

 

[25]   Constable Mashabela, who was the investigator of the case stated that both the appellant and Siphamandla were incarcerated in Boksburg in respect of another matter.  On 15 April he proceeded to Boksburg police station in order to charge both of them. Of importance is the description he had received from both Mrs Magoo and Pradeep which caused him to charge the appellant and Siphamandla.

 

[26]   According to Mashabela he denies taking photographs of the accused whilst they were in custody, however, he cannot dispute it if they may have been taken by the crime intelligence unit. He was asked by the prosecutor to explain the description he had been given which linked the accused to the crime. He said both Mrs Magoo and Pradeep said the following and I quote ‘he is tall and slender, and he is dark, he is a little bit fair in complexion.’

 

[27]   It has to be borne in mind that the witness was not required to explain further as to who was tall and dark, slander and fair. He just gave a general description and that was all. The prosecution also asked Mashabela whether he had a suspect in mind as a result of the description he had been given. His response was, he did not have a suspect in mind. What led him to the suspects is as a result of another matter in which they were suspects and according to him he noticed the same modus operandi in the commission of the crime, which is the use of guns during the robbery.

 

[28]   Warrant Makane testified that he assisted Mashabela in charging the accused and there were no photographs of the accused taken during that time.

 

[29]   At the close of the state case, the appellant testified in his favor that on the date of the incident he was at his home. Whilst there a certain Thabiso came to buy cigarettes from him and informed him about the incident that happened at the Magoo family. He knew Pradeep from his tavern. Pradeep was also used to visit him at his place. Pradeep visited him when he was selling a radio to him but they could not agree on the price thereof. The second instance Pradeep joined him and his friends and sister at his home was when they were consuming beer. The third time is when he had gone to Pradeep’s tavern to pawn his vacuum cleaner for a loan of R100. Pradeep became interested in the vacuum cleaner and instructed him to bring it to his tavern.

 

[30]   He further testified that he was arrested and kept at the Boksburg police station for an unrelated matter when he got a visit from the investigator who informed him of the incident that happened at Benoni and was linking him to that incident. As a result pictures of him were taken using their cellphones. Subsequently, the investigating officer returned the following day and charged him with 9 offences and was thereafter taken to an identity parade.

 

[31]   At the identity parade he was pointed out by Pradeep. He thinks that he was pointed out by both Pradeep and Mrs Magoo as a result of his pictures that were taken by the police and which they may have seen. He denies any involvement in the killing of Mr Magoo and the robbery that happened at his shop.

 

[32]   In clarification questions by the court, he confirmed having a lump on his left cheekbone which would have been there and on 15 March 2016.

 

[33]   Anna Ngwenya, a sister of the appellant testified that on 15 March 2016 she was at her home together with the appellant when at about 16H00, Thabiso came to their place to buy cigarettes. Whilst he was there, he related to the appellant the incident that happened at the Magoo’s.

 

[34]   She further testified that she knows Pradeep from his tavern and he had visited her home on two occasions. The first time is when she was from Vosloorus and found him consuming alcohol with the appellant with six others whose names are Sipho, Phindele, Thomas and Mahlatsi at her home. The second occasion is when she saw Pradeep inside her yard with the appellant.

 

[35]   During cross examination she conceded that she was in court during the testimony of some of the witnesses of the state, however, she was told to wait outside when the appellant testified. She was subjected to a long drawn questioning from the prosecutor for insisting that that she did not hear the testimony of other witnesses despite having been in court. Most of the other questions from the prosecutor were of little assistance in the matter and were consequential to the issues which are germane.

 

[36]   In clarification by the court which was made about the distance from the Magoo’s shoe repair shop and the tavern of Pradeep. The witness said she estimates the distance to be 200 meters whilst the magistrate and the prosecutor agreed that according to Pradeep they were two doors away from each other. This is however contrary to the evidence of Pradeep who said that his store is two stores away from that of his parents[1].

 

[37]   It is on the basis of the above facts that the magistrate convicted the appellant.

 

[38]   Both counsel for the appellant and for the respondent submitted comprehensive heads of argument for which we are indebted. It is trite that the state bears the onus to prove the guilt of the accused beyond a reasonable doubt (see Phallo and Others[2]). This long standing principle of proof on the state was propounded in R v Difford[3]  almost a century ago thus:

“It is equally clear that no onus rests on the accused to convince the court of any explanation if he gives an explanation, even if that explanation be improbable, the court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but that beyond any reasonable doubt it is false. If there is any reasonable possibility of his explanation being true, then he is entitled to his acquittal.”

 

[39]   Dealing with proof beyond a reasonable doubt in S v Clegg[4] which was referred to by counsel for the defendant, the court said: “proof beyond reasonable doubt cannot be precisely defined, but it can well be said that it is a doubt which exists because of probabilities which can be regarded as reasonable on the ground of generally accepted human knowledge and experience. Proof beyond reasonable doubt cannot be put on the same level as proof beyond the slightest doubt, because the onus of adducing proof as high as that would in practice lead to defeating the ends of justice”

 

[40]   What emerges as being central to this appeal is the issue of identification. The appellant’s counsel argued that it has not been established by the prosecution how long the robbery took place and therefore no indication that the Magoo’s had sufficient time to observe the assailants. It was further submitted that Mr Magoo, could not have had sufficient time to observe the attackers given the circumstances under which he had to observe them and the limited time he had.

 

[41]   It was further submitted on behalf of the appellant that both Mrs Magoo and the son were not certain about the description of their assailants. The respondent is further criticized on its reliance on the evidence of common purpose which was never indicated in the charge sheet when it was put to the appellant nor was there any evidence led before court which relates to the planning of the attack and robbery by the assailants or their state of mind before entering the shop to carry out their attack.

 

[42]   Counsel for the respondent replying ostensibly on S v Mlambo[5] and S v Ntsele[6] submitted that the circumstantial evidence links the appellant directly to the commission of the crime and it was further argued that the evidence of the two complainants, Mrs and Mr Magoo pointed to the guilt of the appellant.

 

[43]   As a departure point in dealing with the evidence of identification, it is instructive to consider the approach as propounded in S v Mthethwa[7] where the court held:

 

“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 also be tested. This depends on various factors, such as lighting, visibility, 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, mobility of the scene; corroboration; suggestibility; the accused’s face, voice, built, gait, and dress, the results of the identification parades of 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 Masemang, 1950 (2) SA 488 (AD); R v Dladla and others 1962 (1) 301 (AD) at page 310; S v Mehlape 1963(2) SA 29 (AD)”.

 

[44]   In this matter the learned magistrate has to a large extent relied on the identification of the appellant by both complainants and their credibility which the court found to be impressive. This is borne out in the findings of the learned magistrate as follows:

 

“On a conspectus of the evidence as a whole, the evidence of the Magoo’s has satisfied the court that the necessary degree of reliability that has been demanded in the authorities. They were certain of the identification and had given good reasons for their certainty, they had more than adequate opportunity in good lighting of seing their attacker and had been face to face with him at close quarter[8].” (Sic)      

 

[45]   In the following paragraphs of his judgment, the learned magistrate recorded his findings as follows:

“Dlamini shot at the Magoo’s repeatedly and the deceased sustained a gunshot wound to the skull. Both of them fled from the shop and ran together down the street when Dlamini and the accused turned around and Pradeep Magoo. Dlamini shot three time at Pradeep Magoo while the deceased looked on.”[9] (Sic)

 

[46]   The findings of the learned magistrate are problematic since they lack support from the evidence that is recorded in the following respects.

 

[47]   Pradeep Magoo starts his evidence by saying he saw two men in his father’s shop. Shorty (whose real names are Siphamandla Dlamini) had a firearm in his hand and did not see anything in the hands of the appellant. He gave chase to these men during which they both turned the corner. Whilst the two men were running, they turned around and Siphamandla Dlamini started shooting. What can be ascertained without any difficulty is that the person who carried a firearm and who fired shots is Dlamini not the appellant.

 

[48]   Whereas Mrs Magoo’s testimony, contrary to Pradeep’s says ‘the one I pointed walked behind my husband behind the counter, as he was going to cut the key and as I was approaching the door, the one at the door had his hands against the waist and his stomach, he had a firearm.[10] She further said, ‘she is not able to tell Shorty fired the shots but one was from somewhere from the one that was at the door’. The evidence on record show that when she was required by the prosecutor to give certainty as to who had shot her, she said ‘I can’t really say which one shot, but I just heard shots’[11].

 

[49]   Later on in her evidence she was asked by the prosecutor if she can be able to point out the person she had pointed out at the identity parade, she was asked to leave the CCTV room from where she gave her testimony to come in to the court room where she was invited to point at that person. I find it necessary to quote the question by the prosecutor which says “you now see the few people here, can you just please look around and tell us who the person you pointed at is, just look around”. She point out the accused. Her dock identification must be considered in light of what she had earlier said, that the one she had pointed out at the identity parade is the one who walked behind her husband not the appellant who remained at the door.

 

[50]   In cross examination Mrs Magoo was asked the following question: ‘There is no distinct features about him, you just know that he is the one who gave you the key’; her response is that ‘well he has a distinct mark on the cheek. And besides that, I looked at him because I took the key from him’[12]. This response contradicts her earlier version in examination in chief when she was led by the prosecution as follows:

‘Alright, who is the one who that you assisted, the one who had a key? His response was: ‘The one I pointed out’. She confirmed and I referred earlier in this judgement where she said the one I pointed walked behind my husband. Surely if she took the key from the one who walked behind her husband whilst the appellant was left standing at the door, her response on an examination that ‘she took the key from the one who had a lump on the cheek, who happens to be the appellant  should cast doubt on the certainty of her observations.

 

[51]   What complicates the matter further, is the State’s case in the evidence of Pradeep who says, he saw the two men in his father’s shop and the one who carried a firearm and who fired shots is not the appellant, who accordingly to Mrs Magoo was carrying a firearm but it was Siphamandla Dlamini.

 

[52]   Of great concern related to identification parade is the generalization in the evidence of Mashabela regarding the description of the assailants which he had been given by the witnesses. It is necessary to refer to the record in this appeal regard.

 

[53]   Mashabela was asked by the prosecutor as follows: ‘Mr Mashabela, tell me before I conclude how we would connect the accused before the 5^th of April meaning the date of arrest, how do we link him to the present case? The response is ‘we link the accused and his co-accused with their description that we got from the witnesses[13]

 

[54]   In the following paragraph the question is ‘Alright the descriptions from whom? If you say witnesses can you be specific? Yes, the witnesses are also here, Mr Magoo was one of the witnesses who gave me the description of the accused’. The next question was who else? The response is ‘And Mrs Magoo’. Significantly and most importantly, is the question that follows: ‘What description is that, that was given to you’? Reply, ‘they gave me how the accused looked and his height’. The prosecutor further asked ‘Okay, are you able to be specific as to the height and the looks? If you are able to do so? The response is ‘Ja, they told me that he is tall and slender and he is dark, he is a little bit fair in complexion[14]’

 

[55]   Pradeep’s description of Dlamini and the appellant which according to the learned magistrate was satisfactory and sufficient gives a total different picture. He said Dlamini had slit eyes and the appellant’s head was egg shaped with a distinct nose. He was not required to explain what was distinct about his nose, nor did the learned magistrate note on the record any distinct feature of his nose as it did with the lump on his cheek. Neither was there any record made on the head that was alleged to be egg shaped. There is no recording confirming the description by Pradeep. Nor was Mrs Magoo tested in evidence if she noticed anything peculiar with the nose of the appellant or his head.

 

[56]   What I also find curious is that none of these feature were mentioned by Mrs Magoo who also claim to have been in a position to observe the appellant and Dlamini.

 

[57]   Counsel for the State conceded that the prosecution as well as the court, regrettably failed to pay attention on the aspects above, instead according to her, they were left ‘hanging’ which resulted in gaps in the description of the robbers. I agree fully with the submission. She however, submitted that Pradeep appears to have had sufficient time to observe the assailants albeit with the minimal time of seconds and less than a minute he had to observe them and despite his circumstances of having to observe them whilst they were firing shots at him. When counsel was invited to explain the contradictions between the evidence of complainants on who carried the firearm, she submitted that the court should be mindful that Mrs Magoo was a 74 years old faced with her ordeal, she further argued that a possibility exists that the firearm might have exchanged hands between the robbers. This proposition is not sustained by evidence and it is speculative. Equally, I find the invitation that the court should consider Mrs Magoo’s age as an explanation for deficiencies in her evidence to be self-destructive for the state and in fact serves to discount any reliability on Mrs Magoo’s ability to properly observe the attackers.

 

[58]   The final point that needs to be made is the description given by Pradeep on the identification features that he gave in his evidence in court which were not recorded anywhere in his police statement nor were they confirmed by the investigating officer during his testimony in court. This becomes important since it is on the basis of the description given to the police that the appellant was linked to the crime. It is in this context that Mashabela said the robbers were linked only through their modus operandi which could have also not have been sufficient to prove the identity of the appellant and Dlamini without any further information.

 

[59]   The learned magistrate has found correctly that Mrs Magoo was a single witness which requires her evidence to be treated with caution[15]. In this regard he referred to the applicable authorities to assist the court in the assessment of such evidence[16]

 

[60]   As propounded in Dhlumayo above. If there was no misdirection of facts by the trial court, the point of departure is that its conclusion was correct. This long standing principle of our law has been recently restated in Makate v Vodacom[17] when Jafta J stated as follows:

 

“[38] In our system, as in many similar systems of appeal, the cold record placed before the appeal court does not capture all that occurred at the trial.  The disadvantage is that the appeal court is denied the opportunity of observing witnesses testify and drawing its own inferences from their demeanor and body language.  On the contrary, this is the advantage enjoyed by every trial court.  Hence an appeal court must defer to the trial court when it comes to factual findings.” However in the subsequent paragraph the court said:

“But even in the appeal, the deference afforded to a trial court’s credibility findings must not be overstated.  If it emerges from the record that the trial court misdirected itself on the facts or that it came to a wrong conclusion, the appellate court is duty-bound to overrule factual findings of the trial court so as to do justice to the case”. The court referred to its decision in Bernet [18] where it stressed that the principle that the court will not ordinarily interfere, with a factual finding by a trial court is not an inflexible rule. The rule should not be used to tie the hands of the appellate court. Thus when there is a misdirection on the facts by the trial court the appellate court is entitled to disregard the findings on facts and come to its own conclusion on the facts as they appear on the record similarly where the appellate court is convinced that the conclusion reached by the trial court is clearly wrong, it will reserve it”.

 

[61]   It is trite that circumstantial evidence is premised on two cardinal rules as propounded in R v Blom[19] as follows:

 

a)   The inference to be drawn must be consistent with all the proven facts, If it is not, then the inference cannot be drawn;

b)   The proved facts should be such that they exclude every reasonable inference from them save the are sought to be drawn. If they do not exclude other reasonable inferences, then there must be doubt whether the inferences sought to be drawn is correct.

 

[62]   I found myself constrained to agree with the submissions by the appellant’s counsel that the circumstantial evidence alone in this matter does not prove the guilt of the appellant or his involvement in the crime committed it is not the only reasonable inference that can be drawn from all the proven facts.

 

[63]   The appellant’s version that he was at home is supported by his alibi witness. The rejection of his alibi witness without a credibility finding that her evidence is false, but only on her uncertainty as to when Thabiso had arrived at her home and why she did not inform the police that she was at home with appellant absent, such an enquiry is not justified.

 

[64]   Given the totality of the evidence I do not find a proper bases for the rejection of the appellant’s version as not reasonably possibly true. Instead I find that the prosecution’s case was not adequately presented in many respects which are apparent and referred to above. The deficiencies highlighted are adverse to the case of the prosecution. The consequence of which the learned magistrate could not have found the that the state has proved its case beyond reasonable doubt.

 

[65]   In conclusion I find it necessary to make this remark. Whilst acknowledging the painstaking judgment of the learned magistrate, the state has failed to prove that the appellant was one of the robbers that killed the deceased and shot the complainants.

 

[66]   In light of the findings of the court, this obviates the need to deal with other aspects that were raised, such as a common purpose.

 

[67]   As I conclude, I am reminded of the remarks by Plasket J (as he there was) when he said:

 

“When a court finds that the guilt of an accused has not been proven beyond a reasonable doubt, that accused is entitled to an acquittal even if there may be a suspicion that he was indeed the perpetrator of the crime in question. That is an inevitable sequence of living in a society in which the freedom and dignity of the individual are properly protected and respected”[20]   

 

[68]   In the result the appeal is upheld.

 

Order

1.    The conviction in respect of all the counts as well as the consequent sentences are hereby set aside.     

2.    The accused is found not guilty and is therefore discharged.                           

 

 

 

M NQUMSE AJ

ACTING JUDGE OF THE HIGH COURT

 

I agree

 

H DEVOS

JUDGE OF THE HIGH COURT

 

It is so ordered

 

For the Appellants                 : M G Botha

Instructed by                          : Legal Aid South Africa

 

For the Respondent                :  S D Ngobeni

Instructed by                          : National Director of Public Prosecution

 

Heard on                                :  27 January 2022

Judgement handed down o   : 10 February 2022

 

 

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