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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

CASE NUMBER: A248/2018

10/9/2020

 

In the matter between:

 

THABO STEVEN MTHIMUNYE                                                                     APPELLANT

 

and

 

THE STATE                                                                                                         RESPONDENT

 

JUDGMENT

 

TLHAPI J

 

INTRODUCTION

 

[1]        The appellant was convicted in the Regional Court, Gauteng on two counts, being  

Count 1 of Murder and Count 2 of Robbery with Aggravating Circumstances. He was

sentenced to imprisonment for 25 and 20 years respectively. It was not ordered that the

sentences run concurrently. Leave was granted on petition to appeal his convictions and

sentences.

 

[2]        The appellant initially appeared with two co-accused. The second accused died

during the trial and the third accused was found not guilty of both counts and he was

discharged.

 

[3]        At the trial the appellant pleaded not guilty to both counts and the formal admissions

made in terms of section 220 of the Criminal Procedure Act 51 of 1977 (as amended) related

to the identity of the deceased and to the cause of death.

 

 

BACKGROUND

[4]        Amos Sibiya (Mr Sibiya) was employed as a prison warder at the time of the incident.

On 1 February 1998 his brother Johan Sibiya (‘the deceased’) paid him a visit. Between

19:00 and 20:00 hours he accompanied the deceased on foot, to his place of residence.

There were no street lights in the area.  As they were conversing with each other they

stopped at some point as he was intending to turn back, because his brother had almost

reached his destination. They were still conversing with each other when he noticed a group

of four men approach them. One of them called his brother by his nickname Lombos and he

gained the impression that they knew each other. Two of the men were in possession of

firearms. None of the men were known to him. One of them who was in possession of a

firearm came towards him and robbed him of his firearm, which was tucked to his left, in

front, in a holster and under the T-shirt he was wearing. The man retreated and stood two

metres away from him.

 

[5]        Amos testified that he tried to retrieve his firearm from this person but he realised that

he was in possession of a firearm and, immediately several shots were fired. The other three

men stood about three to four metres away from him. He does not know who fired the shots,

the attack happened very quickly. The incident took place next to a wall of some residence.

He managed to scale the wall leaving his brother behind. He ran all the way to the police

station where the incident was reported. On arrival at the scene in the company of the police,

he came across the body of his brother who had succumbed to a gunshot wound. The police

took over the crime scene and retrieved spent cartridges.

 

[6]        Four months after the incident and while on duty at the Moderbee Prison, he

recognized the appellant among 70 or more prisoners who were admitted to the prison via

reception. In that area searches were conducted of the prisoners before admission into the

prison. He did not search the appellant but he confronted him and enquired about his

firearm. This identification of the appellant happened before he was called by the police at

Etwatwa to identify his firearm. At the same prison he also identified accused 2, five or six

months after identifying the appellant. At the trial he did a dock identification of the two men.

He did not know accused 3.

 

[7]        Mr Sibiya was informed that his firearm had been recovered. He confirmed the

details of his firearm licence which was issued on 97/12/10. The firearm was described as a

Norinko nine -millimetre parabellum number 507130 IO. The serial number had been

obliterated. When he was robbed, the magazine contained 15 rounds of bullets. He testified

that he immediately recognized the firearm as his and recalled only the last numbers of

the serial number inside the chamber, which he mentioned as 130 before he took the firearm

apart in the presence of Inspector Madela.

 

[8]        In cross examination he was asked at what time he accompanied his brother and he

stated that he did not think of the time but that it was slightly dark. Furthermore, he stated

that during the incident he concentrated more on the appellant and on the person next to

him. As soon as the appellant retreated after robbing him, his brother asked what was

happening and immediately shots were fired. When asked what was striking and what in the

features of the appellant made identification possible, his response was that he had seen

him on the day of incident but he could not give any other description. He denied having

participated with other prison warders in an assault on the appellant.                     

 

[9]        Mr Motsepe is a police officer attached to the ballistic unit of the Forensic Science

Laboratory as an examiner of firearms, ammunition and tool marks. On 25 May 1998 he

received five cartridges in a sealed envelope under Etwatwa Case 09/02/98. He did a

microscopic investigation and found that the five fired 9mm parabellum cartridge cases

marked by him 6910/98 B – F, were fired from the same firearm.

 

[10]      Mr Motswetsa is an Inspector attached to the Flying Squad Unit of the South African

Police at Springs. On 12 April 1998 while in the company of his colleague Inspector Greyling

they were summoned to a crime scene by radio. On their approach they noticed a movement

of people who were pointing towards an open veld and they saw accused 1 and 3 on the

other side of the veld voluntarily walking towards them. Accused 2 was not present. He is not

sure which of the accused arrived first, but both the accused were made to lie on the ground.

A firearm was retrieved from the first of the men to arrive and it was a nine- millimetre

Norinko firearm. Its serial numbers had been obliterated. Nothing was found on the second

man. After a search in the veld, a second firearm was found and its serial numbers had been

obliterated.

 

[11]      The two firearms were recorded into a Springs SAP 13 register by Inspector

Greyling. Accused 1 and 3 were arrested and charged with the unlawful possession of a

firearm. Mr Moswetsa testified that even though the incident had taken place a long time ago

he could still point out to the appellant and accused 3 as the men arrested on the 12 April

1998. He denied the version of the accused when it was put in cross examination that no

firearm was found in the possession of any of the two accused but, that it was community

members who handed over the firearm to the police.

 

[12]      According to Mr Greyling the arrests of the appellant and accused 3 occurred at

Welgedag Road in the Springs area. After the accused were pointed out to them by the

crowd. He and Mr Moswetsa gave chase as the accused were fleeing in different directions.

They were assisted by the group with the arrest. After the arrest they searched the accused

for firearms and none were found in their possession. However, the firearms were pointed

out by the crowd in the veldt. About five to ten metres from where they stood with the

accused they found a one NZ 75 9 millimetre pistol with no serial number and it had one

magazine with no bullets. The second firearm was a 9 millimetre Norinko pistol with one

magazine and one bullet and its model number was 201C.

 

[13]      The pistols were booked in at the Springs Police Station and he completed the

register on 98/04/12 and registered them in an SAP 13 register on 249. The pistols were

recorded under Springs case number 445/04/98. He did not recall if a gun residue test was

done on the accused or if fingerprints were taken or uplifted from the firearms. In cross

examination he denied Mr Moswetsa’s version that he searched and found a firearm on one

of the accused. He testified that it was Moswetsa who searched and found a firearm. He also

denied the version of the accused who alleged that only one firearm was found which was

brought to the police by the community members. He stated that at no time during the chase

did he see any of the accused drop a firearm.

 

[14]      Mr Madela was a witness called by the court. He was the investigating officer in the

murder and robbery case. He testified that while investigating another case he came across

a Springs case involving the appellant. He proceeded to Springs where the firearms in the

Springs case were handed over to him on 27 May 1999. He delivered the firearms to the

Forensic Laboratory in Springs under the Etwatwa MAS number 15/4/98. In cross

examination he testified that he needed to fetch the firearms in the Springs Case in order to

have them compared with the cartridges of the Etwatwa case number 09/02/1998 he had

been investigating. He could not recall under which number the exhibits were handed in at

the laboratory. In cross examination he explained that he obtained the firearms because of

the three individuals being the accused before court, who were involved in connection with

unlicensed firearms in Springs. It was pointed out to him that only two individuals were

involved in the Springs case. 

 

[15]      The section 212 affidavit of Inspector Willie Morne Odendaal was admitted as an

exhibit without objection. He stated that he examined one cartridge marked “B” received

under reference LAB 6910/98 Etwatwa MAS 09/02/98. After conducting microscopic tests

he found that the cartridge was fired from a 9 millimetre Parabellum Model NZ automatic

pistol, which was received under LAB 19934/98 Etwatwa MAS 15/04/ 98.

 

[16]      The appellant denied that he took part in the murder and robbery. He had no

knowledge of the incident. He did not know the deceased or anyone going by the name

Lombos. He testified that he had been awaiting trial on another matter when he was

detained at the Modderbee Prison. He met Mr Sibiya after three days of his arrival there.

He did not know him. The appellant testified that when accused 2 arrived at the prison he

was already serving a term of imprisonment and had been moved to C MAX. He knew

accused 2, they were friends and lived in the same area.

 

[17]      In cross examination he testified that he did not know Mr Sibiya prior to their

encounter in prison. He denied that Mr Sibiya had identified him amongst 70 or more

prisoners. Mr Sibiya and his warden friends approached him in his cell three days after his

arrest and arrival at the prison. They wanted to know his name and this was done on several

occasions. They also asked if he knew certain individuals. He was also assaulted by them in

his cell. They alleged he knew the people they were enquiring about. He reported the assault

to the Magistrate but nothing was done about it. He had forgotten the names of the said

warders involved in the assault. During 2002 he was charged with the present counts, which

was about three years after his encounter with Mr Sibiya at Modderbee Prison.

 

[18]      The issue to be determined is whether the identity of the appellant had been

established and whether the State had proved its case beyond a reasonable doubt.

 

THE LAW

 

[19]      It is trite law that the State bears the onus to prove the guilt of the accused beyond a

reasonable doubt. The accused bears no such onus and, if his version is reasonably

possibly true, he is entitled to receive the benefit of the doubt and has to be acquitted; S v

Van Der Meyden 1999 (1) SACR 447 (W); S v Shackell  2001 (2) SACR 185 (SCA) at

paragraph 30.

 

[20]      It is also 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); S v Monyane and Others

2008 SACR 543 (SCA) at paragraph 15.

 

  [21]    In the locus classicus, S v Mthethwa 1972 (3) SA 766 (A) at 768 A-C Holmes JA

stated the following:

 

            “Because of the fallibility of observation, evidence of identification is approached by

the Court with some caution. It is not enough for the identifying witness to be honest;

the reliability of observation must also 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 his prior knowledge of the

accused; the mobility scene; corroboration; suggestibility; the accused’s face; built

gait and dress; the result of identification parades, if any, and of course the

evidence by or on behalf of the accused. This 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 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) SA 307(AD)at 310C; S v Mehlape 1963(2) SA 29(AD).”

 

In R v Masemang 1950 (2) SA 488 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.” 

 

In S v Mehlape supra at 32 G-H and 33 A, the court took cognizance of what was stated in

R v Shekelele and Another 1953 (1) SA 636 (T) and quoted with approval in R v Dladla

And Others 1962 (1) SA 307(AD):

 

‘’…..but in my opinion it is neither desirable nor possible precisely to define the type

of question to be asked or factor to be investigated in all cases. The manner of

removing any reasonable possibility of error in any given case is a matter entirely to

be governed by the circumstances of the case. For example, it would usually be

pointless to ask a witness who has identified a person whom he well knows to

describe clothing or physical features or peculiarities; what is important is the

opportunity he had of recognizing that person. In other circumstances such questions

may be most pertinent. But what is always important in a case in which a witness

says he knew the person he saw, is to test both any degree of prior acquaintance or

knowledge claimed and the opportunity for a correct identification, having regard to

the circumstances of the case; see the remarks of James J quoted with approval in

the judgment of Holmes JA in R v Dladla and Others”

 

[22]      It was contended by Mr Augustyn for the appellant that the identification of the

appellant by Mr Sibiya, four months after the incident took place, was disputed especially

where, according to the record he could not give particulars as to how he positively identified

the appellant. Mr Mariot for the respondent contended that there was sufficient time for

observation and identification of the appellant. This he said was corroborated by the

independent informal identification at prison among the 70 prisoners and the recovery of the

firearm which dispelled the suggestion that identification relied only on the evidence of a

single witness. It was further contended that the appellant never provided a defence of an

alibi.

 

[23]      In my view, a court should always approach with caution the evidence of identity of a

single witness, and not generalize as to what the actual evidence adduced was in order to

confirm identity. The guidelines in S v Mthethwa supra were mentioned in order to alert our

courts of the need to apply caution in matters of identity especially where such evidence is

that of a single witness.  Mr Sibiya testified that it was between 19:00 and 20:00 and that

there were no street lights. On the aspect of visibility in his evidence in chief he responded

as follows:

            “Goed en hierdie was in the aand. Is daar enige beligting in die omgewing? Nee daar

            was geen;”

 

On the possible identity of those who were in possession of firearms the question was:

           

            “Watter twee haal vuurwapens uit? – Ek is nie seker nie edelagbare omdat ons besig

was om te gesels met my broer en toe die mense van elke kant ons genader het en

by ons kom staan en ek kan nie met sekerheid se edelgabare watter van die vier

mense het vuurwapens uitgehaal.”

 

This same answer was given during cross examination when questioned on who of the four

men arrived or approached first.

 

[24]      Mr Sibiya refers to his attackers as “hulle”. He was uncertain how the one who took

his firearm was clad “ek het nie opgelet nie edelagbare dit het so vining gebeur.” It was only

after he was prompted by a question from the State that he did a doc identification of the

appellant, as the one who took his firearm and the one who was also in possession of a

firearm on arrival where he stood with the deceased. He also identified accused 2 as the

other person who was in possession of a firearm. Later Mr Sibiya testified that he could

identify the appellant and accused 2 because it was not so dark and that he could see a

person who stood in front of him, the appellant stood 2 metres from him and accused 2, 4

metres away.

 

[25]      In my view, if it was slightly dark and where Mr Sibiya was certain of his identification,

his dock identification should have been spontaneous and not prompted by a question from

the prosecutor, more so in light of the fact that he testified that he also identified the

appellant and accused 2 in prison. He should not have had any difficulty in cross

examination in positively referring to his attackers as being the appellant and accused 2.

Instead, he once more displayed uncertainty about who of the attackers in particular were in

possession of the firearms apart from his own and, whom he saw firing the shots. He said it

happened too quickly and that he did not see who fired the shots. Then he said the appellant

fired a shot, but a few questions later he testified that he did not see who fired the shots.

 

[26]      Where it concerns who robbed him of his firearm, one needs to take into account 

the surrounding circumstances, the poor visibility, the speed within which the incident took

place, the fact that he had never known or seen the accused before the incident, whether he

was able to positively and with assurance identify the accused. The answers Mr Sibiya gave

in cross examination were not evidence per se but, served to test the credibility of his

evidence in chief and when evaluated by the court, should give assurance to the court that

his identification of the accused could be relied upon.

 

[27]      Counsel for the respondent contended that an informal identification of the appellant

occurred when Mr Sibiya identified the appellant at prison amongst more than 70 prisoners.

In my view, in order to give assurance, certain guarantees and fairness to the person

identified, more than such a submission or, more that what was testified to by Mr Sibiya was

required. In ordinary identification parades conducted by the police, participants are carefully

selected according to height, age, appearances. These parades do not always guarantee

that the correct suspect would be identified, even where a witness appeared to be certain

that there was ample time to observe a suspect during the incident.

 

[28]      Mr Sibiya testified that he did not recall the date on which this identification took

place and that he just knew that the appellant was the one who robbed him of his firearm. To

a repeated question whether he had immediately notified the police, in particular to the

investigating officer, instead of answering the question, on two occasions he responded that

he enquired only about his firearm. In my view a much more serious offence took place,

which was the murder of his brother and the most reasonable reaction would have been to

immediately report the matter to the police. Instead he was only interested in his firearm. He

did not mention when it was that he reported his identification to the police.

 

[29]      There is absolutely no basis for what I find to be stereotyping, in a finding that Mr

Sibiya as a prison warder, who was exposed to working with many prisoners on a daily basis

would find it easier to identify people by their facial features as was stated in the following

lines where the learned magistrate proceeded to give a description of the appellant:

 

            “Nou kyk die hof na die getuienis van Mnr Sibiya met betrekking tot die identifikasie

van die beskuldigde dan is dit vir die hof opvallend  dat Mr Sibiya ‘n lid van die

Korrektiewe Dienste wat op ‘n daaglikse basis met ‘n groot hoeveelheid mense werk

Die hof sou dus verwag dat hy gewoond is aan verskillende gelaatstrekke……”

 

Then the learned Magistrate proceeded to give her own description of the appellant

in the following lines:

 

“Wat die voorkoms van die beskuldigde aanbetref is beskudigde 1 besonder of hy

skep die indruk van besonder groot ‘n postuur. Hy het ‘n baie prominente en sterk

gesig. Die voorval was vyf jaar gelede maar ten tye van die aflegging van die

getuienis het hy onmiddelik die beskuldigde weer uitgewys.”

 

[30]      Having dealt with the issue of identification, I now turn to the events of 12 April 1998

when the appellant and accused 2 were arrested. The appellant denies that he was

identified while in the presence of more than 70 prisoners. His version is that he was

approached by Mr Sibiya and his warder friends in his cell. He was assaulted and they

wanted his name and information about other individuals. This also occurred in April

1998. Of importance is to consider whether the trial court properly considered the relevance

of the firearms allegedly found on 12 April 1998 to the incident of 1 February 1998. The

learned magistrate stated:

 

“Vir die doeleindes van die relevansie van daardie vuurwapens met betrekking tot

hierdie saak voldoende dat een van daardie vuurwapens wel verbind word met die

toneel waar die oorledene geskiet is. Die blote feit dat een van daardie vuurwapens

verbind word met die doppies wat gevuur is waar die oorledene geskiet is, is dit vir

die hof voldoende stawing vir die identifikasie van die persone wat teenwoording

was ten tye van daardie voorval.

Dit is hoogs onwaarskynlik dat Mnr Sibiya sou geweet het dat die twee beskuldigdes

of beskuldigde voor die hof vandag dan spesifiek gearresteer was met betrekking tot

‘n vuurwapen wat op daardie toneel gebruik was.”

 

 

[31]      The above seems to rely on circumstantial evidence from which the inference of guilt

was drawn. It is trite that the cardinal rules regarding inferential reasoning was stated in R v

Blom 1939 AD 188 at 202 where the following was said:

 

“(1) The inference sought to be drawn must be consistent with all the proved facts. If

        it is not the inference cannot be drawn.

 

 (2) The proved facts should be such that they exclude every reasonable inference

       from them save the one sought to be drawn. If they do not exclude other

       reasonable inferences, then there must be a doubt whether the inference sought

       to be drawn is correct.”

 

[32]      The question is, whether the facts relied upon for conviction and from which the

inferences were drawn were proved beyond a reasonable doubt. In other words, in order to

secure a conviction, the evidence adduced should pass the criteria and principles set out in

R v Blom supra.  Whether the appellant and accused 3 were found in possession of firearms

used in the murder and robbery depends on the evidence of Mr Moswetsa and Mr Greyling.

They differed on how the arrests of the appellant and accused 3 took place and they differed

on the possession of the firearms and as to where the firearms were found on arrest. The

appellant testified that the firearms were brought to the police by a group of people. No

evidence was adduced from any other person from the group of people. The most important

consideration is that no fingerprints were uplifted from the spent cartridges taken from the

scene on 1 February 1998 and also from the firearms retrieved on 12 April 1998 and, no

gun residue tests were done on the appellant and accused 3 on 12 April 1998.  It had to be

proved that there was physical control and possession of the firearms for an inference of

guilt to be made. Accused 2 was not implicated in the firearm incident.

 

[33]      On 25 May 1998 Inspector Motsepe examined the spent cartridges and found that

they were fired from the same firearm. It is also during the latter month when Mr Sibiya

identified the appellant as a perpetrator in the February 1998 incident. The appellant testified

that, when he had an encounter with Mr Sibiya and his warder friends, he had not been

imprisoned for the incident of 12 April 1998 and that he was moved from the Modderbee to C

Max to serve a term of imprisonment on a different offence at the time accused 2 was

detained at Modderbee.

 

[34]      On 25 May 1999 Mr Madela, who was attached to the Etwatwa Police in Benoni

travelled to Springs Police Station where he took possession of the firearms booked in by Mr

Greyling. This occurred more than a year after Mr Sibiya allegedly reported his identification

of the appellant. Mr Greyling testified that the NZ 9 millimetre firearm had an empty

magazine, meaning that no bullets were found in the firearm. Inspector Odendaal received a

cartridge market “B” from the batch examined by Inspector Motsepe, however, cartridge “B”

and the firearms were received by the laboratory under different Etwatwa MAS numbers

09/02/1998 and 15/04/98 respectively. Mr Greyling testified that a case was opened in

respect of the firearms in Springs on 12 April 1998 with MAS 445/4/98 recorded in the

Occurrence Book register.

 

[35]      Inspector Odendaal opined that he examined cartridge  B  and found that it had been

fired from the NZ 9 millimetre firearm. His findings at paragraph 4 are recorded as follows:

 

“Bogenoemde resultaat is behaal op ‘n wyse wat ‘n bedrewenheid in sekere

 vertakkings van natuurkunde en Ballistiek vereis.”

 

While there was no objection raised on behalf of the appellant to the handing in of Inspector

Odendaal’s affidavit, I find it to be lacking in explaining how he concluded that the cartridge

was fired from the NZ 9 millimetre pistol, an explanation sufficient to satisfy the court and the

accused as to how that conclusion was arrived at. In my view the evidence relating to the

firearms should have been scrutinized by the court before relying on what I would deem to

be the say so of the witnesses. An inference cannot be drawn that the firearms or one of

them had been used in the murder and robbery.  

 

[36]      On considering the evidence as a whole, the state failed to prove its case beyond a

reasonable doubt. It is my view the appeaI against conviction and sentence should succeed

and consequently the sentences imposed by the Regional Court, Gauteng must be set

aside.

 

[37]      In the result the following order is granted:

 

1.    The appeal against conviction and sentence is upheld.

 

2.    The sentences of 25 and 20 years imprisonment are set aside.

 

 

 

TLHAPI VV

(JUDGE OF THE HIGH COURT)

 

 

 

I agree,

 

RAULINGA T J

(JUDGE OF THE HIGH COURT)

 

 

I agree,

 

 

BASSON A C

(JUDGE OF THE HIGH COURT)

 

 

 

 

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