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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO: CA&R 55/2014

DATE HEARD: 6 AUGUST 2014

DATE DELIVERED: 8 AUGUST 2014

In the matter between

SIYABONGA MARTINS                                                                                             Appellant

AND

THE STATE                                                                                                            Respondent

Criminal appeal – against conviction on charge of murder – evidence of identifying eyewitnesses – failure to carefully assess reliability of evidence in face of material discrepancies constitutes misdirection – evidence of alibi witness disregarded despite finding that witness honest – no basis in casu to reject evidence of appellant and alibi witness as not being reasonably possibly true – misdirection as to approach to test in criminal cases – appeal upheld – conviction set aside.

JUDGMENT

GOOSEN, J.

[1] The appellant was convicted of murder and sentenced to 8 years imprisonment. Leave to appeal against the conviction was granted on petition.

[2] The appellant was convicted on the strength of the evidence of two witnesses who identified him as the assailant who attacked and killed the deceased. His defence was that he was not involved in the commission of the offence and that on the night in question he was at home with his girlfriend. He tendered in his defence the evidence of his girlfriend, who confirmed that the appellant was at home from early in the evening drinking with a friend and thereafter went to bed. She locked the house and then went to bed with him. She woke during the course of the night to go to the bathroom and the appellant was still asleep in the bed alongside her. She woke up at 05h30 in the morning, woke the appellant and he thereafter left for work.

[3] The evidence of the two state witnesses was to the following effect: the two witnesses, Ms F. and Ms N. were at home in the company of Mrs N.’s son, S. drinking alcohol. During the early hours of the morning they heard someone crying and the three of them went to the window to look out into the street beyond. Ms F. said that she saw the appellant standing on the pavement at the corner outside of their yard. A person was lying on the ground in front of him and there was a dog standing nearby. The person on the ground cried out “Kwekwe don’t kill me”. She recognised the appellant as a person whom she knows to go by the nickname “Kwekwe”. She also recognised the dog as being a dog that walks with Kwekwe. She left the window and went back into the room and then went to bed along with the others. Mrs N. testified that she saw the appellant on the opposite side of the road and that he was wrestling with a person whom she recognised as L., the deceased. He ran a short distance away from the appellant and then fell down. He cried out “Kwekwe don’t kill me”. She also recognised the dog as being one that from time to time walks with the person whom she knows as Kwekwe. She left the window before the others and went back into the room. Thereafter she also went to bed and did not hear anything further.

[4] Neither Ms F. nor Mrs N. heard the police who had discovered the body of the deceased lying in the road whilst on patrol a short while later. Neither of the witnesses immediately went to the police station to report what they had seen when they heard that a person had been murdered. They only reported what they had seen some four days later.

[5] The magistrate accepted the evidence of both Ms F. and Mrs N. and in evaluating the identification found that there was sufficient lighting to enable both witnesses to positively identify the appellant, whom they both knew well.

[6] It was argued on behalf of the appellant that an essential point in dispute at the trial was the identification of the appellant as the assailant and that the magistrate had erred in failing to carefully evaluate the reliability of the evidence of the identifying witnesses. In this regard it was submitted that the magistrate had failed to pay due regard to the material contradictions in the evidence of the two witnesses and had erred in finding that these contradictions were immaterial. It was also argued that in the assessment of the evidence as a whole the magistrate had erred in effectively rejecting the appellant’s alibi witness, Ms W., despite having found her to be an honest witness. It was accordingly argued that the state had failed to prove the guilt of the accused beyond a reasonable doubt and that the magistrate had erred in so finding.

[7] There were indeed discrepancies and contradictions between the versions presented by the two main state witnesses. The evidence of both, however, was that they had gone to the window at the same time. Mrs N. made her observations and she then left and returned to the room. Ms F. had remained at the window for a short while thereafter before returning to the room when they both retired to bed. Mrs F. made no mention at all of seeing the appellant and the deceased wrestling with one another. Nor that she saw the deceased run away and fall to the ground. She also makes no reference to seeing the deceased being injured in any way. Yet these observations were apparently made by Mrs N. who spent a short time at the window observing what was going on outside.

[8] The magistrate does not specifically deal with this contradiction between the two witnesses. He nevertheless characterises the discrepancies as being insignificant, reflective rather of the honesty of the witnesses than otherwise. The discrepancy between the witnesses as to what they saw is, in my view, a material discrepancy in their evidence which is not explained. It was argued before us that it can be accounted for on the basis of two witnesses seeing two different aspects of the same event. It may generally be so that witnesses describing the same event may emphasize different observations based upon their recollection and their particular perspective of the events that they are describing. In this instance however the witnesses describe wholly different events when, on the prosecution case, they were simultaneously viewing the same event. Where such differences such as these arise in the evidence it is essential that the adjudicator of fact consider carefully the nature of the discrepancy in order to properly evaluate the reliability of the evidence given. The magistrate in his judgement did not undertake such an exercise. Nor does the evidence presented by the prosecution cast any light on the reason for the obvious discrepancy in the evidence given.  The failure to explain the discrepancies, particularly in the light of the fact that both witnesses were present when the observations were made, raises, or ought to have raised a question about the reliability of the evidence. Both state witnesses admitted that they had been drinking and that immediately after making their observations they retired to bed. They heard nothing further despite the fact that there was, on the evidence of warrant officer Miggels, a significant police presence immediately outside of the house during the early hours of that morning after the body of the deceased had been discovered in the road. It was also the evidence that neither of the two witnesses took any steps to make any report to the police on the following day when they heard that the body of the deceased had been found lying in the road immediately outside their house. This too was not explained, and must, in my view, have raised some questions about the reliability of the observations on the night in question. The magistrate did not deal with these aspects. He nevertheless found that the witnesses were both credible and reliable.

[9] The finding as to reliability without a careful assessment of the evidence tendered by the witnesses and in particular those aspects in which they contradicted themselves constitutes a misdirection. This misdirection was compounded by the approach adopted by the magistrate in relation to the assessment of the evidence as a whole and the determination as to whether or not the prosecution had discharged the onus which it bore.

[10] The magistrate proceeded, correctly, from the recognition that the evidence and is to be assessed in its totality having regard to both the credibility and reliability of witnesses. However, when dealing with the evidence tendered by the appellant and by the alibi witness, Ms W., the magistrate made no credibility findings adverse to either of the defence witnesses. On the contrary, the magistrate accepted that Mrs W. was an honest witness. Nevertheless, the evidence of the appellant and of his alibi witness was effectively rejected in favour of the evidence tendered by the prosecution. The judgement sets out no basis upon which that occurred. Indeed the sole basis upon which the magistrate appears to have disregarded the evidence of Ms W. is that she had been in a relationship with the appellant for 11 years and therefore would not wish to see her boyfriend go to prison. She had also stated that she and the appellant had spoken about the case, although no detail was given. The magistrate proceeded from the assumption that the fact that she and the appellant had “spoken” about the case necessarily meant that her evidence was not reliable. He therefore disregarded it on that basis.

[11] The magistrate’s observation that Ms W. was an honest witness is quite correct and is borne out by the evidence. She was at no stage challenged as to the essential facts that she presented in evidence namely that the appellant was at home on the night in question; that he was drinking with a friend of his at the home; that he retired to bed; that she retired to bed after him; that she is a light sleeper and would have been aware of the fact of him leaving had he done so; that she awoke during the course of the night and the appellant was still in bed with her; and that she woke him at approximately 5:30 AM so that he could go to work. It was never suggested to her that her evidence was a fabrication and constituted a false alibi deliberately given in order to protect her boyfriend from imprisonment. It was also never put to the appellant that he and Ms W. had deliberately set out to present false evidence in his defence. Yet this is the effect of the finding made by the magistrate, namely that because she had “spoken” to the appellant about the case, her evidence was to be regarded as not only unreliable but as false and therefore rejected.

[12] The state bears the onus to prove beyond a reasonable doubt that the accused is guilty of the commission of the offence. An accused person bears no onus. The state has to prove its case beyond a reasonable doubt.  In the well-known passage in R v Difford 1937 AD 370 at 373 the court said that:

‘…no onus rests on the accused to convince the court of the truth of any explanation which he gives. If he gives an explanation, even if that explanation is 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….’

[13] Where an accused person relies upon an alibi as a defence, it is for the prosecution to establish on the basis of the evidence viewed in its totality that the alibi evidence cannot reasonably possibly be true.

[14] In S v Liebenberg 2005 (2) SACR 355 (SCA) the court said that where an accused’s evidence could not be rejected as false, it could not then be rejected on the basis that there is strong evidence linking the accused to the commission of the offence.

[15] At paragraph [12] of the judgment the court made remarks which are apposite to the present matter:

The key findings made by the trial court are confusing and to a large degree ambivalent. On the one hand, it found no basis for rejecting the alibi evidence, and yet it found that, in the light of the strong evidence led by the prosecution, the alibi could easily be rejected, on the other. It also found that despite a reasonable possibility of the alibi evidence being true, the appellant left his companions and went to commit the offences before he rejoined them.

[1]6 In this instance the court did not reject the alibi evidence in specific terms. It found, to the contrary, that the alibi witness was an honest witness. In the Liebenberg matter, at paragraph [14], the court said the following about the proper approach to alibi evidence:

Once the trial court accepted that the alibi evidence could not be rejected as false, it was not entitled to reject it on the basis that the prosecution had placed before it strong evidence linking the appellant to the defences. The acceptance of the prosecution’s evidence could not, by itself alone, be a sufficient basis for rejecting the alibi evidence. Something more was required. The evidence must have been, when considered in its totality, of the nature that proved the alibi evidence to be false. In S v Sithole and others 1999 (1) SACR 585 (W) the test applicable to criminal trials was restated in the following terms at 590g-i:

‘There is only one test in a criminal case, and that is whether the evidence establishes the guilt of the accused beyond reasonable doubt. The corollary is that an accused is entitled to be acquitted if there is a reasonable possibility that an innocent explanation which he has proffered might be true. These are not two independent tests, but rather the statement of one test, viewed from two perspectives. In order to convict, there must be no reasonable doubt that the evidence implicating the accused is true, which can only be so if there is, at the same time no reasonable possibility that the evidence exculpating him is not true. The two conclusions go hand-in-hand, each one being the corollary of the other. Thus, in order for there to be a reasonable possibility that an innocent explanation which has been proffered by the accused might be true, there must at the same time be a reasonable possibility that the evidence which implicates him might be false or mistaken.’

See also S v Van Aswegen 2001 (2) SACR 97 (SCA).

[17] In this instance the magistrate failed to have due and proper regard to the test to be applied in determining whether the prosecution had proved its case beyond a reasonable doubt. Having found that the alibi witness was an honest witness, no basis existed to reject her evidence as false. The magistrate however disregarded the evidence without finding that it was false. In doing so he misdirected himself.

[18] The prosecution failed to establish that the accused’s version, namely that he was not involved in the commission of the offence and that he was at home at the time of the commission of the offence, was not reasonably possibly true. In the circumstances the prosecution failed to prove the guilt of the accused beyond a reasonable doubt and the accused ought to have been acquitted of the offence. It follows therefore that the appeal must succeed.

[19] I therefore make the following order:

The appeal succeeds. The appellant’s conviction and sentence are set aside.

_________________________

G. GOOSEN

JUDGE OF THE HIGH COURT

 

MSIZI, AJ.

 

I agree.

 

_________________________

N. MSIZI

ACTING JUDGE OF THE HIGH COURT

 

APPEARCNES :      For the Appellant

                                    Adv. D. Geldenhuys

                                    Grahamstown Justice Centre

 

                                    For the Respondent

                                    Adv. S. S. Mtsila

                                    Director of Public Prosecutions

 

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