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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 67/2014

DATE HEARD: 6 AUGUST 2014

DATE DELIVERED: 8 AUGUST 2014

In the matter between

ZOLANI MAYEKISO                                                                                                   Appellant

and

THE STATE                                                                                                            Respondent

Criminal appeal – against conviction on charges of murder and robbery – evidence of identifying eyewitnesses – no basis to doubt credibility and reliability – version of appellant rightly rejected as false – conviction upheld

JUDGMENT

GOOSEN, J.

[1] The appellant was convicted in the regional court, Cradock, of murder and robbery with aggravating circumstances. He was sentenced to 15 years imprisonment in respect of each count. Twelve years of the sentence imposed in respect of the robbery count were ordered to run concurrently with the sentence imposed in respect of the murder. Leave to appeal against the conviction was granted to the appellant on petition.

[2] It was not in dispute at the trial that the deceased and another man by the name of G. M. (“G.”) were attacked and assaulted by assailants in a graveyard in Cradock on 3 December 2012. The deceased died as a result of stab wounds inflicted on his body. G., the complainant in the robbery count, was also injured in the attack. The prosecution alleged that he was robbed of a cell phone in his possession. The appellant denied any involvement in the commission of the offences. His defence being that he was elsewhere at the time of the commission of the offences.

[3] A central issue in dispute at the trial was the identification of the appellant as being one of a group of persons involved in the assault upon the deceased and G.

[4] The prosecution presented the evidence of two identifying witnesses. The first of these was that of M. M. (“M.”). His evidence was that he and another person, known to him as Somebody, had been requested by G.’s sister to go and meet G., who was on his way to her house. He and Somebody had initially proceeded to a place where he was told the deceased and G. would be but they did not meet them. He then returned to the house. A short while later, after G.’s sister was again in contact with him on his cell phone, he again set out to find that G. and the deceased.

[5] On this occasion the witness made his way through the graveyard. Whilst walking through the graveyard he saw four men under a tree. There were two other people seated there who appeared to be injured. As he approached, one of the men came up to him and held a knife against his neck. He recognised the person as being the appellant who was well known to him. The appellant spoke to him and said to him that he should leave so that he could avoid being hurt. M.’s companion ran away and he was pursued by two of the four men. M. did not leave since he wanted to assist the two people who had been injured. One of the other suspected assailants approached him also brandishing a knife. The appellant intervened and prevented this other person from injuring the witness, saying that he knew him. The two of them then left.

[6] The witness, M., then assisted the deceased, who was at that stage badly injured and G. He placed the deceased on his back and carried him home. Once there an ambulance was summonsed as were the police.

[7] M. stated in his evidence that that although it was dark in the graveyard there was sufficient general lighting for him to be able to see the appellant and to recognize him. The appellant was well-known to him and was in close proximity to him holding the knife against his neck. The appellant also spoke to him.

[8] The prosecution also presented the evidence of a Marius Pretorius (“Pretorius”). His evidence was that he was walking home past the graveyard when two persons emerged from the graveyard. He recognised one of them, namely the appellant, who spoke to him. Pretorius testified that he and the appellant had on a previous occasion spent some time together in prison and that the appellant was well known to him. According to him, the appellant greeted him in “prison talk” and he responded. One of the men was carrying a long shiny object. He did not see it clearly enough to be able to identify it. The appellant said that to Pretorius that he should go because they are “besig om voȅls te skiet”. He explained that this expression in prison-lingo means that they are busy hurting people who are not part of the prison gang structure. After this he continued walking in the direction of his home. The appellant and his companion left. Before Pretorius got to his home he saw persons emerge from the graveyard. One was crying that he could not see and the other was assisting someone who was injured.

[9] According to Pretorius he was in close proximity to the appellant when they spoke and the lighting in that area was good enough for him to be able to see the appellant and recognize him.

[10] The prosecution also presented the evidence of the B. M. (“B.”), the sister of the complainant in respect of the robbery count. She explained that she had been in telephonic contact with her brother during the course of that evening and had arranged for some friends to go and meet her brother and the deceased when they were making their way to her house. Because they were initially not able to find them she had again telephoned her brother on his cell phone and had spoken to him to establish exactly where they were. Later, when she telephoned the telephone was answered by someone and she could hear people talking in prison talk in the background. She was unable to identify whom it was that was speaking. She explained that the person by the name of Somebody, who had accompanied M. and whom she met when she was on her way to investigate what was happening told her that they were attacked in the graveyard and she had made away in that direction. En route she came across M., who was carrying the deceased and her brother, who was injured.

[11] Her brother G. subsequently passed away. He was therefore not available to testify at trial. The prosecution sought to tender evidence as to a statement made by him to B. about what had occurred. The magistrate, after hearing argument on the matter permitted the prosecution to adduce the evidence. On appeal, Mr Geldenhuys, on behalf of the appellant, did not pursue an argument that the hearsay evidence was incorrectly admitted by the magistrate. Instead it was submitted that little or no weight should be attached to the evidence. The evidence was that the complainant G. had told her that they were attacked by a group of men and that he had been robbed of his cell phone. He named one of the attackers as being Sixaki, whom she knew to be the appellant.

[12] The magistrate in his judgment found that the identifying witnesses were credible and he found their identification to be reliable. The magistrate correctly exercised caution in evaluating the evidence. It was found that there was sufficient lighting to enable the witnesses to identify the persons with whom they were talking. Indeed, this much was conceded by the appellant when he stated that the lighting in that area was such that if a person was in close proximity to another that person would be able to see sufficiently well to be able to identify the person.

[13] The appellant had also conceded that he knew both witnesses well and that should either of them come across him they would be able to recognize him. Based upon the opportunity for observation, as well as the fact that both witnesses knew the appellant well and that there was no reason to doubt their identification of the appellant, the magistrate accepted the evidence as reliable. He also took into consideration the evidence regarding the statement made by the complainant in relation to the identity of the assailants. This was one further factor which pointed to the reliability of the identification.

[14] The approach to the evidence cannot be faulted, nor can the trial court’s findings in this regard. It was not suggested that the magistrate had misdirected himself in any respect. There is accordingly no basis to interfere with the findings made by the magistrate in this regard.

[15] The magistrate considered the accused’s version to be false. That version was that he was in the company of one Mzikayise at his house and that he could confirm that he had been there the whole time. In evaluating the evidence the trial court took into account the evidence of the police officer, Van Zyl, who arrested the appellant that night, as well as the evidence of M. Both stated that when the police went to find the appellant (M. was in the company of the police to identify the appellant) he was encountered at the house and he attempted to escape. Van Zyl said there were a number of persons present at the house, contrary to the evidence of the appellant.

[16] The trial court approached the evidence tendered by the appellant mindful that it need only be found that his version was reasonably possibly true to entitle the appellant to an acquittal. The magistrate, however, found that the appellant’s version when considered against the evidence as a whole was not reasonably possibly true. That finding cannot be faulted.

[17] In addition to the challenge to the identification evidence the appellant also argued that there was insufficient evidence upon which a finding of common purpose as a basis for the conviction of the appellant on the count of murder could be based. It was also submitted that the State had failed to prove the robbery count against the appellant.

[18] Mr Obermeyer, on behalf of the State, argued that when all of the evidence, which was rightly accepted as credible and reliable, is weighed then there can be no doubt that the facts establish the appellant’s association with the common purpose to commit the offences. That evidence was that there were four assailants who were encountered in the presence of the deceased and G. Two of those persons, including the appellant, were in possession of knives. They were encountered in circumstances where they were clearly not rendering assistance to the deceased and the injured person.  The deceased had sustained a very serious wound to his body and the complainant G. had also been injured. The appellant also warned the witness to leave, lest he be hurt.

[19] A short while later when the appellant was seen leaving the graveyard he told Pretorius, that “they” – referring to himself and his companion(s) were “besig om voȅls te skiet”, meaning that they were hurting people. This evidence when considered in its totality clearly establishes that the appellant associated himself with the group of assailants who perpetrated the assaults upon the deceased and the complainant. In the circumstances the magistrate’s finding in this regard cannot be faulted.

[20] In regard to the conviction on the count of robbery the evidence was that the complainant G. was in possession of his cell phone at a stage when he and the deceased were making their way towards B.’s house. Her evidence was that she was in direct contact with him. Her evidence was also that she telephoned him again, later, and on that occasion a person answered the phone and she heard a conversation in prison talk taking place. It was her evidence too that when she encountered her brother after the assault had taken place, his trouser pockets had been turned inside out and he told her that he had been robbed of his cell phone. All of this evidence cumulatively considered leaves no room for doubt that the complainant G. was in possession of the cell phone and that he was deprived of possession by way of robbery. There is accordingly no reason to find that the magistrate had erred or misdirected himself in any manner in relation to the trial court’s findings in this regard.

[21] It follows therefore that the appellant’s appeal against his conviction cannot succeed.

[22] I therefore make the following order:

The appeal is dismissed.

_______________________

G. GOOSEN

JUDGE OF THE HIGH COURT

 

MSIZI, AJ.

 

I agree.

 

_______________________

N. MSIZI

ACTING JUDGE OF THE HIGH COURT

 

APPEARANCES:               For the Appellant

                                                Adv. D. P. Geldenhuys

                                                Grahamstown Justice Centre

                                                For the Respondent

                                                Adv. H. L. Obermeyer

                                                Director of Public Prosecutions

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