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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

C.A. & R.: 40/2014

Date Heard:18 March 2015

Date Delivered: 16 April 2015

In the matter between:

TEBOGO NCHOBA................................................................................................................. Appellant

and

THE STATE............................................................................................................................ Respondent

JUDGMENT

EKSTEEN J:

[1] The appellant was convicted in the Regional Court of Port Elizabeth on one count of robbery with aggravating circumstances.  He was sentenced to 10 years imprisonment half of which was suspended for 5 years on condition that he is not again convicted of robbery committed during the period of suspension.  The appellant’s application for leave to appeal was dismissed by the magistrate and leave to appeal against his conviction was subsequently granted on petition to the Judge President.

[2] The appellant’s brother who was accused no. 1 at the trial (referred to herein as “accused no. 1”) was charged together with the appellant and was ultimately acquitted. 

[3] The charge sheet alleged that on 27 December 2008 at or near Kwadwesi the appellant robbed one Vuyo Swepu (the complainant) of a Nokia cellphone to the value of approximately R2 000,00.  Aggravating circumstances were alleged to have been present in that the appellant pointed a firearm, or something resembling a firearm at the complainant during the commission of the robbery.  The appellant and accused no. 1 denied any involvement in the robbery.  In his application for leave to appeal the appellant raises three grounds of appeal, namely, that the Regional Magistrate erred in:

1. Holding that the State had proved its case beyond reasonable doubt;

2. Accepting the evidence of a single witness without applying the cautionary rule;  and

3. By rejecting the evidence of the appellant as not being reasonably possibly true.

[4] It is accordingly necessary to have regard to the evidence before the magistrate in some detail.  At the commencement of the trial the appellant pleaded not guilty.  He and accused no. 1 were represented by the same legal representative.  An explanation of plea was tendered wherein it was admitted that accused no. 1 was the driver of a white Toyota mini bus registration number DKS571EC (herein referred to as “the taxi”).  The appellant was his conductor.  The explanation of plea proceeds as follows:

“They had picked up the first lot of passengers from town to Kwadwesi, off loading their passengers at Mission Road and went to Kwadwesi Extension to start a new trip to town.  It was approximately ten to 11 (indistinct) 30 minutes later they saw a VW Golf flashing for them to stop.  One Xolani was at the time when this VW Golf was flashing was the driver.  Then upon opening the taxi the accused number 1, Tabang was assault and the people that were assaulting them in the taxi indicated that they were looking for a cellphone and a gun. The taxi was then searched and the accused persons were (indistinct) and searched and none of these items were found in their possession.  Teboho (the appellant) was assaulted by a policeman being assisted by another man who they later learnt was an uncle of the complainant.  Teboho’s shirt was torn in the process because of this assault and then Teboho said no, the phone is at home.  Not that really it was at home more than that he wanted these people to come to his mom as he thought that was the best to do under the circumstances because he was being assaulted very seriously. …  Both accused Your Worship want to indicate and tell court that they know nothing of the alleged robbery of a cellphone with the use of a firearm.” (Sic)

[5] It was common cause, alternatively, not in dispute, both at the trial and during the appeal that the complainant, a 16 year old male, resides at Westville near Kwadwesi.  At about 10am on 27 December 2008 the complainant’s mother sent him to buy ice at the Springbok Butchery.  On his return from the butchery the complainant boarded the taxi.  At the time he boarded the taxi the complainant was in possession of a black Nokia cellphone, the property of his aunt.  Accused no. 1 was the driver of the taxi and the appellant was the conductor in the taxi.   Both accused no. 1 and the appellant were wearing pink shirts at the time the complainant boarded the taxi.

[6] The complainant testified that on his return from the butchery, as the taxi approached Nkwenkwe Road in Kwadwesi, he was seated behind accused no. 1, the driver.  The appellant sat next to him, to his left hand side, alongside the sliding door of the vehicle.  There were no other passengers in the vehicle.  Both the appellant and accused no. 1 wore pink T-shirts and accused no. 1 a Panama hat. 

[7] At this stage the complainant received a sms message on the Nokia cellphone which he had in his pocket.  He took out the phone and read the message and then requested the appellant to turn at the next street so that he could disembark.  The driver reduced speed in order to stop and as he was about to alight from the vehicle, he says, the appellant instructed accused no. 1 to proceed and not to come to a stop.  The appellant was pointing a firearm at the complainant and asked for the phone.  The complainant says he did not resist and handed over the phone. The taxi, in the interim, proceeded to Kwalizo Supermarket in Kwanoxolo where the complainant was dropped off.  This was some distance from his home and not the stop where he had requested to be offloaded.

[8] After being dropped at Kwanoxolo the complainant says that he had to walk home.  He reported the events to his mother and he, his mother and his uncle proceeded to Kwadwesi Police Station where they reported the matter.  After the report was made they, together with the police went out in search of the appellant and accused no. 1.  They proceeded in a marked police Golf vehicle, first to Dasi, which appears to be a taxi rank.  They were unable to find accused no. 1 and the appellant at Dasi.  Later, as they proceeded towards the Mission Road intersection the complainant saw the taxi in which he had travelled.  He recognised the appellant and accused no. 1 by the pink shirts which they wore, although each of them now wore a lumber-jacket over the shirt.  Accused no. 1 was no longer the driver of the vehicle and a third person, unknown to the complainant, was driving the vehicle.  Accused no. 1 sat alongside the driver whilst the appellant was still seated at the sliding door of the vehicle.

[9] The police, he says, indicated to the taxi to stop, however, it did not oblige and continued on its way.  Shortly thereafter a Toyota Quantum motor vehicle approached from the opposite side.  It blocked the road and the taxi was compelled to stop. 

[10] At this stage, the complainant says, the appellant got out of the vehicle and ran.  The police gave chase, caught up with him and apprehended him.  Accused no. 1 and the appellant were identified there by the complainant and they were taken to the police station.  The taxi was driven back to the police station by one of the policemen.  The third person, who had been driving the taxi at the time that it was stopped had vanished from the scene.

[11] At the police station the appellant’s mother and the owner of the taxi arrived.  Discussions ensued between the complainant’s mother and the owner of the taxi.  Complainant’s mother advised that she intended to press charges for robbery.  The owner of the taxi thereupon agreed to personally purchase a replacement phone and deliver it by Monday of the following week.  Placated by this offer charges were not immediately pursued.  The owner of the taxi, however, did not honour his undertaking and when the complainant’s mother contacted him on the Monday she was advised that he was out of town.  In these circumstances charges were laid.

[12] With reference to the circumstances relating to the appellant’s admission set out in the plea explanation that the phone was at his home, the complainant denied that the appellant had been assaulted either at the scene where the taxi was stopped or at the police station, by police or by his uncle or by any other person.

[13] As earlier alluded to both the appellant and the accused were legally represented at the trial.  Most of the material evidence of the complainant was, however, not placed in dispute during cross-examination.  In particular it was not suggested to the complainant that he was not a passenger in the taxi; nor that he was not dispossessed of his cellphone while in the taxi;  nor that a firearm was not pointed at him whilst he was in the taxi.  His evidence that the appellant instructed accused no. 1 to proceed when the complainant wanted to disembark at Kwadwesi was not challenged at all nor was his evidence relating to the manner in which the taxi was brought to a stop when it was later traced.  His evidence that the appellant alighted from the taxi and ran until apprehended by the police was neither challenged nor referred to in cross-examination.

[14] Rather, the thrust of the cross-examination was to the effect that the complainant was mistaken as to the identity of his assailant in the taxi.  Thus, in cross-examination the following exchange occurred:

“MR NOGCANTSI:  What is it on your observation on accused number 2, the person who robbed you, pointed with a firearm stood out clearly in your mind to say this is the person who robbed me?  --- INTP:  Just repeat your question.

MR NOGCANTSI: What is it as an identifying feature on accused number 2 that stood out in your mind for you to be able to say when you identified him the second time around this is a person who robbed me?  ---  Your Worship I observed him clearly Your Worship because when this took place it was during the day.

If you were to describe him without looking at him now, looking at his Worship what is it about his face, what is it about his physical features that you would say are of importance to be able to identify him?  ---  Dark in complexion Your Worship.  He does not …  his body built …  he is a tiny somebody.

Any scars of any nature that are different from ordinary person that are dark (indistinct)?  ---  Your Worship he does not have scars but I could identify him because of the shirt that he was wearing on the day.

What shirt did he wear? ---  He was wearing a pink shirt.

And what else? --- That is all Your Worship.  He was not wearing anything on his head.

[15] In cross-examination of the complainant in respect of the alleged assault leading to the admission by the appellant to which reference is made in the explanation of plea which I have set out earlier, the following exchange occurred:

“MR NOGCANTSI:   According to your evidence Mr Swepu you say you never saw any of the two accused persons being assaulted either by the police or by any of your relatives. ---  No Your Worship.

Because I hold instructions that your uncle that you have conceded that was present at the scene, your uncle was present when they were assaulted.  --- INTP:  Uncle was present when they were assaulted?

MR NOGCANTSI:   He actually did the assaulting.  --- INTP:  The uncle?

Ja.  And he was actually assisting the police in assaulting.  What do you say?  ---  The police did not assault anybody Your Worship and my uncle did not assault anybody.”

[16] Finally, during cross-examination, the complainant conceded that accused no. 1 and the appellant were searched by the police as was the taxi and that neither the cellphone nor the firearm were found in the taxi.  He states, however, that it was already after two o’clock in the afternoon, some four hours after the alleged robbery  when the police stopped the taxi.

[17] The high-water mark of the appellant’s defence which was put to the complainant is that the appellant will deny that he had robbed anybody.

[18] The complainant’s mother testified.  She confirms the complainant’s version of events to the extent that she was present.  During cross-examination she too insisted that she had not seen anybody being assaulted either at the scene where the vehicle was stopped or at the police station.

[19] Accused no. 1 testified in his own defence.  He states, however, contrary to the unchallenged evidence of the complainant that his friend, Xolani, was a passenger throughout the day in the taxi.  Accused no. 1 does not recall having seen the complainant in the taxi at all and in his evidence in chief the following passage appears:

“MR NOGCANTSI:   Vuyo Swepu, the complainant, who was robbed of a cellphone did you happen to see him that day? Vuyo.  V-U-Y-O, Vuyo. ---  I did not see him.  As I was on my way to town I met up with one of my friends, Xolani.

Where did you meet him?  ---  I picked him up from the direction of Njoli heading towards town.”

[20] It is apparent from this exchange that the evidence of accused no. 1 was initially presented by his legal representative on an acceptance that a robbery in fact occurred. 

[21] Later in his evidence the following transpired:

“MR NOGCANTSI:    On your return from town did you see Vuyo Swepu?  On your return from town did you see Vuyo Swepu?  --- I did not see him in the car but I was however having a conversation with Xolani going towards the direction of Magxadwesi. 

Do you have any passengers from town to Magxadwesi? ---  Yes, I had passengers though it was not full.

Did you not rule out that he was one of the passengers?  That is this Vuyo Swepu.   --- I can not rule out that possibility because I did not take note of the people who were passengers as I was having a conversation with Xolani.”

[22] Later, still in his evidence in chief he was asked:

“Did you see Vuyo Swepu being robbed in your taxi?  Because it is his evidence he was robbed in our taxi.  --- No, there were no funny things happening inside my vehicle on that day.”

[23] As set out earlier herein the version of the events testified to by the complainant in respect of the manner in which the taxi was brought to a stop, was never challenged.  In his evidence, however, accused no. 1 confirms that Xolani was the driver at the time and that it was a police Golf that stopped them. He makes no reference to the Toyota Quantum vehicle approaching from the front and does not dispute the complainant’s evidence in this regard but states that he instructed Xolani to pull off.  His account of events thereafter differs from that given by the complainant.  He states that he and the appellant were assaulted there on the scene by the police and that a firearm was pointed at them.  He then proceeds to state:

“ … the other one was then assaulting Teboho whilst holding a firearm on the other hand and as he was manhandling Teboho, Teboho managed to break loose and run away and his shirt was torn and I called him that he must not run away, he must come back.  Teboho came back …”

[24] This matter was again taken up with him under cross-examination where the following exchange occurred:

“PROSECUTOR: Why would you call him if he was there?  What did he do that made you do …  did he run away completely from the police?  You are not clear.  ---  You see when he broke loose when his shirt got torn.  As my car is parked next to the tar road he ran towards the tar.  He ran towards the tar road, running away from the front part of the (indistinct) and as I am calling him I wanted to hear as to what was going to be explained pertaining the phone and the firearm. 

…

Okay.  Why did he run away then?  --- It may so happen that he might have been scared and ran away from the fact that he was being pointed in that manner.  I don’t know but I remained standing because I am well known. …”

It is clear from these exchanges that accused no. 1 confirms the evidence of complainant at least to the extent that the appellant ran away from the scene at some stage during the proceedings. 

[25] Finally, during cross-examination accused no. 1 was questioned in respect of the complainant’s evidence that he, on the instruction of the appellant, drove away at the time that the complainant wanted to disembark at Kwadwesi.  The following appeared:

“The complainant testified that he instructed or he told you the point where he was going to get off but because of the instructions from your brother who is accused number 2 that you must not stop you did not stop, you proceeded on. ---  No, I was never informed by no one  pertaining stops or points.  The condie or the conductor was telling me and I was having a conversation with Xolani.

If the conductor was telling you where to stop why was the complainant not dropped then at the point where he was supposed to be dropped?  --- I don’t know what had happened because the conductor, I was stopping at the various points which he instructed me to stop at and I never saw no complainant.  I don’t know.”

[26] This, in my view, provides support for the evidence of the complainant that the driver took instructions from the appellant, who was the conductor, as to when he should stop. 

[27] The appellant, unlike accused no. 1 acknowledges that the complainant was in fact a passenger in the taxi.  He acknowledges that there was a time when the complainant was the only passenger in the vehicle.  In his evidence in chief he states that this was at the commencement of his journey when the complainant first boarded the taxi at the Springbok Butchery.  On route he states that other passengers joined the complainant.  In cross-examination, however, he acknowledges that the complainant was the last passenger left in the taxi as they reached their destination and that he was the only passenger in the taxi at the time when they reached the point where he alighted.  During the evidence of the appellant, for the first time, it is denied that the complainant was ever robbed. 

[28] Turning to the stage when the taxi was stopped and the appellant arrested he testifies that a private vehicle appeared behind them indicating to them to stop.  In this regard he contradicts both accused no. 1 and the uncontested evidence of the complainant that it was a marked police vehicle.  He states that the taxi immediately stopped.  This contradicts the unchallenged evidence of the complainant in respect of the manner in which the taxi came to a stop.  After the vehicle stopped, the appellant’s states that two elderly men appeared and they pointed a firearm at him.  One of the gentleman, he says, assaulted accused no. 1 and then he proceeds to state:

“Out of fright I managed to break loose from that position and I managed to move as the witness is demonstrating by way of his hands that I did not move away far just moved away in order to observe as to what was going to happen.”

[29] During cross-examination the following exchange occurred:

“PROSECUTOR:   Okay.  The complainant testified here in court that when you saw the police vehicle stopping you opened the door and ran away.  ---  That is no so.  The door was opened by the police and subsequently (indistinct).

Okay.  Now why did your brother, accused number 1 why did he call you?  Why did he ask you or call you to come back if you were not running away? ---  I was not running.  I was not running.  I was moving away and he called me (indistinct) come back.

But what is the reason?  You were not running away.  What was the reason then?  No.  What was the reason for him, your brother, accused number 1 to call you if you were not running?  ---  I was not running. I just moved away and he then called me.”

[30] Finally, in respect of  the admission of knowledge of the phone as is set out in his explanation of plea the appellant testified in chief as follows:

“MR NOGCANTSI:   Were you questioned about the so-called robbery?  ---  Yes.

What did you say?  - You, what did you say? ---  There was an instance whereby I was assaulted, assaulted to the extent that I was asked in a violence … in a violent manner up until I lost power.

Who was assaulting you?  --- It was the police officials, approximately in the vicinity of 6 and 7.

Yes.  What did you do you see you are losing power?  What did you do?  ---  Under those circumstances I then said yes, I do know where the phone is since I wanted a parent to come and intervene.”

[31] Of the evidence foreshadowed during the cross-examination of the complainant that the complainant’s uncle had assaulted the appellant there was no word.  On the contrary he now states that he was assaulted by six or seven policemen.

[32] Before I turn to consider these issues it is perhaps convenient at this stage to dispose first of the second ground of appeal, namely that the magistrate erred in accepting the evidence of a single witness without applying the cautionary rule.  There is no merit in this ground of appeal.  The magistrate was alive to the fact that the complainant was a single witness.  Section 208 of the Criminal Procedures Act, 51 of 1977 (the CPA) provides that it is competent to convict an accused person on the credible evidence of a single witness.  It is well-established that this section should only be adopted where the evidence of the single witness is clear and satisfactory in every material respect.  The magistrate pertinently made a specific finding that the evidence of the complainant is clear and satisfactory and that there are no contradictions of any note in his evidence.  A perusal of the transcript of the proceedings confirms the correctness of this finding.  The magistrate further found that the complainant was an impressive witness and that his demeanour was good.  I consider that he has consciously applied his mind to the requirements which must be satisfied in assessing the evidence of a single witness.

[33] Mr Daubermann, who appeared on behalf of the appellant, correctly argues that the main issues which the court had to decide were:

1. whether the State had succeeded in proving, beyond reasonable doubt, that the complainant was robbed at gunpoint of the Nokia cellphone while he was in the taxi;  and

2. if so, whether the appellant was the person who had robbed him.

[34] It was, at the end of the trial, common cause that the complainant had in fact travelled in the taxi on the morning in question.  It is not in dispute that the appellant was the conductor and that he was wearing a pink shirt.  The evidence of the complainant was that it was the conductor wearing the pink shirt who had pointed a firearm at him and robbed him.  The complainant identified the appellant at the scene of the arrest and in court.  Mr Daubermann, fairly in my view, acknowledges that these facts leave little room for a finding that the complainant could have been mistaken as to the identification of the appellant as the perpetrator of the robbery. Mr Daubermann acknowledges therefore that if the appellant’s version of events is true the complainant must have deliberately concocted his version that the appellant robbed him of his Nokia cellphone.  He argues, however, that the Court a quo did not criticise the appellant’s demeanour in the witness stand but simply described his version as a bare denial.  It is argued that the appellant’s version to the effect that no robbery took place in the taxi was corroborated in all material respects by the evidence of accused no.1.

[35] The argument, in my view, overstates the evidence of accused no. 1.  As earlier set out the appellant was legally represented at the trial.  Complainant’s evidence that he was robbed of his cellphone at gunpoint while in the taxi was never challenged under cross-examination.  The high-water mark of the cross-examination was that the appellant denied that he had robbed the complainant.  I have set out in full portions of the evidence in chief of accused no. 1 which show that accused no. 1’s evidence was led on an acceptance that the complainant was in fact robbed.  It is the evidence of accused no. 1 that he did not see this event occurring.  It is true that when asked whether he saw the complainant being robbed he stated:

“No, there were no funny things happening inside my vehicle on that day.”

[36] I do not consider this evidence to be a denial that any robbery occurred in the taxi particularly in view of his evidence that he was conversing with Xolani and had no interest in the passengers in his vehicle.  The first suggestion that the complainant was in fact not robbed at all arose during the evidence of the appellant.  In these circumstances I do not consider that accused no. 1’s evidence strengthens that of the appellant in this respect. 

[37] The trial court made no specific demeanour finding in respect of the appellant and accordingly Mr Daubermann argues that there was no basis for the Court a quo  to prefer the complainant’s version of events to that of the appellant.  They were both, so the argument runs, satisfactory witnesses.

[38] I have already referred earlier to the magistrate’s finding that the complainant was an impressive witness and that his evidence was clear and satisfactory.  A great deal of his evidence, and indeed the fact that he was robbed of his cellphone while in the taxi, as set out earlier, is not challenged during cross-examination.  Mr Daubermann now asks that his evidence should not be accepted in these respects.  In Small v Small 1954 (3) SA 434 (SWA) at 438 Claassen J said:

“It is, in my opinion, elementary and standard practice for a party to put to each opposing witness so much of his own case or defence as concerns that witness, and if need be, to inform him, if he has not been given notice thereof, that other witnesses will contradict him, so as to give him fair warning and an opportunity to explaining the contradiction and defending his own character.  It is grossly unfair and improper to let a witnesses evidence go unchallenged in cross-examination and afterwards argue that he must be disbelieved.”

[39] In President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC)  at 36J-37C the Constitutional Court declared:

“[61] The institution of cross-examination not only constitutes a right, it also imposes certain obligations. As a general rule it is essential, when it is intended to suggest that a witness is not speaking the truth on a  particular point, to direct the witness's attention to the fact by questions put in cross-examination showing that the imputation is intended to be made and to afford the witness an opportunity, while still in the witness-box, of giving any explanation open to the witness and of defending his or her character. If a point in dispute is left unchallenged in cross-examination, the party calling  the witness is entitled to assume that the unchallenged witness's testimony is accepted as correct. This rule was enunciated by the House of Lords in Browne v Dunn  and has been adopted and consistently followed by our courts.”

[40] The important features of the complainant’s evidence which were never challenged under cross-examination have been set out earlier herein. Had it been the intention of the appellant to challenge that evidence the prosecution may have elected to call further evidence, perhaps from police officials present at the scene of the arrest, to support the evidence of the complainant.  It is not in dispute nor was it ever in dispute during the trial that the taxi came to a stop as the result of a Toyota Quantum vehicle blocking its way.  The complainant’s evidence that they were in a marked police vehicle is supported by the evidence of accused no. 1.  The appellant, for his part, states, in contradiction of all other evidence, that it was a private vehicle. 

[41] The evidence of the complainant that the driver of the vehicle was instructed to proceed and not to stop at Kwadwesi finds a measure of support in the evidence of accused no. 1 who states that he stopped at those places where his conductor told him to stop.  He does not at any time during his evidence, unequivocally deny the version of the complainant.

[42] Mr Daubermann acknowledges that the magistrate found that the appellant had run away before he was confronted by the police.  He notes that the complainant’s version was that he did not run away but that he “moved away” to one side because the police pointed a firearm at him and he was assaulted and scared of the police.  Again I do not think that the appellant’s version in this regard can possibly be accepted.  This too is an aspect which was never challenged in cross-examination when the complainant testified and it was not raised with the complainant’s mother when she testified.  This is clearly an aspect upon which the State may have presented further evidence, had the issue been in dispute.  Although there are some differences between the complainant’s version and that of accused no. 1, accused no. 1 states categorically that the complainant ran away.  In these circumstances I think that the magistrate was correct to reject the version of the appellant.  Not only does his version conflict with the unchallenged evidence on behalf of the State but it is materially contradictory to the evidence of accused no. 1.

[43] Finally, the appellant concedes that he admitted that he knew where the phone was.  He attributes this to a vicious assault upon him.  Both the complainant and his mother denied that any assault ever occurred.  It was then suggested to the complainant that the appellant would testify that the complaint’s uncle was in fact participating in this assault at the scene where the vehicles were stopped.  This evidence did not materialise and the account of the appellant given during his evidence of the alleged assault was not persuasive.

[44] In the circumstances, while it is correct that the magistrate made no specific demeanour finding in respect of the appellant, the record clearly shows a number of features which serve to illustrate that the appellant was not a satisfactory witness on material issues. 

[45] In all the circumstances I consider that the magistrate was correct in concluding that the appellant’s denial is not reasonably possibly true.  Moreover the unchallenged evidence of the complainant establishes, to my mind, proof beyond reasonable doubt that the appellant is guilty of the offence charged.

[46] In the result, the appeal is dismissed.

J W EKSTEEN

JUDGE OF THE HIGH COURT

MAKAULA J:

I agree.

M MAKAULA

JUDGE OF THE HIGH COURT

Appearances:

For Appellant: Adv P Daubermann

instructed by Peter Daubermann Attorneys

For Respondent: Adv Z Mdolomba

instructed by Director of Public Prosecutions,

Grahamstown

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