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IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

Case No. 43/0122/2008

Registrar Ref. No. 122/2008

Date:28/11/2008

In the matter of:

THE STATE

versus

SIPHO DANIEL MGAGA.......................................................................Accused

JUDGMENT

[1] The accused, Mr Sipho Daniel Mgaga, has been arraigned for trial on an indictment containing charges of the murder of the late Mr Edward Andile Maqela (“the deceased”) (count 1), the attempted murder of Mr Sthembiso Mpanza (count 2), the robbery with aggravating circumstances of the deceased (count 3), the robbery with aggravating circumstances of Mr Sthembiso Mpanza (count 4), the unlawful possession of a pump action shotgun (count 5), and the unlawful possession of ammunition (count 6).

[2] Adv Ngodwana appears for the State, and the accused is represented by Adv Buthelezi.

[3] The accused pleaded not guilty and made no plea explanation. Various admissions in terms of section 220 of the Criminal Procedure Act 51 of 1977 were made at the commencement of the trial and during its course.

[4] The state called as witnesses Const Kubeka, who is the investigating officer, Mr Sthembiso Mpanza, and Mr Mzwandile Hlalukani. At the end of the State case application was made under section 174 of the Criminal Procedure Act 51 of 1977 for the discharge of the accused on all charges. I was of the view that there was no evidence upon which a reasonable person might convict the accused on the count of attempted murder (count 2) and the accused was accordingly discharged and found not guilty of the attempted murder of Mr Sthembiso Mpanza. Such application, in my view, had no merit in respect of the other charges and it was refused [see: S v Khanyapa 1979 (1) SA 824 (A), at page 838F]. The accused testified and his mother, Ms Makhozana Mgaga, and a certain Mr Skuskhumbuzo Nkosi were called as witnesses in his defence.

[5] It is common cause that the deceased was shot in a very dark alley next to Temba’s shebeen in Zola North, Soweto on 19 January 2008 at about 11:00 pm when he and Mpanza walked down the alley. The deceased died as a result of a gunshot wound sustained by him. It is also common cause that an attempt was made by the three assailants to rob the deceased, and that they indeed robbed Mpanza of cash in the sum of R150.00. Mpanza testified that only one shot was fired, which shot hit the deceased, and that no shot was directed at him.

[6] Hlalukani identified the accused as one of the person who committed the crimes against the deceased and against Mr Mpanza. The accused raises a defence of alibi and denies the prosecution’s case on the issue of identity and his involvement in the commission of any of the offences with which he is charged.

[7] The only issue in this case is one of identification, and the question is therefore whether there is proof beyond a reasonable doubt that the accused was one of the three persons who committed the serious crimes with which he is charged.

[8] There is no onus on an accused to establish his or her alibi, and if it might reasonably be true he or she must be acquitted [R v Hlongwane 1959 (3) SA 337 (A), at pp 340H – 341B]. It is also trite that lies in themselves or improbabilities in an accused’s version do not establish the guilt of an accused [see: S v Steynberg 1983 (3) SA 140 (A); S v Mtsweni 1985 (1) SA 590 (A); S v Shackell 2001 (2) SACR 185 (SCA)].

[9] The following dictum by Holmes JA in S v Mthetwa 1972 (3) SA 766 (A), at p 768A – C, is relevant to the determination of the issue of identification:

“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..”

[10] Also relevant is the following dictum at p 310 in R v Dladla 1962 (1) SA 307 (A):

‘In a case where the witness has known the person previously, questions of identifying marks, of facial characteristics, and of clothing are in our view of much less importance than in cases where there was no previous acquaintance with the person sought to be identified. What is important is to test the degree of previous knowledge and the opportunity for a correct identification, having regard to the circumstances in which it was made.’[emphasis added].

[11] In S v Mehlape 1963 (2) SA 29 (A), at p 32F – G, this was said:

‘The often patent honesty, sincerity and conviction of an identifying witness remains, however, ever a snare to the judicial officer who does not constantly remind himself of the necessity of dissipating any danger of error in such evidence’

[12] The identification by a witness may be unreliable even if the witness is found to be a good witness, patently honest, intelligent, confident, coherent, and verbally expressive [see: S v Charzen and Another 2006 (2) SACR 143 (SCA).

[13] Mpanza and Hlalukani were both honest and sincere witnesses. The only contradiction between their evidence was Mpanza who testified that only one shot was fired and Hlalukani who testified that he had heard two. I shall return to the reliability of Hlalukani’s identification evidence.

[14] Also little criticism can be levelled against the evidence of the accused and that of his mother. The accused’s evidence was satisfactory in all material respects. The only contradiction between the evidence of the accused and that of his mother raised during argument was the accused’s version that he had told his mother on Sunday morning, 20 January 2008, that he was feeling better and wished to walk to the shops. This was not mention by his mother when she testified and when confronted with the accused’s version on this aspect her evidence was somewhat unsatisfactory. The accused’s alibi evidence, however, was materially corroborated by the evidence of his mother.

[15] Nkosi’s evidence was essentially hearsay and does not assist in the determination of this matter.

[16] Approaching the evidence of Hlalukani with the necessary caution that should be applied to evidence of identification [see: Mthetwa (supra)] and to that of a single witness [S v Sauls and Others 1981 (3) SA 172 (A), at pp 179G – 180G], and weighing up all the relevant elements which point to the guilt of the accused in respect of counts 1, 3, 4, 5 and 6, against those indicative of his innocence, I am unable to find that the evidence as a whole establishes the guilt of the accused on these counts beyond a reasonable doubt.

[17] The identification evidence of Hlalukani, viewed in the context of all the evidence, and particularly the evidence of the accused and that of his mother, is simply not sufficiently trustworthy and reliable to conclude that the evidence establishes the guilt of the accused on counts 1, 3, 4, 5 and 6 beyond reasonable doubt.

[18] It was undisputed that the street the assailants were running along in front of Temba’s tavern was lit by means of normal street lights, and they were approximately eight meters apart on the side furthest away from the shebeen premises from where Hlalukani was making his observation. The point from which Hlalukani testified that he had made such observation, was approximately in the middle of two street lights and from a distance of about four metres away. The assailants were running along the street, the one ahead of the other two. The only one whom Hlalukani testified that he was able to identify was the front runner whose face he saw momentarily while he was putting a firearm in a bag. Hlalukani did not observe the clothing of the person he identified since he concentrated on the person’s face.

[19] The observation in question happened late at night. The observation was made at a point which was probably the least illuminated by the street lights. The opportunity for observation was merely momentarily. Hlalukani had consumed a certain quantity of alcohol and he was frightened as a result of hearing the gunshot. Hlalukani had only known the accused by sight. The accused has no unusual facial characteristics. The danger of a wrong identification is real.

[20] On all the evidence there is a reasonable possibility that the alibi defence put forward by the accused may be true.

[21] In the result the accused is found not guilty on the remaining five counts.

P.A. MEYER

JUDGE OF THE HIGH COURT

28 November 2008

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