IN THE HIGH COURT OF SOUTH AFRICA 
(GAUTENG DIVISION, PRETORIA)
  CASE NO:   A884/16 
DATE: 03/11/2017
In the matter between:
A MOHLATHI                                                                                                                                                                                     APPELLANT
and
THE STATE                                                                                                                                                                                       RESPONDENT
JUDGMENT
VAN NIEKERK   AJ:
INTRODUCTION
[1] Leave to appeal against a conviction on a charge of robbery with aggravating circumstances was granted to appellant on petition by this Court per Kubushi, J and Nobanda, J on 29 November 2016. The appellant was convicted and sentenced to 8 years imprisonment and declared unfit to possess a firearm by thee Evander   Regional Court  
[2] During the trial the state called two witnesses, who were   also   the complainants, to testify about the events which took place around 01h00 on 10 April 2014, being a husband and wife.   According to their   evidence, three men entered their residence and committed an act of armed robbery, inter alia stealing a large television set, a motor vehicle, and various other   household   goods.   The   first   witness, being the wife was   lying asleep on a couch in what she referred to as "the   TV room" and was awoken when her daughter's dog started barking when the three men entered the room, two of them being armed with   fire-arms.
[3] At the time her husband, the second witness, was asleep in   the   main   bedroom and a house guest who stayed with them overnight was asleep in another room. Both these witnesses testified that they were able to observe the   appellant   who, according to the evidence, wore a bandanna over the lower part of his face, covering part of his nose.   The wife testified that she could discern the facial features   of the appellant under the bandanna, and both these witnesses testified that they observed the eyes of the appellant, as well as his prominent cheekbones. Both the witnesses positively identified the appellant in   court.
[4] The State called a further witness, referred to in the area where she lives as
" Admira", who testified   that on the 10th April 2014 at around 04h00 a person known to her as Msika, accompanied by two other males, one of which she knew as Mpandlana, arrived at her residence and requested to store certain items   at her   home. She identified the appellant in court as the person known to her   as   Mpandlana. It was eventually common cause during the trial that the appellant accompanied the aforesaid Msika at that time to the residence of the witness. The goods which she was requested to store consisted inter alia of a big   screen   television set, two speakers and a vehicle tyre.
[5] According to the evidence of this witness, the police arrived at her home at around 06h00, searched her yard and home, and found the items referred to supra. She explained how she came to be in possession   of the goods,, and   was then told   by the police to accompany them and identify where the persons who left the goods   at her home could be found.
[6] The evidence as a whole clearly establish that the goods found in her possession at 06h00 on 10 April 2014 were goods that were stolen   during   the robbery as testified by the first and second witnesses referred to supra, and clearly establish that at around 04h00 on 10 April 2014 the appellant and two other male persons   were   in   possession   of   the   goods. These   facts   were   not   disputed by appellant.
[7] Appellant's evidence attempted to establish that he was asleep when, at   around   03h55   on 10 April 2014, he was awaken by Msika   and   two   other       persons referred   to supra   and requested   to show them   where the   witness   referred   to in par [4] resided. He complied and they drove to her house in a black Isuzu vehicle, which fitted the description of the vehicle stolen during the robbery. He further testified that he saw the goods referred to supra, and that it was offloaded at the residence of Admira.
[8] On appeal, it was argued that the conviction should be set aside, as the evidence of the two witnesses , husband and wife, who identified the appellant, was unreliable. It was further argued that it was improbable that they   could   have   identified the appellant in the dark, partially covering his   face.
[9] The   evidence   of   these   two   witnesses   corroborated in   material respects.
There is no reason to reject any part of their evidence, thus the only issue is whether or not reliance can be placed on their ability to identify the appellant, given the circumstances relating to the event. In this regard, appellant relied on the partially covered face of the appellant and the darkness to urge this court on appeal to find   that the evidence of these two witnesses identifying the appellant is     unreliable.
[10] In this respect these   two   witnesses   were   adamant, vigorous   cross  examination notwithstanding, that they were able to identify the appellant. It was common cause that the perpetrators used electric torches to create a measure of   light. The wife was in the presence of the accused for a period of time, being   instructed to show firstly where her husband   and houseguest   were sleeping,   and later to point out the locality   of the safe in the house.     Both witnesses described the same prominent facial feature, and it was never disputed that the appellant does have this facial feature.
[11] It is trite law that the appellant could only be convicted if the evidence establish beyond reasonable doubt that he is guilty, and therefore he should be acquitted if a reasonable possibility exist that he may be innocent. The conclusion to be reached in this regard must however account for all of the evidence, some of which may be unreliable. None of the evidence may, however, be ignored.
Vide       S v Van Der Meyden, 1999(1) SACCR 447 on 449 b-450 c
[12] On the evidence, the appellant is factually linked to the goods   robbed   at   around 01h00 when he testified that he assisted in conveying the goods to the house of Admira at around 04h00.   Two   witnesses identified the appellant at the scene of   the robbery. In the light of such evidence, the evidence of the appellant to the effect that he was asleep in his house that night and only awoken at 03h30 to assist in identifying the house of Admira must be considered to determine whether   such   version as placed before the trial court established a basis to find   that   it   is   reasonably possible   that the appellant is innocent of the crime charged.   The version   of the appellant in this respect is improbable and is rejected, considering   the   evidence as a whole. No proper reason is advanced why it was necessary for the appellant to identify the address of Admira or why this had to be done at that early hour   of the morning.
[13] In the context of this evidence linking the appellant to the goods removed during the robbery some two and a half hours later, the evidence of the wife and husband who testified positively that they identified the appellant as the "leader" of the group of perpetrators, and the improbability of the appellants version why he was in proximity of the stolen goods shortly after the robbery took place,, the appellant's version must be rejected.
[14] In  the premises the appeal is dismissed.

_______________________
PA VAN NIEKERK
  
ACTING JUDGE GAUTENG DIVISION PRETORIA
  
I concur
    
_______________________
MAUMELA
JUDGE GAUTENG DIVISION PRETORIA
  
APPEARANCES:

FOR APPELLANT:                               Mr KGAGARA 
INSTRUCTED BY:                               LEGAL AID SOUTH AFRICA

FOR RESPONDENT:                     ADV. HARMZEN 
INSTRUCTED BY:                             THE STATE ATTORNEY 
DATE OF HEARING:                     30 OCTOBER 2017
DATE OF JUDGMENT:               3 NOVEMBER 2017