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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION PRETORIA

 

(1)    REPORTABLE: 

(2)    OF INTEREST TO OTHER JUDGES:

(3)    REVISED. 

 

	CASE NO: A65/2020
In the matter between:
TSHEPO KUNENE	APPELLANT
and
THE STATE	RESPONDENT

 

JUDGMENT

 

MADIBA, AJ

 

INTRODUCTION

[1]  The appellant was convicted of robbery with aggravating circumstances on the 18 January 2019.  He was sentenced to fifteen (15) years imprisonment.  The appellant was also declared unfit to possess a firearm in terms of Section 103 (1) of the Firearms Control Act 60 of 2000.  The appeal is against conviction.

BACKGROUND

[2]  The evidence against the appellant is that he robbed the complainant of his cell phone and an amount of ninety-one Rand (R91.00) while walking along the street.  It was dark as there was load shedding in that area.  A knife and taser were used to rob the complainant of his possession aforementioned and he sustained serious injuries from the stabbing with the knife.

 

[3]  The complainant identified the appellant as the person who robbed him together with his companions. He could identify the appellant as he was residing in the same area with him but did not know his name and address.

 

[4]  A person often seen in the company of the appellant provided the complainant with appellant’s name and address.

 

[5]  The appellant was also seen in the presence of the complaint’s cousin by the name of Mpumi.  Mpumi was asked in the presence of the appellant about the appellant’s name and address as he is one of the persons who robbed him. The appellant’s details were provided to the complainant. The appellant did not refute the allegations.

 

[6]  A charge of robbery was laid with the police and the appellant was accordingly arrested.

 

[7]  The appellant raised the following as his grounds of appeal: -

 

a)    That the court a quo failed to prove his guilt beyond reasonable doubt;

b)    That the court a quo erred in rejecting his evidence as reasonably and possibly true.

c)    That the court a quo erred in ruling that the appellant was properly identified;

d)    That the evidence of the complainant being a single witness was not treated with caution.

 

[8]  It is accepted that the onus rests upon the state to prove the guilt of the accused beyond reasonable doubt.

 

[9]  All that is required from the accused is that his explanation be reasonably possibly true.

[10] The court is entitled to reject an accused’s version if it was found to be so inherently improbable that there was no reasonable possibility of it being the truth.[1]

 

[11] The appellant’s version can be summarized as follows: -

a)    He testified that at the time of the alleged robbery, he was at home watching T.V with his brother Bongani and thereafter went to sleep. The appellant submitted that he was on parole and was not supposed to be on the streets at night.

 

[12] His brother was called to corroborate the appellant’s version.  The court a quo found material contradictions, inconsistencies and improbabilities between the appellant and Bongani’s testimonies.

 

[13] The appellant’s defence of an alibi was rejected as being false. The only reasonable conclusion the court a quo came to is that the defence’s   evidence was a fabrication. His evidence was accordingly held not to be reasonably possibly true.

 

[14] It was contended on behalf of the appellant that the state’s evidence regarding the appellant is not reliable.  The reason thereof is that the   complainant went to enquire about the appellant from the person often seen in his company.  The incident took place during the evening in the middle of    a load shedding and the complainant was not able to identify his assailants.

 

[15] As the complainant was not wearing his eye glasses, being attacked by    several perpetrators in a moving scene, his attention divided, it was   impossible for him to say who robbed him.  The aspect in dispute is in   fact identity.

 

[16] In S v Mthethwa[2] the court said that because of the fallibility of human observation, evidence of identification is approached with caution.  It is not enough for the identifying witness to be honest. The reliability of his  observation must be tested.  This depends on various factors such as   lighting, visibility and eyesight, the proximity of the witness, his opportunity   for observation both to time and situation, the extent of his prior knowledge of the accused, the mobility of the scene, corroboration, suggestibility etc.

 

[17] The court has to take all the evidence into account, consider inherent strength and weaknesses, probabilities and improbabilities on both sides. The question to be considered is therefore, whether the circumstances at the time of the alleged offence were such that a proper and reliable observation of the appellant could be made.

 

[18] It is reflected on the record that the complainant after being attacked with a knife and robbed by the appellant and his companions, he immediately identified the appellant.  The complainant said that he will get him as he   knows him.

 

[19] After the appellant tapped the complainant at the back and stabbed him, they fought each other until the appellant slipped and fell down. I find that    the complainant had an opportunity to identify the appellant as they were   close to each other while fighting and struggling for possession of the knife used by appellant to attack him.

 

[20] In my view the following are the reasons that the appellant was positively identified by the complainant in this matter.  When questioned by the trial court about the visibility at the scene of the incident, complainant testified that there was moonlight. A person often seen in the company of the appellant was approached by the complainant solely for the address and name of the appellant not to confirm the identity of the appellant as the appellant wants the court to belief.

 

[21] To strengthen the fact the complainant knew the appellant as his attacker and robber; he confronted his cousin Mpumi who was with the appellant to   confirm the appellant’s address and name.  He identified him as the person who robbed him.  This piece of evidence was not disputed by the appellant.

 

[22] It should be noted that at no stage did the complainant go about to verify the appellant’s identity but to obtain his details regarding his address and name.  I find that the circumstances at the time of the incident do cater for a proper and reliable observation.  The complainant has reliably and positively identified the appellant as his attacker who robbed him of his cell phone and   money on that fateful day.

 

[23] The appellant’s counsel during the hearing of this matter correctly conceded when confronted with the reality that appellant was positively    identified, could not take the point of identity any further.  The version of the appellant is not supported by any evidence despite Bongani who was called   to testify on his behalf. The appellant’s witness was not helpful to his case. At the end of it all, the appellant’s evidence stand-alone like a sore thumb and was in my view correctly rejected as false.

 

[24] The improbabilities are so inherent that the version of the appellant could not be reasonably possibly true.  On the other hand, the probabilities are heavily stacked in favour of the state’s evidence against the appellant.

 

[25] It is my view that there is indeed evidence that the appellant committed the offence as charged.

 

[26] In S v Francis[3] it was decided that the powers of a court of appeal to interfere with the findings of fact are limited.  In the absence of any misdirection, the trial court’s conclusion including its acceptance of a witness’   evidence is presumed correct.

 

[27] It was argued on behalf of the appellant that the court a quo failed to approach the evidence of the complainant with caution as he was a single witness.  In S v Sauls[4] it was held that there is no rule of thumb test or     formula to apply when it comes to the consideration of the credibility of a single witness.  The court should weigh the evidence of a single witness and should consider its merits and demerits, having done so, should decide      whether the truth has been told despite short comings or defects in the evidence.

 

[28] It is therefore not correct that the court a quo did not consider the fact that the complainant was a single witness.  I am satisfied that the court a quo did exercise caution when dealing with the evidence of the complainant.  The existence of caution must not cloud the exercise of common sense.  The guilt of the appellant was proved beyond reasonable doubt. I am not persuaded that the court a quo erred in convicting the appellant.

 

[29] Therefore, the following order is made: -

 

            1. The appeal is dismissed.

 

            2. The conviction by the court a quo is confirmed.

 

 

 

 

 

                                                                           SS MADIBA 

                                                                           ACTING JUDGE OF THE HIGH COURT

 

 

I agree, and it is so ordered

 

 

                                                                          CJ VAN DER WESTHUIZEN

                                                                        JUDGE OF THE HIGH COURT

 

 

 

 

 

Appearances:

Appellant’s Counsel                            : Mr MB Kgagara

  083 5144 613

  BishopK@legal-aid.co.za

Appellant’s Attorneys                          : Pretoria Justice Centre

Respondents’ Counsel                         : Advocate AP Wilsenach

  083 823 8963

  awilsenach@npa.gov.za

Respondents’ Attorneys                     : National Prosecuting Authority

 

Date of hearing                                  : 19 August 2020

Date of judgment                               : 1 September 2020

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