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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

                                                                                                CASE NO: CAF 1/19

In the matter between:

THABISO ISHMAEL SEDOKO                                                   Appellant

AND

THE STATE                                                                                 Respondent

HENDRICKS ADJP, DJAJE J & NONYANE AJ

JUDGMENT

DJAJE J

Introduction

[1]        The appellant was arraigned in the High Court with his two co-accused. They were all charged with murder, robbery with aggravating circumstances and attempted murder. There was a separation of trial as one of the accused (“Hendrick Mosime”) pleaded guilty to murder and robbery with aggravating circumstances. He was convicted and sentenced. The appellant and the other accused (“Tshepo”) appeared together before another court. They had pleaded not guilty and their trial proceeded. Tshepo was found not guilty and discharged on all the counts in terms of section 174 of the Criminal Procedure Act 51 of 1977, at the close of the state case. The appellant was found guilty on all three counts and was sentenced to life imprisonment for murder, fifteen years for robbery with aggravating circumstances and five years for attempted murder. He now appeals against both conviction and sentence with leave from the Supreme Court of Appeal.

Factual Background

[2]      The evidence in this matter can be summarised as follows:

On the day of the incident being 2 April 2010, the deceased was with his three friends coming from a tavern in the early hours of the morning. They were accosted by some people. The deceased was grabbed and stabbed with a knife. One of the deceased’s friends, Mmamere Moabi was also stabbed with a knife on her neck. The deceased died at the hospital. The two witnesses who testified were Mmamere and Dieketseng, as they were in the company of the deceased on the day of the incident. They both stated that when the deceased was grabbed by one of the attackers, they both ran away to a nearby house to get help. On their return, they found the deceased already stabbed. Dieketseng testified that she then tried to hit the appellant with a bottle as the appellant was the one who stabbed the deceased. Mmamere who is the complainant in the attempted murder count, testified that she tried to speak to the appellant when he stabbed her on her neck. The two ladies could not identify the other people who were at the scene. None of the state witnesses testified about the charge of robbery with aggravating circumstances.

[3]        The appellant was from the same tavern as the deceased and the witnesses on the day of the incident. On his way home with his girlfriend, he saw people fighting in the street and recognised Hendrick Mosime. The other person who was with Hendrick Mosime was Tshepo. Both of them ran away from the scene of the incident where the deceased was stabbed. The police arrived and the deceased was taken to the hospital. He denied stabbing the deceased or Mmamere. According to him, the two ladies mistaken him for Hendrick as they are both tall and dark. The appellant’s girlfriend testified that she saw two boys chasing some people and saw one of them stabbing a person who was lying on the ground.

[4]        The appellant called Hendrick Mosime as a witness. In short he stated that on the day of the incident, he was with Tshepo and they attacked the deceased and his friends. He is the one who stabbed the deceased once and took his money. He then pleaded guilty to murder and robbery with aggravating circumstances.  Tshepo is the one who stabbed Mmamere on that day. He denied that the appellant was the one who stabbed and killed the deceased on the day in question or that he was in his company. The medical evidence before court was to the effect that the deceased had several superficial stab wounds but the fatal wound was the one on his neck that caused his death.

Ad Conviction

[5]        The argument raised on behalf of the appellant was that the two state witnesses were not able to identify the person who stabbed the deceased and the complainant properly as it was dark at the scene. The submission made was that it was not disputed that the appellant has the same features as Hendrick of being tall and dark and that could be reason why they said it was the appellant who stabbed instead of Hendrick. A further argument raised was that Hendrick tendered evidence in court that he is the one who stabbed and robbed the deceased. He pleaded guilty and was convicted as such. It is the appellant’s case that this is a clear case of mistaken identity and the conviction should be set aside.

[6]        The respondent’s argument was that the assessment of evidence as a whole point directly towards the appellant as the perpetrator. Further, that the two witnesses testified that they knew him and identified him as the perpetrator on that particular day. Counsel for the respondent conceded that on the charge of robbery with aggravating circumstances there was no evidence by the State to prove that the deceased was robbed of anything and as such the conviction on that charge should be set aside.

Law

[7]        The onus is on the State to prove the guilt of the accused beyond reasonable doubt. See:  S v Jackson 1998 (1) SACR 470 (SCA) @ 476e-f.

[8]        The following was stated in the case of S v Chabalala 2003 (1) SACR 134 (SCA) by Heher AJA at 40a–b:

“The correct approach is to weigh up all the elements which points towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and, having done so, to decide whether the balance weighs so heavily in favour of the State as to exclude any reasonable doubt to the accused’s guilt. The result may prove that one scrap of evidence or one defect in the case for either party (such as the failure to call a material witness concerning an identity parade) was decisive but that can only be on an ex post facto determination and a trial court (and counsel) should avoid the temptation to latch on to one (apparently) obvious aspect without assessing it in the context of the full picture in evidence.”

See also S v Trainor 2003 (1) SACR 35 (SCA) para [9]

[9]        In relation to the issue of identity, the following was stated in the case of S v Charzen and Another 2006 (2) SACR 143 (SCA):

“… as the courts had repeatedly emphasised, in the matter of identification, honesty and sincerity were simply not enough; there must be certainty beyond reasonable doubt that the identification was reliable. In his police statement, the complainant had described one of his attackers as a ‘man with dreadlocks’, but neither at the identification parade nor at trial did this accused have dreadlocks. What was significant about this was not the absence of dreadlocks, which were eminently removable, but the complainant’s response to this absence. He referred to the accused as having put on a hat of some kind, raising the possibility that there may in fact have been no dreadlocks at all. While it was true that facial characteristics were a more reliable source of identification than variable features such as a hairstyle, the complainant had mentioned the dreadlocks twice in his statement, and the very precision of his recall in other respects made the unaccounted-for error in this respect the more obtrusive.(paragraph [11] – [15] at 147i- 149a)”.

Analysis

[10]      It is not in dispute that the deceased and the complainant were stabbed on 2 April 2010. The two state witnesses testified that as soon as the deceased was grabbed, they ran away to a nearby house. On their return to the scene the deceased was already stabbed. There are contradictions in their evidence as to what happened on their return to the scene. One stated that she tried to hit the appellant with a bottle and the other one said that she touched him and asked him to stop. However, this evidence was not confirmed by any of them. They also contradicted each other about the stabbing of the deceased. Mmamere testified that when they came back from the place where they went to get help, the deceased was on the ground. On the other hand Dieketseng stated that when they left to get help, the deceased was already stabbed. These contradictions are material and go to the heart of what transpired on that particular day. It is also important to note that none of the state witnesses testified about the robbery. The concession by the respondent in this regard was correctly made.

[11]      In convicting the appellant, the court a quo found that the two state witnesses knew the appellant very well and could not have made a mistake about his identity. When confronted with the features of the appellant being the same as those of Hendrick Mosime, they conceded that they do look alike as they are both tall and dark. The issue of visibility also needs to be considered when dealing with identity. All the witnesses testified that where the incident took place, it was dark. However, the two ladies insisted that even if it was dark at the scene, they were still able to identify the appellant as the attacker. There is no evidence as to how they were able to establish with certainty that the person they saw, was indeed the appellant and not Hendrick Mosime. The witnesses did not give any identifying features of the appellant except to say that they knew him, which is not enough.

[12]      The appellant’s version together with that of Hendrick Mosime were rejected by the court a quo on the basis that Hedrick testified that he stabbed the deceased once, but the medical evidence was that the deceased had multiple superficial stab wounds on his chest area. This finding is unfortunate as the issue in this matter is who caused the death of the deceased. Hendrick admits to stabbing the deceased on his neck which was the wound found to have been the cause of death. In its judgment the court a quo found that ‘it was highly improbable that Hendrick and Tshepo participated in the stabbing as the deceased did not only sustain one injury’. This finding is made despite the fact that Hendrick was already convicted and sentenced for the murder of the deceased. As far as Tshepo is concerned, the following remarks were made in the judgment of the court a quo ‘Unfortunately accused 2 [Tshepo] managed to escape because at the time when the state closed its case there was no prima facie case that could put him into his defence. He was fortunate enough’.

[13]      The court a quo completely ignored the evidence of the appellant’s girlfriend and Hendrick that there was a short person at the scene, identified as Tshepo. This version was also put to the state witnesses during cross examination before the State closed its case. It is mind boggling that at the stage of discharge, this was not taken into consideration. All that the court a quo said about it is that Tshepo was fortunate enough. Throughout the state case the witnesses testified about other people being present at the scene but that they were not doing anything. It is improbable that the appellant could attack the deceased alone whilst his companions look on without offering any assistance. The version of the appellant and Hendrick is more probable that two people were attacking the deceased and his friends and the appellant should have been given the benefit of doubt.

[14]      There was also the issue of common purpose in the judgment of the court a quo. It was found that if the Appellant was not seen stabbing the deceased, then he was amongst the attackers who stabbed the deceased. This conclusion is baseless and cannot be sustained. There is no evidence that the appellant was amongst the attackers on the day of the incident. Hendrick testified that he was with Tshepo on that day and he did not say anything about the appellant being in their company. The evidence presented in this case is riddled with improbabilities. The State had not succeeded to prove beyond reasonable doubt that the appellant was indeed the one who stabbed the deceased and the complainant. In my view there was a misdirection and this Court should interfere with the conviction of the appellant on all the charges.

Order

[15]    Consequently, the following order is made:

1. The appeal against conviction and sentence is upheld.

2. The conviction and sentence are set aside.

3. The immediate release of the appellant is ordered.

______________________

J.T. DJAJE

JUDGE OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG

I agree

__________________________

R.D. HENDRICKS

ACTING DEPUTY JUDGE PRESIDENT

OF THE HIGH COURT, NORTH WEST DIVISION, MAHIKENG

I agree

_____________________

B.R. NONYANE

ACTING JUDGE OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG

APPEARANCES

DATE OF HEARING                                 :           11 OCTOBER 2019

DATE OF JUDGMENT                              :           14 NOVEMBER 2019

COUNSEL FOR THE APPELLANT        :           MR SETUMU

COUNSEL FOR THE RESPONDENT    :           ADV NONTENJWA

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