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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1)            REPORTABLE: NO

(2)            OF INTEREST TO OTHER JUDGES:NO

(3)            REVISED. YES

18.11.2021              

                                                                                    CASE NUMBER: A401/19

                                                                                                                                               

 

                                                                                  

 

In the matter between:

MOROJANE C                                                                                                       APPELLANT

 

and

 

THE STATE                                                                                                           RESPONDENT

 

JUDGEMENT

 

M.C. BALOYI AJ:

 

INTRODUCTION

 

[1]            This is an appeal against conviction only[1] handed down in the Regional Court Division of North Gauteng held in Benoni on the 11^th July 2018 against the Appellant. The Appellant together with two co-accused Zinhle Mbanjwa, (accused 1) and Hlengiwe Madonsela (accused 2) were charged for unlawfully and intentionally and in common purpose killing Antonio Castigo, a male person by kicking, hitting him with fists, throwing him with stones and whipping him with sticks.

 

[2]            They pleaded not guilty to the charge. Formal admissions in terms of section 220 of the Criminal Procedure[2] were reduced to writing in which they admitted the identity of the deceased, that he died on the 12 in Wattville and his body did not sustain any injury from the scene of the incident until post-mortem was conducted on his body.

 

[3]            The Appellant and the co-accused also admitted post-mortem report by Dr Saida which complied in terms of Section 212 requirements and indicate that the findings as noted in the report are correct and that the cause of death was consistent with blood aspiration with a person with blunt force, soft tissue and head injury.

 

[4]            The Court a quo found the Appellant and co-accused guilty and sentenced them to 15 years imprisonment in terms of the provisions of section 51(2) (a)(i) of the Act 105 of 1997. The Court a quo did not find any material and compelling circumstances to deviate from the minimum sentence.

 

[5]            The sole issue that was argued before us as regards the conviction was the issue of the identification of the Appellant by a single witness, Constable Mabunda.

AD EVIDENCE

 

[6]            The evidence presented by the State consisted of several witnesses, the first of which was Constable Mabunda, a member of the South African Police Services. He received a call regarding mob justice that was happening in Harry Gwala, at Khumalo street in the early hours on the 12 August 2017. He arrived at Khumalo street together with Constable Boer.

 

[7]            He saw a group of people who ran in different directions when they saw the police vehicle. However, there were four who remained behind and he approached them. They were the Appellant, Zinhle and Hlengiwe and one other who was not arrested. The four were hitting the deceased who was lying on the ground.

 

[8]            Mabunda testified that he could see the three perpetrators as the headlights of the police vehicle were on. He testified that he had enough time to look at them as he was communicating with them. Zinhle was hitting the deceased with a 1,2m stick which was thick as an arm. Hlengiwe hit the deceased with a stone and the Appellant had a bottle - they were all participating in assaulting the deceased. The deceased was bleeding and groaning whilst on the ground. The Appellant had a bottle of beer in his hand and he kicked the deceased and hit him with the bottle. Mabunda tried to stop the perpetrators from assaulting the deceased but to no avail.

 

[9]             He testified that there were people at the scene who were shouting, screaming, threatening to burn the bakkie. He then asked Constable Boer to call for back up and ambulance. He identified Zinhle since she had laid a complaint at the police station for rape where the deceased was one of the suspects. Mabunda testified that he did not know the Appellant and Hlengiwe prior to the incident, only saw them for the first time at the scene of the crime.

 

[10]        Boer testified that he went to Harry Gwala, at Khumalo street with Constable Mabunda in the early hour on the 12 August 2017. It was dark in the area but the headlights from the police vehicle were on. He saw group of people who ran away when they saw police vehicle except for four people who remained, it was two men and two women. He could only identify Zinhle. He confirmed that Mabunda was talking with the perpetrators in a vernacular language. He saw Zinhle with a stick. He also saw a man with a bottle and the other women had a stone.  They were assaulting the deceased. He could not identify Hlengiwe and the Appellant as the one assaulting of the deceased.

 

[11]        Appellant testified that he was coming from tavern and he saw group of people from the neighbourhood. He stopped to see what was happening. He saw a man being assaulted by the mob. He asked what was happening and was told that the man raped a lady in the neighbourhood. He asked for cigarette from Constable Nkojani. He denied participating in the assault. He testified that the deceased was already full of blood when he arrived. He testified that the co-accused were unknown to him. He testified that he was arrested at Constable Nkojane’s house. Mabunda asked him to give him the perpetrator’s names otherwise he will arrest him. He told Mabunda that he did not know their names. He testified further that he did not know the people in Harry Gwala as it was a big area.

 

[12]        None of the other accused identified the Appellant as being at the scene.

 

ANALYSIS OF EVIDENCE

 

[13]        It is common cause that the Appellant was at the scene of crime at the time the deceased was assaulted. The issue is whether he was part of the mob that killed the deceased.  Mabunda is the only witness who testified that he saw the Appellant. Mabunda testified and confirmed during cross examination that the Appellant had a bottle.  Mabunda went on to give details of the Appellant’s participation and that he hit the deceased with a bottle. Mabunda was certain that there was enough light at the scene for him to see the perpetrators, including the Appellant. It was confirmed by Boer that there was enough light. Mabunda testified that he was interacting with the four assailants, trying to stop them from assaulting the deceased. Boer also confirmed that Mabunda was talking to them. Zinhle and Hlengiwe confirmed that police headlights were on.

 

[14]        Counsel for the Appellant submitted that Boer’s evidence materially contradicted with Mabunda regarding the lighting and that he was unable to identify the Appellant as it was dark. He submitted that the court was only left with single witness for identification. He submitted that Mabunda mistakenly identified the Appellant. He submitted further that Mabunda’s evidence is not reliable as it was dark and therefore could not see the Appellant properly. The Appellant Counsel submitted that in the absence of corroboration from Boer, the court is required to exercise caution to Mabunda’s evidence.

 

[15]        It is trite that the courts should apply the cautionary rule to the evidence of a single witness. In S v Mthethwa[3] Holmes JA said the following regarding the evidence pertaining to 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. This depends on various factors, such as lighting, visibility and eyesight; the proximity of the witness, his opportunity for observation, both as to the situation; the extent of his prior knowledge of the accused; the mobility of the scene; corroboration; suggestibility; the accused face, voice, build, gait, and dress; the results of identification parades, if any; and of course, the evidence by or on behalf of the accused. The list is not exhaustive. These factors, or such of them as are applicable in a particular case are not individually decisive, but must be weighed one against the other, in light of the totality of the evidence, and the probabilities…”

[16]        The Appellant’s counsel submitted that the trial court only paid lip service to the cautionary rule. He further submitted that there is no corroboration from the state witnesses, particularly on the identity of the Appellant. The court a quo accepted Mabunda’s evidence that there was enough lighting from the police vehicle for him to see perpetrator. The court accepted Boer’s evidence as corroborating Mabunda in respect of the lighting. The court also accepted the Appellant’s testimony that the police headlights were on.  It was Boer’s evidence that Mabunda was communicating with the perpetrators in a vernacular language. The court accepted Boer’s evidence as reliable. The court accepted that Mabunda’s evidence was corroborated by Boer that four people were assaulting the deceased and Mabunda was trying to stop them. The court was satisfied that Mabunda was able to identify the Appellant as there was sufficient light at the scene and that he was able to identify the Appellant as a result 15 days after the incident.

 

[17]        It is important to note that in terms of section 208 of the Criminal Procedure Act, an accused may be convicted on the evidence of a single, competent witness. The court in S v Sauls & Others[4] stated:

“There is no rule of thumb test or formula to apply when it comes to a consideration of the credibility of the single witness. (see the remarks of RUMPFF JA in S v Webber 1971 (3) SA 754 (A) at 758).  The trial judge will weigh his evidence, will consider its merits and demerits and, having done so, will decide whether it is trustworthy and whether, despite the fact that there are shortcomings or defects or contradictions in the testimony, he is satisfied that the truth has been told. The cautionary referred to be De Villiers JP in 1932 may be a guide to a right decision but it does not mean “the appeal must succeed if any criticism, however slender, of the witness’ evidence were well founded.“

 

[18]         The court a quo found that Mabunda was a good witness. The court accepted his evidence specifically regarding the (1) the identification (2) that there were four people two man and two women assaulting the deceased and (3) there was enough lighting for Mabunda to see the Appellant.

 

[19]        The court rejected Appellant’s and his co-accused evidence as irrational, contradictory and improbable. His version was found therefore to be not reasonably, possibly true. The court found that the identification of Mabunda was reliable.

“It is trite that the court of appeal should refrain from lightly interfering with the credibility findings of a trial court which presumed to be correct. This is so because the trial court had the benefit of being steeped in the atmosphere of the trial court and observing and hearing the evidence first-hand. The trial court is therefore “in the best position to determine where the truth lies.”[5]

 

[20]        In my view, it is clear from the evidence that the Appellant took part in the assault of the deceased.

 

[21]        Given all the above, I am therefore satisfied that the court a quo was correct in accepting Mabunda’s evidence and the conviction must stand.

 

THE ORDER

 

[22]        In the result I make the following order:

             The appeal is dismissed.                                                                        

 

M C BALOYI

ACTING JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

 

B NEUKIRCHER

JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

 

       Matter heard on: 06 October 2021

Date of judgment: 18 November 2021

Delivered:  This judgment was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the Parties/their legal representatives by email and by uploading it to the electronic file of this matter on Case Lines.  The date for hand-down is deemed to be 18 November 2021.

 

For the Appellant                           : H.L Alberts

Instructed by                                  : Legal Aid

For the Respondent                        : S.D Ngobeni

Instructed by                                  : Director of Public Prosecution

 

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