Maseti v S (CA&R 187/09) [2009] ZAECGHC 68 (30 October 2009)

FORM A

FILING SHEET FOR SOUTH EASTERN

CAPE LOCAL DIVISION JUDGMENT

PARTIES:

MBUYISELI MASETI AND THE STATE

Case Number: CA&R 187/09

High Court: Eastern Cape – Grahamstown

Date Heard: 28 October 2009

Date Delivered: 30 October 2009

JUDGE(S): Pickering J & Revelas J

LEGAL REPRESENTATIVES –

Appearances:

for the Applicant(s): Adv CA Renaud

for the Respondent(s): Adv Bekker

Instructing attorneys:

Applicant(s): Legal Aid

Respondent(s): DPP, Grahamstown

CASE INFORMATION – Criminal Appeal

Nature of proceedings:

Key Words:

Not Reportable

IN

THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE – GRAHAMSTOWN

Case No: CA&R 187/09

Date Heard: 28/10/09

Date Delivered: 30/10/09

In the matter between

MBUYISELI MASETI Appellant

and

THE STATE Respondent

J U D G M E N T

REVELAS J

[1] This is an appeal, with leave of the court a quo, against the conviction and the sentence imposed by a regional magistrate sitting in Port Elizabeth. The 25 year old appellant was charged with one count of robbery with aggravating circumstances and one count of unlawful possession of a dangerous weapon, in contravention of section 2(1) the Dangerous Weapons Act, 71 of 1968. The appellant pleaded not guilty to both the charges on 30 March 2009 and briefly set out his defence which was an alibi in his plea explanation made in terms of section 115(1) of the Criminal Procedure Act, 51 of 1977, as amended. The following day he was convicted on both counts and sentenced to 10 years and 12 months’ imprisonment respectively.

The sentences were ordered to run concurrently, the effective sentence imposed therefore being 10 years’ imprisonment. The state has counter-appealed against the sentence imposed on the basis that it was too lenient.

[2] It was the case for the prosecution on the merits, that on 22 April 2008, the appellant and three companions had Mr Mandla Hini, a builder by trade and other persons, of certain building tools and his cellphone, while he and five other men were effecting building alterations in a house in A Avenue, New Brighton. This house belonged to the mother of Mr Madoda Nube, the owner of the building tools under the control of Hini. Nube was not present during the robbery. The tools were located shortly after the robbery in two shacks in Teya Street, New Brighton. The appellant and the young man called Andile, who was arrested with him, both live in Teya Street, not far from where the robbery took place. A Avenue and Teya Street are separated by a soccer field and are situated in reasonably close proximity to each other. Of the four suspected robbers, the state only proceeded against the appellant and one other. A separation of trials was ordered. One suspect was still at large.

[3] Hini, the complainant, testified that on 22 April 2008 he and five other men were busy with building operations at the house in A Avenue, when the appellant entered the house and made enquiries about the whereabouts of one Tembelani and left. He said he told the appellant that there was no one there by that name. After about 20 minutes the appellant returned in the company of three other men and he was carrying a firearm. Mr Mthimzimkhule Sela, one of the other builders testified that he was asked about Tembelani’s whereabouts by the appellant and responded that he was not present. Since he knew of no person called Tembelani in that area, which he called “Boast”, the appellant’s conduct aroused suspicion and he went outside to investigate. While

pretending to make a phone call on his cellular phone, he noticed the appellant and three other men appearing from behind a locked up freight container used as a shop. They approached the house where they were building and entered. Sela said he recognized the appellant as a person whom he saw, prior to this incident, in Teya Street. He knew him as “Boetie”. The appellant has a scar on his left cheek and admitted to having the nick name of “la boetie u scar”.

[4] Both Hini and Sela testified that upon entering, the appellant went to stand in front of Hini, pointing a firearm at him while his three companions, on his instructions, collected the building tools which were later found in Teya Street. These consisted of a drilling machine, a jackhammer a mini breaker and a bolt cutter. Hini’s cellphone, which was also taken in the robbery, was never recovered.

[5] Hini testified that the other builders were ordered by the robbers to lie on the floor. He decided to take a chance and disarm the appellant. A struggle for the gun ensued and a shot was fired. The bullet was dispensed into the ceiling. One of the other robbers, wearing sunglasses a black and grey striped jersey, came to the assistance of the appellant and hit him (Hini) on the back with an unknown object and he fell to the floor. The appellant then stood over him, pointing his firearm threatening to kill him. At this point the other robbers indicated that they were ready to leave. Just before they left, the appellant prepared to fire another shot, but apparently the chamber of the gun was empty. Hini said he immediately went to phone Madoda Nube (the

owner of the tools) who arrived with police and they set off in two vehicles searching for the robbers. About 30 minutes later, about 500 metres away from the house where they were robbed, and in Teya Street, two of the robbers were seen and arrested. One of them was the appellant. According to Nube, the following day, he received a phone call from a person called Vuyile Mbuyi who gave him information about the whereabouts of the stolen goods and they were found in Teya Street, however not at the appellant’s house. Hini said that the person arrested with the appellant, wore jeans and a t-shirt. Both Hini and Sela described the robber with the firearm (the appellant) as wearing blue overall, consisting of blue trousers and a blue top. Hini also described one of the robbers as wearing a tracksuit top and another as being short and dark in complexion.

[6] The appellant gave evidence that on the night in question, just after 9 pm, he was at home in Teya Street watching television with his girlfriend. At about 10 pm he left the house to buy electricity. He was wearing a blue overall top and blue jeans. On the way he met his friend Andile who was drinking at a nearby drinking place called Whitehouse Tavern. Andile, who wore a rastafarian hat walked home with him because he wanted to borrow R20.00. On their way to Teya Street they were arrested, having been pointed out by Hini. He said he was assaulted by Hini who hit him with a brick on his neck. He stated that he and Andile were further assaulted by a policeman called Muller and also by members of the community.

[7] The appellant denied any knowledge of the robbery or possession of a firearm and led the evidence of his girlfriend to corroborate his version. She testified that the appellant watched television with her, confirming his version that they watched the Lotto programme and a programme featuring wrestling. She was uncertain as to what type of trousers he wore, though she thought it was blue overall trousers. Her evidence did not really assist the appellant’s case as she said she did not know where he went.

[8] The magistrate rejected the appellant’s version and accepted that, except for a few minor differences, Sela corroborated Hini’s version about the robbery in all material respects. The discrepancies in the evidence, relied on by the appellant’s legal representative, were firstly, that Hini’s testimony about the robbers ordering the builders to lie down, differed from Sela’s, who testified that they were ordered to huddle in the corner. However, Sela did give evidence that, when Hini struggled with appellant for possession of the firearm, they were ordered to lie down. He said he remained standing though, which also appears to contradict Hini’s evidence in this regard. Secondly, Sela was also criticized for saying the appellant’s scar was on the right side of his face whereas it was on the left. I would agree with the magistrate that these discrepancies do not appear to be material though.

[9] There are however certain other aspects regarding the two identification witnesses which raise concern and which were not dealt with by the magistrate. The first was the discrepancy in the versions of Hini and Sela concerning the appellant’s alleged enquiry as to Tembelani’s whereabouts. On Hini’s version, he was the one who told the appellant that there was no Tembelani. According to Sela, he (Sela) had this conversation with the appellant and Hini was in a different room. This casts doubt as to whether Hini really saw the appellant more than once, and clearly affects his reliability as an identification witness.

[10] The second aspect was that Sela had seen the appellant before this incident in Teya Street, and apparently more than once. It was submitted on behalf of the appellant, that if Sela indeed recognized the appellant as one of the robbers, he would have identified him to the police, before the arrest, which did not happen. In my view, there is merit in this submission. According to Sela, he did not even mention it in his statement to the police.

[11] Another worrying aspect of the identification evidence was that Sela testified that one of the robbers wore a rastafarian hat, a rather noticeable piece of clothing, and that this robber was the person who was arrested with the appellant. Surprisingly, Mr Hini makes no mention of any of the robbers wearing such a hat, whereas he could describe with some detail, the clothes of the two other robbers. Moreover, Hini was uncertain as to whether this person (Andile) who was arrested with the accused, was indeed one of the robbers. Even the appellant described his companion, Andile, as wearing a rastafarian hat when they were arrested.

[12] Relying on the case of S v Mkohle 1990 (1) SACR 95A at 98 e-f, the magistrate held that the contradictions in the evidence of the witnesses for the state were errors which should not

result in rejecting their evidence. She also restated, with reference to S v Artman 1968 (3) SA 339 A at 341, the principle that evidence regarding identity must be treated with caution and also warned against replacing common sense with caution when dealing with contradictions.

[13] The concerns outlined above, go beyond replacing common sense with caution, in my view. The discrepancies mentioned cast doubt on the reliability of the evidence led on identification in this case. In S v Charzen and Another 2006 (2) SACR 143 (SCA). Cameron JA (as he then was) stated the following at paragraph [11], 147 i-j:

“But, as our courts have emphasized again and again in matters of identification, honesty, sincerity and subjective assurance are simply not enough. There must, in addition, be certainty beyond a reasonably doubt that the identification is reliable”.

[14] Considered cumulatively, the inconsistencies discussed above tend to undermine the reliability of the evidence regarding the identification of the appellant quite seriously. It is not certain beyond reasonable doubt that the appellant was the robber with the firearm. He lived in the area where he was arrested. An accused only has to give an explanation which is reasonably possibly true. If the evidence regarding the appellant’s identification is to be excluded, his explanation becomes reasonably possible and should be accepted as such.

[15] Consequently, the appeal is upheld and the judgment of the magistrate on both conviction and sentence is set aside and substituted with the following:

[16] The accused is acquitted on both charges.

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E REVELAS

JUDGE OF THE HIGH COURT

Pickering J: I agree.

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JD PICKERING