Nkosi v S (A195/2016) [2017] ZAGPPHC 776 (9 November 2017)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: A195 /2016

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

9 November 2017

In the appeal between:

SIBUSISO EVANS NKOSI APPELLANT

and

THE STATE RESPONDENT

JUDGMENT

PHAHLANE, AJ

[1] This is an appeal against conviction imposed by the Vereeniging regional court on the 18th August 2015.

[2] The appellant who was legally represented in the proceedings in the court a quo, was convicted on one count of housebreaking with intent to rob and one count of robbery with aggravating circumstances. The two counts were taken together as one for purposes of sentencing and the appellant was as such sentenced to fifteen years imprisonment.

[3] This court has to determine, as a cou1t of appeal, whether the appellant was correctly convicted in respect of each conviction.

[4] It is trite law that a court of appeal will not interfere with or temper with the trial court's judgment or decision regarding a conviction, unless it finds that the trial court misdirected itself as regards its findings or the law.

[5]The conviction of the appellant arose from the events which occurred on the 151 of August 2014 at the home (i.e. office) of the complainant Mr R.J. Muvango who alleged that the appellant and his brother who was the co-accused at the court a quo broke open the door to his office and took a computer tower. He testified that the door was locked when he heard people smashing the window. According to him the appellant and his co-accused forcefully opened the door to his office and entered, when the appellant pointed him with a firearm and his co-accused hit him with a brick on the hips. He was later taken to Lilian Boy hospital where he received medical attention.

[6]It was submitted on behalf of the appellant that the trial court erred in rejecting the evidence of the appellant as not being reasonably

possibly true, and that being the fact that the appellant, having admitted that he entered into the office of the complainant and

removed a computer tower, did not do so with the intent to rob the complainant of his property or to permanently deprive him of such property.

[7] It was further submitted on behalf of the appellant that the trial court erred in not applying the cautionary rule to a single witness, being the complainant in this matter. Though a single witness, the trial court found that the complainant was an honest and credible witness who did not contradict himself.

[8]The respondent, in his heads of argument, conceded that the complainant was a single witness but submits that the complainant was consistent in his testimony and gave coherent account of the events which happened on the l51 August 2014.

[9] With regards of the evidence of a single witness, Section 208 of the Criminal Procedure Act 51 of 1977 (CPA) states very clearly that "an accused person may be convicted of any offence on the single evidence of any competent witness". The appellant has submitted in his heads of argument and in support of the state's argument that an accused person may be convicted on the single evidence of a competent witness as outlined in section 208 of the CPA.

[10] See in this regard S v Webber 1971 (3) SA 754 (A). The court held that "conviction is possible on the evidence of a single witness. Such witness must be credible. and the evidence should be approached with caution. Due consideration should be given to factors which affirm, and factors which detract from the credibility of the witness. The probative value of the evidence .of a single witness should also not be equated with that of several witnesses".

[11] The appellant in the matter before the court relied on the decision of R v Mokoena 1939 OPD 79, that "the evidence of a single witness should be relied upon when it ;is clear and satisfactory in every material respects ".

[12] To this, OGILVIE THOMPSON AJA said in S v T 1958(2) SA 676 (A) at 678, that "the remarks of the judge in Mokoena's case were not to be elevated to an absolute rule of law".

[13] This was reiterated by DIEMONT JA who, in dealing with section 208, in S v Sauls and Others 1991 (3) SA 172 (A) held that:

"There is no rule of thumb test or formula to apply when it comes to a considerationof the credibility of a single witness. 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 rule referred to by De Villiers JP in the Mokoena case may be a guide to a right decision but does not mean "that the appeal must succeed if any criticism, however slender, of the witnesses' evidence were well founded".

[14] The complainant testified that he was assaulted by being hit with a brick

on his ribs during the robbery. His evidence is corroborated by the J88 which was admitted by agreement as Exhibit A, into the record. The J88 shows that the complainant was attended to by a doctor who upon examination, found that there was "tenderness on his right rib". The assault on the complainant constitutes an act of violence, which is a requirement or one of the elements for the crime of robbery. The assault on the complainant was a means by which the unlawful possession of his property was obtained. See in this regard, S v Dlamini 1975 (2) SA 524 (N) where KUMLEBEN J, stated that ''robbery is an aggravated form of theft, namely, theft committed with violence. The violence (assault) and the theft are joint features of the one crime. The key considerations justifying a conviction of this composite crime are proof that the assault and the theft formed part of a continuous transaction and that the assault was a means by which the unlawful possession was obtained".

[15] The appellant admitted taking the computer tower belonging to the complainant in his section 115 statement and in his evidence before court. He however denied that the complainant was home when his property was taken. According to him, he thought that the complainant would come and talk to him and his brother about the computer tower which they have taken. He confirmed under cross-examination that since the complainant was not present when the tower was taken, he could not have known who took it. The trial court found, and rightly so, that the only reason or explanation why the complainant would be in a position to know who broke and entered into

his office and removed his property, was if he was there.

[16] I am in agreement with this finding. The complainant testified that he was present when his office was broken into. He was able to identify the appellant and his brother and report the matter to the police.

[17] When evaluating or assessing evidence, it is imperative to evaluate all the evidence, and not to be selective in determining what evidence to consider.

[18] See in this regard S v Van der Meyden 1999 (1) SACR 447 (W) where NUGENT J stated at 450 that:

"What must be borne in mind. however, is that the conclusion which is reached (whether it be to convict or to acquit) must account for all the evidence. Some of the evidence might be found to be false, some of it might be found to be unreliable, and some of it might be found to be only possibly false or unreliable, but none of it may simply be ignored"....

[19] It was argued on behalf of the appellant that the evidence of Kidibone Sebeka who was called as a defence witness, should have been taken into consideration. Kidibone Sebeka testified that she had witnessed the complainant assaulting the appellant's brother during the day. It was submitted on behalf of the appellant that it was as a result of this assault on the appellant's brother that the pair decided to confront the complainant in the early hours of the morning (i.e., 3am) in order to make him pay for what he has

done to the appellant's brother. This assault on the appellant's brother was denied by the complainant. l am of the view that this

argument does not hold water.

[20] The responded submitted, rightly so, that the denial by the complainant is not fatal to the state's case. This is so because

Kidibone Sebeka did not witness the robbery itself.

[21] I'm inclined to agree with the trial court that it did not make any sense for the appellant and his co-accused, to go at the house of the complainant in the early hours of the morning after they had broken his window and then say they wanted to have a civil conversation with him in order to find out why the complainant had smacked/assaulted his brother (i.e. co-accused).

[22] I am in agreement with the trial court that the state has proven its case against the appellant beyond any reasonable doubt. The count of house breaking with intent to rob has been proven. The door to the office of the complainant was broken into in order to gain entry and the window was broken as depicted in the photo album that was submitted into the record as Exhibit B. The count of robbery was also proven in that all the elements for the crime of robbery has been proven.

[23] Having considered both arguments before this court, and taking into consideration all factors, as well as the totality of all the evidence before the court, I propose that the following order made

1. The appeal against conviction is dismissed.

PD PHAHLANE

ACTING JUDGE OF THE GAUTENG DIVISION, PRETORIA

I agree - and it is so ordered.

SAM BAQWA J

JUDGE OF THE GAUTENG DIVISION, PRETORIA

Heard on: 6 November 2017

For the Appellant: AdvVanAs

Instructed by: The Legal Aid Board, Pretoria

For the Respondent: Adv Nethononda

Instructed by Deputy Director of Public Prosecutions