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South Africa Judgment

North West High Court, Mafikeng

S v Molemi (74/2007) [2007] ZANWHC 58 (11 October 2007)

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Professional case brief

Research organized from the available case record

Source document

01

Holding and result

The court found that the State's evidence regarding the identity of the accused was poor, marked by self-contradictions and cross-contradictions between the witnesses. The first witness could not positively identify the accused, and the second witness saw only a partially covered face and called out a name without certainty. The accused's alibi was corroborated by his brother, whose testimony was unshaken and credible. In light of the insufficient and unreliable identification evidence, the accused ought to have been discharged at the close of the State case under section 174 of the Criminal Procedure Act. The conviction and sentence were therefore set aside.

Court disposition

Conviction and sentence set aside; accused to be released immediately.

Orders

  • The conviction and sentence are set aside.
  • The accused is to be released with immediate effect.

02

Material facts

Parties

The State

Applicant

Samuel Phera Lonto Molemi

Respondent

03

Procedural history

  1. Posture

    Review Application / Review Judgment

04

Questions and positions

Legal issues

Party arguments

Applicant
The State relied on the testimony of two witnesses to establish the identity of the accused. The first witness saw only the feet of an intruder dressed in blue trousers and was uncertain about the sequence of events. The second witness saw only half of the intruder's face, which was partially covered by a bag, and called out the name 'Lonto' as the intruder fled. The State argued that these observations, together with circumstantial evidence, were sufficient to link the accused to the crime.
Respondent
The accused maintained that he was locked in a shack by his brother on the night in question, and this was confirmed by his brother's testimony. The defence argued that the State's evidence was inconsistent, contradictory, and failed to establish the accused's identity beyond reasonable doubt. The accused contended that he should have been discharged at the close of the State case under section 174.

05

Court’s reasoning

  1. 01

    Section 174 of Act 51 of 1977

    Where the State's evidence is insufficient to establish the identity of the accused beyond reasonable doubt, the accused must be discharged at the close of the State case under section 174 of the Criminal Procedure Act.

  2. 02

    S v Mthethwa 2004 (1) SACR 449 (E)

    The quality of identification evidence must be carefully scrutinised, and contradictions or uncertainties may render such evidence unreliable.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the State's evidence regarding the identity of the accused was poor, marked by self-contradictions and cross-contradictions between the witnesses. The first witness could not positively identify the accused, and the second witness saw only a partially covered face and called out a name without certainty. The accused's alibi was corroborated by his brother, whose testimony was unshaken and credible. In light of the insufficient and unreliable identification evidence, the accused ought to have been discharged at the close of the State case under section 174 of the Criminal Procedure Act. The conviction and sentence were therefore set aside.

Obiter and limits

  • The court emphasised the importance of scrutinising identification evidence, especially where the circumstances are unclear and the witnesses' accounts are inconsistent.
  • The procedure under section 174 is designed to protect accused persons from being placed on their defence where the State's case is manifestly insufficient.

Court disposition

Conviction and sentence set aside; accused to be released immediately.

  • The conviction and sentence are set aside.
  • The accused is to be released with immediate effect.

Source and reliance status

North West High Court, Mafikeng

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Judgment reading view

Judgment text

The complete available source text.

Source document

North West High Court, Mafikeng

Judgment

[2007] ZANWHC 58

CA NO 74/2007

IN THE HIGH COURT

OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

THE STATE

and

SAMUEL

PHERA LONTO MOLEMI

REVIEW JUDGMENT

MOTSOMANE AJ

[A] Introduction:-

[1] The accused in this matter had been convicted of theft and sentenced to six (6) months imprisonment after the State had led evidence of two (2) witnesses.

[B] Merits:-

[2] The first witness Anna Maria Modise woke up at night while intruders were already inside the house. She could not recognise any of them except seeing the feet of one of them who was dressed in blue trousers.

[3] The sequence of how it happened is not clear as at times she averred that this person entered through the window and she woke up when the window was fiddled with.

[4] The second witness was woken up by the first witness and all that she saw was half-face of the intruder as half was covered with the bag. When the intruder left the premises, she called the name Lonto and the intruder fled.

[5] At the close of the State case the learned Magistrate correctly so, invited an address in terms of Section 174. Despite the poor evidence of identity, self-contradictions and cross-contradictions of witnesses, the accused was placed in his defence.

[6] Because of the plea of accused the State was supposed to lead sufficient evidence of identity which had to be read in conjunction with the other evidence.

See:- S v Mthethwa 2004 (1) SACR 449 (E).

Section 174 of Act 51 of 1977.

[7] On the other hand the evidence of accused was unshaken, cogent and strong as his brother confirmed to the witnesses that he had locked him into the shack on that particular night.

[C] Conclusion:-

[8] The accused ought to have been discharged at the close of the State case and the following order is made:-

“[a] The conviction and sentence are set aside;

[b] accused to be released with immediate effect.”

R H MOTSOMANE

ACTING JUDGE OF THE HIGH

COURT

11 OCTOBER 2007

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

S v Mthethwa 2004 (1) SACR 449 (E)

Case cited

Section 174 of Act 51 of 1977

Legislation

Legislation referenced in the available case record.

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