S v Ranyawa (90/2004) [2006] ZANWHC 51 (10 August 2006)

IN THE HIGH COURT OF

SOUTH AFRICA

(BOPHUTHATSWAN PROVINCIAL DIVISION)

CA NO.: 90/2004

In the matter between:-

THABISO RANYAWA Appellant

and

THE STATE Respondent

APPLICATION

FOR LEAVE TO APPEAL

MAFIKENG

GURA J.

DATE OF HEARING : 30 June 2006

DATE OF JUDGMENT : 10 August 2006

COUNSEL FOR THE APPELLANT : Adv P.F. Pistorius

COUNSEL FOR THE RESPONDENT : Adv. E.D. Reynierse

JUDGMENT

GURA J

[1] The appellant was convicted of attempted robbery and five counts of attempted murder. He was sentenced to an effective imprisonment term of twenty years by a Regional Court. His appeal against the conviction to this Division was unsuccessful. This is an application for leave to appeal to the Supreme Court of Appeal. The basis of this application is that this Court failed to appreciate that the evidence of Mr Lucas Nkosi (“Nkosi”) is not satisfactory in every material respect.

[2] In an application for leave to appeal the applicant must show that there is a reasonable prospect of success or that there is a reasonable possibility that another court might come to a different conclusion (S v Ackerman en ʼn Ander 1973 (1) SA 765 (AD)

[3] The whole dispute in this case revolves around identity. The conviction is based solely on the evidence of a single witness, Nkosi. This witness had the following attributes:-

He is a self-confessed Criminal. He committed various crimes involving armed robbery in the company of the appellant. However, in the present crime, he had no finger in the pie. Although he was warned in terms of Section 204 of the Criminal Procedure Act before he testified, this was unnecessary because he is not an accomplice in this case. I assume that the warning was done just ex abundandi cautela.

He is a cousin to the appellant and they know each other very well. At one stage they did stay together at the appellant’s house.

He recognised the face of the appellant through an open window as the robbers’ car sped off from the scene of crime. The time for such observation must have been short. His opportunity for observation was further cut short by the robbers directing fire at him.

Amongst the eight robbers who were in the van he identified inter-alia, Accused No. 2, Thabo Rheba (Riba) and the appellant. All these three people were well known to him.

The trial court found that his identification of Accused 2 was totally incorrect. He actually mistook Dick Ngubene for Accused No.

2. The latter was accordingly acquitted.

The trial court found that he was further totally wrong by implicating Thabo Rheba (Riba) who, at that time, was in prison, serving life imprisonment.

Eleven months after the commission of this offence, he made a confession to a magistrate wherein he also implicated Carter. During the trial however, he denied to have ever mentioned that name, instead, he introduced a new name, Jafta.

[4] It is my considered opinion that there is a reasonable possibility that the Supreme Court of Appeal may find that Nkosi was not an honest witness or that his observation was not reliable.

[5] Consequently, leave to appeal to the Supreme Court of Appeal is granted.

SAMKELO GURA

JUDGE

OF THE HIGH COURT