S v Litako and Others

• Jurisdiction: South Africa
• Judge: Navsa JA, Ponnan JA, Leach JA, Petse JA and Swain AJA
• Judgment Date: 16 April 2014
• Citation: 2014 (2) SACR 431 (SCA)
• Docket Number: 584/2013 [2014] ZASCA 54
• Hearing Date: 07 March 2014
• Counsel: NL Skibi for the appellant, instructed by Legal Aid South Africa. Advocate Ndimande for the state.
• Court: Supreme Court of Appeal

Navsa JA and Ponnan JA (Leach JA, Petse JA and Swain AJA concurring):

H [1] During the night of 4 February 2007, at Mmatau Village in the district of Madikwe, North West Province, the owner of the White House Tavern and one of her patrons were robbed of R5000 and their cellular telephones. Another patron, Mr Godfrey Moleta Ngema, was assaulted. During the robbery, shots were fired as a result of which Mr Ben Seretse Motshwaedi (the deceased) was killed. The five appellants I and a co-accused (the fourth accused in the court below, who has not prosecuted an appeal) [1] were arrested and, in relation to the events described above, were charged in the North West High Court with

Navsa JA and Ponnan JA (Leach JA, Petse JA and Swain AJA concurring)

murder; two counts of robbery with aggravating circumstances; assault A with intent to do grievous bodily harm; four counts of possession of firearms in contravention of s 3 read with ss 1, 103, 117, 120(1)(a) and sch 4 of the Firearms Control Act 60 of 2000; and finally, one count of unlawful possession of ammunition, in contravention of s 90 read with ss 1, 103, 117, 120(1)(a), 121 and sch 4 of the Firearms Control Act. In B the summary of substantial facts attached to the indictment, the state alleged that the appellants had acted in furtherance of a common purpose in perpetrating the offences.

[2] In respect of the robbery charges it was alleged in the indictment that the owner of the tavern, one Ms Christinah Sibanda, was robbed at C gunpoint of R5000 in cash and a cellular telephone and that the patron, one Mr Bafana Elias Tshose, was assaulted and robbed of his cellular telephone.

[3] The appellants pleaded not guilty to all the charges. At the end of the ensuing trial they and their co-accused were convicted by Hendricks J as D follows:

(i)

The first, third and sixth appellants as well as their co-accused were convicted on the murder count and on the two counts of robbery.

(ii)

The second appellant was convicted on the murder count, the two counts of robbery and the count of unlawful possession of ammunition. E

(iii)

The fifth appellant was convicted on the murder count, the two counts of robbery and one count of unlawful possession of a firearm.

[4] The accused were convicted principally on the basis of a statement F made by the first appellant to a magistrate which, although exculpatory in respect of him, implicated the other appellants to a greater or lesser degree. The first appellant contested the admissibility of the statement, denying the truth of its content and that it had been freely and voluntarily made. Although the first appellant testified during a trial-within-a-trial held to determine the admissibility of his statement, he did G not testify in his defence in relation to the merits of the case against him. The other appellants and their co-accused all testified and denied any involvement in the events on which the charges were based.

[5] The appellants and their co-accused were sentenced as follows:

(i)

On the murder count, each to life imprisonment. H

(ii)

On each count of robbery, the appellants were sentenced to 15 years' imprisonment.

(iii)

Their co-accused was sentenced to 20 years' imprisonment on each of the robbery counts.

(iv)

The second appellant was sentenced to two years' imprisonment in I respect of the conviction of unlawful possession of ammunition.

(v)

The fourth appellant was sentenced to five years' imprisonment for

Navsa JA and Ponnan JA (Leach JA, Petse JA and Swain AJA concurring)

A unlawful possession of a firearm and two years' imprisonment for unlawful possession of ammunition.

[6] The five appellants, with the leave of this court, appeal against their convictions and related sentences.

B [7] It is necessary, at this stage, to set out in some detail the evidence adduced in the court below. The first witness to testify was the tavern owner, Ms Sibanda. She testified that the incident in question occurred on Sunday 4 February 2007 at approximately 22h00. One of the robbers approached her wanting to purchase tobacco. After handing it to him, C she departed to drink water and then heard the report of a firearm. The door of the tavern was apparently struck. Another bullet hit a window. Two other armed robbers came in through the back door and overpowered her. Her patrons were made to lie down on the floor on the other side of the counter. They threatened her and asked for money which she handed over. It was an amount of approximately R5000. They also took D her cellular telephone.

[8] Ms Sibanda's description of the robbers who had taken the money from her was insubstantial. She described one of them as being tall and dark in complexion. She testified that he had been wearing a cap pulled E towards his face so that it could not be seen. She described the second as being light in complexion. Asked whether she could identify them, she answered in the affirmative. It is common cause that subsequent to the robbery Ms Sibanda attended an identification parade at which she identified two persons who were not any of the accused in the court F below. Her reason for what she now accepts was a misidentification is that she had suffered a dizzy spell and had been 'over-frightened'. She did not, however, at that time communicate this to the police. In court she was adamant that the second appellant was one of the two robbers.

[9] Under cross-examination Ms Sibanda stated that the persons she G had identified at the identification parade looked like the robbers who had taken the money from her. Later she realised that she had identified the wrong people, but insisted in court that 'they' — the accused she saw in the dock — were the people who had robbed her. The following part of her testimony, under cross-examination, is significant:

'I did inform the second policeman that the people that I have pointed H out at the parade were not the correct people, now today when I came to court I then saw that they are here.'

[10] Ms Sibanda was unable to explain her earlier contradictory testimony that she had not informed the police about the misidentification at I the identity parade. It appears from Ms Sibanda's evidence that the identification parade had been held shortly after the robbery. In a statement to the police Ms Sibanda was emphatic that the first person she had identified at the identification parade was the one who had threatened her with a firearm, demanding money, and that the second person she identified at the identification parade was the one who had J both a firearm and a knife and that he was the person who had taken the

Navsa JA and Ponnan JA (Leach JA, Petse JA and Swain AJA concurring)

money. The reason provided in her statement to the police for A identifying two people at the identification parade is as follows: 'I have pointed the two suspects because I spent plus seven minutes with them.'

[11] For the first time, whilst she was under cross-examination, Ms Sibanda included the third appellant as being amongst the robbers. In explaining how she came to this belated awareness she said the B following:

'[I] told this court that this thing has happened a long time back but now as I am testifying their faces are now coming clearer to my memory.'

[12] Asked why she had not implicated the third appellant in her evidence-in-chief, she responded as follows: C

'I do not know, My Lord, but as you are rewinding in your mind it then come to you that now this one was also present.'

It appears that she was then identifying the third appellant as the one who had bought the tobacco from her.

[13] Mr Tshose testified about how the robbers had made him and D others lie on the ground, had searched them and had taken a cellular telephone from him. He testified that during the incident the robbers had taken the deceased to a separate room. Tshose too attended an identification parade at which he identified two people who had robbed him. However, he looked at the accused in the dock and said the following: 'It E is the first time for me to see them today.' This meant that the people he identified at the identification parade were not amongst the accused.

[14] The next witness to testify in support of the state's case was Insp Moses Lesenya. He testified that on 19 February 2007 he and two F colleagues were tracing a suspect in respect of a house robbery and rape case in a township near Rustenburg. Whilst driving in that vicinity an informer pointed out two persons whom they then pursued. During the pursuit he saw one of them throw something onto the grass. They retrieved a Norinco 9 mm pistol which had five live rounds of ammunition in its magazine. Inspector Lesenya identified the second appellant as the person from whom the firearm was retrieved. G

[15] Inspector Stephen Rantsho testified that he had accompanied Inspector Lesenya to investigate the house robbery and rape case. His evidence was largely in line with Inspector Lesenya's. He confirmed that a Norinco firearm, magazine and bullets were found. He sent them for forensic testing in a specially marked bag. H

[16] Captain Dennis Selabele testified that he was the investigating officer and that he had arrested certain suspects, none of whom included the accused. He testified about how he had traced the cellular telephone taken by the robbers from Mr Tshose. Following on reports received I from cellular-telephone service providers and after preliminary investigations, he ultimately travelled to Phokotweni Section, Malukela Village, in the North West Province. There he found the cellular telephone in the possession of a woman who told him that she had obtained it from someone else, presently in Rustenburg. He confronted that person who told him that he had obtained it from yet a further person. When...