THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case No:  604/12
In the matter between:

DAVID SITHOLE

Appellant

and

THE STATE

Respondent

Neutral citation: Sithole v The State (604/12) [2013] ZASCA 55

(04 April 2013)
Coram:
Mpati P, Majiedt JA, Southwood, Plasket, Saldulker AJJA
Heard:

14 March 2013

Delivered:
04 April 2013

Summary: Criminal Law - unrepresented accused - robbery with aggravating
circumstances - reliability of identification - evidence of complainant not
corroborated – criminal proceedings - right to a fair trial - role of Judicial officers
and state prosecutors – lack of fairness and impartiality.

_______________________________________________________________
ORDER
____________________________________________________________________________________
On appeal from: North Gauteng High Court, Pretoria (De Jager AJ and
Bergenthuin AJ sitting as court of appeal):

1.
The appeal is upheld.
2.
The order of the high court is set aside and substituted with the following:
‘The appeal is upheld and the conviction and sentence are set aside.’

JUDGMENT

SALDULKER  AJA (Mpati P, Majiedt JA, Southwood and Plasket AJJA
concurring):

[1]   The appellant was convicted in the regional court, Mamelodi, Pretoria on a
charge of robbery with aggravating circumstances on 20 November 2002.
Having found no substantial and compelling circumstances, the regional
magistrate sentenced the appellant on the same date to 15 years’ imprisonment in
terms of the Criminal Law Amendment Act,105 of 1997 (the Act). On 17 July
2006, his appeal to the North Gauteng High Court (De Jager AJ and Bergenthuin
AJ) against both the conviction and sentence failed. The appellant was, however,
granted leave to appeal to this court on both conviction and sentence by Van der
Merwe DJP and De Vos J on 21 September 2011.
[2] Regrettably for the appellant, given the outcome hereof, this appeal comes
before us after his release on parole, and after he had served eight years of the
sentence.
[3] The main issue in this appeal is whether the appellant, who was
unrepresented during his trial, was properly convicted of the charge against him.

I shall also comment on whether he had a substantively fair trial. The events
giving rise to the charges upon which the appellant was convicted and sentenced
are as follows.  The complainant, Ms Nancy Mokoena, testified that at 07h30 on
13 December 2001, she was walking in (the district of ) Mamelodi East, on her
way to visit her cousin, when she was accosted by two men, both unknown to
her, one armed with a firearm, and robbed of her cellphone. They then ran away
but a distance away, the one with the firearm fired two shots in her direction. The
complainant proceeded to her cousin’s home where she reported the incident.
Her cousin Mr Edward Leyana then accompanied her to the site of the incident
where they found a group of people sitting and drinking sorghum beer at a
nearby house. Two of the people from the group claimed that they had seen the
incident, and that the robber with the firearm was known to them, and that his
name is David and he exercised at the nearby gymnasium. According to the
complainant that afternoon, whilst she had been sitting outside her cousin’s
house, she saw the appellant, walked passed her to the gymnasium. The appellant
was then identified as the robber and this led to his arrest.
[4] The appellant’s version was an alibi. He denied his involvement in the
robbery incident and stated that on that day, he was at work in Sunnyside.  The
trial court found that the state had proved the appellant’s guilt beyond a
reasonable doubt and rejected the appellant’s version on the basis that it was so
improbable and beyond belief that it could not reasonably possibly be true.
[5] On appeal the state contended in its head of argument that the appellant
had been wrongly convicted and that he had not received a fair trial. The state
confirmed this at the hearing. The state’s case against the appellant rested on the
evidence of the identification   of the appellant by a complainant, who was a
single witness to the robbery. In S v Sauls1 it was held that when it comes to a
consideration of the credibility of a single witness, the trial judge will weigh the
evidence, consider its merits and demerits and, having done so, will decide

1 S v Sauls 1981 (3) SA 172 (A) at 179G-180H.

whether, despite the fact that there are short-comings or defects or contradictions
in the testimony, he is satisfied the truth has been told. Futhermore, the exercise
of caution must not be allowed to displace the exercise of common sense. The
complainant’s identification of the appellant in this case was not reliable and was
based on what other people had told her, and none of these people testified.
There is nothing in the objective facts which corroborates the complainant’s
identification of the appellant during the actual robbery. The magistrate
accordingly erred in concluding that the complainant’s evidence was satisfactory
in every material respect and that the appellant’s guilt was proved on the strength
of her testimony, as a single identification witness2.
[6] As far as the appellant’s version is concerned, it appears that the
magistrate gave it only cursory and superficial consideration. The magistrate did
not follow the rules of assessing the appellant’s evidence in the context of all the
evidence to determine whether his defence was reasonably possibly true.3 A
court cannot simply reject the accused’s version because it finds the prosecution
witnesses to be credible. It must substantiate reasons for rejecting the accused’s
version.4
[7] The unreliability of the state’s case on identification set out above and the
fact that the appellant’s version was wrongly rejected as not being reasonably
possibly true, must result in the conviction and sentence being set aside.

[8] I deem it necessary to mention that there were disquieting features of the
trial which amount to irregularities which were prejudicial to the appellant and
which would, in any event, have resulted in the proceedings against him being
vitiated. I propose doing no more than to mention them briefly:
(a) the magistrate failed to inform the appellant of his constitutional right to choose

2 S v Mthetwa 1972 (3) SA 766 (A) at 768A-C.
3 S v  Van Aswegen 2001 (2) (SACR) 97 (SCA) para 8.
4 S v Guess 1976 (4) SA 715 (A) at 718D-719A; S v Shackell 2001 (2) SACR 185 (SCA) para 30.

and be represented by a legal practitioner;5 or his right to have a legal
representative assigned to him by the state and at state expense where, as here,
substantial injustice would otherwise result;
(b) the magistrate failed to assist the unrepresented appellant during the trial, and
on the contrary, curtailed his cross examination concerning a material aspect,
namely discrepancies between Leyana’s viva voce evidence and his police
statement;
(c) the magistrate  was  biased against the appellant by making the following
statement at a stage in the trial when the state had not yet closed its case :
‘Yes, Sithole. You must consider yourself lucky for getting away with this because even if the
firearm is not found, if there is proof that it was fired you look to face prison charges. You
must thank your lucky stars’.

[9] An unrepresented accused has a limited appreciation of the legal process
and is greatly disadvantaged in legal proceedings, where he or she has to conduct
his or her own defence. Judicial officers must ensure impartiality, objectivity and
procedural fairness in respect of the unrepresented accused who lacks familiarity
with courtroom technique and legal knowledge in order to ensure a fair trial. The
judicial officer must assist the unrepresented accused in all facets of the trial,
ensuring that only admissible evidence is placed before it.

[10] For more than a decade the appellant has tried to have his conviction and
sentence set aside.  After he was convicted and sentenced on 20 November 2002,
he lodged an appeal against both his conviction and sentence which was heard by
De Jager AJ and Bergenthuin AJ on 17 July 2006. In that court, the prosecution
was unyielding in its quest to have the appellant’s conviction confirmed and
continued to contend that the complainant was a satisfactory and reliable

5 Hlantlalala v Dyanti NO 1999 (2) SACR 541 (SCA) para 8; S v Rudman; S v Mthwana 1992 (1) SA 343 (A) at
382C-H; S v May 2005 (2) SACR 331(SCA).

witness. The appellant subsequently lodged an application for leave to appeal to
this court in July 2007.This application was delayed and postponed on several
occasions thereafter.

[11] On 7 January 2010, eight years after being sentenced, the appellant was
released on parole. He continued to pursue the hearing of his application for
leave to appeal which was eventually heard and granted by Van Der Merwe DJP
and De Vos J on 20 September 2011. The state did not oppose this application as
it was not convinced that the appellant had been correctly convicted. The state
had an opportunity to concede in the court below that the appellant had not been
convicted properly, but failed to do so until the matter was heard before this
court. It is a travesty of justice that the appellant had to wait more than a decade
to finally succeed in having his conviction and sentence set aside, and then only
after being released on parole, having served eight of the fifteen year sentence.
[12] In the circumstances, I make the following order:
The appeal is upheld.
The order of the high court is set aside and substituted with the following:
‘The appeal is upheld and the conviction and sentence are set aside.’

_____________________
H SALDULKER

ACTING JUDGE OF APPEAL

APPEARANCES

For Appellant:

M. Calitz
Instructed by:
Justice Centre, Bloemfontein

For Respondent:

A. Coetzee
Instructed by:

Director of Public Prosecutions, Bloemfontein
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
4 April 2013
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.

David Sithole v The State (604/12) [2012] ZASCA ( 4APRIL 2013)
The Supreme Court of Appeal (SCA) handed down judgment today in an appeal from the
North Gauteng High Court, Pretoria (High Court). The matter concerned an appeal against
both conviction and sentence on a charge of robbery with aggravating circumstances.
The appellant was convicted in the regional court in Mamelodi, Pretoria (the trial court) on a
charge of robbery with aggravating circumstances in 2002, and sentenced to the prescribed
minimum of 15 years’ imprisonment pursuant to the Criminal Law Amendment Act 105 of
1997. His appeal against both conviction and sentence was dismissed by the High Court in
2006. In 2011, the appellant was granted leave to appeal both conviction and sentence by the
High Court. The appellant served eight years of his imprisonment before being released on
parole in 2010.
The main issue in this appeal was whether the appellant, who had been unrepresented in the
trial court, had been properly convicted of the charge against him , and further whether he
had received a substantively fair trial. The state’s case against the appellant rested on the
identification of the appellant by a complainant who was a single witness to the robbery.The
appellant’s version was an albi.

The SCA held that there was nothing in the objective facts which corroborated the
complainant’s identification of the appellant during the actual robbery. The complainant’s
identification had been based on what other people had told her, and none of these people had
testified. The magistrate accordingly erred in concluding that her identification was reliable
and satisfactory. As far as the appellant’s version was concerned  the magistrate in the trial
court gave it only cursory and superficial consideration.
The SCA held that the magistrate did not follow the rules of assessing the appellant’s
evidence in the context of all the evidence to determine whether his defence was reasonable
possibly true. It held  that  a  court cannot simply reject the accused’s version because it finds
the prosecution witnesses to be credible. It must substantiate reasons for rejecting the
accused’ version.  Thus  the magistrate had erred in concluding that the appellant’s guilt was
proved beyond a reasonable doubt. The appeal was upheld and both conviction and sentence
were set aside.
The SCA further deemed it necessary to mention that  there were disquieting features of the
trial which amounted to irregularities which were prejudicial to the appellant and which
would in any event have resulted in the proceedings against the appellant being vitiated. It
was a travesty of justice that the appellant had to wait for more than a decade to finally
succeed in having his conviction and sentence set aside, and then only after being released on
parole, having served eight of the fifteen year sentence.