On 20 April 1997 at Joe's tavern in Meadowlands, Wilson Mofokane was fatally shot, and Smangilso Simelane was wounded on his right arm. There had been an altercation at the shebeen involving the appellant, the deceased, and others. The shebeen owner, Mr Letsolo, was called to intervene and calm the situation. Shortly after, gunshots were fired. State witnesses Khutsoane and Letsolo testified that they saw the appellant shooting. Khutsoane, who was in close proximity using crutches, observed the appellant wearing a brown leather jacket and cap, shooting with an automatic nine millimetre pistol. Letsolo encountered the appellant in a passage with a firearm, shooting randomly, and wrestled the firearm from him after it was emptied. The appellant was identified at an identification parade by Letsolo. The appellant's version was that an unnamed friend had fired two warning shots to save him from being attacked, and he denied shooting. On 17 June 1999, the appellant was convicted in the Regional Court, Soweto of one count of murder and one count of attempted murder, and sentenced to 10 years and 4 years imprisonment respectively, to run consecutively. An initial appeal to the Witwatersrand Local Division was dismissed. The appellant then approached the South Gauteng High Court for leave to appeal to the Supreme Court of Appeal, which was granted.
The appeal against the convictions and sentences is dismissed.
1. Contradictions in State witnesses' evidence do not render their testimony unreliable or untruthful where the contradictions are not material to the central factual issue to be determined. The test is whether the truth was told despite any shortcomings, and the court must evaluate the evidence as a whole. 2. When assessing identification evidence, courts must consider the witness's opportunity to observe, the conditions of observation (lighting, proximity, duration), the witness's state of sobriety, and whether the witness is independent. Where these factors support reliability, the identification evidence can be accepted despite some contradictions on peripheral matters. 3. A court of appeal may only interfere with a sentencing court's exercise of discretion under section 280(2) of the CPA (whether to order sentences to run concurrently) if satisfied the sentencing court misdirected itself or did not exercise its discretion judicially. 4. Sentences need not run concurrently merely because offences are closely linked in time and space where the accused had separate criminal intent for each offense and was not punished twice for the same actions. The cumulative sentence must not be disturbingly inappropriate or disproportionate to the offences, the needs of society, or the personal circumstances of the accused.
The court noted that the appellant's argument regarding the failure to consider that he was standing trial on another matter at the time of sentencing was fatally flawed, as that matter had not been finalized. The court observed that the fact that the appellant was subsequently sentenced to 33 years imprisonment in that other matter could potentially be raised on appeal in that matter, but not in the present case. The court also observed that while the court a quo did not provide reasons for not ordering concurrent sentences, this did not amount to a misdirection given the circumstances of the case. The court commented that the appellant had ample opportunity to apply for discharge under section 174 at the same time as his co-accused did so, suggesting procedural fairness was observed.
This case is significant for illustrating the application of principles relating to identification evidence and the evaluation of contradictions in witness testimony in South African criminal law. It demonstrates that contradictions that are not material to the central issue (here, who was the shooter) do not necessarily render State witnesses' evidence unreliable or untruthful. The case reinforces that courts must evaluate evidence as a whole rather than focusing on peripheral inconsistencies. The judgment also clarifies the principles governing appellate interference with sentencing discretion, particularly regarding decisions whether to order sentences to run concurrently under section 280(2) of the Criminal Procedure Act. It emphasizes that a court of appeal will only interfere if the sentencing court misdirected itself or failed to exercise its discretion judicially, and that cumulative sentences are appropriate where the offender had separate criminal intent for each offense, even if closely linked in time and space. The case also provides guidance on procedural requirements under section 309B of the CPA regarding leave to appeal from lower courts.