Mokoele v The State

The appellant, Lebohang Mokoele, and two co-accused were convicted in the Protea Regional Court, Soweto, on two counts of aggravated robbery committed on 28 June 2014 in Naledi Extension 2, Soweto. The first count involved the robbery of Ms Philiswa Zukuswa Mabutho of her Volkswagen Polo Classic, laptop and Blackberry cellphone. The second count involved the robbery of Mr Lwazi Nkomo and Ms Moiketsi Thato Mphuthi of their Toyota Run X, two laptops and four cellphones. The State relied on the eyewitness identification evidence of the complainants to prove that the appellant was one of the four assailants. The appellant raised an alibi, testifying that he was at home with his mother and child at the time of the robberies, and called his mother in support. The trial court convicted him and sentenced him to ten years' imprisonment on each count. The trial court granted leave to appeal against sentence only. The appellant's petition to the Gauteng Division of the High Court, Johannesburg, for leave to appeal against his convictions under s 309C(2) of the Criminal Procedure Act 51 of 1977 was refused. The Supreme Court of Appeal granted special leave to appeal on 11 June 2018. The appeal lapsed due to the appellant's failure to file the record and notices timeously. He subsequently applied for condonation and reinstatement. On the day of hearing, the State applied orally for a postponement because its representative had not filed a practice note or heads of argument.

• Whether the State's application for postponement of the appeal hearing should be granted in circumstances where it failed to file its practice note and heads of argument without a satisfactory explanation.
• Whether the appellant's application for condonation for the late filing of the record, notices and heads of argument ought to be granted and the appeal reinstated.
• Whether the appellant's appeal to a full bench of the High Court against his convictions has reasonable prospects of success.
• Whether another court could reasonably find that the State failed to prove the guilt of the appellant beyond a reasonable doubt, having regard to the reliability of eyewitness identification evidence, contradictions in the State witnesses' evidence, and the appellant's alibi.

1. The State's application for postponement of the hearing is dismissed.\n2. The late filing of the record is condoned and the appeal is reinstated.\n3. The late filing of the appellant's heads of argument is condoned.\n4. The appeal is dismissed.\n5. The registrar of this Court is to forward a copy of this judgment to the Director of Public Prosecutions, Gauteng who is to look into the conduct of Mr V Mongwane.

A postponement of appellate proceedings is an indulgence which must be judicially justified in the interests of justice; the applicant bears the onus to provide a full and satisfactory explanation for the default.\nThe standard for condonation and reinstatement of a lapsed appeal is the interests of justice, requiring consideration of the extent and cause of the delay, the reasonableness of the explanation, and the prospects of success on appeal.\nIn a s 309C(2) petition for leave to appeal against a regional court conviction, the Supreme Court of Appeal must determine only whether there are reasonable prospects that a full bench would set aside the conviction; it should not express definitive views on the merits so as not to fetter the full bench's reasoning.\nIn the absence of a demonstrable and material misdirection, a trial court's findings of fact and credibility are presumptively correct and will only be disregarded if the recorded evidence shows them to be clearly wrong.\nIdentification evidence must be evaluated primarily for reliability (considering factors such as lighting, proximity, opportunity for observation, prior knowledge of the accused, and corroboration) separately from the witness's credibility; a dock identification carries little weight unless sourced in independent prior knowledge, but may form part of a broader mosaic of proof.\nAn accused person bears no onus to prove an alibi; however, an alibi may be rejected where the totality of the evidence, considered holistically, proves it to be false.

Observations by Koen JA in dissent that the appellant ought to have been discharged mero motu on count 1 due to a lack of evidence implicating him, and that an adverse inference could be drawn against the State for failing to produce the police Occurrence Book or recall witnesses to clarify material issues.\nComments that the liberty of an individual should not depend on possibly unreliable evidence, and that trial courts must be scrupulous in excluding inadmissible hearsay to safeguard the right to a fair trial.\nObservations by the majority that no negative inference should be drawn from the State's failure to call members of the vehicle tracking team, as this did not advance or detract from the core issue of the appellant's identification.\nRemarks concerning the conduct of the State's representative, Mr V Mongwane, and the need for compliance with the Rules and practice of the Supreme Court of Appeal.\nGeneral cautionary observations on the fallibility of eyewitness identification and the need for vigilance to avoid wrongful convictions.

The judgment reaffirms the stringent principles governing applications for postponement and condonation in the Supreme Court of Appeal, emphasising that both remedies are governed by the interests of justice and require full and satisfactory explanations. It restates the limited scope of a s 309C(2) petition for leave to appeal against a regional court conviction: the SCA does not determine guilt or innocence but only whether there are reasonable prospects that a full bench would set aside the conviction. The case provides important guidance on the evaluation of identification evidence, distinguishing between reliability and credibility, applying the cautionary rule for dock identifications, and assessing alibi defences holistically. It also underscores judicial concern regarding prosecutorial unpreparedness in appellate proceedings.