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[2020] ZAWCHC 58
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Mpilo v S (A187/16) [2020] ZAWCHC 58; 2021 (1) SACR 661 (WCC) (30 June 2020)
HIGH
COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
H
igh
Court Case No: A187/16
THEMBA
MPILO
APPELLANT
And
THE
STATE
RESPONDENT
Coram:
Binns-Ward &
Rogers JJ
Scheduled
hearing:
19
June 2020
Delivered:
30
June 2020 (by email to the parties’ counsel and release to
SAFLII)
JUDGMENT
Rogers J (Binns-Ward J
concurring):
[1]
In the light of the risks
posed by the Covid-19 pandemic, counsel agreed that we could dispose
of this appeal on the papers. Both
sides’ heads of argument
were full, for which we are grateful.
[2]
With the leave of the
court
a quo
,
the appellant appeals against his conviction for robbery with
aggravating circumstances and his sentence of 12 years’
imprisonment.
The appellant was the first accused in the court
a
quo
. The second
accused was discharged at the end of the State’s case. The
third accused, like the appellant, was convicted and
received the
same sentence. According to the State’s heads of argument, the
third accused appealed his conviction and sentence
but the appeal was
dismissed.
[3]
The conviction of the
third accused was based on evidence that his fingerprints were found
on the inside panel of the front left
door of the car stolen in the
armed robbery. The conviction of the present appellant, by contrast,
rests on eyewitness identification.
[4]
It is not in dispute that
an armed robbery took place at the home of the complainant in
Claremont at around lunchtime on 17 January
2008. There were three
perpetrators, one of whom was armed with a firearm. After taking
various valuables from inside the house
and the jewellery off her
person, the robbers forced the complainant to hand over the keys to
her Mercedes-Benz and to open the
garage door. The robbers left the
scene in her car.
[5]
Because the complainant’s
housekeeper was able to escape from the house and get the neighbours
to raise the alarm, the police
arrived just as the robbers were
reversing out of the garage. Sgt Thiart was one of the officers. He
testified that he saw the
driver. The driver was wearing a yellow
shirt. He was not sure whether there were two or three occupants in
the car. He noticed
that one of the other occupants was wearing
a black jacket.
[6]
A few minutes later the
Mercedes was involved in a collision on the Claremont Main Road. The
Main Road carries two lanes of traffic
in each direction. The traffic
was standing still. The driver of the Mercedes approached at high
speed from the south and tried
to take a gap between a car in the
right lane and a truck (slightly ahead of the car) in the left lane
but the Mercedes struck
the truck and came to a halt. It so happened
that an off-duty police officer, W/O Benjamin, was the driver of the
car in the right
lane. He testified that a man dressed in a yellow
T-shirt and brown pants got out of the Mercedes on the driver’s
side and
fled in the direction of Claremont station.
[7]
Benjamin, who was taking
his wife to an appointment in Claremont, dropped her off and returned
to the scene of the accident. By
this time the scene had been
cordoned off. Not long afterwards, Thiart, who was not known to
Benjamin, came back to the accident
scene with the appellant, whom
Thiart had arrested at the taxi rank outside Claremont station.
Benjamin testified that he had immediately
recognised this person as
the man who had got out of the Mercedes and that he had told Thiart
so there and then. Thiart confirmed
this in his evidence.
[8]
Thiart testified that when
the robbers fled from the complainant’s house, he radioed for
assistance. He arranged for colleagues
to monitor the Main Road
(which is above the railway line, ie to the west) while he (Thiart)
drove to Palmyra Road (which is below
the railway line, ie to the
east, and linked to the Main Road by the Stanhope Road Bridge). In
this vicinity he apprehended a man
in a black jacket who seemed out
of breath and whom he suspected of being one of the robbers. (This
was the second accused who
was discharged at the end of the State’s
case.)
[9]
Thiart then made his way
to the taxi rank just above Claremont station. He saw a man (the
appellant) ‘pretending’ to
make a telephone call from a
pay booth. This man was wearing a yellow shirt and brown pants. He
recognised him as the driver of
the Mercedes. After questioning him,
he arrested the appellant and walked with him to the Main Road, which
is where he encountered
Benjamin.
[10]
The complainant did not
point out the appellant at the identity parade. In her testimony, she
said that the appellant looked like
one of the perpetrators but she
was not sure. The court
a
quo
did not attach any
weight to this as evidence of identification.
[11]
The appellant’s
counsel in his written submissions dealt at some length with the
danger of confident and honest but mistaken
identification. These
dangers are no doubt real but the court
a
quo
warned itself
against them and nevertheless accepted the State evidence.
[12]
The attack on the
identificatory evidence is not that the two police officers did not
give honest evidence but that their honest
conviction as to the
correctness of their identification was not a substitute for
reliability. The main thrust of the argument
for the appellant is
that the two officers were led into a confident identification
because of the appellant’s clothing rather
than his face. The
appellant’s counsel did not argue that one of the perpetrators,
in particular the driver of the Mercedes,
was not wearing a yellow
top and brown pants. His argument was that the mere fact that the
appellant was similarly clothed did
not mean that he was the man who
had been driving the Mercedes.
[13]
In regard to Thiart’s
evidence, the appellant’s counsel submitted that Thiart saw the
driver from the rear of the Mercedes.
When Thiart tapped the boot of
the car to attract the driver’s attention, he did not yet know
that the driver was not the
complainant. When the vehicle reversed in
his direction, he would, so counsel submitted, have needed to take
evasive action. Moreover,
so the argument went, the driver, assuming
the standard reversing posture, would have been looking over his left
shoulder, ie ‘away
from Thiart’. He would not have had
much time to look at the driver’s face. One also did not know
the angle of observation
or how much of the driver’s face
Thiart would have been able to see.
[14]
Thiart testified that the
Mercedes did not pull out of the garage confidently and fast. It
appeared to him that the driver was struggling
to control the
Mercedes. He could see that the driver ‘didn’t know how
to drive it because he reversed into dustbins’;
the driver
‘came out slowly and then a bit faster then slowly and then he
reversed into the dustbins also’. Although
the matter was not
explored as fully as one might have wished, on this evidence the
driver would almost certainly have been looking
sometimes to his
right and sometimes to his left as he tried to navigate out of the
driveway in a vehicle with which he was not
familiar. Thiart
testified that he was standing on the driver’s side of the
vehicle, with his firearm drawn.
[15]
I accept that Thiart would
not have had a long time to see the driver. His estimate of a minute
does not sound realistic. On the
other hand, the vehicle was not
moving fast. Furthermore, there is no evidence that Thiart had to
take evasive action nor was such
a thing put to him. He was a trained
police officer with about seven years’ service at the time of
the incident. Although
the yellow shirt obviously made a striking
impression, he testified that he saw the driver’s face. When it
was put to him
that the appellant would say that he was not in the
Mercedes, Thiart replied that he was absolutely sure that it was the
appellant.
There was no cross-examination designed to elicit
information to cast doubt on Thiart’s evidence that he saw the
appellant’s
face.
[16]
Thiart testified,
furthermore, that he recognised this person as the driver when he saw
him at the taxi rank, which would only have
been about 10 to 15
minutes later. And the appellant, he testified, seemed out of
breath. The appellant’s evidence
was that there was
another person also in a yellow top in the vicinity at the time,
which goes to support Thiart’s evidence
that it was not only by
the colour of his clothing that the appellant was recognised.
[17]
Benjamin was seated in a
stationary car when the driver of the Mercedes got out and fled. The
collision had occurred just in front
of Benjamin, and his eyes would
naturally have been on the Mercedes. Because the Mercedes had been
trying to take a gap, it was
angled to the right when it came to a
halt. The driver would thus have been opening the door more or less
in Benjamin’s direction.
Benjamin testified in this regard as
follows under cross-examination:
‘
He knocked
into the back of [the truck], his vehicle was standing at an angle
facing in a south eastern [he clearly meant north
eastern, with the
driver’s side facing to the south east] direction Your Worship.
As he got out he was obviously –
his door was facing me Your
Worship because he was nearer to me from the right-hand side Your
Worship; I clearly saw accused 1
getting out of the vehicle Your
Worship. I could clearly see his clothing Your Worship and if you
look at the accused he is physically
imposing Your Worship it was
quite distinguishing.’
[18]
He was asked exactly when
he had seen the driver’s face. He replied that he ‘saw
the accused as he was getting out of
the vehicle’; he ‘could
not understand how a person could knock into a stationary truck that
is in front of you’.
It was put to him that he was mistaken but
he replied that he was positive and absolutely sure of what he saw.
[19]
It was put to him that a
person in the position of the driver would have left fingerprints on
the car. Benjamin said he was unable
to assist on that question (he
was not involved in the investigation), but added:
‘
[A]ll
that
I
am saying is that I saw accused 1 getting out of the vehicle and as I
pointed out to the court the vehicle was standing like this
Your
Worship and he was facing me from the right-hand side and I could
clearly see looking at him as he got out of the vehicle
on the
right-hand side in front of me from the drivers side … [H]e
did not look at me. When he got out of his vehicle I
was sitting in
my vehicle looking at what is the driver going to do of this vehicle,
this Mercedes Benz who had just knocked into
this truck. He got out
of this vehicle I looked at him Your Worship I had a good look at him
and I saw him running off Your Worship.
I clearly saw his face I
clearly saw his clothing Your Worship. He had a bright yellow T-shirt
on and a brown pants Your Worship.’
[20]
Benjamin was an officer of
some 15 years’ standing at the time of the incident. He closely
observed the immediate aftermath
of the collision. He displayed
diligence in returning to the scene of the accident about 10 minutes
later. It is not in dispute
that the weather was fine. Events
unfolded in full sunshine.
[21]
What is particularly
significant is that Benjamin immediately recognised the appellant as
the driver of the Mercedes when Thiart
arrived at the accident scene
with the appellant in tow. Thiart and Benjamin were not faced with
the difficulty of trying to recall
a visual impression left on their
minds from an incident which had occurred weeks or months previously.
Each of them, operating
independently, identified the appellant as a
perpetrator within a space of 10 to 15 minutes of having first seen
him – in
Thiart’s case outside the complainant’s
house, in Benjamin’s case immediately after the collision on
the Main
Road.
[22]
This last point disposes
of one of the appellant’s counsel’s other submissions,
namely that Thiart and Benjamin were
testifying some years after the
event. That is true, but their identification of the appellant as the
driver of the Mercedes was
something which took place on the very day
of the incident, indeed within 10 to 15 minutes of the respective
occurrences which
they observed.
[23]
The appellant’s
counsel criticised the identificatory evidence because the witnesses
had not mentioned the features of the
driver’s face which had
caused them to identify him with the appellant. Now I know that
points of this kind are often raised
in criminal trials but I am not
much impressed by them. It is not often that a face presents itself
with one, let alone two or
more, remarkable features. Nevertheless,
human beings are highly adept at recognising faces and voices. A
constellation of multiple
minor variations in standard facial
features combine to make up a facial appearance which in its own way
is as unique as a fingerprint.
The laborious process followed by
identikit artists in teasing out from a witness the facial features
of a perpetrator shows that
people can readily match a face to a
perpetrator without being able to verbalise a description.
[24]
It was argued for the
appellant that it was reasonable to assume that the police conducted
a proper forensic examination of the
Mercedes and that fingerprints
would have been of particular interest. There was evidence from a
police officer, Van Rensburg,
who seems to have succeeded W/O
Schaffer as the investigating officer, that the fingerprint expert
who lifted fingerprints from
the vehicle was deceased. W/O Swanepoel
subsequently testified, linking the third accused’s prints to a
fingerprint found
on the passenger side of the Mercedes.
[25]
I think one may safely
assume that if the appellant’s fingerprints had been found on
or in the Mercedes, evidence to this
effect would have been adduced.
However, the fact that there was no such evidence does not mean that
the appellant was not in the
Mercedes; it means only that no prints
from his hands, suitable for forensic comparison, were lifted. Even
in the case of the third
accused, who had undoubtedly been in the
Mercedes, the only print seemingly fit for forensic comparison was a
single print of his
left little finger.
[26]
It was not put to
Swanepoel that a person holding a steering wheel or operating a gear
lever or opening a driver’s door would
necessarily leave prints
of sufficient quality to be suitable for forensic comparison. It is
not self-evident to me that such actions
by a driver would inevitably
leave usable fingerprints.
[27]
The appellant’s
counsel argued that the magistrate misdirected himself because in his
judgment he analysed and ‘accepted’
the evidence of both
police officers, before proceeding to consider the evidence of the
accused. I do not accept this criticism.
The magistrate acknowledged
that ‘acceptance’ of the State’s evidence was not a
sufficient reason to reject the
defence’s evidence; the court
still needed to look at the evidence as a whole to see whether the
defence version might reasonably
possibly be true. In context, the
magistrate’s ‘acceptance’ of the State’s
evidence was a finding that
the witnesses were truthful and reliable,
ie evidence on which a conviction might safely be based in the
absence of controverting
evidence raising a reasonable doubt. A State
witness might be assessed as truthful and reliable, and yet
controverting evidence
by an accused might be assessed as having
sufficient credibility to raise a reasonable doubt as to whether the
State evidence is
correct beyond reasonable doubt.
[28]
The appellant’s
version was that he was a taxi driver, that his taxi was parked in
the taxi rank and that he was waiting for
the taxi to fill up before
departing for Khayelitsha. There was a conflict between Thiart, who
said that there was nobody in the
taxi pointed out by the appellant
as being his vehicle, and the appellant, who alleged that there were
already three passengers
in the taxi. There was also conflicting
evidence as to the whereabouts of the taxi’s keys. According to
Thiart, there were
keys in the ignition of the taxi pointed out by
the appellant. The latter testified, however, that the keys were on
his person
as he was trying to make the telephone call.
[29]
Thiart testified that when
he took the telephone from the appellant, there was nobody at the
other end, hence his evidence that
the appellant was ‘pretending’
to make a call. Thiart also said that the appellant was out of
breath, which would be
consistent with his having fled from the Main
Road.
[30]
The appellant’s
defence was not really an alibi, because there was no evidence (apart
from the appellant’s denial) that
he was not and could not have
been at the crime scene. As the court
a
quo
observed, even if
the appellant was a taxi driver and even if his taxi was parked at
the station, he could have parked it there
and returned to the
station after participating in the robbery. Another possibility is
that an accomplice drove the perpetrators
to the complainant’s
house in the appellant’s taxi and returned to the station. In
the appellant’s presence,
Thiart asked the taxi’s guard
how long the taxi had been standing there; the guard replied at least
an hour or two. The fact
that this report was made by ‘his’
taxi guard was not challenged in Thiart’s cross examination.
[31]
The fact that the driver
of the stolen Mercedes should have been in the vicinity of the taxi
rank is consistent with Benjamin’s
evidence that the driver
fled in that direction. That Thiart noticed the appellant to be out
of breath also ties in with this evidence.
[32]
The court
a
quo
considered that it
was faced with the ‘overwhelming evidence’ of the two
officers who had independently identified
the appellant as the driver
of the Mercedes. I think that the court
a
quo
was entitled to
find that the evidence of the State was sufficiently cogent to rule
out, as a reasonable possibility, that the
appellant’s denial
of complicity was true. There was no material misdirection which
entitles us, without the benefit of having
seen and observed the
witnesses, to interfere with the trial court’s factual
conclusion.
[33]
It follows that the appeal
against conviction must fail. Although the appellant’s counsel
did not abandon the appeal against
sentence, he wisely made no
submissions in support of it. I thus need say no more than that the
appellant may count himself lucky
that the court
a
quo
, seemingly on very
flimsy grounds, found there to be substantial and compelling
circumstances to deviate from the prescribed minimum
sentence of 15
years’ imprisonment.
[34]
The appeal against
conviction and sentence is therefore dismissed.
______________________
O.L.
Rogers
Judge
of the High Court
_____________________
A.G.
Binns-Ward
Judge
of the High Court
APPEARANCES
For
appellant
John
van der Berg
For
respondent
D
Y Els
Office
of the Director of Public Prosecutions
Western
Cape