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[2013] ZAGPJHC 280
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Sithole v S (A234/2013) [2013] ZAGPJHC 280 (22 October 2013)
NOT REPORTABLE
IN THE SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
(REPUBLIC OF SOUTH AFRICA)
CASE NO: A234/2013
DATE: 22/10/2013
In the matter:
SITHOLE,
NKOSINATHI
....................................................................
APPELLANT
Versus
THE
STATE
.....................................................................................
RESPONDENT
JUDGMENT
THOBANE AJ:
[1] This appeal is directed against
both conviction and sentence handed down in the Regional Court
sitting in Johannesburg, on the
12th October 2011.
[2] The appellant, who enjoyed legal
representation throughout the trial, was facing a charge of Robbery
with Aggravating Circumstances
as intended in section 1 of Act 51 of
1977, in that:
"On or about the 21s' April 2011
at or near Johannesburg in the Regional Division of Gauteng, the
accused did unlawfully and
intentionally assault Nelson Zefanias and
did then and there and with force take the following item, to wit 1
Nokia N73 Cellphone
and a wallet with contents, his property or
property in his lawful possession, aggravating circumstances being
the wielding of
a knife and or the threat of inflicting of grievous
bodily harm,'.'
The provisions of
section 51
(2) of
the
Criminal Law Amendment Act 105 of 1997
were applicable in the
matter.
[3] The appellant pleaded not guilty
to the charge but was found guilty as charged and sentenced to 15
years imprisonment.
[4] The appeal to this Court is with
leave of the Court below.
[5] The evidence of the complainant is
briefly as follows. That he was accosted at about 19h00, while
walking carrying a bag and
speaking on the cellphone, by three men
one of whom had a knife in his hand. He was surrounded and robbed of
his cellphone as well
as his wallet. The robbery lasted for about 10
to 30 seconds. After the robbery the three robbers ran into a dark
building and
the complainant returned to where he had left his bag.
He requested them to accompany him to the building, which they did.
They
could not find the assailants and he then decided to hang around
the building because he "had a gut feeling" that the
perpetrators were still inside that dark flat. He staked the place
out and in about five minutes he noticed the three assailants
coming
out of the building. He noticed two policemen nearby and he went to
them to ask for their help. He then grabbed the appellant
who had a
knife but threw it away. The appellant was then arrested by the
police. They all left for the police station where a
docket was
opened.
On returning from the police station
the complainant saw the person whom he had arrested and had escorted
in the company of the
police to the police station, standing on the
street. He went back to the police station and returned to the place
where the appellant
had been sighted with the police. But he was
nowhere to be seen. He went back to the police station with the
police.
He once again saw the appellant
whereupon he ran after a police motor vehicle to seek their help. The
appellant was once again arrested
and taken to Hilbrow Police
Station.
[6] Bonga Jackson Mathe testified that
he was on patrol with a colleague when they were approached by the
complainant who indicated
that he had earlier been involved in a
robbery which resulted in an arrest. But that he had seen the person
who had been arrested
back on the street. The person was pointed out
and was arrested and taken to Hilbrow Police Station. He also
testified as to his
efforts aimed at finding out how it came about
that the appellant be released.
[7] Zebulon Nchabileng was the last of
the three state witnesses and testified that he remembered the
appellant. That the complainant
came to the Park Station police
station to complain about the fact that the appellant had been freed
by them. He indicated that
he remembers the appellant. He also
indicated that he remembered that there is a police Captain who came
to conduct investigations
the same evening of the arrest at their
police station.
[8] After the state had closed its
case the appellant was called to enter the witness box and testify.
He denied that he was involved
in the robbery. He testified that he
was fetched from work, being the taxi rank and arrested by the
police. During cross-examination
he appeared to be contradicting
himself as to the number of times he was arrested. He denied having
paid police officers for his
release. He explained that his first
time to the police station was for purposes of questioning. That the
complainant indicated
to the police that he wasn't sure if the
appellant was the person who had robbed him, thereafter he was
allowed to leave.
[9] The defense did not call any
witnesses.
[10] In my view, the magistrate
correctly identified the issue in dispute as identity of the
assailants.
[11] The magistrate does deal, to some
extent, with issues that he was confronted with and that he took into
consideration before
arriving at a guilty finding. Firstly, with
regard to the cautionary rule the magistrate indicated that the rule
was applicable
for two reasons. That the complainant was a single
witness and also that he was the identifying witness. That prompted
the magistrate
to further indicate that:
"the court will have to find some
or other guarantee that he is honest and that his identification is
reliable and not perhaps
the result of an honest mistake'.'
He also considered the fact that the
witness identified the perpetrator by clothing and by face without
mentioning any specifics.
The fact that the appellant when approached
threw away the knife, was indicative of the fact that the right man
had been identified.
The fact that the complainant had sufficient
opportunity to make an identification. The fact that the accused lied
did not indicate
his guilt but was not to be ignored. The magistrate
was satisfied with the totality of evidence and that it could be
relied on
despite the fact that it was evidence if a single witness.
That is the sum total of the magistrate's considerations.
[12] The question is whether there is
proof beyond a reasonable doubt that the appellant committed the
robbery on the 21st April
2011, in the company of two other persons.
Our law requires that evidence of identity of the offender be treated
with caution.
See S v Shekelele
1953 (1) SA 636
(T) where it was held
per Dowling, J that:
“
An
acquaintance with the history of criminal trials reveals that gross
injustices are not infrequently done through honest but mistaken
identifications. People often resemble each other. Strangers are
sometimes mistaken for old acquaintances. In all cases that turn
on
identification the greatest care should be taken to test the
evidence. Witnesses should be asked by what features, marks or
indications they identify the person whom they claim to recognise.
Questions relating to his height, build, complexion, what clothing
he
was wearing and so on should be put. A bald statement that the
accused is the person who committed the crime is not enough.
”
[13] It therefore becomes relevant to
keep the following in mind when making that determination, R v Dladla
1962 (1) SA 307
(A):
"In a case where the witness has
known the person previously, questions of identifying marks, of
facial characteristics, and
of clothing are in our view of much less
importance than in cases where there was no previous acquaintance
with the person sought
to be identified. What is important is to test
the degree of previous knowledge and the opportunity for a correct
identification,
having regard to the circumstances in which it was
made.”
It is common cause that the
complainant did not have prior knowledge of the appellant. Therefore
what is relevant is to test the
opportunity for a correct
identification, having regard to the circumstances in which it was
made.
[14] The identification by a witness
may be unreliable even if the witness is found to be a good witness,
patently honest, intelligent,
confident, coherent, and verbally
expressive [see: S v Charzen and Another
2006 (2) SACR 143
(SCA).]
[15] The complainant testified that
the incident took place at night. He indicated also that it was "a
bit dark ……only
the lights from the shops were on".
That the robbery lasted for about 10 to 30 seconds. Later in his
testimony he says that
it was "a little bit darkish". The
common factor one can gather is that it was a bit dark. Of importance
however is that
the complainant testified that he observed the
appellant/assailant for only two seconds, at the time when the
complainant was surrounded
by three assailants one of whom was behind
him. It is doubtful if that presented him with sufficient time to
observe. There is
a further contradiction with regard to the position
of the appellant at the time of the robbery. At first the complainant
indicated
that the appellant was on his left, he later indicated that
the appellant was on his right and had a knife.
[16] "A Court should approach the
evidence of a single witness with caution and should not easily
convict upon such evidence
unless it is substantially satisfactory in
all material respects or unless it is corroborated." Leon J, S v
Ganiel967 (4)
SA 203 (N).
[17] The magistrate is expected to
apply such caution to the facts before him. He is not to merely pay
lip service thereto. It was
held in the matter of S v Avon Bottle
Store (PTY) Ltd
1963 (2) SA 289
(A), by the Honourable Botha JA,
that-:
“
But a mere
pronouncement that it is taking a cautious approach to the evidence
is insufficient and is the equivalent of non-compliance.
It must be
apparent that the court has indeed treated the evidence cautiously:
“What is necessary is that the judicial officer,
who is the
trier of fact, should demonstrate by his treatment of the
evidence...that he has in fact heeded the warning'.' At the
commencement of his judgment the magistrate does say that he is aware
of the applicability of the cautionary rules. It appears
though as if
mere lip service was simply being paid, in that he does not
demonstrate, through the analysis of evidence, that he
is indeed
doing more than just paying lip service”.
[18] One must therefore analyse the
evidence of the complainant, in an attempt to establish if it meets
the standard set in S v
Ganie supra, by viewing it through the prism
of "substantially satisfactory in all material respects".
If it does not
meet that standard, to then try to establish if there
is corroboration, in line with the Ganie matter. Of importance being
corroboration
as to the identification of the appellant.
[19] One is confronted with the
following evidence:
[19.1] The complainant observed the
appellant for only two seconds,
[19.2] It was a bit dark at the scene
the only source of light being from the shops,
[19.3] The complainant was surrounded
by three men and was frightened,
[19.4] The complainant lost sight of
the assailants for a considerable time,
[19.5] The complainant did not refer
to any facial or physical features of the appellant,
[19.6] The complainant did not have
any prior knowledge of the appellant.
The magistrate did not deal with these
issues in his judgment. He accepted that the description given was
inadequate, but still
maintained that in his view it was not fatal
and he referred to the judgment of S v Majame and others
1991 (1)
SACR 2040.
His finding that the complainant "gave a description
of the accused", is not supported by evidence. Equally his
finding
that the complainant "....did have sufficient
opportunity to make an identification", is not supported by
evidence.
[20] One is therefore reminded of the
matter of S v Mthethwa
1972 (3) SA 766
(A), where it was held that:
“
Because of
the fallibility of human observation, evidence of identification is
approached with some caution. It is not enough for
the identifying
witness to be honest; the reliability of his observation must also be
tested. This depends on various factors,
such as lighting,
visibility, and eyesight; the proximity of the witnesses; the
opportunity for observation both as to time and
situation; the extent
of his prior knowledge of the accused; the mobility of the scene;
corroboration; suggestibility, the accused’s
face, voice,
built, gait and rest; the result of identification parades, if any;
and, of course the evidence by or on behalf of
the accused. The list
is not exhaustive, behalf of the accused. The list is not exhaustive,
these factors, or such of them as are
applicable in a particular
case, are not individually decisive and must be weighed one against
the other, in the light of the totality
of the evidence, and the
probabilities."
[21] On the whole therefore and based
on the above, I cannot find that the evidence of the single witness,
the complainant, was
satisfactory in all material respects.
[22] I now turn to the issue of
corroboration, to determine whether the evidence can be relied upon
on this second leg.
[23] The magistrate refers to evidence
by the complainant to the effect that the appellant had a knife which
when he saw the police
he threw away.
[23.1] The knife was not described
save for the evidence of the complainant who said it was a jack
knife,
[23.2] The knife was not entered into
evidence,
[24] The magistrate was of the view
that the act of throwing the knife away, was corroboration of the
fact that the person was the
same person who had wielded a knife at
the complainant during the robbery. This is rather farfetched, and
can hardly be said to
be corroboration as to identity. Especially
viewed against the backdrop that no specific identification had been
achieved and also
that none of the robbed items were found in the
possession of the appellant. In short, there was no other eye witness
to the whole
incident.
[25] In my view, it cannot be said
that the evidence of the complainant, being a single witness, was
satisfactory in all material
respects. Nor can it be said that it was
corroborated.
[26] Much weight has been attached to
the fact that the appellant lied when he testified. I agree with the
summation that the appellant
was not a good witness. That however
does not lessen the onus on the part of the State to prove his guilt
beyond a reasonable doubt.
[27] It is trite that lies in
themselves or improbabilities in an accused version do not establish
the guilt of an accused.
S v Steynberg
1993 (3) SA 140
(A)
S v Mtsweni
1985 (1) SA 590
(A)
S v Shackel
2001 (2) SACR 185
SCA
[28] I do not plan to deal with the
appeal against sentence due to the order I plan to make below.
[29] I cannot find that the guilt of
the appellant has been proved beyond reasonable doubt.
[30] In the premise I make the
following order:
The appeal is upheld,
The appellant's conviction and
sentence is set aside
SA THOBANE
Acting Judge of the High Court
I AGREE.
B MASHILE
JUDGE OF THE HIGH COURT
Date of Hearing:
14/10/2013
Date of Judgment:
22/10/2013
Counsel For Appellant:
Adv. E Tlake
Instructed by: Legal Aid
Board South Africa
Counsel For Respondent:
Adv. R. Ndou
Instructed by: National
Prosecuting Authority