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[2014] ZAGPJHC 115
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Khunjwa v S (A505/2013) [2014] ZAGPJHC 115 (19 April 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: A505/2013
DATE:
19 MAY 2014
NOT
REPORTABLE
OF
INTEREST TO OTHER JUDGES
In
the matter between:
LINOS
LIHLONONO KHUNJWA
….....................................................................
APPELLANT
and
THE
STATE
..............................................................................................................
RESPONDENT
Criminal
law and Procedure – Evidence – Appeal against
conviction on robbery with aggravating circumstances
– sole
issue identification of appellant - appellant pointed out on
identification parade by two witnesses – objections
as to
incompleteness of standard form used - appellant represented by
counsel at parade who raised no objections – objections
dismissed - argument that appellant was ill-represented during trial
rejected – arresting officer questioning the appellant
without
warning or caution in terms of Judges’ rules –
appellant’s response to questioning inadmissible –
held
however that the remainder of the evidence proved appellant’s
guilt beyond reasonable doubt – appeal dismissed.
J
U D G M E N T
RATSHIBVUMO
AJ:
1.
Mr. Khunjwa, the appellant, was sentenced to 12 years imprisonment on
25 June 2013 following a conviction at the Westonaria Regional
Court
on a charge of robbery with aggravating circumstances. He was granted
bail pending appeal on 19 August 2013. He appeals against
the
conviction with leave of the trial court.
2.
The facts that gave rise to the conviction are the following. It was
common cause that on the 28
th
August 2011, seven men
arrived at a tavern belonging to Ms. Kongweni at Zuurbekom,
Westonaria, driving a Ford Bantam, and robbed
her of R10 000.00 in
cash, a Colt motor vehicle, 4 cell phones, a printer, a pair of
shoes, alcohol and cigarettes at gunpoint.
The tavern was operated
from her residence and her son, Mr. Kongweni was playing snooker with
the customers, while occasionally
selling them beer when the robbery
occurred.
3.
It was part of the uncontested version of the State that the seven
men who committed the robbery are the same men Mr. Kongweni
had been
attending to as his customers, selling them beer while also playing
snooker with them. Their true colours for being there
were shown when
Mr Kongweni, the family driver and a gardener were ordered to lie
down, tied and guarded by a gunman, while Ms
Kongweni was ushered
into the main house by other robbers and R10 000.00 taken from her.
Mr Kongweni was in the course of the events
stabbed on his thigh,
with a screwdriver while a customer who arrived while the robbery was
in progress, was stabbed with a bottle
on his face. Car keys were
taken from the family driver before the robbers sped off in Ms
Kongweni’s motor vehicle, a white
Colt bakkie.
4.
Both Mr Kongweni and his mother testified that the appellant
was one of the seven robbers and that he too was armed with a
firearm.
According to Mr Kongweni, the appellant had been there a day
before the robbery in the company of three other men and he spent
about 4 hours at the tavern. On that day, the 27
th
August
2011, they had arrived in a white Colt bakkie. He added that the
appellant left saying he was going to watch a soccer game.
It was the
first time he saw the appellant that day. It was the first time for
his mother to see the appellant the following day,
when the robbery
occurred. They both testified that they noticed that the appellant
had a gold tooth in his mouth at the time of
the robbery. The
appellant denied having been one of the robbers or that he was there
on the date of the robbery or the day before.
He also denied having
ever had a gold tooth. He however confirms that he owns a Colt
bakkie.
5.
The complainant’s motor vehicle was recovered abandoned
in the veld in Annerdale. The police officers from Annerdale police
station contacted Warrant Officer Mojapelo, the investigation officer
in this case and following further information furnished
to them, he
proceeded to the appellant’s home. The appellant denied having
robbed the complainant and he was arrested. Of
importance is that the
appellant was pointed out by Ms Kongweni and her son at an
identification parade conducted shortly thereafter.
A third victim,
who was also present at the robbery (the customer who was stabbed
with a bottle) however, pointed out a wrong person
at the
identification parade. The identification of the appellant was made
on his facial features and not the gold tooth. However
the
investigating officer confirmed that the appellant had a gold tooth
at the time he interrogated him.
6.
It was submitted on behalf of the appellant that the case for the
State was not proved beyond a reasonable doubt in that he was
not
properly identified, in that inadmissible evidence was tendered
during trial and that he was ill represented by his legal
representative.
7.
It is necessary to revisit the basis upon which a court of appeal may
interfere with the finding of a trial court. The approach
to be
adopted by a court of appeal is summarised in
R v Dhlumayo
1948
(2) SA 677
(A): a court of appeal will not disturb the factual
findings of a trial court unless a misdirection has been committed.
In the
absence of misdirections on facts by the trial court, the
presumption is that his conclusion is correct. The appeal court will
only interfere if convinced that it is wrong. In such a case, if the
appeal court is merely left in doubt as to the correctness
of the
conclusion, it will uphold it. See also
DPP v S
2000 (2) SA
711
(T);
S v Leve
2011 (1) SACR 87
(ECG); and
Minister of
Safety and Security and Others v Graig and Another NNO
2011 (1)
SACR 469
(SCA).
8.
I now revert to the arguments presented before
this court. First, it was submitted that the appellant was not
properly identified
in that the witnesses should have observed a scar
which the appellant alleged he had, that they (in particular, Ms.
Kongweni),
did not have sufficient time to observe the appellant
during the robbery, and that the identification parade form SAP 329
was irregular
in that certain portions were left blank. Upon closer
scrutiny of the form, it is apparent that the portions that were left
open
are those where the names of officers who escorted the witnesses
into and out of the parade room were to have been written.
9.
While it is desirable that all the portions of the SAP 329 are
completed and if not, that reasons therefore ought to be furnished,
the mere failure to adhere to these cannot result in the nullity of
the identification parade as a whole.
In
R
v Kola
1949 (1) PH H100 (A) Schreiner
JA warned of the dangers of not complying with the rules of an
identification parade and concluded
as follows:
‘
But
an identification parade though it ought to be a most important aid
to the administration of justice may become a grave source
of danger
if it creates an impression which is false as to the capacity of the
witness to identify the accused without the aid
of his compromising
position in the dock. Unsatisfactory as it may be to rely upon the
evidence of identification given by a witness
not well acquainted
with the accused, if that witness has not been tested by means of a
parade, it is worse to rely upon a witness
whose evidence carries
with it the hall-mark of such a test if in fact the hall-mark is
spurious.
Of course an identification
parade is not necessarily useless because it is imperfect.
In some respects the quality of the parade must necessarily be a
question of degree.’
(
own emphasis
).
See
also
S v Mohlanthe
2000
(2) SACR 530
(SCA) and
Tanatu v S
[2004] JOL 13144
(E).
10.
Of importance is that the appellant was legally
represented by counsel at the identification parade, and that no
objection was raised
either by him or his legal representative
concerning any aspect of the parade. I am accordingly satisfied that
although the identification
parade (or the completion of the SAP 329
form thereof) should perhaps have been afforded more attention, that
it remains reliable
and in accordance with the general rules and
safeguards applicable to conducting identification parades. I am
unable to find any
misdirection by the trial court in attaching due
weight to the identificatory evidence at the identification parade.
11.
The contention was raised that appellant was ill represented at the
trial in that his legal representative failed to object
when
inadmissible evidence was tendered. It is necessary to consider the
record of the proceedings in order to determine whether
inadmissible
evidence was tendered and if so, whether this resulted in the
appellant not having had a fair trial.
12.
Admittedly, the investigating officer alluded to a number of
admissions made by the appellant and that a bulk of these was
elicited by the defence during his cross examination. It is clear
from the evidence of Warrant Officer Mojapelo that when he was
led
into the appellant’s house, he had already identified him as
the suspect and he had made up his mind that he would have
him
arrested as he did, irrespective of the explanation he gave. His
interrogation of the appellant continued even after he was
released
on bail. At no stage was it apparent that the appellant was warned of
his right to silence and that information he gives
could be used as
evidence against him at a later stage.
13.
In a judgment, comparing the Judges’ Rules with the provisions
of the Constitution, Satchwel J (in
S v Sebejan and Others
1997 (1) SACR 626
(W) at 632h) held the following pertaining to
questioning of a suspect before arrest:
'In
short, non-suspects may be questioned without any cautions or
warnings whereas suspects, even in circumstances where answers
to
questions may establish innocence, should receive the benefit of the
caution or warning. The suspect is treated differently
and entitled
to certain protective cautions not afforded to a mere witness.'
See
also
S v Mthethwa
2004 (1) SACR 449
E,
S v Mgcina
2007
(1) SACR 87
(T) and
S v Khan
2010 (2) SACR 476
(KZP). The
question remaining is whether the appellant was at that stage a
suspect already or not. This question however does not
require any
further evaluation in light of what I have said above. Evidence on
information given by the appellant is thus inadmissible.
The finding
however, does not assist the appellant: absent the evidence I have
referred to, the remaining evidence, beyond reasonable
doubt, proves
his identification and involvement in the robbery.
14.
The submission further made was that the trial court erred in
accepting inadmissible hearsay evidence, with reference to a number
of affidavits that were handed in as exhibits. The submission
overlooks the provisions of sections 213 and 222 of Act 51 of 1977
which incorporate sections 33 to 38 of Act 25 of 1965 into the Act.
Section 213 provides for the acceptance of written statements
by
consent whereas section 222 provides for such acceptance under
certain circumstances. What the contention further fails to address
is that the statements in no way incriminate the appellant. The
argument accordingly, is without substance and is rejected.
15.
I turn now to the conduct of the appellant’s legal
representative at the trial, in particular eliciting inadmissible
hearsay evidence in cross examination. The defence obviously
attempted to test the credibility of state witnesses by reference
to
their police statements. The risks involved in doing so, are exposure
to and eliciting inadmissible evidence. Failure to do
so, on the
other hand, may well lead to the criticism that differences and
contradictions were not exposed. The strategy of appellant’s
legal representative did not produce the desired results: the
investigating officer must have omitted such evidence deliberately,
knowing that it could contain improperly obtained confession. The
criticism of this attorney over his rather difficult choice is
lately
a trend that I find unfortunate and in some instances, unwarranted.
16.
In
S
v Halgryn
2002 (2) SACR 211
(SCA) at 216h-217b) it was held:
‘
The
constitutional right to counsel must be real and not illusory and an
accused has, in principle, the right to a proper, effective
or
competent defence
.
Whether a defence was so incompetent that it made the trial unfair is
once again a factual question that does not depend upon the
degree of
ex
post facto
dissatisfaction of the litigant. Convicted persons are seldom
satisfied with the performance of their defence counsel. The
assessment
must be objective, usually, if not invariably, without the
benefit of hindsight
.
The court must place itself in the shoes of defence counsel, bearing
in mind that the prime responsibility in conducting the case
is that
of counsel who has to make decisions, often with little time to
reflect
.
The failure to take certain basic steps, such as failing to consult,
stands on a different footing from the failure to cross-examine
effectively or the decision to call or not to call a particular
witness. It is relatively easy to determine whether the right to
counsel was rendered nugatory in the former type of case but in the
latter instance, where counsel's discretion is involved, the
scope
for complaint is limited.”
17.
In
Halgryn
(
supra
), Harms JA quoted from
Strickland
v Washington
[1984] USSC 146
;
466 US 668
(1984) at
689
, and continued:
‘
Judicial
scrutiny of counsel's performance must be highly deferential. It is
all too tempting for a
defendant
to second-guess counsel's assistance after conviction or adverse
sentence, and it is all
too
easy for a court, examining counsel's defense after
it
has been unsuccessful, to conclude that a
particular act or omission of counsel
was unreasonable.
”
and
concluded
‘
[n]
ot
everyone is a Clarence Darrow or F E Smith and not every trial has to
degenerate into
an
O J Simpson trial
.’
18.
The manner in which the defence was conducted in this case is unlike
that portrayed in
S v Saloman and Others
2014 (1) SACR 93
(WCC), were the court held,
‘
..
he
brought no professional skill, judgment or knowledge to the advantage
of his client. He sat passively during the deposition and,
lamentably, failed to protect his client's interests or indeed advise
his client properly about the implications of the latter's
conduct.
H
e
failed to take basic steps to represent his client properly
.’
19.
In
Pretorius
and Others v Magistrate, Durban and Others
2013 (2) 153 (KZP) at paragraph 29, it was held:
‘
Indeed
one must act on the assumption that a legal representative, entrusted
with an accused person's defence, is indeed competent.
It is always
easy in hindsight to allege that an accused's defence was improperly
conducted. Given the highly competitive nature
of criminal practice,
one will often find another legal representative who will offer what
he/she would undoubtedly term a 'better
alternative'. This of course
is usually after an accused person has been convicted and/or
sentenced.’
20.
I am not persuaded that the appellant was not properly represented or
that the conduct of his legal representative resulted
in unfairness.
I am moreover, satisfied that the trial court correctly found that
the case for the State was proved beyond a reasonable
doubt.
21.
In the result the following order is made:
The appeal is
dismissed.
_____________________
TV RATSHIBVUMO
ACTING JUDGE OF
THE HIGH COURT
I agree.
_______________________
FHD VAN OOSTEN
JUDGE OF THE HIGH
COURT
FOR THE APPELLANT
: ADV J VAN ECK
INSTRUCTED BY :
THOMAS NEL ATTORNEYS
KRUGERSDORP
FOR
THE RESPONDENT : ADV Z PECK
DATE
HEARD : 19 MAY 2014
JUDGMENT
DELIVERED : 19 MAY 2014