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[2014] ZAGPJHC 133
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Khunjwa v S (A505/2013) [2014] ZAGPJHC 133 (19 May 2014)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A505/2013
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. K. 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. K. 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. K. 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 K., the family driver and a gardener were
ordered to lie down, tied and guarded by a gunman, while Ms K. was
ushered
into the main house by other robbers and R10 000.00 taken
from her. Mr K. 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 K.’s
motor vehicle, a white Colt bakkie.
4.
Both Mr K. 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 K., 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 K. 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.
K.), 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. He 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