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[2015] ZAGPJHC 313
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Gama v S (A194/2015) [2015] ZAGPJHC 313; [2016] 2 All SA 767 (GJ); 2016 (2) SACR 530 (GJ) (11 December 2015)
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NUMBER: A194/2015
DATE OF HEARING: 3 DECEMBER
2015
DATE
OF JUDGMENT: 11 DECEMBER 2015
In
the matter between:
GAMA,
MZWAKHE
CALVIN
................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
CORAM:
Avvakoumides
AJ and Hundermark AJ
J U D G M E N T
AVVAKOUMIDES, AJ
[1] This appeal
is brought against the conviction and sentence of the Appellant with
the leave of the trial court. The Appellant
was convicted of robbery
with aggravating circumstances and sentenced to 15 years’
imprisonment.
[2] The grounds of
appeal against the conviction are that the trial court erred in that
it:
[2.1] did not
permit cross examination on an unsigned statement of the complainant,
alternatively
in not insisting that the original statement allegedly signed by the
Appellant should be made available to the Appellant’s
legal
representative;
[2.2]
accepted the credibility of the complainant and rejecting the
credibility of the Appellant;
[2.3]
accepted the evidence of the two state witnesses that the Appellant
participated in the robbery and rejecting the evidence
of the
Appellant to the contrary; and
[2.4]
accepting the uncorroborated evidence of the complainant that a knife
was used at the end of the robbery.
[3] The grounds of
appeal against the sentence are that the trial court erred in that
it:
[3.1]
failed to consider in relation to the question of exceptional
circumstances whether it had been proved that the
mens
rea
of the Appellant extended to the
use of the knife in the offence;
[3.2]
failed to consider in relation to the question of exceptional
circumstances, to give adequate weight to:
[3.2.1] the
relative youth of the Appellant;
[3.2.2] that fact
that he was a first offender; and
[3.3.3]
the conduct of the Appellant on the scale of conduct that constitutes
the offence of robbery with aggravating circumstances.
[4] The Appellant
pleaded not guilty to the charge and was legally represented
throughout the trial.
[5] According to
the complainant, on 23 August 2013 at approximately 06h50 she was on
her way to school. She had gone to fetch a
friend but upon not
finding her friend at home, she carried on walking to school. She
walked by a huge field whilst playing on
her phone. She noticed three
men running towards her but paid no attention to them. They
approached her and told her to hand over
her phone. She refused and
wrestled with them. They were pulling and grabbing to get the phone
away from her and she resisted.
She screamed for help. Someone jumped
out from his house and started running to help her. The three ran
away but the one used a
knife to “prick” her hand to let
go of the cell phone. Two of them managed to get way but the
Appellant was apprehended
by the man who ran to her assistance. The
police van was also in the vicinity and the Appellant was arrested.
The Appellant was
apprehended by the person who had run to her
assistance, one Twala. The complainant identified the Appellant when
he was brought
to the police van by his yellow Bafana Bafana jacket
and his facial features. The phone was not recovered. The complainant
described
the conduct of the Appellant’s role in the robbery as
him saying to her: “Give me your phone; give me your phone”
whilst the others were fighting and wrestling with her.
[6] Under cross
examination the complainant stated that she had made a statement that
was prepared for her by a police officer.
The statement was read back
to her and she confirmed the contents. This statement was unsigned.
The complainant conceded that she
made a further statement, which she
had signed. Similarly, the second one was also written by a police
officer and read back to
her. The complainant testified that the
second signed statement was taken at her home where she was visited
by the police officer
involved, one Hlongwane. According to the
complainant the police officer wanted her to confirm whether she
could identify the Appellant.
[7] The
prosecutor objected to the cross examination of the unsigned
statement on the basis that it was unsigned and that it was
not her
statement, as a result. The Appellant submitted that the trial court
prevented the cross examination on the unsigned statement
because it
was unknown whether it was her statement or not. When the defence
attorney wanted to proceed with cross examination
on this statement,
the trial court stated that “…We do not know whether
that is her statement….” No further
cross examination
ensued on the statements.
[8] The purpose
of the second statement, according to the complainant, was to confirm
that she would be able to identify the Appellant
because he was
denying that he partook in the robbery. The complainant testified
that the first time she identified the Appellant
was when he was
apprehended by the community and this presumably relates to her first
statement. The second time is when the police
officer visited her at
home when she was advised that she would have to identify the
Appellant in an identification parade. The
identification parade
never took place.
[9] Why the
Appellant’s representatives failed to pursue further the two
statements in order to illustrate whether there were
material
differences, and to insist on cross examination in this regard,
remains a mystery. One must conclude that the trial court’s
utterance to the effect that” “We do not know that this
is her statement” was a clear indication to the Appellant’s
legal representative that the court would not allow further cross
examination on this aspect. In doing so, the trial court permitted
an
irregularity in the proceedings. What the effect of this irregularity
has on the trial is the real question.
[10] Whether the
statement was signed by the complainant or not, it was a statement
purporting to be a statement in the name of
the complainant and was
made available to the Appellant by the prosecutor from the SAPS
docket in response to his attorney’s
request for “her
original statement”. There was no explanation from the SAPS
officer who took down the statement as
to why it did not reflect what
the complainant had told him. However, it was a relevant document and
ought to have been admitted
as evidence and to have been available
for the Appellant’s legal representative to cross-examine on.
[11] The
Appellant’s counsel submitted that even if it was shown that
this statement was not the original statement made by
the
complainant, it is clear from the complainant’s evidence that
there was an original statement that she made to the police,
and the
failure of the State to make such a statement available to the
Appellant and his legal representative prior to the trial
violated
the Appellants right to a fair trial.
[12] The failure
to allow the cross-examination of what purported to be the original
statement of the complainant, alternatively
the failure to make
available the original statement of the complainant to the Appellant
so that the complainant could be cross-examined
on that statement,
constituted an irregularity in the proceedings. This being the case,
such failure to deliver the statement and
the ruling to disallow the
cross examination on the two statements, vitiated the proceedings,
unless it is clear that no prejudice
was caused to the Appellant by
the irregular exclusion of the previous statement made by the
complainant. See: R v Ntshangela
1961 (4) SA 592
(A) at 599 E-H.
[13] The
complainant was the primary witness on whose testimony the Appellant
was convicted. She was the only witness who testified
to the
aggravating circumstances alleged in the charge sheet – namely
the alleged use of a knife in the robbery. Cross-examination
on her
original statement may have assisted the Appellant to challenge her
credibility and in the absence of such cross-examination
being
allowed, it is not possible to assess where that cross-examination
would have led.
[14] The
Appellant submitted that the evidence of the complainant was
consistent evidence and provided a reasonable explanation
of how the
Appellant came to be wrongly apprehended for a robbery that had been
perpetrated by two other persons with whom he plays
football, namely
Mpho and Fana. The trial court made an adverse credibility finding
against the Appellant but nothing in the judgment
supports this
finding by way of any reasoning and does not support this conclusion.
[15] The
Appellant submitted that it is not inherently improbable that if he
was innocent he would have done nothing and failed
to intervene when
the struggle between his two jogging partners and the complainant
broke out. The Appellant’s counsel submitted
further that it
requires particular bravery to intervene in such a situation and the
failure of the Appellant to do so may have
been attributable to
passivity, fear or even shock. The failure of the Appellant to
intervene is consistent with a range of possibilities
other than an
intention to make common cause with the assailants.
[17] There is
nothing inherently improbable that the Appellant would have failed to
question his jogging partners as to why they
had increased their
speed as they ran away from him in the direction of the complainant.
Similarly, the difference between the
Appellant’s initial
evidence that he was scared and his subsequent evidence that he was
shocked, was hardly a material contradiction.
Accordingly, it was
submitted that there is nothing in the reasoning of the trial court
to support the conclusion that the credibility
of the Appellant was
to be rejected, and in the absence of anything in the record to
support such a conclusion independently. The
Appellant thus submitted
that this Court should accept the credibility of the evidence of the
Appellant as it is reflected in the
record before this Court.
[18] On the credibility
of the complainant the Appellant submitted that there is inherent
implausibility in her evidence on various
aspects:
·
the
complainant’s testimony in court about the involvement of the
Appellant in the robbery is difficult to reconcile with
her admitted
statement to the police and the community members on the day that the
Appellant “did not take my cell phone
but he was with the
people who took my cell phone”.
·
She
testified that the robbery took 20 to 30 minutes. This was utterly
implausible that a tussle over a cell phone between a single
woman
and three men, one of whom was armed with a knife, would take 20 to
30 minutes.
·
Her
evidence in relation to the flight of her assailants in response to
the intervention of the community was contradictory.
·
Her
evidence-in-chief was clear that the assailants fled when “a
guy jumped out from his house trying to help me” and
then when
the assailants fled “the guy chased the three guys and then
everybody came out and started chasing them too”.
·
She
then gave evidence which made clear that the “guy” to
whom she referred was Mr Twala.
[19] Her testimony in
chief made clear that the sequence of events was that:
·
the
assailants were tussling with her over her cell phone for 20 to 30
minutes,
·
she
screamed,
·
Mr
Twala came out of his house,
·
one
of the assailants produced a knife and pricked her hand,
·
she
released the cell phone and the assailants ran away with it,
·
the
rest of the community emerged and started chasing the assailants.
[20] In her
evidence under cross-examination, she claimed that the community
members came out to chase the assailants before the
knife was
allegedly used, and that the use of the knife was apparently a
response to the advance of the community members. This
contradiction
under cross-examination must also be viewed in the light of the
evidence of Twala that the community came towards
the Appellant only
after he had apprehended the Appellant.
[21] The Appellant
testified that he was not involved in the robbery but was merely
standing two metres away from the scene after
the men with whom he
had been jogging attempted to rob the complainant of her cell phone.
The state’s case in relation to
the alleged involvement of the
Appellant in the robbery was contradictory in the following respects:
·
The
complainant testified that the Appellant participated actively in the
robbery by demanding that she hands over her phone but
did not
suggest that the Appellant himself was involved in any physical
contact with her.
·
The
state witness, Twala, did not confirm the complainant’s
testimony that the Appellant had demanded the phone from her,
and
contrary to the complainant, testified that the Appellant had been
physically involved in the robbery.
·
From
the address of the Prosecutor, it is clear that the State relied on
the version of the complainant to contend that the Appellant
was a
participant in the robbery.
[22] It was
submitted on behalf of the Appellant that the complainant’s
testimony as to the Appellant’s active participation
in the
robbery is difficult to reconcile with her statement to the police
and the community members on the day that the Appellant
“did
not take my cell phone but he was with the people who took my cell
phone”. It is also difficult to reconcile with
the
complainant’s version that she needed to take a second
statement to identify the Appellant. If she saw what she
said
she saw, her first statement would surely have identified the
Appellant as a participant in the robbery. More importantly,
however, the only evidence of the complainant as to the Appellant’s
involvement in the robbery was her allegation that the
Appellant
demanded that she hand over her phone. That version was specifically
denied by the Appellant in his evidence in chief.
The Appellant’s
evidence in this regard was never challenged in cross examination and
it can accordingly not be rejected.
Accordingly, it was submitted
that the State’s case against the Appellant is unsustainable.
[23] The only
other evidence against the Appellant was that of the witness, Twala
but his evidence is of little value. Twala claimed
to have seen the
Appellant participating in the robbery but, on his own version,
visibility was poor because of mist and he could
not see clearly. He
could also not give details of anything that the Appellant did beyond
the bald assertion that the Appellant
had participated in the robbery
and his evidence of the physical involvement of the Appellant in the
robbery was inconsistent with
the complainant’s evidence that
the Appellant’s only involvement was to demand that she hand
over the cell phone.
[24] An
indication of the limited view that the witness Twala had of the
event was that he testified repeatedly that the tussle
was over the
complainant’s bag, whereas it is clear that on the version of
the Complainant, the tussle was over her cell
phone. Accordingly,
it was submitted that in the circumstances there is at least a
reasonable possibility that the version
of the Appellant was not
false and that he was, in fact, standing two metres back from the
robbery in a shocked or scared state
and not participating in it.
[25] It would seem to
me that the State did not prove beyond reasonable doubt that the
Appellant was party to the robbery of the
complainant and the
conviction of the Appellant accordingly should be set aside. Firstly,
in regard to the failure to permit cross
examination of the two
statements I have had regard to the decision in President of the
Republic of South Africa and Others v South
African Rugby Football
Union and Others (CCT16/98), reported as
2000 (1) SA 1
, at paragraphs
61 to 63 wherein the following appears:
“
61
The institution of cross-examination not
only constitutes a right, it also imposes certain obligations. As a
general rule it is
essential, when it is intended to suggest that a
witness is not speaking the truth on a particular point, to direct
the witness’s
attention to the fact by questions put in
cross-examination showing that the imputation is intended to be made
and to afford the
witness an opportunity, while still in the witness
box, of giving any explanation open to the witness and of defending
his or her
character. If a point in dispute is left unchallenged in
cross-examination, the party calling the witness is entitled to
assume
that the unchallenged witness’s testimony is accepted as
correct. This rule was enunciated by the House of Lords in Browne
v
Dunn and has been adopted and consistently followed by our courts
.
62
The rule in Browne v Dunn is not merely one of professional
practice but “is essential to fair play and fair dealing with
witnesses”. It is still current in England and has been adopted
and followed in substantially the same form in the Commonwealth
jurisdictions
.
63
The precise nature of the imputation should be made clear to the
witness so that it can be met and destroyed, particularly where
the
imputation relies upon inferences to be drawn from other evidence in
the proceedings. It should be made clear not only that
the evidence
is to be challenged but also how it is to be challenged. This is so
because the witness must be given an opportunity
to deny the
challenge, to call corroborative evidence, to qualify the evidence
given by the witness or others and to explain contradictions
on which
reliance is to be placed
.”
[26] Moreover, the
trial court in not permitting cross examination of the two statements
failed in its duty in this regard. In S
v Dlamini 1999 (2) SACR CC 51
the following was held with regard to the duty of trial courts and
courts hearing bail applications:
“
Provided trial courts
remain alert to their duty to exclude evidence that would impair the
fairness of the proceedings before them,
there can be no risk that
evidence unfairly elicited at bail hearings could be used to
undermine accused persons’ rights
to be tried fairly. It
follows that there is no inevitable conflict between s 60(11B)(c) of
the CPA and any provision of
the Constitution. Subsection (11B)(c)
must, of course, be used subject to the accused’s right to a
fair trial and the corresponding
obligation on the judicial officer
presiding at the trial to exclude evidence, the admission of which
would render the trial unfair.
But it is not only trial courts
that are under a statutory and constitutional duty to ensure that
fairness prevails in judicial
proceedings
.” Justice
Kriegler, as he then was, held that the message in R v Hepworth 1928
(AD) 265 remains as valid today as it ever
was. In that case at 277,
Curlewis JA stated: “
A criminal trial is not a game where
the one side is entitled to claim the benefit of any omission or
mistake made by the other
side, and a judge’s position in a
criminal trial is not merely that of an umpire to see that the rules
of the game are observed
by both sides. A judge is an administrator
of justice, he is not merely a figure head, he has not only to direct
and control the
proceedings according to the recognised rules of
procedure but to see that justice is done
.”
[27] On the question
whether the Appellant acted in common purpose with the other two
perpetrators, it was submitted that the Appellant
would have had to
actively do something in order to be guilty on the principle of
common purpose. I have had regard to the decisions
of S v Thebus
[2003] ZACC 12
;
2003
(2) SACR 319
CC at par 34 wherein the following was held:
‘
If the
prosecution relies on common purpose, it must prove beyond a
reasonable doubt that each accused had the requisite mens rea
concerning the unlawful outcome at the time the offence was
committed. That means that he or she must have intended that criminal
result or must have foreseen the possibility of the criminal result
ensuing and nonetheless actively associated himself or herself
reckless as to whether the result was to ensue
.’
[28] In S v Le Roux &
others
2010 (2) SACR 11
(SCA) at paragraph 17 the court stated as
follows: ‘
In S v Mgedezi & others
1989 (1) SA 687
(A)
this court dealt with a situation where there was no prior plan to
commit the offence of public violence. It was stated there
that a
general and all-embracing approach regarding all those charged is not
permissible. It was stated further that the conduct
of the individual
accused should be individually considered, with a view to determining
whether there is a sufficient basis for
holding that a particular
accused person is liable, on the ground of active participation in
the achievement of a common purpose
that developed at the scene.
In Mgedezi the following was stated: “
A view of the totality
of the defence cases cannot legitimately be used as a brush with
which to tar each accused individually,
nor as a means of rejecting
the defence versions en masse
.” And further: ‘
The
trial Court was obliged to consider, in relation to each individual
accused whose evidence could properly be rejected as false,
the facts
found proved by the State evidence against that accused, in order to
assess whether there was a sufficient basis for
holding that accused
liable on the ground of active participation in the achievement of a
common purpose. The trial Court’s
failure to undertake this
task again constituted a serious misdirection
.’
[29] With regard to
Section 51(2)
of the
Criminal Law Amendment Act 105 of 1997
: The use
of the knife, the Appellant’s counsel submitted that the
complainant’s version in relation to the knife was
inherently
improbable. She testified that the knife was produced by one of
the assailants only towards the end of a 20 to
30-minute robbery
after Mr Twala jumped over his fence to apprehend the assailants.
It was submitted that it is highly unlikely
that a robber who intends
to use a knife in a robbery would wait 20 – 30 minutes before
using it and it would also be stretching
the limits of plausibility
to suggest that three men tussling with a small woman over a cell
phone would be unable to remove it
from her grasp within 20 minutes
without finally producing a knife.
[30] Furthermore, if
the knife was used after Mr Twala jumped over his fence to apprehend
the assailants, it is unlikely that he
would have failed to see the
knife. Yet he did not corroborate the complainant’s
evidence of a knife being used in
the robbery. Because the evidence
in relation to the use of knife is the uncorroborated evidence of the
complainant, it must be
treated with circumspection and it can be
accepted only if it is found to be satisfactory “
in all
material respects
”. This was after all pointed out in
the judgment of the trial court is well established law. The evidence
of the complainant
cannot be stated to be satisfactory “
in
every important respect
”.
[31] On the contrary
her version that the robbery took 20 – 30 minutes is utterly
implausible, her evidence in relation to
the use of the knife is
suspect on its own terms, and there was no satisfactory explanation
for her statement in the immediate
aftermath of the crime that the
Appellant “
did not take my cell phone but he was with the
people who took my cell phone
”. There is the added
curiosity that the SAPS needed to take a second statement from her,
sometime after the robbery
to be able to identify the Appellant as
allegedly having participated in the robbery.
[32] The trial court
relied on the evidence of the complainant on the basis that it was
corroborated by Twala. But for the
most part, any corroboration
from Twala concerned issues that were already common cause and
related to the robbery being effected
by the two robbers who escaped.
In particular, the corroboration did not extend to the two material
issues that were in dispute
between the Appellant and the
complainant, namely that Twala did not confirm the Complainant’s
testimony about the alleged
use of a knife, and Twala did not confirm
the complainant’s testimony about the Appellant’s alleged
demand for the
cell phone. Indeed, far from corroborating the
Appellant, Twala contradicted her on two issues which were common
cause between
her and the Appellant and thus give reason to doubt the
reliability of his testimony:
·
while
it was common cause between the Appellant and the complainant that
the tussle between the robbers and the complainant was
a tussle over
the complainant’s cell phone, Twala testified that it was a
tussle over her bag; and
·
while
it was common cause between the Appellant and the complainant that
the Appellant did not take part in any physical tussle
with the
complainant, Twala testified that he did.
[33] Consequently, the
corroboration provided by Twala is of little value and the inherently
implausible and uncorroborated evidence
of the complainant in
relation to the alleged use of the knife cannot be found to have been
proven beyond reasonable doubt. The
Appellant finally submitted in
relation to the conviction, that, if the conviction is not set aside
for reasons submitted, the
State did not prove the presence of
aggravating circumstances in relation to that robbery.
[34] For reasons
that appear above, I am of the view that the failure of the court to
allow cross examination on the two statements
vitiated the
proceedings. There was clear prejudice to the Appellant in this
regard. This aside and for reason which also
appear above, the trial
court erred in convicting the Appellant on the principle of common
purpose. There was no evidence to support
such finding. Furthermore,
the many contradictions in the evidence of the complainant and that
of Mr Twala cannot sustain the conviction
against the Appellant.
[34] In the premises
the following order is made:
[34.1] The appeal
succeeds.
[34.2]
The conviction and sentence are set aside.
G.
T. AVVAKOUMIDES
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
agree:
P. R. HUNDERMARK
ACTING JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION, JOHANNESBURG
Representation
for Appellant:
Counsel:
M. Chaskalson SC
Instructed
by: Lawley Shein Attorneys
Representation
for the Respondent:
Counsel:
T. P. Mpekana
Instructed by: Director of Public Prosecutions