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[2015] ZASCA 131
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Arendse v S (089/15) [2015] ZASCA 131 (28 September 2015)
THE SUPREME COURT
OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
no: 089/15
In
the matter between:
MAURICO
ARENDSE
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Arendse
v S
(089/15)
[2015] ZASCA 131
(28 September 2015)
Coram:
Shongwe,
Theron and Saldulker JJA
Heard:
28 August 2015
Delivered:
28 September 2015
Summary:
Criminal
law – identification by witnesses who had prior knowledge of
the appellant – in cases where the witness has
known the person
previously, questions of identification of facial characteristics and
of clothing are less important than where
there was no previous
acquaintance with the person sought to be identified – general
principles of identification evidence,
credibility and reliability of
identifying witnesses revisited.
ORDER
On
appeal from:
Western
Cape Division of the High Court, Cape Town (Cloete and Henney JJ
sitting as court of appeal):The appeal is dismissed.
JUDGMENT
Shongwe
JA (Theron and Saldulker JJA concurring)
[1]
This appeal is against the confirmation of conviction and sentence by
the Western Cape Division of the High Court, Cape Town
(Cloete and
Henney JJ concurring). The appellant and a co-accused were convicted
of murder, attempted murder and unlawful possession
of a firearm by
the regional court, Khayelitsha. They were sentenced to an effective
period of 25 years’ imprisonment. Two
other accused were
discharged at the close of the State’s case in terms of
s 174
of the
Criminal Procedure Act 51 of 1977
. The appellant and his
co-accused were granted leave to appeal to the high court against
their conviction – which appeal
was upheld in respect of the
appellant’s co-accused but the appellant’s was dismissed.
The appeal is with the leave
of this court.
[2]
The entire appeal turns on the adequacy of the identification of the
perpetrators of these heinous offences, the details of
which will be
dealt with later. The facts giving rise to the charges being
preferred against the appellant are largely common cause.
On 1 June
2010, at 44 Buick Street, Beacon Valley, Mitchells Plain a fatal
shooting took place. That is the residence of the complainant,
Mr
Jeremy Henkeman. He had been residing at those premises, in a shack
structure described as a ‘hokkie’ with his girlfriend,
Ms
Jessica Guiliball (the deceased). He and the deceased had been in a
relationship for about ten years and two children, aged
6 and 4
years, had been born out of this relationship. Immediately prior to
the shooting incident Henkeman and the deceased had
been relaxing on
a bed in their home.
[3]
Most of the facts are common cause and not in dispute – what is
disputed is the identity of the perpetrators. While Henkeman
and the
deceased were relaxing at home, they heard someone calling Henkeman’s
name. He recognised the voice as that of ‘Mugabe’
(appellant’s nickname). Henkeman and Mugabe knew each other
very well. They were members of different gangs and resided in
the
same street. After the name ‘Jeremy’ was called, the
deceased went outside to investigate as to who it was. She
left the
door open but returned shortly and stood in front of Henkeman at the
bed, between him and the door. Before she could utter
a word a volley
of gun shots were fired at her and Henkeman. They were both shot at
and she fell on top of Henkeman. She was fatally
injured and died
later that night. Henkeman sustained twelve gunshot wounds on his
body and was, as a result of his injuries, hospitalized
for about a
month. Henkeman testified further that he managed, during the
shooting, to recognise the appellant and one ‘Slappes’
(third accused whose appeal was upheld by the court a quo for lack of
evidence implicating him) standing outside the shack holding
black
revolvers and shooting at them. After the shooting the two left the
premises. Henkeman also saw a third person and identified
him as
‘Mejage’ (fourth accused who had been discharged at the
close of the State’s case by the trial court).
[4]
Two police officers, Constables Enver Leo (Leo) and John Fortuin
(Fortuin) who were off duty at the time, were travelling in
a motor
vehicle driven by Fortuin, somewhere in the vicinity of Henkeman’s
home. As they were stationary at a traffic intersection
waiting for
the traffic lights to change, Leo heard five loud bangs – which
sounded like fireworks. Shortly thereafter he
saw two persons jumping
over a wall on his left hand side. They ran across the street in
front of the vehicle in which he was.
One of these persons was light
complexioned and the other was dark and was carrying a firearm. Leo
and Fortuin made a U-turn and
followed the two running men with their
vehicle. The two men disappeared out of their sight. Leo telephoned
the police station
to alert them of the incident in consequence of
which other police officers were dispatched to the area. It was then
discovered
that there had been a shooting at the home of the
complainant. The complainant and the deceased were transported to
Groote Schuur
Hospital.
[5]
It was also common cause that Warrant Officer Joseph Lekay (Lekay)
arrived on the scene. He arrested the appellant and his co-accused
as
a result of a report made to him by Leo to the effect that they were
the same two men who had earlier jumped over the wall.
[6]
It was not disputed that Leo made a statement the very evening of the
shooting incident and a second statement on 11 March 2011,
some nine
months later, which was recorded by Warrant Officer Malan. It was in
the second statement that Leo mentioned the name
‘Mugabe’
for the first time. On 10 August 2011, Henkeman consulted with
Detective Van Reenen in an office at
the Mitchell’s Plain
police station. It was common cause that photographs of suspects were
displayed on the wall of the office
in which the consultation was
held. In response to a question from Van Reenen as to whether he,
Henkeman, could identify the persons
who had shot him and the
deceased, Henkeman said yes and pointed to a photograph of three
persons, namely, Slappes, Mugabe and
Mejage.
[7]
Constable John Fortuin also testified – in broad he confirmed
the testimony of Leo. In particular he confirmed that Leo
told him,
before the appellant was arrested, that the dark complexioned person
was Mugabe.
[8]
The appellant’s version is that he was walking in the street in
the company of the second accused on their way to buy
airtime. They
were confronted by Lekay who arrested them as perpetrators of the
shooting. The appellant denied all the allegations
against him. He
testified that Leo and Fortuin came to the police holding-cells to
have a look at them subsequent to their arrest.
He confirmed that he
knew Henkeman and the deceased by sight – however he did not
deny that he lives in the same street as
Henkeman. He also said he
knew Henkeman and the deceased for a period of about three years.
[9]
In this court, counsel for the appellant levelled trenchant criticism
against the testimony of Leo and Henkeman, his main submission
being
that Leo failed to mention the name of the appellant in his first
statement to the police, and that he only did so nine months
later,
which must make his evidence unreliable. He also criticised Henkeman
in that it was improbable to have identified the appellant
during the
shooting and volley of shots. That the position in which Henkeman
laid must have hindered his vision. In my view these
criticisms are
inadequate to vitiate the quality of the identification evidence.
[10]
The nub of this case revolves around the identification of the
appellant. In particular evidence of witnesses with prior knowledge
of the appellant. There is a plethora of authorities dealing with the
dangers of incorrect identification. The
locus classicus
is
S
v Mthethwa
1972 (3) SA 766
(A) at 768A, where Holmes JA warned
that: ‘Because of the fallibility of human observation,
evidence of identification is
approached by courts with some
caution’. In
R v Dladla
1962 (1) SA 307
(A) at 310C-E,
Holmes JA, writing for the full court referred with approval to the
remarks by James J – delivering the judgment
of the trial court
when he observed that:
‘
one
of the factors which in our view is of greatest importance in a case
of identification, is the witness’ previous knowledge
of the
person sought to be identified. If the witness knows the person well
or has seen him frequently before, the probability
that his
identification will be accurate is substantially increased …
In a case where the witness has known the person previously,
questions of identification …, 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.’
[11]
In the present case we have the evidence of Henkeman who,
independently and separately from Leo, testified that he heard the
voice of the appellant calling his name and also saw him during the
shooting. Leo on the other hand testified that one of the persons
he
saw jumping over the wall was the appellant nicknamed Mugabe. Fortuin
confirms that Leo told him, while they were in the car
before the
appellant was arrested, that the dark complexioned person, with a
firearm in his hand, was Mugabe. The evidence of those
three
witnesses cannot be ignored especially that the appellant was seen
and arrested in the vicinity of the shooting. My conclusion
is that
the appellant was properly and satisfactorily identified and is
fortified by the fact that Leo and Henkeman are not known
to each
other, they did not discuss this incident before – I am
satisfied that the appellant was one of the persons who shot
the
deceased and Henkeman. Despite the criticism of Henkeman’s
evidence that he admitted under cross-examination that he
was under
the influence of drugs – he explained that he had had the drugs
early in the morning that day – at around
7 pm he had been free
from the influence. The appellant did not dispute that he was a
member of the 28 gang, although he did not
want that aspect discussed
further. Henkeman had testified that he was a member of the rival
gang, the Mongrels and had known the
appellant for about 20 years.
This testimony solidifies Henkeman’s prior knowledge of the
appellant. Furthermore, Henkeman’s
and Leo’s
identification of the appellant was not based on a fleeting encounter
in adverse lighting conditions. There was
good lighting outside the
shack of Henkeman at the time of the shooting.
[12]
There is no doubt that the manner in which this case was investigated
is open to criticism. For example, the evidence of Warrant
Officer
Malan and Detective Van Reenen, the two police officers who were
involved in the investigation of this case displayed sloppiness,
to
say the least. Henkeman was, for example, brought to a room
containing photographs of the suspects – and the prosecutor
is
alleged to have entered the room while Henkeman was with Van Reenen.
The evidence of Leo was also criticised in that he failed
to mention
the name ‘Mugabe’ in his first statement, but only did so
in the second statement. It was argued that there
were discrepancies
between Leo and Fortuin on whether they went to the cells after the
arrest of the appellant and his co-accused.
Fortuin was emphatic in
his evidence that after the appellant and his co-accused were
arrested, Leo and himself visited the police
cells ‘[om] seker
gaan maak’. (To make sure.) (My translation.) The evidence of
Leo on this aspect was:
‘
Nadat
die persone nou gearresteer was, was u op enige stadium weer by die
polisiestasie om die persone uit te ken as die persone
wat daar by
die persele was? --- Nee’ (After the persons were arrested,
were you at any stage at the police station in order
to identify the
persons as the persons who were at the scene.) (My translation.)
In
my view the question is ambiguous. Leo was not specifically asked
whether he visited the cells on that same day. Furthermore,
he was
asked whether he visited the cells in order to
identify
the persons. It is thus not possible, on this evidence alone, to
conclude that there was a discrepancy between Leo and Fortuin
in this
regard.
[13]
Of importance is whether, after considering the conspectus of the
evidence, the State succeeded in proving the guilt of the
appellant
beyond reasonable doubt. The corollary thereof is whether the
appellant’s version is reasonably possibly true.
(See
S
v van der Meyden
1999
(2) 79 (W) at 82C and
R
v Difford
1937 AD 370
at 373).
[14]
I agree with the conclusion reached by the trial court and the court
a quo and also their overall analysis and evaluation of
the evidence.
The high court found that Henkeman’s evidence on its own cannot
be regarded as sufficiently reliable and required
material
corroboration by other reliable evidence. The court found such
corroboration in the evidence of Leo and reasoned as follows:
‘…
Henkeman’s
identification of accused number 1 [appellant] was corroborated in
all material respects by the evidence of Leo.
It was never put to Leo
that he had not in fact been at the intersection of A Z Berman and
Trampoline Streets at about 19h00 that
evening; that the area was not
well lit; that he had mistakenly heard shots being fired in close
proximity just before the two
men had jumped over the wall less than
2 metres away from him to his left; or that accused number 1 was not
known to him. Furthermore,
the evidence of Fortuin that Leo had
immediately identified accused number 1 to him as Mugabe was not
challenged.… Against
this background and despite the fleeting
opportunity and night time conditions, Leo’s identification of
accused number 1
cannot be said to have been without inherent
plausibility.’
Triers
of facts should be careful and guard against admitting fanciful
possibilities to deflect the cause of justice. There is no
obligation
on the State to close every possible avenue of escape which may be
open to an accused (see
R
v Mlambo
1957
(4) SA 727
(A) at 737F-H and
S
v Phallo
1999
(2) SACR 558
(SCA) para 10.
[15]
The irregularity complained of (see para 12 above) is not so
fundamental or serious that the proper administration of justice
and
the dictates of public policy require that it be regarded as fatal to
the proceedings in the trial court. (See
S v Tuge
1966
(4) SA 565
(A) at 568B.) This accords with the approach
recommended by Mahomed CJ in
S v Shikunga and another
1997 (2)
SACR 470
(NmS) at 484 C-D:
‘
It
would appear to me that the test proposed by our common law is
adequate in relation to both constitutional and non-constitutional
errors. Where the irregularity is so fundamental that it can be said
that in effect there was no trial at all, the conviction should
be
set aside. Where one is dealing with an irregularity of a less severe
nature then, depending on the impact of the irregularity
on the
verdict, the conviction should either stand or be substituted with an
acquittal on the merits. Essentially the question
that one is asking
in respect of constitutional and non-constitutional irregularities is
whether the verdict has been tainted
by such irregularity.’
[16]
I must mention that there is a lot of information that has not been
revealed by Henkeman by reason of his involvement in gangsterism
and
drugs. Such information, although not decisive in this matter, could
have shed light on the motive for the shooting.
[17]
The appeal is dismissed.
_______________________
J
B Z SHONGWE
JUDGE
OF APPEAL
Appearances
For
the Appellant: R M Liddell
Instructed
by:
N
Hassan & Associates, Cape Town;
Phatshoane
Henney Attorneys, Bloemfontein.
For
the Respondent: M Marshall
Instructed
by:
Director
of Public Prosecutions, Cape Town;
Director
of Public Prosecutions, Bloemfontein.