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[2015] ZASCA 170
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Duze v State (272/15) [2015] ZASCA 170 (26 November 2015)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 272/15
DATE: 26 NOVEMBER
2015
Not Reportable
In
the matter between:
DUZE,
LUCAS
...............................................................................................................
APPELLANT
And
THE
STATE
.................................................................................................................
RESPONDENT
Neutral
citation
:
Duze
v State
(272/15)
[2015] ZASCA 170
(26
November 2015)
Coram:
Ponnan, Bosielo, Leach, Petse and Zondi JJA
Heard:
11 November 2015
Delivered:
26 November 2015
Summary:
Evidence of identification –
appellant’s conviction based on identification evidence of a
single witness – to
guard against inherent risk of mistaken
identification – such evidence required to be approached with
caution – not
enough for identifying witness to be honest and
reliable but reliability of his observation to be tested.
ORDER
On
appeal from:
Gauteng
Local Division, Johannesburg (Victor J and Ratshibvumo AJ sitting as
court of appeal):
1 The appeal is
upheld.
2
The appellant’s convictions and sentences imposed pursuant
thereto are set aside.
JUDGMENT
Zondi
JA
(Ponnan, Bosielo, Leach and Petse
JJA concurring):
[1]
The appellant and his four co-accused appeared in the Wynberg
Regional Court on 20 counts. They each faced six counts of robbery
with aggravating circumstances, eight counts of kidnapping and six
counts of attempted murder. The charges related to three separate
events on 5 September 2003; 5 November 2003; 19 February 2004 and 3
March 2004. The appellant was convicted on six of those
charges
relating to 19 February 2004 and 3 March 2004 and sentenced to an
effective period of 22 years’ imprisonment.
[2]
The appellant appealed to a full bench of Gauteng Local Division of
the High Court, Johannesburg against his convictions. His
appeal on
the charges relating to the incident of 19 February 2004 was upheld
and the sentences imposed pursuant thereto were set
aside, but
dismissed on the charges relating to the incident of 3 March 2004.
The further appeal to this court is thus concerned
only with the
charges relating to the 3 March 2004. The appeal against his
convictions is with the special leave of this court.
[3]
The charges, the subject of this appeal, arise from the following
incident: On 3 March 2004, at about 21h30, Mr Richard Dancer
arrived
at his home in Parkview, Johannesburg in his Audi S3 motor vehicle.
As he approached his house he opened the garage door
with a remote
control. There is no security gate on the premises. He drove straight
into the garage. He testified that the garage
was well lit. When he
was about to switch off the engine of the vehicle, an unknown male
person emerged from the window on the
driver’s side and pointed
a firearm at him. The suspect ordered him to get into the back of the
vehicle and lie on the back
seat with his eyes closed. A second
suspect got into the vehicle. Thereafter the two suspects drove away
with him to a deserted
spot in the vicinity of Eldorado Park. There
the suspects and a third person who had accompanied them in a BMW
X5(the evidence
establishes that the BMW X5 had been hijacked on a
separate occasion) were surprised by a group of five policemen,
resulting in
a shootout during which one policeman was wounded and
the suspects fled the scene. Arising from this incident the appellant
and
his co-accused were charged, first, with robbery with aggravating
circumstances in that they had unlawfully assaulted Richard Dancer
(Dancer) and had forcibly taken from him an Audi S3, a Guess watch, a
wallet containing bank cards and R400 in cash, secondly,
with
kidnapping Dancer and thirdly, attempted murder of Inspector Clark.
[4]
Inspector Clark testified on the charge of attempted murder. In
essence his evidence confirmed that of Dancer in so far as it
related
to the shooting incident in the veld. Inspector Clark together with
his four other colleagues were already at the scene
when the Audi and
the BMW arrived. They were there because they had information that
the hijacked vehicles were taken to that area
for the removal of
tracking devices. When Clark saw the suspects from the vehicles busy
fiddling with the boot of the Audi, he
and his colleagues shouted at
them to announce their presence. Clark shone his flashlight on the
suspects and warned them to stand
still. But they ignored the warning
and started shooting at them. Inspector Bangula, one of the police
involved in the operation,
got shot on the thigh.
[5]
Dancer described the gun-wielding suspect as a ‘dark-skinned’
man with a round face, very wide and clear eyes and
semi-pointed nose
and the firearm as a long barrelled grey pistol. He could not see his
hairline and ears because the hood of his
jacket covered the back of
his head. Dancer first identified the appellant at an identification
parade held on 22 April 2004 and
later in the dock. The appellant
gave evidence in his defence, denying that he was involved in the
commission of the offences concerned,
stating that he was elsewhere.
[6]
The trial court found Dancer to have been a good and honest witness
and accepted his identification evidence as reliable. It
rejected the
appellant’s evidence. The high court emphasised on appeal that
Dancer had a good opportunity in the garage to
observe the
gun-wielding suspect when he ordered him to get into the back seat of
the vehicle. According to the high court, the
fact that Dancer lay on
the back seat with his eyes closed did not deprive him of an
opportunity to observe the suspect. It held
that Dancer’s
evidence did not stand alone. In this regard it expressed itself in
these terms:
‘
Dancer
was taken to the veld where the police bust took place. The evidence
also revealed a close connection between appellant one
and three by
way of an invitation where appellant one was invited to his wedding.
I am satisfied that appellant one was correctly
convicted on counts
12 and 13.’
[7]
As far as the conviction on the attempted murder charge is
concerned, the high court confirmed it on the basis of the
reasoning
that ‘once the appellant is involved in the Dancer counts then
it follows as a matter of logic that appellant…
was at the
scene and thus involved in the shooting of Inspector Clark…’
[8]
It is against these findings that the appellant appeals, submitting
that the trial court and the high court on appeal had erred
in
finding that his identity had been proven beyond a reasonable doubt.
[9]
Dancer testified in a truthful and honest manner and was willing to
make concessions when it was necessary to do so. But Dancer’s
honesty and truthfulness by themselves do not provide a sufficient
basis for the acceptance of his identification evidence.
[1]
For
his evidence to be accepted it must also be reliable in the sense
that it must be shown that he had a proper opportunity in
the
circumstances in which the offences concerned occurred, to carry out
such observation as would be reasonably required to ensure
a correct
identification.
[2]
[10]
I am not satisfied that Dancer’s identification evidence was
reliable and sufficient to sustain the conviction on the
charges
concerned. Dancer did not have sufficient opportunity to observe the
suspect. He testified that in total the time that
he had for
observation was a second or less. This was no more than a fleeting
glance and of a person whose features were partially
obscured by the
hood of the jacket he was wearing.
[11]
Moreover, under cross-examination he conceded that, at the time of
the incident, he was traumatised and a lot of thoughts went
through
his mind, which could make it difficult for him to concentrate on a
specific aspect of the identity of the suspect.
[12]
Although Dancer did identify the appellant at the identification
parade held some seven weeks after the incident, he had told
Inspector Viljoen, the investigating officer, who interviewed him
shortly after the incident, that it would be difficult for him
to
make an identification. What is more, is that Dancer conceded under
cross examination that he was not certain as to the identity
of the
appellant. In fact he went so far as to admit that the possibility
existed that it may not have been the appellant. Apart
from Dancer’s
own assertion that the appellant was the person who robbed and
kidnapped him, there is no objective evidence
which linked him to the
offences concerned. In
Charzen &
another v S
2006 (2) All SA 371
(SCA)
para 19 this court had this to say:
‘
The
greatest assurance of guilt must lie in such evidence, rather than in
identification on its own, which as this case shows can
be beset by
error and misdescription and doubt, in which case possibly and even
presumably guilty persons must walk free.’
[13]
In my view, considering the totality of the evidence, it cannot be
said that the appellant’s guilt was proved beyond
reasonable
doubt.
[14]
In the result the appeal succeeds and the order of the court below is
set aside and replaced with the following:
1
The appeal is upheld.
2
The appellant’s convictions and sentences imposed pursuant
thereto are set aside.
D
H Zondi
Judge
of Appeal
Appearances
For
the Appellant: P J du Plessis
Instructed
by: BDK Attorneys, Johannesburg
c/o
Symington & De Kok, Bloemfontein
For the
Respondent: A Smith
Instructed
by: The Director of Public Prosecutions, Johannesburg
The Director of
Public Prosecutions, Bloemfontein
[1]
S
v Mthetwa
1972
(3) SA 766
(A) at 768A.
[2]
S
v Mehlape
1963 (2) SA 29
(A) at 32C.