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[2010] ZAGPJHC 128
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Jiyane v S (A210/2010) [2010] ZAGPJHC 128 (3 December 2010)
REPORTABLE
IN THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
CASE NO.
A210/2010
DATE: 03/12/2010
In the matter between:
JIYANE,
WANDILE
…..................................................................
Appellant
versus
THE
STATE
...................................................................................
Respondent
JUDGMENT
MOKGOATLHENG
J
(1) The appellant was
arraigned in the regional court held at Germiston on four (4) counts
of robbery with aggravating circumstance
as intended in
section
1
of the
Criminal Procedure Act 51 of 1977
,
and read with the provisions of
section
51 (2) of The Criminal Law Amendment Act 105 of 1997.
(2) The appellant was
convicted on counts 1, 2, 3, and sentenced to 4 years on each count,
to an effective 12 years imprisonment.
The appellant now appeals
against both the conviction and sentence.
(3) The appellant
contends that the court-a-quo misdirected itself in finding that
neither Robertson nor Campbell had made any mistake
in identifying
the appellant as the person who robbed them, even though, they did
not properly describe or properly identify him.
(4) Further, the
appellant contends that the court-a-quo wrongly found that because
Campbell saw him on a regular basis on Friday
afternoons, and
Robertson had also once seen him, there was no possibility that they
might make a mistake in his identification.
(5) The fundamental
question is whether the State has proven the identity of the
appellant beyond a reasonable doubt. In this regard
there are two
significant and connected aspects which require consideration, the
reliability of Campbell and Robertson as single
witnesses and the
sufficiency of the totality of the evidence.
(6) Campbell testified
that before the robbery he usually saw the appellant on Friday
afternoon because he attended school at Alberton
College which is
situated close to Bracken High School where the appellant attended.
(7) Robertson testified
that it was not the first time he had seen the appellant on the day
of the robbery, he once saw the appellant
coming out of the main gate
of Alberton College. He stated that because the appellant held him up
by placing a knife on his throat,
he identified the appellant by his
height, roundish smallish eyes, lips and ears.
(8) Captain Buys
testified that on the 23 May 2008 after arresting the appellant,
whilst attempting to establish what had occurred,
he was approached
by Campbell who after identifying the appellant, adviced him and his
colleague that the appellant armed with
a weapon, definitely robbed
him and Liandra Peters of their cellphones.
(9) Further Captain Buys
testified that on the 23 May 2008 Robertson arrived with his mother
at the police station, and identified
the appellant as the person who
armed with a knife had robbed him of his bicycle.
(10) Concerning
identification, in
S
v Dladla
1962 (1) SA 307
at 310
it was held:
(a)
“One
of the factors which in our view is of the greatest importance in a
case of identification is the witness’s 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”;
(b) In
S
v Ngcina
2007 (1) SACR 19
(SCA) Navsa JA at para [16]:
“
Lastly it
should be stressed that the Courts have frequently said that ‘the
positive assurance with which an honest witness
will sometimes swear
to the identity of an accused person is no guarantee of the
correctness of that evidence’ ; “
and
(c) In
S
v Magadla
2010 (2) SACR 316
it was held:
“
[15] the
subjective honesty and sincerity of the identifying witnesses are not
enough. It must be established by the State, upon
which the onus
rests in a criminal trial, that the identification is reliable beyond
reasonable doubt……...the evidence
of identification,
based on a witness’s recollection of a person’s
appearance, can be dangerously unreliable and must
of necessity be
approached with caution. See in this regard
TD
Zeffertt, AP Paizes & A St Q Skeen The South African Law of
Evidence (2003) at 142; R v Biya
1952 (4) SA 514
(A); R v Hlongwane
1959 (3) SA 337
(A) at 341A; S v Sithole and Others (supra); and S v
Majiame and Others 19
99 (1) SACR 204
(O).
Compare
S v Charzen and Another
2006 (2) SACR 143
(SCA) ([2006]
2 All SA
371).
(11) Although it may be
cogently argued that the evidence tendered by Campbell regarding his
inability to precisely describe any
characteristics about the
identity of the appellant save to say:
(a) he had seen him on
several occasions at Alberton High School or in the vicinity thereof;
(b) the appellant robbed
him in broad day light;
(c) he can still see his
face in his mind;
(d) although he cannot
describe the appellant he knows it is him because he saw him every
Friday and he knows him; and
(e) he remembers his face
and can see it in his head; is not sufficiently conclusive in
properly identifying the appellant, Campbell’s
evidence stands
as direct
prima
facie
evidence.
(12) The fact of the
matter is, it was not disputed that Campell had previously seen the
appellant, neither was it disputed that
Robertson had also previously
once seen the appellant, consequently, there was direct
prima
facie
evidence implicating the appellant in the robberies. The appellant
elected not to testify in amplification of his alibi defence.
The
failure by the appellant not to testify, strengthens the reliability
of the testimony of Robertson and Campbell.
(13) In
S
v Hadebe and Others
1997 (2) SACR 641
it was held:
“
Presumption
that the trial court’s findings of fact are correct
– In the absence of demonstrable and material misdirection by
the trial court, its findings of fact are presumed to be correct
and
will only be disregarded if the recorded evidence shows them to be
clearly wrong – In determining whether the trial court’s
findings of fact were clearly wrong, it is a useful aid to break the
body of evidence down into its component parts, but, in doing
so, one
must guard against a tendency to focus too intently upon the separate
and individual parts of what is, after all, a mosaic
of proof –
The evidence is ultimately to be assessed as a whole.”
(14) It pointed out in
S
v Mthetwa
1972 (3) SA 766
(A) at 769D:
‘
Where…there
is direct prima facie evidence implicating the accused in the
commission of the offence, his failure to give
evidence, whatever his
reason may be for such failure, in general ipso facto tends to
strengthen the State case, because there
is nothing to gainsay it,
and therefore less reason for doubting its credibility or
reliability; see
S
v Nkombani and Another
1963 (4) SA 877
(A) at 893G and E S v Snyman
1968 (2) SA 582
(A) at 588G.’
(15) In
S
v Chabalala
2003 (1) SACR 134
(SCA) in para 20
it was held:
“The
appellant was faced with direct and apparently credible evidence
which made him the prime mover in the offence. He was
also called on
to answer evidence of a similar nature relating to the parade. Both
attacks were those of a single witness and capable
of being
neutralized by an honest rebuttal. There can be no acceptable
explanation for him not rising to the challenge….”
(16) Similarly in this
matter, in paraphrasing the Learned Nugent JA, if the appellant was
innocent he could have ascertained his
own whereabouts and activities
on 18 April 2008 and 5 May 2008 and have been able to vouch for his
non-participation in the robberies.
He was also readily able to deny
that the complainants had indeed failed to identify him at Bracken
High School and the police
station.
“To
have remained silent in the face of the evidence was damning. He
thereby left the prima facie case to speak for itself.
One is bound
to conclude that the totality of the evidence taken in conjunction
with his silence excluded any reasonable doubt
about his guilt.”
See
Kashief
Naude and Garreth Solomons v The State Case No 488/10/2010 ZASCA 138
delivered
on 29 September 2010.
See
also
S v Boesak 2001 (1) SACR (CC) at para 24 and Mapande v S (046/10)
[2010] ZASCA 119
(29 September 2010).
(17) The court-a-quo
cautioned itself against the unequivocal acceptance of the evidence
pertaining to identification, more particularly
because the State
relied on the evidence of single witnesses in both robberies. The
court-a-quo sought certain guarantees before
accepting the evidence
of the identifying witnesses, even where such witnesses had prior
knowledge of the appellant. Such guarantees
were found in the
reliability of the undisputed evidence of Campbell and Robertson, and
in the light of the probabilities and the
failure of the appellant to
testify in his defence, which in his plea explanation is predicated
on an alibi.
(18)
Navsa
JA in on Kashief, Naude Garreth Solomons v The State (supra)
paragraph 18
expressed himself thus with regard to the defence of an alibi where
the proponent thereof had testified as follows:
“
As the
Appellant Division as said in
R
v Hlongwani & R v Khumalo & Andere
the correct approach is to consider the alibi in the light of the
totality of the evidence and the Court’s impression of
the
witnesses. It is sufficient if it might reasonably be true.
This
does not mean that the Court must consider the probability of the
alibi in isolation
if someone says that he was in bed at midnight and no other evidence
may be considered, it would be difficult to say that it could
not
reasonably be true, but if there is sufficiently strong evidence to
show that he was in fact breaking into a shop, the Court
may consider
that his story can safely be rejected.”
(19) In my view, the
court-a-quo evaluated the evidence in terms of the set out legal
principles in the preceding paragraphs. The
record shows that the
court-a-quo took pains to consider the totality of evidence, it left
none of the material evidence out of
account. The court-a-quo
correctly accepted the evidence of Robertson and Campbell.
(20)
In the final analysis, the court-a-quo in accepting the evidence of
the identifying witnesses cannot be faulted because it correctly
found that such evidence was not only satisfactory but was truthful
,
and that the identification of the appellant was reliable. See in
this regard
R
v Masemang
1950 (2) SA 488
(A) at 493; S v Jochems
1991 (1) SACR 208
(A) at 212a-e; S v Pretorius en ‘n Ander
1991 (2) SACR 601
(A)
at 609a-b; S v Sithole and Others (supra) at 591c-g and S v Mthethwa
1972 (3) SA 766
(A) at 768A-C
(21) On the facts of
this case it is my view that the risk of mistaken identification is
substantially reduced, if not entirely
eliminated, when regard is had
to the uncontroverted evidence of Campbell and Robertson.
Consequently, the appeal against conviction,
is dismissed with the
caveat that count 1 and count 2 constitute one offence instead of two
distinct and separate offences, an
issue which is later addressed in
this judgment.
(22) In respect of
sentence it was argued that the court-a-quo erred in that it did not
to take sufficient consideration that the
appellant was still a
youth, was a first offender, that having regard to all the factors
relevant in the imposition of sentence,
the sentence imposed upon the
appellant was inappropriate and severe;
(23) The power of a court
to interfere with the sentencing discretion of a trial court is
limited. The limits were set out as follows
in
S
v Malgas
2001 (1) SACR 469
(SCA)
(2001 (2) SA 1222
;
[2001] 3 All SA
220
:
‘
A court
exercising appellate jurisdiction cannot, in the absence of material
misdirection by the trial court, approach the question
of sentence as
if it were the trial court and then substitute the sentence arrived
at by it simply because it prefers it. To do
so would be to usurp the
sentencing discretion of the trial court. Where material misdirection
by the trial court vitiates its
exercise of that discretion, an
appellate Court is of course entitled to consider the question of
sentence afresh. In doing so,
it assesses sentence as if it were a
court of first instance and the sentence imposed by the trial court
has no relevance. As it
is said, an appellate Court is at large.
However, even in the absence of material misdirection, an appellate
Court may yet be justified
in interfering with the sentence imposed
by the trial court. It may do so when the disparity between the
sentence of the trial
court and the sentence which the appellate
Court would have imposed had it been the trial court is so marked
that it can properly
be described as “shocking”,
‘startling” or “disturbingly inappropriate”.
It must be emphasized
that in the latter situation the appellate
Court is not at large in the sense in which it is at large in the
former. In the latter
situation it may not substitute the sentence
which it thinks appropriate merely because it does not accord with
the sentence imposed
by the trial court or because it prefers it to
that sentence. It may do so only where the difference is so
substantial that it
attracts epithets of the kind I have mentioned.
No such limitation exists in the former situation.’
(24) In my view the
court-a-quo considered the personal circumstances of the appellant,
the seriousness of the offence, the interests
of society, and
correctly found that there were substantial and compelling
circumstances as envisaged in
section
52 of the General Law Amendment Act 105 of 1997.
(25) I however am of the
view that the court-a-quo misdirected itself in the imposition of
sentence with regard to count 1 and 2.
I agree with appellant’s
counsel’s submission that the robbery of the two cell phones
was committed with a continuous
intention in pursuance of one
criminal transaction.
(26) In the matter
between
Luvuyo
Maneli v The State Case No. 494/07
[2008] ZASCA 50
delivered
on the 1 April 2008 it was held:
“
To determine
whether there had been an improper duplication of convictions the
courts have formulated certain tests. However, these
tests are not
equally applicable in every case. One such test is to ask whether two
or more acts were done with a single intent
and constitute one
continuous criminal transaction. Another is to ask whether the
evidence necessary to establish one crime involves
proving another
crime.”
S
v Grobler and Another
1966 (1) SA 507
(A) at 511G-H; and S v Prins
and Another
1977 (3) SA 807
(A).
(27) In the present case
for the reasons stated above, in my view the robbery of the cellphone
from the Campbell and Liandra Peters
by the use of firearm to induce
submission, was done with a single intent and constituted one
continuous criminal transaction.
(28) Consequently, in
such a case, a conviction of robbery in respect of each cellphone
constitutes an improper duplication of convictions
as the “
robberies
”
were committed within the preview of a continuous intent transaction
and should have been treated as one conviction. It
follows that the
conviction in respect of count 1 and 2 should be set aside. See
S
v Verwey
1968 (4) SA 682
(A) at 687F-688B and 689D-F).
(29) In the premises the
appeal against the cumulative sentence of 12 years partly succeeds.
Consequently, the sentences of 4 years
in respect of count 1, 2 and 3
respectively, are set aside and are substituted with the following
order:
(a) The appellant is
sentenced to 4 years imprisonment in respect of count 1 and 2 which
are taken as one offence for purposes of
conviction and sentence;
(b) The appellant is
sentenced to 4 years in respect of count 3; and consequently
(c) The effective
sentence is 8 years imprisonment which is antedated to the 24 January
2009.
Dated at Johannesburg on
the 3
rd
Deceember 2010.
_______________________________
MOKGOATLHENG J
JUDGE OF THE HIGH COURT
I CONCUR
______________________________
BADENHORST AJ
ACTING JUDGE OF THE HIGH
COURT
DATE OF HEARING: 1
ST
NOVEMBER 2010
DATE OF JUDGMENT: 3
RD
DECEMBER
2010
ON BEHALF OF THE
APPLICANT: H COWLEY
TELEPHONE NUMBER: (011)
333-1602
ON BEHALF OF THE
RESPONDENT: R BESTER
TELEPHONE NUMBER: (011)
220-4115