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[2019] ZAGPJHC 394
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Nkosi and Another v S (A161//2017) [2019] ZAGPJHC 394; 2020 (1) SACR 206 (GJ) (25 October 2019)
GAUTENG
LOCAL
DIVISION,
JOHANNESBURG
APPEAL
CASE NO: A161//2017
TRIAL
COURT CASE NO: SS 82/2014
In
the matter between:
NKOSI, DAVID
MPHO
First Appellant
SIPHORO,
REMEMBER
S
econd Appellant
And
THE
STATE
Respondent
JUDGMENT
SPILG, J:
INTRODUCTION
1.
This appeal concerns the killing of the
late Mr Lawrence Moepi who was a forensic accountant. At the time of
his death Mr Moepi
had been working on cases on behalf of, among
others,
the
Public
Protector's
office
and
the then Scorpions. His killing therefore
attracted
media attention and speculation.
2.
It was common cause that the deceased
had been followed by two occupants of a white Volkswagen Golf
motorcar
("the Golf')
into
his office parking lot. The passenger of the Golf alighted
,
approached the deceased
,
who was still in his motor vehicle, and
fired two or three shots at him through the door. The vehicle
'
s
door then opened and the shooter fired several more shots at the
deceased
.
He
then ran towards the Golf but saw Mr Sewpersad who had alighted from
his own car
.
Sewpersad
had entered the grounds just after the Golf and had parked his car a
short distance away from the other two cars
.
As the shooter ran back towards the Golf
he saw Sewpersad standing at his car
,
pointed the firearm at him
,
and entered the Golf which then drove
off
.
3.
As the trial proceeded before Barn J
,
it was evident that the murder was
unrelated to the deceased's forensic work
.
Firstly Mr Siphoro, who is cited in the
notice of set down as the second appellant, and who was the second
accused in the trial
,
pleaded
guilty to a charge of assaulting his ex
-
partner
with intent to do grievous bodily harm
,
being count 1 of the charge sheet. This
offence had occurred in late August 2013
,
which was just two months prior to the
murder. The second accused was identified
,
by another witness at the scene
,
as the driver of Golf from which the
shooter had alighted. It was common cause that at the time the second
accused
'
s
ex
-
partner
had formed an intimate relationship with the deceased
.
4.
Both the first and second accused were
found guilty of murdering the deceased
.
5.
The Supreme Court of Appeal granted the
first accused leave to appeal against conviction only
.
At the time the matter was enrolled it
was contended by one of the second accused
'
s
legal representatives that the SCA had not finally determined the
fate of his petition
.
RIGHT TO APPEAL
6.
The notice of set down signed by the
Registrar of the Criminal Appeals Administration on 24 June 2019
identifies two appellants.
7.
Last week this court was pro
v
ided
with the SCA order of 30 July 2015
.
It
reflects that Maya JA (at the time) and Leach JA considered the
petitions of both accused
,
granted
the petition of the first accused in respect of conviction only and
dismissed the second accused
'
s
pet
i
tion on
the grounds that
"
there
are no reasonable prospects of success and there is no other
compelling reason why an
a
ppeal
should be heard
".
8.
This court is entitled to assume that
the latter ground for refusing the petition meant that the court had
considered and rejected
the possibil
i
ty
that granting leave to the one accused may have warranted granting it
to the other.
9.
The second accused however contended
that his petition was still outstanding as it was subject to an
application for reconsideration.
In
heads filed on behalf of the second accused by
Adv
Kolbe
on
instructions from Fiona Marcandonatos Attorney it was subm
i
tted
that this court
,
sitting on appeal in
respect of the first accused
'
s
conviction
,
should
conside
r
being
seized of the second accused
'
s
appeal as well. It was urged that this court has inherent power to
regulate its own process in the interests of justice as both
accused
'
s
fair tr
i
al
rights have been infringed
.
Reliance was placed
on s 173 of the Constitution and
Sefatsa
and others v Attorney
-
G
e
n
e
r
a
l
,
Transvaal and
ano
1989 (1) SA
821
(A)
.
10.
The firs
t
difficulty with th
i
s
proposition is that it is cast too wide
.
The appellate jurisdiction of this
c
ourt
is derived from statute and
Sefatsa
at 834E is direct authority for that
proposit
i
on
.
11.
Even if the SCA was still reconsidering
the matter at the time the second accused
'
s
heads were filed it would be incompetent if this court were to step
in while that process was still before a court of superior
jurisdiction
.
The
usurpation of the SCA
'
s
function by this court would be vividly demonstrated if this court
were to have acced
e
d
to the second accused
'
s
re
que
s
t
and the SCA at the
s
ame
time conclud
e
d
its reconsiderat
i
on
by refus
i
ng
leave.
12.
All this court could have done was await
the outcome of the leave to appeal in an appropriate situation where
the fate of the one
accused is
,
either
on the facts or in law
,
inextricably
intertwined with that of the other
.
This
is not such a case
.
Here the only issue
is whether each accused had been positively identified by unrelated
witnesses each of whom had claimed to observe
the incident from a
different vantage point. The one witness could only see the driver of
the white Golf while Sewpersad claimed
to have observed the shooter
and later claimed that there were characteristics of the driver which
he recalled
.
13.
In the premises the only appeal properly
before us is that of the first accused who will be referred to from
now on as the appellant.
The insertion of the second accused as an
appellant in the notice of set down appears to have been a genuine
error on the part
of the Registrar.
14.
If there is indeed some process still
pending before the SCA in relation to the second accused it cannot
affect the appeal of the
other and there is no good reason to delay
the hearing of the appeal which is before us, bearing in mind that
ultimately at issue
is the question of the appellant's liberty
.
GROUND OF APPEAL
15.
A number of heads of argument have been filed
;
one set by counsel
engaged by the appellant d
i
rectly
and two by counsel from Legal Aid. Both the private firm and Legal
Aid hold powers of attorney from the appellant to prosecute
his
appeal. Since we had read all sets of heads filed and because it was
not possible to obtain instructions from the appellant
,
we decided to hear
both counsel for the appellant
,
with Adv Kolbe
present
i
ng
argument before
Adv
Robertse
.
The
State had no objection to this course
,
which ensured that
the appeal was not delayed while overcoming the possibility of
prejudice to the appellant.
16.
The appellant contends that the court
erred in finding that the State had established his identity as the
shooter beyond a reasonable
doubt.
17.
In support of this submission, and
leaving aside the usual generalised submissions the appellant
essentially contends that:
a.
Mr
Sewpersad was a single witness and although
s 208
of the
Criminal
Procedure Act 51 of 1977
allows a conviction in such circumstances,
the court failed to subject his evidence to proper scrutiny. See
S
v Pi/lay
[2016] ZASCA26.
b.
The
court could not have been satisfied as to the honesty or reliability
of the witnesses' evidence and failed to carefully scrutinise
his
evidence because in his first statement the witness said that he
would not be able to identify the shooter yet he claimed to
have done
so in court which meant that he was prepared to make a false
statement under oath
.
The
appellant also contends that the witness
'
s
identification
of
him as the shooter amounted to a dock identification
.
Indeed one of the
key criticisms is that
"Mr
Sewpersad only identified appellant
.
.
.
in court
.
.
..
More than
a
year after the
event in circumstances where the involvement of the appellants was
suggested to him by their presence in court
...."
SINGLE EYEWITNESS
18.
Many serious offences such as rape
,
assault
,
hijackings and
"smash
and grabs
"
are committed on a daily basis where
only the victim is present. Similarly there may only be a single
eyewitness who had an unobstructed
view of the assailant.
19.
As appears from
S
v Mthetwa
1972 (3) SA 766
(A) at
768A-C the real issue
is
whether
the court can discount
"
...
the fallibility of human
observation
".
This
seems to be the reason why in the judgment Holmes JA was not prepared
to limit the considerations which might be taken into
account
,
despite a rather extens
i
ve
list of possibilities being mentioned in his judgment. Each case will
depend on its own facts and circumstances
.
WITNESS' HONESTY AND RELIABLITY
20.
Sewpersad made a statement to the police
in which he said that he would not be able to recognise the
shooter
.
During his evidence he pointed the
appellant out as the shooter.
21.
It is accepted that once a court is made
aware of a material discrepancy between a witness's testimony and the
statement he or she
made to the police then a court must be careful
in weighing that
person's
credibility
.
22.
The defence asked Sewpersad why
initially he had told the police that he would be unable to identify
the shooter. Sewpersad replied
that
"I
was
scared
for my life at that stage when I was pointed with the firearm by the
accused
".
23.
Attorney Leisher, who then
represented the appellant put to the witness whether it was correct
that he did not tell the truth when
the police took down his
statement. The reply again revealed the witnesses professed state of
mind at the time. He said;
"
I
was actually under stress at the time and feared the hell in my life
that I did not want to give the correct statement to the
police on
site, because I feared for my life.
"
24.
While there is no doubt that
the
evidence of a witness on identity who
first claimed that he would not be able to identify a suspect is to
be treated with great
circumspection, it does not
per
se
render his evidence on identity
untruthful. That is to be determined by broader considerations, such
as the explanation given for
the statement, whether it was retracted
and if so the circumstances prevailing at the time of its retraction
,
the credibility of the explanations and
the overall credibility of the witness bearing in mind that the
contradictory statements
made under oath must
a
fortiori
count aga
i
nst
him or her
.
Other
variables may come into consideration in appropriate cases such as
what is put to the witness but is in fact contradicted
by an
accused's own testimony
.
25.
There will also be the need to
test
the basis on which the witness claims to
have recognised the accused, whether it
is
consistent with anything else contained
in
the police statement regarding
features, apparel, posture, voice or the like; particularly if the
only occasion when the witness
claims to have identified the accused
was in the witness box (with all its inherent dangers as correctly
submitted by Adv Kolbe).
At this stage I am only considering the
honesty of the witness, although it may impact on his or her
reliability.
26.
The trial court was well aware of the
issues arising about the honesty of the witness and confronted them
(at pp 162 to 163 and
165 to 166).
27.
Since one cannot simply reject the
evidence out of hand because a person states shortly after the
incident that he would not be
able to identify a suspect, the first
question that arises is whether there is an acceptable explanation
for the statement. A witness
may be unduly cautious, may still be
traumatised, or when confronted by the accused in a line up may
recall some facial characteristic
or particular mannerism
.
In the present case the witness claimed
to be scared for his life and if that is to be believed then the
follow up enquiry must
be the circumstances which led to a change of
mind.
28.
In the present case Sewpersad had
witnessed what would have appeared to be the actions of a cold
blooded killer who with an accomplice
had tracked his victim down to
his offices, who did not conceal his identity but had no compunction
to kill in broad daylight in
the proximity of others and who not only
would be able to recognise the witness but had in fact pointed the
firearm he had just
used to kill someone else.
29.
Accordingly the explanation for not
being willing to identify the shooter because he was scared for his
life is understandable
.
But
something more must be required before one can conclude that the
witness can still be regarded as trustworthy after changing
his
version
.
30.
Sewpersad changed his statement less
than a week after the first statement was made. In his subsequent
statement of 23 October 2013
he claims that he would be able to
identify the shooter
.
I
juxtapose the significant portions of the two statements.
In
the first
statement
the
witness
said in regard to
the
appellant
that:
"
I
can
'
t
be able to identify the tall guy
.....
He is
a
black male he was
wearing
a
"
white
jacket and blue
jeans
."
In
the second statement he said
:
".
.
.
by the time he
was pointing me with the gun I saw his face and build
.
He was tall
,
light
complexioned and also the shape of his shoulders
.
.
.
..
The black male
who fired the shots was wearing
a
white jacket with
a white hoody (hat) and
a
blue jean
.
I can be able
to identify the tall guy I can see him
"
31.
Three things are significant about the
second statement. Firstly the
witness
provides more detail
regarding
the appearance of the shooter
.
Secondly the statement was taken nine
months before the appellant was apprehended
.
Accordingly the witness was able to add
to the original description well prior to seeing the appellant for
the first time and without
any external influence since not even the
co-accused had been detained by that time
.
Thirdly
in the second statement the witness does not claim that he can
identify both the shooter and the driver
.
On the contrary he
states that he did not manage to see the driver whereas in the first
statement no mention is made of whether
or not he had seen the
driver. The only reasonable inference is that the witness was
requested to make the second statement in
order to provide further
information to provide the investigation team with leads
.
32.
One can eliminate the possibility of
duress or coercion since there is no suggestion of that, nor is it
likely where the police
had no apparent leads at the time the second
statement was taken
.
33.
Nonetheless something more is required
for a court to be able to rely on the witness
'
second statement that he could now
identify the shooter. In the present case I believe it is to be found
in Sewpersad providing
quite definitive details regarding the
shooter
'
s
features and distinctive clothing some nine months before the
appellant was arrested
,
th
e
fact that the app
e
llant
did have the f
e
ature
s
described and the witness
'
unchallenged testimony that he
recognised the appellant as the shooter from a photograph in
The
Star
newspaper of 17 March 2014
(which was admitted into evidence).
34.
This is particularly significant because
the accompanying article describing the person in the photograph as
someone who
"
can
assist us in identifying the second suspect
"
;
not that the person was in fact the
suspect. It required the independent mental process of the w
i
tness
,
unaided by any external facto
r
,
to link the person in the photograph as
the person he saw shooting the deceased and not as a person described
in the article who
could assist the police to locate the shooter.
In
this respect the reliability of the identification of the appellant
well prior to his arrest reinforces the otherwise d
i
screet
enquiry of the witness
'
honesty
,
even if this is not
necessarily so in other cases. A further factor is that on 20
September 2014 the witness made a third statement
which explained why
the investigating office
,
Warrant Officer
Heyns who was a very experienced detective of some 33 years
'
service aborted the
ident
i
fication
parade to which he was taking Sewpersad
.
The statement reads
:
On 2014
.
09
.
20
.
.
.
I
w
as
picked up at my place of residence
.
.
.
by investigat
i
ng
officer W/0 Heyns to attend an ID parade at SAPS Germiston
.
While on our way
.
.
.
I was asked by
the investigating officer whether I have seen the suspect's picture
in the newspapers. I informed
.
.
.
.
that I did see
the suspect
'
s
picture in the Star newspaper. The picture I saw
...
is the same
person who shot and killed the deceased
.
.
.."
35.
The statement therefore confirms that
the witness had seen the accused
'
s
photograph
i
n
the newspaper
.
Moreover
an independent factor going to the veracity of the witness
'
credibility is that the identification
parade was aborted
.
The
curtailment of the identification parade goes to the credibility of
the claim Sewpersad made in the second statement about being
able to
identify the
shooter and to his evidence
that he did identify the appellant on seeing his photograph in the
newspaper some five months later.
It also goes to the genuineness
of
the witness' explanation that he was in
a state of fear when he made the first statement on the afternoon of
the incident.
36.
Eye witnesses are generally ordinary
people
caught
up
in situations not necessarily of their making
,
who may believe that fate dealt them a
cruel hand on the day in question and would dearly love to distance
themselves from the events
.
Eyewitnesses
do not come with a particular sense of civic responsibility nor will
they necessarily be fearless of possible consequences.
They can be
family men or women who would have preferred not to be involved and
who may genuinely be fearful of repercussions
.
37.
Accordingly the court cannot expect a
higher standard by requiring them to react in a civic minded or
fearless manner where, unlike
the case of a loved one
,
they may have no particular association
with the victim. In short they did not select themselves for the job
by reason of possessing
any particular attributes-some may have a
connection with either the alleged perpetrator or the victim but
others may have been
at the scene through entirely random
circumstances
.
38.
I therefore do not conside
r
it a sufficient
criticism of Sewpersad
,
when all relevant
factors are taken into account
,
that he did not
promptly contact the police with information
,
as advanced by Adv
Kolbe. After all the article asked for people who could assist in
locating
the
appellant to contact the police
,
and his whereabouts
certainly were not known to Sewpersad.
39.
I am satisfied on the facts of this case
that there are sufficient externally objective facts and
circumstances to accept the explanation
of the witness as to why he
was not prepared initially to state under oath that he could
recognise the shooter
.
IDENTIFICATION BY REFERENCE TO A
NEWSPAPER PHOTOGRAPH
40.
Once the court is satisfied as to a
witness'
credibility
in
claiming to be able to identify an accused it becomes necessary to
consider the probative value of such evidence by which I include
the
reliability of the identification.
41.
Clearly the probative value of
evidence
as to identity is greatest where a
suspect is apprehended immediately at the scene of the crime
.
At the other end it may be problematic
where there is only a dock identification.
Adv
Kolbe correctly pointed out that a properly held identification
parade provides certain safeguards and in particular
,
for present
purposes
,
that
an identification parade may not even
i
nclude
the suspect. This ensures that a witness cannot be influenced into
believing that the suspect must be among those he is asked
to point
out in a line
-
up
.
42.
Adv Ko
l
be
submitted that the court was deal
i
ng
with a dock identification
.
This
is not so
.
The
credible evidence received by the trial court and with which it was
satisfied was that the witness ident
i
fied
the appellant at the time he saw the photograph
.
He simply confirmed th
i
s
observation at the trial
,
as
every other witness is asked to do whether or not he or she had
attended an ID parade
.
43.
The evidence was corroborated by not
only the evidence of W/0 Heyns and the witness
'
third statement wh
i
ch
was put to him by the defence but also by the undisputed objective
fact that W/0 Heyns had already set up an ID parade to which
he was
tak
i
ng
Sewpersad and which he then aborted
.
The
only rational explanation was the one provided
;
it would be a pointless
exercise
for the witness to attend an ID parade
if he already had identified the shooter by reference to the
photograph in the newspaper
.
Indeed
the investigating officer could have been criticised by the defence
if he persisted with an ID parade in the face of such
information
.
44.
It may also have watered down the
veracity of Sewpersad
'
s
testimony about recognising the shooter from the photograph if still
had attended the ID parade.
Indeed Adv
Kolbe accepted that the investigating officer was correct not to
proceed with the ID parade in such circumstances.
45.
This brings the court to consider the
reliability of Sewpersad
'
s
identification
of
the appellant. I believe that the earlier analysis with regard to
Sewpersad
'
s
credibility
,
the
description he gave to the police
in
his
first two statements which was done months prior to the appellant
being apprehended all lead to the reliability of the identification.
46.
Something further ought to be said about
the sufficiency of an identification based on a newspaper photograph
that finds its origins
in a media release by the police
requesting
assistance in
locating
a person
.
There is the risk as pointed out by Adv
Kolbe that a person seeing the photograph may be
influenced
i
n
believing that the photograph
is
that
of the suspect and therefore an essential safeguard of an
ID
parade is absent. That may be so
,
but in the pursuit of apprehending an
alleged criminal in the interests of justice it may be the only
course
.
47.
In the present case there can be no
doubt
that
the appellant was on the run
.
He
had fled the area
in
which
he had been staying
.
Moreover
neither his partner
,
with
whom he had a child
,
nor
his friends knew of his whereabouts
.
When he was tracked down to Ladysmith by
the investigating officer
,
the
unchallenged evidence of W/O Heyns was that the appellant attempted
to flee.
48.
There will be more and more occasions
where the only reasonable means of locating a suspect
is
by circulating his or her photograph or
police sketch
in
the
printed or electronic media
.
It
would be absurd to suggest that the only means
of
apprehending a suspect has in it the
very seed by which that person will comfortably escape justice
.
Nonetheless
it does require a court to be satisfied as to
the
veracity of
the
witness
'
evidence
regarding
the circumstances in
which he or she
came
to see the image
,
the reaction if any
,
the circumstances
under which the witness disclosed this to the police
,
the wording of the
article
in
which
the
i
mage
appeared
,
the
description
that
the
witness gave of the suspect
in
any prior
statement
and of course the actual opportunity to observe the person concerned
at the scene of the crime
.
There
may be other factors as well which either militate against
,
or reinforce
,
accepting the
witness
'
evidence
,
including the
overall credibility of the witness and the accused as well as the
version put to the witness or given by the accused
when testifying
.
In this case an
additional factor is that the appellant
'
s
partner was the sister of the second accused. Despite these links the
appellant claimed that he had no contact with her, even
though they
had a child together
.
The
appellant also claimed not to have had contact with the second
accused
,
one
of whose vehicles he was using
,
save for one
occasion during the entire nine months until his arrest. This was
said to have taken place with the second accused
in the presence of
W/O Heyns yet its contents were not put to him
i
n
circumstances where it clearly should have.
49.
In the present case the tria
l
court
,
which had the advantage of assessing all
the witnesses while they were testifying accepted the evidence of
Sewpersad as honest and
reliable, was satisfied with the explanation
tendered and found the appellant's version to lack credibility and
that it was untruthful.
50.
In my
r
espectful
view the t
r
ial
court
'
s
acceptance of Sewpersad
'
s
identification of the appellant as the shooter must stand. And having
regard to the other evidence presented
,
including that of the appellant
,
the conviction is sound
.
ORDER
51.
In the circumstances the appeal is
dismissed
.
____________________
SPILG, J
We
agree
____________________
BROODRYK,
AJ
____________________
JOHNSON,
AJ
DATE OF
APPEAL:
21 October 2019
DATE OF
JUDGMENT:
25 October 2019
FOR
APPELLANT:
Adv M Kolbe SC
F
i
ona
Marcandonatos Attorneys in association with Heather Pretorius
Adv
W Robertse
Adv
IB Mthembu had also presented heads of argument
Legal
Aid South Africa
FOR THE
STATE:
Adv Z Peck