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[2020] ZAGPJHC 357
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Langa v S (A109/ 2017) [2020] ZAGPJHC 357 (18 September 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
1. Reportable:
No
2. Of interest to
other judges: No
3.
Revised: Yes
APPEAL
NO: A109/ 2017
CASE
NO: SS 29/2017
DPP
REF NO: JPV 106 /2010
In
the matter between:
LANGA,
ANDILE DAVID
Appellant
and
THE
STATE
Respondent
Appeal
against conviction based on the evidence of a single witness, and a
confession. Alleged torture of appellant. Appeal dismissed.
JUDGMENT
DE
VILLIERS, AJ:
Introduction
[1]
The court a quo, Mahalelo J, granted leave
to appeal the conviction after having convicted the appellant of five
crimes:
[1.1]
Count one: Murder (of Constable Mhlongo);
[1.2]
Count two: Attempted murder (of Constable
Nemaitoni);
[1.3]
Count three: Robbery (of the pistols and
ammunition of the two constables) with aggravating circumstances;
[1.4]
Count seven: Unlawful possession of a
firearm (used in the above three crimes); and
[1.5]
Count eight: Unlawful possession of
ammunition for the above firearm.
[2]
The appellant was also charged with a
further count of murder, and a further two counts of attempted
murder, the details of which
are not relevant to this appeal, as he
was acquitted in respect thereof. The appellant was one of three
accused. He had identified
the other two in a confession, but they
were acquitted. All three were legally represented.
[3]
The court
a
quo
convicted the appellant on the
strength of a confession, supported by evidence of the pointing out
of places at the scene of the
crimes. The appellant alleged that he
was tortured and that the evidence of a confession and the pointing
out by him should have
been disallowed by the court
a
quo
. The other evidence against him was
by a single witness, Constable Nemaitoni, whose evidence on
identification, the appellant alleges,
the court
a
quo
correctly did not accept.
Facts
[4]
Constables Mhlongo and Nemaitoni
were stationed at the Jeppe Police Station.
On 30 July 2010 at around 20H00, the
two policemen were on duty and were sent to the George Goch hostel to
investigate a suspicious
vehicle.
The
two policemen established that the suspicious vehicle was a hijacked
vehicle. They waited for a tow truck to remove it. It was
winter,
already dark and cold. They sat inside their vehicle, Constable
Mhlongo in the passenger seat, and Constable Nemaitoni
in the
driver’s seat.
[5]
Constable
Nemaitoni saw Accused Two approaching the vehicle from the driver’s
side, from about five paces away. He turned
to look at the person. He
then saw that the person was holding a firearm in both his hands,
pointing at him. The person started
shooting when he was two or three
paces away. Constable Nemaitoni turned and dived to his left. He was
shot through the head, with
the bullet exiting through his mouth.
Other witnesses would confirm that the side windows of the police
vehicle (a bakkie) were
shot out. Constable Mhlongo had been shot
through the head, where he sat in the passenger seat. As Constable
Nemaitoni was lying
down, facing Constable Mhlongo’s body, he
saw the appellant open the passenger door, remove the firearm of
Constable Mhlongo
(a pistol), and hand it to another person he could
not see. Any observation of the appellant at this stage, albeit
whilst Constable
Nemaitoni was wounded and under severe stress, was
at close proximity, aided by the cabin light, and more than fleeting.
Afterwards
he called for help on a police radio. He was hospitalised
for a month, and spent another month in recovery. He would later
identify
both the appellant and Accused Two at identification
parades.
[6]
Constable
Nemaitoni testified that the area was well lit. He would later be
supported herein by Warrant Officer Akoo, and by two
innocent
bystanders who happened to drive into hostel and who were themselves
thereafter shot at. The ambient lightning was so
good, that Warrant
Officer Akoo could use the ambient lightning to secure the area and
to find the spent cartridges.
[7]
On 6 August
2020 the police arrested the appellant in the early hours of the
morning. Later that night, the state averred, the appellant
confessed
to Lieutenant-Colonel Ramukosi. The appellant denied that he made a
confession, and alleged that he was tortured. After
a
trial-within-a-trial the presiding judge admitted the confession
made, as well as the pointings out pertaining to the crime scene
on
14 August 2020 to Captain Gininda.
[8]
I agree with
the court
a
quo
that
the evidence by the witnesses for the prosecution was impressive. The
evidence by the witnesses for the prosecution fitted
into the mosaic
of proof, and there was no material contradiction in the evidence by
a range of police officers from a range of
police stations. All
denied seeing evidence of, or witnessing any assault on the
appellant. A critical assessment of this component
of the evidence,
revealed no improbabilities, no shortcomings, and no contradictions
in the evidence. The prosecution put up a
strong case, to be assessed
with the other evidence.
[9]
I agree with
the court
a
quo
that
the versions put on behalf of the appellant was not consistent with
his evidence, both in material matter left out, and in
material
contradictions. In addition, as is more fully addressed below, his
evidence contained serious improbabilities. Mr Nene,
is the
appellant’s brother-in-law, also testified. His evidence did
not cure the defects in the appellant’s case.
The
(original) issues
[10]
The presiding
judge rejected the evidence of identification by Constable Nemaitoni,
both his direct evidence of identification,
and that of the
identification parade. She was concerned by his inability to testify
about the (bodily and facial) features of
the appellant, or the
clothing of the appellant (beyond that he wore a dark jacket). The
learned judge held that Constable Nemaitoni
had too short an
opportunity to make the identification, and too little light within
which to do so. The court held that the fact
that Constable Nemaitoni
was able to identify the appellant at the identification parade
within one minute, seven months after
the event, and without having
been able to give description of the appellant, were further reason
to doubt his evidence. It seems
that the learned judge was influenced
by cross-examination based on the police photographs taken on the
night in issue. These photographs
appear to be dark.
[11]
In the end,
the only basis for the conviction of the appellant by the court
a
quo
, was a
confession. The presiding judge ruled that a confession to
Lieutenant-Colonel Ramukosi and a pointing out to Captain Gininda
by
the appellant, must be accepted into evidence. The presiding judge
ruled that the confession reflects that the appellant was
the source
of the following information contained in the confession:
[11.1]
The names of
his co-perpetrators, Accused Two and Three; and
[11.2]
The facts that
the police vehicle was parked at George Goch hostel, that two police
officers were present and were shot, that police
firearms were taken,
and that more than one person shot at the police.
The applicable legal principles
[12]
By
way of an overview,
LAWSA
[1]
correctly draws the distinction between when corroboration is
required to accept evidence, and where caution is to be applied to
assess evidence (but corroboration is not a requirement by law).
Corroboration by another source in a material respect is only
required in respect of a conviction based on a confession. See
section 209 of the
Criminal
Procedure Act.
[2]
In the other cases where caution is called for
to
assess evidence, so-called “
cautionary
rules
”
apply. A description as “
cautionary
guidelines
”
may reflect their nature better
in
modern practice. They refer to those instances where courts have
found that there are risks that certain types of evidence may
be
unreliable and should be approached with caution.
[13]
In
this case, cautionary rules apply to the assessment of evidence by a
single witness (that of Constable Nemaitoni), and to the
assessment
of his evidence on identification.
[3]
The cautionary rules are guidelines only, as ultimately the test is
if the evidence considered as a whole, established the guilt
of the
accused. See
S
v Hadebe and Others
[4]
where the court quoted with approval
Moshephi
and Others v R.
[5]
[14]
A
court must weigh up the evidence that point towards the guilt of the
accused against those that indicate innocence. The evidence
is to be
assessed, considering inherent strengths and weaknesses, and
considering probabilities and improbabilities. In the end
a court
must decide whether the balance of proof weighs so heavily in favour
of the State, that it excludes any reasonable doubt
about the
accused’s guilt. A finding of reasonable doubt must not be
derived from speculation, but must rest upon positive
evidence or
reasonable inferences (that are not in conflict with, or outweighed
by, the proved facts of the case). See
S
and Another v S
[6]
where Bosielo JA
[7]
quoted with approval the leading cases of
S
v Chabalala
,
S
v Phallo and Others
,
and
Miller
v Minister of Pensions
.
[8]
[15]
In
this case, a single witness, Constable Nemaitoni, identified the
appellant. Questions that may arise about the evidence of a
single
witness may relate
inter
alia
to truthfulness, mistake, a risk of bias, and if he/she had a proper
opportunity for observation. In this regard our law has been
formulated as follows in the Supreme Court of Appeal (“
the
SCA
”)
in
S
v Mthetwa:
[9]
“
Because
of the fallibility of human observation, evidence of identification
is approached by the Courts with some caution.
It
is not enough for the identifying witness to be honest: the
reliability of his observation must also be tested
.
This depends on various factors, such as
lighting
,
visibility
,
and eyesight;
the proximity of
the witness
; his
opportunity for observation
,
both as to time and situation; the extent of his
prior
knowledge of the accused
;
the
mobility of the scene
;
corroboration
;
suggestibility;
the accused's
face
, voice,
build
,
gait, and dress;
the result of
identification parades
, if any;
and, of course,
the evidence by
or on behalf of the accused
. The
list is not exhaustive.
These
factors, or such of them as are applicable in a particular case, are
not individually decisive, but must be weighed one against
the other,
in the light of the totality of the evidence, and the probabilities
;
see cases such as R. v Masemang,
1950 (2) SA 488
(AD); R. v Dladla
and Others,
1962 (1) SA 307
(AD) at p. 310C; S. v Mehlape,
1963 (2)
SA 29
(AD)
.”
[16]
It
is predictable that science and technology will in time shed more
light on the reliability of evidence of identification. The
first
such developments have commenced in the United States of America. The
leading case is
S
v Henderson
,
[10]
a judgment of the New Jersey Supreme Court by Chief Justice
Rabner.
[11]
The court, based on substantial scientific research,
inter
alia
identified high stress, weapon focus, duration of observation,
distance and lightning, witness characteristics, perpetrator
characteristics,
memory decay, and cross-race bias as amongst the
factors that may influence wrong identification. The potential impact
of
Henderson
on jurisprudence in the United States is well set out in two
articles,
State
v. Henderson: A Model for Admitting Eyewitness Identification
Testimony,
[12]
and
in
Judicial
Understanding of the Reliability of Eyewitness Evidence: A Tale of
Two Cases.
[13]
[17]
The fact that caution must be applied in
accepting evidence by a single witness identifying, in this case, the
appellant, does not
mean that the bar should be set at such a level
that in effect such evidence is excluded. This point is illustrated
by the fact
that it is a cautionary practice for the police to
establish a description of the perpetrator as soon as possible, as it
may provide
a safeguard against a later identification of a person in
conflict with the description. In this case, Constable Nemaitoni
could
not give such a description, or even a description of the
clothes the appellant worn, beyond that he wore a dark jacket.
[18]
The
cautionary practice (to establish a description of the perpetrator as
soon as possible) does not mean that evidence of identification
will
only stand if a witness can recite a list of descriptive factors
about the accused's face, build, and dress in his/her original
statement. See
R
v Mputing
,
[14]
a judgment by Boshoff J
[15]
in this division, where the point is made that there are
circumstances where identification is a matter for the subconscious,
where the witness can describe no distinguishing features of the
perpetrator. There are millions of men, of average height, of average
weight, of average complexion, of average build, with no remarkable
features, aged between about 20 and about 35. There may also
have
been no opportunity for a studied observation of the perpetrator to
note detail, but sufficient to see and remember the perpetrator.
[19]
Caution
must be applied, but this must not manifest as a formalistic
approach, or one that displaces the exercise of common sense.
See
S
v Artman and Another
,
[16]
where the court quoted with approval
R
v J
,
[17]
and
S
v Snyman
,
[18]
and
S
v Sauls and Others.
[19]
[20]
The
appellant was convicted based on the application of the common
purpose doctrine, a finding that the three attackers had a common
purpose to commit the crimes, and had acted together to achieve its
outcome. See
S
v Tshabalala and Another
.
[20]
In
this division the law on common purpose and unlawful possession of a
firearm is set out concisely in
S
v Motsema
para 29,
[21]
This finding that is in accordance with
Leshilo
v S
[22]
in para 13 and 15, applying
inter
alia
Makhubela
v S, Matjeke v S
para 46-57.
[23]
[21]
This
brief overview of the applicable case law, ends with a restatement of
the guideline that a court of appeal should not readily
interfere
with factual findings by the court a quo, a court that had the
opportunity to observe the witnesses. See
R
v Dhlumayo and Another
,
[24]
Attorney-General,
Transvaal v Kader
,
[25]
Monyane
and Others v The State
.
[26]
Evaluation
[22]
As reflected
earlier, the presiding judge ruled that the confession reflects that
the appellant was the source of two sets of information
contained in
the confession:
[22.1]
The names of
his co-perpetrators, Accused Two and Three. With respect I disagree
with this reasoning. With respect, this does not
constitute
confirmation in a material respect of the confession, as is required
by section 209 of the Criminal Procedure Act.
They were only
arrested after the appellant’s confession, and may have been
falsely implicated by him, as they were acquitted;
and
[22.2]
The facts that
the police vehicle was parked at George Goch hostel, that two police
officers were present and were shot, that police
firearms were taken,
and that more than one person shot at the police. These facts were
known to the police too when the confession
was taken.
With respect, these
facts too do not constitute confirmation in a material respect of the
confession.
[23]
I do find
confirmation in a material respect of the confession in that the
appellant stated that he and two accomplices participated
in the
attack. Constable Nemaitoni would later confirm that three attackers
participated in the attack. When the confession was
taken, the police
did not know this fact. It provides the corroboration required for a
conviction based on the confession. As will
appear below, in my view
the outcome of the identification parade, also provides the required
corroboration.
[24]
In the case of a confession before a police
officer, section 217(1) of the Criminal Procedure Act requires that
the confession is
only admissible “
if
such confession is proved to have been freely and voluntarily made by
such person in his sound and sober senses and without having
been
unduly influenced thereto
”.
[25]
The presiding
judge, who had the benefit of hearing and seeing these witnesses,
undoubtedly came to the correct conclusion that
the appellant made
the confession
freely
and voluntarily, in sound and sober senses, and without having been
unduly influenced thereto:
[25.1]
The
allegations of torture, to be true, would require complicity by many
senior police officers, from a range of units, amongst
them not one
with a conscience, not one prepared to say “
not
in my name”,
all prepared to commit crimes. This is unlikely;
[25.2]
The appellant
saw several police officers, each time awarding him an opportunity
raise his treatment with a new person. He did not
do so. When the
appellant met his family members on the day of his arrest, he
complained of no torture, as one would have expected;
[25.3]
The alleged
torture took place even where there were members of the public in the
vicinity. This is unlikely;
[25.4]
It is unlikely
that a police officer from the Jeppe Police Station would participate
in the interrogation of the appellant at the
Johannesburg Central
Police Station;
[25.5]
It is unlikely
that elite, military style, units would interfere in an investigation
and torture a suspect;
[25.6]
It is unlikely
that a criminal police officer would be so thoughtless as to leave a
tell-tale bloodied T-shirt of the appellant
with his family members
to raise questions and to be used as evidence later;
[25.7]
It is unlikely
that a criminal police officer would be so thoughtless as to take the
bloodied appellant to his girlfriend;
[25.8]
The
appellant’s eventual version differed materially from what he
had told his counsel;
[25.9]
The various
photographs show no injuries to the appellant; and
[25.10]
In material
respects, bleeding because of the torture, and wearing fresh clothes
after visiting the hostel, the appellant’s
brother-in-law did
not support his evidence.
[26]
The evidence
shows that the court
a
quo
correctly accepted the confession into evidence. The presiding judge
was impressed with the consistent evidence by the state witnesses,
evidence that where applicable, corroborated each other. She
correctly describes the appellant as a poor witness with changing
versions.
[27]
It
is true that the content of the confession differs from the evidence.
The material difference is that the appellant alleged that
one police
officer was sitting behind the steering wheel (Constable Nemaitoni),
and the other was standing outside (Constable Mhlongo),
writing on
the bonnet, when he was shot. When the confession was taken, the
police knew this to be factually untrue.
[27]
Its inclusion in the confession points away from a confession forced
upon the appellant. Why did he include the wrong version?
One answer
is that it is an exculpatory version of sorts. It may have been an
attempt to make the attack seem less cowardly than
stalking an
unsuspecting victim seated in a vehicle. One will never know.
[28]
As
uncomfortable as it is to hear allegations of police torture, the
evidence must still be of such a nature as to raise reasonable
doubt.
As held in
Phalo
,
it must rest on “
a
reasonable and solid foundation created either by positive evidence
or gathered from reasonable inferences
”.
[29]
In addition to
the admissible confession, in my view the guilt of the appellant was
established by the direct evidence of a single
witness, Constable
Nemaitoni, as well. The learned judge did not accept the outcome of
the identification parade. With respect,
she erred.
[30]
Evidence on
identification is not acceptable only when formal boxes are ticked,
but when it is honest and reliable. The honesty
of the evidence of
Constable Nemaitoni was not questioned. Was his evidence reliable?
Although Constable Nemaitoni was wounded,
he observed the appellant
over a very short distance, more than fleetingly, further illuminated
with a cabin light. His relatively
quick identification of the
appellant on 1 February 2011 is consistent with having seen the
appellant clearly. With respect, my
view is that it reflects
reliability in the identification. In addition, it was common cause
that the identification parade was
properly set up. It does not
detract from this evidence if Constable Nemaitoni could only describe
a dark in colour jacket. There
is nothing in the record that shows
that the appellant had any remarkable facial or bodily features that
would immediately register
with a witness and that these ought to
have been reflected in Constable Nemaitoni’s statement to the
police. Direct factual
evidence about visibility was given by
Constable Nemaitoni and by three witnesses. I respectfully disagree
with this use of photographs
to establish the degree of visibility at
a scene. A court is not able itself to interpret the amount of light
reflected on photographs
taken at night, which themselves depend on
technical matters, and with respect, should not reject. In my view,
the direct, factual
evidence about visibility, must stand.
[31]
Off course,
once one considers the evidence of Constable Nemaitoni, the mosaic of
proof includes the poor impression that the appellant
has made as a
witness. As one steps back, and consider all the evidence, I am
satisfied that the appellant’s guilt in respect
of the murder,
attempted murder, and robbery with aggravating circumstances, all
have been proven beyond reasonable doubt, despite
the caution that
had to be applied to the evidence of Constable Nemaitoni.
[32]
The
appellant’s unlawful possession of a firearm and ammunition has
also been proven beyond reasonable doubt. On his confession,
the
appellant was given a firearm by his co-perpetrators to carry out the
attack on the police officers. There is no suggestion
that this was a
licenced firearm, or that his possession thereof was lawful. The
attack, on the objective facts, was carried out
simultaneously from
two sides of the vehicle, necessarily involving two firearms and
ammunition. The appellant used a firearm,
in his possession at the
time. He has not been convicted based on common purpose of unlawful
possession, but on the overwhelming
evidence
of his own
possession. His conviction must stand.
[33]
As
such the appellant was properly convicted on all counts.
Accordingly,
I propose the following order:
1.
The appeal is dismissed.
DP de Villiers AJ
I
agree and it is so ordered
M
Ismail J
PH Malungana AJ
Heard
on:
17 August 2020 by
written submission at the election of counsel
Delivered
on:
18 September 2020 by uploading on CaseLines and
by e-mail
On
behalf of the Appellant:
Adv R Gissing
Instructed
by
Calvin Maile Attorneys
On
behalf of the Respondent:
Adv KT Ngubane
Office of the
Director of Public Prosecutions
[1]
LAWSA
,
Volume 9, 2
nd
Edition, Evidence, para 827.
[2]
Criminal
Procedure Act 51 of 1977
.
[3]
In our
law, a conviction may follow on the evidence of a single witness.
See
section 208
of the
Criminal Procedure Act.
Testis
unus testis nullus
(
one
witness, no witness)
is not
part of our law.
[4]
S v
Hadebe and Others
[1997] ZASCA 86.
[5]
Moshephi
and Others v R
(1980-1984) L A C 57
at 59 F – H
,
a judgment in the Lesotho Court of Appeal by Marais AJA. Maisels P
and van Winsen AJA concurred.
[6]
S
and Another v S
[2014] ZASCA 215
para 17-18.
[7]
Schoeman
and Fourie AJJA concurred.
[8]
Their
references appear below.
[9]
S v
Mthetwa
1972 (3) SA 766
(A) at 768A-D.
[10]
S
v
Henderson
27
A.3d 872 (NJ 2011).
[11]
Justices
Long, LaVecchia, Albin, Rivera–Soto and Hoens concurred.
[12]
Amy D.
Trenary,
State
v. Henderson: A Model for Admitting Eyewitness Identification
Testimony
,
published in the University of Colorado Law Review [Vol 84] P1257.
[13]
Meintjes
van der Walt L, "
Judicial
Understanding of the Reliability of Eyewitness Evidence: A Tale of
Two Cases
"
PER / PELJ 2016(19).
[14]
R v
Mputing
1960 (1) SA 785
(T) at 787D-E.
[15]
Marais
J concurred.
[16]
S v
Artman and Another
1968 (3) SA 339
(A) at 341A-D.
[17]
R v
J
1966 (1) SA 88
(SR) at 90E-F
[18]
S v
Snyman
1968 (2) SA 582
(A) at 585G
[19]
S v
Sauls and Others
1981 (3) SA 172
(A) at 180C-H.
[20]
S
v
Tshabalala and Another
2020 (5) SA 1
(CC) para 46-49, and 56-60.
[21]
S v
Motsema
2012 (2) SACR 96
(GSJ) para 29.
[22]
Leshilo
v S
[2020] ZASCA 98
para 15 and 15.
[23]
Makhubela
v S, Matjeke v S
[2017] ZACC 36
;
2017 (2) SACR 665
(CC);
2017 (12) BCLR 1510
(CC)
para 46-57.
[24]
R v
Dhlumayo and Another
1948 (2) SA 677
(A) at 695.
[25]
Attorney-General,
Transvaal v Kader
[1991] ZASCA 135
;
1991 (4) SA 727
(A) at 739J-740B.
[26]
Monyane
and Others v The State
[2006] SCA 141 (RSA) para 15.
[27]
Constable
Mhlongo was found dead in the passenger seat.