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[2021] ZAGPJHC 483
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Ndlovu v S (A 110/2020) [2021] ZAGPJHC 483 (30 June 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A 110/2020
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
YES
DATE:
30/06/2021
In
the matter between:
NDLOVU,
MELUSI
Appellant
and
THE
STATE
Respondent
JUDGMENT
DE
VILLIERS, AJ:
Introduction
[1]
The appellant was charged in
the District Court for the Regional Division of Gauteng, sitting at
Johannesburg, with two charges
,
namely
attempted
robbery with aggravating circumstances, and murder. The appellant was
legally represented. He pleaded not guilty and gave
no plea
explanation. The appellant requested in terms of section 93ter of the
Magistrates’
Courts Act
32
of 1944
for a trial where two assessors had to assist the presiding
magistrate. The two assessors on 28 August 2018 found the appellant
guilty on both counts, whilst the presiding magistrate found that
there was doubt as to the guilt of the appellant.
[2]
The appellant was sentenced
to fifteen years direct imprisonment, in that the sentence in respect
of the attempted robbery conviction
and the sentence in respect of
the murder conviction, were to be served concurrently.
[3]
This matter
comes
before us with leave of the court
a
quo
. Despite having
obtained leave to appeal the sentences, that appeal has been
abandoned and the matter only proceeded as an appeal
against the
conviction.
Context
and facts
[4]
The facts are uncomplicated,
although distressing as all the facts in all senseless killings are.
[5]
A perpetrator stabbed and killed Ms Marcia Mabitla (“
Ms
Mabitla
”) in an attempted robbery of her handbag. He fled
emptyhanded after the incident. The incident took place at the corner
of
Essellen and Twist Streets in Hillbrow on 28 January 2016. The
appellant was arrested on 25 September 2017. An identity parade was
held on 3 October 2017, about 20 months after the incident, where two
eyewitnesses identified the appellant. The trial commenced
on 16
April 2018, more than 26 months after the incident.
[6]
Ultimately the identification of the perpetrator and the appellant’s
conviction rested on the evidence of the two eyewitnesses. The two
witnesses, with the same surname, but not related to each other,
were
Mr Mduduzi Ncube and Mr Sibusiso Ncube. There was no suggestion that
the two witnesses had any reason to falsely implicate
the appellant.
The principal
argument before this court
was that they conspired (a) to give a name to the perpetrator and (b)
to frustrate a fair identification
parade. The remainder of the
argument was that their evidence was unreliable in essence as they
did not describe clothes, facial
features, and built of the appellant
in the same manner, or could not do so.
[7]
The incident took place at
about six o'clock in the afternoon, during summer time. The sun had
not yet set, and
visibility
was good.
Mr
Mduduzi Ncube was close enough to the incident to observe the crimes.
Mr Mduduzi Ncube and
friends/acquaintances sat across the road at a building called
Essellen Court from where the crimes were committed.
The road is a
double lane road, carrying traffic in both directions. On Mr Mduduzi
Ncube’s version, Mr Sibusiso Ncube and
Mr Doubt Nare (“
Mr
Nare
”) were in the
group of people with whom he was sitting. In cross-examination Mr
Mduduzi Ncube recalled that Mr Nare had left
the group before the
incident.
[8]
Mr Sibusiso Ncube, on his
version, had been in the company of Mr Mduduzi Ncube, but walked away
and crossed the road before the
incident. The incident took place
near him, close to a building called Garth Mansions. This is a
contradiction in the evidence
about whether the two witnesses were in
each other’s company at the time of the incident, but an
immaterial contradiction
in the totality of the evidence. It was an
unremarkable matter in the context of a group of people sitting on
the side of a street
in the late afternoon, having social
interaction. The group was not small - Mr Sibusiso Ncube testified
that about 15 people were
sitting together. It is not improbable that
Mr Mduduzi Ncube simply would have missed one person in the group
stepping away and
crossing the road. Mr Mduduzi Ncube testified that
after the stabbing he followed the deceased to the building where she
resided,
accompanied by Mr Sibusiso Ncube and Mr Nare. In other
words, they re-joined, making a mistake about having been together
all the
time, even more probable. It is common cause that the three
of them were indeed with the late Ms Mabitla after she was stabbed
and assisted her until she was taken to hospital. I make the obvious
observation, had the version of Mr Mduduzi Ncube and Mr Sibusiso
Ncube been concocted, I would have expected to hear a dovetailed
version about being together when they witnessed the incident.
[9]
The two eyewitnesses testified that they became aware of what was
happening
because of a commotion, which caused them to look at the
incident. Their attention thus was focussed on the events. It is true
that their opportunity for observation was not for a long period, as
Ms Mabitla was stabbed in the struggle for her handbag, and
the
perpetrator shortly thereafter fled away. The shorter the time for
observation, the more the incident being observed involved
two people
battling for control of a handbag, the less one would expect
witnesses to observe immaterial facts.
[10]
As stated, the first
principal argument before this court was that the witnesses conspired
to give a name to the perpetrator. The
two eyewitnesses testified
that they knew the appellant well prior to the incident, and knew him
by sight. Mr Sibusiso Ncube also
knew his nickname (“
street
name
”), as “
Maya
”.
This leads to another contradiction, Mr Mduduzi Ncube recalled that
neither of them knew the appellant’s name. This
is a
contradiction in the evidence, but is also not material. There is
strong evidence that Mr Mduduzi Ncube was mistaken. Mr Sibusiso
Ncube’s version that he knew the nickname of the perpetrator,
is confirmed by Mr Nare and by Detective Constable Booi. The
events
took place a long time ago, and it is not improbable that Mr Mduduzi
Ncube simply forgot the detail that Mr Sibusiso Ncube
he knew the
nickname of the perpetrator in the intervening period, a detail that
emerged after a stressful incident.
[11]
The appellant argued that Mr
Nare influenced the identification in that “
the
witnesses were influenced by Mr. Doubt Zama Nare to believe that the
Appellant was the perpetrator, although Mr. Nare was not
even an eye
witness to the incident
”.
The submission is not borne out by the evidence.
[12]
It is common cause that Mr
Nare assisted in arranging transport for the deceased to the
hospital, and spoke to the two eyewitnesses,
but no one testified
that he had played any role in the identification of the appellant.
The facts also do not lead to such an
inference. The version of
manufactured evidence was the cross-examiner’s version in one
instance, but denied by the witnesses
in so far put to them for
comment:
[12.1]
Mr Mduduzi Ncube was asked
in cross-examination if he, Mr Nare, and Mr Thabane Ndlovu (“
Mr
Ndlovu
”) did try
and work out who the perpetrator was. His response was that they all
knew who it was, and knew him by sight
and
he denied the suggestion
they
conspired to work out who the perpetrator was;
[12.2]
Mr Sibusiso Ncube was asked
in cross-examination if he had met with Mr Mduduzi Ncube (Mr Nare was
not mentioned) the night after
the incident and discussed the events.
Mr Sibusiso Ncube confirmed that they met, Mr Mduduzi Ncube knew the
perpetrator, but not
his name, and Mr Sibusiso Ncube
testified
that he told Mr Mduduzi Ncube that it was “
Maya
”.
He did not know if Mr Nare knew the name as well, and it was not even
suggested to him that it was Mr Nare who came up
with the
identification;
[12.3]
Mr Nare testified that he
did not witness the incident, but confirmed that assisted late Ms
Mabitla. He testified that Mr Sibusiso
Ncube helped him and gave him
the name of the perpetrator, “
Maya
”.
Again, it was not even suggested that it was Mr Nare who came up with
the identification;
[12.4]
Detective Constable Booi
confirmed that Mr Sibusiso Ncube told him on the night in question
that the perpetrator was called “
Maya
”.
He was not cross-examined.
[13]
There is thus no evidence or evidence for an inference of a
manufactured identification,
one where Mr Nare identified the
appellant as the perpetrator.
[14]
The two eye witnesses were able to identify the appellant at an
identity parade. As stated,
the second principal argument before this
court was that witnesses frustrated a fair identification parade. The
appellant argued
that Mr Nare also unduly influenced this
identification by
the two eyewitnesses at an
identity parade
in that (as set out in the heads of argument):
“
Mr. M. Ncube
was taken along with Mr. S. Ncube and Mr. Nare to the police station
for purposes of the identity parade by the investigation
officer. It
need to be reiterated that Mr. Nare was the person that pointed the
Appellant to the brother of the deceased before
his arrest and that
he did not participate in the identity parade but went along. There
was obviously time for discussion between
the witnesses on their way
to the police station
.”
[15]
There is no evidence of, or evidence for an inference of, a
manufactured identification.
It seems that Mr Nare was not in the
same car as the two eye witnesses, and no one placed him at the
identification parade. In
any event, on the evidence he at most would
have been able to refer to the street name of the appellant, a name
that the appellant
denies.
[16]
Identification at an identification parade carries weight. The
identification by Mr Mduduzi
Ncube is of lesser value, as his
evidence was that Mr Nare pointed out the appellant to him the day
before the appellant’s
arrest. He had thus seen the appellant
in the intervening period. Still, he too identified the appellant.
The long delay however
strengthens the identification by Mr Sibusiso
Ncube who had not seen the appellant in the intervening period.
[17]
As stated, the remainder of the criticism of the evidence is the
almost mechanical attack
on the list of factors our courts could take
into account in assessing evidence, but which the eye witnesses could
not recall or
where their recollections differed. The main argument
was that the identification was unreliable due to the eye witnesses’
failure to describe facial features of the perpetrator and his gait.
I assume that the main criticism meant to say that the eyewitnesses
did not describe the perpetrator’s face/facial features, build,
or clothes. It is not suggested that there was anything remarkable
in
the features of the appellant. The time for observation of the
perpetrator was not long, and he was in struggle with the late
Ms
Mabitla. Under these circumstances, Mr Mduduzi Ncube initially could
not state the colour of the clothes of the perpetrator.
On being
prompted as to the version of Mr Sibusiso Ncube, Mr Mduduzi Ncube
remembered that the appellant wore a red cap (but he
could not
remember him wearing a red T-shirt) as Mr Sibusiso Ncube later
testified. In my view, any contradiction is slight. Mr
Nare testified
that he saw the appellant between an hour or two hours before the
incident, and that he at that stage was wearing
a black jersey, not a
red T-shirt. This does not mean that he was not wearing a red T-shirt
underneath the jersey. Mr Nare had
no reason to take notice of the
clothes of the appellant when he saw him. In addition, there was no
reason for the two eye witnesses
to pay close attention to the
clothes of the perpetrator. Again, I make the obvious observation,
had the version of Mr Mduduzi
Ncube and Mr Sibusiso Ncube been
concocted, I would have expected to hear a dovetailed version about
the clothes that the perpetrator
wore. It would have been a
remarkable feat if the eye witnesses in the commotion and short
period would have registered these matters.
Their evidence is that
they identified the perpetrator as someone they knew well.
[18]
The two eye witnesses differed about the colour of the handbag -
brown versus black in
colour. Whether the brown was a dark brown or a
light brown was not clarified during the trial. It would have been an
unremarkable
manner, testified about long after the incident. This is
a contradiction in the evidence, but is also not material.
[19]
Lastly the appellant took issue with the length of time Mr Sibusiso
Ncube had to see the
face of the perpetrator. Ms Mabitla blocked his
view during part of the struggle for her handbag, but Mr Sibusiso
Ncube saw the
face of the appellant as he stabbed Ms Mabitla from a
few paces away. He had an especially good opportunity to identify the
appellant.
The
magistrate’s reasoning
[20]
The learned magistrate believed in error that the evidence was that
Mr Mduduzi Ncube, Mr
Sibusiso Ncube and Mr Nare “
discussed
the incident and decided that the description between themselves and
the community that the identity fit the description
of the person
with the street name Mayer
”. This has been addressed
already.
[21]
The learned magistrate found that the two eyewitnesses did not
impress him. His criticism
was that Mr Mduduzi Ncube could not
describe the perpetrator’s face, build or clothes. The learned
magistrate noted that
Mr Sibusiso Ncube could not describe the
perpetrator’s face or build, but could describe his clothes.
The learned magistrate
noted that Mr Sibusiso Ncube could describe
his clothes (a red T-shirt and red cap) and (in error recorded) that
he did know the
nickname of the appellant. The learned magistrate
took issue with the contradiction with regard to the colour of the
handbag. These
matters been addressed in part already, and is further
addressed below with reference to case authority. The learned
magistrate
saw it as a negative that Mr Mduduzi Ncube did not know
the appellant’s name. With respect, the issue is not a name,
but
a face. The appellant was well-known to the eye witnesses.
[22]
The main contradiction relied upon by the learned magistrate is that
Mr Mduduzi Ncube testified
that Mr Sibusiso Ncube was in his company,
whilst Mr Sibusiso Ncube testified that he indeed was in the company
of Mr Mduduzi Ncube
until very shortly before the incident when he
crossed the street. This has been addressed already.
[23]
The learned magistrate criticised the absence of the name of the
perpetrator in the police
statement by Mr Sibusiso Ncube, but the
police confirmed receiving the name. It hardly could be put before
the door of the witness.
Police statements are notoriously inaccurate
and often incomplete.
Applicable principles
[24]
A court on appeal does not lightly interfere with findings of fact by
the court a quo.
See the minority judgment in
R v Dhlumayo and
Another
1948 (2) SA 677
(A) at 695-696, applied in
Attorney-General, Transvaal v Kader
[1991] ZASCA 135
;
1991 (4) SA 727
(A) at
739J-740B. The law is summarised in
Monyane and Others v The State
[2006] SCA 141 (RSA) para 15:
“
This court's
powers to interfere on appeal with the findings of fact of a trial
court are limited. It has not been suggested that
the trial court
misdirected itself in any respect. 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 (
S v Hadebe and
Others
1997 (2) SACR 641
(SCA) at 645e-f). This, in my
view, is certainly not a case in which a thorough reading of the
record leaves me in any doubt as
to the correctness of the trial
court's factual findings. Bearing in mind the advantage that a trial
court has of seeing, hearing
and appraising a witness, it is only in
exceptional cases that this court will be entitled to interfere with
a trial court's evaluation
of oral testimony (
S v Francis
1991 (1) SACR 198
(A) at 204e)
.”
[25]
Of course, an incorrect finding must be rectified. See
S v
Mafaladiso en Andere
[2002] ZASCA 92.
In assessing the evidence,
one must have regard to the evidence as a whole. See
S v Trainor
[2003] 1 All SA 435
(SCA) para 8 and 9, and
S and Another v S
[2014] ZASCA 215
para 17-18.
[26]
Minor contradictions may well be mere errors, and in fact not
indicate untruthful evidence.
See
S v Oosthuisen
1982 (3) SA
571
(T) at 576H-577C quoted with approval in
President of the
Republic of South Africa and Others v South African Rugby Football
Union and Others
2000 (1) SA 1
(CC) para 124. The oft-quoted
summary on evidence on identification is to be found in
S v
Mthetwa
1972 (3) SA 766
(A) at 768A-D (underlining added):
“
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)
.”
[27]
These factors are not a mechanical list of boxes to be ticked, but
guidelines in the assessment
of the evidence. Caution must be applied
in assessing identification evidence, but this must not displace the
exercise of common
sense. See the reasoning in
S v Artman and
Another
1968 (3) SA 339
(A) at 341A-D,
S v Snyman
1968 (2)
SA 582
(A) at 585G and
S v Sauls and Others
1981 (3) SA 172
(A) at 180G. See too
R v Mputing
1960 (1) SA 785
(T) at 787D-E
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 may
have been no opportunity for a studied observation
of the perpetrator
to note detail, but sufficient to see and remember the perpetrator
without a recollection of features (or clothes).
R v Mputing
was
referred to with approval in
S v Willemse and Others
[1988] ZASCA 44
;
[1988] 2
All SA 435
(A) para 57.
[28]
Lastly, but not least. If a witness is accused of concocting
evidence, that argument must
be put to the witness concerned for
comment. See again
President of the Republic of South Africa and
Others v South African Rugby Football Union and Others
2000 (1)
SA 1
(CC) para 61-65.
Discussion
[29]
I am satisfied that a proper identification of the appellant was
made. The overwhelming
evidence by the eye witnesses, corroborated by
the identification at the identification parade, is that they
identified a perpetrator
as someone they knew, Maya. The eye
witnesses made an identification in good visibility, and near the
incident. Their attention
was focussed, and they had sufficient time
to observe the perpetrator. They had no reason to implicate the
appellant falsely. The
differences (even if in fact contradictions)
in their evidence are in immaterial matters, and in fact point to
reliable evidence
on the facts of this case. The minority judgment
came about as a result of an error in recording the evidence, and the
elevating
contradictions that are either minor in nature to material
matters. Under these circumstances there is no reason to interfere in
the factual findings by the court
a quo
. The guilt of the
appellant was established beyond reasonable doubt and consequently I
have not basis to find that the conviction
was wrong.
Accordingly,
I propose that the following order be made:
1.
The appeal is dismissed.
DP
de Villiers
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION OF THE HIGH
COURT,
JOHANNESBURG
I
agree
ML
Senyatsi
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION OF THE HIGH
COURT,
JOHANNESBURG
Heard
on:
25 May 2021
Delivered
on:
30 June 2021, by uploading on CaseLines
On
behalf of the Appellant
Adv S. Simpson
Legal-Aid
SA
On
behalf of the Respondent:
Adv EK Moseki
Office of The Director of
Public Prosecutions