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[2010] ZAWCHC 502
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Williams v S (A 372/10) [2010] ZAWCHC 502 (19 October 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE HIGH COURT CAPE TOWN
CASE
NO A 372/10
IN
THE MATTER BETWEEN:
RICARDO
WILLIAMS
…........................................................................................................
APPELLANT
AND
THE
STATE
….....................................................................................................................
RESPONDENT
JUDGEMENT
: 19 OCTOBER 2010
MARAIS
AJ
[1]
Shortly after midnight on 7 May 2005, Mr Justin Nero and his
girlfriend Allison Ruiters were going to his home in the West Coast
town of Saldanha. He was on a bicycle while she was walking beside
him. At the local taxi rank Mr Nero deviated from his course
to avoid
the uneven terrain there. Ms Ruiters proceeded straight on.
[2]
A man dressed almost completely in black passed her from behind and
approached Mr Nero who was some 40 metres away at that time.
The man
pulled out a gun and indiscriminately fired at Mr Nero who attempted
to ward off the shots. He shouted to his girlfriend
to run away. The
first shot hit him in his left wrist. The next shot hit him in his
stomach. Mr Nero fell from his bicycle and
was shot three more times
- in his right upper leg, in his upper left leg and in his right
foot. More shots was fired but did not
hit him. (Nine spent bullet
casings was found on the scene and sent for forensic testing.)Mr Nero
was left lying on the ground
and his assailant ran off into the
night.
[3]
Ms Ruiters took refuge at a nearby house together with two other
persons who were also in the vicinity when the shooting started.
(these persons were on the list of witnesses but were not called. The
Prosecutor informed the court that they were unable to recognise
the
attacker).When everything had quieted
down
she emerged from the house and ran towards her boyfriend who was
lying some distance away from where he was shot. Mr Nero told
the
bystanders who had gathered there to help him that the person who
shot him was a man called " Holland". He was subsequently
taken to hospital.
[4]
Both Nero and Ruiters made written statements to the police on the
same day of the shooting. In his statement (it was handed
in as an
exhibit) Nero described his assailant's clothes merely as "
swart klere" and gave no further description of
any of his
features or any other identifying aspect. Nero stated that he
recognised the man when he was standing in front of him
just before
the first shot was fired as a person called " Holland".
During the shooting he called out to the man "Holland!".
In
her statement ( also handed in as an exhibit) Ruiters stated that the
attacker wore black clothes but she was unable to give
any further
description of the man. She said that she did not see his face -"
dit was te donker" She added that she would
not have been able
to identify the man if she saw him.
[5]The
Appellant was arrested on 15 October 2005 and charged with attempted
murder and the contravention of section 3 of Act 60
of 2000 being
unlawfully in possession of a fire arm. The case against the
Appellant was postponed on various occasions without
any evidence
being led. Eventually he failed to appear for his trial on 14 March
2007 and his bail was estreated. He was subsequently
re-arrested and
appeared again on 17 June 2008.The Trial eventually proceeded on 19
March 2009.
[6]
The Appellant was initially not represented. The Magistrate refused
the Appellant's application for a postponement in order
to appoint an
attorney and ordered that the trial should proceed - in the event the
Appellant refused to cross-examine the witnesses
Nero and Ruiters.
Both these witnesses were recalled later during the trial after Mr
Cook was appointed to act for the Appellant
and was cross-examined by
him.
[7]Mr
Nero testified that on the night of the shooting the moon was shining
very brightly and that there was a streetlights at the
Taxi rank. He
said that he recognised the man who shot him as "Holland".
He saw his face and stated that he knew him
well. According to him he
went to school with 'Holland" and had known him for 26 years. In
court Nero gave a full descripton
of the man's clothing - he wore a
black jacket with a hood as well as a "beanie" on his head
and a red scarf. He described
"Holland" as tall and added
that he recognised him from his gait.
[8]
Just before the first shot was fired " Holland" removed the
hood from his head .Nero was very confident that the man
who shot him
was the Appellant and was adamant that he was not mistaken in
identifying the Appellant as his assailant. To support
his confidence
he said that a few days prior to the shooting the Appellant showed
him and others a gun that Appellant possessed.
[9]
He further testified that the Appellant had a motive for shooting him
because he,Nero, was accused of stealing a safe with a
large amount
of cash in it belonging to a friend of the Appellant,and had been
seriously assaulted by friends of the Appellant
a few days before the
shooting. He said the Appellant shot him because Appellant and his
friends were afraid that he would revenge
the assault by shooting
them and he had to be shot first.
[10]
Ms Ruiters testified that the man who shot her boyfriend was tall and
dark of complexion and wore a dark cap,black jacket and
black
trousers. According to her she did not see the red scarf, the
"beanie" or the hooded jacket. The collar of the
jacket was
turned upright and covered the lower part of the man's face. The cap
was drawn low down to almost over the man's eyes.
[ll]She
did not see the man removing anything from his head at any time. She
was unable to recognise the person and did not see
his face. She
stressed the fact that the man was tall and was of similar height as
the Appellant. She confirmed that Nero told
the bystanders and his
mother that it was " Holland" who shot him.
[12
The State produced no other evidence to link the Appellant to the
crime. Statements in terms of Section 212 of Act 51 of 1977
was
handed in by agreement indicating that the spent bullet casings found
on the scene was fired from a fire arm that was confiscated
by the
police on 28 May 2005 at a house in Vredenburg.
[13]
The Appellant gave evidence and denied that he was the person who
shot Nero. He testified that on the night in question he
was at his
mother's house and was not in the vicinity of the shooting. He
further denied that he was known as " Holland"
and denied
that Nero and he were friends or that they went to school together.
He described Nero's claim that they had known each
other for 26 years
as nonsense and pointed out that he was only 18 years at the time of
the incident.( according to the record
Nero is six years older than
the Appellant).
[14]
The Magistrate called a witness to testify in terms of section 186 of
Act 51 of 1977 in order to establish whether the Appellant
was known
under the alias of "Holland".Inspector Karosieni testified
that the Appellant was known under the alias of
"Holland".
When cross-examined by Mr Cook he conceded that the Appellant was
known to him as such only from the time
of the investigation of the
present shooting incident.
[15]
In his judgement the Magistrate correctly held that the main issue in
dispute was identification of the person who shot Mr
Nero. The
Magistrate, somewhat tentatively, concluded that in relation to the
identification Nero was a single witness, n this
finding he was
correct.
[16]
However, in my view,the Magistrate failed to approach the evidence of
Nero as a single witness with the necessary caution.
He also
generally appears not to have applied the usual caution with which
our Courts are called upon to scrutinise evidence of
identification.
(See S v Mlati
[1984] ZASCA 88
;
1984 (4) SA 629
(A) at 632-633; S v Pretorius
1991
SACR 601
(A) at 609 )
[17]
Before a Court can place any reliance on the evidence of a single
witness the evidence must be clear and satisfactory in every
material
respect. The evidence must not only be credible, but also reliable.In
this respect see R v Makoena 1956(3)SA 81(A); S
v Webber 1971(3) SA
754(A); S v Sauls and others
1981 (3) SA 172(A)
; S v Ge ntle
2005 (1)
SACR 420
(SCA) and S v Janse Van Rensburg and Another 2009(2) SACR
216 (CPD).
[18]
Unfortunately I cannot agree with the Magistrate that Mr Nero was a
good witness. A perusal of the record discloses that Nero
gave
contradictory evidence in relation to the clothing worn by the
assailant. This a crucial aspect in assessing the reliability
of his
evidence - it is closely linked to the circumstances under which his
observation was made . On his version he had sufficient
time to
observe the person who shot at him and who was very close to him.
According to him the lighting at the scene was good -
there was
street lighting and the moon was very bright.
[19]
In these circumstances one would then expect that there would be very
little if any difference in the description of the clothing
given by
Ruiters the other eye witness . However, Ruiters contradicts Nero
substantially in this regard. Ruiters also contradicts
Nero in regard
to the removal of the hood and also contradicts him in regard to the
relative positions of Nero and the assailant
when the shots were
fired. Nero also contradicted himself. The Magistrate was of the view
that the contradictions were not substantial
but in the circumstances
of the nature of the evidence I cannot agree with his assessment.
[20]
It is also significant that Nero was unable to give the detailed
description of the clothes, length and gait as well as the
real name
of Appellant in his statement he made on the same day as the shooting
when the events was still fresh in his memory but
gave all this
detail for the first time five years later in court. The ineluctable
conclusion is that this evidence was added on
to strengthen his
version.
[21]
That he was prone to bolster his evidence is borne out by his
steadfast insistence that the moon was shining brightly and there
was
sufficient street lighting at the taxi rank. Both these assertions
were contradicted by objective evidence. Nero had to concede
during
cross-examination that there was no lights at the taxi rank and the
nearest street light was far away from the scene. The
scientific
evidence produced by Mr Cook proved that on that night the moon was
not visible being a so-called "new moon".
It is clear that
Nero lied about this in order to make his identification of Appellant
more likely. For the same reason he also
lied about the length of
time that he ostensibly knew the Appellant.
[22]
It is further clear that Nero showed bias against the Appellant and
admitted that they were adversaries. The circumstances
Nero testified
about provided a motive for himself to accuse the Appellant of the
shooting. In these circumstances it cannot be
said that Nero's
evidence was satisfactory in all
material
respects. On the contrary, a reading of his evidence reveals that
Nero was argumentative, attempted to avoid questions
and gave vague
answers when it suited him.
[23]
The Magistrate was impressed by Nero's adamant and confident
assertion that he was certain that it was the Appellant who Shot
him.
But as our courts have so often said " The positive assurance
with which an honest witness will sometimes swear to the
identity of
an accused person is in itself no guarantee of the correctness of
that evidence." ( R v Masemang
1950 (2) SA 488
(A) at 493; see
also S v Mehlape
1963 (2) SA 29
(A) at 32 and S v Pretorius supra at
608.)
[24]ln
regard to Nero's claim that he knew the Appellant very well, it is
apposite to refer to the following words by Dowling J
in R v Shekele
1953(1) SA 636at 638 g concerning the identification of persons said
to be well known by witnesses :
"
An acquaintance with the history of criminal trials reveals that
gross injustices are not infrequently done through honest
but
mistaken identifications. Strangers are sometimes mistaken for old
acquaintances. In all cases that turn on identification
the greatest
care should be taken to test the evidence." See also S v Thebus
2002 (2) SACR 566
AT 576
[24]When
the proper caution is applied it is clear that not only is the
evidence of Nero unreliable but it is also not trustworthy.
He is not
honestly mistaken. It would be dangerous to rely on such evidence to
find that a proper identification was made. In my
view the Magistrate
misdirected himself by accepting Nero's evidence as truthful and
relying thereon to convict the Appellant.
[25]]The
Magistrate further erred in finding corroboration for Nero's evidence
in the fact that he identified his attacker as "Holland"
and by repeating this assertion to other persons. The Magistrate also
erred in finding that the Appellant was in fact "Holland".
Firstly, as conceded by Ms Galloway who ppeared for the State in the
appeal, the statements by Nero are nothing more than self
corroboration that carries no weight - a repetition of a mistaken
fact does not make it true and, secondly the evidence by inspector
Krasieni in this regard did not establish that the Appellant was
known as " Holland" at the time of the shooting.
[26]
It is trite that there is no onus on an accused person to prove an
alibi. In the present case the Appellant maintained that
he was at
his mother's home at the time. Nothing in his version appears to be
improbable or not reasonably possibly true.The Magistrate
rejected
the Appellants' evidence because it was in conflict with the State's
evidence that he has found to be true. This is the
wrong approach. In
this regard see Sv Saban en 'n ander 1992(1)SACR 1999(A); S v Van der
Meyden 1999(2) SACR447 (W)
[27]
In seeking to find some form of guarantee of trustworthiness in
Nero's evidence, the Magistrate was of the view that there
was no
reason to believe that he came to court to falsely or wrongfully
implicate the Appellant and therefore he can find him to
be a witness
on which the court can rely. This is a serious misdirection. Our
Courts have often held that it is a wrong approach
in a criminal case
to say ' Why should a witness for the prosecution come here to commit
perjury ?' (see R v Mtembu 1965(4) SA
334 (T) at 335-6 ; S v Kubeka
1982 (1)SA 982 and the cases cited at 537 D)
[28]
Ms Galloway conceded that the evidence about the firearm that was
linked to the shooting does not provide any nexus between
the
Appellant and the shooting and is of no consequence. She was also
constrained to concede that the allegation that the Appellant
showed
some people that he had a firearm days before the incident was also
of no consequence. In my view it is a disturbing aspect
of this case
that the State did not provide any explanation for its failure to lay
a foundation for the tendering the section 212
certificates relating
to the fire arm seized in Vredenburg some three weeks after the event
when there was no link with the Appellant.
It appears that the Police
did not attempt and /or failed in tracing the owner and/ possessor of
the fire arm that was undoubtedly
used in the shooting. In the nature
of the seriousness of the crime involving a fire arm one would have
expected that the weapon
used in the attack would form a crucial
piece of evidence. That this weapon was not even remotely connected
to the Appellant and
not even a suggestion that he was in possession
thereof must,in itself, cast serious doubt on the case against the
Appellant.
[29]
It is trite that if an accused's version is reasonably probably true
he is entitled to his acquittal. A court is not entitled
to convict
unless it is satisfied not only that the explanation is improbable
but that it is beyond any reasonable doubt it is
false.
(see
S v V 2000(1) SACR 453 (SCA); Sv Shackell 2001(2) SACR 185 (SCA); S v
Mafiri
2003 (2) SACR 121
(SCA); S v Chabalala
2003 (1) SACR 134
(SCA)
[30]
The version of the Appellant cannot be said to be improbable and
there is no reason to reject it as false.The Magistrate should
not
have rejected his version and should have ordered his acquittal.
[31]
In view of the aforegoing I am of the view that the State has not
succeeded in discharging the onus of proving beyond reasonable
doubt
that the Appellant was the man who attempted to kill Mr Nero.
[32]
I would accordingly uphold the appeal and set both the convictions
and the sentences imposed in respect thereof aside.
JC
MARAIS, AJ
I
agree and it is so ordered
S
DESAI, J