About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2010
>>
[2010] ZAWCHC 565
|
|
Khahlakala v S (A485/2010) [2010] ZAWCHC 565 (19 November 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
:
A485/2010
DATE
:
19 NOVEMBER 2010
In
the matter between:
ANELE
KHAHLAKALA
…................................................................
Appellant
and
THE
STATE
….......................................................................
Respondent
JUDGMENT
VIVIER,
AJ
:
The
appellant was convicted in the Regional Court for the district of
Strand on a charge of robbery with aggravating circumstances
and
sentenced to a period of nine years direct imprisonment. This is an
appeal against his conviction. The State alleged that
on or about 25
July 2009 and at Somerset Street in Gordon's Bay, the appellant had
unlawfully and intentionally assaulted the
complainant and forcibly
removed a Nokia cell phone from her under threat of a knife.
In
this court, the essence of the appellant's attack on his conviction
is that the magistrate had erred in finding that the evidence
of the
complainant, one Alexandra Hammond, was reliable and satisfactory in
respect of the identification of the appellant as
her assailant, in
respect of which identification, the complainant was a single
witness.
The
complainant testified that on the morning of the incident,
approximately at 07:30, she was walking from her boyfriend's home
in
Somerset Street, Gordon's Bay to her parents' home in Olienhout
Street where she stayed. Close to her home she walked past
the
appellant whilst he was urinating on the lawn of a residence on the
left-hand side of the street. When the complainant passed
the
appellant, she noticed that he had turned his head and was looking
towards her. Shortly thereafter the complainant realised
that she
was being followed and when she turned around, she noticed the
appellant on the opposite side of the road to where she
was walking.
The
appellant caught up with her, approached her from the side and
pointed to the two bags which she was carrying, a leather bag,
as
well as a smaller book bag. At the same time, the appellant spoke to
the complainant, she could not understand what he was
saying, but
she did make out the word bag. The complainant told the appellant to
leave her alone, upon which he produced a knife,
which the
complainant described as a folding knife with a green handle and
pointed the knife at her abdomen. The complainant
immediately
responded by handing her bags to the appellant.
In
evidence she explained this response that she did not want to be
injured. She testified that she had experienced the knife
being
pointed at her as a "very real threat". The appellant took
the bags and fled and the complainant proceeded to
run to her home,
which was close by at that stage, where she reported the incident to
her parents. Whilst the complainant's mother
called the police, the
complainant and her father went in search of the appellant in her
father's vehicle. Not far from their
home, the complainant noticed
the appellant standing on a street corner and she noticed her bags
lying at his feet.
The
complainant testified that she was able to identify the appellant by
the clothes he was wearing, namely a pair of jeans and
a white
shirt, which she had previously observed. The complainant further
testified that upon noticing the appellant, she exited
her father's
vehicle and fetched the bags, whereafter they went in pursuit of the
appellant, who had fled in the meantime. At
one stage the appellant
tried to hide in a garden, but shortly thereafter he fled again. He
was stopped by a police vehicle and
apprehended. The police removed
a knife, which was the same knife previously witnessed by the
complainant and a Nokia cell phone
from the appellant's pockets. The
complainant identified the cell phone as hers on the scene.
According
to the evidence, the incident occurred in a residential area at a
time when it was still quiet and deserted, being a
Sunday morning.
Under cross-examination the complainant explained that apart from
the appellant's clothes, she was able to identify
him on the street
corner by his prominent facial features. The complainant's father,
Mr Dennis Hammond, corroborated the complainant's
evidence in a
number of material aspects. These are,
inter
alia,
the
report she had made to her parents shortly after the incident, the
immediate pursuit of the appellant in his vehicle, that
the
complainant, was able to identify the appellant shortly thereafter
on the street corner and the eventual intervention of
the police and
the arrest of the appellant.
However,
Mr Hammond, was inclined to elaborate on events which was not
mentioned by the complainant in her evidence, for instance
that
during the pursuit of the appellant, the latter had tried to attack
Mr Hammond with a knife. In her judgment, the magistrate
was alert
to these discrepancies between the evidence of the complainant and
Mr Hammond. Mr Hammond was, however, adamant that
the person whom
the police had arrested was in fact the same person whom the
complainant had previously pointed out as her assailant.
He
testified that both persons had a peculiar hairstyle, which the
police officers, in their evidence, described as a "tabletop
cut".
Sergeant
Engelbrecht testified that he was busy with routine patrol services
in the Gordon's Bay area, when he responded to a
report of a robbery
in Somerset Street. He was accompanied by Constables Robertson, Du
Toit and Williams. They immediately proceeded
to the Hammond
residence, where they were told by a female person, apparently Mrs
Hammond, that the complainant and her father
had left in pursuit of
the suspect. The police officials then drove in the direction of
Kirby Street, where the suspect had in
the meantime been noticed in
terms of a further report received by the police officials.
While
searching the area, they noticed a person whose description fitted
that of the suspect, running away from Kirby Street into
West
Crescent. They followed him and were eventually able to apprehend
him when he tried to scale a fence. At the same time the
complainant
and her father arrived on the scene and the complainant identified
the fugitive, being the appellant, as her assailant.
Sergeant
Engelbrecht then searched the appellant and found the knife, which
according tot the complainant's evidence, had been
used in the
robbery, as well as the complainant's cell phone in the appellant's
pocket. Upon being confronted by Sergeant Engelbrecht
as to why he
was in possession of a cell phone, the appellant could not explain
himself.
The
last witness for the State was Constable Robertson, who corroborated
the evidence of Sergeant Engelbrecht in all material
aspects, save
for the fact that he described the appellant's clothing as a pair of
jeans and a red top. However, in re-examination
he conceded that he
could have been mistaken with regard to the latter item of clothing.
In
essence the appellant's version is that he was nowhere near the
scene of the robbery, he knew nothing about the incident and
the
witnesses for the State had concocted a story to falsely implicate
him in the crime. According to the appellant, on this
particular
morning he was returning from his employer's residence in Gordon's
Bay to his home in Zola. He was walking along the
main road between
Gordon's Bay and Strand when a police vehicle stopped next to him.
Police officials exited the vehicle and
promptly searched him. They
found a knife and a Motorola cell phone upon him and he was told
that he should accompany the police
officials to the Gordon's Bay
Police Station.
In
cross-examination the appellant denied that his arrest had been
carried out by Sergeant Engelbrecht and Constable Robertson.
He
could not name the police officials who had in fact, according to
his version, arrested him. Significantly this was never
put to the
police witnesses during the cross-examination by the appellant's
legal representative. The appellant further testified
that upon his
arrival at the police station, accompanied by the police officials
who had arrested him, they saw the complainant
leaving the police
station. She was stopped by the police officials and asked whether
the appellant was the person who had robbed
her from her
possessions, which she denied.
The
appellant's evidence contained a number of contradictions and
improbabilities. During cross-examination of the State witnesses,
it
was put to them that the appellant would testify that he had been
walking along the N2 main road when he was arrested. This
was some
distance away from the road between Gordon's Bay and Strand, which
the appellant referred to in his evidence as being
the place where
he had been arrested. Secondly, although at that stage the appellant
had been employed by his employer for a
period of time, he could not
supply any information whatsoever about his employer. His version
that he had been summoned to his
employer's house early on a Sunday
morning to come work, is highly improbable. The appellant could not
satisfactorily explain
this aspect of his evidence.
At
the police station where the complainant had indicated that it was
not the appellant who had robbed her, according to the appellant's
evidence, the appellant testified further that he specifically
enquired from the police officials why had been arrested, upon
which
they informed him that he would, in due course, be sent home by the
magistrate. In her judgment, the magistrate was mindful
of the fact
that the identity of the person who had committed the crime was in
issue and that the evidence should be carefully
considered, having
regard to the cautionary rules that apply in this regard. In
addition, the magistrate concluded that in respect
of the attack on
and robbery of the complainant, the complainant was a single witness
which constituted a further reason to evaluate
her evidence with
caution.
The
magistrate concluded that the complainant's evidence was thoroughly
tested during cross-examination, that there were no material
contradictions or improbabilities in her version and that she had
sufficient opportunity to positively the appellant as her assailant.
The magistrate regarded the complainant as a reliable and honest
witness. In
S
v Carolus
[2008] ZASCA 14
;
2008
(2) SACR 207
(SCA) at 212a, the Court said in relation to an appeal
against a conviction on the basis that the State had failed to prove
the
identity of the perpetrator:
"There
is no formula to apply when it comes to the consideration of the
credibility of a single witness. The trial court
should weigh the
evidence of the single witness and consider its merits and demerits
and, having done so, should decide whether
it is satisfied that the
truth has been told despite the shortcomings or defects or
contradiction in evidence. As stated in
S
v Webber
1971
(3) SA 754
AD at 758A-759A, the cautionary rule is merely a guide to
a right decision. It naturally requires judicious application and
cannot
be expected to provide, as it were, automatically the correct
answer to the question whether the evidence of the State witness
should be accepted as truthful and accurate. It does not mean that
an appeal must succeed if any criticism, however slender,
of the
witness' evidence were well founded."
Having
regard to the evidence as a whole, the magistrate, in
my
view, gave a well considered judgment and cannot be faulted for
coming to the conclusion which she did. Accordingly, it is
proposed
that the appeal against the conviction must fail and I propose that
the following order be made, that the appeal be
dismissed.
VIVIER,
AJ
LE
GRANGE. J
:
I agree and it is so ordered.
LE
GRANGE. J