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[2010] ZAECPEHC 62
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Skosana v S [2010] ZAECPEHC 62 (25 October 2010)
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, PORT ELIZABETH)
In the matter between:
Case No: CA & R 261/2009
PETRUS XOLANI SKOSANA
…......................................................................
Appellant
And
THE STATE
…..............................................................................................
Respondent
Coram:
Chetty and Dambuza JJ
Dates Heard:
13 October 2010
Date Delivered:
25 October 2010
Summary:
Evidence
– Adequacy of proof – Identification – Assessment
of evidence – Witnesses description of assailant
perfect match
of appellant – Circumstantial evidence additional safeguard for
acceptance of such evidence – Appeal
dismissed
________________________________________________________________
JUDGMENT
________________________________________________________________
Chetty, J
[1] The alluring beauty of the Garden
Route, along the Southern Cape Coastline, attracts visitors both
local and abroad. On Monday,
12 March 2007, two Dutch tourists, Mr.
Matthias Sandner
(
Sandner
)
and his companion Ms
.
Charnette Ulsenheimer
(
Ulsenheimer
),
to whom I shall interchangeably refer to either by name or merely as
the couple, guests at the Tsitsikamma Lodge, at the eastern
extremity
of the Garden Route, decided to walk along a hiking trail from the
lodge. About 5 to 10 minutes into their walk, they
encountered a
person (the “guide”) who, under the pretext that he was
responsible for their safety, cautioned them
from proceeding any
further. Perplexed, given the fact that they had the previous day
also taken a walk without any interference,
Sandner
,
somewhat in a quandary, nonetheless implored the guide to permit them
to at least walk to the river. He relented and at the river
engaged
them in small talk. He then enquired whether he could use their
camera to take a picture of them but
Sandner
,
presciently, declined the offer with the riposte that they should
rather return to the lodge.
[2] The “guide”
accompanied them and en route back to the lodge regaled them with
several stories, stopping frequently,
which caused the couple, as a
matter of courtesy to do likewise. During these, with hindsight,
calculated stoppages, the couple,
as politely as possible, sought to
disengage themselves from his company by bidding him farewell.
Undaunted, he followed them,
proffering his opinions on a host of
topics. After about the fifth stoppage, he asked them for a stipend
for his services and when
informed that they had brought none, he
asked for something to eat. All that they had was some nuts which
they provided to him.
In a further attempt to extricate themselves
from his company, they once more bid him farewell. As part of his
charade the guide
came up to
Sandner
and put his arm around his neck and
instead of a farewell embrace tightened his grip around
Sandner’s
neck and remarked,
“
please
send your girlfriend
away
,
she shouldn’t
see what will happen now
”
.
Sandner’s
immediate reaction was understandable.
He froze.
Ulsenheimer
,
who heard the “guide’s” utterance, was more
measured. Her response was that she would not go and simultaneously
glimpsed a knife and warned
Sandner
that the “guide” had a
knife in his hand. In the ensuing confrontation the “guide”
managed to wrest the
bag slung over
Sandner’s
shoulder and, seizing the
opportunity,
Sandner
and
Ulsenheimer
made good their escape to the lodge.
The bag contained two pairs of sunglasses, a digital camera, a blue
towel pack and a visa card.
[3] At the lodge, the police were
summoned and both of them made statements to Inspector
Kruger
(
Kruger
) in the course of which they had provided a detailed
description of the “guide”.
Sandner
stated that
the “guide” wore an old greyish pullover punctuated by
holes through which a yellow, grey and white striped
t-shirt was
clearly visible, a woolen hat/cap was concentrated on the back of his
head exposing a crop of bronze coloured hair;
his cheek had a
pronounced scar, which, by appearance, was clearly not caused by a
knife but the result of a burn of some sort
and, in addition he had a
smaller scar on the top upper chest near the neck; his hands and
wrists as tattooed with writing and
not pictures.
Ulsenheimer’s
narrative of how the events unfolded mirrored that of
Sandner
and so too, her description of the “guide” and his
apparel.
[4] Early the next day Constable
Johannes Net
(
Net
)
encountered the appellant who enquired whether he was being sought by
the police. At that stage
Net
had no inkling of the appellant’s
involvement in the robbery the previous day and replied in the
negative. Later that day
Net’s
superior officer,
Kruger
,
returned to the lodge and conducted a further interview with the
couple. She showed them a pair of sunglasses which had been handed
in
at the local police station by a certain
Frederick
Pietersen
(
Pietersen
).
The couple immediately identified the sunglasses as their own.
Kruger
summoned
Net
to the lodge on the supposition that
he may, given the nature of his work and familiarity with the local
inhabitants, know someone
who matched the description provided by the
couple.
Kruger’s
intuition proved correct.
Net
immediately repaired to the
appellant’s home and arrested him for visually, he perfectly
matched the description provided
by the couple.
[5] Naively however, he returned to
the lodge whence he had left
Kruger
,
ostensibly for the purpose of the couple identifying the appellant as
their assailant. When he arrived at the lodge, the couple
were
fortuitously standing outside the lodge.
Sandner
and
Ulsenheimer
both testified that when the appellant
alighted from the vehicle they immediately and spontaneously
identified him as their assailant.
Sandner’s
words to the appellant were
“
good
morning my friend, nice to see you again”
.
The appellant’s response, according to both of them and
Net
,
was one of silence.
[6]
Pietersen’s
involvement requires some explanation. The preceding evening, whilst
en route to a community meeting he encountered a certain
Loftie
who informed him about the robbery on the hiking trail. At the
meeting, the appellant, with whom
Pietersen
was acquainted and
knew by the name
Petrus
, showed him two pairs of sunglasses
and handed a black pair to him for safekeeping which
Pietersen
duly kept. It appears from the evidence that details of the robbery
spread like wildfire and became a focal point of discussion.
Following the robbery Inspector
Breda
made routine enquiries
concerning the stolen sunglasses during the course of which he
questioned
Pietersen
who informed him that the appellant had
handed him a pair of sunglasses.
Pietersen
was then instructed
to take it to the police station to
Kruger
who in turn went to
the lodge where
Sandner
and
Ulsenheimer
identified it
as their own. This incident, as adumbrated earlier, occurred
immediately prior to
Net’s
arrival at the lodge with the
appellant.
[7] Consequent upon his arrest the
appellant was charged with robbery with aggravating circumstances. On
16 March 2007 he was arraigned
for trial in the regional court,
Joubertina. The state adduced the evidence of
Sandner
,
Ulsenheimer,
Pietersen
,
Kruger
and
Net
and the appellant himself testified. The court below found the
appellant guilty as charged and sentenced him to imprisonment for
10
years. An application for leave to appeal against both the conviction
and sentence was dismissed but leave granted on petition
addressed to
the Judge President, only in respect of the conviction.
[8] On appeal before us the
appellant’s conviction was sought to be assailed on various
grounds
, inter alia
, the alleged discrepancies between
Sandner’s
and
Ulsenheimer’s
description of
the appellant’s t-shirt and the impropriety of the police
conduct in taking the appellant to them for purposes
of
identification. Arguing from the supposition that such conduct on the
part of
Net
tainted the reliability of their evidence
identifying the appellant as their assailant, Mr.
De Jager
,
somewhat tentatively, submitted that, having been irregularly
obtained, the evidence of identification should be excluded.
[9] It appears from the evidence
however that although
Net’s
conduct in taking the
appellant to the lodge for
Sandner
and
Ulsenheimer
to
identify him as their assailant displays a lack of judgment, their
spontaneous identification dispels any doubt that they were
thereby
influenced in identifying the appellant. Both
Sandner
and
Ulsenheimer
had been in the appellant’s company for a
protracted period the previous day when he regaled them with stories
about himself
and other inane subjects. The incident occurred in
broad daylight and the opportunity for them to have made a proper
identification
is clear. Both of them had noticed that the appellant
had a very pronounced scar on his check and on the neck close to the
collar
bone and it is no doubt that his physical appearance coupled
to his pronounced identifying features made an indelible imprint on
their minds. Their description of his tattoos was moreover precise.
Both had stated that the tattoos were not of the conventional
type
but vocabular. His peroxided hair merely confirmed their initial
recall of the colour of his hair.
[10] The thrust of the submissions
advanced in appeal before us however concerned the evidence relating
to their description of
the t-shirt. I have already alluded to the
fact that both
Sandner
and
Ulsenheimer
described the t-shirt worn under the
appellant’s shirt as being white, yellow and grey striped. The
appellant’s evidence
was that although he wore a striped
t-shirt on the day he was arrested, he could not recall its exact
colours. He empathically
denied wearing a t-shirt the day prior to
his arrest i.e. on the date of the alleged incident. During
Sandner’s
cross-examination the appellant’s
attorney put to him that on the day of his arrest, the appellant wore
a white t-shirt with
orange and black stripes and that the appellant
had shown her the t-shirt earlier that morning, presumably, during a
consultation
with him at the police station. The question which
immediately springs to mind is why the appellant would, prior to the
trial commencing
and any evidence being adduced, show his attorney a
t-shirt, which, on his own admission, he had not worn on the day of
the incident.
If he had not worn a t-shirt there was no reason to
refer his attorney to it. The reason is obvious.
[11] Immediately prior to the
appellant’s attorney’s cross-examination of
Ulsenheimer
,
she, in the concluding portion of her examination in chief stated
that when the appellant was brought to the lodge he wore the
same
yellow and grey striped t-shirt. At the commencement of her
cross-examination, the appellant’s attorney produced a t-shirt
and asked
Ulsenheimer
whether the appellant had worn it on
the day in question. She replied in the affirmative. Much earlier,
and before the t-shirt was
produced in court, the appellant’s
attorney herself, during
Net’s
cross-examination described the
t-shirt to him as being
“
a
whitish t-shirt, with yellow and black stripes”,
a statement with which he concurred
save with the riposte that it was a grey and not a black stripe.
Net’s
further evidence that the colour was
more akin to yellow than orange was never disputed. It was also never
put to Ulsenheimer that
her description of the t-shirt did not accord
with what she was shown. On the overall assessment of the identifying
evidence however
the t-shirt is of minor significance.
[11] The trial court analyzed and
evaluated the evidence relating to the identification of the
appellant in detail. It recognized
the dangers of an honest but
mistaken identification but concluded that the identifying witnesses
were credible and that their
evidence could safely be relied upon.
The trial court considered the appellant’s evidence and rightly
rejected it as not
being reasonably possibly true. In the overall
assessment of the testimony adduced there was no room for a finding
other than that
it was the appellant who robbed the complainants of
their possessions. The evidence against him was, in my view,
overwhelming.
It follows that there is no basis warranting
interference either with the trial court’s assessment of the
evidence or its
factual findings. In the result the following order
will issue:-
The appeal is dismissed.
__________________________
D.CHETTY
JUDGE OF THE HIGH COURT
Dambuza, J
I agree.
_______________________
N. DAMBUZA
JUDGE OF THE HIGH COURT
Obo
the Appellant: Mr. A De Jager
Instructed
by Justice Centre
Grahamstown
Ref:
A De Jager
Obo
the Respondent: Adv M. September
Instructed
by the National Director of Public Prosecutions
High
Street
Grahamstown
Ref:
M September
Tel:
046 - 6023000