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[2023] ZAKZPHC 9
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Zwane v S (AR297/2021P) [2023] ZAKZPHC 9 (24 January 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no: AR297/2021P
In
the matter between:
ZAKHELE
OXFORD
ZWANE
APPELLANT
and
THE
STATE
RESPONDENT
This
judgment was handed down electronically by circulation to the
parties' representatives by email, and released to SAFLII. The
date
and time for hand down is deemed to be 09h30 on 24 January 2023.
ORDER
On appeal from the
Regional Court, Eshowe Magistrate ME Xolo presiding, it is ordered:
The
appeal against conviction is dismissed. The conviction of the court
a
quo
is confirmed.
JUDGMENT
Henriques
J (Mlaba J concurring)
Introduction
[1]
On 30 June 2015, the appellant was
convicted on a charge of attempted murder and sentenced to ten years'
imprisonment on the same
day. The matter serves before us as an
appeal against conviction only, which leave was granted on 9 October
2017.
[2]
In the court
a
quo
the appellant was convicted on the
evidence of the complainant, a single witness who also identified the
appellant at an identification
parade subsequent to the date of the
incident. The sole issue for determination in the court a
quo
revolved around the issue of the
complainant's identity of the appellant and whether same was
sufficiently reliable to secure a
conviction against the appellant.
Grounds of appeal
[3]
In his grounds of appeal the appellant
submits that the court a
quo
misdirected
itself in relying on the evidence of a single witness and in finding
that the identification by the complainant was
satisfactory and
reliable in all material respects. He submits that the identification
is not reliable and alludes to the fact
that he and the complainant
did not know each other prior to the alleged commission of the
offence.
[4]
Mr
Pillay,
who
appeared for the appellant, submits that the evidence of the
complainant in the court a
quo
ought
to have been viewed with circumspection in light of the fact that
this was a moving scene and the complainant's life was under
attack.
The complainant was unable to provide the police with either a
detailed physical description of the assailant nor a proper
description of the clothing which the assailant wore. Most notably,
his statement omitted the description of the facial scars which
he
subsequently testified about in court which served as the basis for
his identification of the appellant.
[5]
The respondent submits that on a conspectus
of the evidence the identification of the appellant by the
complainant is reliable and
that the court a
quo
correctly rejected the version of the
appellant as false.
[6]
It is common cause that the complainant, a
security guard, sustained three gunshot wounds to the lower part of
his body on 24 October
2014, whilst performing his duties at M[...]
High School. The injuries which he sustained were confirmed in a J88
completed on
15 November 2014 pursuant to the examination conducted
by Dr Daniel Thulani
Khoza
on
24
October
2014
at
11h45.
I
may
add
that
the
J88
as
well
as
the
s 212(4) affidavit were handed in by consent. He subsequently
identified the appellant at an identification parade held on 19
December 2014.
[7]
The complainant, W[...] Q[...] M[...]
(M[...]) testified that on 24 October 2014 at approximately 08h00, he
observed a person entering
through the side gate. He observed a
person entering through the side gate of the premises without
permission. He exited the guard
room and approached the person
greeting him. He subsequently identified the person as being the
appellant.
[8]
The appellant informed him that he wanted
to see an educator, a Mr M[...] who was inside the school premises
and shortly after saying
this, the appellant drew a firearm, pointed
it
at
his face and
said
'we
are
done
I
am going
to
finish you
off
you must
not
move.' That is when he tried to take evasive action to avoid being
shot and moved around and the appellant directed shots at
him, three
of which struck him.
[9]
There were many people around the area who
shouted that someone was shooting a security guard and when the
appellant heard these
people shouting, he fled the scene. M[...]
was
subsequently
taken
to
Nkonjeni
Hospital
where
he
was
treated
and discharged. He confirmed that he had
not seen the appellant before this incident. The incident lasted
approximately ten minutes.
Throughout the incident he was able to
keep the appellant under observation at all times as the appellant
was approximately an
arm's length away from him.
[10]
The appellant's face was not covered and he
observed him being dark in complexion and had notable scars, one of
which was on one
of his eyes. The appellant also appeared to be
cross-eyed. He observed the appellant's face clearly. It was broad
daylight and
nothing obscured his view of the appellant at the time.
The appellant was facing him when he threatened him and pointed the
firearm
at him.
[11]
He also observed that the appellant was
wearing a grey two-piece dust coat and a small hat which only covered
the top of his head
and was wearing takkies which were dirty. His
clothing was dirty, marked with grease stains as if he was a
mechanic. The complainant
was also able to describe the firearm which
the appellant carried as being a 9mm firearm used by police officers
which had scratches
on it and was brown-like
or black in colour.
[12]
Subsequently,
he
provided
a
statement
to
the
police
which
did
not
contain
a physical description of the appellant.
His explanation for this was that he was traumatised after the
incident but indicated to
the policemen who took his statement that
he would be able to identify his assailant. He thereafter identified
the appellant at
an identification parade.
[13]
During cross-examination he confirmed that
whilst the shooting incident was taking place, he and the appellant
were looking at each
other. At that time, he observed that the left
eye of the appellant was somehow deformed and had a scar that crossed
down the left
eye. The appellant also had another scar on the left
side of his face and nose.
[14]
Constable Andries Sondelani Dlamini
(Dlamini) testified that he assisted in the arrest of the appellant.
He confirmed that he had
received information from an informant
regarding the appellant's alleged involvement in
the offence. At the time, he interviewed the complainant who provided
him with
the physical description of the appellant, him being dark in
complexion and describing his bodily features, more specifically the
scars on the appellant's face. He confirmed that he had arrested the
appellant and handed him over to the investigating
officer. He was not present when the
identification parade was conducted.
[15]
The appellant testified in his defence and
did not call any witnesses. His defence centred around the fact that
he was not at the
scene of the crime; had not been properly
identified by the complainant and was not the person who shot the
complainant on 24 October
2014.
[16]
During cross-examination however he
conceded that the complainant had an unobstructed view of him and
adequate opportunity to observe
him on the day in question and agreed
with the description provided by the complainant to the court
regarding his body structure
and facial features. He agreed with the
suggestion during cross examination, that it was a clear day and
the complainant would
have been able to identify the person who shot
him.
[17]
The appellant did not dispute the identity
parade. The only challenge to the identification parade by the
appellant appeared to
be centred around the fact that the
identification parade was held subsequent to the appellant making his
first appearance in court.
However, nothing much turns on this aspect
as, during the course of the evidence, it became clear that although
the appellant had
made a first appearance in court, the complainant
had not seen him at court on the day he made his first appearance.
[18]
During the course of his evidence it became
apparent that he was arrested on 18 December 2014 for another offence
and made his first
court appearance on the same day. The
identification parade was held on 19 December 2014. His first court
appearance in
relation
to
the
current
offence
was
on
20
December
2014.
During
cross-examination he
conceded that he assumed the complainant
had seen him in
court.
Consequently,
the
complainant did not have an opportunity to observe him in court
before his arrest and the complainant did not observe him in
court
prior to him providing a description to Dlamini.
Judgment of the court
a quo
[19]
The court a
quo,
relying on the evidence of a single
witness as well as the evidence of his identification of the
appellant, was satisfied that the
complainant correctly identified
the appellant as being the person who shot him on the day in
question. In addition, it was of
the view that the evidence of the
complainant was satisfactory in all material respects and that the
evidence of the appellant
fell to be rejected.
Analysis
[20]
It
is correct that a court of appeal would not readily interfere with
the factual findings of
a
trial court unless there is evidence of a clear misdirection. See in
this regard
S
v Monyane and others
[1]
where
the court held the following:
The
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... 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...'
[21]
In assessing the evidence, one must have
regard to the evidence as a whole. In my view, the court a
quo
correctly considered the evidence
before it and I can find no misdirection in its acceptance of the
evidence. The court a
quo
correctly
rejected the version of the appellant that he was not present and did
not remember where he was on the date of the commission
of the
offence. The appellant never disputed his unique facial features and
other bodily features during the course of cross-examination
as
testified to by the complainant.
[22]
It is trite that in terms of
s 208
of the
Criminal Procedure
Act
51 of 1977
, an accused may be convicted on the evidence of a single
witness provided same is satisfactory in all material respects. In
S
v Sauls and others
1981 (3) SA 172
(A),
the following
ratio decidendi
was
set out:
'There
is no rule of thumb test or formula
to
apply
when it
comes to a consideration
of
the credibility of the single witness (see the remarks of Rumpff JA
in
S v Webber
1971
(3) SA 754
(A) at 758). The trial Judge will weigh his evidence, will
consider its merits and demerits and, having done so, will decide
whether
it is trustworthy
and
whether, despite the fact that there are shortcomings or defects or
contradictions in the testimony, he is satisfied that the
truth has
been told.
The
cautionary rule referred to by De Villiers JP in 1932 may be a guide
to a right decision but it does not mean "that the
appeal must
succeed if any criticism, however slender, of the witnesses' evidence
were well founded"
It
has been said more than once that the exercise of caution must not be
allowed to displace the exercise of common sense.'
[23]
In essence, at the appeal hearing Mr
Pillay
submitted that the complainant's
identification of the appellant was not reliable. He submitted that
the complainant, at the time
of the incident and whilst being
interviewed on the scene by the police, was not able to provide a
detailed description of his
attacker. He did not, at that point in
time nor when his statement was subsequently taken by the
investigating officer, describe
any of the identifying features of
the appellant like for example the scars on his face. He submitted
that on 24 October 2014 whilst
lying on a stretcher at hospital, the
police took his statement but he did not provide them with a physical
description of his
attacker.
[24]
He submitted that for these reasons the
complainant's identification of the appellant shortly after the
incident and at the identity
parade was unreliable and consequently
being a single witness, based on the cautionary rule, his evidence
was unreliable and the
appellant ought to have been acquitted.
[25]
The fallacy in these submissions lies in
the evidence presented in the court a
quo.
It is correct that the complainant did
not provide a detailed description of the appellant to the police at
the scene of the incident.
This could be due to a number of reasons
least of all that the complainant
was
injured and in shock. However, he had ample opportunity to see the
complainant at the time of the incident and kept him under
observation for at least five minutes as he was an arm's length away
from him.
[26]
In
addition,
the
arresting
officer,
AS
Dlamini,
testified
that
he
had
received
information from an informant concerning the appellant's alleged
involvement in the offence. Before he effected the arrest,
he
contacted the complainant and interviewed him. The complainant
indicated that he did not know who had committed the offence
but had
observed his attacker as it was broad daylight and he had seen who
had shot him. When he interviewed him, the complainant
provided a
description of his attacker namely that the attacker's complexion was
similar to his, being dark, he was taller than
him and that '...there
was one eye which was some sort of disfigured from the perpetrator,
it is only that he did not know whether
it was a left or a right
eye.' He further said '...the perpetrator had a small scar somewhere
around his face... '.
[2]
He
indicated that it was only after he had
verified
the
appellant's
description
with
the
complainant
that
he then
arrested
the
appellant.
[27]
In my view, the criticism of the
complainant's failure to inform the police at the time of
the shooting incident the exact description
of the appellant is without merit. The complainant had been through a
traumatic ordeal;
had been shot and was laying on a stretcher in the
hospital when the police interviewed him. He could hardly be expected
at that
point in time to provide a detailed description. There was no
evidence from any of the police present at the scene nor the
investigating
officer that at the time the complainant was asked for
a description of the perpetrator and he failed to provide one.
[28]
His
failure
to
provide
a
description
of
the
appellant
at
that
point
in
time
cannot detract
from
the
weight
of
his identification of
the
appellant.
In
any
event,
there is
no
suggestion from the evidence or by the appellant that his description
was provided to the complainant prior to the identification
parade.
Consequently, I am of the view that the submission by Mr
Pillay
falls to be rejected.
[29]
Turning
now to the reliability of the complainant's identification of the
appellant as the perpetrator, the seminal judgment on
identification
is the decision in
S
v Mthetwa
[3]
where
the court held the following:
'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; 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...'
[30]
The
following
in
my
view
constituted
important
features
emanating
from
the evidence of the complainant
justifying the court
a
quo
correctly rejecting the appellant's
defence but more importantly, accepting the evidence of the
complainant, a single eyewitness'
identification of the appellant.
The incident occurred in broad daylight and took approximately five
minutes; the complainant at
all times had an unobstructed view of the
appellant who was approximately an arm's length away from him. At the
time of the altercation,
the
appellant was face to face with him and when he pointed the firearm
he was facing M[...].
[31]
The
complainant
not
only
identified
the
appellant
by
his
structure,
his
dark
complexion
but
also indicated that at the time of the incident the appellant had not
covered his
face.
He
identified
peculiar facial
features
of
the appellant,
being
the
scars which
made
him easily identifiable. The complainant's description of these
identifying features was pertinently noted by the court a
quo.
It is clear that these identifying
features were not something which the complainant could have
manufactured and it is evident from
the appellant's evidence, most
particularly that the scratch under his nose was not one which was
easily identifiable but only
identifiable if one was very close to
the appellant.
[32]
This
is
indicative
that
M[...]
had
sufficient
opportunity
to
observe
this.
At
no
stage
during the
course
of
his
evidence
did
the
appellant
dispute
any
of
this
evidence.
In
addition, the complainant testified that he observed the clothing of
the appellant as being a grey two-piece dust coat. The appellant
was
wearing a small hat which covered the top of his head and wearing
takkies. This was not disputed by the appellant at all.
[33]
I agree with the findings
of the court a
quo
that there were no material
shortcomings
or
criticisms which may be levelled against the evidence of the
complainant.
He
was a credible witness who testified in an honest and forthright
manner. There was no reason for him to falsely implicate the
appellant as he was not known to him. Consequently, we can find no
misdirection by the court. In the result, the court a
quo
correctly rejected the version of the
appellant as being false beyond a reasonable doubt and correctly
found that the respondent
had discharged the onus beyond reasonable
doubt.
[34]
It
is
evident
that
the
complainant
had
sufficient
opportunity
for
a
reliable
observation of the appellant. The arresting officer, Constable
Dlamini, also testified in an honest and forthright manner
and he too
testified that the complainant provided him with a description of the
appellant that he verified before arresting the
appellant.
Order
[35]
In the result the following order will
issue:
The
appeal against conviction is dismissed. The conviction
of the court a
quo
is confirmed
Henriques J
MLABA
J
Case
Information
Date
of Argument: 28 October 2022
Date
of Judgment:
24 January 2023
Appearances
Counsel
for the Appellant:
T. P Pillay
Instructed
by:
Legal Aid South Africa Durban Office
22
Dorothy Nyembe Street Durban
Tel:031-3040100
Ref:
T.P Pillay
Email:
ThiagrajP@legal-a1d.co.za
Counsel
for the Responde nt:
P
Kunene
Instructed
by:
The Director of Public Prosecutions Southern Life
Building
Durban
Tel:
031 334 5000
Email:
Pkunune@npa.gov.za
[1]
S
v Monyane and others
2008 (1) SACR 543
SCA.
[2]
Transcript
of the proceedings, page 35, lines 18 to 22.
[3]
S
v Mthetwa
1972 (3) SA 766
(A) at 768A-D.