Mavangwana v S (379/09) [2010] ZASCA 43 (31 March 2010)

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[2010] ZASCA 43
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Mavangwana v S (379/09) [2010] ZASCA 43 (31 March 2010)

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THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Case
No: 379/09
(No
precedential interest)
In the
matter between:
SIBULELE
MAVANGWANA
APPELLANT
v
THE
STATE
RESPONDENT
Neutral citation:
Mavangwana
v State
(379/2009)
[2010] ZASCA 43
(
31
March 2010).
Coram:
Mthiyane,
Mlambo et Tshiqi JJA
Heard: 3
March 2010
Delivered: 31
March 2010
Summary:
Criminal law –
identification by a single witness.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
Western Cape
High Court, Cape Town (Davis J, Dicker AJ sitting as court of
appeal).
The following order is made:
The appeal is dismissed.
________________________________________________________________
JUDGMENT
________________________________________________________________
MLAMBO
JA
(Mthiyane, Tshiqi JJA concurring):
[1] On 4 September 2002 and sometime after midday at the
corner of Selvin and Langa Streets in the Nomzamo informal
settlement in
the Western Cape, Anton Wyngaardt (the deceased) was
shot three times, one of the bullets piercing his heart, and died on
the scene.
The cause of death was recorded in the post mortem report
as loss of blood. At the same time, John Steven Haggard (Haggard),
who
was travelling with the deceased, was shot twice, on his right
arm and face, but managed to drive away from the scene. The appellant
was arrested some five months later on the 28 February 2003. He was
charged with murder alternatively culpable homicide as well as
attempted murder. In the ensuing trial in the Western Cape Regional
Court the appellant pleaded not guilty to all the charges and
advanced an alibi defence in his plea explanation. The state led the
evidence of Haggard and two police witnesses whilst the appellant
testified on his own behalf but called no witnesses. He was in due
course convicted of murder and attempted murder and sentenced
to 15
and seven years’ imprisonment respectively, and the sentences were
ordered to run concurrently. His appeal to the Western
Cape High
Court (Davis J and Dicker AJ) against his convictions and sentences
was unsuccessful but that court granted him leave to
appeal to this
court.
[2] The appellant’s convictions rest entirely on the
evidence of Haggard, who is the sole witness to the incident in which
both
he and the deceased were shot. The appeal is directed primarily
at the acceptance by the courts below of Haggard’s evidence
identifying
the appellant as the person who committed the two
offences. I turn to Haggard’s evidence as presented at the trial.
[3] He testified that he was a paraffin sales person and
that on that day he had come to the Nomzamo informal settlement
(Nomzamo)
to recruit new customers for the oil company he was working
for at the time. The deceased, had been working with him for
approximately
two weeks up to that day. After entering Nomzamo he
stopped his vehicle next to a Spaza shop (as these informal
settlement shops
are known) situated at the corner of Selvin and
Langa Streets, and spoke to a woman behind the counter enquiring if
the shop owner
was present. He left a short while thereafter upon
being informed that the owner was not at the shop. Some time later,
at 13h45 he
returned to the shop only to be told that the owner had
not returned. He had left his car idling with the deceased seated in
the
passenger seat. I pause here to mention that on his earlier and
subsequent stops at the shop and whilst speaking to the shop
attendant
he had noticed the appellant standing inside the shop next
to what looked like a tank. He had also seen the appellant on two
previous
occasions when the latter had approached him to enquire
about paraffin prices.
[4] Upon being informed that the owner had not returned,
he got into his car and in an instant heard a gunshot go off and
immediately
realised that he had been shot in his right arm, with the
consequence that he was flung sideways into the car. He neither knew
nor
saw who had fired the shot but as he looked up he saw a person
moving in front of the car towards the passenger side. He saw the
person shooting the deceased who had got out of the car. The deceased
fell to the ground, and this prompted Haggard to move towards
the
latter to see if he could render any assistance. As he did so the
person fired another shot at the deceased causing him to spin
around
and he tried to flee, but fell to the ground near the car. Haggard
then tried to return to the driver’s seat but the person
with the
gun blocked his path pointing it at him. It was at that stage that he
realised that the person with the gun was a man. In
reaction he knelt
down and pleaded with the man not to shoot him. The man however took
careful aim, closed his eyes and whilst turning
his face sideways,
fired another shot which hit him in his mouth. When the man shot him
he was not more than two to three metres
away from him. At that stage
he had an opportunity to see the face of the man and recognised him
as the appellant, whom he had seen
earlier inside the shop when he
stopped for the first time, and thereafter, shortly before the
shooting. Thereafter he managed to
stumble into the car and drive
away from the scene.
[5] Sometime after the shooting and after he had made a
statement to the police, two police officers, Inspector Swart and
Captain
Van Dyk came to his house and gave him eight photos asking
him to see if he could identify the face of the man who had shot him
and
the deceased. When he got to the third photo he immediately
identified the appellant’s face as that of the person who shot him
and the deceased. He was subsequently called to a formal photo
identification parade where he was shown the same photos and signed
on the same photo he had identified previously. During
cross-examination considerable time was spent on these photo
identification
parades as well as the positioning of the spent
cartridge shells which were found on the scene and in his car. In
this regard it
is worth noting that two shells were found inside
Haggard’s car and three other shells were found inside the shop.
[6] The next witness for the state was Inspector Jan
Harm Petrus Koekemoer. He was the first policeman on the scene after
the shooting.
The important feature of Inspector Koekemoer’s
evidence is that while he was at the scene he saw a black person in
the shop, with
a small built wearing blackish/brownish clothing. He
also mentioned that the person concerned had a woollen cap, which
fits in with
the description given by Haggard in the identikit he
prepared to assist the police to trace the suspect. His description
of the clothing
of the person concerned also ties in with that given
by Haggard. In his evidence Haggard testified that the appellant wore
long black
pants, a brownish coat and a woollen cap. The other state
witness, another policeman, Inspector Adolf Johannes Jonker, did not
take
the case any further, save that he had accompanied the
investigating officer to Haggard’s house regarding the first
identification
parade.
[7] The appellant testified on his own behalf and raised
an alibi defence, alleging that at the time of the shooting he had
accompanied
his elder brother, the owner of the shop Haggard had
stopped at, to the wholesalers at Khayelitsha, another residential
area, to
make purchases for the shop. He denied that he was the man
who murdered the deceased and attempted to murder Haggard.
[8] Other than arguments relating to certain alleged
irregularities committed during the investigation of the matter
especially with
regard to the two photo identification parades
conducted with Haggard as well as the positioning of the spent
cartridge shells that
were found at that shop and in Haggard’s car,
the primary focus of the argument advanced on the appellant’s
behalf was the reliability
of Haggard’s identification evidence. On
the question of photo identification, no improper conduct was relied
on by the appellant
in relation to the photos shown to Haggard at his
house. He was simply handed eight photos and it was left to him to
identify the
person who shot him and the deceased. In my view the
reliability of this identification cannot simply be brushed aside but
has to
be considered with other relevant evidence in the case. While
there may be something to be said against the second photo
identification
parade, especially as regards the weight to be given
thereto given the fact that Haggard was being shown the same photos
that he
had already been shown at his house, I do not see how the
first photo identification could be impeached. Be that as it may, the
main
focus of counsel’s attack was on the reliability of Haggard’s
identification of the appellant. Counsel’s argument on this aspect,
reduced to its bare essentials, was that the incident in itself was
traumatic, chaotic and riddled with confusion which prevented
Haggard
from making a proper observation of the man who shot them. It was
argued further that Haggard’s testimony of having seen
the
appellant on previous occasions amounted to fleeting instances. It
can thus not be said, so the argument went on, that he had
adequate
opportunity to make a proper observation. We were therefore urged to
conclude that having regard to all of these factors
there existed a
reasonable possibility of a mistake on Haggard’s part, as to the
identity of the person that shot him and the deceased
and that doubt
must inure to the benefit of the appellant.
[9] A reading of the trial court judgment reveals that
the trial magistrate warned himself of the need to approach Haggard’s
evidence
with caution in view of the fact that he was a single
witness. The court also warned itself of the need for reliability of
his evidence
of identification. That court then analysed the evidence
and made several observations in the process. Those observations are
that
the incident happened during broad daylight; that Haggard was
honest and sincere; that he did not contradict himself nor did his
evidence come across as unreliable; that he had seen the appellant on
previous occasions when the latter had enquired about paraffin
prices
and further that on that day he had seen him earlier and had seen him
on his return to the shop. The magistrate further observed
that
Haggard’s best opportunity to observe the appellant was at the time
when Haggard was about two to three metres from him and
saw him not
in profile but directly.
[10] In addition, the trial court reasoned that even
though the first photo identification parade may have been flawed
because the
investigating officer was present, there was, however, no
evidence or any suggestion that Haggard was informed beforehand which
photo
to identify. That court then concluded that Haggard’s
identification of the appellant was reliable and that he was the
person who
committed the offences. The court a quo made the same
observations and reasoned the matter essentially along the same
lines, save
that it considered, correctly in my view, that there was
enough evidence to convict even if the photo identification evidence
was
not considered.
[11] I can find no basis to fault the reasoning of the
courts below. Their conclusions are buttressed in large measure by
Koekemoer’s
evidence. In this regard Koekemoer, who responded to
the call and arrived at the scene where the deceased’s body was
still present,
testified that, whilst gathering evidence at the
scene, he saw the appellant in the shop. His evidence was that he
became conscious
of the latter because the appellant was watching
each and every move they made on the scene and then simply vanished.
He stated that
it was the appellant’s demeanour more than anything,
which he found suspicious and made him become conscious of his
presence there.
He did not know who had committed the crimes and just
found the appellant’s demeanour suspicious. It was this observation
that
enabled him to identify the appellant in court as the man he saw
in the shop not long after the incident. Koekemoer was not challenged
on this version when he was cross-examined. It is important to
remember that Koekemoer had had no discussion with Haggard and
independently
identified the appellant in the shop, though be it not
as the perpetrator as he did not know what had happened. In my view
Koekemoer’s
evidence effectively nullifies the appellant’s
version of not being there when the incident took place.
[12] I also find it instructive that Haggard had
provided an identikit of the face of the appellant long before the
latter’s
arrest. The only criticism levelled against the identikit
during the trial was that Haggard had made the face slightly thinner
than
the real face. This criticism was, in my view, unfounded. The
trial court found that the identikit evinced a striking resemblance
to the appellant’s face.
[13] Haggard was not seeing a stranger on the day of the
shooting. This was someone he had seen before. Clearly, therefore,
when he
saw him during the shooting incident especially when he was
kneeling in front of him, with a two to three metre gap between them,
he was seeing someone that he had seen before and that to me is the
most compelling factor that renders his identification of the
appellant conclusive.
[14] During the trial it was argued on the appellant’s
behalf that the appellant had a 2 cm scar on his face which Haggard
did not
mention. Reference was also made to another mark on his face.
That the marks in question were not readily noticeable is clear from
what transpired at the trial before the magistrate. Although the
appellant’s dock was right in front of the magistrate he was only
able to notice the marks in question after his attention was drawn to
them by his counsel and only after he had asked the appellant
to turn
his head. In those circumstances it could hardly be expected of
Haggard to have noticed those superficial marks or scratches
if they
were there at the time. Besides, Haggard had the gun pointed at him
at the time and he had been and was being shot at. In
my view the
failure to observe those marks, if they were there, does not detract
from the reliability of his evidence.
[15] Given the opportunity for observation which Haggard
had of making an accurate identification his evidence on this aspect
is beyond
reproach. On a quick calculation Haggard had at least six
opportunities to identify the appellant. He had seen him on two
occasions
before the day of the incident; he saw him at the shop when
he first came and when he returned to find out if the shop owner had
returned. He saw him on two occasions during the shooting from a
distance of about two to three metres. Even though these moments
were
not lengthy, the cumulative effect thereof allows of no other
conclusion than that Haggard had time and opportunity to make
a
correct identification and that he did make a reliable
identification. I am not persuaded that there is a reasonable
possibility
that he was mistaken in identifying the appellant as the
person who shot him and the deceased.
[16] Although there was an appeal against sentence, no
argument was advanced in support thereof.
[17] In the circumstances the appeal against the
convictions and sentences must fail. The following order is made.
‘
The appeal is dismissed.’
_______________
D MLAMBO
JUDGE OF APPEAL
APPEARANCES:
APPELLANT: P Greyling
Instructed by HJG Labuschagne, Cape Town
Van Koppenhagen Attorneys, Bloemfontein
RESPONDENT: C de Jongh
Instructed by Director of Public Prosecutions, Cape Town
and Bloemfontein