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[2022] ZAECGHC 27
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Adams v Goodman (CA&R 168/20) [2022] ZAECGHC 27 (29 March 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, GRAHAMSTOWN
CASE NO: CA&R
168/20
In
the matter between:
RUBEN
ADAMS
First Appellant
CORNAY
GOODMAN
Second Appellant
and
THE
STATE
Respondent
JUDGMENT
RUGUNANAN,
J
[1]
The appellants were
convicted in the Regional Court, Uitenhage on a charge of robbery
with aggravating circumstances read with the
provisions of
section
51(2)
of the
Criminal Law Amendment Act 105 of 1997
. A deviation from
the minimum sentence of 15 years’ imprisonment founded on
substantial and compelling circumstances attracted
a sentence of 10
years’ imprisonment for each appellant. The appeal to this
court with the leave of the court
a
quo
is
directed against their conviction and sentence.
[2]
It is not disputed
that the complainant was violently robbed in Tiryville in the early
hours of 16 August 2018 of
inter
alia
cash,
footwear, some clothing items and notably a Samsung mobile phone that
was subsequently recovered by members of a neighbourhood
watch from
the first appellant on 18 August 2018. In determining guilt, the
trial magistrate accepted the evidence of the complainant’s
identification of the appellants. This was with particular reference
to a photograph (or ‘selfie’) that appeared on
the screen
of the phone. According to the testimony of the complainant the
photograph linked the appellants to the commission of
the offence.
The appellants were legally represented in the conduct of their trial
and raised alibi defences proffered by the mother
of the first
appellant, and the girlfriend of the second appellant.
[3]
An
appeal does not necessarily require consideration of the complete
record of the entire proceedings in the trial court, but merely
such
part thereof as may be required to enable the court of appeal to
properly consider the particular issue/s on appeal in the
context of
the trial proceedings.
[1]
The
all-important issue on appeal concerns the reliability of the
complainant’s identification of the appellants. Although
on our
reading of the record, as well as in argument, a detailed examination
of the components in the evidence was undertaken,
when stepping back
and considering the evidence the issue of identification inevitably
assumes predominance for determining the
course of this appeal. Since
that issue is dispositive of this appeal it is unnecessary to
consider each appellant’s alibi,
there being no
onus
on him to establish its validity.
[4]
Despite
commenting that the complainant “
might
have given doubtful evidence regarding the identity of his
assailants”
[2]
,
the magistrate accepted the complainant’s identification
testimony as reliable and rejected the version of events presented
by
the appellants. He did so without satisfying himself that the
complainant was an honest witness, and mainly for the reason that
the
appellants did not impress him. Implicit in his reasoning is that
their respective versions were improbable in the light of
inconsistencies and internal contradictions. Our view of the matter
is informed by the premise that there was no obligation on
the
appellants to have convinced the magistrate of the truth of their
versions - the
onus
was
on the state to have proven their guilt beyond reasonable doubt, in
particular, on the issue presently before us.
[5]
The oft-quoted and established approach to
be adopted when considering evidence of identification is set out in
S v Mthetwa
1972 (3) SA 766
(AD) where at 768 A-C it is stated:
“
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, if any 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…”.
[6]
Between 04h00 and
05h00 of the morning in question the complainant, a driver employed
by a bakery, was doing his usual rounds delivering
bread. After a
delivery outside a shop where two men were purchasing tobacco he was
struck at the back of his head/neck with a
panga
.
He collapsed and was subjected to a further attack when he was
stabbed on the back of his left shoulder and kicked. He was
dispossessed
of the earlier mentioned personal items, among them his
mobile phone, personal cash of R210.00 and cash in the amount of
R339.00
being the payment received for the bread delivery. He was
dragged onto a tarred road but his assailants fled as soon as a local
resident switched on the lights of her house which is located next to
the shop.
[7]
The complainant
received his phone a few days later after it was handed to his
parents by a member of the neighbourhood watch. The
witness Elena
Jansen testified that the phone was recovered in circumstances when
the neighbourhood watch, having received information
about the
robbery, encountered the first appellant. It is unnecessary to
recapitulate the detail of the encounter but in the confrontation
that ensued the evidence indicates that the phone was recovered when
it slid out of the pocket of the coat worn by him.
[8]
With the phone back
in his possession the complainant observed the photograph of the two
appellants fixated on its screen. One of
them has a dark complexion
and the other is light in complexion. It is not disputed that the
photograph indeed depicts the two
appellants. As to how the phone was
acquired the appellants contradicted each other; the first appellant
alleging that he purchased
it from the second appellant and the
latter suggesting somewhat circuitously that he facilitated the sale
of the phone by strangers
to the first appellant. What can safely be
accepted is that the first appellant had the phone unblocked by a
hacker whereafter
the photograph was taken.
[9]
On the evidence
presented by the state the photograph served as the medium through
which the complainant identified the appellants
as the assailants who
perpetrated the offence against him. That he did so subconsciously
and retrospectively must be evaluated
against a number of
incongruities inherent in his evidence - the resultant effect of
which throws doubt on his honesty and the
reliability of his
observations, and most certainly his ability to have convincingly
recognised his assailants in circumstances
where he sustained
traumatic injuries.
[10]
In cross-examination
the complainant stated that the appellants wore hats/bandanas and
that their mouths and faces were covered.
It also emerged that they
were unknown to him prior to the incident. Moreover, the incident
came as a surprise to him since it
happened in the early hours of the
morning while it was dark. Save for testifying that he was aware of
two men purchasing tobacco
at the relevant time, indications by the
complainant that they were in fact the appellants and that they were
wearing headgear
are unmistakably and significantly absent. In an
attempt to circumvent this inadequacy, the complainant went on to
state that the
bandanas worn by both appellants fell down during the
incident. In the same breath he maintained that one of the appellants
removed
his bandana while the bandana worn by the other appellant
fell off on its own. Later, and while still under cross-examination,
he maintained that both appellants removed their bandanas when he was
stabbed and kicked.
[11]
It is apparent from
an overall assessment of the complainant’s testimony that he
was unable to proffer evidence of any discernible
characteristics to
link the identity of his assailants to the appellants. His
assertion
by recourse to the photograph that one of the assailants was light in
complexion, and the other dark in complexion, does
not, in view of
the abovementioned
incongruities
assist in apprehending a retrospective, honest and reliable
identification of the appellants as his previously encountered
assailants.
The fact that it was still dark that morning and there
being no evidence to indicate if nearby lighting enhanced visibility
conditions,
cannot be underestimated.
[12]
In
contending that this court ought to find that the complainant’s
identification was reliable, counsel for the state sought
reliance on
the case of
Gwama
v S
.
[3]
In that matter the victim’s identification of the perpetrator
by reference to a photograph from a mobile tablet which had
been
removed from the home of the victim during a robbery was found to be
reliable
a
fortiori
due to the circumstances extant at the time of the commission of the
offence. The circumstances indicated that the victim had reasonable
opportunity for observation and identification
viz;
the incident occurred in broad daylight, the perpetrator’s head
and face were not covered, and the relative proximity between
him and
the complainant.
[13]
Where,
as in the present matter, no evidential basis has been laid to
signify such opportunity, the reliance on the photograph on
its own
will not suffice. Nor does it suffice to contend generically that a
person may be possessed of the ability to recognise
another without
being aware of physical characteristics or circumstances while
exhibiting a total failure in verbalising a description
of an
individual previously encountered.
[4]
[14]
On our assessment of the matter it is not
anything farfetched to conclude that the complainant’s evidence
is the product of
mere inference and is rendered speculative.
The
evidence, indubitably, does not muster scrutiny under the yardstick
laid down in
Mthetwa
,
particularly on aspects pertaining to lighting, visibility,
proximity, opportunity for observation and physical characteristics.
The magistrate’s failure to have undertaken an evaluation with
the relevant degree of scrutiny resulted in an erroneous conclusion
that the appellants were guilty as charged.
[15]
In the result the following order will
issue:
(i)
The appeal is upheld.
(ii)
The conviction and sentence for each
appellant is set aside.
S.
RUGUNANAN
JUDGE
OF THE HIGH COURT
BESHE
J
:
I agree. It is so ordered.
N.
G. BESHE
JUDGE
OF THE HIGH COURT
Appearances:
For
the Appellants:
H.
Charles
Instructed by Legal Aid
South Africa
Makhanda / Grahamstown
For
the Respondent:
S. Mtsila
Instructed
by The Office of The National Director of Public Prosecutions
Makhanda / Grahamstown
Date
heard:
02 March 2022
Date
delivered:
29 March 2022
[1]
S v
Zondi
2003
(2) SACR 227
(W) at paragraph [9]
[2]
Judgment 142
[3]
(CA&R 52/2020) [2021] ZAECGHC 107 (25 November 2021)
[4]
S v
Majimane en Andere
1999 (1) SACR 204
(O) at 211A-E