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[2022] ZAECMKHC 97
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Peter and Another v S (CA&R 175/2021) [2022] ZAECMKHC 97 (15 November 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
CASE
NO. CA&R 175/2021
In
the matter between:
NDINANI
PETER
FIRST APPELLANT
UNATHI
NYAMEKAZI
SECOND APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
ON APPEAL
Rugunanan
J
[1]
The first and second appellants were among
four accused persons who appeared before a magistrate in the Regional
Court, Gqeberha
as accused number one and accused number three
respectively. They were charged with robbery with aggravating
circumstances read
with the provisions of
section 51(2)
of the
Criminal Law Amendment Act 105 of 1997
– the allegation being
that on 23 October 2014, and acting in pursuance of a common
purpose, the appellants assaulted
an employee of a ‘Tops’
liquor store located in Rink Street in Central, threatened her with a
firearm and made off
with cash to the value of R1 000 and liquor
valued at R3 496.91.
[2]
Both appellants were legally represented
during trial. They pleaded not guilty to the charge and upon
testifying, raised alibi defences
indicating that they were at their
places of employment at a construction site on the day in question.
[3]
Following their convictions on 27 February
2020, the appellants were each sentenced to a term of 12 years’
imprisonment, six
years of which were suspended for a period of five
years on condition that they were not convicted of robbery with
aggravating
circumstances during the period of suspension. The
present appeal, with leave having been granted by the trial court on
28 September
2020, is directed against each appellant’s
conviction and sentence.
[4]
The appeal turns on the reliability of
identification evidence.
[5]
Four
witnesses testified for the State, namely: Kereniah Cephas, an
employee at the liquor store; Sinawo Zinco who testified under
section 204
of the
Criminal Procedure Act 51 of 1977
; Sergeant John
Leppan, the investigating officer; and Captain Rio Kriel who recorded
a confession from accused number four.
Barring the appellants,
the confession is admissible only against accused number four
[1]
and the evidence of the witness Kriel assumes no relevance in this
appeal.
[6]
To begin with, Cephas, who was the first
witness to testify for the State, stated that the robbery occurred at
about 13h55 when
five men wearing woollen caps entered the store.
Save for having noted that one of them wore a pink t shirt and a
brown trouser
she was unable to identify the appellants as among the
perpetrators involved in the commission of the robbery, nor could she
proffer
detail of any significant physical features of the remaining
perpetrators. She stated that the men retrieved bottled liquor from
the shelves and placed the items into a brown bag. She was threatened
with a firearm and cash was removed from the checkpoint.
[7]
Cognisant that the evidence by Cephas did
not take the matter any further on the identity issue the magistrate
pillared his judgment
on the evidence of Zinco and Sergeant Lepan
whose testimonies read persuasively with him in convicting the
appellants. From what
follows it will be demonstrated that the
conviction for each appellant cannot be supported on the evidence.
[8]
Lepan was tasked with the investigation of
the robbery on the day of its occurrence. He had no previous
encounter with the appellants
nor did he have any prior knowledge of
their identity. He arrested them with the collaboration of Zinco, who
he located and arrested
the same day after acquiring the registration
details of a Toyota motor vehicle that was used in the commission of
the offence.
The vehicle belonged to the father of a friend of Zinco.
The registration details of the vehicle were given to Lepan by a car
guard
in Rink Street. Tracking the ownership details of the vehicle
to a house in Motherwell, Lepan encountered Zinco and was able to
establish that Zinco had borrowed the vehicle from the friend’s
father on the day of the robbery.
[9]
Zinco testified that he procured the
vehicle at the instance of the third appellant. Zinco was the
driver of the vehicle. He
conveyed five male persons (among them the
appellants), and was directed to the liquor store in Rink Street.
On arrival the
appellants including the others alighted from the
vehicle. They were carrying an empty brown leather bag and entered
the store.
After approximately ten minutes they returned with the
bag. It was filled with bottles of liquor and some of the men carried
bottles
of liquor in their hands. They drove off from the scene. He
was paid an amount of R250 by the second appellant, who he at some
stage observed handing over a firearm to one of the backseat
occupants.
[10]
On
the identity issue Zinco’s evidence implicates the appellants.
The reliability of his evidence, however, is tenuous. He
had never
known or encountered the first appellant prior to the date of the
robbery but identified him in court. The record reflects
that Zinco
testified on 30 May 2018, some three years and seven months after his
encounter with the first appellant. He offered
no verbal description
of any physical characteristics that prompted his identification of
the first appellant. The State did not
adduce evidence indicating
that Zinco’s identification could be sourced in an independent
preceding identification procedure.
In circumstances where the
timespan in the evidence is so manifestly patent the dock
identification of the first appellant, in
my view, carries little
weight.
[2]
[11]
As for the second appellant, it is common
cause that he and Zinco had grown up and lived in the same community.
Zinco left the area
roundabout 2013 2014 at the age of ten. The
hiccup with this evidence is that he could not seriously be
considered to have
been the driver of a getaway vehicle when the
robbery was committed in 2014. In cross-examination he struggled to
give clear evidence
about whether and how he maintained contact with
the third appellant in the interval since leaving the community until
date of
commission of the offence. No re-examination followed, hence
this rift in his evidence remained manifest.
[12]
The
issues arising from Zinco’s testimony concerning both
appellants bedevilled the case for the State. In my view there was
a
duty on the State to have drawn them to the magistrate’s
attention
[3]
– they
affected the merits of the witness and whether he answered ‘frankly
and honestly’ in satisfaction of the
conditions necessary for
acquiring indemnity under
section 204.
Zinco is an accomplice, no
doubt seeking the indulgence of a discharge from prosecution. His
evidence ought to have been subjected
to close and careful scrutiny.
He testified in some length about his collaboration with the police
but lacked the candour for revealing
his motive for doing so.
[13]
The
magistrate ruled that Zinco answered ‘frankly and honestly’
and discharged him from prosecution. The discharge did
not occur at
the end of the trial once all the witnesses testified and argument
had been heard but followed immediately upon conclusion
of his
testimony during presentation of the State’s case. In this
regard it is worth reiterating the explanation in
S
v Mnyamana
[4]
with which I am unreservedly in agreement:
‘
Ultimately
the Court has to determine whether, on all the evidence, a conviction
of the accused is justified. By granting a discharge
to an accomplice
at the completion of his evidence, the Court not only gives the wrong
impression to the accused who might feel
that the Court is prejudging
the issue, but granting a discharge at that early stage without a
proper evaluation of the witness’s
evidence in the light of all
the other evidence that might be adduced, could well have a
detrimental effect on the Court’s
own thinking.
The fact that [section
204 of the
Criminal Procedure Act] makes
no provision for the
withdrawal of a discharge, once it has been granted by the court, is
an indication that it was not contemplated
that it should be given
until the end of the case.’
[14]
A
discharge of a witness from prosecution before the conclusion of the
case amounts to an irregularity.
[5]
In argument, counsel for the respondent correctly conceded this.
While I do not consider the irregularity in the discharge of the
witness Zinco as one that can be categorised as fatal, the rifts and
anomalies in his evidence are such as to lead me to conclude
that his
evidence is unreliable. In these circumstances an appeal court will
decide for itself whether, on the evidence and the
findings
unaffected by the irregularity or defect, there is proof of guilt
beyond reasonable doubt.
[6]
In
keeping with this approach, and in support of the appellants’
convictions, respondent’s counsel steered clear from
relying on
the evidence of Zinco and laid emphasis rather on the evidence of
Sergeant Lepan and the doctrine of recent possession.
[15]
On being tasked with the investigation of
the robbery, Lepan interviewed Cephas and viewed video footage of the
robbery that had
been captured by CCTV cameras installed in the
liquor store. Lepan testified on 20 June 2018. He dock identified the
appellants.
This occurred some three years and eight months after
having viewed the footage. Nowhere in his evidence does he mention
any special
features or matching characteristics arising from the
video footage with the presentation and appearance of the appellants
in the
dock. The appellants were unknown to him. Put otherwise, they
were individuals not previously encountered. Lepan’s ability
to
distinguish their faces and dock identify them falters if one
considers that they wore headgear and that his identification
was
based on a replay of footage last seen on the date of the robbery. On
the identity issue Lepan’s evidence is the product
of a
subjective inference unsupported by objective facts or evidence.
Moreover, Cephas’s description of the attire worn by
one of the
perpetrators is not borne from the description of the attire worn by
the perpetrators which Lepan extracted from the
footage when he
testified.
[16]
Evident from the magistrate’s
judgment is that Lepan’s evidence was not subjected to the
degree of scrutiny that postulated
applying caution and testing its
reliability.
[17]
A reading of Lepan’s evidence
indicates that he was focussed, clear and verbally expressive. One
may readily conclude that
he made for a good witness who exemplified
attributes of honesty and integrity.
[18]
Our
courts, however, have emphasised time and again that such attributes
and a witness’s subjective assurance are not enough.
There must
be certainty beyond reasonable doubt that the identification is
reliable – there must be an appreciation that
the evidence of
identification based on the witness’s recollection of the
appearance of a suspect can be ‘dangerously
unreliable’,
and must of necessity be approached with caution.
[7]
[19]
The magistrate had no regard to the
significant lapse in time since the date of the robbery and the date
on which the abovementioned
witnesses testified. This is a crucial
factor which underscores the necessity for a cautionary approach to
their evidence.
[20]
Turning
to the doctrine of recent possession. It is a common-sense
observation on the proof of facts by inference. It supports an
inference being drawn that the possessor of recently stolen property
stole the property. It may be relied on where he cannot give
an
innocent explanation for his possession and the inference that he
stole the property is the only reasonable inference that can
be drawn
from such possession.
[8]
[21]
In
S
v Parrow
,
[9]
Holmes JA stated the following:
‘
I
pause here to refer briefly to the so-called doctrine of recent
possession of stolen property. In so far as here relevant, it
usually
takes of this form: on proof of possession by the accused of recently
stolen property, the Court may (not must) convict
him of theft in the
absence of an innocent explanation which might reasonably be true.
This is an epigrammatic way of saying that
the Court should think its
way through the totality of the facts of each particular case, and
must acquit the accused unless it
can infer, as the only reasonable
inference, that he stole the property. . . . The onus of proof
remains on the State throughout.
Hence, even if, after closing of the
cases for the State and the defence, it is inferentially probable
that the accused stole the
property, he must be acquitted unless the
only reasonable inference is that he did so; for the law demands
proof beyond reasonable
doubt.’
[22]
The above
dictum
evinces that it is a requirement for the application of the doctrine
of recent possession that the property of which the accused
was found
in possession was stolen.
[23]
Significantly, the limitation in the
State’s case is that it did not adduce evidence of the brand
names and the exact number
of items of bottled liquor that were
stolen during the robbery.
[24]
Lepan testified that he located (without
specifying the date) the second appellant in a shack in
Motherwell and arrested him.
In the shack he found liquor that he
confiscated. No attempt was made to elicit evidence from Lepan as to
the number of items of
liquor that were confiscated, nor was evidence
of their brand names elicited. Tellingly, the State did not adduce
evidence that
the liquor confiscated by Lepan was identified as
merchandise stolen from the liquor store during the robbery.
[25]
Where there is no proof that the liquor
found in the possession of the second appellant was identified as
stolen property, the doctrine
of recent possession (by the dictate of
common-sense), does not apply.
[26]
Cephas stated that she was called to the
police station on 27 July 2015. This approximates to a period of nine
months after the
robbery. She was shown a brown bag and identified it
as the bag that was used in the commission of the offence. That it
was indeed
the bag remains doubtful in the absence of evidence
indicating its distinctive physical features and dimensions. Lepan’s
evidence suffers from the same deficiency when he testified that a
big brown leather bag was spotted next to the first appellant
who had
been consuming liquor in the company of other males at the time of
his arrest. Cephas was also shown bottles of liquor
that were claimed
to have been recovered. There is an obvious yawning chasm between
Lepan’s evidence of what he claims was
confiscated and what
Cephas was shown. In either instance there is no evidence as to the
number of items taken from the liquor
store and the number of items
allegedly recovered and shown to Cephas, and whether the recovered
items indeed belonged to the store.
[27]
To
sum up – and for reasons mentioned – neither Zinco’s
evidence nor that of Lepan is of assistance to the State
for
justifying a defensible conclusion on the merits of the appellants’
convictions. In the lapse of time since the commission
of the offence
the State adduced no physical evidence: not a fingerprint, not any
evidence of a formal identification parade, not
any still photographs
of the video footage which may have shed more light on the identity
of the perpetrators. On this Court’s
assessment of the evidence
there is nothing to link the appellants to the commission of the
crime and thus provide a measure of
assurance against the drawbacks
of subjective identification. In the words of Cameron JA in
S
v Charzen and Another
:
[10]
‘
The
greatest assurance of guilt must lie in such evidence, rather than
identification on its own, which, as this case shows can
be beset by
. . . doubt, in which case, possibly and even presumably, guilty
persons must walk free.’
[28]
A
final aspect of the matter requires comment. The second appellant’s
explanation for the liquor found in his possession was
that he
intended hosting a traditional ceremony in preparation for becoming a
sangoma. Furthermore, both appellants maintained
that they were at
their places of employment on the day of the robbery. In as much as
the magistrate was critical of their versions,
nothing displaces the
evidence by their witness Aynada Peter. Although he was unable to
state that he had first-hand knowledge
that the appellants were at
their workplace, he could not, with a measure of certainty, state
that they were not at their place
of employment on the day in
question. The effect of this evidence is that the State did not
discharge the onus of proving the falsity
of the appellants’
alibis.
[11]
[29]
To sum up, although in argument the
appellants were rightly criticised as poor witnesses there was no
obligation on them to have
convinced the magistrate of the truth of
their versions.
[30]
In the result, the following order will
issue:
1.
The appeal is upheld.
2.
The conviction and sentence for each
appellant is set aside.
M S RUGUNANAN
JUDGE OF THE HIGH
COURT
I agree.
R E GRIFFITHS
JUDGE OF THE HIGH
COURT
APPEARANCES:
For
the Appellants:
J N Thysse
Instructed
by Wayne Mac Gear, Aneesah Campbell Attorneys
Gqeberha
Tel:
041-487 2783
For
the Respondent: S S Mtsila
Instructed
by The Office of the National Director of Public Prosecutions
Makhanda
Date
heard:
24 August 2022
Date
delivered:
15 November
2022
[1]
S v
Serobe
1968 (4) SA 420
(A) at 425F-G.
[2]
S v
Mdlongwa
[2010] ZASCA 82
;
2010 (2) SACR 419
(SCA) para 10.
[3]
Du Toit et al
Commentary
of the
Criminal Procedure Act
(Service
60, 2018) at 23-50G.
[4]
S v
Mnyamana
1990 (1) SACR 137
(A) at 141
b-c
.
[5]
S v
Mnyamana
1990
(1) SACR 137
(A) at 140
i
–
whether
such an irregularity constitutes a failure of justice, however,
depends on the facts of each case – see
S
v Mnyamana
at
141
e-i
;
also Du Toit et al
Commentary
of the
Criminal Procedure Act
at
23-50I.
[6]
S v
Mnyamana
supra
at 141
f
.
[7]
S v
Charzen and Another
[2006] ZASCA 147
;
[2006] 2 All SA 371
(SCA) at 147
i-j
.
[8]
Sijadu
v S
[2013]
ZAECGHC 116 para 14.
[9]
S v
Parrow
1973 (1) SA 603
(A) at 604C.
[10]
S v
Charzen and Another
[2006] ZASCA 147
;
[2006] 2 All SA 371
(SCA) at 149
h
.
[11]
S v
Shabalala
[1986] ZASCA 84
;
[1986] 4 All SA 551
(AD);
1986 (4) SA 734
(A) at
736B-C.