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[2021] ZAGPPHC 152
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J.N v S (A143/2019) [2021] ZAGPPHC 152 (5 March 2021)
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IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE NO: A143/2019
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
REVISED
In the matter between:
J[…]
N[…]
APPELLANT
and
THE
STATE
RESPONDENT
Sekhula AJ:
A.
INTRODUCTION
1.
J[…] N[…] (“
Appellant”
) lodged
an appeal against the conviction and sentence imposed on him by the
Ga-Rankuwa Magistrate’s Court on 28 August 2014
after having
been found guilty of contravening Section 126(b),
Firearms Control
Act, 60 of 2000
and contravening
Section 3
, Sexual Offences Act, 32
of 2007. The former charge concerns pointing an object which is
likely to lead a person to believe
it is a firearm, while the latter
charge concerns violent sexual violation (rape).
2.
The trial court sentenced the Appellant to three years and 10
years
respectively and ordered that the sentences were to run
concurrently. The application for leave to appeal was rejected
by the trial court but Appellant was granted special leave to appeal
both his conviction and sentence on 14 August 2018.
3.
Appellant also applied to
this Court for leave to adduce further evidence, alleging that the
Prosecutor willfully withheld evidence
that would have exonerated him
from the crime of rape. On or about 29 September 2019, this Court
dismissed that application on
the basis that the material sought to
be adduced would not have the effect of changing the outcome.
[1]
4.
Undeterred, Appellant
approached the Supreme Court of Appeal (“
SCA”
).
However, on the 18
th
March 2020, the same fate
befell him with the SCA ruling that “
there
are no special circumstances meriting further appeal to this
court”
.
[2]
Appellant can now only rely on the judgment of the court a quo
without references to any other evidence that may bolster his case.
B.
GROUNDS OF APPEAL
5.
Appellant submits that
the court
a
quo
materially
misdirected itself in the acceptance of the facts of this matter in
circumstances where the evidence was so weak and
contradictory in
material respects that it could not have led to Appellant’s
guilt being proven beyond a reasonable doubt
[3]
6.
This submission is
buttressed by an assertion that there were material contradictions
between the evidence of the complainant and
that of her corroborating
witness, I[…] M[…], the police statements and the
testimony of the investigating officer.
As a result, the
submission is that the trial court misdirected itself to the extent
that the misdirection “vitiated proceedings”.
[4]
7.
The contradictions and
improbabilities related to,
inter
alia
,
the relationship between the complainant and appellant, the time they
arrived at the venue, the extent of lighting at the venue
and crime
scene, the number of people that approached them on their way home,
who noticed the toy gun and identified it later,
who picked the
cellphone at crime scene, the incorrect testimony of Officer Masilo
about the whereabouts of the complainant’s
panty, the
intoxication levels of the complainant, and whether Appellant was
taken to hospital or fled into the van.
[5]
8.
It was submitted that
these contradictions in the evidence of the state witnesses “
severely
affected the reliability and probative value of their evidence
”
and were completely
disregarded by the Learned Magistrate. Further, the Leaned
Magistrate drew inferences which were “irrational
and
inconsistent with the proven facts.”
[6]
However, it is not clear what the proven facts were.
9.
The Respondent disagreed
with the Appellant’s submissions and submitted that the
court
a quo
did
not misdirect itself on the facts presented. The argument was that
when reaching the decision to convict, the Learned Magistrate
weighed
all the evidence which illustrated the culpability of the accused
against those indicative of his innocence and concluded
that the
State has discharged the onus.
[7]
C.
LEGAL PRINCIPLES ON APPEAL
10.
The findings of the trial
court are presumed to be correct and “in the absence of
demonstrable and material misdirection by
the trial court”
these conclusions and findings will only be disregarded if the
recorded evidence shows them to be
clearly
wrong
”
.
[8]
(
own
emphasis
).
11.
This well settled
principle derives from the acknowledgement that the trial court,
being steeped in the arena of trial, is best
suited to make findings
on the credibility of the witnesses by closely observing their
demeanor to determine propensity to the
truth, or to lie, as the case
may be.
[9]
Hence, the finding
that the State has discharged its onus to prove the guilt of an
accused beyond a shadow of doubt follows a positive
finding and
acceptance of the State’s evidence.
[10]
12.
It is an onus that lies
on the State to prove the guilt of an accused beyond reasonable.
To that end, all reasonable possibilities
other than the one pointing
out to the guilt of the accused must be excluded……”
[11]
On the other hand, “
a
mere preponderance of probabilities is not enough. Equally
trite is the observation that, in view of this standard of proof
in a
criminal case, a Court does not have to be convinced that every
detail of an accused’s is true. If the accused’s
version
reasonably possibly true in substance, the Court must decide the
matter on the acceptance of that version. Of course,
it is
permissible to test the accused’s version against the inherent
probabilities. But it cannot be rejected merely because
it is
improbable: it can only be rejected on the basis of inherent
probabilities if it can be said to so improbable that it cannot
reasonably possibly be true
”
[12]
13.
A material misdirection
will obviously lead to a wrong conclusion of guilty verdict.
But such is a result of an exercise of
appreciation that the trial
court, after weighing all the elements which points towards the guilt
of the accused against those
that are exculpatory, and taking the
inherent improbabilities, failed to exclude that the accused version
may be reasonably possible
true.”
[13]
In
S
v Radebe,
the
Court expounded on this formulation of the onus: “
Whether
I subjectively disbelieve him is, however, not the test. I need
not even reject the State case in order to acquit
him. It is
enough that he contradicts other acceptable evidence. I am
bound to acquit him if there exists a reasonable
possibility that
that his evidence may be true. Such is the nature of the onus on the
State
”
[14]
14.
Moreover, an
ex
post facto
determination
that one aspect of the evidence was decisive should not tempt the
trial court to latch onto that “
aspect
without assessing it in the context of the full picture presented in
the evidence”.
[15]
15.
The Court will interfere where the sentence under review:
15.1
is not one that a reasonable trier of facts can impose, or
15.2
that it is totally out of proportion to the gravity or magnitude of
the offence, or
15.3
that it evokes a feeling of shock or outrage or
15.4
that it is grossly excessive or insufficient, or
15.5
that it was in the
interest of justice to alter it.
[16]
16.
There lies a burden on
the State to prove the case against accused beyond a reasonable
doubt. The accused does not bear any
burden to convince the
Court that his explanation is true
[17]
.
The explanation given by the accused, even if improbable, must be
considered and the Court must be satisfied that not only
is it
improbable, but false beyond any reasonable doubt. “
If
there is a reasonable possibility of his explanation being true, then
he is entitled to an acquittal
.”
[18]
D.
THE PRESENTED EVIDENCE
17.
It was New Year’s Day when complainant, accompanied by her
brother/cousin
I[…] M[…] M[…] (“I[…]”)
and a friend N[…] B[…], went to Slovo Park in
Winterveld
to attend a social event. They went there at around
20h00 (her version) or 23h00 (I[...]’s version). While
enjoying
music, they had some drinks. She drank two or three Red
Square. I[…] was moving around the Park socializing with
his
acquittances.
18.
At around 02h15 on the 2
nd
January, the trio decided to
head home. While walking in the Park area, a group of
eight men passed them. Three
men turned around and pointed
firearms. They ran, scattering in different directions.
One of the men grabbed complainant
and pointed an object, she
perceived as a firearm at her. He pulled her into the bush.
It was dark in that area.
19.
Still pointing the gun at her, he ordered to undress and when she
refused, he
forcibly undressed her by removing her jacket, short
pants and underwear. He then instructed her to lie down, pulled his
trousers
to his knees, placed the gun on the ground and then
proceeded to rape her.
20.
After a while, she heard someone calling her name. It turned out to
be N[…],
who was with I[…]. The appellant
instructed her to get up and walked behind her. He pointed his
gun to the approaching
persons and shouted that he will shoot them.
While he was pointing the firearm at the approaching persons, she
managed to grab
her pants. She also shouted hat he was holding
a toy gun.
21.
At this point she manage to escape and run in the opposite
direction.
The approaching persons came for the appellant, and
he ran into the bush. The group of people led by I[…]
caught up
with and dragged him to a community member’s house in
the vicinity. He was assaulted during this period.
22.
The Police arrived, and he ran into the police van. Thereafter,
he was
taken to Loate Police Station. Where the complainant saw him
being escorted into the building.
23.
I[…] testified that when they left for home at around 02h20, a
person
pointed a firearm at them shouting “
voetsek,
voetsek
”. They all scattered into different directions.
When he realized that his cousin was missing, he went home, took a
golf club,
and went to look for her. He met N[…] and
they went back to the Park. They mobilized other people to
assist
in the search. They called complainant’s number and saw
the cell phone illuminating on the ground in the bushes. They
were shouting her name when they saw two people next to a tree in the
bushes.
24.
He heard someone shouting that it is a toy gun. They saw a
person running
away and set after him. They caught him when he fell
while running away. Complainant told him he took her panties. The toy
gun
fell where the appellant had tripped and fallen in the bush.
Complainant told I[…] he had her panties. I[...] searched him
and found the panty and a screwdriver in his possession.
25.
They then dragged him to the house. One member of the group
called him
by name and exclaimed “
J[…], you the one
who did this
?” The other group members started assaulting
him, dragged him to the Community member’s house and called the
police.
26.
The Police arrived at the Community member’s house and found
the appellant
lying on the ground injured and bleeding. The
complainant told them he raped her. He was then taken to the
Police station.
27.
The State’s submitted the J88 by agreement, after adjourning
the Court
for a few days to have the Doctor testified to its
authenticity. According to this, there was evidence of
penetration as
indicated by the 0.2 cm in diameter tear of posterior
fourchette.
28.
The Appellant testified in his defense. He stated that he
was at
the Park on that day. At around 23h00, he decided to go
urinate about 100 meters from the Park. While there, he was
accosted by people wielding guns. They wanted his possessions
but declined his phone because it was an archaic model.
They
then pistol whipped him and ordered him to disappear.
29.
While he was walking home, he heard a group of people coming up
behind him.
They were shouting “
it is him
”.
He did not run, because he was just robbed a few minutes prior.
He felt a sharp object hit at the back.
He fell down and lost
consciousness.
30.
During his
evidence-in-chief, his Counsel put a version that he fell into a coma
and woke up in hospital some 8 days later.
Appellant was taken
to hospital after being assaulted, a version that is irreconcilable
with the version of the Complainant.
[19]
31.
Officer Masilo testified that he found the Appellant lying on the
ground injured
and took him to the Police station and an ambulance
was called.
E.
EVALUATING THE EVIDENCE
32.
The Appellant attacks the conclusions reached by the court
a quo
and submitted that the Learned Magistrate misdirected himself by
“
glossing over”
material discrepancies and
inconsistencies in the presented evidence. Counsel for
Appellant submitted the witnesses were
inconsistent to the extent of
contradicting themselves in material ways. The evidence they
presented in Court differed in
material aspects from the contents of
the statements they made in court.
33.
The differences and inconsistencies related to the time they arrived
at the
Park, the amount of liquor they consumed, the number of people
who pointed firearms at them when they were on their way home, the
illumination at that time, how the rape actually occurred, how the
identified the Appellant, and the articles I[…] retrieved
from
the Appellant.
34.
What became clear from Counsel’s submissions was that the
witnesses testified
that it was so dark in that area where they were
accosted that they could hardly recognize a person who was 2 meters
away.
The fact that the witnesses contradicted each other on
how many persons pointed a firearm at them bears testimony of that.
35.
Complainant said three men turned on them, pointing firearms
while I[...]
said one person pointed a gun at them. Secondly,
the lack of illumination made it impossible for complainant to make
out
the features and identity of Appellant. Thirdly, it would
have been impossible to see two people at the tree when the search
party was in the bushes. Fourthly, it is improbable that
complainant would have beckoned to the search party when they were
looking for her. Hence, the identity of the Appellant is put in
question.
36.
Crucial to the state case were the articles that were allegedly
retrieved from
the Appellant: a screwdriver, a toy gun and a panty.
Only the screwdriver and the toy gun were presented as evidence
during
the trial. The Police Officer who attended to the scene
could not remember how the items were captured in the SAP 13.
He did not even remember if he saw the panty or the screwdriver on
the scene.
37.
I[…] had testified that he took a panty, a toy and
screwdriver, after
complainant had told him that the person also took
her panty. The complainant had testified that the toy gun had a
sellotape on
the butt. But the toy gun which was introduced an
exhibit, did not have sellotape. No fingerprints were lifted
from
these items. Counsel for Appellant submitted that the
erratic chain of custody could not be established during the trial
and that admitting such evidence amounted to a misdirection by the
trial court.
38.
This Court was concerned about the chain of events relating to the
whereabouts
of the assaulted person who was detained by the mob led
by I[…]. The complainant testified that she saw him run
into
the Police van fearing further attacks. The Police Officer
testified that an ambulance was called to the scene as he found
an
injured person lying on the ground at the scene. He said he
treated. He does not recall when he was taken to hospital.
39.
Complainant further testified that she saw him at the Police Station
building.
On the other hand, Appellant testified that he was
badly injured and had fainted at the scene. He was taken to the
hospital
from there. His Counsel at trial put this version to
the complainant, but she insisted she saw him run into the Police
van.
There was no evidence adduced that he was at the Police
Station or at the hospital that early morning after the assault.
40.
The State Counsel could
not shed clarity on the inconsistencies raised except to submit that
it “
was
a moving scene
”
and
there was sufficient illumination for complainant to see the
Appellant. Yet even the Learned Magistrate stated in the
judgement that “
the
place was dark, so much that she would not be able to identify
someone close to her, more so if that person was a stranger
”
.
[20]
Moreover, complainant could not remember the clothes Appellant was
wearing. She was dragged for a distance of 100 meters
to the scene of
rape, hence, she could only see him from the side. But this cannot be
her only view as he would have had to be
on top of her during the
course of the rape.
41.
The Learned Magistrate further stated that I[…] could only
identify the
appellant because he found him with the complainant in
the bush. When the appellant started running, he was only seven
paces
away and there was nothing to obscure his view as the area was
only infested with small shrubs
.
. He had the
appellant in his sight while giving chase. The evidence
indicated that it was bush, though. If the Learned
Magistrate
was correct, the rape would have taken place within view of people at
the park.
42.
The Learned Magistrate
phrased the problem as one of identity. He quoted
S
v Mthethwa
[21]
on the need for a proper approach to be adopted when evaluating
identity evidence based “
upon
a witness recollection of a person’s appearance
”
and that it is
“
dangerously
unreliable unless approached with caution
”
.
[22]
43.
He went on to state that
“
unfortunately
this incident unfolded in the wee hours of the morning when
visibility was not at its best. The Complainant
was dragged
into the bush where I think things did not improve. For these
reasons she could not give us specific identifying
features of her
assailant save for him being coffee-coloured, tall and slender with a
protruding head and small eyes”.
[23]
No identification
parade was held. The Leaned Magistrate found
not
much
reliance cannot be placed on her identification of the Assailant
because she seen him Assailant I Court on many occasions.
44.
The Learned Magistrate
states that despite certain shortcomings in the State case, he has
determined that there are “
issues
that are important in deciding whether probabilities lead to towards
a finding of guilt rather than of innocence
”
[24]
.
First, both complainant and I[...] refer to a panty which was found
in the possession of the accused which she identified as hers,
a fact
that was not disputed in cross-examination or during appellant’s
evidence-in-chief.
45.
Secondly, they both talk
about the Appellant stating that the complainant was his girlfriend.
Thirdly, “
the
fact that some items of her evidence are not included in her police
statement should be understood in light of the fact that
police
statements are not always taken in detail and in response to
questions and answers like in the courtroom
…”
[25]
More often than
not, important information or facts are excluded while minor
information is included.
46.
Fourthly, it is very probable that improper handling police of
exhibits by police
could have led to a toy gun that did not have a
sellotape. This could also explain why no one seems to know what
happened to the
panty that both Complainant and I[...] referred to
and why it was not part of the exhibits. This improper handling
of exhibits
explains why Officer Masilo could not even remember the
screwdriver that was found with the toy gun.
47.
Fifth, I[...] had the assailant in his sight when he was chasing, and
only alerted
others so that they could lend him a hand. Lastly,
it seems highly improbable that the Appellant just walked casually
when
someone shouted “
there is one of them
” after
having been robbed earlier.
48.
The Learned Magistrate
lamented the level of professionalism exhibited by police, especially
given the lack of DNA evidence in this
matter. He then went on
to state that “
courts
should guard against throwing out the baby with the bath water where
there is no other, or where there is other evidence
available that
points towards the guilt of the accused given the high incidents of
abuse of women
.”
[26]
49.
In light of the above,
presumably the incompetence of and lack of professional handling of
exhibits, the Learned Magistrate stated
he “
accept
as a proven fact that, one, the complainant panty was found in the
accused’s possession after he was arrested.
The fact that
it was NOT handed in as an exhibit or the fact that no one can
account for what happened to it does not detract from
the fact that
the two witnesses corroborate each other
”
.
Secondly, “
the
toy gun that was found in possession of the Accused was the same as
the one that he had earlier pointed at the Complainant and
her
companions before dragging her into the bushes, despite the fact that
the sellotape, which is not a permanent feature of the
toy gun, was
removed under unexplained circumstances.”
[27]
(own emphasis). And
thirdly, her jacket was found at the same spot where I[...]
apprehended him.
50.
The Learned Magistrate concluded that in his opinion, “
all
of the above prove beyond a reasonable doubt that he is the person
who pointed at the complainant with an object that resembles
a
firearm before dragging her further into the bush where he had sexual
intercourse with her against her will.”
F.
APPLICATION OF LAW
51.
The conclusions reached by the Learned Magistrate and the basis on
which he
concludes that there were three proven facts, are not
supported by the evidence adduced during the trial. First, there is
no supporting
proof that the panty was found in the possession of the
Appellant. This proof should have been the recollection of
Officer
Masilo and subsequent entry in the SAP 13.
52.
The Officer who entered the exhibits in the SAP 13, Mathoka, should
have been
called to testify as to what evidence he logged into the
SAP 13, especially after Officer Masilo testified that he does not
remember
a panty being handled at the scene or anytime thereafter.
A mere statement by a witness that a piece of evidence exists without
its production or reasonable explanation of its non-production in
Court is not acceptable as conclusive proof of its existence.
53.
Secondly, complainant described the toy gun as having a sellotape on
its butt.
The toy gun that was produced in Court did not have
that sellotape. The Learned Magistrate takes a leap of faith to
conclude
that it is because of the incompetent handling exhibits by
the Police and whilst that may well be so, no evidence was led in
respect
of how the Police handled this exhibit, let alone how it
became to be an exhibit to start with.
54.
Thirdly, the complainant testified that she went to the scene and
retrieved
her jacket the following day. This jacket was not
entered into evidence. Its relevance to the Magistrate’s
finding
is incomprehensible. I[...] found a cellphone in the dark,
searched the Appellant on the scene and found a screwdriver, a toy
gun
and a panty, but could not see and retrieve the jacket –
this was never explained.
55.
The Learned Magistrate considered the State’s evidence and
found it wanting
in material respects. He was well aware that
the evidence did not conclusively establish the veracity of the
witness’s
versions. He recognized the dangers of relying
on relying on the evidence of the complainant in regard to the
identification
of a stranger under the circumstances where
illumination was non-existent.
56.
Both the complainant and the corroborating witness, I[...], could not
give a
satisfactory account on the material facts surrounding the
events of the night. What the Court is faced with is that they
only agreed on one thing: it was dark and hard to see even the person
next to you. What follows thereafter is conjecture
and
speculation.
57.
We agree with the
submission by Appellants’ Counsel that the
ratio
decidendi
in
Carneiro
v The State
[28]
is on all fours with the
matter i
n
casu
:
the Learned Magistrate, well aware of the material discrepancies in
the evidence of the Complainant and I[...], proceeded to hold
that
the evidence could be relied upon to discharge the State’s onus
to prove the guilt of the accused beyond a reasonable
doubt. As
Mathopo AJ (as he then was) stated in
Carneiro
(supra), where a trier of
facts glosses over material differences in the testimony of
witnesses, the result is a misdirection which
necessitates the Appeal
Court to interfere.
58.
The Learned Magistrate misdirected himself when he ignored his own
finding that
it was so dark that identification was impossible.
He further misdirected when he held that I[...] had a clear view of
the
running assailant because it he was running in a shrub as opposed
to a bush. He further misdirected himself when he found
that
police incompetence justifies the introduction and acceptance of
exhibits where their admissibility is questionable and no
proper
evidence was led as to the chain of evidence.
59.
The trial court was
ultimately confronted with at least three versions: from the
complainant, the witness and the accused himself.
Properly
viewed, all three versions were destructive of the other. All
could not be true at the same. Logic would dictate
at least one
must be true.:
[29]
In
Doorewaard
,
the Court stated that “
In
order to determine the objective truth of the one version and the
falsity of the other, it is important to consider not only
the
credibility of the witnesses but also the reliability of such
witnesses. Evidence that is reliable should be weighed
against
the evidence that is found to be false and in the process measured
against the probabilities. In the final analysis,
the Court
must determine whether the State has mustered the requisite
threshold, in this instance, proof beyond reasonable doubt”.
[30]
60.
When confronted with
contradictions the trier of fact must evaluate the probative value of
such evidence taking into account various
factors such as “
the
nature of the contradiction, their numbers and importance, and their
bearing on other parts of the witness’s evidence
and their
bearing on other parts of the witness’s evidence.
”
[31]
61.
The factors that affected the State’s witnesses’
credibility and
made their evidence unreliable have been alluded
earlier, but they include,
inter alia
, the timeline of
events from the time they were confronted by an assailant or
assailants, the illumination at the venue and scene
of crime, the
mutually destructive versions of the witness and the accused on the
confrontation, as well the chain of custody in
respect to the
exhibits and their admissibility in Court.
62.
The Learned Magistrate
failed to appreciate the need for independent and verifiable evidence
linking the Appellant to the crime,
given the discrepancies and
inconsistencies in the complainant’s and other State witness’s
testimony.
[32]
By simply
“glossing over” discrepancies, he misdirected himself and
reached wrong conclusions in fact and law.
[33]
63.
One must also bear in
mind that there is no
onus
on an accused and a court
even though it may have misgivings about the totality of an accused’s
version, must not then simply
ignore it. If there is any possibility
that it may be reasonably possibly true, then he is entitled to an
acquittal.
[34]
64.
In conclusion, after a careful analysis of the totality of evidence,
I am of
the view that the Appellant’s version is reasonably
possibly true and that, as a result, the Court
a quo
committed
a serious misdirection in finding that the State proved its case
beyond a reasonable doubt.
65.
Consequently, the following order is made:
(a)
The appeal is upheld.
(b)
The conviction and sentence is set aside
and replaced with the
following order:
The accused is found not
guilty and discharged
SEKHULA AJ
Acting Judge of the High
Court Gauteng Division,
Pretoria
I agree
NEUKIRCHER J
Judge of the High Court
Gauteng Division,
Pretoria
Date of bearing: 22
February 2021
Judgement _5_March 2021
Hearing conducted via
videoconferencing
Delivered:
This judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically
by circulation to the
parties/their legal representatives by email and by uploading it to
the electronic file of this matter on
CaseLines. The date for
hand-down is
deemed
to be __5__March 2021.
For appellant: Adv
Louw and with him Adv Hewitt
Instructed by: Legal-Aid
SA
For respondent: L
Williams
Instructed by: NDPP
[1]
Vide, Appeal Record, at
page 07-2.
[2]
Vide, Appeal Record,
page 08-2.
[3]
Vide, Appeal Record at
page 02-17.
[4]
Ibid.
[5]
Vide, Appeal Record at
page 02-21.
[6]
Ibid, at page 02-23.
[7]
Ibid at 01-8.
[8]
Vide, S v Monyane and
Others,
2008 (1) SACR 543
(SCA) at 15.
[9]
R v Dhlumayo &
Another
1948 (2) SA 677
(A).
[10]
Masuku
and Another v S (A402/2019) (2021) ZAGPPHC 6 ( 12 JANUARY 2021)
(
Where
the State’s evidence is accepted, the multiplicity of
contradictions inherent and unexplained improbabilities in the
accused’s version only lead to the conclusion that the
Accused’s version cannot be reasonably true)
[11]
R v Difford1937 AD 370
[12]
S V Shakell
2001 (2)
SACR 185
(SCA)
[13]
S v Tshabalala 2003 (1)
SA SACR (A), S v Mdiniso (2010) ZAECGHC 18 (18 March 2010)
[14]
1991 (2) SACR 166 (T).
[15]
Ibid.
[16]
Sv Mothibe
1977 (1) SA
823
(A); S v Masilela 2000(1)SACR 571(W)
[17]
R v Difford
1937 AD 370
at 373.
[18]
Ibid. see also, R v
Ndlovu
1945 AD 369
at 386, R v Britz
1949 (3) SA 293
at 302.
[19]
Ibid at page 02-21.
[20]
Appeal Record at page
03-129.
[21]
1972 (3) SA 766
(A)(
Because
of the fallibility of human observation, evidence of identification
is approached by the Court with some caution.
It is enough for
the identifying witness to be honest. The reliability of his
observation must also be tested”.
)
[22]
Appeal Record at page
03-140.
[23]
Ibid at page 03-142.
[24]
Ibid at page 03-143.
[25]
Ibib.
[26]
Ibid at page 03-145.
[27]
Ibid at page 03-146
[28]
(A125/2010) [2018]
ZAGPJHC 66 (28 March 2018)
[29]
Doorewaard and Another v
The Sate (case No. 908/2019)
[2020] ZASCA 155
(27 NOVEMBER 2020)
[30]
Ibid
[31]
S v Mokhose 1990 (1)
SACR 95 (A)
[32]
Dooreward and Another v
State,
supra.
[33]
Carneiro, supra.
[34]
R v
Difford
1937 AD 370
at 373