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[2019] ZAFSHC 105
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Radiboke v S (A14/2018) [2019] ZAFSHC 105 (25 June 2019)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Case
No : A14/2018
In
the matter between:-
PAKISO
RADIBOKE
Appellant
and
THE
STATE
Respondent
CORAM
:
MATHEBULA,
J
et
MOLITSOANE, J
HEARD
ON
:
25 MARCH 2019
JUDGMENT
BY
:
MOLITSOANE,
J
DELIVERED
ON
:
25 JUNE
2019
[1]
The Appellant stood trial in the Magistrate court of Wepener on a
charge of malicious injury
to property. He was convicted as charged
and was sentenced to pay a fine of R 2 000 or four months
imprisonment which was suspended
in whole for a period of three years
on certain conditions. He felt aggrieved by the conviction and he
appeals against the conviction
with leave of the trial court.
[2]
The evidence of the state was narrated by a single witness, the
complainant. She testified that
she was asleep at her home at about
1am in the morning when she received a call about an incident
happening at another house situated
at number 262 in Wepener. This
house belonged to her relative. She woke up and went to the said
address. Upon her arrival at the
said address she saw someone peeping
through the windows. She opened the gate and that person ran away.
The said person, while
running away, tried to look back and at that
stage the Apollo light went on and she identified that person as the
appellant. She
later found that two windows of the said house were
broken.
[3]
The accused denies the allegations against him and specifically
denies being on the scene of
this incident.
[4]
The following are in summary the grounds of appeal on the
conviction:
1.
That
the court a quo erred in failing to apply a cautionary rule in the
evidence of the complainant who was a single witness.
2.
The
Court a quo erred in finding that the identity of the appellant was
proven beyond a reasonable doubt.
3.
The
Court erred in finding that the State had proved its case beyond a
reasonable doubt;
[5]
The evidence of the state is based on the evidence of a single
witness. A conviction may follow on
the evidence of a single
competent witness. It is settled that the evidence of a single
witness must be approached with caution.
In
S
v Sauls and Others
1981(3) SA 172at 180 E-G the court said the following:
“
There is no rule of thumb test
or formula to apply when it comes to consideration of a witness…
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 his testimony, he is satisfied that the truth
has been told.
The cautionary rule referred to by De Villiers JP in
1932(in
R v Mokoena
),
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
witness’ evidence where 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.”
[6]
The issue of the identity of the appellant is also in dispute in this
case. Such evidence
should also be approached with caution. In
Charzen and Another
2006 (2) SACR 143
(SCA) at par [11] the
following was said:
“
But, as our courts have
emphasised again and again, in matters of identification, as honesty
and sincerity and subjective assurance
are simply not enough. There
must in addition be certainty beyond reasonable doubt that
identification is reliable, and it is generally
recognised in this
regard that evidence of identification based upon a witness’s
recollection of a person’s appearance
can be ‘dangerously
unreliable,’ and must be approached with caution”
[7]
In evaluating the evidence of identification the court must be
satisfied that not only that the
evidence was credible but also that
it was reliable. The complainant was a single witness as to the crime
of malicious injury to
property. It is the testimony of the
complainant that she was a retired teacher and that the appellant was
a learner at the school
where she used to teach. According to her she
knew the appellant well. According to her the accused was wearing a
woollen hat with
a hoody on top when she saw him. She managed to see
the appellant when he turned and ran away. She testified that
the following
day when the appellant was arrested he was still
wearing the same clothing. She was adamant that she was not making a
mistake about
the identity of the appellant.
[8]
The learned Magistrate correctly referred to the
case of
R v Dladla
1962 (1) SA 307(AD)
in which the court said
the following:
“
I agree with
the following remarks by JAMES J, in delivering the judgment of the
trial court:
“
One of
the factors which in our view is of greatest importance in a case of
identification, is the witness’s previous knowledge
of the
person sought to be identified. If the person knows the person well
or has seen him frequently before, the probability that
his
identification will be accurate, is substantially increased. In a
case where the witness has known the person previously, questions
of
identification, things like facial characteristics and of clothing
are in our view of much less importance than in cases where
there was
no previous acquaintance with the person sought to be identified.
What is important, is to test the degree of previous
knowledge and
the opportunity for correct identification, having regard to the
circumstances in which it was made.”
[9]
It is common cause that the complainant was
a teacher at the school where the appellant previously
attended. It
is not in dispute that she knew the appellant. What, however, is of
crucial importance is whether the complainant
in this case had ample
opportunity to can identify the person who was peeping through the
window. It is her testimony that she
saw that person when the light
went on. At that stage she was about four metres away from the said
person and at that stage that
person was in the process of running.
During cross examination it appears that he saw the side of the face
of the appellant.
[10]
What is clear to me is that the scene of this
incident was not static. The appellant first saw a person
at the
window when she was about ten metres away. At that stage she
indicates that she could not identify him. When she opened
the gate
the person then turned to run away. On her version when she was
about four metres away an Apollo light switched
on and at
the stage the person was already in motion running away.
[11]
The fact that a witness was unwavering in her testimony
about the identity of the appellant does not necessarily
imply that
her evidence is satisfactory in material respect. The person she saw
was wearing a woollen hat and a hoody which implies
that she could
not have seen his face in totality. The person she saw was in motion
and according to her evidence she saw that
person when the said
person looked back in the process of running. According to her that
person looked at her for about three minutes.
This can hardly be
correct in view of the fact that according to her testimony that
person was running away when he looked back
to his direction. The
court a quo also rejected this notion that the person who was running
away looked at the complainant for
three minutes. In my view the
court a quo erred in finding that the identity of the person who
broke into the house of the complainant
was proven.
[12]
On
the other hand, the version of the appellant is one of a denial. He
denies that he was at the house where this incident happened.
He
testified that on the said day he was heavily under the influence of
liquor. He further testified that he was carrying a container
of his
home made beer. He fell and during the process of falling he
safeguarded his beer but sustained certain injuries during
the fall.
The fact that the complainant saw some injuries on the appellant
later that day when she went with the police to arrest
the appellant
does not provide corroboration to the assertion that he probably
injured himself with the broken glasses or when
he hit the flower pot
or when he jumped over the fence as testified to by the complainant.
If the court were to accept this evidence
of how the appellant
sustained injuries that would amount to accepting
conjecture. In my view there is nothing improbable
about his version
and I find that his version is reasonably probably true. The appeal
should thus succeed. I make the following
order:
[13]
ORDER
1.
The appeal
against the conviction is upheld.
2.
The
conviction and the sentence are set aside.
P.E.
MOLITSOANE, J
I
agree.
M.A. MATHEBULA
On
behalf of the Appellant: Mr M.L.
Tshabalala
Instructed
by:
Bloemfontein Justice
Centre
BLOEMFONTEIN
On
behalf of the Respondent: Adv. R. Hoffman
Instructed
by:
Director of Public
Prosecutions
BLOEMFONTEIN