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[2018] ZAGPPHC 691
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Ramalepe and Another v S (A342/16) [2018] ZAGPPHC 691 (27 March 2018)
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA) ·
Case
No.: A342/16
27/3/2018
In
the matter between:
PETER
PHASWANE
RAMALEPE
1
st
Appellant
ROMEO MUDE
NDOU
2
nd
Appellant
and
THE
STATE
Respondent
JUDGMENT
MNGQIBISA-THUSI
J:
[1]
The
appellants were convicted of robbery with aggravating circumstances
in the Pretoria Regional court. They were each sentenced
to 15 years
imprisonment.
[2]
The
Supreme Court of Appeal granted both appellants leave to appeal
against conviction and sentence.
[3]
In
brief the state's case is that on 7 February 2012 at or around
Haarhof Street, Villiera, the appellants robbed Mrs Nel of her
motor
vehicle, a green Hyundai Atos after threatening her with a firearm.
[4]
Mrs
Nel testified that on the day in question at around 16h00, she went
to visit a certain Mrs Grabler. After stopping in front
of Mrs
Grobler's garage and was about to get out of her vehicle, she was
approached by three men, one of whom had a firearm. One
of her
assailants hit her on her head and cheek firearm. She pretended to
faint and was dragged out of her vehicle and thrown on
the pavement.
Her assailants sped off in her vehicle. Mrs Nel further testified
that her assailants did not take her handbag in
which was her cell
phone which she used to phone her husband. Mrs Nel admitted that she
was not in position to identify any of
her assailants except that one
of them was wearing a white t-shirt with blue stripes.
[5]
Mrs
Charmaine Coetzee, a witness to the robbery testified that she as
nearby the place where the incident occurred. She corroborated
Mrs
Nel's evidence as to how the robbery occurred. She also could not
identify Mrs Nel's assailants save to say that they were
wearing
bermudas. Furthermore, Mr , Coetzee testified that she was walking
behind the suspects and could not see their faces.
[6]
The next witness called by the State is constable Romeo Motumi Kgotsi
who testified
that at around 16h15, he and constable Shebambo when on
patrol on the boundary of Mamelodi and Villiera they received from
radio
control information about the hijacking of a light green Atos
vehicle. When they spotted the vehicle, they ‘tried to stop
the
vehicle and were forced to make a U-turn and chased it until the
vehicle stopped and the vehicles' two occupants started running
away.
By that time they had called for backup. Constable Kgosi testified
that he managed to apprehend first appellant and second
appellant was
arrested by other officers who had responded to his request for
back-up. Constable Kgotsi further testified that
at the time the
pursued vehicle stopped, he was able to identify its occupants as
they had followed the suspect vehicle until it
stopped. According to
constable Kgotsi, on their arrest first appellant was wearing jeans
and a second appellant, jeans and a blue
t-shirt. Furthermore,
constable Kgotsi testified that they did not see a third assailant
nor was a firearm found when the appellants
were arrested. Further,
it was constable Kgotsi's evidence that in the area where the
appellants were arrested, there were no other
people.
[7]
The
appellants testified that on the day of their arrest they were
walking in the street on their way to a football practice at
a nearby
stadium. They denied involvement in the hijacking of Mrs Nel's
vehicle or her assault.
[8]
The
issue in this appeal is whether the identities of Mrs Nel's attackers
were proven beyond a reasonable doubt.
[9]
On
the issue of identity, the Appellate Division as it then was, in
S
v Mthethwa
[1]
,
Holmes JA stated that:
"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 the 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,
built, 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 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."
[10]
The evidence of the complainant, Mrs Nel and Mrs Coetzee is that they
could not identify Mrs
Nel's assailants except that there were three
and to describe what they were wearing. According to Mrs Nel, one was
wearing a white
and blue striped t-shirt and according to Mrs Coetzee
they were wearing bermudas. Even if one were to accept that Mrs Nel,
due
to the fact that she was being assaulted and could not have been
expected to observe the complete clothing the attackers were wearing,
it is inexplicable why when the police arrested the appellants, they
were found wearing jeans, let alone the colours of the t-shirts
they
were wearing which are different from the t-shirt described by Mrs
Nel. Furthermore, Both Mrs Nel and Mrs Coetzee testified
that Mrs
Nel's attackers were three. Constables Kgotsi testified that when
they spotted the stolen vehicle, they immediately gave
chase until it
stopped and its occupants ran out. There is no explanation as to what
happened to the third suspect. It is improbable,
as surmised by the
court a quo that the third suspect could have been dropped off along
the way as constable Kgotsi had testified
that the only time the
stolen vehicle stopped was when the occupants ran off. Furthermore,
no firearm, as testified to by Mrs Nel
and Mrs Coetzee was found on
either of the appellants or in the vehicle.
[11]
Taking into account the above factors, I
am of the view that the appellants' version that they were on their
way to a football practice
and were not involved in the assault and
robbery is reasonably possibly true. What is disturbing about the
investigation of this
matter is the fact that the police did not
uplift fingerprints from the vehicle in order to verify if either of
the appellants
were in the said vehicle. I am of the view that the
court
a quo
misdirected
itself in relying on the evidence of the police officer on the
identities of Mrs Nel's attackers in view of the contradictory
evidence of Mrs Nel and Mrs Coetzee in this regard. I am furthermore
of the view that the State did not prove beyond a reasonable
doubt
that the appellants were indeed Mrs Nel's attackers. I am satisfied
that this court ought to interfere with the decision
to convict the
appellants on the charges preferred against them.
[12]
In the result the following order is
made:
1.
The
appeal against conviction and sentence is upheld.
2.
The
order of the court
a quo
on
conviction is set aside and substituted by the following order:
'The appellants are acquitted on
all charges'.
NP
MNGQIBISA-THUSI
Judge
of the High Court
I
agree
MP
MDALANA-MAYISELA
Acting
Judge of the High Court
Appearances
For
Appellants: Adv Pruis
Instructed
by: Legal Aid South Africa
For
Respondent: Adv Van As
Instructed
by: Director of Public Prosecutions
[1]
1972(3) SA 766(A) at 768A-C.