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[2018] ZAFSHC 3
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Sekgobo v S (A253/2017) [2018] ZAFSHC 3 (11 January 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A253/2017
In
the appeal between:-
MLSEKGOBO
Appellant
and
THE
STATE
Respondent
CORAM:
MATHEBULA,
J
et
MOLITSOANE, AJ
JUDGMENT
BY:
MOLITSOANE, AJ
H
E
ARD
ON:
20 NOVEMBER 2017
DELIVERED
ON:
11
JANUARY 2018
[1]
The accused was charged with the offences of assault with intent to
do grievous bodily harm as well as theft and he was sentenced
to
three years imprisonment on each count. Cumulatively he was sentenced
to six years imprisonment. He felt aggrieved and leave
to appeal both
the conviction and sentence was granted after he successfully
petitioned the Judge President. The appeal herein
was heard on the
20th November 2017 and I immediately granted an order upholding the
appeal and I proceeded to set aside both the
convictions and the
sentences on both counts. State does not support the convictions. I
undertook to furnish my reasons at a later
stage and they are set out
hereinafter. It is a principle of our law that the court will not
lightly interfere with the factual
findings of the trial court unless
there is a misdirection justifying the appeal court to interfere.
[2]
The facts that led to the appellant's prosecution are as follows: On
the 9th February 2014 at about 21h00 the complainant
was walking on
foot to work after he had alighted from a taxi. While so walking he
saw someone walking behind him. The two of them
walked together for a
short distance where after the said person assaulted
complainant with a sable. The complainant sustained
serious injuries.
The cell phone of the complainant fell and that person picked it
up and walked away with it. Months later
the complainant traced his
cell phone through his uncle and thereafter he visited the home of
the appellant on various occasions.
The appellant was arrested on the
14
th
April 2015.
[3]
The main bone of contention is the issue of identity. This incident
happened at night. According to the complainant he was walking
on a
tarred road and there were lights. Complainant testified that he met
the complainant for the first time on the date of the
incident.
He further testified that he managed to see him while they were
walking together as it was lit and they were talking.
When asked
about the distinguishing features of that person complainant
testified that the person had what he called a thin and
long face.
Complainant estimated that the said person was born in the years
1974/1975 but not younger than that. He could not describe
the
clothing that the person had worn.
[4]
The complainant is a single witness with regard to the assault with
intent to cause grievous bodily harm and theft. A conviction
may
follow on the evidence of a single and competent witness,
however, such evidence must be clear in every material
respect.- See
s208
of the Criminal Procedure Act 51
of 1977.lt
is trite law that the evidence of a single witness
must be approached with caution. In
Stevens v S 2005[1
]All SA
1 (SCA) par[15] the court said: "
It is, however, a
well established judicial practise that the evidence of a
single witness should be approached with
caution, his or her merits
as a witness being weighed against factors which militate against his
or her
credibility."
[5]
Over and above approaching the evidence of a single witness with
caution, a further cautionary approach is called upon, where
evidence
of identification is in issue. In
Charzen and Another
2006(2)
SACR 143(SCA) the at par (11] the it 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"
[6]
In evaluating evidence of identification the court must be satisfied
beyond a reasonable doubt that the identification was reliable.
It is
not in dispute that the complainant did not know the person who
attacked him on that fateful night. It is further not in
dispute that
the only description of the distinguishing features the complainant
gave was that the said person had a thin and narrow
face. During
cross examination he said he saw identified him by the manner he
walked. In its judgment the trial court also concluded
that the
complainant gave a general description of his assailant. Complainant
said the assailant was not taller than him and could
as well be
shorter than him and he also said the assailant was thinner with a
smaller face. The trial court indicated that such
a description
fitted many people. In his description, the complainant estimated the
assailant to have been born around the years
1974/1975 but not
younger. It was put to him that if that were the case, then in that
respect his assailant was about thirty nine
years old. It was further
put to him that the appellant was only twenty six years old and that
he could not have been the person
who attacked the complainant.
[7]
Of importance in cross examination the complainant was confronted
with the statement he made to the police. I will refer to
the
following excerpt to illustrate the point:
"On
Sunday the 9
th
of [indistinct) 2014 accused came in at
21:00 I was on my way riding a taxi to work and the taxi driver told
me that he cannot
deliver me at work he has [indistinct] and he left
me on the public road [indistinct]
on my way
back
to the main road
I
heard
something someone hit
me
on my
right side of my head and
I
fell
down to the ground
(my
emphasis) he still
continued hitting me all over my body............"
Later
in the said statement he said:
"....I
slept on ground
because
I
was dizzy I lost
my
(my emphasis)
and
when I woke up I went to Caltex garage ......"
[8]
This piece of evidentiary evidence in the form of the statement made
days after the incident differs materially from the oral
evidence of
the accused before court. In his evidence the complainant painted a
picture that the person joined him in the walk
to work. He testified
that they even had a conversation. In his statement it appears that
he just felt being hit on the head and
he fell down. If this incident
happened in the way that he described it in his statement immediately
after the incident, then it
is my considered view that he couldn't
have seen the person that assaulted him equally so as his version
before court.
[9]
A further impression the accused wanted to paint to the court in his
testimony was that he saw when his cell phone fell and
when the
appellant picked it up. In his statement he says, however, that he
Jost it. It is clear that the complainant was supplementing
his
statement in order that a finding could be made that he was attacked
by the accused person. In this regard I am not satisfied
that his
identification was reliable.
[10]
The appellant was linked with this
offence through calls allegedly made
on a
cell phone bearing the numbers of the complainant. The
people
who communicated on this cell phone were the uncle of the complainant
and another young lady. Both of them were never called
to testify. In
view of my finding of the unreliability of the identification by the
complainant of his assailant, it is my view
that it is not necessary
to deal with this evidence of the cell phone.
[11]
I accordingly find that the trial court erred in finding that the
evidence of identification of the appellant by the
complainant
was reliable and further the trial court erred in finding that the
state had proven its case beyond a reasonable
doubt.
Order:
I
accordingly propose the following order:
1.
The appeal against convictions and sentences on both counts is upheld
2.
The convictions and sentences imposed by the trial court on both
counts are set
aside
____________________
PE
MOLITSOANE, AJ
I
concur.
____________________
MA MATHEBULA,J
On
behalf of appellant: Adv.
SJ REINDERS
Instructed by: Giorgie &
Gerber
65 Nelson Mandela Street
BLOEMFONTEIN
On
behalf of respondent: Adv. M Strauss
Instructed
by:
Directo:rPublic Prosecutions
BLOEMFONTEIN
/ar