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[2018] ZAFSHC 62
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S v Khabane and Others (R22/2018) [2018] ZAFSHC 62 (19 April 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Review
number: R22/2018
In
the matter between:
THE
STATE
and
PHEHELLO
KHABANE
THABANG
MOKGOJE
THABANG
BENJAMIN MAPHIKE
CORAM:
MATHEBULA,
J et MHLAMBI, J
DELIVERED
ON:
19
APRIL 2018
[1]
The accused persons were arraigned on a charge of robbery in the
Virginia Magistrate Court. At the outset of the trial
they
pleaded not guilty and did not tender a plea explanation. On 31
May 2017 they were found guilty as charged and sentencing
proceedings
commenced with the state proving their previous convictions.
They all admitted to their previous convictions
as recorded in the
SAP 69s. The learned magistrate exercising the provisions of
the Criminal Procedure Act 51 of 1977 (“the
CPA”)
transferred the matter to the regional court for sentencing
purposes.
[1]
[2]
The matter served before Regional Magistrate Meintjies who on reading
the transcribed record raised certain queries regarding
the
convictions. Her concerns centred around the findings of the
district magistrate on two (2) issues viz:- identification
of the
accused persons and the inference made which was inconsistent with
the proven facts. This matter is before us in terms
of section
116 (3) of the CPA.
[3]
The facts are briefly as follows. On 22 December 2016 in the
afternoon, the complainant Win Long Chin (a Chinese businessman)
was
accosted by two male persons while walking alone in Government
Street, Virginia. They both approached him from the back.
He testified that accused number 1 took all his money that was in a
plastic bag and searched him while accused 2 was holding him
tight
from the back. The entire episode was over in approximately
five (5) minutes and they made off with R11 500.00
of his money.
[4]
He attempted to follow them but accused 2 picked up a stone and hit
him with it. He sustained bruises on his arm. The
incident left
him scared and traumatized. He reported the matter to the
police and at no stage was he called to attend an
identification
parade.
[5]
The evidence of the members of the Police Service is that they
received a complaint of a robbery from the complainant.
Acting
on a tip-off they proceeded to the residence of accused 3. On
arrival they found accused 1 and 3 counting and sharing
money on the
bed. Constable Tseitsi enquired from accused 1 about the origin
of the money. Accused 1 replied that they
robbed the Chinese
man (complainant). Accused number 3 did not say anything.
In total they recovered the sum of R363.00
from them.
[6]
Accused 2, when he saw the police approaching, tried to make a dash
for it. He was pursued and swiftly apprehended by
Constable
Nkhobo. He returned with him to join his co-accused at the
residence of accused 3. He was searched and R5
coins were found
in his pockets and tekkies. In total he had R85.00 on him.
He was also arrested with the others.
[7]
The accused persons denied that they were involved. Identity
was placed in dispute. According to them they were
all sitting
and enjoying alcoholic beverages since midday at the residence of
accused 3 when they were surprised by the arrival
of the police at
around 16H00pm. They were sitting outside because the house is
small and that accused 3’s girlfriend
was sleeping on the bed.
Accused 1 and 3 denied that they were found counting money on the
bed. Accused 2 testified
that he was approached by a police
officer on his way to the tavern to replenish their supplies.
He was frogmarched back
to the residence of accused 3.
According to them they did not admit any involvement in the robbery
of the complainant and
were assaulted by the police. They
confirmed that they all searched and a measly amount of R363.00 was
found in their possession.
[8]
Evidence relating to identification is problematic and needs to be
approached with caution particularly where there is a single
witness. In order to determine whether the witness has
identified the person correctly beyond reasonable doubt, the
observation
must not only be credible but reliable. The dictum
of the Appellate Division in
S
v Mthethwa
[2]
is instructive. On that occasion the court said the following:-
“
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 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, build, 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 a 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; see cases such as R. v
Masemang,
1950
(2) SA 488
(AD)
;
R. v Dladla and Others,
1962
(1) SA 307
(AD)
at
p. 310C; S. v Mehlape,
1963
(2) SA 29
(AD)
.
”
[9]
The relevant part of the complainant’s evidence in chief
relating to the identification of accused 1 and 2 is contained
on
page 3 line 4 to 20 which reads as follows:-
“
COURT:
Just a second. Where was the money? -- The note I put in
my pocket. But the coin, I used the plastic bag to hold
in my hand.
And how many persons
attacked you? -- Two people.
What
did they do to you? -- They from back, one hold me and then
when I turn back, in front of me a people took my money from
my
hand. Even search my pocket.
Was
it still the same person, or another person as well? --
Same person, but two people.
You
may proceed.
PROSECUTOR:
Did you see the people who attacked you? -- Yes.
Can
you identify them? -- Yes, I can.
Do
you see them here in Court today? -- Accused is pointed
out … Sorry.
COURT:
The complainant. … The complainant point accused
number 1 and number 2.”
[10]
Cross examination did not reveal much. According to the
complainant’s statement deposed to the police on the day,
he
stated that he would be able to identify the “one who was
wearing a blue and white T-shirt, dark in complexion with no
hair”.
Further that he was uncertain with the identification of the other
assailant because he was confused.
On 16 March 2017 it was the
second time that he pointed out accused 1 and 2. He
unequivocally testified that he did not see
accused 3 on the day and
it was the first time he saw him on 16 March 2016.
[11]
There are certain negative aspects of the complainant’s
observation which the learned magistrate did not deal with in
her
evaluation of the evidence. The occurrences of the day unfolded
for a relatively short period. The assailant’s
approached
the complainant from the back and one held him tight while the after
proceeded to search him. In his statement
to the police the
complainant stated that he was unable to identify the second
assailant because he was confused. This implies
that the
fluidity of the events did not allow him to make proper observation.
[12]
The complainant did not testify about any distinct physical features
of any of the accused persons. His description of
accused 2 was
limited to dark complexion and shaved head. This refers to the
accused who was wearing a white T-shirt.
This description is
unhelpful to point in the direction of accused 2. It could
easily have fitted thousand other men in that
area at that time.
The description of the clothing did not advance the matter to any
great lengths. There is a contradiction
whether accused 2 was
wearing a white or white and blue T-shirt on that day. Even if
there was none, without any distinct
feature about the T-shirt, not
much weight can be put on this part of his evidence. The
conclusion is that the complainant
did not have the sufficient
opportunity to make the proper observation of his assailants.
[13]
The reasoning of the learned magistrate that the complainant saw two
instead of three assailants demonstrated his honesty is
flawed.
Honesty is not the only determinant factor but the reliability of his
observation must be scrutinised as well.
[3]
Both accused were unknown to him prior to that day and one would
expect accurate description of the facial characteristics
to take
centre stage. In this matter the complainant made bold and
unsubstantiated statements. The fact that he steadfastly
stuck
to his guns and said it was them, swayed the learned magistrate to
misdirect herself in the evaluation of the evidence.
The
complainant did not mention anything implicating accused 1 except to
say that it was him. There is no basis to convict
on the basis
of his evidence.
[14]
This is a classic textbook case of dock identification. The
complainant was invited to identify the accused persons who
were
sitting in the dock. He simply pointed them out. The
danger of dock Identification was eloquently articulated
in
S
v Maradu
[4]
in the following manner:-
“
This
passage affords a good illustration of the danger of accepting
evidence of identification in the circumstances of this case.
Once the witness, Pantelis, sees the persons in the dock he feels
reassured that he is correct in his identification, even though
it
may not have been the position were they not there. To any
member of the public, such as Pantelis, the fact that an accused
is
standing in the dock must naturally be suggestive of him being one of
the parties involved in the crime, and no witness can
be blamed for
making such an assumption, even though it is incorrect. In
England the Devlin Committee has recommended that
dock identification
should become a purely formal matter allowed only where
identification had been made by a parade, unless the
Judge takes the
view that to hold a parade would be impractical or unnecessary,
depending on the circumstances of the case”.
I
align myself with the views expressed in this passage. The
learned magistrate misdirected herself by not applying the necessary
caution.
[15]
Accused 3 was convicted on the strength of the information received
by the police about his involvement in the commission of
the
offence. This prompted the police to proceed to his residence.
On their arrival there, they found accused 1 and
3 counting and
sharing money. The learned magistrate drew an inference that he
was part of the persons who robbed the complainant.
[16]
The complainant categorically stated that he was accosted by two (2)
persons. The “informer” was not called
as a
witness. Any evidence about the informer is hearsay evidence
and cannot be relied upon by the learned magistrate.
There is
no basis in law to accept that evidence and this constitutes
misdirection on the part of the learned magistrate.
[17]
Applying the principles laid down in
R
v Blom
[5]
,
the learned magistrate concluded that the only inference to be drawn
from the facts is that all accused persons acted together
in robbing
the complainant. Regrettably she applied the principles in an
incorrect manner.
[18]
As the regional magistrate stated in her letter dated 12 January
2018, there is no specific link between the money that was
being
counted by accused 1 and 3 as well as the money robbed from the
complainant. Further the amount of money found in their
possession pale into insignificance when compared with the amount of
money robbed from the complainant. The link is too remote
and
the only inference drawn that the accused persons are the ones who
robbed the complainant is incorrect.
[19]
Accordingly, I make the following order:-
19.1. The convictions of
accused 1, 2 and 3 are set aside.
__________________
M.
A. MATHEBULA, J
I
concur
_______________
J.
J. MHLAMBI, J
/roosthuizen
[1]
Section 116 (1) (b) provides:- “(1)If a magistrate’s
court, after conviction following on a plea of not guilty but
before
sentence, is of the opinion-
……..
(b) that the previous convictions of
the accused are such that the offence in respect of which the
accused has been convicted
merits punishments in excess of the
jurisdiction of a magistrate’s court;”
[2]
1972 (3) SA 766
(AD) at 768 A-C
[3]
See S v Mthethwa supra
[4]
1994 (2) SACR 410
(WLD) at 413 G-I
[5]
1939 AD 202