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[2018] ZAKZPHC 60
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Masondo v S (AR 614/2014) [2018] ZAKZPHC 60 (12 October 2018)
NOT
REPORTABLE
IN
THE KWAZULU-NATAL HIGH COURT PIETERMARITZBURG
REPUBLIC
OF SOUTH AFRICA
CASE
NUMBER
:
AR 614/2014
HEARD
AT
:
PIETERMARITZBURG
DATE
:
12 OCTOBER 2018
SIPHIWE
NKOSI MASONDO – 1
st
APPELLANT
DAVID
BONGINKOSI NDLOVU DLAMINI – 2
nd
APPELLANT
versus
THE
STATE
BEFORE
THE
HONOURABLE JUDGE KRUGER
and
THE
HONOURABLE JUDGE MBATHA
FOR THE
APPELLANT
: MR
I KHAN
FOR THE
RESPONDENT
: ADVOCATE (MS) A
WATT
INTERPRETER
:
TRANSCRIBER
:
KERRY DICKINSON
DATE
TRANSCRIBED
: 12
OCTOBER 2018
CONTRACTOR
Sneller
Recordings (Pty) Ltd • P O Box 1193 • Pietermaritzburg •
3200 Tel 033 3425256 • Fax 033 3941190
JUDGMENT
(12
OCTOBER 2018)
MBATHA
The
appellants were convicted by the regional court, KwaDakuza, of one
count of robbery with aggravating circumstances read with
the
provisions of Section 51 and Schedule 2 of the
Criminal Law Amendment
Act 105 of 1997
. They were both sentenced to fifteen years’
imprisonment.
With leave of the
court
a quo
their appeal on conviction is before this Court.
It is common cause
that on 2 January 2013 the complainant,
Mr Dumisani Lunga,
was assaulted and robbed of money and goods at his tuck-shop in the
Shayamoya area. The charges laid by Lunga
gave rise to the
convictions and subsequent sentences of the appellants.
Pivotal to this
appeal is whether the appellants were identified as the culprits and
if in the light of the evidence presented before
the court
a quo
the appellants’ guilt was proven beyond a reasonable doubt.
Lunga’s
evidence was that the robbery occurred at about 9:30 pm. He had been
seated outside the house with one of his customers
when suddenly a
firearm and a knife were pointed at him by two males who then pushed
him inside the tuck-shop where he was assaulted,
together with his
common-law wife, Ms Nelisiwe Cwele. Lunga was robbed of money,
airtime vouchers, cellphones and a leather jacket.
He testified that
as soon as the robbers left he reported the incident to the police.
Four days later his ten year old son, Yaseen,
identified the first
appellant who had just been to the tuck-shop to buy airtime as one of
the robbers. Lunga followed the first
appellant so as to identify the
place where he lived. He then reported this development to the police
who, upon their arrival,
took him to the first appellant’s
place of residence. At the first appellant’s place of residence
the police left with
the first appellant for the second appellant’s
place of residence.
Lunga testified that
he identified the appellants by their complexion, one was fair in
complexion and the other dark skinned. He
testified that the room
where the robbery took place was part of a two-roomed RDP house,
small in size, which was illuminated by
a fluorescent electrical
light.
According to Lunga
the entire incident lasted for about ten minutes.
After the arrest of
the appellants Lunga attended an identification parade where he
positively identified the appellants. He testified
that he initially
made a mistake of identifying a wrong person before making a positive
identification of the second appellant.
The evidence
relating to the identification parade was confirmed by Lieutenant
Nxumalo.
The State also led
the evidence of Warrant Officer N K Naidoo, the officer who arrested
the appellants. Naidoo’s evidence
was that Lunga informed him
that through his own investigation he had found the persons who were
responsible for the robbery committed
against him. Naidoo was
informed that it was
Nkosi and Mdav and was taken by Lunga to Nkosi’s place of
residence.
The first appellant
was found at home sleeping. He was asked by Naidoo to direct them to
the place of residence of Mdav (the shortened
form of David), the
second appellant. The appellants were then arrested at the instance
of the complainant without any further
investigation by the police.
Naidoo’s evidence was that Lunga never mentioned to him that
the first appellant was identified
by his ten year old son, Yaseen.
The court
a quo
invoked the provisions of
Section 186
of the
Criminal Procedure
Act 51 of 1977
and called Cwele and Yaseen as witnesses. However,
Yaseen was not available.
Cwele testified as
to how the incident unfolded on the day of the robbery. She made a
dock identification of the appellants only
on the basis of having
seen them in court on previous occasions when they attended court.
Cwele was not able to give any identification
features of the robbers
although, according to her, the robbers were inside the house for
about fifteen minutes and in her view
throughout the entire incident.
The most intriguing part of her evidence was that Yaseen was in
another room watching television
and not where the robbery took
place.
According to Cwele, Yaseen heard that
there were criminals inside the
tuck-shop and decided to hide. She confirmed that her statement was
not before the court as police
officers only took Lunga’s
statement.
It is trite that the
powers of the court of appeal are limited. It can only interfere with
the trial court’s judgment if there
is a misdirection on law or
on the facts as stated in various
dicta
, including
S v
Bailey
2007 (2) SACR 1
(C),
R v Dhlumayo and Another
1948
(2) SA 677
(A).
It is common cause
that Lunga and Cwele were not able to make out a proper
identification of the robbers though they were all in
close proximity
to them in a small room which was well lit with fluorescent lights
and the robbers were in their presence at least
for about ten
minutes. Disturbingly, a child of ten years who was not in the
presence of the robbers claimed to have been able
to identify them.
Their failure to identify the robbers could be attributed to the
traumatic nature of the events and the unexpected
way in which they
unfolded. Irrespective of this disturbing feature of their evidence
the court
a quo
accepted that they were positively identified
on the hearsay evidence of the child, Yaseen, who was not even called
as a witness
as to the identification of the first appellant.
To compound matters
Lunga did not inform the police that it was the child who identified
the first appellant. The only reasonable
conclusion that one can
accept is that the first appellant was pointed out due to the
imaginativeness of the child, Yaseen, and
his eagerness to assist in
the finding of the suspects.
There is a plethora
of judgments dealing with the adequacy of identification. These
authorities caution about the fallibility of
human nature as regards
to the acceptance of identification evidence. (See
S v Mthethwa
1972 (3) SA 766
(AD) 767–768 and
R v Shekelele and
Another
1953 (1) SA
636
(T)).
A person who gives
evidence has to give some form of description of he person, including
facial features, build, gait or any remarkable
feature for purposes
of identification. Lunga merely said that one was fair complexioned
and the other was dark skinned which falls
short of what is required
in terms of the law to positively identify a person. His evidence
materially lacks the most obvious identification
points like facial
features, more so as the robbers’ faces were not covered. These
identifying and distinguishing features
are important, particularly
to a person who has no prior knowledge of the assailant.
Lunga participated
in the identification parade where he already, not once but a number
of times, had had sight of the appellants.
Irrespective of having had
such an opportunity he still made a wrong identification of the
second appellant. This is a clear indication
that Lunga was not able
to identify the robbers.
The State has
correctly conceded that on the totality of the evidence the guilt of
the appellants had not been proved beyond a reasonable
doubt.
The acceptance by
the court
a quo
of the positive identification of the
appellants by Lunga was a misdirection by the court. The court
a
quo
accepted unexplored and uninvestigated evidence which left
the door wide open for a possibility of a mistake. It is accepted
that
in general objects such as cellphone, airtime vouchers and
cigarettes exchange hands very quickly but that should not have
stopped
the police to fully investigate the matter. There was not
even corroborative evidence to support the weak evidence of Lunga as
the appellants were not even found in possession of the stolen items.
The most disturbing
feature of this appeal is that the arrest of the appellants occurred
without any investigation by the police
officers. They were merely
arrested at the instance of the complainant. The second appellant was
arrested only because Naidoo asked
the first appellant where Mdav
lives and he was taken to the second appellant’s place of
residence.
The evidence of
Lunga lacked clarity and logic and was therefore unreliable. It was
riddled with material inconsistencies and contradictions.
First, he
was outside the house when the incident took place whereas under
cross-examination he stated that he personally served
the assailants
inside the tuck-shop. He testified that the children, including
Yaseen, were inside the room where the robbery took
place as against
the evidence of Cwele who stated that Yaseen was not in the room
where the robbery took place. Yaseen was the
person who identified
the suspect that bought airtime but he never disclosed that to
Warrant Officer Naidoo, hence no statement
was taken from Yaseen.
These discrepancies
were apparent from Lunga’s testimony without even venturing
into what was recorded on the police statement
which also materially
contradicted his evidence-in-chief. His evidence was also materially
contradicted by that of Cwele who stated
that Lunga was inside the
house when the first person entered the tuck-shop whilst Lunga
claimed that the two robbers bought cold-drink
from Cwele and it was
only when they were leaving the house that they turned back and
pointed a firearm and a knife at him.
In
S
v
Mafaladiso
en
Andere
2003 (1) SACR 583
(SCA) at
585 in cases where there are material differences between the
witness’ evidence and his prior statement the court
held that
the final task of the judge is to weigh up the previous statement
against the
viva voce
evidence, to consider all the evidence
and to decide whether it was reliable or not and whether the truth
has been told despite
any shortcomings. This means that the Court is
enjoined to consider the totality of the evidence to ascertain if the
truth has
been told.
It is submitted by
counsel for the appellants that the evidence of the complainant is
riddled with contradictions and inconsistencies
on a number of
material issues and I agree with him in this submission.
It is clear from the
record that there are conflicting versions from Lunga on how the
events unfolded on the day in question. The
versions are completely
different from each other.
The second question
that needed to have been considered by the court
a quo
was
whether on the totality of the evidence it can be said that the State
had proved its case beyond any reasonable doubt.
It is trite that in
criminal cases the
onus
rests on the State to prove its case
against an accused beyond a reasonable doubt. In
S v van
der
Meyden
1999 (1) SACR 447
(W) at 448F-G the test is set out as
follows –
“The
onus
of proof in a criminal case is discharged by the State if the
evidence establishes the guilt of the accused beyond reasonable
doubt.
The corollary is that and the corollary is that he is entitled
to be acquitted if it is reasonably possible that he might be
innocent.
(See for example
R v Difford
1937 (AD) 370 at 373
and 383)”
Both appellants
denied being at the scene of the crime and one of them raised an
alibi. The correct approach for the court
a quo
was not to
reject the alibi but should have considered the alibi in the light of
all the evidence and then decided whether the alibi
might reasonably
possibly be true. It is therefore clear that in the light of the
totality of the evidence before the court
a quo
the guilt of
the appellants was not proved beyond a reasonable doubt.
In
S v Nsele
1998
(2) SACR 178
(SCA) the court held that
onus
rested upon the
State in a criminal matter to prove the guilt of the accused beyond a
reasonable doubt, not beyond all shadow of
doubt. It held further
that the court was not required to consider every fragment of
evidence individually. It was the cumulative
impression which all the
pieces of evidence made collectively that had to be considered to
determine whether the accused’s
guilt had been established
beyond a reasonable doubt.
It was therefore
important for the trial court not to have focussed on one component
of the evidence and view that part in isolation
from the other
evidence. It was necessary for the court
a quo
to evaluate the
evidence of the appellants. The court
a quo
appears to have
been exclusively not aware of the defence case which I find to be
irregular. There is no obligation on the accused
to prove his
innocence. If his version is reasonably possibly true he is entitled
to an acquittal.
It is trite that the
judgment of a court of law must be justified by adequate evaluation
of evidence. The learned regional magistrate
applied the incorrect
standard of proof. In appearing to have rejected the appellants’
version on the basis that it was improbable
the magistrate committed
a fatal misdirection. In criminal matters the State must prove its
case beyond a reasonable doubt. An
accused’s version can only
be rejected if the court is satisfied that it is false beyond a
reasonable doubt. An accused is
entitled to an acquittal if there is
a reasonable possibility that his or her version may be true. A court
is entitled to test
an accused’s version against the
improbabilities. However, an accused’s version cannot be
rejected merely because it
is improbable.
In the light of the
aforesaid I propose the following order –
·
THE APPEAL IS UPHELD
.
·
THE CONVICTION AND SENTENCE IMPOSED BY THE REGIONAL COURT ON 24
JULY 2014 IS SET ASIDE
.
KRUGER J
I
agree and it is so ordered.