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[2016] ZAFSHC 234
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Sekhopa v S (A60/2016) [2016] ZAFSHC 234 (30 June 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A60/2016
In
the appeal of:
MOLEFI
SEKHOPA
Appellant
and
THE
STATE
Respondent
CORAM:
LEKALE, J
et
MURRAY, AJ
HEARD
ON:
13 JUNE 2016
JUDGMENT
BY:
MURRAY, AJ
DELIVERED
ON:
30 JUNE 2016
[1]
On 24 November 2010 in the RegIonal Court, Bloemfontein, the
Appellant and his co-accused, Patrie Lichaba, were convicted of
Robbery with Aggravating Circumstances read with ss 51(2), 52A and
528 of the Criminal Law Amendment Act, Act 105 of 1997, and
of
contravention of s 2 read with ss 1 and 3, and of s 36 read with ss
1, 39(1)(h), 39(2) and 40, of the Arms and Ammunition Act,
Act
60 of 2000, for possession of an unlicensed firearm and ammunition,
respectively. They were sentenced to an effective 12 years'
imprisonment each. On 19 January 2011 the trial court granted the
Appellant leave to appeal against his conviction.
[2]
The appeal serves before this court only now since parts of the
recording in the trial were lost, wherefore sections of the
record
had to be reconstructed from the Magistrate's notes. Even the
judgment had to be reconstructed since it had been delivered
ex
tempore
and there was no trace of its recording.
[3]
The Appellant, as Accused 2, had legal representation for the
duration of the trial. In the appeal Mr J Makhene of Legal Aid
South Africa appeared for him and Ms Lesie-Shale of the Office of the
Director of Public Prosecutions for the Respondent. The State
supported his conviction.
[4]
The Appellant avers that his conviction
cannot stand, however, because the trial court erred
in
finding that the only eyewitness, Ms Margaret Jacobi, correctly and
reliably identified him. Heavers that the Court did
not
properly consider the cautionary rule applicable to her evidence as a
single witness and erred in finding that there was corroboration
for
her evidence. He avers, furthermore, that the Court erred in
rejecting his version and in finding that the State had proved
its
case beyond a reasonable doubt.
[5]
The Appellant pleaded not guilty and gave no plea explanation. He
claimed to have been walking home from work on the day of
the robbery
when he was apprehended by the police for no apparent reason and
accused of having broken into a store that he knew
nothing about. He
averred that he was mistakenly identified as one of the
robbers.
[6]
The background facts, in a nutshell, are that on 3 July 2008 Ms
Magdalena Jacobi and Ms Dikeledi Makateng were at work in the
Hospital Park Store in Bloemfontein when three men entered the store
at around 11h15. One locked the door from the inside and remained
there, the second one walked into the kitchen and threatened Ms
Makateng with a knife, telling her to kneel down and not look at
their faces, and the third walked around the counter, pointed a small
hand-gun at Ms Jacobi and told her to sit on the floor while
he tried
to open the cash register. When he did not succeed, she opened it for
him and gave him all the telephone cards from the
drawer, as well.
She saw him empty the contents of her handbag (cell-phones,
credit cards, cash, etc)
into a pink
shopping-bag with the cash from the till and the phone-cards. The man
with the knife also took her
rings and watch. Ms Makateng's
cell phone, earrings and bus-tickets also disappeared, but neither of
them saw that happen.
[7]
The man with the gun then ordered Ms Jacobi to join her colleague on
the kitchen floor where the one with the knife tied her
hands with
some shoelaces, while the gunman ordered Ms Makateng to come and open
the second till in which the phone-card and lotto
money were kept.
When she could not do so, he ordered Ms Jacobi to come back and open
it. At that stage two customers
tried to enter the store
and she shouted at them not to come in, lifting her tied hands to
show them that something was wrong.
They left and raised the
alarm at the hairdresser and the AAA Meat Market and when several
people responded, the three men fled
on foot.
[8]
The gunman was the last to leave, still carrying the pink
bag with the stolen items. Two Meat Market employees chased
him. They
caught him almost immediately and handed him to the police, who
brought him back to the store. He still had the small
silver gun and
the pink bag with him, as well as the money, phone cards, cell phones
and Ms Jacobi's other possessions.
[9]
The other two men split from the gunman while the Meat Market
employees were chasing them. About an hour and a half later the
police picked up the Appellant (Accused 2) and brought him to the
store, as well. There the two pursuers and Ms Jacobi identified
him
as one of the assailants. He was arrested and charged.
[10]
It is trite that because of the fallibility of human observation,
courts need to treat evidence of identification with caution.
In S v
Mthetwa
[1]
, the Supreme Court of
Appeal warned that:
“
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 as much 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."
[11]
Ms Jacobi easily identified Accused 1 as the man with the gun and
also pointed him out in court. She testified that she knew
him and
recognised his face on 3 July 2008 because he had been in the store
regularly, and was there as recently as the Wednesday
before the
robbery to buy Lotto tickets from her. She also had ample opportunity
to recognise and observe him during the robbery
while she was sitting
behind the counter, when she was assisting him with the two cash
registers and when she watched him emptying
the contents of her
handbag into the pink bag with the money and phone cards which were
all recovered upon his arrest.
[12]
Her identification of the Appellant is a different story altogether,
however. In her police statement she stated that she would
be unable
to identify Accused 1's two accomplices. On her evidence she had
never seen either of them before. She could not remember
the man with
the knife very well, but averred that the Appellant was the third
robber who had remained standing at the door and
that she recognised
his face. She testified that although he had his back to her most of
the time, he continuously looked over
his shoulder to where she was
standing behind the counter, only three to four metres away. Yet on
her own evidence on the gunman's
orders she was sitting on the floor
with her back to the counter and then on her knees in the kitchen,
except when she was opening
the cash register and attempting to open
the second one under threat of the gun. As was submitted on behalf of
the Appellant, she
could therefore have had very little opportunity
to observe the man at the door's face.
[13]
When the Appellant was brought to the store after the robbery and she
was asked to identify him, he was the only person in
the back of the
police van. On her own evidence she had to go back three
or
four times to look at him. Although she averred that she recognised
him the second time around, she still, on her own evidence,
had to
ask Ms Makateng if she was sure it was the man who had been in the
store in order to establish that they were identifying
the right
person. She averred that they discussed it and that Ms Makateng also
said
"but it
is
the man who had stood by the door".
[14]
Ms Makateng, on the contrary, according to the Magistrate's
reconstructed notes, testified that she never looked at the men's
faces and would not be able to recognise or identify either of them.
The
typed part of the record that was available reflects that she
testified that she was not even sure how many people had been
in the
store - she heard two. She knelt on the kitchen floor and crawled
from the kitchen to the second till that she had been
ordered to open
where she remained on her knees behind the counter. She testified
that she only got up when Ms Jacoby screamed
as the men walked out
with her bag, but the men had their backs to her and she never saw
any of their faces. On her own evidence,
and contrary to what Ms
Jacobi had said, she was unable to identify either Accused 1 or the
Appellant when the
police brought them to the
store. This accords with the Appellant's averment that 'the
black lady' said she could not
identify him.
[15]
lnsp Havenga of the SAPS Dog Unit testified that he was
driving in the direction in which the robbers had fled. Although he
said
that he gave a description of the two persons who were still at
large to the other police units, he could not remember either the
description or the colour of their clothing since
"there
was
total
chaos".
[16]
Sgt du Plessis of the SAPS who apprehended the Appellant, confirmed
that they had received no specific description of the two
robbers
they were to pursue, or of their clothing, other than that they were
two young black males. In a side street in Hospital
Park he saw two
people who fitted that description and who split up, with one
crossing to the other side of the street, when they
saw the police.
Sgt du Plessis said he found that suspicious, even though the men
were not running away from the van. By the time
he had turned the van
around at the top of the street, the suspects were no longer in
sight. A little later he saw the Appellant
on another street,
apprehended him, searched him and found
nothing, but
took
him to the scene of the robbery for identification.
[17]
lnsp Havenga conceded that he was “
not 100% sure"
that
the person he eventually picked up was indeed one of the two persons
they had initially pursued. According to him
"it could be
them, it could
not
be
them”.
He
averred, however, that the Appellant was positively identified by the
two employees from AAA Meat Market who had apprehended
Accused 1 and
by Ms Jacobi, all of whom had gone to look at him where he was
sitting all alone in the back of the police van.
[18]
Contrary to lnsp Havenga's averment, however, the relevant Meat
Market employee testified that by the time they arrived on the scene,
the three robbers had already fled around a corner and when they ran
after them, the three split up, with two running off in another
direction, while they pursued only Accused 1. It is most improbable,
therefore, that they could have seen more than the backs of
the two
fleeing robbers, which accorded with Sgt du Plessis' evidence that
the only description they had received was that of “
two
young black men”
[19]
The Appellant's version was that he was walking home with a co
worker shortly after lunch on 3 July 2008 and just as they
split up,
a police van stopped in front of him and uniformed policemen with
drawn guns told him to stop. After searching
him, they put him in the
back of the van and took him to a place where two ladies, one white,
one black, looked at him in the van.
The black lady then told the
police that the Appellant was not one of the men who had entered the
store, while the white lady said
nothing. A little later
the police put Accused 1, whom he allegedly did not know, in the van
with him and drove them
to the police station where they were both
locked up.
[20]
Despite stating that she simply could not remember what she had said
in her
extempore
judgment, on the reconstructed version the
Magistrate held the Appellant to have contradicted himself and to
have departed from
his instructions to the extent that she rejected
his evidence as so improbable as to be not reasonably possibly true.
In her judgment
in the application for leave to appeal
she stated that, although she was certain that she had correctly
concluded
his guilt from the evidence, another court might come to a
different conclusion since his identification depended solely on
Ms Jacobi's evidence, for which the Magistrate found corroboration in
the evidence of lnsp du Plessis.
[21]
As is clear from paragraphs [12] and [13] above, Ms Jacobi's evidence
is shaky, to say the least. In all probability she would
have been so
pre-occupied with the two robbers threatening her with a knife and a
gun, that she would hardly have paid attention
to the person who was
just standing at the door, most of the time with his back to her. On
her own evidence for the greater part
of the incident, she sat behind
the counter only looking over her shoulder from time to time to watch
the gunman struggle with
the cash register. There is no evidence that
in that time she was able to observe the man at the door. The rest of
the time she
was kneeling on the kitchen floor with Ms Makateng,
watched over by the man with the knife. Back in the store, still at
gunpoint,
she had to hit the second till with her fists in her
attempts to open it. It is hardly likely that she would in that time
have
paid any attention to the man at the door. Immediately
thereafter the three men fled. Nothing in her evidence, in my view,
therefore
supports the finding that her identification of the
Appellant was reliable
"because she had ample time to
observe"
him as the trial court found.
[22]
Nor do I find any corroboration for her evidence in that of Sgt du
Plessis, as the trial court did. Even though he averred
that Ms
Jacobi had positively identified the Appellant at the police van, it
is clear from her own evidence that she was so unsure
of having
identified the right person that she had to ask for confirmation from
Ms Makateng who testified that she never saw their
faces and could
not identify them, and had to go back three or four times, after
having
'recognised his face'
only on the second time around
even though it was less than two hours after the robbery.
[23]
The
Supreme Court of
Appeal
made it clear in S v Charze
n
[2]
that
where identification is in dispute, the reliability of the
identification must
be
beyond
a
reasonable
doubt:
"...
as our Courts have emphasised again and again, in matters of
identification, honesty and sincerity and subjective assurance
are
simply not enough. There must in addition be certainty beyond
reasonable doubt that the identification is reliable, and it
is
generally recognised in this regard that the evidence of
identification upon a witness' recollection of a person's appearance
can be 1dangerously unreliable', and must be approached with
caution."
[24]
Even
though the trial court found Ms Jacobi to have been a credible
witness, I cannot agree that her evidence was reliable or complied
with the criteria set out in
Mthetwa
[3]
.
She
was, practically speaking, a single witness on whose evidence the
trial court on its own version relied for the Appellant's
guilty
verdict. Her evidence therefore required cautious scrutiny.
As
stated in S v Sithole
[4]
:
"where
a conviction depends on that evidence alone, a court must quite
obviously be satisfied that the witness is truthful.
What perhaps is
more important, though, is that there must be no reasonable doubt
that the witness is not mistaken. In our view
that will generally
require something more than the mere assertion by the witness that he
has correctly identified the culprit,
if the inherent risk of error
is to be guarded against."
[25]
In my view it is clear from the evidence that there is more than a
reasonable doubt that Ms Jacoby correctly identified the
Appellant.
On her own version she is not sure that he is the man who was in the
store during the robbery. Even Sgt du Plessis is
not sure that he has
arrested the right man.
[26]
There
is no physical evidence linking the Appellant to the robbery and
confirming the identification. Unlike Accused 1, he was not
found in
possession of any of the stolen items or of the gun, the knife, or
the ammunition. His fingerprints were not found on
the scene, there
was
no
description
of
his
features
or
his
clothing, other than that he was young and black, and he was
'identified' while he was the only person in the back of the police
van. And as was stated in
Charzen
[5]
:
“
There
was no physical evidence: not a fingerprint, not a recovered
cellphone, nor wallet nor purse ... nothing to connect
the accused to
the crime and thus provide a measure of assurance against the
pitfalls of subjective identification. The greatest
test of guilt
must lie in such evidence, rather than in identification on its
own...”
[27]
In the absence of evidence reliable beyond a reasonable doubt as to
his identity and consequently of his participation in the
robbery, I
am of the view that the Appellant's conviction on the charge of
Robbery with Aggravating circumstances cannot stand
and has to be set
aside.
[28]
Regarding
the
charge of unlawful possession of
a gun and ammunition,
there
is no such evidence either. In S v Nko
si
[6]
the court held that there can be joint possession of a gun (or
ammunition, for that matter) involving the entire group
of
assailants, or a common purpose between the members of the group to
possess the gun, if the State has established facts from
which a
court can infer that:
"the
group had the intention
(animus)
to exercise possession of the
gun through the actual detentor, and the actual detentor had the
intention to hold the gun on behalf
of the group".
[29]
In
the present case the State cannot be said to have produced such
evidence. Accused 1 and the Appellant denied that they
knew
each other. The gun was seen and found only in Accused 1's
possession. The Appellant's fingerprints were not found on
the
gun, either. Although Accused 1 on the evidence was properly
and
reliably identified, the same cannot be said for the Appellant. And
in the absence of conclusive evidence that the Appellant
was indeed
one of the persons who had been involved in the robbery, there could
be no finding that Accused 1 had held the gun or
the ammunition on
his behalf or that the two of them had had a common intention (See: S
v Mbuli)
[7]
to possess the gun
or the ammunition. The Appellant's convictions of the unlawful
possession of a firearm and ammunition therefore
cannot stand either.
WHEREFORE
THE FOLLOWING ORDER IS MADE:
1.
The appeal succeeds and the Appellant's conviction on counts 1, 2 and
3 is set aside.
________________________
H
MURRAY, AJ
I
concur.
________________________
L
J LEKALE,
J
On
behalf of the Appellant:
Adv J Makhene
Bloemfontein Justice
Centre Southern Life
Building
41 Charlotte Maxeke
Street
Bloemfontein
On
behalf of the Respondent:
Ms Lesie-Shale
Office of the Director of
Public Prosecutions
Waterfall Centre
BLOEMFONTEIN
[1]
1972(3) SA 766 (A) at 768A- C
[2]
2006(2)
SACR 143 (SCA) at [11] at 374
[3]
Supra,
at
768A-C
[4]
1999
(1) SACR 585
(W} at 591E
-
F
[5]
Supra,
at
[19] at 375
[6]
1998(1)
SASV 284 (WPA) at 286
h-i
[7]
2003
(1) SACR 97
(SCA) at [71)