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[2016] ZAFSHC 201
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Kenku v S (A65/2015) [2016] ZAFSHC 201 (10 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE
DIVISION,
BLOEMFONTEIN
Appeal
number: A65/2015
In
the appeal between:
KABELO
JOHN
KENKU
Appellant
and
THE
STATE
Respondent
CORAM:
VAN ZYL,
et
MOKOENA, AJ
JUDGMENT
BY:
VAN ZYL, J
DELIVERED
ON:
10 NOVEMBER 2016
[1]
The appellant was charged in the Regional Court, Bloemfontein, on 9
counts. He was acquitted on counts 2, 3, 5 and 9. He was
convicted on
the followings charges: robbery with aggravating circumstances (count
1), robbery with aggravating circumstances (count
4), attempted
robbery with aggravating circumstances (count 6),
attempted murder (count 7) and resisting arrest (count
8).
[2]
The appellant was sentenced as follows:
1.
Counts 1 and 4: 10 (ten) year's imprisonment on each count. It was
ordered that 5 (five) years imprisonment of count 4 are to
run
concurrently with the sentence on count 1.
that
both sentences are to run concurrently.
2.
Count 6: 10 (ten) year's imprisonment.
Count
7: 12 (twelve) years' imprisonment. It was ordered
3.
Count 8: 18 (eighteen) months' imprisonment. It was ordered
that it is to run concurrently with the sentences on counts
1 and 4.
The
appellant was therefore sentenced to an effective term of
imprisonment of 27 years.
[3]
The appellant was represented in the court
a
quo
by Ms Easthorpe. He pleaded not guilty, based on a total denial
and in effect an alibi.
[4]
The appellant was granted leave to appeal against the
convictions and sentences by the court
a quo.
COUNT
1:
[5]
Count 1 relates to a robbery which took place on 17 November 2008 at
the convenience store of the Sasol garage in Dr Belcher
Road,
Bloemfontein. The first witness, Ms SLM Lamunu was on duty on the day
of the robbery working as a cashier. Shortly after
20h00 a short man
entered the shop, went behind the counter and ordered her to put
money into a white bag he was carrying. After
she obliged, the short
man moved to Chaka's till and gave him the same orders regarding the
money in his till. When she looked
at Chaka's till, she saw a tall
slim man who was pointing Chaka with a firearm. The tall man was
wearing a red hat and dark glasses.
After they received the money
from Chaka, the two men left. At that stage Ms Lamunu pretended to be
falling down behind the counter
and pressed the panic button
underneath the till. The whole incident took between 5 to 6 minutes.
On 24 March 2009 Ms Lamunu attended
an identity parade at Mangaung
Police Station where she pointed the appellant as being the tall slim
man who pointed the firearm
at Chaka. She again confirmed this
identification in open court.
[6]
Daniel Matlala was on duty the particular night together with Ms
Lamunu. Shortly before the incident, he was called outside
as
somebody was looking for him. He requested Chaka to manage his till
in his absence. He did not see the robbery taking place
and was only
advised about the robbery by Chaka a couple of minutes later.
[7]
Mr TM Ramakhanthane was also called as a witness. The prosecutor
requested that the hearsay evidence he was about to present
be
provisionally allowed. Although Mr Ramakhanthane was on duty on the
night of the incident, he did not see the robbery. At some
stage he
entered the shop, when Ms Lamunu advised him that they had just been
robbed. They then phoned Bloemsec Security and also
the manager of
the garage. Mr Ramakhanthane then,
inter alia,
testified
as follows regarding a video recording from the security cameras:
"...
then the manager showed us the people who robbed the place through
the camera.
Could
you clearly see the people when you watch the security footage?
---
Yes they managed even to zoom in the footage for us.
Did
you recognize any of the people in the footage? --- Yes
...
het u een of meer mense herken? --- I only recognised one.
Die
person wat u herken het op die beeldmateriaal, van waar af ken u die
persoon? --- He is one of our customers, the one who used
to come
regularly to buy some stuff.
Sien
u die persoon vandag in die hof? --- Yes."
The
witness then pointed the appellant as being the person he recognised
on the video recording. His evidence then continued:
"Wat
was die persoon besig om te doen, die beskuldigde toe u na die beeld
materiaal sien? --- What I saw on this video footage,
I saw the
accused and his companion entered the shop. So the other one
went behind the tills ordering Mavis that they must
put the money
inside a bag, they are in a hurry. The accused person was
having a firearm.
And
where was he? --- At that stage the accused person was now with
Chaka, facing Chaka, the other cashier who was helping Daniel."
[8]
Mr Ramakhanthane attended the
identity parade held
on 24
March 2009, during which he pointed the appellant
as the person who pointed the firearm at Chaka
during the robbery.
[9]
During cross examination Mr Ramakhanthane testified as follows:
"At
the time your employer showed you this video footage, is that correct
that the other employees were there with you as well?
--- Yes all of
us were in the office.
Including
Mavis Lamunu? --- Yes."
[10]
The identity of the appellant is the crucial point of dispute in this
matter. However, the video footage, although it was handed
over to
members of SAPS immediately after the incident, could not be traced
and placed before court. The court
a
quo
made
the following findings in her judgment regarding the issue of
identity and the absence of the video recording:
"Alhoewel
die beeldmateriaal nie voor die hof geplaas kon word nie beskryf
Ramakhanthane die gebeure wat hy op die video gesien
het en het hy
dan toe oak aan die bestuurder te kenne gegee dat hy die persoon ken
wat die rooftog gepleeg het en wat die vuurwapen
hanteer het.
Me
Easthorpe het ernstige beswaar gemaak teen die uitkenning deur
hierdie getuie. Sy is
van
mening dat dit die
uitkennings parade ontoelaatbaar maak. Ek is egter
van
mening
dat daar geen foul te
v
i
nd
is met uitkenning op
'n
vi
d
eo
beeld nie. Die getuie het
onmiddellik toe hy die beeld sien gese dat hy die persoon herken wat
die rooftog pleeg. En sy getuienis
bied belangrike bestawing vir Me
Lamunu se getuienis. Ek is tevrede dat die uitkenning
van
beskuldigde as die rower wat aanklag 1 aanbetref het bo redelike
twyfel bewys is."
[11]
The appellant's notice of appeal
inter
alia
states that the court a
quo
erred in making the following
findings:
"1.2
That the
vi
d
eo
tape evidence to which
witnesses in count 1 and 4 had access did not
flaw the identity
parade which was
subsequently held.
1.3
That it was not necessary for court to have access to the video tape
evidence to make its own finding relating to identity of
the
perpetrators in count 1 and 4."
[12]
Regarding the identification of the appellant by Ms Lamunu, Mr Kambi,
appearing on behalf of the appellant in the appeal, submitted
that
although she was a credible witness, her identification of the
appellant is not reliable as she was in a state of shock and
did not
have sufficient opportunity to observe the appellant. He pointed out
that she was unable to give a detailed description
of the appellant,
neither at the police station, nor during the trial. She only
identified the two assailants as being a tall man
and a short man. Mr
Kambi furthermore submitted that the witness was unable to see the
complete face of the tall assailant, as
she specifically testified on
page 16 of the record that he was wearing dark classes which
partially blocked the upper part of
his face, as well as a red hat.
He contended that she pointed the appellant at the identification
parade as the alleged tall assailant
on the basis of his height and
not because she could actually identify him. In this regard he
referred to the following evidence
during her cross examination:
"At
this ID parade, is it correct that you identified this person not by
his face but how tall he was? --- Yes it is.
Could
you see the short person at the ID parade? --- I did not.
Was
my client the tallest one on the ID parade? --- There were others who
were also tall, but not the same height as he is.
So
he was the tallest? --- Yes."
[13]
The aforesaid aspects raised by Mr Kambi are all valid concerns
considering the applicable rules of caution when dealing with
a
single witness who is moreover an identifying witness. However, in
view of my conclusions hereinafter it will not be necessary
to make
any finding on the aforesaid issues.
[14]
The following principles enunciated in in
S
v Moti
1998 (2) SACR 245
(SCA) at 254 H and 255 I - 256 B are relevant to
the present appeal:
"
...Oat 'n foto van die appellant vooraf aan die ooggetuies getoon is,
kon denkbaar 'n uitwerking gehad het op die betroubaarheid
van die
uitkenning van die appellant in die beskuldigdebank ...
...Ten
slotte is daar die moontlikheid dat die vroeere identifikasie by wyse
van 'n foto afbreuk kan doen aan die ooggetuie se latere
identifikasie by wyse van 'n uitkenningsparade of getuienis in die
hof. (Vgl S
v
Shandu
1990
(1)
SACR
80
(N)
;
S
v
Nkomo
1990 (1) SACR
682
(Z
l.) Die ooggetuie se identifikasie van die verdagte mag
dermate deur die foto wat hy vroeer gesien het be"invloed kon
gewees
het dat hy oor die foto eerder as oor die gebeure
getuig. Ongetwyfeld skep hierdie oorweging vir die polisie 'n
dilemma:
die foto-identifikasie mag 'n essensiele stap in die
ondersoek van die misdaad wees; maar as dit uiteindelik tot 'n
inhegtenisname
lei, mag dit enersyds nie afdoende
getuienis wees om op sigself 'n skuldigbevinding te fundeer nie
en andersyds
enige later getuienis van
identifikasie belemmer. (Vgl ook Kriegler Hiemstra
Suid
-
Afrikaanse Strafproses
5de uitg op 80; Hoffmann
en Zeffertt
The
South
African
Law
of
Evidence
4de uitg op
618.) Om na so 'n foto-identifikasie en nadat die verdagte
gearresteer is 'n uitkenningsparade te hou, mag raadsaam
wees, maar
dit bied ook nie 'n volkome antwoord nie, want 'n hof mag allig
bevind dat sodanige identifikasie steeds deur die foto
ge·inspireer
is. Of dit so 'n teespoedige uitwerking sal he, sal telkens van die
besondere omstandighede van die geval afhang."
[15]
Ms Lamunu has unfortunately seen the video footage. It is
therefore impossible to know whether she pointed the appellant
at the
identity parade on the basis of her own observations during the
robbery or on the basis of observations she made when she
viewed the
video footage. Even if she had made her own observations regarding
the features of the tall assailant during the robbery,
those
observations might subsequently have been influenced by what she saw
on the video footage.
[16]
This brings me to the issue of the video recording as such. In
Hiemstra's Criminal Procedure,
A Kruger, the relevant
principles are summarised as follows at p. 24-83:
"Video
recordings taken
during
theft, robbery
or
commission of
other
offence-These days there are cameras in some shops, shopping
centres and streets which continuously make video recordings. Video
material obtained in this manner can show what happened during the
commission of the offence and that the accused was on the scene.
Such
video material is real evidence. The court must record its
observations (
S
v
Mohase
1998 (1) SACR
185
(0) at 191A B). The manner in which the video material is
placed before the court is that a witness, for instance a security
guard or someone working in the shop, looks at the video images and
says what he or she sees. Just as a fingerprint expert in his
or her
evidence compares the prints found on the scene with prints obtained
from the accused, and the prints are then handed in
as exhibits so
that the court and the legal representatives can themselves determine
whether the witness's observations are correct,
in video recordings,
the images are shown to the court and the legal representatives to
give them the opportunity to question the
witness's observations
(
Newell
v
Cronje
and
Another
1985
(4)
SA 692 (EC) at 698A-B). The presiding officer's observations of the
real evidence can assist in understanding the evidence and
can also
provide a more direct and satisfactory source of proof
(
Newell
6971-J).
In
S
v
Mdlongwa
201O (2) SACR
419
(SCA) the state presented the expert evidence of a police
official who had been stationed in the Facial Identification Unit of
the Criminal Record Centre for 18 years, who compared the facial
features of the accused with the facial features of the person
on the
video footage (pars [18]-[21]).
See
also
S v
Kotze
2014 JDR
2713 (FB)
[17]
A court needs to be able to assess evidence itself. This is for
instance the reason why hearsay evidence is generally inadmissible,
as a court is not in a position to assess the credibility and
reliability of such evidence. In this instance, as already mentioned
earlier, the video footage went missing and could not be placed in
evidence before court. The court was therefore unable to assess
the
quality of the images, the clearness and sharpness of which play a
crucial role in determining the reliability of any identification
made on the basis thereof. If the images were, for example,
distorted, it would obviously have negatively impacted upon the
reliability
of Ms Lemunu's pointing out of the appellant. Even if it
is to be accepted that the images were clear and of a high quality,
any
identification based thereon constitutes inadmissible hearsay
evidence in the circumstances where it was impossible for the court
and the defence to also watch the footage and make their own
observations. Any evidence regarding what Ms Lamumu allegedly saw
on
the video footage should therefore have been disregarded by the court
a
quo.
[18]
The aforesaid principles are in my view even more applicable to Mr
Ramakhanthane's pointing out of the appellant subsequent
to him
having seen the video footage.
[19]
Consequently Ms Lamunu's and Mr Ramakhanthane's identification
of the appellant subsequent to them having seen the video
footage,
and which video recording was not placed in evidence before court,
should be considered to have tainted their pointing
out of the
appellant at the identity parade. In addition their evidence
regarding what they allegedly saw on the video footage,
constituted
inadmissible evidence in the circumstances.
[20]
Allow me to mention that it is completely deplorable and unacceptable
that members of SAPS, who were responsible for the safe-keeping
of
the video footage, lost it. The two witnesses were good witnesses.
Had that video footage been available during the trial, it
would
probably have constituted very reliable evidence regarding the
identity of the assailant.
[21]
Consequently the appeal against the conviction on count 1,
should succeed.
COUNT
4:
[22]
Count 4 relates to an armed robbery
which took place on
25
February 2009 at the very same convenience store and garage referred
to in count 1. Mr MP Makoena was the only state witness
on this
count. He was working night shift the evening of 24/25 February 2009.
Shortly before 05h00 the morning whilst Mr Makoena
was standing
outside, a man approached him, pointed him with a firearm, whilst
demanding money and a cellphone. He was standing
very close to Mr
Makoena during this incident. He handed his cellphone, worth
approximately R1800, over to the perpetrator. The
man then forced Mr
Makoena into the shop with the demand that he wants money. He then
instructed Mr Makoena to go behind the counter
and to give him money
and cigarettes. Mr Makoena handed approximately R1000 and several
packets of cigarettes to the perpetrator.
Thereafter the
man forced Mr Makoena to walk with him to the township. Whilst
walking, he threatened the witness that should
he tell the police
about the incident, he will fetch him from his home and kill him. In
the meantime one of Mr Makoena's co-employees,
Mojalefa, alerted the
security company. Whilst the perpetrator and Mr Makoena were still
walking, the security guards, accompanied
by Mojalefa, appeared and
tried to stop the two of them, but the perpetrator ran away. The
security guards fired at the perpetrator,
but they missed.
During an identity parade held on 24 March 2009, Mr Makoena
pointed the appellant as the perpetrator.
[23]
Although the appellant in his notice of appeal also referred to this
count when the issue regarding the video footage was dealt
with, it
is in my view evident that the video footage did not play any role in
Mr Makoena's pointing out of the appellant. His
evidence was clear
that that evening was the first time he ever saw the appellant and he
had not seen any video footage of the
previous robberies at the said
garage. There was also no evidence that he watched any video footage
of the events of that particular
evening. This aspect is therefore in
my view not relevant to count 4.
[24]
With the rules of caution in mind when dealing with a single
witness, especially so when such a witness is also
an identifying
witness, the question to be considered is whether Mr Makoena's
identification of the appellant can be considered
to be
reliable. He explained that he spent quite a long time in the
presence of the appellant:
"You
know your worship, considering this last case I saw this person for a
long time. I saw him when we were outside from,
from outside the shop
into the shop and out of the shop and we walked together with him to
where we were going.
Your
worship, I would not be able to specify how long it took but I saw
him for a long time. We were from the outside went into
the shop and
in the shop he demanded he wanted me to give him some money and
cigarettes, took them. We went out I was in his company.
We walked
together to the location, your worship. So I would not be able to
specify how long that took."
The
appellant's face was also not covered.
[25]
Mr Makoena also explained that inside the shop the
appellant was standing in front of him when he demanded
money
and after that he also looked at the appellant's face several times.
He explained to the police that it was a tall person.
On a question
regarding any identifying features on the appellant's face, Mr
Makoena responded as follows:
"There
was not any identifying feature in his face but after, shortly after
the incident you see you still have the picture
of the person
normally. So if you see them again you can identify that they were
the ones."
[26]
When it comes to identification, the inability to give a description
is not fatal. See
S
v
Pretorius
en
'n
Ander
1991 (2) SACR 601 (A) at 607 I - J. Mr Mokoena clearly
had sufficient time and opportunity to have observed the face
of the
perpetrator, which lends reliability to his identification of the
appellant. He only took twelve seconds to point the accused
out at
the identity parade.
[27]
When considering the court a quo’s findings regarding the
credibility and reliability of Mr Makoena's evidence, it cannot
be
faulted. Mr Kambi also conceded this much, in my view correctly so.
The appeal against the conviction on count 4 can therefore
not be
upheld.
COUNTS
6 & 7:
[28]
On 7 March 2009 at about 10h00 Mr PJD de Wet was driving into
Bloemfontein via Nelson Mandela Drive when four men jumped onto
his
Toyota Hilux vehicle (a "bakkie") at a red robot. They were
two black males and two white males. The vehicle had
a sliding window
at the back of its cabin, which was open. One of the white males
immediately entered the cabin of the vehicle
via the said window. He
told Mr de Wet that he had a firearm and instructed him to continue
driving, otherwise he will shoot him.
Mr de Wet did not see the
firearm, but accepted that the assailant had it underneath his
jacket. He demanded money, but Mr de Wet
indicated that he only had a
couple of rand in his jeans· pockets. Whilst they were driving
out of town, the driver's window
was open and one of the assailants
at the back held a black object against Mr de Wers head on the right
hand side. Mr de Wet could
however not see what type of object it
was. Mr de Wet was instructed to turn onto a gravel road and to drive
on. The assailant
inside the cabin again demanded money, stating that
he wanted the money with which Mr de Wet was to pay labourers. Mr de
Wet again
responded that he had only about R50.00 in his wallet,
after which he took his wallet from his pocket. The assailant however
insisted
that he wants a big amount of money.
[29]
Mr de Wet intentionally increased the speed of his vehicle over a
bump in the road. The bump-effect caused by the impact had
the result
that a black stick fell from the hand of the assailant inside the
cabin. Mr de Wet then hit him with the backside of
his hand in his
face. The assailant jumped out of the vehicle. When Mr de Wet then
tried to turn the vehicle around, one of the
assailants at the back
hit him with a brick against the right hand side of his head. They
tried to remove the vehicle's key from
the ignition, but without
success. The assailants also attempted to pull him from his vehicle
and he was hanging on inbetween the
inside and the outside of the
vehicle. One of the assailants stabbed him with a knife beneath his
right ear at that stage. The
assailant with the knife continuously
tried to stab Mr de Wet and in the process he threatened to kill him.
Mr de Wet fought back
and although he was stabbed a number of times
during this struggle, he managed to get back into the cabin of the
vehicle from the
passenger's side. None of the assailants were in
sight at that stage. He managed to start his vehicle and drove off to
the nearest
police station. He was bleeding profusely, especially
from a stab wound in his neck from which the blood was spurting.
According
to Mr de Wet the assailant who stabbed him with a knife was
not the same person who hit him with a brick.
[30]
Mr de Wet attended an identity parade on 24 March 2009 and he pointed
the appellant out as the assailant who attacked and stabbed
him with
a knife.
[31]
Mr Kambi submitted that Mr de Wet's identification of the appellant
as the alleged assailant with a knife is not reliable as
he did not
have sufficient opportunity to observe this assailant. His life was
in danger and he was fighting back to stay alive,
probably without
concentrating on the face of his assailant. Mr Kambi pointed out that
on Mr de Wef s own version he never saw
the assailant from the front,
but only from the side.
[32]
In her judgment the court
a quo
gave consideration to the fact
that towards the end of his cross examination Mr de Wet was unsure
about his identification of the
appellant. She however emphasized the
fact that he was very certain of his identity of the appellant during
the identification
parade.
[33]
It is evident from Mr de Wet's evidence that he obviously, and
understandably so, experienced this incident as a terrible ordeal.
He
testified that he was literally fighting for his life. He also became
emotional at times during his evidence. Captain Roets,
who conducted
the identity parade, indicated that Mr de Wet pointed the appellant
out within 10 seconds. He also recorded on the
Identification Parade
Form that Mr de Wet was positive about his identification, indicating
that the appellant attacked and stabbed
him with a knife in his arm
and his face. During Mr de Wef s evidence in chief he again
identified the appellant as having been
the assailant with a knife.
Mr de Wet explained that he knows the appellant well from his side,
as that was the manner in which
the appellant approached him and
fought with him. Although the appellant was wearing a balaclava, it
only covered his forehead,
not his face. Mr de Wet described his
reactions during the identification parade as follows:
"Hy
het my geneem na 'n vertrek toe wat 'n danker ruit he!, toe sien ek
die persoon dat ek eers geskrik gehad, toe se hulle
nee, hulle kan
jou nie sien nie, jy kan net hulle sien."
Mr
de Wet therefore seems to have been shocked and scared when he saw
the appellant.
[34]
Regarding his identification of the appellant at the identity parade,
the following was his evidence in chief:
"Mnr
de Wet, wat het hulle vir u gese wat moet u doen? --- Hulle se hulle
gaan die mense inbring, hulle sal nommers he, dan
moet ek nou se
watter nommer wat ek kan uitken daarso, dan sal hy een vorentoe slap.
Toe vra ek net okay ek het een uitgeken, toe
vra ek vir horn of hy
net die ou kan laat draai want ek ken horn meer van die kant af as
hoe hy lyk in die gesig."
[35]
In cross examination Mr de Wet testified as follows:
"...Sir,
my client indicates he was not the one who robbed you. --- I know him
from the side, he looks, I know him exactly
from the side and am sure
about it. Can he just ...
Ekskuus,
ek kan nie hoar nie, dan. --- Ekskuus tog u Edele, kan hy net omdraai
na die kant toe so?
Okay,
just, u can repeat what you said but just a little louder please? --
Yes, maar ek is seker dit is hy want van die kant
af ken ek horn
goed, so ek is seker, ek het horn baie van die kant af gesien daai
dag en nagmerries kry ek van di!, ek he!die gesig
bly sien, en ek
weet oak nie nou nie.
Sir,
you also said if he just turns know. --- If he can just turn so I can
make sure but he must turn like this so I can see this
side of the
face.
So,
he was not turning to you at all, just the side? --- No, I never saw
the side, ag from the front, I just saw it from the side,
from the
side and when they went for the parade too, then I asked them also
can he turn.
Sir,
you saw him from the side, if he does not have any scars on that
side. --- No, it is from the wrong side sir, so Jet us see
here.
He
has got no scars on this side. --- I do not know at the moment, no,
but I am sure, I do not know.
Ekskuus,
ek kan niks hoor wat u se nie, meneer. --- Okay, ek is seker dit is
hy maar ek weet nou nie meer nie, want hy lyk reg en
dit lyk of dit
hy is.
...
dan moet die beskuldigde maar opstaan en sywaarts draai, meneer.
Please stand up and turn sideways. --- Look at that side, look
that
side. Ek weet nie, ek is deurmekaar.
Goed,
die beskuldigde het nou opgestaan, hy staan met sy rug na die hof
toe,hy kyk met sy, hy staan met sy Jinkerkant na die getuie
toe en u
se u is nou nie meer seker nie. --- Ek weet nou nie."
[36]
During re-examination, Mr de Wet testified as follows:
"Mnr
de Wet, toe u die dag die uitkenningsparade bygewoon het, en die
persoon wat u op die uitkenningsparade uitgewys het,
was u die dag
van die uitkenningsparade seker? --- Ek was seker daai dag, ek was
dood seker, toe ek daar gesit het, het ek net
gekyk, ek het nie
dadelik, ek het lank gekyk na horn."
[37]
The dangers of incorrect identification are well known. The following
passage from
S v Mthetwa
1972 (3) SA 766
(A) at
768A stipulates the relevant principles in this regard:
"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".
[38]
The principles regarding the evidential value to be attached to an
identification at a properly held identity parade as opposed
to a
so-called dock identification, are set out in
Hiemstra's
Criminal
Procedure,
A
Kruger, at p.3-8:
"Dock
identification-In
view of the fact that a witness
will be inclined to regard the person in the dock as the perpetrator,
it is of the greatest importance
that an identification parade be
held. Confronting a witness with the suspect and asking "Is this
the person?" destroys
the value of the witness's identification,
while a parade could have confirmed it
(
R v
Madubedube
1958 (1) SA 276
(0)).
Identification
is often the central question in a trial, although in court it has
little, if any, evidential value: courts attach
value to
identification at an identification parade."
See
also
Commentary
on
the
Criminal
Procedure
Act,
Du
Toit, at RS 55, 2015, ch3 - p.18:
"An
identification parade is not only an effective investigative
procedure but also serves an important evidential purpose
in that it
can provide the prosecution with evidence which is of far more
persuasive value than an identification in court, ie
the so-called
'dock identification' (see generally ..."
[39]
The circumstances under which Mr de Wet observed the assailant who
attacked and stabbed him with a knife, were clearly very
difficult.
However, the identity parade was held a mere 17 days after the
incident, a point of time at which Mr de Wet would still
have had a
very good and clear memory of the events that occurred that day. This
is also confirmed by his evidence
"...ek
het
hom
baie
van
die
kant
af
gesien
daai
dag
en
nagmerries
kry
ek
van
dit,
ek het
die
gesig
bly
sie
n
...
".
In my view his spontaneous reaction of fright when he first saw the
appellant at the identity parade before he was informed
that it was a
one-way window, to an extent also serves as confirmation of the
correctness of his identification. Although he testified
that he
never saw his assailant from the front, it is in my view evident that
he must have seen him from the front as well, considering
that he
apparently recognised the appellant before he requested that he
should turn sideways. I repeat his evidence in this regard:
"Toe
vra ek net okay ek het een uitgeken, toe vra ek vir horn of hy net
die ou kan laat draai want ek ken horn meer van die
kant af as hoe hy
lyk in die gesig."
[40]
Mr de Wet insisted at the identity parade to view the appellant from
the side. When he testified at the trial, which was 19
months after
the date of the incident, he again insisted accordingly. In my view
this confirms that he had in fact observed his
assailant's face
during the attack, albeit mostly from the side; hence his consistency
in this regard.
[41]
I have given due and thorough consideration to the fact that Mr de
Wet became uncertain of his dock identification of the appellant
towards the end of his cross-examination. Mr de Wet was clearly very
emotional and distressed during the presentation of his evidence
having to relive the ordeal. His apparent uncertainty also transpired
only right at the end of his cross-examination, when he was
put under
even more pressure. It should also be kept in mind that the
presentation of his evidence only took place about 19 months
after
the incident, which is a lenghthy period of time. Therefore, when it
is considered in proper context against the background
of the legal
principles, the facts and my findings above, I am of the view that
not much weight can and should be attached to Mr
de Wef s eventual
uncertainty.
[42]
In the circumstances I am satisfied that the state proved the
identity of the appellant beyond reasonable doubt. The appeal
against
the convictions on counts 6 and 7 can therefore not be upheld.
COUNT
8:
[43]
Count 8 relates to the arrest of the appellant on 18 March 2009 by
Warrant Officer Van Zyl. He received information about the
whereabouts of the appellant, whom he was looking for in connection
with car hijacking and attempted murder. He went to the address
provided to him, knocked on the door and a male person responded from
inside the shack, inviting him to enter. The appellant was
lying on
the bed. Van Zyl introduced himself and enquired from the appellant
what his name was. The appellant introduced himself
as Seun. Warrant
Officer Van Zyl requested him to get up, where after the appellant
kicked Van Zyl and they started wrestling.
Eventually Van Zyl was
able to handcuff the appellant and he arrested him.
[44]
During cross examination Van Zyl testified that Warrant Officer Steyn
accompanied him to the said address and denied the appellants
version
that there were twelve other officers with him. He also denied that
the appellant was assaulted during his arrest, other
than the
wrestling in order to arrest the appellant.
[45]
In the judgment the court
a
quo
indicated
that the appellant did not impress her as a witness and that there
were numerous improbabilities in his evidence. She
consequently
rejected the appellant's version regarding this incident as not being
reasonably possibly true.
[46]
I cannot fault this finding. Mr Kambi, during his argument, also
conceded that this conviction is in order and
I do
not deem it necessary to deal in any further detail with this
count. The appeal against the conviction on
count 8 cannot be
upheld.
AD
SENTENCE
ON COUNT
4:
[47]
In terms of section 51(2)(a)(i) of Act 105 of 1997 a minimum
prescribed sentence of 15 years' imprisonment is applicable to
a
conviction of robbery with aggravating circumstances. A court
may only impose a lesser sentence when it is satisfied that
there are
substantial and compelling circumstances which justify such
deviation.
[48]
The personal circumstances of the appellant and the relevant
mitigating factors pertaining to this specific count were duly
considered by the court
a quo.
These are the following:
1.
The appellant was 32 years old at the time of sentencing.
2.
He passed grade 11 at school.
3.
He is unmarried, but has one child who at the time of sentencing was
2 years and 4 months old. The child was living with the appellant's
sister.
4.
He was employed at his brother's tavern and earned approximately
R600.00 per week.
5.
He was in custody awaiting trial for a period of 2 years and 5
months.
6.
The appellant is a first offender.
7.
Although a firearm was used in committing the robbery, no shots were
fired and the complainant did not sustain any injuries.
The
following aggravating factors were present:
1.
The appellant did not show any remorse.
2.
Robbery with aggravating circumstances is a very serious offence
which is prevalent in the court's area of jurisdiction.
3.
The interests of the community demand that criminals should be
properly
sentenced in order to protect the community. Therefore an
appropriate sentence is also one which will deter future criminals
from
similar conduct.
[49]
After having considered all of the above mitigating and
aggravating factors, the court
a
quo
concluded that the cumulative
eff
ect
of
the mitigating factors, especially the period of time the appellant
spent in custody awaiting trial and the fact that the complainant
did
not sustain any injuries, constitute substantial and compelling
circumstances which justify and necessitate a deviation from
the
prescribed sentence. The court
a
quo
consequently
considered imprisonment of 10 years to be an appropriate sentence.
[50]
A court of appeal will only interfere with a sentence imposed by a
court a
quo
when such court committed a material misdirection
or when the sentence is shockingly inappropriate. See
S
v Malgas
2011 (1) SACR 469
(SCA) at 478 F - G.
[51]
In my view the trial court did not commit any misdirection, nor is
the sentence shockingly inappropriate. The court a
quo
already imposed a lesser sentence than the prescribed minimum
sentence and in my view, correctly so. However, the surrounding
circumstances
to the commission of this offence are very serious. The
appellant conducted the offence in a very blatant manner in that he
first
robbed Mr Makoena outside the shop, then forced him into the
shop in order to rob money from the shop itself and then, as if those
two criminal actions were not enough, he also forced Mr Makoena to
accompany him to the township whilst threatening him that he
will be
killed should he tell the police about the incident. The aforesaid
conduct is in my view indicative of the appellant's
complete lack of
respect for law and order. He actually conducted three offences in
one, which contributes to the seriousness of
this particular offense.
There is no basis upon which we can or should interfere with the
imposed sentence of 10 years'
imprisonment.
AD
SENTENCES
ON COUNTS 6 AND 7:
[52]
The appellant was sentenced to 10 years' imprisonment on count 6
(attempted robbery with aggravating circumstances) and to
12 years'
imprisonment on count 7 (attempted murder), to be served
concurrently.
[53]
It should be noted that in the charge sheet count 6 deals with the
attempted robbery of money and not of a motor vehicle. In
my view the
original charge sheet, where it dealt with charge 6, incorrectly
averred "gelees met die bepalings van Artikel
51(2), 52(2), 52A
en 528 van die Strafregwysigingswet 105 van 1977
(sic)".
This
charge does not fall within the ambit of Part II of Schedule 2, as no
minimum sentence is prescribed for a conviction of attempted
robbery
with aggravating circumstances. Although Part IV of
Schedule 2 makes provision for attempted robbery by including
Schedule 2, Part II of the
Criminal Procedure Act, 51 of 1977
, it
also has the proviso regarding the possession of a firearm which was
intended for use as such in the commission of such offence.
In the
present instance the state did not allege same in the charge sheet,
nor has it been proved that the appellant or any of
the other
assailants was in possession of a firearm during the attempted
robbery. The mere fact that Mr de Wet was told by one
of the
assailants that he was in possession of a firearm, does not serve as
such prove, especially considering that eventually
only a black stick
fell from the hand of the said assailant.
[54]
Correctly so the court a
quo
remarked in her judgment
regarding the conviction on count 6 that although completed
robbery (of money) has been proven
by the state, the appellant
was only charged with attempted robbery in count 6 and can therefore
only be convicted as such. What
is unfortunately not pertinently
evident from the court a quo's judgment on sentence, is whether any
consideration, for purposes
of sentencing, was given to this fact.
This is a very important aspect considering the absence of a
prescribed minimum sentence
for a conviction of attempted robbery
with aggravating circumstances.
[55]
In her judgment on sentence, the court a
quo
stated the
following:
"Dan
moet ek verder in ag neem dat u op vyf aanklagte gevonnis moet word
en moet ek daarteen waak dat die kumulatiewe effek
van die vonnisse
nie onnodig swaar is nie. Ek moet ook in gedagte hou dat u nou reeds
sedert Maart 2009 in aanhouding verkeer,
dit is twee jaar en vyf
maande. Dit is hoofsaaklik hierdie feit wat vandag redelik swaar
inwerk op die vonnisse wat ek vir u gaan
ople.
Hierdie lang
tydperk wat
u verhoorafwagtend
in
aanhoudi
nq is.
beskou ek as 'n
dwinqende
en wesenlike omstandiqheid wat
ek in ag
moet
neem wanneer ek
vonnis oorweeg.
Die eniqste ander faktor wat na my
meninq as 'n moontlike dwingende en wesenlike omstandigheid in ag
geneem kan word wat aanklagte
1 en 4 aanbetref, is
die feit dat die klaers nie enige beserings
opgedoen het nie.
Ek is egter van mening dat wat al hierdie aanklagte
aanbetref geen ander vonnis as direkte gevangenisstraf en 'n
redelike
lang termyn van direkte gevangenisstraf gepas is nie."
(Own emphasis.)
[56]
Considering the aforesaid, it appears to me that the court
a
quo
found that the period of time which the appellant
spent in prison awaiting trial constitutes a substantial and
compelling circumstance
which justifies the imposition of a lesser
sentence on
all
the robbery charges, including the attempted
robbery to which charge 6 pertains. The absence of injuries inflicted
to the complainants
in charges 1 and 4 was only found to be an
additional
substantial and compelling circumstance. I
therefore unfortunately have to conclude that in her
consideration of
an appropriate sentence on
count 6, the court
a quo
apparently approached the matter on the incorrect basis
that a prescribed minimum sentence of 15 years' imprisonment is the
point
of departure. This constitutes a material misdirection which
entitles us as the court of appeal to consider the sentence afresh.
[57]
In addition to the aforesaid the court
a
quo
made reference to the knife stabbing both in relation to counts 6
and 7. Although the act of violence alleged in both charges 6 and
7
is in fact the stabbing with a knife, one should be mindful not to
take the same aggravating circumstance into account twice.
In the
unreported judgment of
S
v
Ngcobo
(SS225/2006)
[2007] ZAWCHC 97 (21 September
2007) the following applicable principles were stated:
"I
mentioned that the evidence does not tell us precisely how the
assaults progressed, because although
part 1
of the second schedule
prescribes a minimum sentence of life for rape involving the
infliction of grievous bodily harm, the question
is whether applying
theminimum sentence requirements of the Act to the rape of Mrs Bisset
in the present case, would not perhaps
amount to an impermissible
duplication of sentence. Prior to the passing of the minimum sentence
legislation in 1997, the common
law warned against the danger of
duplicating sentences in cases of this kind, a warning which is
illustrated by the instructive
case of
S
v S
1987(2) SA
307 (A), a decision of the Appeal
Court. The facts of that case
have certain similarities
to the facts of the present case. The appellant accused in that case,
was a 38-year-old male who was
convicted of the rape of a 70-year-old
woman. As in the present case, the rape occurred after he had entered
her home, and, as
in the present case, the assault which he
perpetrated on the victim, caused her death. Because the Trial
Court could
not be
certain that the death
had been caused intentionally,
he was convicted of culpable
homicide, and not of murder. The Trial Court sentenced
the accused to
a term of imprisonment on the charge of
culpable homicide, but to death on the charge of
rape. The
accused, in
that case, had two previous convictions for rape, and the rape
and the negligent killing
of his victim had occurred on the same day
as his release from prison on another charge. In the course of his
judgment in passing
sentence, the Judge a
quo
made the
following remarks - and I quote from page 311, opposite the letter,
I, to 312, opposite the letter, A, of the judgment:
'Jy
het dit goedgevind om in die danker ure van die nag by haar eie huis
gewelddadiglik in te breek. Dit is vir my nou duidelik,
in terugskou
van al die feite, met een doel alleen, en dit was om haar te verkrag.
Jy het dit nodig gevind om in die proses van
verkragting soveel
geweld op haar toe te pas, dat sy gesterf het. Jy is verantwoordelik
vir die feit dat sy dood is. Hierdie verkragting
val, in my oordeel,
in die heel ernstige kader van verkragting. Jy het nie alleen by die
vrou se eie huis in die danker gaan inbreek
waar sy alleen was nie,
maar jy het haar in haar eie slaapkamer gaan verkrag, en jy het nog
haar dood ook veroorsaak deur die geweld
wat jy op haar toegepas
net.'
In
the course of its judgment, in which it set aside the Court a quo's
sentence of the death penalty for the rape, the Appeal Court
made the
following remarks, indicating that the Court a
quo
had erred
in its approach to the sentence. At 313A to F of the judgment,
Smalberger, A J said the following:
'Tweedens
blyk dit dat die verhoorregter die dood van die oorledene in
aanmerking geneem het by die bepaling van 'n gepaste vonnis
op die
verkragtingaanklag. In die opsig het hy fouteer. Daar moet 'n
duidelike verskil getref word tussen die doodsveroorsaking
van die
oorledene, wat 'n element van die strafbare manslag is, en die
geweldpleging, wat 'n bestanddeel van die verkragting
is. Die
verhoorregter moes noodwendig die doodsveroorsaking van die oorledene
in aanmerking neem by die bepaling van 'n gepaste
straf ten
opsigte van die strafbare manslagaanklag Hy was nie geregtig om dit
ook in aanmerking te neem met betrekking tot die
vonnis op die
verkragtingaanklag nie. Op hierdie aanklag was alleenlik die aard en
omvang van die geweldpleging tydens die verkragting
'n
relevante oorweging. Dit is ongeoorloof om die doodsveroorsaking by
straftoemeting twee keer in aanmerking te neem, omdat dit
sou indruis
teen die beginsel dat duplisering van vonnisse vermy moet word.
Gevolglik moes die verhoorregter die oorledene se dood
wegdink toe hy
die appellant op die verkragtingaanklag gevonnis het, maar hy het
klaarblyklik nagelaat om dit te doen.'
As
to the danger of taking into account the same aggravating factors
twice for the purpose of imposing sentence in respect of separate
offences, see also
S
v
Witbooi
1982(1) SA 30 (A) at
35, and
S v Pietersen
1989(3) SA
420 (A) at 426E to G.''
See
also:
Guide to Sentencing in
South-Africa,
S.S. Terblanche, Second edition, at
p. 183 - p.184.
[58]
In deciding on an appropriate sentence, the personal circumstances of
the appellant as listed herein earlier, are obviously
mutatis
mutandis
to be taken into consideration in favour
of the appellant, which the court a
quo
duly did. The
mitigating factors, being that the appellant spent a period of 2
years and 5 months in custody awaiting trial and
that he is a first
offender, are also to be taken into consideration.
[59]
In general the following aggravating circumstances are present, which
were also duly referred to by the court
a quo:
1.
Both the offences are of a very serious
nature and are prevalent in the court's area of
jurisdiction.
2.
Both the offences were committed with severe violence.
3.
The offences were committed by a group of people, acting in the
execution
of a common purpose, which must have been
premeditated. The complainant had no choice but to (at least
initially)
succumb to their superior numbers.
4.
The appellant did not show any remorse.
[60]
The interest of the community comes to the fore in the case of
serious and violent crimes like these. The court is duty bound
to
properly sentence criminals in such circumstances in order to protect
the community. Therefore an appropriate sentence is also
one which
will deter future criminals from similar conduct. However, the
rehabilitation purpose of punishment should also
be reflected in an
appropriate sentence.
[61]
With regards to count 6 as such, I have to be mindful of the fact
that, as pointed out earlier, the appellant were not charged
with
attempted robbery of the vehicle as such. He should therefore not be
punished as though that is the charge, nor should he
be sentenced on
the basis of completed robbery. Although the attempted robbery was
accompanied by severe violence which should
be taken into account for
purposes of sentencing, the serious injuries inflicted upon Mr De Wet
during the stabbing with a knife
are only to be taken into account as
aggravating factor when considering the sentence on the attempted
murder charge. In the circumstances
I am of the view that 8 years'
imprisonment is an appropriate sentence on count 6.
[62]
The knife attack on the complainant was extremely brutal and he
suffered serious and severe injuries. As remarked by the court
a
quo,
it is mere grace that the appellant survived the
attack. This is a severe aggravating factor which
is to be reflected in an
appropriate sentence. When all the facts and circumstances
are taken
into consideration, I consider a sentence of 10 years' imprisonment
to be an appropriate sentence.
[63]
I agree with the finding of the court
a
quo
that the sentences on charges 6 and 7 are to run concurrently.
AD
SENTENCE ON COUNT 8:
[64]
The appellant was sentenced to 18 months' imprisonment, to be served
concurrently with the sentences on counts 1 and 4. I have
already
dealt with the personal circumstances of the appellant and those are
equally relevant in this instance. However, the lack
of co-operation
of the appellant with the police in circumstances where he must have
realized the seriousness of the situation,
is in my view a further
reflection of the appellant's disrespect for law and order. Having
considered all the circumstances, this
sentence cannot be considered
to be shockingly inappropriate. Mr Kambi did not attempt
to argue otherwise, in my view
correctly so. The appeal against the
appellant's sentence on this count should consequently be dismissed.
[65]
I agree with the court a
quo
that this sentence should
be served concurrently with one or more of the other sentences
imposed. In view of the appellant's successful
appeal against the
conviction on count 1, I deem it appropriate that this sentence
should run concurrently with the sentence imposed
on count 4.
[66]
Because the incident pertaining to counts 6 and 7 is completely
separate and removed from the incident pertaining to count
4, I can
find no basis upon which any of these sentences are to be served
concurrently.
[67]
Consequently the following orders are made:
1.
The appellant's appeal against his conviction on count 1 is upheld
and the said conviction
and sentence are set aside.
2.
The appellant's appeal against his convictions on counts 4, 6, 7 and
8 are dismissed.
3.
The appellant's appeal against the sentences imposed on counts 4 and
8 are dismissed.
4.
The appellant's appeal against the sentences imposed on counts 6 and
7 are upheld,
the said sentences are set aside and substituted with
the following:
4.1
Count 6: 8 (eight) years' imprisonment.
4.2
Count 7: 10 (ten) years' imprisonment.
4.3
The aforesaid sentences are to be considered to have been imposed on
5 August 2011.
4.4
The sentences on counts 6 and 7 are to be served
concurrently.
5.
For the sake of clarity it is again ordered that the sentence imposed
on count 8 is
to run concurrently with the sentence imposed on count
4.
__________________
C
VAN ZYL, J
I
concur:
__________________
R
MOKOENA, AJ
On
behalf of the appellant: Mr Kambi
Instructed by:
Justice Centre
Bloemfontein
On
behalf of the respondent: Adv.
D.W Bontes
Instructed by:
Office of the Director:
Public Prosecutions
Bloemfontein