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[2016] ZAKZPHC 5
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Khumalo v S (AR175/2015) [2016] ZAKZPHC 5 (9 February 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION,
PIETERMARITZBURG
CASE
NO: AR175/2015
DATE:
09 FEBRUARY 2016
In
the matter between:
MELODY
BONGANI
KHUMALO
.................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT
Delivered
on: Tuesday, 09 February 2016
MOODLEY J (
MARKS AJ concurring):
[1]
The appellant, Melody Bongani Khumalo, was charged in the Regional
Court, Ladysmith with robbery with aggravating circumstances.
[1]
He pleaded not guilty but was convicted as charged on 24 July 2014
and sentenced to ten (10) years imprisonment. His appeal against
conviction is with the leave of the court
a
quo
.
The
Trial
[2]
The appellant elected to conduct his own defence in the court
a
quo.
He disclosed that his defence was that he was not present
when the crime was committed and none of the stolen items was found
in
his possession.
[3]
It was common cause that a robbery had been perpetrated at the
complainant’s place of business on the morning of 23 August
2013 by three Black males, during which the complainant was robbed of
a cellphone and money in his personal possession and stabbed
in his
stomach, and a bag taken from his shop. It was also not in dispute
that the woman who was employed as a shop assistant by
the
complainant, knew the appellant as she had been at school with him.
[4]
The issue for determination in the trial was whether the appellant
had been properly identified as one of the three robbers.
State
case
[5]
The state called two witnesses. The first was the complainant, Chen
Weide, a Chinese national who testified through an interpreter
as he
could not read or speak English. Weide testified that at about 11h10
on the day of the robbery, he was inside his business
premises
attending to an Indian customer. Three black males entered the shop;
their faces were uncovered. One of them, who was
very tall and wore a
maroon pants, stabbed Weide in his stomach and searched his left
pocket from which he removed R800. Although
he could not identify
this tall robber, Weide had observed that he had ‘gold’
front teeth. The second robber
searched and removed the
complainant’s cellphone from his right pocket. The third robber
searched the counter and took away
a black bag.
Weide
denied that when he made a statement to the police after the robbery,
he had stated that a firearm was pointed at him during
the robbery as
he had not seen a firearm. He explained that he had made the
statement through his son who himself could speak only
a little
English.
[6]
The second witness, Nonbulelo Happiness Shabalala, testified that she
worked for Weide and was at work with him when the robbery
occurred.
She was serving an Indian customer when the robbers entered. She
confirmed Weide’s evidence that there were three
black males,
whose faces were uncovered; that two of them approached Weide, and
the third went to the parcel counter; one of the
robbers pointed an
Okapi knife at Weide’s stomach and took money and a Samsung
cellphone from his pocket. She saw no weapon
other than the knife.
Ms
Shabalala recognised the robber who pointed the knife at Weide as she
had been at school with him from Grade 1 to 7; he also
frequently
walked passed the complainant’s shop while she was at work and
greeted her. She identified him as the appellant
who was known to her
as Melody.
When
the appellant instructed Ms Shabalala and the Indian customer to
leave the shop, she stood outside the shop with a girl who
worked
with her, while the robbers remained inside. She observed the robbers
leave the shop: two of them ran in one direction and
the other ran
towards the taxis travelling to Johannesburg; he was carrying a
backpack which had been for sale in the shop.
[7]
Under cross-examination, the appellant put to Ms Shabalala,
‘
What
I know is that I robbed you and I took your cellphone. The person
that I was with had intercourse with you. When you came to
me the
following morning at the rank where I was playing dice, you asked for
your phone……’
Ms
Shabalala interjected, emphatically denying that she had attempted to
implicate him falsely on a prior occasion, or that she
had alleged
that she had been raped by his friend or that she had owned a
Blackberry cellphone. She responded that she had no knowledge
of what
the appellant was putting to her and that she knew nothing of any
offences committed by the appellant. She had pointed
him out because
he was the only one of the three robbers whom she knew, although she
was confident that she could identify the
second robber who searched
and robbed the complainant with the appellant. She did not know the
third person who went to the parcel
counter.
The
Defence Case
[8]
The appellant testified in his own defence and did not call any
witnesses. He described how he was arrested while waiting to
board a
taxi and alleged that he was assaulted by the police in an attempt to
make him hand over a firearm. He persisted that Ms
Shabalala was
falsely implicating him. Under cross-examination he confirmed her
evidence that they had attended school together,
although his version
was that they were only in primary school together, and that he also
saw her at her place of employment when
he passed. He described an
incident in which he had been accused by Ms Shabalala of robbing her
of her cellphone. He admitted however
that she had not laid a charge
against him or even asked him for her cellphone again, although she
subsequently saw him passing
the shop where she worked. The appellant
alleged that between the hours of 9h00 and 17h00 on the day of the
robbery he had been
drinking and had passed the time with various
people.
The
judgment of the court a quo
[9]
The learned magistrate relied on the identification of the appellant
by Ms Shabalala, noting that the appellant was identified
by the
ornament in his mouth but also because she knew him well having been
at school with him. She found Ms Shabalala’s
evidence reliable
because she had nothing to gain by identifying the appellant as one
of the robbers and her evidence was consistent
and remained
uncontroverted under cross-examination. The magistrate held that had
Ms Shabalala previously accused the appellant
of robbery, it was
improbable that she would not have pursued the matter. She
therefore rejected the motive offered by the
appellant for Ms
Shabalala falsely implicating the appellant and rejected his version
as false. Finally she held that the two witness
corroborated each
other as to the events that occurred during the robbery, and although
Weide had not identified the appellant,
he did note the ornament in
his mouth. The learned magistrate was therefore satisfied that the
state had proved that the appellant
was one of the three robbers and
convicted him as charged.
Legal
Principles
[10]
It is trite that a court of appeal will not interfere with the
findings of fact and credibility
of the trial court unless it is
apparent from the record of the trial that the court
a quo
either materially misdirected itself or erred to the extent that its
findings are vitiated and fall to be set aside. Similarly
the court
of appeal must remain cogniscent that the trial court has the
advantage of having observed and heard the witnesses.
[11]
The following legal principles ought to inform the evaluation of the
evidence in this appeal,
as the central issue was identification.
11.1
The well-known principles relating to identification are set out in S
v Mthethwa
[2]
, in which the
Court pointed out that it is not enough for a identifying witness to
be honest but his observation must also be reliable.
Further the
reliability of identification must be tested in the light of the
totality of the evidence and the probabilities.
11.2
The appellant was identified by a single witness. It was held in
Stevens v S 2005 [1] All SA 1 (SCA)
at page 5d-e:
‘
In
terms of s 208 of the Criminal Procedure Act, an accused can be
convicted of any offence on the single evidence of a competent
witness. It is, however, a well established judicial principle that
the evidence of a single witness should be approached with
caution,
his or her merits as a witness being weighed against factors which
militate against his or her credibility. The correct
approach to the
application of the so-called ‘cautionary rule’ was set
out by Diemont JA in
S
v Sauls and Others
1981
(3) SA 172
(A) at 180E-G
[3]
…..’
Judgment
of the Court
a quo
[12]
In my view the learned magistrate properly relied on the
identification of the appellant by Ms
Shabalala as her testimony
about the robbery and her familiarity with the appellant was clear,
coherent and consistent and remained
uncontroverted under
cross-examination. Furthermore, the appellant himself confirmed that
they were well known to each other, and
had seen each other regularly
before the robbery.
[13]
Although Weide was not asked when testifying whether there was anyone
else present in the shop
with him at the time when the robbery took
place, this omission, in my view, was not fatal to the state case as
it did not undermine
the identification of the appellant by Ms
Shabalala. I am satisfied that Ms Shabalala was present at the time,
together with the
Indian customer as her evidence about the robbery
is consistent in all material respects bar one, with that of Weide:
three
men entered the shop; two of them went to Weide and the third
went to the counter; the appellant was the tall robber who approached
the complainant and carried a knife; a cellphone and money was taken
from Weide’s pockets.
[14]
However while Weide testified that the tall robber took his cellphone
from his left pocket and
the other one took R800 in cash from his
right pocket, Ms Shabalala testified that the appellant took a
Samsung cellphone and money
from Weide. This discrepancy, in my view,
does not vitiate the reliability of her identification of the
appellant.
[15]
However even when Ms Shabalala was standing outside, she remained
alert as she observed one of
the men (not the appellant) leaving with
a bag which had been on sale. Weide testified that the robber at the
counter took a bag.
[16]
It is also relevant to note that both Shabalala and Weide denied that
they had informed the police
that one of the robbers had wielded a
firearm, as recorded in their respective statements. In any event,
Weide explained that his
statement had been made through his son and
Ms Shabalala testified that she had merely explained what had
happened while the police
wrote it down, and the statement was not
read back to her. But both Weide and Ms Shabalala confirmed that the
appellant (‘the
tall robber’ with the gold teeth -
according to Weide) carried a knife with which he stabbed Weide. Ms
Shabalala described
the knife as an okapi knife.
[17]
Further although Weide stated that he was attending to the Indian
customer, Ms Shabalala stated
under cross-examination that she was
also
serving the Indian customer (my emphasis), an
indication that she together with Weide served the Indian customer.
When questioned
by the appellant as to why she was not robbed, Ms
Shabalala responded that it was because the appellant himself had
told her and
the Indian customer to leave the shop while he was
‘catching’ (searching?) the complainant. She also
explained, when
asked by the appellant who the complainant was
serving, that he was not serving anybody because ‘when a
customer comes he
will just stand and watch and I would serve the
customer’. Her response is consistent with Weide`s testimony
that he was
unable to speak English. Therefore he could not himself
have assisted the Indian customer, but must have been standing nearby
in
a supervisory capacity.
[18]
There is therefore little reason to doubt that Ms Shabalala had
adequate opportunity to observe
the appellant clearly during
the course of the robbery and while he was leaving the store and that
she identified him immediately
because she knew him well. When she
testified that she had been at school with the appellant from Grade
1-7 he did not dispute
her evidence. But under cross-examination he
alleged that he had been in school with her only up to Grade 3. His
allegation did
not in any way undermine her evidence that she knew
him for a long time. More significantly, the appellant admitted that
they saw
and greeted each other while she was a work for a year.
[19]
On the other hand I am satisfied that the version of the appellant as
to why Ms Shabalala was
falsely implicating him in the commission of
the robbery was correctly rejected as false beyond reasonable doubt.
Whereas the appellant
initially put to Ms Shabalala that she had
accused him of robbing her of her cellphone and the friend he had
been with, of rape,
he failed to sustain this version as he did not
mention the allegation of rape when testifying. However even his
allegation that
she had accused him of robbing her of her cellphone
was improbable as even on the appellant’s own version, she had
only confronted
him once and had subsequently greeted him passively
when he passed the shop. I therefore agree with the learned
magistrate that
his version was improbable. Further had there
been conflict between them, then the appellant would have anticipated
that
she would identify him to the police and avoided committing a
crime to which she would be a witness. But it would appear that to
the contrary, because the appellant knew Ms Shabalala for a long
time, he may have thought she would not identify him to the
police.
[20]
Under cross examination, the appellant pertinently asked Ms
Shabalala, “What stopped
me from concealing my face well
knowing that you also were there and you know me?”
to
which she responded pithily,
“
I
do not know what you thought by coming to commit the offence at the
shop well knowing that I know you.”
[21]
In the premises I am satisfied that the court a quo did not err or
misdirect itself in holding
that that the appellant was identified
beyond reasonable doubt as one of the perpetrators of the robbery and
in convicting
him as charged.
Order
The
appeal against the conviction of the appellant on the charge of
robbery with aggravating circumstances is dismissed.
Moodley
J
Marks
AJ
OLSEN
J (Dissenting)
[22]
This judgment was prepared in advance of the majority judgment, and
accordingly contains an account
of some facts which have already been
mentioned in the majority judgment. In order to avoid the delay
which would occur if
this judgment were to be recast to suit its role
as second-read, it has been left as it was.
[23]
It is not disputed that on 23 August 2013 a shopkeeper of Chinese
extraction, Mr Chen Weide,
was robbed at knife point in his shop in
Forbes Street, Ladysmith. A sum of R800,00 in cash, a cell
phone and a black bag
were taken. Three men were involved.
The State alleged that the appellant was one of them. The
appellant said
he was not. The appellant conducted his own
defence at the trial.
[24]
Mr Weide gave evidence in his own language with the assistance of an
interpreter. He was
the first State witness. A Ms
Shabalala was the other State witness. It was not disputed that
she was employed at the
shop Mr Weide ran. Neither is it
disputed that Ms Shabalala and the appellant knew each other and that
the appellant knew
that Ms Shabalala worked at that shop. They
had schooled together and, prior to the incident in question, the
appellant had
been accustomed to exchange greetings with Ms Shabalala
when the former passed by the shop. (The appellant also said
that
he came across Ms Shabalala at places of entertainment, one
specifically mentioned being “The 24” which is apparently
a local tavern.) The appellant was convicted because the
magistrate accepted Ms Shabalala’s evidence that she was inside
the shop when the robbery took place, standing more or less next to
Mr Weide, that the three robbers made no attempt to cover their
faces, and that she could accordingly identify the appellant by name
as the principal knife-wielding participant in the robbery.
[25]
It is convenient, before dealing with the State case, to note what
the appellant had to say about
his activities on the day in
question. The appellant lives at a place called Rossborne
which, judging by an exchange between
the prosecutor and the
appellant in cross-examination, is something less than two hours
travel (presumably in a taxi) from Ladysmith.
The appellant
came to Ladysmith on 23 August and was in the town by about 9am.
He met and spent time with three people during
the day, one Mphe, his
girlfriend and finally one Njabulo. His account of what he did
that day does not amount to an alibi
properly so called, as he did
not go so far as to say that he could account for his whereabouts at
the time the robbery took place;
that being accurately fixed as
minutes before 11h07, according to the state case.
[26]
Between 4 and 5 o’clock in the afternoon of the day in question
the appellant was standing
at the queue for taxis going to Rossborne
when he was arrested by the police. He was
handcuffed and taken to
the police station where he was told why he
was being arrested. He was questioned about a firearm. He
was twice tortured,
having what he called a “black plastic”,
into which something was sprayed, placed over his head in an effort
to get
him to disclose information about the firearm and to confess
his involvement in the robbery. The appellant says that he told
the police that he knew nothing about a firearm and that he was not
involved in the robbery.
[27]
The only State witnesses were the two I have mentioned. Neither
the arresting nor investigating
officers were called. Indeed
the appellant’s account of how he was arrested and what
happened after his arrest was
not challenged in cross-examination.
There is no evidence that upon his arrest the appellant was found
with anything which
might connect him to the robbery. (The
appellant’s evidence is that nothing was found to connect him
with the robbery.)
There was no evidence that a knife (or a
firearm for that matter) was found on the appellant. Mr Weide
was not able to make
a dock identification of the appellant. He
was able to say that the robber who wielded the knife (who Ms
Shabalala says was
the appellant) wore maroon trousers. The
State led no evidence as to what the appellant was wearing when he
was arrested.
[28]
The absence of police evidence means that it is not clear why, or on
what information, the police
arrested the appellant. It is
perhaps too easy to assume that it was on the basis of a report made
by Ms Shabalala.
If one makes the assumption that the appellant
was arrested on information received from Ms Shabalala, it would be
wrong to go
further and assume that the information she gave was as
apparently reliable as, and on all fours with, the evidence she gave
at
trial. According to the appellant someone else was arrested
before the appellant, and questioned at the same time as, but
separately from, the appellant. The record of pre-trial
appearances shows that there were originally two accused; that an
identification parade was held; and that ultimately the State
withdrew against the other accused. Nothing was said at the
trial by anyone concerning the other accused, or the identification
parade.
[29]
Mr Weide’s evidence was that on the day in question he was
serving and attending to an
Indian customer when three men entered
his store. One, taller than the others, held a knife to Mr
Weide’s stomach and
searched him, taking about R800,00 in cash
out of his left pocket. One of the others searched Mr Weide on
the other side,
and got his cell phone out of Mr Weide’s right
pocket. The third one was searching a counter, and took a black
bag
from there. The three then ran away. Mr Weide was
scared. He could only say something about the tall one.
What he said was that he was wearing maroon trousers and that he had
“special teeth”, having gold on the front teeth.
(It is clear on the record that the appellant wears some silver
ornamentation on his front teeth. Given the circumstances
in
which Mr Weide is said to have made his observation, I do not think
that the different appearances of gold and silver should
be regarded
as material.)
[30]
When the assailants left Mr Weide shouted out loudly for the police.
According to him the
first police on the scene did not help.
But at some later stage others came and took a statement from Mr
Weide.
[31]
From this it will be seen that according to Mr Weide’s account
of events there were five
players involved. They were the three
robbers, the customer and Mr Weide himself.
[32]
Ms Shabalala’s evidence introduces herself as the sixth player
in the events. According
to her she was serving the Indian
customer, with Mr Weide looking on, when the three robbers entered.
Two of them came to
where she, Mr Weide and the customer were
standing. One robber stood behind Mr Weide and the other
pointed a knife at his
stomach and took money from his pocket.
(In cross-examination she said that the one with the knife, whom she
identified as
the appellant, also took the cell phone, which is not
consistent with Mr Weide’s evidence.)
[33]
According to her evidence in chief at that stage she went outside.
From there she saw the
three emerge, two running off in one direction
and one in another. The latter carried a backpack. When
she was cross-examined
by the appellant this story developed.
She said that she left the shop taking the customer with her,
because, she said (speaking
to the appellant who was cross-examining
her)
“
you
told myself and the Indian person, who was an old man, to go out when
you were catching my boss.”
[34]
Mr Weide’s evidence is quite silent on what happened to the
customer. He certainly
did not say that the customer left the
store before the robbery was over (which could not have taken much
beyond a minute or so).
But of course, of more concern is the
fact that Ms Shabalala does not feature at all in Mr Weide’s
account of events.
This was overlooked by the learned
magistrate who held in her judgment that the two State witnesses
“corroborated each other
in respect of what took place on the
day in question”.
[35]
In cross-examining Ms Shabalala the appellant put it to her that she
contradicted Mr Weide on
the subject of who was serving the
customer. Her answer was “the boss was not serving
anybody because when a customer
comes, he will just stand and watch
and I would serve the customer”. A discrepancy on the
question as to who was serving
the customer and who was watching,
between two shop assistants standing next to each other, might not be
considered particularly
important, as long as their evidence
coincided on the fact that they were standing together, making a
company of three (as Ms Shabalala
would have it) with the customer.
But the contradiction is not so easily explained in this case; Mr
Weide’s evidence
as to what he was doing when the robbers
entered is too explicit.
“
I
was helping an Indian customer. So I was paying attention to
the Indian customer trying to – because he wanted to
buy
something and I was attending to him.”
[36]
It is plain from her judgment that the magistrate overlooked the
contradiction between the evidence
of Mr Weide and Ms Shabalala as to
who was serving the customer. But more importantly, as already
mentioned, she seems not to have
realised that Mr Weide’s
evidence does not put Ms Shabalala on the scene at all. The
magistrate’s failure to
deal with this aspect of the evidence
was a misdirection. The question is as to what we are to make
of it at this, the appeal
stage. Of course this flaw in the
State case must be seen within the greater context of all the
evidence before the court.
But the difficulty with the flaw is
that it relates to a crucial aspect of the case. If Ms
Shabalala was inside the shop,
standing in a small group with Mr
Weide and the customer, Ms Shabalala would have had the opportunity
properly to observe the appellant,
so that she could thereafter
positively identify him by name, because she knew him. If, on
the other hand, she was, for instance,
outside the shop at the time
(where another of Mr Weide’s employees was, whom the appellant
says she joined when she exited
the shop), then she might only have
had a fleeting glance of fleeing robbers; in which case, if she
thought one of them was the
appellant, her identification of him
would have been less reliable. What are we to make of the
prosecutor’s failure
to clear up this aspect of the case when
leading Mr Weide’s evidence? Was this an instance of an
oversight - prosecutorial
error? Or was the prosecutor
uncertain of the answer he would get if he asked the permissible
questions of Mr Weide which
would have established Ms Shabalala’s
presence at or absence from the scene; such uncertainty arising from
the fact that
the statement off which Mr Weide was being led was as
devoid of reference to Ms Shabalala as was Mr Weide’s oral
evidence?
If the latter is true then, in my view, Mr Weide’s
evidence on its own sounds the death knell of the case for the
prosecution.
It is difficult to accept the proposition that Mr
Weide would have made the same mistake twice.
[37]
I now turn to the question of a firearm. It will be recalled
that the appellant’s
evidence was that he was interrogated (to
put it at its lowest) by the police on the question of the use of a
firearm in the robbery.
If, when they arrested the appellant,
the police were acting on information which coincided with the
State’s evidence at
trial, then there would have been no reason
for the police to investigate the use of a firearm during the
robbery. When he
was cross-examining the two State witnesses
the appellant had what he understood to be the statements made by
each of them to the
police. When cross-examining Mr Weide he
established that whilst Mr Weide was scared and in a state of shock
during the course
of the robbery, that was not so when he (Mr Weide)
made his statement to the police. According to Mr Weide he was
“no
longer scared, I was like cool”. According to
Mr Weide “everything I said was under oath was written was
correct”.
(I think that properly punctuated the record
should read “everything I said was under oath, was written, was
correct.”)
It was put to Mr Weide that it was recorded in
the statement that a firearm had been pointed at him. Mr
Weide’s answer
was that he did not see a firearm. He then
backtracked on the quality of his statement, explaining that his
English was not
good (he could not write English), and that he had
the assistance of his son “with his own little English to
explain to the
policeman who helped us to write”.
[38]
At that point the magistrate intervened suggesting, in effect, that
the appellant should confine
himself to questions showing the court
that he did not commit the offence. The following exchange
ensued.
‘
ACCUSED
I am going there, your Worship, because I am looking at what is
recorded there. I want to gauge if
whatever is recorded there,
was mentioned by the witness because when I look at what is recorded
in the statement and from what
the witness has explained in his
evidence, it seems like the statement was not made by the witness.
COURT
Mr Khumalo, the first I said when the proceedings
started is you must listen carefully to the evidence. If you
were listening
carefully you would have understood that you were not
implicated, they are talking about the tall guy. They have not
said
who was the tall guy on the day in question.”
The
accused immediately stopped his cross-examination.
[39]
It is the duty of a presiding officer when confronted with an
unrepresented accused both to inform
the accused of procedural rights
and to assist in the exercise of them. (See, for instance,
S
v Ndou
2006 (2) SACR 497
(T), and the selected list of duties set
out at pages 499 to 500; and
Sithole v The State
(604/12)
[2013] ZASCA 55
(4 April 2013), and, with specific reference to
the subject at hand, subparagraph (b) of paragraph [8] of that
judgment.)
Here the appellant was armed with a statement
apparently made by Mr Weide in which there is some reference to a
firearm being used
in the course of the robbery. Whilst the
magistrate was concerned to ensure that the appellant asked no
questions which would
upset Mr Weide’s failure to identify the
appellant, the effect of her intervention was to obstruct an attempt
by the appellant
to establish a material contradiction between Mr
Weide’s statement to the police and his evidence in court.
In my view
the magistrate had a duty to explain to the appellant how
the statement with which he had been furnished could be admitted in
evidence;
and at the same time also to explain to the appellant that
the admission of the document in evidence could have effects which
might
be both beneficial and detrimental to the appellant’s
defence.
[40]
Unfortunately the same thing happened when Ms Shabalala was
cross-examined by the appellant.
It appears that the appellant
made a lengthy statement to the interpreter which the interpreter was
unable to frame as a question
for Ms Shabalala, whereafter the
following ensued.
“
INTERPRETER
Your Worship, it seems like the witness has said a lot of – the
accused has said
a lot of things. He spoke about the
investigating officer, what was written in the statement and the
firearm.
COURT
Try to make your statements questions so that the
interpreter will be able to interpret everything.
ACCUSED
I want to know was the statement written by you?
--- Yes … [answering in English].
Why
are you denying that there was a firearm involved during the
robbery?
COURT
Ma’am, did you write in your statement that
there was a firearm involved? --- No
ACCUSED
I do not know whether this is your statement but I
would have to enquire from the investigating officer, but it is
recorded in the
statement. --- … [answer not
interpreted]
COURT
You can move to another question sir.”
The
appellant then asked another question of Ms Shabalala, again derived
from her statement, and concerning a claim that she could
identify
someone else involved in the robbery; this generated a further
intervention from the court, saying that the case did not
concern
anybody else but the appellant. This passage then follows.
“
ACCUSED
I am asking these questions because it seems that this statement was
not written by her because there are things
that I have explained
there that she has not mentioned.
COURT
Mr Khumalo, you have asked the same question three
times. I have allowed you to ask. This witness confirmed
that she
wrote the statement. If there are things contained in
the statement you can put it to the witness for her comment, but if
you keep on repeating the same question, I will have to stop you.”
The
appellants cross-examination came to an abrupt end 12 lines later in
the record. Nothing more was said about the firearm.
[41]
Only one issue was raised with Ms Shabalala by the prosecutor in
re-examination. It concerned
her statement. The
prosecutor asked whether she wrote it down or whether she narrated it
to a police officer. The answer
was “I explained and the
police officer wrote it down”. She was then asked whether
the statement was read back
to her and she replied in the negative.
Those questions were wholly unnecessary in re-examination unless the
truth of the
matter is that the prosecutor was aware of a
discrepancy, or discrepancies, between the statement Ms Shabalala had
made to the
police and her evidence before the court. It is
plain that the appellant was cross-examining both Mr Weide and Ms
Shabalala
with statements in his hands recording that a firearm was
involved in the robbery. In his application for leave to appeal
one of his grounds was that he held such statements in which they
said that a gun was involved. He went on to state that
most of
his key questions directed to both of the witnesses “were
withdrawn by the Honourable Judge”. These matters
were
mentioned by the learned magistrate as reasons justifying her grant
of leave to appeal.
[42]
In my view the issue of the witnesses’ mention of a firearm in
their statements is of substantial
importance. It was not
considered at all by the magistrate in her judgment.
Discrepancies between witness statements
and the evidence they give
in court are often of minor consequence. But here one cannot
but proceed upon the assumption that
each of Mr Weide and Ms
Shabalala knows the difference between a knife and a gun. And
it is remarkable that the same error
(if it was an error) was made in
each statement, given that the one witness was having his statement
translated from a Chinese
language into English, and the other from
(presumably) Zulu into English. If the appellant put these
questions regarding
a firearm to the two State witnesses because of
some misreading of the statements, or perhaps dishonestly, the
prosecutor would
have been entitled to prove the statements in order
to correct the false impression concerning the credibility of the
State witnesses
which the appellant was trying to create. The
prosecutor failed to exercise that right.
[43]
Like most accused persons confronted with evidence such as Ms
Shabalala’s identification
of the appellant in this case, the
appellant felt it necessary to deal with the question as to why Ms
Shabalala would falsely implicate
him. He put it to Ms
Shabalala that she drank alcohol, but she denied it. He put it
to her that on an occasion in July
(i.e. the month before the
robbery) at The 24 there was an occasion when her blackberry cell
phone was taken and she was raped;
(elsewhere he put it that the
person he was with on that occasion had sexual intercourse with Ms
Shabalala); she denied that.
The appellant put it to Ms
Shabalala that the next day, while he was playing dice at the local
rank, she came to him and accused
him of having taken her cell phone;
which she also denied. In his own evidence he said that after
that there was no mutual
greeting when he walked past the shop where
she worked. The learned magistrate accepted Ms Shabalala’s
version concerning
these issues, asking why Ms Shabalala would keep
quiet because she seemed to be a confident woman, a person who “will
be
able to report if there is an incident especially happening to
her”. (The appellant confirmed in evidence that if a
complaint had been made to the police following this event at The 24,
it had not resulted in him being arrested or charged.)
The
magistrate rejected the evidence of the accused saying that “it
seems to be fabricated”. She found that he
was not a good
witness and suggested that he kept on evading questions, “coming
up with long stories when he was asked to
clarify his evidence”.
In my view a reading of the record suggests that the criticism of him
that he was evasive and
came up with “long stories” is
not justified.
[44]
The magistrate held that the accused’s version was improbable.
If what she had in mind
was the dispute between the appellant and Ms
Shabalala over the incident in July, which, the appellant suggested,
gave her motive
falsely to implicate the appellant, then, if that was
her view, the magistrate was entitled to say that it struck her as
improbable.
But I see nothing else in the defence version which
she could brand improbable. If the magistrate had it in mind
that his
treatment at the hands of the police immediately after his
arrest was improbable, and that his interrogation on the subject of a
firearm was improbable, then she misdirected herself. That
aspect of his evidence was not challenged at all; let alone
cotradicted
by State evidence.
[45]
Insofar as probabilities are concerned, the magistrate failed to deal
at all with the question
as to why the appellant would have
participated in a robbery at Mr Weide’s store without making
any attempt whatsoever to
disguise himself, when he knew that Ms
Shabalala worked there and would be able to identify him if she was
inside the store.
When cross-examining Ms Shabalala the
appellant put this problem to her and she responded by saying that
she did not know what
he thought he was doing by coming to commit the
offence at a shop where she worked. She offered no suggestion
as to why the
appellant might think that she would not identify him
to the police. The magistrate misdirected herself in her
assessment
of the overall probabilities by failing to bring this
factor to account.
[46]
The magistrate rejected the evidence of the appellant with few words
in her judgment by way of
explanation for having done so. She
appears to have been favourably impressed with the manner in which Ms
Shabalala gave
her evidence, and took the view that it was important
that she maintained her story through cross-examination. But
the magistrate
overlooked that she had herself obstructed
cross-examination more than once, and the fact that the
cross-examination was that of
an unrepresented accused person.
The appellant received no assistance from the magistrate with
cross-examination. The
only question put to Ms Shabalala by the
magistrate was the direct question already mentioned, as to whether
the witness had written
in her statement that there was a firearm
involved. That was not designed to assist the appellant.
It was designed
to terminate cross-examination on that issue.
[47]
By virtue of the misdirections already mentioned it is necessary for
us to decide on the record
as to whether the conviction of the
appellant can be maintained. In my view the State’s case
falls short of proof beyond
a reasonable doubt. The
identification of the appellant rests upon the proposition that Ms
Shabalala was inside the store
when the robbery occurred. Why
did the State not clear up Mr Weide’s failure to give an
account of events which includes
Ms Shabalala as a participant in
them? Why, if events were as simple as the respective versions
of Mr Weide and Ms Shabalala
make them out to be, was the accused
cross-examining those witnesses with statements in his hands which
said something about a
firearm being involved in the robbery?
If they had been told the same version of the robbery as was given in
court by the
witnesses, why would the police have interrogated the
appellant on the subject of a firearm being involved in the robbery.
In my view the fact that these questions remain unanswered, coupled
with the other matters to which I have referred earlier, leads
to the
conclusion that the conviction in this matter was not safe. I
would have upheld the appeal. As this is a dissenting
judgment,
no order flows from the views I have expressed.
OLSEN
J
Date
of Hearing: TUESDAY, 08 DECEMBER 2015
(COURT
CONSTITUTED IN TERMS OF SECTION 14(3) OF THE SUPERIOR COURTS ACT)
Date
of Judgment: :TUESDAY, 09 FEBRUARY 2016
For
the Appellant : Ms Z ANASTASIOU
Instructed
by: LEGAL AID OF SOUTH AFRICA
Appellants’
Attorneys
183
CHURCH STREET
PIETERMARITZBURG
(Ref.:
Ms Z Anastasiou)
(Tel
No.: 033 – 394 2190)
For
the Respondent: MR N DUNYWA
Instructed
by: Director of Public Prosecutions
325
Pietermaritz Street
Pietermaritzburg
(Ref.:
Mr N Dunywa)
(Tel.:
033 – 845 4400 / 033 – 392 8729)
[1]
as
defined in Section 1(1) of the Criminal Procedure Act No 51 of 1977
(the Act), read with sections 51 and 52 of the Criminal
Law
Amendment Act No 105 of 1977
[2]
1972
(3) SA 786
(A) at 768A-D
[3]
‘There is no rule of thumb test or formula to apply when it
comes to a consideration of the credibility of a single witness…
The trial judge will weigh his evidence, will consider its merits
and demerits and, having done so, will decide whether it is
trustworthy and whether, despite the fact that there are
shortcomings or defects or contradictions in the testimony, he is
satisfied that the truth has been told. The cautionary rule referred
to by De Villiers JP in 1932 (in
R
v Mokoena
),
may be a guide to a right decision but it does not mean “that
the appeal must succeed if any criticism, however slender,
of the
witnesses’ evidence were well founded ….” It has
been said more than once that the exercise of caution
must not be
allowed to displace the exercise of common sense.’