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[2016] ZAKZPHC 54
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Nkwanyana and Others v S (AR765/14) [2016] ZAKZPHC 54 (21 June 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR765/14
DATE:
21 JUNE 2016
REPORTABLE
In
the matter between:
NKOSIKHONA
NKWANYANA
...................................................................................
First
Appellant
THOKOZANI
NTANZI
..............................................................................................
Second
Appellant
SKHUMBUZO
MTHETHWA
.....................................................................................
Third
Appellant
Vs
THE
STATE
...........................................................................................................................
Respondent
APPEAL
JUDGMENT
Delivered:
21 June 2016
MBATHA,
J
[1]
The appellants in this matter were granted leave to appeal by the
court
a quo
against
conviction only. The first appellant was convicted for robbery with
aggravating circumstances, the unlawful possession of
a prohibited
firearm and five counts of attempted murder. The second appellant was
convicted of possession of a prohibited firearm
and five counts of
attempted murder and appellant 3 was convicted of only the five
counts of attempted murder.
[2]
On 13 August 2010, the complainant, Sibongile Bulewephi Ngcongo, was
robbed at her shop of various goods and money by armed
robbers. She
described them as travelling in a cream white Toyota Cressida with a
Durban registration number. She made a call to
the police at
Kranskop, wherefrom the police pursued the cream white Toyota
Cressida.
[3]
The police officers gave evidence that they pursued the said motor
vehicle. As soon as the occupants of the Cressida realised
that the
police were in pursuit of them they pulled off the road. The
occupants of the Cressida got out, fired shots at the police
officers
and ran into the bush. Subsequently their commander, Colonel Minaar,
arrived in a helicopter, whereupon two officers joined
him in search
of the occupants, who had fled from the Cressida motor vehicle. It
was the Officers Mhlongo’s and Cele’s
evidence that
appellant 1 was caught and was found in possession of an Uzzi
firearm. Appellant 2 was arrested a few days later
in Mandeni and was
also found to be in possession of a prohibited firearm at the time of
his arrest. Appellant 3 had handed himself
over to the police
officers a few days after that. It was also the evidence of the
officers who arrested appellant 1, that one
of the suspects was found
lying dead in the forest, with a revolver next to him. He had been
shot in the chest and had succumbed
to his injuries.
[4]
The state had led the evidence of Ms Ngcongo and that of all five
officers who had pursued the Cressida, namely, Constable Muzi
Makhubela, Constable Nokuphiwe Cele, Constable Mikion Nzimande,
Constable Siyabonga Sibeko and Constable Thandoluhle Mhlongo. It
also
led the evidence of Warrant Officer German Sosibo who arrested
appellant 2 as well as the evidence of Warrant Officer Mlungisi
Hadebe who collected the exhibits from the scene of the shooting,
photographed the area and forwarded the firearms and spent cartridges
to the ballistic laboratory for analysis. Captain Ndima, a senior
forensic analyst also gave ballistic evidence regarding the firearms,
ammunition and spent cartridges that had been forwarded to the
ballistic laboratory for analysis and testing.
[5]
A trial within a trial had also been held in respect of a statement
made by appellant 3 to the Magistrate, Mr Du Toit. All the
appellants
testified in their trial.
[6]
It
is trite that as we sit as the Court of Appeal, we can only interfere
with the trial court’s judgment if there is a misdirection
either on law or fact as stated in various
dicta
,
including
S
v Bailey
,
[1]
where the court had this to say:
‘
The
powers of the Court of appeal findings of a trial court were strictly
limited. If there had been no misdirection on the
facts, there
is a presumption that the trial Courts’ evaluation of the
factual evidence is correct.’
[7]
The learned regional court magistrate, with regard to count 1 of
robbery with aggravating circumstances, found that the complainant’s
evidence was clear and persuasive, that she had made a positive
identification of appellant 1 and had found her to be a reliable
and
trustworthy witness. Ngcongo’s evidence was that the incident
occurred in broad daylight at midday, which enabled her
to identify
her assailants. Her evidence is that two males had entered the shop,
two stood at the door and one had remained in
the motor vehicle.
Appellant 1 had also demanded that she give him the money and her
late husband’s firearm. As a result
of the robbery they took
all the money, cigarettes, sweets and a cellphone belonging to a
customer. She was locked inside the shop
by appellant 1 when they
exited. Her evidence is that the person who had pointed a gun at her
was not present in court, but she
made a dock identification of
appellant 1 as the person who demanded money from her.
[8]
It is trite that in respect of count 1 her evidence must be treated
with caution as it is the evidence of a single witness.
It transpired
during the trial that Ngcongo had given two statements to the police
officers. The first one is undated but one can
deduce from its
contents that it was taken down after the arrest of appellant 1, as
it states that Ngcongo and others proceeded
to follow the police
motor vehicles to the direction taken by police officers in chasing
the Cressida, whereupon they came upon
a police motor vehicle convoy.
Ngcongo and others stopped when they saw a cream white Cressida that
was being towed amongst police
motor vehicles. She then approached a
police van where she saw a male person of medium size, light in
complexion and of about 24
years of age. She then realised that this
was the man who had pointed a firearm at her, as he wore white ‘All
Star’
takkies. She had asked him for his name, whereupon he
said he was Nkwanyana from Mhlangandlovu. She also learnt that he was
24
years old. Upon realising that appellant 1 had been one of the
occupants of the Cressida she asked him for the name of the person
who had died after the shooting with the police officers.
[9]
Ngcongo thereupon proceeded down the hill to take a look at the
deceased. She observed that the deceased was dark in complexion
but
had visible traditional marks on his face. She identified the
deceased with a green t-shirt that he was wearing when he pointed
a
gun at her.
[10]
The second statement deposed by Ngcongo on 13 August 2010 does not
give any description of her assailants save that there were
five men
and that one of them came inside the shop to the counter, grabbed her
and pointed a small black firearm at her.
[11]
It is clear from these two statements that Ngcongo was never given
any opportunity to describe her assailants to the police
officers.
Her statements were taken after she had gone to the police van to
look at the person who had been arrested by the police
officers. When
Ngcongo gave her evidence in court her evidence was that appellant 1
was not in possession of the firearm, but in
her statement, she
positively identified him as the person who had pointed a firearm at
her. When she was cross-examined specifically
on how she identified
her assailants she admitted that she did not recall what they were
wearing nor could she give any discerning
features of any of her
assailants. Ngcongo gave a general description of a young man, tall
and light complexioned, a description
which could fit any other
person. Ngcongo’s evidence cannot be relied upon as she tried
to deny under cross-examination that
appellant 1 and the deceased had
been shown to her to identify before the trial started. In that
regard her evidence-in-chief is
suspect as to the identification of
her assailants. I find it to be very convenient for her that in her
statements having seen
appellant 1 and the deceased she mentions that
appellant 1 and the deceased pointed firearms at her. This is
contrary to her evidence-in-chief.
It is also not in dispute that a
firearm was found next to the deceased’s body.
[12]
It
is trite that when the issue is one of identification, that the court
must treat such evidence with caution because of the fallibility
of
human observation. It is not enough for the identifying
witnesses to be honest; the reliability of his/her observation
must
also be tested. This depends on various factors such as lighting,
visibility and eyesight. The proximity of the witnesses;
his or her
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, built; gait and dress; the results of identification
parades
if any and; of course the evidence by and on behalf of the accused.
The list is not exhaustive. The aforementioned principles
were held
in
S
v Mthethwa
[2]
by the Appellate Division as it was then. In the same case, the court
went on further to state that these aforementioned factors
or such
factors as they 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.
[13]
It is important to mention that in the exercise of caution it must be
borne in mind that though the incident took place at
midday it
occurred unexpectedly and that the element of surprise and fear could
be factors that may have affected the observation
faculties of the
complainant. In
R
v Shekelele and another
,
[3]
the court held that in all cases that turn on identification the
greatest care should be taken to test the evidence. If the evidence
remains untested, it leaves the door wide open to mistake.
(a)
In this case dock identification of appellant 1 was made by Ngcongo.
The complainant had already seen the appellant in the police
van and
had interviewed him prior to her giving a statement to the police.
Dock identification is not admissible in our courts,
though it may be
relevant when considered with the totality of all the evidence before
court. Identification of the accused in
court is of very little
probative value. Prior identification carries more weight. Evidence
that a witness had previously, to the
police and before trial,
identified a person is admissible. This was not the case in this
matter. An identification parade ought
to have been held prior to
Ngcongo identifying appellant 1.
(b)
Constable Mhlongo also confirmed that they could not have held an
identification parade as the complainant had already seen
the
appellant previously prior to the hearing of this matter. This made
her dock identification to be of little probative value.
In
this case the court solely relied on her evidence though it was open
to criticism in that the statements were taken after
she had seen the
appellant and the deceased. Her evidence in chief also contradicted
her statements in a material way.
(c)
The trial court also misdirected itself in accepting the two
statements of Ngcongo as forming part of her evidence in chief
on the
basis that it is in the interest of justice to do so. The court was
not dealing here with the admission of hearsay evidence,
to have
applied the principles applied in Section 3 of the Law of Evidence
Act.
[4]
(d)
The previous inconsistent statements of Ngcongo were handed in, in
the interests of justice, without her confirming that she
made the
statements, without establishing whether it was read back to her and
establishing if she had been asked to confirm the
correctness of the
contents thereof. She should have been asked if her signature
appeared thereon and confirm the signature or
mark on the statement.
This was not done in respect of the one statement that was signed by
the complainant. The other statement
bore no date, and was not
commissioned.
(e)
She was not given an opportunity to explain the inconsistencies and
discrepancies in her statements. The failure to allow
cross-examination
on the contents of the statements and admitting a
previous inconsistent statement in the interests of justice is a
fundamental
irregularity which we cannot ignore in this matter.
(f)
The learned magistrate has made findings on the credibility of the
complainant irrespective of the previous inconsistent statements
that
were handed in court. They are clearly inconsistent to her evidence
in chief. The statements were accepted as evidence. It
is my view
that a witness statement is never treated as evidence of facts.
[14]
The complainant was allowed by police officers to question appellant
1 after his arrest. The complainant’s statement
admitted as
Exhibit ‘A’ states that she enquired about the personal
details of both appellant 1 and the deceased as
well as the
whereabouts of the cell phone from appellant 1. The appellant’s
response was that the cell phone was left with
Thokozani Ntanzi,
Skhumbuzo Mthethwa and Sizwe Mkhize. This is inadmissible evidence,
as it forms part of the statement which was
wrongly admitted by the
court in the interests of justice. It must be excluded as appellant 1
responded to her questions whilst
he was in the custody of the
police. The evidence which she in fact elicited from the appellant is
in fact incriminating evidence
against him. We cannot ignore what was
stated in
S
v
Matlou
and another
:
[5]
‘
Relying
on the authority of
R
v Samhando
1943
AD 608
and
S
v Sheehama
[1991] ZASCA 45
;
1991
(2) SA 860
(A) the learned judge admitted the evidence concerning the
alleged discussion which the first appellant allegedly had with the
deceased's spouse, during which, at the suggestion by the police, she
asked him where the deceased's missing head was, and to which
he
replied that, when he threw the deceased's body in the bush, it still
had its head intact. The learned judge found that this
conversation
was in a different category, as opposed to a disclosure to the
police. He further found that the first appellant could
either have
responded or refused to respond to this question by the deceased's
spouse. To my mind, the learned judge erred
in this respect. It
is clear that the first appellant was under arrest and in the
presence of more than one police officer at this
critical stage of
the investigation. It is the police that instigated or prompted the
deceased's spouse to ask the first appellant
this question which
elicited such an incriminating response. The possibility that the
first appellant was under the undue influence
of the police at the
time cannot be excluded. To my mind, this negated any volition which
he might have had to refuse to answer.
See
R
v De Waal
1958
(2) SA 109
(GW) at 111A - 112F.
[15]
When appellant 1 spoke to her, he was not advised of the right to
remain silent or not to make any incriminating statements
and the
consequences thereof. This was in violation of subsections 35(1)(a),
(b) and (c) of the Constitution
[6]
which provides as follows:
‘
(1)
Everyone who is arrested for allegedly committing an offence has the
right;
(a)
to remain silent;
(b)
to be informed
promptly
(i)
of the right to
remain silent;
(ii)
and the consequences
of not remaining silent;
(c)
not to be compelled
to make any confession or admission that could be used in evidence
against that person.’
The
evidence given by appellant 1 to Ngcongo was improperly elicited as
the appellant was in police custody. The admission of such
evidence
by the trial court rendered the trial unfair.
[16]
In the light of the aforementioned, I also find that the evidence of
the complainant against the first appellant was not satisfactory
and
the court
a quo
on
her evidence alone should not have convicted appellant 1 on the armed
robbery count.
[17]
The trial was mired with a lot of procedural issues which led to
arguments, regarding the admissibility of evidence. The presiding
officer’s use of vulgar language in reprimanding the witness,
Warrant Officer Sosibo, is unacceptable. He should not have
stooped
so low as to taint the dignity of the office that he represents. It
was not fair on the witness concerned, particularly
when he was the
one who should protect witnesses in cases where harsh, unbecoming
words or rude cross-examination by the other
officers of the court is
done. Section 10 of the Constitution
[7]
provides as follows:
‘
Everyone
has inherent dignity and the right to have their dignity respected
and protected.’
[18]
The evidence relating to the attempted murder charges was rightly
accepted by the court. The only discrepancies or contradictions
were
in respect of the evidence given by Constable Makhubela, who could
not recollect exactly what happened when they approached
the
Cressida. The other four officers confirmed that appellant 1 was
identified by his blue jersey, the deceased wore a green t-shirt
and
appellant 2 had a big winter navy coat on. They all confirmed that it
was the driver of the Cressida who got out first and
fired in their
direction, which was followed by a volley of bullets from the rest of
the persons who disembarked from the Cressida.
The evidence of
Constable Mhlongo, the investigating officer, who was present at the
scene when the occupants of the motor
vehicle fired at them, was
conclusive in a material respect. Mhlongo being in the police motor
vehicle that was in the front positively
identified all the occupants
thereof not only by what they were wearing but also by their physical
features too. He saw appellant
1, 2 and 3 alight from the Cressida.
His evidence is that they are all from his neighbourhood, they grew
up together and even identified
the places where they live. He knew
appellant 1 when he had been previously arrested as he had to serve
him food whilst in custody
between the years 2006 to 2010. He had
recently seen appellant 3 who had come to the police station to sign
in terms of the bail
conditions relating to another matter. Appellant
3 and his family are well known to him. They used to hunt buck with
appellant
3. Appellant 3 had also handed himself over after Mhlongo
had contacted his brother and left a message with him to the effect
that
appellant 3 was required to report to the police at Kranskop.
[19]
Appellant 1 was also convicted of being found in possession of a
prohibited firearm, commonly referred to as an Uzzi, a fully
automatic Walter Model MP. The evidence of Captain Ndima, a senior
forensic analyst was heard in regard to the ballistic findings
regarding the firearm found by the police officer in possession of
appellant 1. His evidence was that the trigger mechanism of
the
Walter Model MP, was defective and it could not discharge ammunition.
He described it as not a rifle but a hand carbine, which
requires the
use of both hands when it is fired as it is heavy and that it uses
the same ammunition as the 9mm pistol.
[20]
Ndima’s evidence was that the trigger mechanism was
dysfunctional as it was rusted. It was examined on 10 September 2010
a few weeks after the incident. His evidence is that it could not
have been capable of firing ammunition even on 13 August 2010.
Ndima’s evidence can only mean that the 9mm spent cartridges
could have been discharged from the policemen’s handguns
or any
other handgun. He also found that the 21 cartridges found on the
scene of the shooting were fired from the .38 Taurus special,
which
was found next to the deceased. The cartridges identified in ‘K3’,
‘K4’, ‘K5’ and ‘I’
were fired
from another firearm. There was no evidence from any of the spent
cartridges that indicated that they were fired from
the Uzzi. It was
not canvased at the trial whether the defect in the Uzzi could have
been rectified by repairing the firearm. It
is my view that in the
light of its defect it is not a firearm as it is not capable of
firing ammunition and the appellant should
be given the benefit of
the doubt.
[21]
We accept that appellant 2 was found in possession of the .38 Rossi
and that it qualifies as a prohibited firearm. It was found
in his
presence at his home. There is no link of this firearm to the scene
of the shooting and the only person who was in possession
thereof,
was appellant 2 who had no licence.
[22]
The trial court, also considered the appellants’ versions given
in their defence. An accused’s version can only
be rejected if
the court is satisfied that it is false beyond a reasonable doubt. An
accused is entitled to an acquittal if there
is a reasonable
possibility that his or her version may be true. In this matter the
appellants relied on the defence of an alibi.
There is no onus on any
accused person to prove an alibi defence, if it might be reasonably
possibly true he must be acquitted.
However, the alibi must not be
considered in isolation, it must be considered with all the evidence
given at the trial. If an alibi
is raised or a bare denial is
advanced as a defence, the state has a duty to lead evidence that
will link the accused with the
crime, which evidence must be
sufficient and credible.
[23]
Despite the shortcomings in the state’s case, the court had to
be satisfied that the truth has been told. Certain items
were found
inside the Cressida. However, this aspect of evidence was not fully
canvassed at the trial. This court could not then
infer that the
cigarettes and sweets found in the Cressida were those stolen from
the shop. This was merely mentioned in passing
and no details as to
the nature and quantity thereof was given so as to tally with the
goods stolen from Ngcongo. Therefore, the
trial court rightfully did
not infer that those items were the proceeds of the robbery.
[24]
The court accepts that the trial court rightfully convicted the
appellants on the attempted murder charges because of the direct
evidence given by the witnesses thereto. This is corroborated by the
ballistic evidence given by Captain Ndima. As to the common
intention
of the perpetrators on the attempted murder charges this can be
inferred from the facts of the case as they abandoned
the motor
vehicle, fired shots and ran into the forest.
[25]
In the examination of the facts and the probabilities, the court came
to the conclusion that their versions were not possibly
true. The
trial accepted the state’s version and rejected their defences.
I am satisfied that the state has proved its case
beyond a reasonable
doubt in respect of the .38 special revolver found in possession of
appellant 2 and the attempted murder charges.
The appeal in respect
of appellant 1 in respect of count 1 and 2 is upheld. The
appeal in respect of counts 4, 5, 6, 7 and
8 is confirmed in respect
of all three the appellants. The appeal on count 3 in respect of
appellant 2 fails.
Regarding
Sentence
[19]
In the light of the setting aside of the conviction on counts1 and 2
in respect of accused 1. I make the following order:
“
1.
(a) The convictions in counts 1 and 2 in respect of accused 1 are
hereby set aside.
(b)
The sentences of ten (10) years and seven (7) years imprisonment
imposed in respect of accused 1 are hereby set aside.
2.
(a) The convictions
on counts 4, 5, 6, 7, and 8 are confirmed in respect of accused 1, 2
and 3. The sentence of eight (8) years
imprisonment in respect of
each count is confirmed.
(b)
The sentences on
counts 4, 5, 6, 7 and 8 are to run concurrently with each other.
3.
(a) The conviction on
count 3 in respect of accused 2 is confirmed.
(b)
T
he
sentence of seven (7) years imprisonment imposed in respect of count
3 is confirmed.
(c)
The sentence of seven (7) years will run concurrently with the
sentences imposed on counts 4, 5, 6, 7, and 8.
4.
Accused 1, 2 and 3
are each effectively sentenced to eight (8) years imprisonment.
5.
The sentences are
antedated to 19 December 2013.”
MBATHA
J
I
agree:
HEMRAJ
AJ
Date
of Hearing: 07 June 2016
Date
of Judgment: 21 June 2016
Appearances
Counsel
for the Appellant: Adv D Franklin
Instructed
by:
Legal Aid South Africa
Pietermaritzburg
Counsel
for the Respondents: Adv IP Cooke
Instructed
by:
The
Director of Public Prosecutions
Pietermaritzburg
[1]
2007
(2) SACR 1
(C) para 16.
[2]
1972
(3) SA
766
(A) at 768A-C.
[3]
1953
(1) SA 636
(T)
at
638G-H
.
[4]
Act
45 1988, as amended.
[5]
2010
(2) SACR 342
(SCA) para 23
[6]
Constitution
Act 108 of 1996
[7]
Constitution
Act 108 of 1996