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[2016] ZAKZPHC 106
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Madondo v S (AR350/2016) [2016] ZAKZPHC 106 (8 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR350/2016
In
the matter between:
S
MADONDO
Appellant
and
THE
STATE
Respondent
Coram:
Koen J (Chetty J concurring)
Heard:
22 November 2016
Delivered:
8 December 2016
ORDER
1. The appellant’s appeal
against conviction succeeds.
2. The conviction of the appellant of
robbery with aggravating circumstances, and the sentence imposed by
the court
a quo
in respect of the appellant (Accused 1 in the court
a
quo
), are set aside and
substituted with a finding of ‘Not Guilty’.
JUDGMENT
KOEN
J
[1]
The appellant, who was accused 1 in the court
a quo,
was
convicted of robbery with aggravating circumstances. Following his
conviction he was sentenced to fifteen (15) years imprisonment
of
which three (3) years were suspended for five (5) years on condition
that he was not again convicted of robbery with aggravating
circumstances committed during the period of suspension. Leave
to appeal against conviction and sentence was refused by the
court
a
quo
but following a petition to this Court, leave to appeal
against conviction was granted.
[2]
It is not in dispute that on 6 May 2015 and at or near the Slovo
area, Edendale, Plessislaer, the complainant, Mfundo Ngenwa,
was
confronted by three assailants, one armed with a firearm and another
with a knife, which resulted in his Samsung cellular phone
valued at
R1 400.00 and a wallet being taken from him forcibly. He
identified accused 2 as one of his assailants, as he was
known to him
since 2010 when he moved into the area. The other two assailants he
did not know. What was in dispute before the court
a quo
was
whether the appellant was one of these two assailants.
[3]
The robbery occurred whilst the complainant was on his way from his
parental home to his place of residence at approximately
8.30pm. He
was confronted by accused 2 who grabbed him by his clothing from
behind, placed a knife against his neck and demanded
the cell phone.
Accused 2 removed the complainant’s wallet whilst one of the
other two co-assailants, not the one who
was armed with a firearm,
removed the cell phone from the complainant’s hand. The
complainant managed to run away to his
home where he reported that he
had been robbed.
[4]
The area where the complainant was robbed was on a footpath below a
road. There are street lights on the road, at a distance
of some 8 or
9 metres from where the robbery occurred. According to the
complainant the incident took ‘less than 10 minutes’,
or
‘about 10 minutes’. He was able to provide a description
of the clothing worn by accused 2 and that of the assailant
who was
armed with the firearm, but was unable to give a description of the
clothing worn by the assailant who removed his cell
phone. He also
did not provide a description of this assailant to those to whom he
reported the robbery at his home, nor did he
mention it initially in
his evidence-in-chief. Towards the end of his evidence-in-chief he
testified that during the robbery he
saw the faces of the appellant
and accused 2, but then immediately qualified it by saying that, ‘…
I did not see their
faces clearly they were holding me.’
[5]
The complainant does not know the appellant, nor does he know his
name. He had not seen the faces of his assailants ‘clearly’.
At best he would have observed his attackers with the limited
illumination emanating from the street lights some 8 to 9 metres
away. At the time of the robbery it was already dark. The assailant
who removed his cell phone however had to come sufficiently
close to
him to remove it from his hand. The event must however have been a
very emotional and traumatising one which would no
doubt have
affected his powers of observation and recall. It might be that the
opportunity to observe was not brief, being estimated
at
approximately 10 minutes, but this estimation might itself be open to
doubt as the robbery described by the complainant was
unlikely to be
of such a long duration. The harrowing nature thereof probably made
it feel much longer than it actually was.
[6]
There were various community members present at the complainant’s
home as one of his family members had passed away. He
did not give
any description of his assailants to any of the members or the
community, as one might expect if there was a particular
distinctive
identifying characteristic unique to his assailants, such as for
example a very light or very dark complexion, or a
distinctive
hairstyle such as for example dreadlocks.
[7]
Unfortunately the members of the community, who numbered somewhere
between twenty to thirty persons, then decided to take the
investigation into their own hands rather than leaving it to the
police. Their reasons for doing so are irrelevant. These community
members and the family of the complainant went out to look for the
perpetrators or suspects. At approximately 22h30 they
came
across accused 2. They started assaulting accused 2 (a knife
was allegedly found on his person, although it was never
produced in
court or as an exhibit). Accused 2 denied any involvement in
the robbery at first, but having been promised ‘a
hiding’,
allegedly said something to the community members present where after
he then led them to the home allegedly ‘of
the one who had been
with him when they committed the robbery’. It is not in dispute
that accused 2 and these various community
members arrived at the
home of the appellant shortly after midnight. At the home of
the appellant, the complainant saw the
appellant whom he said he
recognised as the one who had robbed him of his cell phone ‘by
his dreadlocks as well as his complexion’.
[8]
No previous description along those lines had been provided to any
law enforcement agency or even the members of the community.
Later during his evidence the complainant said that he had given that
description to the investigating officer, but when the investigating
officer was called to testify, this aspect was not even raised with
him by the prosecution. No interrogation as to the nature
of
the dreadlocks followed, for example whether the locks covered his
entire head, or were only at the back of his head. Nor was
there any
investigation of the complexion by which the appellant was allegedly
recognised, particularly whether it was a dark complexion
or a light
complexion, or whatever.
[9]
The basis for the complainant’s identification of the appellant
is summarised in a statement towards the end of his evidence
in chief
where he said that he identified the appellant by his ‘complexion
and dreadlocks and
the fact that accused 2 also took us to him, to
accused 1’
(my emphasis). That statement is significant
because it introduces the real danger that the seemingly positive
identification of
the appellant might have been caused or influenced
(possibly exclusively) by the conduct of accused 2 leading the
complainant and
the others to the appellant as a co- assailant. The
position would obviously have been different if the complainant had
right from
the outset reported to the community that one assailant
had dreadlocks and that there was something unique about his
complexion
(whatever that may be). But more importantly also, accused
2 did not proceeded to the home of the appellant freely and
voluntarily.
[10]
It was as a result of an assault on accused 2, that the crowd was led
to the home of the appellant. Whatever was communicated
by
accused 2 to the community and resulted in them ending up at the home
of the appellant, effectively pointing out the appellant
as allegedly
one of his co-perpetrators, was on any version not done freely and
voluntarily. The assault also subsequently extended
to the
appellant. The nature and extent of the assault might be
exaggerated in the evidence, but whatever the exact severity
of the
injuries, they did require hospitalisation, if for no other reason
than at least as part of police procedure to have detainees
who had
been assaulted examined by a medical practitioner. The evidence
of the arresting officer, Constable Sithole was that
when he went off
duty at 6 a.m. the next morning, the appellant and accused 2 where
still at hospital in connection with their
injuries.
[11]
The learned magistrate, who had the benefit of observing the
complainant, was impressed with his honesty and demeanour and
believed on the evidence, some of which is briefly outlined above,
that the opportunity for observation and identification of the
appellant was adequate to ensure the reliability of his
identification. She also appreciated that the complainant was a
single witness and that his evidence would have to be approached with
caution.
[12]
The danger in accepting the evidence of a single witness on
identification, even one honest and believed to have had a sufficient
opportunity to make a relatively reliable identification, always lies
in the possibility of a genuine mistake, or the witness coming
to
believe, because of the particular prevailing circumstances, that the
perpetrator to whom certain indicators might wrongly point,
in fact
being a co-perpetrator.
[13]
The complainant, although not injured in the robbery, experienced a
very traumatic event. He was not able to clearly
recall the
faces, could not describe the clothing of the appellant at all, did
not know the appellant by name or by appearance,
and was led to the
home of the appellant by an involuntary pointing out by accused 2
following an assault. The learned magistrate
in considering the
complainant’s evidence concluded that ‘what, however,
stood out for him was the facial structure
and complexion of accused
1 as well as the fact that he had dreadlocks.’ There was
no evidence that the identification
of the appellant was in any way
influenced by ‘the facial structure’ of the appellant.
It is in my view more
likely that the primary or determining factor
resulting in the identification of the appellant as a co-perpetrator
was, as the
complainant himself stated, ‘the fact that accused
2 also took us to him, to accused 1’.
[14]
With the suggestion that the person to whom accused 2 was taking them
being a co-perpetrator, the real possibility arises that
when faced
with a person with dreadlocks, that this person could be mistaken for
the assailant who had robbed him of his cell phone,
who might also
have had dreadlocks. It would have been easy for the
complainant to have referred to the fact that when the
robbery took
place and during the approximate 10 minutes that it lasted, he
noticed that the person who took the cell phone from
him had
dreadlocks and had a particular complexion. None of that
happened.
[15]
I would also have expected that when he reported the robbery to his
family and the members of the community, that such unique
identifying
features, at least in so far as the dreadlocks are concerned, would
immediately have been communicated by him to them
to assist in their
search of the perpetrators. However none of that happened.
That remains surprising and a disconcerting
feature of this case, and
the complainant’s evidence.
[16]
More important also is the inadmissibility of the evidence that
resulted in accused 2 and the community arriving at the home
of the
appellant, which seemingly played a major part in the complainant
concluding that the appellant was one of his assailants.
That conduct
of accused 2, whether it was accompanied by any oral statement by
accused 2 or not, has the effect of an extracurial
admission by a
co-accused against the appellant – see
S v
Litako and
others
2014 (2) SACR 431
(SCA). Accordingly, that evidence was in
my view inadmissible, even apart from the fact that it was not made
freely and voluntarily.
That evidence therefore clearly must be
disregarded.
[17]
All that then remains on the evidence regarding the identification of
the appellant, are his ‘dreadlocks’ and ‘complexion’.
In the absence of these having being explored to establish any unique
quality or nature thereof, doubt remains as to whether the
identification of the appellant was reliable beyond the possibility
of a mistake based on observations made under the difficult
circumstances which prevailed at the time of the robbery. The version
of the appellant had been that he was not involved in the
robbery.
That version cannot be said not to be reasonably possibly true. The
learned magistrate was critical of his failure to
have called his
family to support him on that score. However, his family members were
present when the community members came to
his home with accused 2
after midnight. I did not understand the evidence to be that they
were necessarily around to be able to
vouch for his whereabouts at
8.30 pm on that day. The appellant furthermore bore no onus of
proving his alibi or any defence. The
onus remained throughout on the
state
[18]
There are also other disquieting features of the complainant’s
evidence. He readily conceded that both Accused
2 and the
appellant were assaulted by a variety of sjamboks and sticks, yet
when the arresting officer came upon them and detained
accused 2 and
the appellant, his response to a question as to whether the community
was armed was a simple ‘no’. He
however confirmed that
the appellant and accused 2 ‘had been beaten up on their
faces’. He was not handed any
knife or weapons.
[19]
It is unfortunate that the community had taken the investigation upon
themselves. The complainant conceded that he could
have
approached the police and reported the matter to the police.
Had he done so, he could have given a proper description
of his
attackers, specifically with reference to the appellant, by
describing his complexion and dreadlocks, if these were indeed
identifying features he had noted. Investigations by the police with
accused 2, who was known by name to the complainant, could
then have
resulted in the arrest of the appellant who could then have been part
of a properly convened identification parade. If
then positively
identified by the complainant from amongst a random collection of men
of similar build and appearance, the identification
would have
carried considerably more probative weight, as opposed to an
identification with reference to vague features following
an
inadmissible pointing out and extracurial admission.
[20]
The appellant is entitled to the benefit of the doubt which in my
view there must be regarding the reliability of the complainant’s
‘identification’, and whether it can be said beyond a
reasonable doubt that could not have been a ‘mistake’
that the appellant had indeed been involved in the robbery. There was
no other evidence, such as being found in possession of the
stolen
cell phone, or any other safeguard, to ensure the reliability of the
single evidence of the complainant on identification.
[21]
The appeal must accordingly succeed. The conviction and sentence
imposed by the court
a quo
in respect of the appellant are set
aside and substituted with a finding of ‘not guilty’.
__________________________________
KOEN
J
__________________________________
CHETTY
J
Appearances
For
the Applicant:
MS P ANDREWS
Instructed
by:
Legal Aid
Tel.:
033 394 2190
For
the Respondent:
MS S SENEKAL
Instructed
by:
The DPP
Tel.:
033 845 4400