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[2016] ZAGPPHC 197
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Nkosi v S (A304/2015) [2016] ZAGPPHC 197 (24 March 2016)
IN
THE NORTH GAUTENG HIGH COURT. PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: A304/2015
DATE:
24 MARCH 2016
In the matter
between:
KANSAS MCINTOSH
NKOSI
................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
DE KLERK AJ
Introduction:
[1] This is an
appeal against conviction only.
[2] The appellant
was convicted in the Regional Court, Benoni, on one count of robbery
with aggravating circumstances. It was alleged
in the charge sheet
that on 31 August 2008 at Tsakane the accused intentionally and
unlawfully assaulted Phemetse Pheto Malepe
and Tshepo Christopher
Malepe and forcefully took a Volkswagen Jetta motor vehicle, a wallet
containing R500.00, R45 000.00 cash,
two cell phones and cutlery form
them. It was further alleged that a firearm was used in the
commission of the crime.
[3] The appellant
was sentenced to 15-years imprisonment. He was also declared unfit to
possess a firearm.
[4] The appellant
was at the time of his conviction 27-years old.
[5] The appellant
was legally represented throughout the proceedings.
[6] The appellant
denied all knowledge of the robbery and pleaded not guilty.
[7] In his plea
explanation the appellant averred that he had been sick at home,
being cared for by his mother. The appellant further
stated that he
had been identified at an identification parade by a person whom he
knew very well. The appellant also stated that,
notwithstanding his
request to have his attorney present at the identification parade,
same was conducted in the absence of his
attorney.
[8] Save for the
identity of the robbers ali the elements of the crime were formally
admitted.
[9] The State’s
case rested upon the identification of the appellant by a single
eye-witness.
[10] The issue in
this appeal is therefore one of identification.
Evidence:
[11] The principle
witness for the State was Mr. Kgomotso Petso Malepe also known as Bra
Jasmine or Bra Jazz. He testified that
on 31 August 2008 at about
22:15 three men wearing balaclavas robbed him and his wife at their
home from amongst others a Volkswagen
Jetta, R45 000.00 cash, a
wallet containing R500.00 and two cell phones.
[12] He said that he
was able to identify two of the three robbers at the time when they
had already left the house and removed
their balaclavas.
[13] He testified
that he could see them from where he was standing inside the house
through a glass sliding door as they were walking
towards the
Volkswagen Jetta that was parked right outside the sliding door with
its front facing the sliding door.
[14] There were
three lights outside the house that provided illumination being one
at the corner of the house which actually Illuminated
the vehicle and
two sensor lights at the entrance.
[15] The robbers
also noticed him. The driver quickly got inside the vehicle. The
other two were talking to each other while pointing
in his direction.
At that time the two robbers were about two meters away from him
while facing him and he had a good look at them.
[16] He testified
that the robbers were all dressed in the same white tops and
navy-blue tracksuit pants.
[17] He further
testified that the driver was lighter in complexion compared to the
other two but that he did not have a good look
at the driver and
consequently could only identify the other two robbers at the
identification parade.
[18] He testified
that he did not know them.
[19] During
cross-examination Mr. Malepe denied knowing the appellant’s
mother.
[20] The appellant’s
version that the appellant and Mr Malepe knew each other very well
was similarly denied by Mr. Malepe.
[21] Much time was
spent on this issue and the evidence of the third, fourth and fifth
state witnesses revolved around this issue.
[22] In this regard
it was put to Mr Malepe that the appellant’s mother had
purchased liquor from him (to sell at her house)
which the appellant
would go and fetch. While waiting in line the appellant would on
occasion enter the tavern and buy a beer to
drink.
[23] It was further
put to Mr Malepe that he and a certain Zero once came to the
appellant’s mother’s house to discuss
business with her
while the appellant was also at home.
[24] It was further
put to Mr Malepe that the appellant was also friends with Mr Malepe’s
neighbour and that they would greet
each other in passing.
[25] Mr. Malepe
denied ali of this and explained that their tavern only catered for a
specific group of people and that the appellant
would not have been
allowed access to the tavern.
[26] He further said
that he and his wife left home at 07:00 and only returned at about
22:00.
[27] He said that he
knew Zero but denied that he ever went with him to the appellant’s
mother’s house.
[28] It was put to
Mr. Malepe that the reason why he pointed the appellant out at the
identification parade was because he recognised
him. This was denied
by Mr Malepe who stated that he had not made a mistake in pointing
the appellant out as one of the robbers.
He further testified that he
did not point out his neighbour who was also part of the line-up
because he did not take part in the
robbery.
[29] The appellant’s
alibi was also put to Mr Malepe. He said that it was a lie.
[30] The third and
fourth state witnesses (who were 62 and 70-years of age respectively)
testified that they were both patrons at
Mr Malepe’s tavern.
They confirmed that the patrons were older people (45 and upwards)
and that access was strictly controlled
by the owners. They further
said that they have never seen the appellant before.
[31] The next state
witness, Gloria Malepe testified that she is the wife of Mr Malepe
and that they run the tavern together.
[32] In cross
examination it was put to her that the appellant would testify that
he would on occasion enter the tavern to buy a
beer. She said it
would never have happened and that not even her son (who was 40-years
old) was allowed access.
[33] Nothing further
turns on the testimony of the third, fourth and fifth witnesses.
[34] The second
state witness was Warrant Officer Musa Nikodemus Moagl.
[35] He testified
that he was in charge of the identification parade.
[36] He further
testified that he had explained to the appellant his right to legal
representation. The appellant however indicated
that he would proceed
without his legal representative. It was noted as such by him on the
SAP 329.
[37] That concluded
the State’s case.
[38] The appellant
and his mother gave evidence in his defence.
[39] With regard to
his alibi he testified that he was in bed most of the time while
being cared for by his mother and the mother
of his child.
[40] He testified
that he could not walk properly. He had to call somebody to take him
to the police station on 5 September 2008.
[41] His out patient
card was handed in as evidence indicating that his first visit
(initiation) was on 6 August 2008. In cross-examination
he said that
he was released from hospital three days before the initiation date.
He further said that he started walking without
assistance after five
months.
[42] He further
testified that he asked for his lawyer to be present at the
identification parade. The police officer however told
him that he
was only doing his job and continued with the parade in the absence
of his lawyer.
[43] He testified
about what was put to Mr Malepe with regard to how well they knew
each other.
[44] Rosalina
Lindiwe Nkosi testified that the appellant is her son and that he
resided with her at the time of his arrest.
[45] She said she
knew Mr. Malepe and his wife but not their children. She had never
spoken to Mrs Malepe. She bought liquor from
a small window at their
tavern. She had never been inside the tavern. She used to send the
appellant to buy the liquor.
[46] She said that
Mr. Malepe and a mutual friend, a certain Zero, once came to her home
to talk to her about buying liquor in bulk.
While they were
talking outside the
appellant passed them on his way out and they greeted each other.
[47] At the time of
his arrest the appellant was sick. He was recently from hospital and
he was in bed most of the time. They had
to help him to the vehicle
to fetch his medication.
Discussion:
[48] The main
submission for the appellant was that the State failed to prove
beyond reasonable doubt that the appellant was one
of the robbers.
[49] The State’s
case rested upon the identification of the appellant by a single
eye-witness.
[50] The appellant’s
defence was a denial of any complicity together with an alibi.
[51] The Magistrate
was according to his Judgment conscious of the risks and difficulties
in identification and that the evidence
had to be regarded with
caution.
[52] The Magistrate
gave a well-reasoned Judgment.
[53] The Magistrate
was satisfied that Mr. Malape had adequate opportunity for
observation of the appellant.
[54] The Magistrate
came to the conclusion that Mr Malepe was a credible witness who had
told the truth, that the appellant had
lied and that he took part in
the robbery.
[55] Section 208 of
the Criminal Procedure Act, Act No. 51 of 77, provides that:
"An accused may
be convicted on the single evidence of any competent witness. ”
[56] In Abdoorham
1954 (3) SA 163
(N) at 165 E-F the Court held as follows:
"The Court is
entitled to convict on the evidence of a single witness if it is
satisfied beyond a reasonable doubt that such
evidence is true. The
Court may be satisfied that the witness is speaking the truth
notwithstanding that in some respects he is
an unsatisfactory witness
[57] In S v Sauls
and Others
1981 (3) SA 172
A at 180 E-G the Court held that:
"There is no
rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness.
The trial
Judge will weigh his evidence, will consider its merits and demerits
andf having done so will decide whether it is trustworthy
and whether
despite the fact that there are shortcomings or defects or
contradictions in his testimony, he is satisfied that the
truth has
been told. The cautionary rule 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 was 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."
[58] In R v
Hlongwane
1959 (3) SA 337
A at 340 the Court held that:
"The legal
position with regard to an aiibi is that there is no onus on an
accused to establish it, and if it might reasonably
be true he must
be acquitted."
[59] I r)Rv Biya
1952 (4) SA 514
(AD) the Court held that:
“But it is
important to point out that in applying this test, the alibi does not
have to be considered in isolation...
The correct approach
is to consider the alibi in the light of the totality of the evidence
in the caset and the Court’s impression
of the witnesses
[60] In S v Mthetwa
1972 (3) SA 766
A at 768 the Court held as follows:
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 accusedthe 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, see
cases such as Rv Masemang,
1950 (2)
SA 488
(AD); R v
Dladla and Others,
1962 (1) SA 307
(AD) at p. 310C; S v Mehlape,
1963 (2) SA 29
(AD).U
[61] Mr. Malepe is a
single eye-witness and his evidence must be looked at closely.
[62] With regard to
Mr Malepe’s opportunity for accurate observation the evidence
shows that he was standing behind a giass
sliding door watching the
robbers as they were walking towards the Volkswagen Jetta that was
parked right outside the sliding door
with its front facing the
sliding door. The vehicle was iiluminated by an electric light. When
the robbers noticed him they were
about two meters away from him
while facing him. Two of them were pointing in his direction while
talking to each other.
[63] Mr. Malepe had
no reason to falsely implicate the appellant.
[64] The appellant’s
version that Mr. Malepe pointed him out because he recognised him is
highly unlikely.
[65] I am satisfied
that the Magistrate was not wrong in convicting the appellant.
[66] The Magistrate
exercised due caution in regard to the evidence of Mr Malepe.
[67] Mr. Malepe had
the opportunity for dependable observation and he made a very good
impression on the Magistrate.
[68] The evidence
proves beyond a reasonable doubt that the appellant took part in the
robbery.
In the result it is
ordered that:
[69] The Appeal is
dismissed.
DE KLERK AJ
Judge of the High
Court
I agree and it
is so ordered.
MM JANSEN J
Judge of the High
Court
For the Appellant
Advocate
Instructing
attorney : Miss MMP Masete
For the
Respondent
Advocate : S
Scheepers
Instructing
attorney