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[2016] ZAGPPHC 555
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Phetla and Another v S (A632/2015) [2016] ZAGPPHC 555 (24 June 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG
DIVISION. PRETORIA)
CASE NO: A632/2015
DATE:
24/6/16
Reportable:
Yes
Of
interest to other judges: Yes
Revised.
IN
THE MATTER BETWEEN:
ZACHARIA
MASIAN
PHETLA 1
st
APPELLANT
SIPHO
MOEPYE 2
nd
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
LEGODI
J;
HEARD
ON: 29 APRIL 2016
JUDGMENT
HANDED DOWN ON: 24 June 2016
[1]
It is generally accepted
that evidence of identification based
upon witness'
recollections
of person's appearance is dangerously unreliable unless approached
with due caution
.
[1]
The average witness's ability to recognise faces is poor, although
few people are prepared to admit that they have made a mistake.
On a
question of identification, the confidence and sincerity of the
witness is not enough.
[2]
[2]
The often patent honesty, sincerity and confidence of an identifying
witness remain, however, a snare to a judicial officer
who does not
constantly remind himself of the necessity of disputing any danger of
error in such evidence.
[3]
The
witness should be asked by what features, marks or indications they
identify the person whom they claim to recognise. Questions
relating
to height, build, complexion, what clothing he was wearing and so on
should be put. A bald statement that the accused
is the person who
committed the crime is not enough. Such a statement unexplained,
untested and un investigated, leaves the
door wide open for
possibilities of mistake.
[4]
[3]
This appeal is about the identity of a person or persons who
committed robbery with aggravating circumstances against Ms R D
on 20
November 2002 at or near Groblersdal as well as murder, robbery with
aggravating circumstances and other related charges,
all committed on
28 November 2002 at a Standard Bank branch near Atok mine, district
Sekhukhune, Limpopo Province.
[4]
The appeal is against both conviction and sentence of life
imprisonment on the murder charge, 15 years imprisonment on each
of
the two robbery charges with aggravating circumstances and 3 years on
the unlawful possession of firearms and ammunitions both
taken as one
for the purpose of sentence.
[5]
In the court a quo, there were five accused persons and all of them
were convicted and sentenced as indicated above on the robbery
charges and the murder charge committed on 28 November 2002. Accused
3 who is the appellant 1 in these proceedings was also convicted
together with accused 4 on the robbery charge committed on 20
November 2002 and were sentenced as indicated above.
[6]
However, in this appeal, there are only two appellants. Appellant 2
was accused 5 in the court a
quo.
The leave to appeal against
their convictions and sentences was granted by Van Der Merwe DJP and
Ledwaba J on 26 November 2012 and
29 October 2014 to appellants 1 and
2, respectively. For the purpose of this judgment, both appellants
will be referred to as accused
3 and 5 respectively, as it was the
case in the court a
quo.
Events
of 20 November 2002
[7]
The events of 20 November 2002 formed the basis of count 6 in the
court a quo and only the accused 3 and 4 were convicted and
sentenced
to 15 years imprisonment as indicated above, the trial court having
found that there were no compelling and substantial
circumstances
justifying a departure from the minimum sentence of 15 years
imprisonment prescribed in terms of the provisions of
the
Criminal
Law Amendment Act 105 of 1997
.
[8]
The victim in count 6 was Ms R D (the complainant). She was the owner
of Bevra Fruit Shop in Groblersdal, which was in the same
premises
where her home was situated. On Wednesday 20 November 2002, at about
07h00 and on her way to open the shop, she was accosted
by three
unknown male persons who approached from the corner of the house.
They grabbed and forced her to switch off the alarm
and then
instructed her to go back into the house. They took the keys from
her, opened the house and then proceeded straight to
the bedroom. She
was forced onto the floor and tied her up with wires. They then
opened the safe, took the firearms from the safe
including the
hunting rifles, jewellery, a pistol and other belongings. They then
exited the house, but left the hunting rifles
behind. On the 28
November 2002, the complainants' pistol was recovered by the police
at Jane Furse inside a motor vehicle registered
in the names of
accused 1, where accused 4 and 5 were arrested. On 14 January 2003
the complainant pointed out accused 3 and 4
at an identification
parade held at Groblersdal Police station. Photo album concerning the
identification parade was handed in
by consent during trial. However,
no evidence was led regarding the safety and reliability of the
identification parade. On 5 April
2005 the complainant took the
witness stand in the court a
quo
and testified about the
events of 20 November 2002. She pointed out accused 3 and 4 in the
dock as two of the three male persons
who accosted her on 20 November
2002.
[9]
The trial court in evaluating the complainants' evidence started off
by expressing itself as follows:
"I was
particularly impressed by the evidence of Ms D and the three
ladies, Johanna Selema, Johanna Maselelane
and Sina Molope.
Also
the police officers
impressed me as
honourable
members of the South African Police Services.
I keep in mind that
regarding identification some of the witnesses are single witnesses.
but I am satisfied that they ware reliable
witnesses in all material
respects.
(My emphasis).
[10]
Then the trial court turned to deal with the evidence of accused 3 as
follows:
"I considered the
evidence of accused 3. His evidence-in-chief was that when he was
stopped or when he was arrested or approached
by the police, he told
them that he knew nothing about the incident and he requested them to
take him to church where they could
confirm that he was at the
church.
This was the whole
crux at his whole defence. Strangely enough, this crux of his defence
was never put to these witnesses.
Similarly his version
as to how the police stopped them when they were arrested was never
put to the witnesses, to the police witness.
He failed to answer many
questions put to him. I am satisfied the accused 3 version is not
reasonably possibly true.
[11]
The court a quo then concluded its finding against accused 3 as
follows:
"There remains to
be considered count 6. This count was only sought against accused 3
and 4. The count is one of housebreaking
with intent to rob and
robbery. I am not satisfied that the evidence disclosed that in fact
they had the intention to break into
the house. In my view, the
intention was clear to rob the complainant, Ms D of her possessions.”
[12]
Having said this, the accused 3 was then convicted as charged
regarding count 6. I have serious difficulties with the court
a
quo's
findings.
Firstly, the finding of guilt is not motivated. What is quoted above
is all what the trial court said relevant to count
6. A court has a
duty to assess and evaluate the congency of the evidence of
identification.
[5]
Many of the
criteria for assessing what weight is to be attached to evidence of
identification are to be found in a number of cases.
[6]
The trustworthiness of the witness's observation, recollection and
narration of, are all three factors relevant to the assessment
of
evidence of identification and are affected by various factors.
[7]
'Because of
fallibility of human observation, evidence of identification is
approached by the court
with
some
caution.
It
is not enough for the identifying witness to be honest
.
The reliability of his observation must also be tested. This depends
on various factors such
as
lighting,
visibility and eyesight, the proximity of the witness,
his
opportunity for observation, both
as
to
time and situation
.
the extent of his prior knowledge of the accused and mobility of the
scene. Corroboration of the
suggestibility,
the accused's face, voice, build, gait and dress, the result of the
identification parade
,
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."
[8]
(
My
emphasis
).
[13]
The questions which should be asked to establish reliability on the
evidence of identifying witnesses are set out in paragraph
2 of this
judgment. In my view, the trial court did not deal with factors to be
considered. The evidence of the complainant was
concluded and
accepted without probing into the reliability of her evidence on the
identity of her assailants. The attempt to impute
blame on accused 3
for not eliciting information on the reliability of her evidence, in
my view, is misplaced. It was not accused
3's duty to establish
relevant factors for reliable identification of the people who robbed
the complainant. The prosecution had
the duty to lead the complainant
and elicit relevant factors to establish reliable identification. Its
failure to do so, did not
shift that duty to either accused 3 or 4.
Identification
at home
[14]
I now turn to deal with the evidence of the complainant as a whole
starting with the events of 20 November 2002 at her home,
how she was
accosted and the alleged identification of accused 3 and 4. Her
evidence in chief was captured in paragraph 8 of this
judgment.
As could be seen from the evidence, no details were given. For
example, from which side of her did the three unknown
persons
approach? How far were the assailants from her when she saw them for
the first time? Did she see all of them at the same
time when they
approached? What did she do or how did she react when the assailants
were advancing towards her? How did they move
with her back into the
house? Was she walking in front of them or were they walking side by
side? The questions are not exhaustive,
but all would have been
relevant in establishing the reliability of her evidence on identity.
[15]
Her evidence in chief paraphrased in paragraph 8 above, unfolded in
Afrikaans as follows:
"Ek was oppad na
my winkel toe om te gaan oopsluit van die huis af, toe het daar drie
mans vanuit 'n hoekie uitgekom en my
so gegryp en my gedwing om die
alarm af te sit."
[16]
This must have been a frightening encounter. A woman, alone at home,
confronted by unknown persons with firearms displayed
must have been
a traumatic experience. One wonders how the opportunity to observe
faces could have prevailed in those circumstances.
But even more
frightening was this:
"Het u enige iets
in besit van hierdie mans gesien? - Hulle het vuurwapens gehad
wat
hulle op my qeriq het
."
(My emphasis).
[17]
What did she do when that happened? Put differently, how did she
react and how did she feel? Did she stare at the three assailants
and
the firearms pointed at her? On which of her side was each one of
them? I think it would be safe to conclude that she could
not in
those circumstances have been able to identify any of her assailants
by their faces. The trial court stayed off to deal
with all of these.
[18]
Two things had happened before she actually got back into the house.
She stated:
"Ek het die alarm
afgesit en toe het hulle my terug gedwing na die huis toe."
That is: "I
switched the alarm off then they forced me into the house."
(My
own translation).
[19]
One wonders what would have gone through her mind now that she had
been taken away from the possible view of other people.
But, as if
that was not enough, the security (the alarm) she had in the house to
draw the attention of other people was deactivated,
to ensure that
she did not have the opportunity to alert other people bearing in
mind that she was alone at home. As to what happened
when inside the
house, her evidence was as follows:
“
Waama
hulle my na my kamer toe gegaan het waar die kluis was, hulle het my
op die vloer gedwing en met draadhangers vasgemaak, die
kluis
oopgesluit.”
[20]
This is also paraphrased in English in paragraph 8 of above. The
question around this statement could have been: How was she
forced
onto the floor? In what position was she on the floor? Who forced her
on the ground? Who of the three people tied her up
with wires? From
what position or positions was she forced onto the ground and tied up
with wires? How was she tied up with wires?
How long did the process
take place and in which direction or whom or what was she looking at
when she was so tied up with wires?
[21]
Of relevance, her evidence in chief concluded as follows:
"Hulle het die
vuurwapens wat in die kluis was uitgehaal, asook die geld en
in
die kamer rondgesnuffel vir ander besittinqs en uit qeneem. (My
emphasis)
.
My translation in
English: “
They took out the firearms from the safe, as well
as money and ransacked the room for other possessions and took them.”
[22]
Throughout the complainant's evidence, she was not specific as to who
did what and in what position she was in relation to
each of the
three assailants or whether she was looking at each one of them and
for how long. There is another worrying factor
which needed more
clarity. She was taken back into the house. She was forced onto the
floor, apparently in her bed room and she
was then tied up. They took
money
"en het in die kamer rondgesnuffel vir ander besittings
...
”
[23]
If that was so, one would have expected the whole house to be
ransacked and not just only her room. So, one would have expected
most of the time the assailants spent inside the house was during the
ransacking. The fact that she was accosted at 07h00 and that
the
assailants, left the house at about 07h30, must be seen in this
context. Her evidence was not that she observed her assailants
for 30
minutes that is from 07h00 to 07h30. Her evidence was elicited in
cross examination by one of the defence attorneys as follows:
“
Mr Phahlane:
Can
you tell us how long this incident took place when you were
robbed?... Ek het sewe uur oopgesluit en dit was omtrent half agt
min
of meer, ek kan nie vir jou presies sê nie.
HOF:
Omtrent
'n half uur?
...
Omtrent 'n half uur, ja."
[24]
The point is this: As part of the cautionary rule applicable to a
single witness and identification being an issue, it was
incumbent on
the state to lead and investigate the complainants' evidence that
accused 3 and 4 were the assailants and only then
would it have been
incumbent on the defence to test such evidence. Failure to do so left
the door wide open for probabilities of
mistake. (See,
Shekelele
quoted in paragraph 2 of this judgment). Furthermore, in
cross-examination by Mr Phahlane the complainant's evidence
proceeded:
“
Mr Phahlane:
You
say you managed to identify the accused because of his face, not so?
- His whole face, I see his whole face, his eyes, his nose,
his
mouth, everything.
Yes, what about his
eyes, his mouth, his face - It looks the same as it looks now.
Madam, it is my
client's instructions that he is not one of the people who robbed you
on that day in question, any comment? - He
is."
[25]
At the risk of repetition: 'A bald statement that the accused is the
person who committed the crime is not enough. Such a statement
unexplained, untested and un investigated, leaves the door wide
open for probabilities of mistake." (See Shekelele in
paragraph
2 of this judgment). This is exactly what had happened in the present
case. Whilst one might say, it will usually be
the task of the
defence such a duty will only arise if sufficient evidence had been
adduced for reliance on the evidence of identification.
In the
present case, that duty did not arise.
[26]
Proper and reliable observation is found. The distinctiveness of the
person's appearances is a factor to be taken into account.
The court
will be able to survey whether the accused has peculiar features, but
some people look distinctive to one witness and
not another. Thus to
a person of one race, everyone belonging to another race, tends to
look alike...
[9]
Assuming that
this statement holds true, the present case should then be found to
be falling squarely under such a factor for consideration.
The
complainant, a white woman was accosted by three unknown black
persons as it would appear from the particulars of their names.
If
that was so, her evidence should have been approached with caution
something which the trial court in my view, failed to do.
I am
therefore not satisfied that the evidence of the identity of the
complainant's assailants at her home was sufficient to be
relied
upon.
Identification
parade
[27]
An identifying witness should be asked to give detailed description
of the alleged criminal at the earliest possible moment.
In the
present case, no evidence was placed before the court a quo that,
when the complainant made a statement to the police, she
which was
probably on 20 November 2002 or soon thereafter, she was asked to
give detailed description of her assailants.. The rationale
is
obvious. One, to state facts describing a perpetrator while things
are still fresh in the witness's mind, is more reliable.
Two, a
description assists the police in the investigation of cases and
tracing the culprit. Lastly, to ensure that when identification
parade is arranged, the line up consists of people bearing more or
less similar description. Such a line-up strengthens the reliability
of a subsequent identification at a parade, if any. This information
was lacking in the present case as it would appear from the
record of
the proceedings.
[28]
Furthermore, regarding the identification parade, if there is a delay
in giving the description of the culprit, the identifying
witness is
likely to forget, but may also have an opportunity to compare notes
with other witnesses, which would diminished the
value of his or her
evidence.
[10]
For the same
reasons, an identification parade should be held as soon as possible.
Two things are worth mentioning. Firstly, the
police officers who
were involved in conducting the parade did not give evidence. It was
placed on record that they could not be
traced. Whilst the trial
court should have satisfied itself that all efforts were taken to
trace the witnesses, that did not happen.
To have someone to collect
witnesses from one point to the other before appearing in the line-up
room or place is important because
it ensures that no suggestions are
made to a witness or witnesses either by the investigating officer or
any police official and
/ or by other witnesses. This could be a
police official who had fetched a witness from his or her home or a
police official who
took the witness from the witness room before
appearing in the line-up room. The evidence of such police officials
is intended
to exclude tip off or suggestion as to whom to point out
at the parade, even avoiding the witness having an opportunity to see
the suspect or his or her picture before appearing at the line up
room. The fact that in the present case, the complainant indicated
that nothing untoward had happened before she was called to the
line-up is not a guarantee that nothing had happened. The result
is
that the value of her evidence regarding subsequent pointing out at
the parade was diminished. The trial court did not address
itself on
this issue at all.
[29]
The identification parade was held on 4 January 2003. Almost two
months after the arrest of accused 3 and other accused persons.
No
explanation was offered why the parade was only held on 4 January
2003 despite the fact that the complainant's firearm was recovered
on
28 November 2002 in Jane Fence not far from Groblersdal. No evidence
was led to exclude any suggestive evidence was made to
the
complainant between 28 November 2002 to 4 January 2003 when the
identification parade was held.
[30]
The procedure for the conduct of the parade is largely a matter of
police practice.
[11]
But
judges have laid down rules which should be observed if the accused
is not to be prejudiced and the parade is to have maximum
probative
value. Whilst a breach of the rules is not
ipso
facto
fatal
and under our constitutional regime, the court must consider whether
the accused's right to a fair trial has been violated,
as envisaged
in section 35 of the Constitution. Schreiner SA put it this way:
"An
identification parade, though it ought to be
a
most
important aid in the administration of justice, may become
a
grave
source of danger if it created
impression
which is false
as
to
the capability of
a
witness
to identify the accused."
[12]
[31]
In the present case the only people who could have testified on the
complainant's capability to identify accused 3 at the identification
parade would have been the police official who were involved in
conducting the identification parade. The fact that a photo album
of
the line up at the parade and the pointing out of accused 3 was
handed in by agreement, without more evidence, does not, for
two
reasons, have probative value: First, the photo album showing the
complainant putting her hand on accused 3's shoulder, does
not equate
to the admission that the identification parade was properly
conducted and that all safe guards have been adhered to.
It must be
understood to mean that accused 3 did not dispute the fact that the
complainant pointed him out at the identification
parade, nothing
more and nothing less. Therefore, the prosecution was still obligated
to lead evidence on the safe guards. Lastly,
the trial court
neglected or omitted to deal with factors, if any, relevant to the
proper conduct of the identification parade.
For the pointing out at
the identification parade to be of material value, it was necessary
to lead evidence satisfying the safe
guard requirements. Therefore
any attempt to suggest that accused 3 did not challenge the
correctness of the identification parade,
cannot be correct.
[32]
Accused 3 and any other accused implicated by the complainant based
on the result of the identification parade had the right
to
cross-examine and test the evidence of all those who participated in
the identification parade. The fact that the police witnesses
were
not available, should not have been used to accused 3's disadvantage,
as to do so would have rendered the trial unfair.
[33]
Scott JA dealing with the safe guards of an identification parade,
put it this way:
appears from the
identification form which was used on this occasion, it is a matter
of police practice that the non-suspects be
'of about the same
height, build, age and appearance' as the suspect and that they be
similarly dressed. Where the parade included
several suspects whose
general appearance is markedly different, whether on account of
height, build, and age or otherwise, care
should be taken to ensure
that there are sufficient non-suspects whose general appearance
approximates that of each suspect. In
such circumstances it may be
advisable to hold more than one parade, particularly if the number of
nonsuspects that would
be required would result in the parade
being unduly large and cumbersome. If the number of non-suspects
whose general appearance
approximates that of each suspect s two few,
or if there are other features of the parade which may be materially
to influence
an identifying witness, the probative value of the
identification will generally be greatly reduced. The danger in such
a case
is of course, that, because the identification is made at a
parade, it carries with it an assurance of reliability which is
unjustified.
"
[13]
[34] The difficulty in
the present matter is that it falls short of what was articulated by
Scott JA as quoted above. First, the
complainant's evidence as to the
identification parade was very scant and of relevance, it unfolded as
follows:
'Mevrou, u het 'n
uitkenningsparade bygewoon op 14 Januarie 2003, is dit korrek
--- Dit is reg.
En dit was Groblersdal
Polisie Stasie is dit korrek?—Dit is reg.
Goed. Kan u onthou
deur wie u na die parade self geneem is?- Dit was deur 'n polisie
person.
Goed. Nou wat hat
gebeur by die parade, as u net vir die hof kan sê wat gebeur
het? - Ek hat in die kamer in gegaan waar die
persona gestaan het en
daar was 'n fotograaf en hulle hat vir my gevra om te kyk of ek die
persone harken wat my geroof hat. Toe
moes ek aan hulle raak met my
hand op hulle skouer en dat hulle 'n foto daarvan neem en ek hat twee
person uitgeken.”
[35] What is clear from
the answers is that there was one parade held and both accused 3 and
4 were pointed out at that one parade.
What is lacking, however, is
whether it was not necessary to hold separate identification parades
and if so the basis for opting
to have one parade where there were
two or more suspects. It is also not clear as to how many
non-suspects were at the parade.
Furthermore, the complainant was not
led as to the appearance of the persons on the parade, whether they
were similar to accused
3 and 4's appearances, height, build,
complexion, age etc. These short comings in my view, was compounded
by the fact that the
trial court in its judgment elected or neglected
to evaluate the evidence of identification. All that it said was
quoted in paragraph
34 above. The result of all this is that, the
probative value of the identification at the parade is diminished.
Inow turn to deal
with another aspect.
Dock
identification
[36]
In my view, accused 3 was hit with two dock identifications. The
complainants' evidence in chief unfolded as follows and I
do this at
risk of unnecessarily prolonging the judgment:
"Goed , hoe het u
die twee persona uitgeken? - Ek het my hand op hulle skouers gesit,
op die persona.
U sê u het twee
mans uitgeken? - Twee mans
Is dit korrek? -Ja.
[37]
Now instead of inquiring whether the two men were in court, the
complainant was led as follows:
"Ek wil u verwys
op hierdie stadium na bewysstuk G, eerstens foto no 4. Bewysstuk G is
'n fotoalbum van die ID parade wat u
bygewoon het op 4 Januarie 2003,
as u net eerstens kan kyk na foto nommer 4, u staan in die foto, is
dit korrek, en u hand is op
die skouer van 'n sekere man,is dit
korrek? - Dit is reg.
Die man staan met 'n
bord met nommer 8 op, is dit korrek? -Dit is reg.
Was dit een van die
mans persona wie u uitgeken hat by die ID parade? - Dit is reg,ja.
Foto nommer 5, dit is
'n foto van die betrokke person met die nommer 8 wie u uitegeken hat,
is dit korrek? -- Dit is reg.
Nou foto 6, u staan in
daardie foto, en u hand is op die skouer van 'n ander man, is dit
korrek? -Dit is reg ja.
Daardie man staan met
'n bard met die nommer 13, is dit korrek? - Dit is reg. Is dit die
tweede man wat u uitgewys hat by die ID
parade?.- Dit is reg.
Foto nommer 7 is 'n
naby foto van die tweede verdagte wat u uitgeken hat, is dit korrek?
- Dit is reg.”
[38]
I think this line of leading was deliberate. Deliberate in that it
was intended to prepare the complainant to be able to answer
the
question that followed bearing in mind that there were five accused
persons in the dock. It was almost like preparing the complainant
for
an easy sailing to deal with the question in waiting. I say so,
because the leading of the complainant by the prosecutor proceeded
as
follows:
"Goed, Sien u die
twee mans wat uitgeken het hier by die hof vandag? -Ja.
Goed, wie is hulle? -
Dit is beskuldigde 3 en 4.
Hierdie twee
beskuldigdes wat u uitgeken hat, was hulle in besit van vuurwapens
gewees?-- Ja"
[39]
It must be concluded that the identification of the accused 3 and 4
in the dock on 5 April 2004, many months after the commission
of the
offences, did not mean that she had sufficient opportunity to
reliably observe her assailants on 20 November 2002. She was
deliberately led into pointing out accused 3 and 4 in the dock by
first drawing her attention to accused 3 and 4's photos. That
must
have been found to have the rendered probative value of the dock
identification in the present case more meaningless.
[40]
The quotation in paragraph 37 brings another dimension to the
reliability of the identification parade. Why should people on
the
line up of the identification parade be tagged? I say, tagged because
both accused 3 and 4 carried boards marked 8 and 13 respectively.
This must have left the door wide open for suggestions to be made to
the complainant before she pitched up at the line-up. In the
absence
of the police's assurance that no such suggestions were made to the
complainant, the identification parade should have
been found to be
tainted. In so much as the police might have wanted to indicate the
position number of each person on the line-up,
that could easily have
been done by counting from left to right or right to left and then
state whether accused 3 and 4 were on
positions 8 and 13,
respectively. But in the presented case, photos were taken as the
complainant was doing the pointing out, so,
the pictures would have
spoken for themselves in what positions were the people pointed out
at the identification parade.
[41]
Lastly, the court a
quo
had the benefit of the photo album and
it could have dealt with the safe guards regarding the line-up, in
particular, the appearance,
complexion, height and build of the
people on the parade. That did not happen as it appears from its
judgment. This presents a
difficulty to this court, because we did
not have sight of the photo album, apparently the exhibits have since
gone missing. That
being so I have a difficulty in gauging the
reliability of the line-up. Accused 3 should have been given the
benefit of doubt on
count 6. I must be worried whether accused 4
should not have been given the benefit of doubt as well. The trial
court did not deal
with the evidence implicating accused 4
differently from accused 3. Insofar as the trial court might have
relied on the finding
of the complainant's firearm in close proximity
to where accused 4 was arrested, to find corroboration of
identification, the principle
of recent possession has to find
application first to the facts of the present case. Whether or not it
does, taking into account
the lapse of time between 20 and 28
November 2002, is not for this court to decide. The difficulty I have
however is that there
is no indication that leave to appeal was
granted or refused. For this, I would propose that counsel for
accused 3 should endeavour
to assist accused 4 in establishing
whether leave to appeal was refused and if not to assist accused 4 to
apply for leave to appeal.
Possession
of firearm and ammunitions
[42]
All five accused were convicted on counts 4 and 5. Before us it is
only accused 3 and 5. The trial court in its judgment found
as
follows:
“
Counts 4 and 5
are the illegal possession of firearms and ammunition. I am not sure
whom of them was in possession of the firearms.
It is clear that
several firearms were in their possession. It is unnecessary to
find who was exactly in possession of the
firearms. On the principle
of common purpose they all had the intention of possessing the
firearms.
Consequently I am
satisfied that the state has proved its case beyond reasonable doubt
on counts 4 and 5."
[43]
I have serious difficulties with this finding. First, the court made
the finding without evaluating the evidence, more so that
in the
charge sheet three firearms to wit, automatic pistol C 41173 a 9mm, 2
semi-automatic firearms, pistol serial 9985 and a
357 magnum Astra
revolver were alleged to have been found in possession of all the
accused on 28 November 2003. One of these firearms
was found at
Hweleshaneng Village after it was allegedly dropped by accused 2 and
the other two firearms were found in Jane Furse
where accused 4 and 5
were arrested, one of which (pistol serial 9985) belonged to the
complainant in count 6 and formed the subject
of the robbery charge
committed on 20 November 2002.
[44]
Whilst the trial court found the existence of common purpose for
possession, the common purpose was not alleged in the charge
sheet.
Starting with the accused 3, he was neither arrested at the scene nor
at the place where the firearms were found. From Atok,
that is where
the murder offence was committed on 28 November 2002 to Jane Furse
where the other two firearms were found is, according
to Inspector
Motlwa about 130 kilometres. In the charge sheet the offence of
unlawful possession is said to have taken place at
Atok on 28
November 2002. Of course this cannot be correct as according to the
evidence, two of the firearms could not be linked
to the commission
of the offences at Atok.
[45]
Accused 3 was not identified as one of the assailants at the Standard
Bank Atok Branch. Three women who sought to implicate
accused 2 said
nothing about accused 3. Similarly, when the other two firearms were
found in Jane Furse, other than to say accused
3 allegedly led the
police thereto, no element of possession by whomever in Jane Furse
can be imputed on accused 3 based on the
principle of common purpose.
For common purpose to apply, the accused 3 ought to have been
connected to the commission of the offences
at Atok on 28 November
2002 and
I
or his connection to the area and or vehicle where
the two firearms were found in Jane Furse. He should have been given
the benefit
and the trial court in my view, erred in finding that
"the state has proved its case beyond
a
reasonable
doubt on counts 4 and 5.”
[46]
Concerning accused 5 with regards to counts 4 and 5, the evidence of
the police officials who were involved when accused 5
was arrested
ought to be seen in context. Firstly, accused 5 did not deny that he
was arrested where the grey BMW was found. He
had gone to the home to
ask for blessings from the pastor staying in that home. When he
arrived there he was told that the pastor
had gone to church and he
waited for him. The home was not his, neither was the BMW vehicle
which he found there when he arrived
and he did not know who the
owner was. He was outside seated on the chair which was offered to
him before the police arrived. He
was approached by Inspector Machete
who arrested him. He had never been inside that vehicle. In fact, it
was soon after he had
arrived there that the police came and arrested
him. No credible evidence was tendered to refute his version.
[47]
As indicated in paragraph 42 of this judgment, the trial court did
not indicate the basis on which it rejected accused 5's
version. Two
things can be inferred from his version. That is, he could not have
been inside the grey BMW and therefore the firearm
found inside the
vehicle could not be linked to him. Secondly, the firearm which was
found in another old vehicle within the yard,
could not have been
placed therein by him or with his knowledge neither could accused 5
have possessed it in common purpose with
whoever was responsible for
placing the firearm therein because he knew no one there.
[48]
I must immediately say, I am unable to find that accused's 5 version
was not reasonably possibly true. Insofar, as the trial
court appears
to have had issues with the reasons for accused 5 to be at Jane Furse
one needs to alleviate those concerns raised
by the trial court.
Accused 5's version was briefly as follows: He was staying in
Springs, Gauteng Province. He was running a business,
a tavern in
Springs. The business was not doing well. His neighbour was also
running a tavern, although he did not explain where.
He went to his
neighbour to enquire what he was doing right for his tavern to
operate successfully. The neighbour told him that
he was helped by a
pastor in Jane Furse, who did some rituals for the neighbour and as a
result the neighbour's business was successful.
The neighbour gave
him the direction to this Pastor's home. It was common cause during
the trial that such a person by the name
of Letlapeng existed and it
did not appear to be in dispute that the home in question did belong
to Letlapeng who was apparently
a well-known Pastor.
[49]
The trial court and the prosecutor did not seem to appreciate the
importance of accused S's version regarding Pastor Letlapeng.
For
example, the prosecutor spent a lot of time questioning the accused 5
as to why he did not just go to any pastor around Springs
area.
Similarly the trial court expressed the same sentiment, in particular
in regard to what sort of help the pastor could have
been to accused
5 in enhancing his business. In the cause of cross-examination by the
prosecution, the trial court intervened and
asked the following
questions:
“
Court: I am not
sure, what sort of help or ass stance would this pastor have been
able to give you? -If you can check most people
attending this church
are rich.
No, no I am just
asking you, please answer my question. I am warning you it is in your
best interest to answer questions, I am telling
you now if you do not
answer the questions the prosecutor when he address me, will say you
were not prepared to answer the questions.
So it is in your interest,
answer the questions?
-I understand.
Now I have a problem
with your evidence that you now went to this pastor to assist or to
help you. What sort of assistance was he
going to give you?- I would
have gone to him, I would have spoken to him, the pastor in question,
explaining my problem and he
would have told me what to do
thereafter."
[50]
At the risk of prolonging the judgment, after the prosecutor
concluded his cross examination of accused 5, the court a
quo
took over again and asked questions as follows:
"Court: I still
have problems and I do not understand what sort of assistance were
you going to seek from the pastor. What
did your neighbour tell you,
what assistance did he get?- Well, my neighbour told me that he went
to that pastor, the pastor gave
him sort of muti that he used on his
premises, on himself, that is on his body. Those were specifically
coffees, fish oil, milk,
there is a mixture and he prayed for those
things before he gave it to him and those are the things that he used
on his premises
as well as on his body. And he has got to drink some
of those things to vomit for people to like you.
So this pastor, was he
a "towenaar?" -No, this person is a ZCC member and he uses
those things that I have just mentioned.
Yes.- He further said
that this pastor would assist me in stopping smoking because I was a
heavy smoker and that damaged my body.
But now he is a man
from the church, why did he give you muti, to do what? To drive the
devils out or what?-- Well, as I said those
are the things that the
pastor gives you as I said, he prays for those to chase away the
devil.
But any pastor can
pray for you, why go to this one?- Yes, as I said I first went to
different traditional doctors, I was tired
of going to them.
You never told me
about that. - They did not assist me in any way and that man's
business was prospering. That is why I went to
him, to ask for advice
and he referred me to this specific pastor.
Are you saying that
you previously went to others to assist? - Yes, as I said during
questioning by the state advocate I told him
that I was tired of
going to traditional doctors because I used to pay a lot of money,
3000, 4000, and I would not have spent much
with this pastor because
I were to buy coffee, milk and fish oil, salt, gruff salt.
To do what? - That is
the mixture that he was supposed to use. And then? -He would pray for
that and give it to me to use.
And then you use this
mixture and then what does it do? It makes you wealthy? Yes, it
will make me stop smoking, it means I
will be healthy and my business
will also prosper.
Now how does this make
your business prosper, that is what I do not understand? Your big
problem was going there to get your business
back on track, how does
this mixture get your business on track?- Yes, I did not see the
pastor after that stage, those things
that I have mentioned are
things explained to me by someone that is the person who referred me
to the pastor, that those are things
that the pastor uses but, maybe,
maybe he would have added something else or other things to those
when I explain my problem to
him, the business problem.·
[51]
If you come from a different background, cultural belief and
religion, one is likely to make the same mistake as the trial
court
and the prosecution in dealing with accused 5. Coming from the
background that may not vastly be different from that of accused
5, I
see nothing strange in his version.
[52]
I think accused 5 tried as far as he could to educate the prosecutor
and the trial court about his own belief and the reason
to go to Jane
Furse to consult with pastor Letlapeng. For example, in
cross-examination by the prosecutor, the information
inter alia,
was elicited as follows:
"Tell
me,
what made you decide to go to Jane Furse
--
Yes, I have
already explained that the reason why I went to Jane Furse it is
because of the explanation given to by my neighbour
as to why he
succeeded in his business. I was tired of paying traditionally
doctors money, my business did not succeed. I was trusting
God, that
is why I went to pastor.
There was no pastor
you could go to in Gauteng or the Springs area?-
If you
need help you go anywhere, if somebody comes to you and tell you that
you can get help in Mozambique, never mind the distance,
you go there
for
a
distance.”
(My emphasis).
[53]
I find nothing wrong with what accused 5 said. Accused 5's version
was therefore in my view, wrongly found not to be reasonably
possibly
true. As I said, it was not suggested that the home where accused 5
arrested did not belong to pastor Letlapeng.
[54]
Insofar as the trial court might have found accused 5 to have been in
possession of the two firearms within the area where
accused 5 was
arrested, evidence presented ought to be seen in context, accepting
for a moment state's version in some respects.
Three police officials
testified about what had happened when they arrived at the home of
Letlapeng in Jane Furse. The impression
the police officials wanted
to give was that accused 5 ran away or attempted to run, upon arrival
of the police. If that was so,
it would mean that the accused 5 was
running away due to the firearm in the grey BMW or because he was
involved in the commission
of the offences at Standard Bank in Atok.
But this suggestion must be seen in context.
[55]
The context was this: In his evidence in chief, Inspector Motlwa
indicated: "As we arrived at that scene or at that homestead,
some police officials gave chase to those people who ran away but I
did not see those people.”
[56]
This version appears to coincide with accused S's version when he
said:
“
...
I
stood up, looked around, saw people running around and I saw these
many people also entering these premises, there were
many
vehicles outside ..."
[57]
Inspector Motlwa was the one who found the firearms in Jane Furse.
Now, the next question is, why did people run away from
the premises?
Who and how many were 'those people' who were being chased by the
police officials. But of importance is the fact
that it was not
Inspector Mothwa's evidence that accused 5 was one of those people
who were chased by the police.
[58]
Inspector Matloga, however, gave a different version as to what
happened when they arrived at the place where they found the
grey
BMW. He was in the same vehicle as Inspector Motlwa. They were about
30 meters from the premises when they saw a grey BMW
parked on the
premises. He then said:
"And I saw two
people leaning or standing against that vehicle at that stage
Before we climbed out of our vehicles, I
saw the people that I have
mentioned at the vehicle were starting to run away.”
[59]
He then said those people were accused 4 and 5. Clearly his evidence
brought accused 4 and 5 closer to the vehicle. That coupled
with the
alleged running away by accused 5, made him suspect and responsible
for anything found inside the vehicle, in particular
the firearm. His
alleged running would have meant that he must have been aware of the
firearm in the vehicle and
I
or a suspect to the Atok
offences. Matloga's version did not tally with that of Inspector
Mothlwa, but most importantly it did not
tally with the version of
inspector Machete who actually arrested accused 5. lnpector Machate's
evidence unfolded as follows:
"Upon our arrival
as
I was about to open the gate, I saw two people standing up,
the people in question
were
earlier seated outside next to
this vehicle."
[60]
This version is in direct contrast with that of Inspector Motlhwa and
Matloga. No leaning or standing against the vehicle was
mentioned by
Inspector Machete. Furthermore, there is no mention of running away
by the accused 5 as it was suggested by Matloga.
Therefore, any
suggestion accused 5 did not conduct himself like an innocent person
should be seen in context and no adverse inference
could have been
made against him. The rejection of his denial of any knowledge of the
firearms should be found to have been wrong.
He should have been
given the benefit of doubt with regards to both counts 4 and 5.
[61]
Just before I conclude on counts 3 and 4, I am somehow worried by the
convictions of accused 3 on both counts 4 and 5. I might
be repeating
myself in this regards and perhaps it is necessary to do so as an
attempt to clarify my concerns. Accused 3 was not
placed at the scene
by any direct evidence. He was not seen at the Atok scene of crime
where the murder offence was committed nor
at Hweleshaneng Village
where the firearm allegedly dropped by accused 2 was found.
Hweleshaneng Village is a distance away from
Atok. The only evidence
that was presented during trial which was common cause was that
accused 3 was arrested at Lebowakgomo in
a vehicle which was
allegedly seen at the scene or a distance away from the scene.
[62]
No firearm was found in his possession or inside the vehicle in which
he was a passenger. Whilst the police suggested that
he led them to
the place where accused 4 and 5 were arrested and two firearms found
at on the premises, no evidence justifying
the imputation of common
purpose principle regarding possession of such firearms. He too
should have been given the benefit of
doubt. This then brings me to
another consideration regarding other charges.
Evidence
on counts 2 and 3
[63]
Count 1 was the murder charge and count 2 was the robbery with
aggravating circumstances. The allegations having been that
on 28
November 2003 accused 3 and 5 together with three other accused
persons by force took a Mazda vehicle DWM 479 W from the
deceased in
count 1after the deceased was fatally shot. Starting with the robbery
charge, count 2, none of the accused persons
could ever have been
found guilty of robbery of the motor vehicle aforesaid. What was
committed with regard to the motor vehicle
was theft and not robbery.
The proven facts were these: The deceased who was the bank manager,
parked the aforesaid car and then
moved towards the main entrance of
the bank. The first door was opened for her and as she approached the
second door, she was accosted
by an unknown person, who was said to
have been accused 4. Accused 4 demanded the safe keys and when she
indicated that she did
not have them, she was then shot and killed.
The assailant entered the back and tried to access the safe but with
no success. Thereafter
the deceased vehicle was taken. Very clear,
the intention was to rob the bank. When the vehicle was taken, no
force or threat was
used. Therefore, the taking of the deceased's
motor vehicle was clearly theft and not robbery with aggravating
circumstances.
[64]
Identity became an issue throughout the trial. For the purpose of
these proceedings, the issue is whether the trial court was
correct
in finding that the identity of the accused 3 and 5 was proved beyond
reasonable doubt and
I
or whether whoever committed the
offence at Atok did so with common purpose with accused 3 and
I
or
5 regarding counts 1 and 2. I have earlier on in this judgment dealt
with the principle applicable to the question of identification
and I
do not find it necessary to repeat myself.
[65]
As I said, the trial court in convicting accused 3 and 5 did not deal
specifically with the evidence putting each of the accused
at the
scene or bringing each of the
accused
within the principle of common purpose. Briefly, the requirements for
principle of common purpose as articulated in S v
Mgedezi
are:
[14]
· The accused must
have been present at the scene where violence was being committed;
· The accused must
have been aware of the assault or commission of the offence against
somebody;
· The accused must
have intended to make common cause with the person or persons
committing the offence;
· The accused must
have manifested his sharing of a common purpose by himself performing
some act of association with the
conduct of others; and
· The accused must
have intended to commit the offence.
I
am of the view that the trial court erred in finding that the facts
of the present case met the requirements aforesaid to have
found
accused 3 and 5, guilty on charges 1 and 2, based on common purpose.
[66]
The only evidence implicating accused 3, or seeking to place him at
the scene of the crime at the Bank in Atok, was that he
was a
passenger inside the vehicle allegedly seen at the scene of crime.
The assumption must have been, because the motor vehicle
in question
appeared suspicious at the scene of the crime, that is, because it
dropped off near the bank the people who ultimately
robbed the bank,
he must have been one of those people or he must have had common
purpose with them. I am making this assumption
unassisted by the
finding of the trial court as it did not specifically deal with the
state's evidence. It moved from this premises
as articulated in its
judgment:
"On accepting the
evidence or the state's version the question then arises on what does
the evidence prove against the accused?
I have already indicated
there were six charges preferred against the accused. The first count
was that of murder. In my view,
I should indicate at this stage that
in this matter the state relies on common purpose. Itis alleged by
the state that the accused
acted in furtherance of a common purpose
in doing what they did. As far as the murder is concerned,
although it is so that
only one of the accused killed the deceased,
on the principles of the common purpose all the accused are held
liable if the court
is satisfied that in fact they acted in common
purpose. The evidence of the state which I have accepted indicates
clearly in my
view that all the accused acted with a common purpose.
The common purpose as far as count 1is concerned were that they
intended
robbing the bank, that one or more of them armed themselves
with firearms, that they knew if there was any resistance against
their
attack, they would kill and consequently the mere fact that
only one killed, they are all liable for the deed of accused 4. The
same goes for count 2, for the robbery. They have a common purpose of
robbing, whether they were in the bank or outside or in the
car, they
had a common purpose of all robbing the bank. According to the
principles of common purpose they are all liable."
[67]
The trial court seems to have further moved from the premise that
because it rejected the version of accused 3 as to why he
was a
passenger in the motor vehicle driven by accused 1, that in itself
should be found to establish common purpose. This appears
from its
judgment wherein it stated:
“
I consider the
evidence of accused 3. His evidence-in-chief was that when he was
stopped or when he was arrested or approached by
the police, he told
them that he knew nothing about the incident and he requested them to
take him to the church where they could
confirm that he was at the
church. This was the whole crux of his evidence. Strangely enough,
the crux of his evidence was never
put to these witnesses. Similarly
his version
as
to how
the police stopped them when they were arrested was never put to the
witnesses, to the police witnesses. He
failed
to answer many questions put to him. I
am
satisfied
that the accused's version is not reasonably possibly true.”
[68]
The fact that accused 3's version was rejected did not mean that he
had common purpose with those who had committed the crimes
in counts
1 and 2. Assuming that accused 3 was inside the car when a firearm
was allegedly dropped by accused 3 at Hweleshaneng
Village, that did
not mean that he was involved in the commission of the crimes or that
he had common purpose with those who committed
the crimes. So, even
if accused 3 had lied about the fact that he got a lift from accused
1 at Pudingwane when he was allegedly
from the ZCC church, that did
not prove beyond reasonable doubt that he was at the scene of crime
or that he had common purpose
with the three who were dropped off at
the scene or near the scene.
[69]
It was the two security officers working at Atok mine next to
Standard Bank who testified about what had happened before and
when
the deceased at the bank was killed. They were together at a distance
of about 30 away meters from the bank. The deceased
was killed by one
of three people who were dropped off with a maroon BMW with a black
top. Mr Matlou's evidence in chief
inter alia,
proceeded:
"Where exactly
where they dropped off in relation to the bank?-
Far from
the bank
,
a
distance from the bank.”
(My
emphasis).
Now,
the question is how do you impute the principle of common purpose on
and connect the occupants of the vehicle which had dropped
the
assailants "far from the bank" to the commission of the of
the offences at the bank 30 minutes later, as it will
appear
hereunder?
[70]
The other worrying factor in Matlou's evidence was that he took down
the maroon BMW's registration numbers. This was before
the commission
of the offences at the bank. Why would he have had an interest in the
vehicle to the extent of taking registration
numbers? I pose this
question because at that time, there was no basis to suspect that an
offence was going to be committed. Furthermore,
Matlou was asked if
he had seen the driver and if he could identify him. He answered in
the affirmative and said it was accused
1. I do not have to deal with
the reliability of his evidence regarding the identity of the accused
1. But it is worth noting that
his evidence as it unfolded suggested
that the shooting occurred about 30 minutes after the three men were
dropped off. Accepting
that this was so, as the trial court
found, neither common purpose nor the only inference based on
evaluation of the evidence as
a whole could be deduced to impute
liability or responsibility for the commission of the offences on
accused 3. All that was proved
against him was that he was a
passenger in the accused 1's vehicle when the two were arrested
several kilometres away from the
scene of crime.
[71]
His lies, if any, regarding his presence in the accused 1's vehicle
did not prove anything. Put differently, it did not prove
his
participation in the commission of the offences. Counsel for the
state
I
respondent
did not ask for the dismissal of the appeal during oral argument, in
my view, correctly so. Remember, the fact that an
accused person
lied, does not mean that he or she is guilty of the offence or
offences charged. The court is not entitled to say
that because he
has been proved to be a liar, he is therefore likely to be a
criminal.
[15]
It is possible
that an innocent person may put up a false story because he thinks
that the truth is unlikely to be sufficiently
plausible.
[16]
The true fact is, you cannot apply the principle of common purpose in
a vacuum. Some factors as articulated in paragraph 65 above
have to
be present before the principle can be invoked.
[72]
In any event, I do not think that accused 3's version was correctly
rejected, and that it was proved to be false beyond reasonable
doubt.
It was a version that remained to be on the balance and to have
rejected it as false beyond reasonable doubt, in my view,
was not
based on proper evaluation of the evidence as a whole. He should
therefore have been given the benefit of doubt with regards
to counts
1 and 2.
[73]
I now turn to deal with the evidence against accused 5. He was
implicated by Mr Mohlala one of the security officers at Atok
mine.
In chief he stated that he saw three men seated under the tree near
the corner of their offices, and did not know how they
arrived there.
Then, the prosecutor was allowed to put a leading question as
follows:
"Right. You say you
saw them at that stage seated under a tree, is that near to Standard
Bank?-- That is so."
[74]
Then Mohlala, who sought to place accused 5 at the scene started to
explain how one of the three men shot the deceased and
a question was
put to him as follows:
"When this man
who was armed shot the deceased, what were the other two men doing?--
I last saw them still there at that spot
that I have mentioned and
as
I said
as
the one was shooting this lady, I ran into the
office.”
[75]
Mohlala suggested that he had about twenty minutes, approximately, to
observe the people who were seated underneath a tree
before the
deceased was shot. He then said the three men were accused 2, 4 and
5. Accused 5 was wearing a blue two-piece overall
with an Eskom mark
on the chest. He was seeing the three men for the first time. In
cross-examination by counsel for accused 5
the evidence unfolded as
follows;
"You are sure
that the man you identified
as
accused 5 had the clothes you
explained, the two-piece Eskom overall?
-
That is
so.
Sir,
my instructions
are
that accused 5 did not wear
a
two
piece Eskom uniform on that day.
He was wearing it. He
was wearing white bike trousers and
a
white shirt?
-
That is
a
lie.
He will deny having
been on any scene of crime
-
He was there.”
[76]
One must question the reliability and creditability of Mohlala's
evidence. First, he was with Matlou, but he did not see the
three
people been dropped-off a distance away from the bank as testified by
Matlou. Secondly, what made him to observe these people
for twenty
minutes remained to be a mystery. There was a bank there, there was
also an ATM machine there and one would have expected
people to come
there and wait for the bank to open. For example, Mr Niewoudt one of
the state witnesses was at the bank, waiting
for the bank to open
when the bank manager (the deceased) arrived. He was actually at the
bank and closer to the assailants, I
want to believe. But, still he
could only be able to identify one person, allegedly accused 5. Both
Mohlala and Matlou did not
see the deceased's vehicle been taken,
questioning therefore their attention been directed at the bank.
[77]
Mohlala was also not a creditworthy witness. In chief, he started by
stating:
“
I saw three men
on the morning in question;
one
of the three was standing at, Standard Bank at the first ATM machine
,
whilst the other two were standing at a distance from there, still on
the premises of Standard Bank.”
(My
emphasis).
Then
he was questioned:
Did you see where
these men came from? -- Yes.
Where did they come
from?
--
They were seated under
a
tree
near the comer of our offices
.
(My emphasis).
[78]
Firstly, he did not directly answer the question which was very
clear. When he was asked as to whether he saw where the people
came
from, he said "yes", but when he was further asked where
they came from his answer was as quoted above. But most
importantly,
his evidence differed with what he had said earlier on. That is, that
the three men were standing when he saw them.
His alleged
identification of accused 5 is linked to the contradiction above.
[79]
Mohlala's evidence with regard to the identification of accused 5 was
scanty as was the case with other witnesses in the whole
of the
proceedings in the court a
quo.
He was not asked the details
of what make a reliable identification.
For
example, in chief his evidence proceeded:
"And the other two
men that you saw, who were they? - Number 5"
[80]
He was then asked about accused 5's clothing and he said he had "a
blue two piece Eskom mark on the chest."
The
prosecution asked him nothing about the features of accused 5. In
cross-examination by counsel for accused 4, the issue of
identification was raised with regard to accused 4 and this unfolded:
"Besides his
clothes, what else could you identify him on? -His face.
What about his face? -
His complexion.
Your complexion,
(inaudible), complexion, his complexion and accused 5's complexion
same? - No.”
[81]
So, Mohlala's only evidence on record was that he managed to identify
accused 5 by his clothes and his face without the details.
Accused
5's alleged clothes were never produced or spoken about during
evidence of the many witnesses who testified, particularly
that of
the police, despite the fact that accused 5 was arrested on the same
day and no identification parade was held. Therefore,
his evidence
putting accused 5 at the scene could never have been reliable. This
brings me to other worrying factors in the prosecution
case.
Worrying
factors
[82]
I deal with the worrying factors in . this case because successful
prosecution is dictated by thorough, meticulous and successful
investigation. Many cases are lost during prosecution because the
police acted on an impulse without being more concerned about
collection of information meticulously, carefully and not in a rush.
Proper presentation of evidence in court by the prosecution
is also
very important and it has to be meticulous as well. The deceased's
motor vehicle was recovered on the same day about 21
km from the
crime scene, as it would appear from the record. This was a very
critical source of investigation from the police bearing
in mind that
the assailants at the scene of the crime escaped in the deceased's
vehicle. Investigation of fingerprints and DNA
evidence on the
vehicle should have become priority in tracking down and linking
those who had abandoned the deceased's vehicle.
However, the
prosecution contended itself with the admissions which was recorded
as follows:
“
--M'
Lord, the crime scene 21 kilometres away from Standard Bank is the
scene where the deceased's vehicle was recovered, that is
point F
according to photos 21 to 24. And-"
[83]
One can safely assume that the police did not collect the required
information or evidence regarding possible fingerprints
on the
deceased's vehicle and other DNA evidence. Similarly, about 27
kilometres from the crime scene a firearm which was allegedly
thrown
away by accused 2 was found. How this firearm was handled at the
scene to preserve evidence of fingerprints and or DNA was
not
disclosed. Again, one can assume that the police were shady in their
investigation. Assuming that any of the accused alighted
from the
deceased's vehicle and entered into accused 1's vehicle further
investigation could have been made: Foot and or shoe tracks
and or
tyre tracks, say, of the accused 1's vehicle could have been
investigated and lifted to bring it closer to the deceased's
abandoned vehicle.
[84]
In Lebowakgomo accused 1 and 3 were arrested in a vehicle suspected
to have been connected to the three men who were involved
in the
crime at Standard bank, Atok Mine branch. What efforts were made to
ensure that evidence of possible fingerprints and or
DNA was
preserved, more so that more than two persons were involved? The
court a
quo
heard nothing about this. Instead, it looks like
the police were all over the place trying to trace other suspects by
eliciting
information from the arrested suspects including accused 1
and 3. For example, an allegation of assault was made by accused 3
although
the allegation was summarily dismissed as it would appear
from the record of the proceedings. This of course raises another
concern.
[85]
The police proceeded to Jane Furse allegedly on the report which was
made to them by accused 3. The report appeared to have
amounted to
either an admission or confession. Now, insofar as the trial court
might have relied on this information, that would
have constituted
unfair trial because the admissibility thereof was not proved after
accused 3 made allegations of force, threat
or an assault on him. The
trial court had a duty to investigate the allegations and decide
whether to hold a trial within a trial
to establish the admissibility
of the admission and or pointing out. Therefore, any reliance on the
information elicited from accused
3, if admitted and considered by
the trial court, would have amounted to an unfair trial. The
difficulty is that it is not clear
from the trial court's judgment
which evidence it relied on to find that the state had proved its
case beyond reasonable doubt
against accused 3 and 5.
[86]
At Jane Furse two firearms were found. One of them belonged to the
complainant in count 2. Inspector Motlwa in his evidence
in chief
stated:
"What happened to
the two pistols?- A member of the fingerprint experts
was
summoned who then
came
to take photos of these firearms and
also to take the firearms in question and sent them for ballistic
tests.”
[87]
Inspector Motlwa said this after he had indicated that he found the
firearm 'underneath a passenger seat on the left hand side,
on the
left front side of the grey BMW found in Jane Furse'. He also
indicated that, whilst searching the premises, he found another
firearm in a cubbyhole of an unused vehicle. The answer given as
included above is worrying. It gives the impression that despite
fingerprint expert been called, he was called to take photos of the
firearms and not lift possible fingerprints on the firearms.
Perhaps
that explains why there was no evidence regarding fingerprints on the
firearms or thereof. If the investigation for fingerprints
was done
on the firearms, the result, negative or positive should have been
disclosed. If accused 5 had anything to do with the
motor vehicle in
question, he could easily have been linked by investigation of his
fingerprints on the vehicle and or the firearms.
Another worrying
question is why the occupants of the premises where the grey BMW
vehicle and the two firearms were BMW found
in Jane Furse'. He
also indicated that, whilst searching the premises, he found another
firearm in a cabby-hole of an unused vehicle.
The answer given as
included above is worrying. It gives the impression that despite
fingerprint expert been called, he was called
to take photos of the
firearms and not lift possible fingerprints on the firearms. Perhaps
that explains why there was no evidence
regarding fingerprints on the
firearms or thereof. If the investigation for fingerprints was done
on the firearms, the result,
negative or positive should have been
disclosed. If the accused 5 had anything to do with the motor vehicle
in question, he could
easily have been linked by investigation of his
finger prints on the vehicle and or the firearms. Another worrying
fact is why
the occupants of the premises where the grey BMW vehicle
and the two firearms were not charged or made state witnesses? If
made
state witnesses, they could easily have refuted the evidence of
the accused 5.
Conclusion
[88]
In concluding, whilst the trial court relied on common purpose, of
necessity in the circumstances of the present case concerning
the
accused 3 and 5, it also relied on circumstantial evidence. The fact
that the accused 3 was found several kilometres from the
scene of
crime at Atok mine in the suspected vehicle, and the fact that the
accused 5 was found next to the vehicle inside which
a firearm linked
to the commission of the crime was found, does not mean that the
requirements for reliance on circumstantial evidence,
have been met.
Put simply, the inference sought to be drawn did not exclude every
reasonable inference save the one sought to be
drawn and the
inference sought to be drawn was not consistent with all proven
facts.
[17]
Consequently the
appeal on convictions ought to succeed.
[89]
Had it not have been for the finding on convictions, I would have had
difficulties in finding that the trial court erred in
finding the
absence of compelling and substantial circumstances on Counts 1 and
6. However, as far as count 2, I would have found
that conviction on
the competent charge of theft was appropriate and this could have had
bearing on sentence. Furthermore, I would
have found nothing wrong
with the sentence of 3 years on counts 4 and 5 both of which were
taken together as one for the purpose
of sentence.
[90]
I should be concerned about the accused 1, 2 and 4 who are not before
us in these proceedings. In the light of my finding above,
as I said
earlier, it is not clear whether they did previously apply for leave
to appeal. Both counsel for the state and accused
3 and 5 would have
to investigate and if no application for leave to appeal was never
brought, Mr HL Alberts who appeared for accused
3 and 5 should assist
in ensuring that their application for leave to appeal is brought on
an expedited basis and that thereafter
the appeal should be placed on
the roll expeditiously and on preferential basis.
Order
[91]
Consequently an order is hereby made as follows:
91.1. The appellant's1
appeal against conviction and sentence on count 6 is hereby upheld
and the conviction and sentence thereof
are set aside.
91.2. The appeal against
convictions and sentences imposed against appellants 1 and 2 (accused
3 and 5) respectively in respect
of counts 1, 2, 4 and 5 is hereby
upheld.
91.3. Both convictions
and sentences imposed against appellants 1 and 2 (accused 3 and 5)
respectively, in respect of counts 1,
2, 4 and 5 are hereby set
aside.
91.4. It is hereby
directed that the appellants 1 and 2, that is, Mr Zacharia Masian
Phelia and Mr Sipho Moepye be released from
prison with immediate
effect unless held in connection with other cases.
91.5. It is hereby
directed that both counsel for the appellants and the Respondent (the
State), should investigate whether the
accused 1, 2 and 4 (Messrs
Themba Mkhoza, Elija Mashinini and Thomas Moretsele) had previously
applied for leave to appeal against
both their convictions and
sentences in this matter and if not, counsel for appellants 1 and 2
is hereby directed to assist accused
1, 2 and 4 to apply for leave to
appeal on an expedited basis and if granted to ensure that their
appeal is heard on preferential
basis and counsel for the state to
assist in this regard.
____________________
M
F LEGODI
JUDGE
OF THE HIGH COURT
I
AGREE,
____________________
C
P RABIE
JUDGE
OF THE HIGH COURT
I
AGREE,
____________________
P
M MABUSE
JUDGE
OF THE HIGH COURT.
[1]
S v Pretorius and Another
1991 (2) SACR 601
(A); S v Zitha
1993 (1)
SACR 718
(A).
[2]
South African Law of Evidence, 2nd edition by DT Zeffort and Praizer
at 152 & 153.
[3]
S v Miggel
2007 (1) SA 675
(C) at 678 E citing S v Mlati
[1984] ZASCA 88
;
1984 (4) SA
629
(A) at 632 H-I.
[4]
R v Shekelede
1953 (1) SA 636
(T) at 638.
[5]
R v Mputing
1960 (1) SA 785
(T) , see also S v Mehlape 1963 (2) SA
29 (A).
[6]
S v Zitha
1993 (1) SACR 718
(A).
[7]
See South African Law of Evidence, supra page 155.
[8]
S v Mthetwa
1972 (3) SA 766
(A) at 768, per Holmes JA.
[9]
See the South African Law of Evidence supra at 155
[10]
R v Y and Another 1959 (2) SA 116 (W).
[11]
See Christopher Williams Identification Parade
(1955) Criminal Law
Review 525
; dealing with the practice in England.
[12]
R v Kola 1949 (1) PH H100 (A); Sv Mlate
[1984] ZASCA 88
;
1984 (4) SA 629
(A) at 634
H-1.
[13]
S v Mohlathe 2000(2) SACR 530 (SCA) at 541 A-D.
[14]
1989 (1) SA 687
(A) at 705 I- 706 C.
[15]
Tumahole Bereng v The King (1949] A.C. 253 P.C.
[16]
S v Rama
1966 (2) SA 395
(A).
[17]
T v Blom 1939 188 AD at 202-203