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[2015] ZAFSHC 152
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Maduna v S (A61/2015) [2015] ZAFSHC 152 (13 August 2015)
SAFLII
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Certain
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FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Appeal
number: A61/2015
In
the appeal between:
MUZI
PETROS MADUNA
Appellant
and
THE
STATE
Respondent
CORAM:
MOCUMIE,
J
et
FISCHER, AJ
JUDGMENT:
FISCHER,
AJ
HEARD
ON:
27
JULY 2015
DELIVERED
ON:
13
AUGUST 2015
[1]
On 24 November 2013 at approximately 20h00 and at or near Rhirone in
the Harrismith district, three men approached the complainant
Dumisani Sechage and his […..] year old girlfriend T. T. where
they were walking on the outskirts of the township.
Whilst two
of the assailants proceeded to attack the complainant with knives,
the appellant restrained the complainant’s
girlfriend by
holding on to her shoulders whereafter the appellant himself
proceeded to attack and stab the complainant.
The three
assailants thereafter fled the scene, pursuant to which only the
appellant was charged with assault to do grievous bodily
harm, it
being the state’s case that he had stabbed the complainant with
a knife. On 25 November 2014 the appellant
was convicted as
charged and sentenced to two years imprisonment and on 28 January
2015 granted leave to appeal both the conviction
and sentence by the
trial court.
[2]
The sole issue in this appeal turns on the adequacy of the evidence
concerning the identification of the appellant as one of
the knife
wheelding attackers who attacked and stabbed the complainant, it
being common cause that the other two assailants were
subsequently
neither identified nor charged.
[3]
The complainant himself could not identify any of his attackers but
testified that three men wearing balaclavas approached him
and his
girlfriend on the outskirts of the township and without saying
anything proceeded to attack and stab him. In amplification
of
his evidence he testified that all three men had approached him but
that one of them, who was subsequently identified as the
appellant,
had grabbed his girlfriend by the hand whilst the other two proceeded
to attack and stab him. The appellant thereafter
released his
girlfriend and proceeded to stab him as well, whereafter they all
three fled the scene.
[4]
The complaint’s girlfriend T. T. testified that three men had
approached her and the complainant on a street in the township,
that
the appellant held her by the shoulders whilst the other two
proceeded to attack and stab the complainant, whereafter the
appellant had released her and moved toward the complainant and
stabbed him. All three men then ran away.
[5]
According to the girlfriend the available light by means of which she
allegedly was able to identify the appellant was provided
by a
so-called Apollo light situated in another street which she estimated
was between 10 and 12 metres away. She furthermore
claimed that
when the appellant grabbed her by the shoulders they were at all
material times no more that approximately half a
metre apart and
starring into each other’s faces for what she estimated was
between two to three minutes whilst the other
two unidentified
assailants were attacking and stabbing the complainant.
[6]
According to her she knew that the appellant was the assailant who
had grabbed her as
“
I
saw him.”
and
“
Yes,
I know him.”
and
“
We
were facing each other as he held me on my arms and was wearing a
hood.”
The
state then closed its case. The appellant himself did not
testify having pleaded not guilty and denying any involvement
whatsoever in the attack.
[7]
In his judgment the magistrate reminded himself of the need for
caution in his approach to all the evidence concerning the
identification of the appellant. He was of the view that
notwithstanding the
“
very
poor illumination”
as
testified to by the complainant’s girlfriend, she had made a
good impression on the court, that there was evidently no
problem
with her eyesight and, having had regard to the close proximity of
the appellant to her, she had had sufficient opportunity
to identify
him. In the magistrate’s opinion the contradictions
regarding what clothing all three assailants were wearing,
where on
his body the complainant had been stabbed and whether or not the
assailants were all wearing balaclavas, as opposed to
a hood in the
case of the appellant, were insignificant and did not as such serve
to detract from the credibility of the girlfriend’s
evidence.
According to the magistrate the appellant was, in the circumstances,
duty bound to rebut such evidence, which he
failed to do, thereby
entitling the court to draw an adverse inference.
[8]
A critical reading of the record shows however that, whilst the
complainant himself was unable to identify any of his assailants,
notwithstanding the fact that he had been approached by all three
whilst in the company of his girlfriend, the evidence of the
girlfriend was not above criticism in that the following evidence
manifestly affected her ability to identify the appellant:
1.
Firstly,
she testified that whilst the other two assailants were attacking and
stabbing the complainant, the appellant was holding
her by the
shoulders whereafter he too moved away from her and stabbed the
complainant. She thereafter changed her version
by stating that
she had not seen the appellant stab the complainant.
2.
Secondly,
the light used for identification purposes was situated in another
street and after initially claiming that the light
was behind both
her and the appellant when being held by the shoulders, she
subsequently changed her version by claiming the appellant
was facing
the light. Even more startling was her concluding testimony to
the effect that she could not see as there was
“
no
illumination”.
3.
Thirdly,
she contradicted the complainant in testifying that the appellant was
wearing a hood which, according to her was clearly
visible at the
time that the three assailants approached her and the complainant.
In contrast hereto the complainant himself
was emphatic that all
three assailants were wearing balaclavas and that it was for this
reason that he was unable to identify any
of them when they
approached him standing next to his girlfriend.
4.
Fourthly
and whilst she was adamant that the complainant had been stabbed in
the vicinity of the right shoulder, right upper arm
and in the
vicinity of the spine on the right hand side of the back, the
complainant himself testified that he had been stabbed
on the left
upper arm, left shoulder and left side of the back.
5.
In
the fifth place she stated in one and the same breath that whilst it
was too dark to see what the appellant had been wearing,
she was
nevertheless able to see that he was wearing a black top and hood.
6.
Finally,
and in contradiction of her claim that she was unable to identify the
other two assailants before, during and immediately
after the attack,
the complainant himself testified that
“…
she
met up with these three people when we met the following day and she
said that those people who she met are the ones who stabbed
me.”
[9]
The approach to the evidence of a single identifying witness must not
only be reliable and credible but falls to be approached
with
caution. (See
S
v Mthetwa
1972 (3) SA 766
(A) at 768A-C.) In addition thereto it has
frequently been stated that something more is required than the mere
assertion
by a single witness that he or she has correctly identified
the culprit. (See
S
v Sithole and Others
1999 (1) SACR 585
(W) at 591E-F.)
[10]
It has repeatedly been emphasised that in addition to honesty and
sincerity, the court must be placed in a position to test
the say-so
of the single witness so as to determine the reliability of this
witness’s observations in traumatic circumstances.
(See
S
v Ngcina
2007 (1) SACR 19
(SCA) at para [17].) There must be certainty
beyond reasonable doubt that the identification of the alleged
perpetrator was
reliable in all the circumstances. (See
S
v Sharzen and Another
2006 (2) SACR 143
(SCA) at paras [11] – [15].)
Identification with reference to specific physical features, facial
features, clothing,
colour, hairstyle and length of hair, evidentiary
samples of a forensic nature and the weapons used in the assault
would always
serve to provide a measure of objective assurance
against any of the pitfalls arising out of a subjective
identification based
on nothing more than claims that
“
I
saw him.”, “Yes I know him.”
and
“
We
were facing each other as he held me on the arms…”
(See
S
v Sharzen and Another
supra
at paras [16] – [19].)
[11]
I am prepared to accept for purposes hereof that T. T. was an honest
witness. In my opinion however and having regard
to not only
the particular circumstances of the case, but more importantly her
contradictory evidence, lack of illumination and
the absence of
objective corroboration, she cannot be regarded as a reliable witness
in respect of the crucial question of identification
of the
appellant. I am of the view that the girlfriend’s
evidence is insufficient and the possibility exists, and as
such
cannot be excluded, that the appellant was not involved in the
assault on the complainant, in which case he is entitled to
the
benefit of the doubt. (See
S
v Ngcina
supra
at
paras [18] and [19]).
[12]
In the circumstances it cannot be found that the appellant’s
guilt had been proved beyond reasonable doubt.
[13]
In the result the following order is made:
1.
The
appeal by the appellant succeeds and his conviction of assault with
intent to do grievous bodily harm together with the related
sentence,
are set aside.
______________
P.
FISCHER, AJ
I
concur.
_______________
B.C.
MOCUMIE, J
On
behalf of the appellant: Mr J. D. Reyneke
Instructed
by:
Justice
Centre
BLOEMFONTEIN
On
behalf of the respondent: Adv. M. Strauss
Instructed
by:
Director:
Public Prosecutions
BLOEMFONTEIN
/eb