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2015
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[2015] ZAFSHC 254
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Hlao v S (A106/2015) [2015] ZAFSHC 254 (31 December 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A106/2015
In
the appeal between:-
DAVID
HLAO
Appellant
and
THE
STATE
Respondent
CORAM:
MOLEMELA, JP
et
MOKOENA,
AJ
DELIVERED
ON:
31 DECEMBER 2015
MOLEMELA,
JP
[1]
This is an appeal against conviction and sentence. The appellant
appeared before the Regional Court in Welkom (court
a
quo
)
and was charged with assault with intent to do grievous bodily harm.
He was convicted and sentenced to 12 months’ imprisonment
plus
a further 12 months’ imprisonment wholly suspended for a period
of five years on condition that he is not convicted
of the same
offence again. The appellant applied for leave to appeal
against both conviction and sentence and leave was duly
granted. He
was released on bail pending his appeal.
[2]
The facts that gave rise to the appellant’s prosecution were
presented to the court
a
quo
through the evidence of one state witness, namely the complainant. He
testified that he was asleep at his place of residence when
he was
awoken by the sound of a knock on the window. The dogs were also
barking frantically. He peeped through the window and saw
one person
standing in his yard at the area of the carport. Upon seeing this
person, he asked his wife to call the police. He then
went outside,
locked the door and then threw the house key back into the house.
When he went around the corner of the house, he
saw a person standing
there, looking the other way. He then screamed at this person, who
immediately turned around and walked towards
him. A second person
emerged from behind a wall at the courtyard brandishing a knife. This
person, whom he later identified as
the appellant, charged at him and
made a stabbing movement. He raised his hand to protect his face and
was stabbed in the hand.
A third person emerged from the garage. The
three persons then started hitting him on the face and ribs. They
then pulled him to
the ground and started kicking him all over. They
also hit his head against the wall. He started screaming and called
out to his
wife, asking her to call the neighbours. When his wife
started screaming, his three assailants then fled. The neighbours
came and
offered assistance, after which the police were called. He
was transported to the hospital, where he received medical attention.
He testified further that about a week or two after the incident he
saw two men standing at the gate of his house looking into
his yard.
As he approached them with his vehicle they walked away. He drove
past them and parked in the next street with
the intention of seeing
where they were heading. He saw them walking in the direction of
Boxer supermarket. They eventually went
into the Internet Café.
He summoned the police. The police arrived at the scene. After
initially stating that they could
not arrest the suspect without a
case number, the police asked him to enter the Internet Café
and to identify the suspect.
He saw the appellant sitting near a pool
table and identified him to the police. The appellant was then
arrested.
[3]
The complainant was extensively cross-examined and his identification
of the appellant as one of the perpetrators was disputed.
The
complainant conceded that he was shocked by the incident. He however
maintained that he made a positive identification with
the aid of LED
spotlights. The appellant’s defence was that of an alibi. He
testified that on the night of the incident he
was at his home with
his wife and children. He denied having been at the gate of the
complainant’s premises on the date of
his arrest. His wife was
called as a witness and confirmed his alibi. It turned out that his
wife had been sitting in the courtroom
during the appellant’s
testimony. The court found that the evidence of identification was
reliable because the complainant
had testified that the incident had
lasted 45 minutes, during which he was in close proximity with his
assailants in a well-lit
area. The court stated that even though the
scene was mobile, there was enough time for the complainant to see
who was attacking
him because he was able to describe the role each
assailant played in the attack.
[4]
The appeal against conviction is on two main grounds, firstly that
the appellant’s alibi was rejected despite being reasonably
possibly true and, secondly, that the complainant’s evidence of
identification was not reliable and did not pass muster against
legal
principles applicable to the evidence of identification.
[5]
It is a trite principle of our law that in criminal cases, the State
bears the onus of proving the accused’s guilt beyond
reasonable
doubt. This is the case even where the defence of an alibi has
been raised, which means it is the state that bears
the onus of
disproving the alibi. In
R
V HLONGWANE 1959(3) SA 337 (A) AT 340-341
it was laid down that where such a defence has been raised, the
correct approach is to consider the alibi in the light of the
totality of the evidence and the court’s impression of
witnesses.
It
was held in
S
v Musikar
2013 (1) SACR 517
(SCA)
that once
an
accused person has raised a defence of an alibi, that alibi has to be
accepted unless of course it (the alibi) is proved to be
false beyond
reasonable doubt.
[6]
Furthermore, it is trite law that the evidence of a single witness
must be treated with caution. The evidence of a single witness
can
sustain a conviction if such evidence is satisfactory in all material
respects. See
R
V MOKOENA
1956 (3) SA 81
(A) AT 85.
[7]
The proper approach applicable to the analysis of evidence pertaining
to identification was laid down as follows in the seminal
judgments
of
S
V MTHETHWA 1972(3) SA 766 (A) AT 768A-D
:
“Because of the fallibility of human observation, evidence of
identification is approached by courts with some caution.
It is not
enough for the identifying witness to be honest: the reliability of
his observation must be tested. This depends on various
factors such
as lights, 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; the mobility of the
scene; corroboration; suggestibility; the
accused’s face,
voice, build, gait and dress; the result of identification parade, if
any; and of course the evidence by
or on behalf of the accused. The
list is not exhaustive. The 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.”
It is thus clear
that it would not be enough to rely on the identifying witness’
honesty without testing his/her reliability.
[8]
I turn now to assess the evidence that was presented by the state’s
only witness, namely the complainant. His own version
is that he
became aware of the second suspect (appellant’s) presence only
after he had screamed at the first suspect. According
to him the
appellant approached him wielding a knife at the stage when the first
suspect was also approaching him. The complainant
gave the following
account of the events:-
“
Complainant:
Ja, die eerste verdagte. Hy het na – hy het met sy rug na my
toe gestaan en ek het op hom gegil. Op hom geskreeu,
gegil. Die
suspect het omgedraai en na my rigting toe beweeg en die tweede een,
verdagte, het links om die hoek uitgekom by my
courtyard.
Prosecutor: Agter
die muur uitgekom?
Complainant: Ja,
uitgekom….
Prosecutor: Hoe ver
van jou af was die tweede verdagte?
Complainant: So ‘n
meter. Maar die tweede verdagte, toe hy uitkom toe het hy klaar die
mes in sy hand.
Prosecutor: Kan u
aan die hof voorhou hoe hy die mes vasgehou het?
Complainant: In sy
regter hand.
Prosecutor: En
nader hy toe?
Complainant: Hy het
my gestorm toe keer ek met my linkerhand en toe het hy my gesteek in
die linkerhand want hy wou my in my gesig
steek.
Prosecutor: Gaan
aan
Complainant: Die
tweede verdagte het ek geherken in sy gesig en kleredrag.
Prosecutor: Wat het
vir u uitgestaan? Sy gesig?
Complainant: Gesig
Prosecutor:
wat staan vir u uit?
Complainant: Die
geweld wat hy mee- soos hy gesteek het met sy groot oё, hare en
baard.”
[9]
On the complainant’s own description of the incident, it is
clear that the appellant was not previously known to the complainant.
He saw the appellant for the first time when he emerged from around
the courtyard. When he first observed him, the first suspect
was
already approaching him. At that stage, the appellant was allegedly
already brandishing the knife, ready to strike, and was
a mere metre
from the complainant. Upon reaching the complainant he immediately
stabbed him. Naturally, the complainant’s
attention was
focussed on the knife that was being brandished at close proximity to
him and where it was directed at. At the same
time, he also faced
another threat from the first suspect, who was already charging at
him. Immediately after the stabbing, a third
person emerged. All
three persons then assaulted him jointly. He was subsequently thrown
to the ground and kicked at. His head
was bashed against the wall.
The third suspect threatened to shoot him. The scene was mobile.
Under such circumstances, it is highly
improbable that the
complainant would have had an opportunity to have a good look at the
face of the second suspect (appellant)
when a knife was being
wielded, about to strike.
[10]
It must also be borne in mind that under cross-examination the
complainant conceded that although his ordeal lasted for about
45
minutes, he was unable to state exactly how long he had observed the
appellant. In his evidence in chief, he was vague in his
description
of the appellant. The court
a
quo
’s
finding that “the complainant was very sure about the way he
identified the accused by his hair and the big eyes
that the accused
had while he was coming towards him with the knife” is not
supported by the record. As correctly observed
in the case of
S
V CHARZEN
2006 (2) SACR 143
(SCA),
facial
characteristics are a more reliable and enduring source of
identification than variable features such as hairstyle or clothing.
The
complainant did not give any details of how he could distinguish the
appellant’s big eyes, hair and beard from any other
person’s
features. It bears mentioning that these features would have been
noted during a very stressful time for the complainant,
moments
before the stabbing. He also conceded that he was in shock at the
time of the incident. His shock is not surprising because
he ventured
out of his house having seen only one intruder, only to discover that
there were two more intruders who were also armed
with a knife and
firearm, respectively. I am satisfied that the complainant’s
evidence, as a single witness, cannot be described
as being
satisfactory in all material respects. His evidence of identification
of the appellant as the intruder is not reliable
and cannot sustain a
conviction.
[11]
With regards to what transpired on the date of the appellant’s
arrest, the appellant’s conduct was not of someone
that was
hiding from anyone. The complainant’s evidence was that when
the appellant and his companion saw him approaching
the gate of his
house, they quickly moved away. It is thus surprising that when the
complainant stood at the door of the Internet
Café and was
visible to the appellant, the appellant made no attempt to run away.
Considering that the complainant’s
evidence is that the
appellant’s companion vanished after the departure of the first
police officers who visited the Internet
Café and refused to
arrest the appellant and his companion, it is odd that he too,
knowing the offence he had committed
and having seen the complainant
at the gate of his house earlier on the same day, would not have
tried to leave the place in order
to evade arrest.
[12]
It is trite that a court’s finding on the credibility of a
particular witness depends on its impression about the veracity
of
that witness. Aspects that have a bearing on the credibility and
reliability of a witness include not only a witness’
candour
and demeanour but also the witness’ bias, internal and external
contradictions on important aspects of the case,
cogency, the
witness’ opportunity to observe the event and the quality,
integrity and independence of the witness’
recollection of the
incident. It is significant that the court a quo stated in its
judgment that the appellant was extensively
cross-examined and his
evidence was not shaken by cross-examination. The court
a
quo
also stated that the appellant’s wife was a good witness and
remarked that little weight had to be attached to her evidence
due to
the fact that she had been in the courtroom during her husband’s
testimony. Under the circumstances, the court
a
quo’s
unexplained preference of the complainant’s evidence to that of
the appellant is rather surprising. The appellant’s
alibi was
not shown to be false. The totality of evidence does not in any way
suggest that the appellant’s version is not
reasonably possibly
true.
[13]
Having considered all the afore-mentioned circumstances, I am of the
view that the State failed to discharge the onus of proving
the
appellant’s guilt beyond reasonable doubt. The conviction
is unjustifiable and consequently cannot stand. Given
my views on the
conviction, it stands to reason that the sentence imposed must also
be set aside. The appropriate order is the
following:
1.
The appeal against conviction and sentence succeeds.
2.
The conviction is set aside and replaced with the following order:
“
The accused
is found not guilty and is discharged.”
_________________
M.B.
MOLEMELA, JP
I
agree.
______________
R.
MOKOENA, AJ
On
behalf of appellant:
Adv
J.S. Makhene
Instructed by:
Bloemfontein
Justice Centre
On
behalf of respondent:
Adv S. Mthethwa
Instructed by:
Director of Public
Prosecutions
BLOEMFONTEIN