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[2014] ZAGPPHC 512
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Jantjie v S (A872/13) [2014] ZAGPPHC 512 (13 June 2014)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC
OF SOUTH AFRICA]
Case
number: A872/13
Date:
13 June 2014
In the matter
between:
ZAMAKHAYA JOE
JANTJIE
.................................................................................................
APPELLANT
And
THE
STATE
.............................................................................................................................
RESPONDENT
MAVUNDLA J,
[1] The appellant
was convicted at Regional Court, sitting in Cullinan, of robbery with
aggravating circumstances and sentenced
to fifteen years
imprisonment. He is now appealing against both conviction with the
leave of the magistrate, and against sentence,
with the leave granted
on petition by Makgoka J and Teffo J.
[2] The appellant
was duly legally represented at the trial. He pleaded not guilty to
the charge of robbery with aggravating circumstances
in terms of s 1
of Act 51 of 1977 in that on 7
th
January 2010 at the
district of Cullinan he unlawfully and intentionally and acting with
common purpose, with violence robbed C.L.
Dlamini and Kekana M.P. of
4 cell phones, car keys, cash in an amount of R4000.00, LG DVD
player, DSTV decoder and a watch, their
property or in their lawful
possession.
[3] The appellant
pleaded not guilty to the charge. There was no plea explanation and a
right of silence was used by the appellant.
[4] It is common
cause that on the night of 7
th
January 2010, the house of
the two complainants, Dlamini and Kekana was invaded by unknown men,
one armed with a firearm and another
with a knife. The family was
robbed of the items mentioned in the charge sheet.
[5] It was also
common cause that both Dhlamini and Kekana identified the appellant
in an identification parade.
[6] It was submitted
on behalf of the appellant that the evidence of Dlamini was not
reliable and should have been rejected. It
was submitted that she did
not have sufficient opportunity to observe and notice the scar on the
face of the appellant relied upon
as an identification mark. She was
not certain whether the mark was below which eye of the intruder. The
probability is that she
discussed the matter with her husband, Mr.
Kekana. She could not have heard the name Zama being mentioned by one
of the intruders
because at that time she had already ran into the
bathroom.
[7] The
identification of the appellant at the identification parade by both
Dlamini and Kekana is not reliable because, inter alia,
the holding
of the identification parade is flawed for want of having been
properly conducted and there having been no trial within
a trial
conducted in that regard.The person who conducted the identification
parade, informed the witnesses that a suspect is present
in the
parade. What should have been conveyed to both witnesses was that a
suspect may or may not be in the parade. The officer
conducting the
parade was duty bound to ensure that not only the appellant wore
white shoes which made him distinguishable from
the rest of the other
people in the parade.
[8] The issue to be
determined is whether the identity of the appellant was sufficiently
proven beyond reasonable doubt. In the
matter of
S
v
Mthetwa
1
Holmes
JA held that:
"Because
of the 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; the
mobility of the scene; corroboration; suggestibility;
the accused's
face, voice build, gait, and dress, the result of identification
parades, if any; and of course, the evidence by
or on behalf of the
accused. The list is not exhaustive. These factors, or such of them
as they may be applicable in a particular
case, are not decisive, but
must be weighed one against the other, in the light of the totality
of the evidence, and probabilities;
see cases such as
R v
Masemang,
1950 (2) SA 488
9A.D.);
R v Diadla and Others
1962
(1) SA 307
(A) at 310C;
S
V
Mehlape
1963 (2) SA 29.
”
[9]
In the matter of Ntsele
v
S
2
cited
with approval the following remarks made in the matter of S
v
Khumalo en andere
3
:
“
The
Court must be satisfied that the identifying witness is not only
honest but also reliable
(S v Mthethwa
1972
(3) SA 766
(A) at 768A-B. Honesty on its own is no guarantee of
reliability. In this regard Van den Heefer AJ in
R v
Masemang
1950 (2) SA 488
A) at
493 quite correctly observed:
The positive
assurance with which an honest witness will sometimes swear to the
identity of an accused person is in itself no guarantee
of the
correctness of that evidence.’
Accordingly
the witness’ ‘honesty and reliability must not be allowed
to frustrate the separate investigation of the
reliability of the
identification’ (S
v
Mlati
[1984] ZASCA 88
;
1984
(4) SA 629
(A) at 632H-I.”
4
[10]
With regard to the alleged flaws concerning the identification
parade, the courts have held that the failure to follow certain
procedures in a criminal trial may
per
se
amount
to an irregularity which vitiates the entire process of justice and a
fair trial. However it does not follow that, every
non-compliance
would result in the entire proceedings being vitiated by such. Each
and every case must be adjudged on its own merits.
The courts have
held that it is not necessary that in every identification parade
there ought to be a trial within a trial, otherwise
this will make
criminal trials unduly protracted. In the matter of S
v
Felthun
5
it
was held that
‘
where
the irregularity is not of such a nature that it
perse
results
in a failure of justice, the test to be applied to determine whether
there has been a failure of justice is simply whether
the Court
hearing the appeal considers, on the evidence (and credibility
findings, if any) unaffected by the irregularity or defect,
that
there is proof of guilt beyond reasonable doubt. If it does so
consider, there was no resultant failure of justice (per Holmes
JA in
S
v
Tuge
1996
(4) SA 565
(A) at 568 f-g; and see also S
v
Xaba (supra)
at
736A-B) and S
v
Nkata and Others
1990
(40 SA 250
(A) at 257E-F)”.
[11] According to
the evidence of Ms Dlamini on the night in question, she heard her 12
year old daughter screaming in the kitchen.
She ran towards her
daughter and saw a man pointing at her with a firearm. She screamed
at her husband who also came to the kitchen.
When she was running
away she fell. Her husband was already there. When she stood up, the
gunman was pointing a gun at both her
and her husband. A second man,
who she said later, was the appellant came in. She managed to run to
the bathroom where she hid
herself until it was quiet before
emerging.
[12]
While she was in the bathroom, she heard her husband and the
intruders talking in the bedroom looking for her. They instructed
her
husband to take her out. When they realised that she was nowhere to
be found, one of them “said Zama, Zama let us go”.
Under
cross examination she said that the second person had a big cap with
a lot of hair inside the cap. Tsidi She said that she
was 100% about
the identity of the appellant because “He has a scar on his
eyes
(sic)
that
I could not forget. ...It looked like a stitched scar. She thought it
was on his right eye. She was mistaken about this because
when the
defence asked her to point it out on the appellant in the dock; she
said the scar was on the left eye.
[13] She pointed the
appellant at an identification parade. In the parade room she was
told to point the one that she knew by placing
her hand on his
shoulder. She pointed the appellant who was holding number 8. All the
people who were in the parade line up held
numbers.
[14] Mr. Kekana, on
a careful reading of the record, substantially confirmed the version
of Dlamini, his wife. He too said that
the appellant was the second
person to enter their house while the first intruder pointed him with
a gun. He said the gun man instructed
him to lie down on the floor.
Because he is a big man, he struggled to do that. He looked for a
suitable place to lie. The second
man came to search his pocket but
struggled to get his wallet. At that moment he had an opportunity to
observe that he had a scar
below his eye and dreadlocks under his big
cap. He subsequently pointed appellant at an identification parade as
the person he
saw on the night in question. He identified him through
the scar as well as the dreadlocks.
[15] The appellant
was traced on his first name Zama and found in prison by the
detectives. According to Sergeant Botha who traced
the appellant, he
did not take photos of the appellant nor shown the complainants any
photo of the appellant prior to the identification
parade. The prison
does not allow cameras and cell phones, therefore it was impossible
to have photos of the appellant taken in
prison. Nel escorted the
witnesses from the identification parade to a separate room to ensure
that they did not discuss about
the case. Captain van Der Walt
conducted the identification parade. There were no photos taken prior
to the holding of the identification
parade. The photos of the
appellant were never shown to the witnesses prior to the holding of
the identification parade. She informed
the witnesses to point out
the suspect if ever he is in the parade. He informed the people in
the parade that they may change position
at any time and make any
reasonable request.
[16] Nothing much
turns around the evidence of sergeant Masethla. He was responsible to
look after the witnesses in a room from
which they were then fetched
individually to procede to the identification parade. The witnesses
never discussed about the parade
or about the matter while they were
in the room
[17] According to
Van Der Walt the appellant and another suspect were in the parade but
only the appellant was pointed out by witnesses.
Under cross
examination he said that there were no photos of the suspects taken
prior to the holding of the parade. He informed
the witnesses that
the suspects may be in the parade. He informed the appellant and
another suspect of their rights to legal representation.
He conceded
that the appellant was the only one wearing white shoes. Had he
noticed this earlier, he would have then instructed
ail the people in
the parade to take off their shoes.
[18] The appellant
denied any knowledge of the crime. He said that when he appeared at
the district court on an unrelated matter,
he was informed that he
has another case. According to him he was taken to the police station
without any explanation save that
they were going to play loto. They
were not informed of their rights when the identification parade was
conducted. He was merely
told to go fetch other people who also had
dreadlocks, which he did. The reason he was pointed out was because
the witnesses were
shown his photos taken at New Lock prison.
[19] Under cross
examination he conceded that he is known as Zama. He further said
that the photos were taken by the prison officers
and kept in a
computer in prison. Botha also took these photos from prison to show
to the witnesses. He does not know why his legal
representative put
to the witnesses that Botha took photos. He further said that the 7
th
January 2010 was on a weekend and he was at home. He denied that the
7
th
was on a Thursday as put to him by the state counsel.
The appellant closed his case without calling any witness.
[20] The trial court
found that the two witnesses had sufficient opportunity to observe
the intruder they subsequently identified
as the appellant. It
further found that the two witnesses corroborated each other and were
honest, credible and reliable. The first
complainant, as pointed out
earlier, conceded that the entire episode was of short duration, a
matter of seconds. However, she
stated that she would never forget
the scar. She was not that much attacked in cross examination on this
point, it must therefore
be accepted. The light was on. The mere fact
that the duration was very short does not make her assertion of what
she saw and observed
improbable. The magistrate placed more weight on
the evidence of Kekana, who testified that the appellant’s face
was a mere
30 centimetres away from his face because he was
struggling to get his wailet from his pocket. Both complainants also
identified
the appellant at the identification parade.
[21]
The courts have repeatedly held that the court of appeal will not
interfere with credibility findings of the trial court, unless
it is
demonstrably clear from the record that such credibility finding is
patently incorrect. In the absence of any misdirection,
the trial
court’s finding of fact and acceptance of the evidence will be
regarded as correct; vide S
v
Francis
6
.
[22] The trial court
found that the only attack on the identification parade was the
aspect of the white shoes. The appellant testified
that he was
instructed to get people who looked like himself for the
identification parade, who he did get. Looking at some of
the photos,
photo 8 and 10, it is clear that the appellant was not the only one
with dreadlocks on the identification parade. The
magistrate also
took into account the fact that the white shoes did not have any role
on the part of the two identifying witnesses,
when they pointed the
appellant out. The trial court found Botha to be an honest person.
[23] The magistrate
proceeded to evaluate the evidence of the appellant. It rejected his
assertion that his photos were taken by
Botha and shown to the
witnesses prior to the holding of the identification parade. This
version was also never put to the two
identifying witnesses, and must
have come, in my view, as an afterthought. The trial court found the
version of the appellant not
to be reasonably possibly true but
false. I am of the view that the magistrate properly evaluated the
evidence of both the state
and the appellant and correctly rejected
that of the appellant. I am further of the view that the trial court
quite correctly found
that the identity of the appellant, as well as
his guilt were proven beyond reasonable doubt. Accordingly the appeal
on the merits
must fail.
[24] The appellant
was sentenced to 15 years imprisonment, which was the minimum
sentence for armed robbery. A firearm was used
and Kekana was pistol
whiplashed. The personal circumstances of the appellant were that he
was 27 years old at the time of conviction;
a father of a 7 year old
child; was in custody for a year before the conviction. The trial
court took into account as an aggravating
circumstance the fact that,
the offence was committed not by the appellant alone but a group. The
trial court found that there
were no substantial circumstances
warranting a lesser sentence.
[25]
The question of sentencing is a matter of the discretion of the trial
court. The Supreme Court of Appeal has in the well known
Malgus case
cautioned that minimum sentences must not be lightly departed from.
Encroaching at night, as a group and armed with
firearm into the only
domain of sanctuary of a person, as in casu, should under no
circumstances be tolerated by the courts. Such
an invasion warrants
nothing less than a long imprisonment.
In
casu
valuables
of the complainants were removed and not recovered. I am of the view
that the personal circumstances of the appellant
are nothing special
to qualify as substantial and compelling circumstances, to warrant a
lesser sentence.
[26] The trial
court, however, did not order that the period of incarceration of the
appellant as an awaiting trial, should be taken
into consideration
for purposes of determining when the appellant would qualify for
consideration to be released on parole.
[27] I therefore
conclude that the trial court cannot be faulted, in the exercise of
its judicial discretion, for imposing the sentence
of 15 years
imprisonment, but for not ordering the pre-sentencing as stated in
the preceeding paragraph. It is within this court’s
inherent
jurisdiction to make the order as stated herein above, and confirms
both the conviction and sentence.
[29] In the result
the following order is made:
1. That the appeal
against conviction is dismissed and the conviction is confirmed;
2. That the appeal
against sentence is dismissed and the sentence of 15 years
imprisonment is confirmed;
3. That it is
further ordered that the pre-sentencing custodial period of the
appellant should be taken into account by the Correctional
Services
authorities, in determining his parole qualification.
N.M.MAVUNDLA
JUDGE OF THE
HIGH COURT
I agree
S. STRAUSS
JUDGE OF THE
HIGH COURT
DATE OF HEARING :
09 / 06 / 2014
DATE OF JUDGMENT
: 13 / 06 / 2014
APPELLANTS
ATT : PETORIA JUSTICE CENTRE
APPELLANT’S
'S ADV ; J. Van ROOYEN
RESPONDENT’S
ATT: DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT'S
ADV: MR C. SMIT
1
1972
(3) SA 766
(A) 768A-C.)
2
1998(3)
ALL SA 517 (A) at 523 a-c
3
[1991] ZASCA 70
;
1991
(4) SA 310
(A) at 328C-G
4
My
translation from Afrikaans.
5
1999
(1) SACR 481
(SCA) at 4851.
6
1991 (1) SACR 198
at 204c- e.