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[2014] ZAFSHC 220
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Mosia and Another v S (A178/2014) [2014] ZAFSHC 220 (11 December 2014)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION:
BLOEMFONTEIN
Appeal Number: A178/2014
DATE: 11 DECEMBER 2014
In the matter between:
PAPIKI SEPTEMBER
MOSIA
.....................................
1st
Appellant
DAVID
MOSIA
..............................................................
2nd
Appellant
And
THE
STATE
.......................................................................
Respondent
CORAM: EBRAHIM, J et MOENG, AJ
JUDGMENT: MOENG, AJ
HEARD ON: 1 DECEMBER 2014
DELIVERED ON: 11 DECEMBER 2014
[1] The appellants were charged in the
Sasolburg regional court with housebreaking with intent to rob and
robbery (count one) as
well as robbery with aggravating circumstances
as intended in section 1 of Act 51 of 1977 (count two). They were
initially charged
with another accused (the deceased) that has since
passed away during the course of the trial and before verdict was
passed. They
were convicted on count one despite their pleas of not
guilty and were sentenced to seven years imprisonment each. They were
acquitted
on the second count. Leave to appeal was refused by the
regional magistrate but they were granted leave to appeal on petition
to
the Judge President against both conviction and sentence.
[2] The state adduced the evidence of
two witnesses. The first witness, Pule Johannes Dlamini, is the
complainant in respect of
count one. He went to bed on 28 October
2006 at 21h30 and ensured that the door and window to his shack was
closed. He was awoken
by people in his house at midnight, demanding
money. He discovered later on that they forcefully gained entry
through the door.
It was dark in the house and he managed to identify
the first appellant as he ignited matches. He was wearing a hat and a
T-shirt
that had only one sleeve. He only identified the second
appellant when he was about 100 meters away from his house by the
T-shirt
he was wearing. He managed to identify him as a result of a
mass light that illuminated the area. He knew both appellants well
as they were staying in his street and they were known to be thugs.
They robbed him of his leather jacket, blue Jack Puzzle tackies,
R80.00 cash and cosmetics.
[3] He went to his mother’s house
the following morning to report the incident. He witnessed the two
appellants and the deceased
pass by. The deceased was wearing his
tackies. He identified his tackies by the maroon paint that had
spattered on them. The second
appellant was not wearing the same T
shirt. He later pointed them out at an identification parade.
[4] Mokete Jacob Mokwena is a sergeant
in the South African Police Service stationed in Sasolburg. The
complainant approached him
after the identity parade and reported
that the deceased was wearing his tackies during the identity parade.
The tackies were blue
in colour and had green spatters of paint. He
repossessed the tackies from the deceased and handed them over to the
complainant.
The witness in respect of count two was untraceable and
the state case was closed without his evidence.
[5] The appellants approached the court
with an application in terms of
section 174
of the
Criminal Procedure
Act 51 of 1977
for their discharge in respect of both counts. The
court a quo concluded that the appellants had a case to answer and
dismissed
their application.
[6] The first appellant testified that
he was at home, asleep on the day of the alleged incident whereas the
second appellant stated
that he spent the night at his grandfather’s
house. They met earlier that morning and were accompanied by the
deceased to
Mankona’s tavern. They met the complainant who
accused the deceased of having robbed him of the tackies he was
wearing and
an argument ensued. The deceased disputed that it was the
complainant’s tackies and asserted that his mother bought them
for him. They thereafter proceeded to the tavern where they were
later arrested by the police. They both know the complainant very
well as they stay in the same area. They know where the complainant
is residing and their names are well known to him as they used
to buy
from his stall.
[7] The epitome of the reasons advanced
by the court a quo in convicting the appellants’, after she
summarised the evidence,
are as follows:
“According to the complainant he
could see you on the night of the incident, that is how he managed to
identify you, even
at the time of the parade. That compounded his
suspicion or believe that you were the culprits or the fact that
accused nr 1 wore
his tackies and accused 2 was identified by the
T-shirt at the parade that he wore when the robbery occurred. It
cannot be a co-incidence
that complainant claims that he was robbed
by you on the day of the incident and he further saw you the
following day walking together
in the streets. And he is further able
to identify you at the parade. It is no coincidence that the tackies
robbed, according to
the complainant, were found with one of the
accused. It further is no coincidence that the accused nr 2(sic) was
identified with
the same T-shirt that he wore at an ID parade. There
is no reason advanced or that the court can think of, why the
accused, if
they are not the culprits, were incriminated here, except
that they were seen on the scene of the incident. Complainant was
positive
that you were the culprits. And it is not because he knew
that one of the accused was from custody that he was incriminated.
The
accused are found GUILTY on count 1 as charged. There was no
evidence led on count 2 and the accused are ACQUITTED on count two”.
[8] I am satisfied as it will appear
hereunder that the regional magistrate materially misdirected herself
in convicting the appellants’.
The reasoning of the court a quo
was seriously flawed. The evidence in this case called for a
cautionary approach. She however
failed to warn herself against the
dangers that are inherent in the evidence of a single witness and the
evidence of identity.
She failed to evaluate the evidence in its
totality and relied on the version of the complainant without
properly evaluating such
evidence and having regard to the numerous
inconsistencies therein. The regional magistrate completely ignored
the version of the
appellants and also failed to consider the merits
and demerits therein.
[9] The provisions of
section 208
of
the
Criminal Procedure Act are
peremptory when the evidence of a
single witness is evaluated. An accused may be convicted of any
offence on the single evidence
of any competent witness. The courts’
approach to
section 208
was summarised in a dictum of De Villiers JP
in R v Mokoena
1932 OPD 79
80 (with reference to the corresponding
section in the 1917 Criminal Procedure and Evidence Act):
“in my opinion that section
should only be relied on where the evidence of the single witness is
clear and satisfactory in
every material respect. Thus the section
ought not to be invoked where, for instance, the witness has an
interest or bias adverse
to the accused, where he has made a previous
inconsistent statement, where he contradicts himself in the witness
box, where he
has been found guilty of an offence involving
dishonesty, where he has not had proper opportunities for
observation, etc, etc”.
[10] It has however been repeatedly
said that the exercise of caution should not be allowed to displace
the exercise of common
sense, and once a judicial officer has
anxiously scrutinised the evidence of a single witness he should not
be ‘swayed by
fanciful and unrealistic fears’. (See R v J
1966 (1) SA 88
(SRA). Where it is a single witness who makes the
identification the court must be particularly cautious.
[11] The appellants raised an alibi,
stating that they were not at the scene of the crime when the offence
was committed. The alibi
therefore called into question the state’s
evidence concerning their identity. An alibi is not a kind of special
defence
which has to be proved by the defence (See R v Biya
1952 (4)
SA 514
(AD). The State must prove that the accused committed the
crime and it must therefore disprove the alibi. The correct approach
is to consider the alibi in the light of the totality of the evidence
in the case and as stated in R v Biya supra, '. . . if on
all the
evidence there is a reasonable possibility that this alibi evidence
is true it means that there is the same possibility
that he has not
committed the crime'.
[12] The dicta in S v Mthetwa
1972 (3)
SA 766
(A) at 768 is of significance with regard to the evaluation of
the evidence of a witness who identified an alleged offender.
“Because of the fallibility of
human observation, evidence of identification is approached by the
Courts with some caution.
It is not enough for the identifying
witness to be honest: the reliability of his observation must also be
tested. This depends
on various factors, such as lighting,
visibility, and eyesight; the proximity of the witness; his
opportunity for observation,
both as to time and situation; the
extent of his prior knowledge of the 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 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”
[13] In R v Masemang
1950 (2) SA 488
(A) 493 van den Heever JA relied on his own experience in stating
that even an honest witness quite often makes a positive
identification
of the wrong person. Whatever the reason (“the
innate and instinctive desire that there shall be retribution may be
conducive
to this”), it is a factor which the courts have to
take into account. In R v Shekelele
1953 1 SA 636
(T) at 638G Dowling
J said that ‘an acquaintance with the history of criminal
trials revealed that gross injustices are not
infrequently done
through honest but mistaken identifications’. ‘People
often resemble each other. Strangers are sometimes
mistaken for old
acquaintances. In all cases that turn on identification the greatest
care should be taken to test the evidence’.
The judge believed
that a bald assertion that the crime was committed by the accused is
insufficient.
[14] Most recently, Cameron JA held in
Charzen and Another v S
2006 (2) SACR 143
(SCA) that:
“But, as our courts have
emphasised again and again, in matters of identification honesty and
sincerity and subjective assurance
are simply not enough. There must
in addition be certainty beyond reasonable doubt that the
identification is reliable, and it
is generally recognised in this
regard that evidence of identification based upon a witness’s
recollection of a person’s
appearance can be ‘dangerously
unreliable’, and must be approached with caution. This case
illustrates the risks.”
[15] The complainant was a bad witness
and the magistrate was oblivious to this. The concessions made by
counsel for the state in
his heads of argument clearly highlight
this. He contradicted himself in numerous respects. I will highlight
a few of these discrepancies.
The complainant admitted to having made
three different witness statements to the police. He in one of these
statements indicated
that five people entered his shack and that he
recognised three amongst the group. One of those that he identified
was Thabo. When
quizzed in cross examination about Thabo, he made an
about turn, stating that Thabo was not present in the house but was
in the
company of the appellants’ when he met them the next day
at his mother’s house. This response was however also contrary
to his evidence in chief where he stated that it was only the
appellants’ and the deceased that passed his mother’s
house.
[16] His evidence in chief was that he
identified the first appellant because he lit a match. He however
changed ground in cross
examination and stated that it was the second
appellant who ignited the match. When interrogated about this
discrepancy, he stated
that he could not remember who lit the match
as he could not see these people clearly. His initial version in
chief was that the
first appellant was wearing a hat when they robbed
him. He however controverted this version in cross examination and
stated that
it was the deceased that was wearing a hat.
[17] He stated in cross examination
that the main reason why he identified the accused persons was
because of the tackies worn by
the deceased and the single sleeve
T-shirt worn by the first appellant. The tackies, worn by the
deceased were identified by the
maroon spatters of paint they had.
This was however contrary to the evidence of Sergeant Mokwena that
the tackies had green spatters
of paint. The deceased had also given
an explanation as to how he came in possession of these shoes. This
explanation was thus
in contrast to the complainant’s evidence.
[18] The complainant could also not
have identified the first appellant by the T-shirt since he was
admittedly wearing a different
one when he met them the next day. The
fact that an identifying witness knows the offender is normally taken
into account as a
factor reducing the risk of a mistaken identity.
The complainant testified that he knew the appellants very well as
they were staying
in the same street as him. He strangely did not
know their names and referred to one of the intruders as Thabo in his
witness statement.
His response when he confronted them the day
thereafter was contrary to someone who knew the appellants very well,
as he did not
confront them for having robbed him, but he drew the
inference that they were the culprits because they were in the
company of
the deceased who was allegedly wearing his shoes. The
magistrate heavily relied on the pointing out of the appellants’
at
the ID parade. It is common cause that the complainant met the
three accused when they passed his mother’s house. The police
then arrested them moments later. The probative value of this
identity parade was therefore eradicated. The magistrate’s
reliance on the T-shirt worn by the first appellant in convicting him
was therefore misplaced.
[19] It is also not clear how the
magistrate could place reliance on the tackies worn by the deceased
in convicting the two appellants.
He was admittedly already deceased
when the verdict was passed. The mere fact that they were walking
together the next day could
also not lead to the conclusion that they
should have been together at the complainant’s house the
previous night. Even if
one could take this aspect into
consideration, the contradiction between the evidence of the
complainant and Sergeant Mokwena,
as well as the explanation that was
tendered by the deceased relating to how he got the shoes, should
have aroused doubt in the
mind of the magistrate.
[20] The magistrate further placed
reliance on the fact that the complainant could see the appellants on
the night of the incident
and that is how he managed to identify
them. She failed to evaluate the circumstances under which this
observation was made. It
was admittedly at mid-night and dark in the
room. The only form of illumination was a match or matches that were
lit and admittedly
went off time and again. As indicated here above
there was a discrepancy relating to the person that ignited the
matches. The only
way that the second appellant was identified was
when he was one hundred meters away from the complainant, with his
back facing
him. It is mind boggling how this could have been
accepted as a reliable form of identification.
[21] There must have been certainty
beyond reasonable doubt that the identification is reliable. It is
not sufficient for a witness
to merely say that he saw the offender,
there should have been an objective assurance against the pitfalls of
subjective identification.
Such objective facts, upon which reliance
could be placed, had to exclude the possibility of a mistaken
identity.
[22] The magistrate failed to evaluate
the evidence of the appellants. She dismissed their version by merely
stating that it was
no coincidence that they were implicated.
Criminal trials are not adjudicated by coincidences. The state had to
show beyond reasonable
doubt that the appellants’ committed the
offence. The appellants’ version was consistent and they were
outstanding
witnesses. Their version of events was maintained in
cross examination and there was no reason at all, why it could be
rejected.
[23] There are a number of other
worrying features that marred this trial. The appellants applied for
their discharge in terms of
section 174 of the CPA in respect of both
counts at the end of the state’s case. No evidence at all was
led in respect of
count two. The magistrate concluded that the
appellants had a case to answer and dismissed their application.
This, to say the
least, was improper.
[24] The magistrate’s
interference in the prosecutor’s duty to lead the complainant’s
evidence in chief and her
descend into the arena was another worrying
feature. She on numerous occasions took over the leading of the
witness in chief. When
the prosecutor ended his examination in chief,
the magistrate asked another twenty questions before the attorney
could be afforded
the opportunity to cross examine. This created the
impression that she was assisting the prosecutor in proving his case.
She at
one stage prompted the complainant, in examination in chief,
to state that the appellants’ were thugs. This can be
illustrated
by the following:
“Court: okay, what do you mean,
they were threatening, I am sorry sir, what is to threaten or how did
they threaten you?----
Your worship, as you can imagine you are in
the house when the next thing you see the person is already in the
house and it is
at night. We normally know that people that normally
do that are tsotsis’.
Court: were you threatened by the fact
that you knew that they were tsotsis or is there any threat that they
applied to you? ----
I know that they are tsotsis your worship…..
Did you know them to be tsotsis prior to the incident? ---- Yes your
worship.
(My emphasis)
[25] After some lengthy examination of
the complainant to ascertain whether the appellants used force to
remove the property, the
magistrate had the following to say to the
prosecutor in an attempt to prompt him to ask questions relating to
this element of
the offence:
“Court: you need to clarify the
evidence….. yes because you know robbery, there must have been
force applied to the
person to induce submission”
[26] A number of examples of her
constant interference can be quoted, but the above illustrations are
adequate for our current purposes.
I find the remarks by Kotze AJA in
S v Meyer
1972 (3) SA 480
(A) relevant in this regard:
“Wanneer ’n regterlike
beampte optree soos hierbo aangedui gaan hy, na my mening, redelike
perke te buite. Hy skep dan
nie die indruk dat die doel van sy
ondervraging is om duidelikheid te vind nie. Veel eerder word die
indruk gewek dat die geskil
vooraf beoordeel word en dat reg en
geregtigheid nie geskied nie (Solomon and Another, NN.O. V. de Waal,
1972 (1) S.A. 575
(A.A.) op bl. 580). In die onderhawige geval het
die optrede van die landdros, volgens my mening, in sy geheel gesien,
en veral
sy gedrag teenoor die appellant terwyl hy getuig het, sulke
afmetings aangeneem dat dit nie gesê kan word dat hy “vleklose
onpartydigheid” gehandhaaf het nie (Rondalia
Versekeringskorporasie van S.A. Bpk. V Lira,
1971 (2) S.A. 586
(A.A.)
op bl. 589). Bygevolg moet bevind word dat hy nie sy funksie as
regspreker na behore uitgeoefen het nie. Afgesien van die
meriete in
hierdie saak is ’n bevinding onvermydelik dat die landdros nie
deurgaans ’n onbevange oordeel bewaar het
nie (Lira se saak op
bl. 589) en dat sy optrede so ernstig afgewyk het van behoorlike en
ordelike regspraak dat die verhoor en
uitspraak ongeldig is”.
[27] I am of the view that, when all
the evidence is considered, the appellants’ version is
reasonably possibly true. The
state failed to prove the identity of
the appellants beyond reasonable doubt. On an evaluation of all the
evidence the complainant's
testimony was not satisfactory in all
material respects and the appellants’ version was reasonably
possibly true. In the
premises, the conviction cannot stand.
[28] The following order is therefore
made
1. The appeal is upheld.
2. The appellants’ conviction and
sentence are set aside.
L.B.J. MOENG, AJ
I concur.
S. EBRAHIM, J
On behalf of the appellant: Mr. LM
Tshabalala
Instructed by: Justice Centre
BLOEMFONTEIN
On behalf of the respondent: Adv. M.
Strauss
Instructed by: Director: Public
Prosecutions
BLOEMFONTEIN