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[2006] ZASCA 155
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S v Ngcina (201/06) [2006] ZASCA 155; 2007 (1) SACR 19 (SCA) (22 September 2006)
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THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Reportable
Case no: 201/06
In
the matter between:
XOLANI
NGCINA
Appellant
and
THE
STATE
Respondent
_____________________________________________________
Coram
:
Howie
P, Navsa et Heher JJA
Date of hearing:
14
September 2006
Date of delivery:
22
September 2006
Summary
: Identification of
appellant as robber by single witness unreliable ─ alibi
evidence considered ─ delay of 6 years for
finalisation
unacceptable ─ to be brought to attention of relevant
authorities.
Neutral citation:
This
judgment may be referred to as
Ngcina v The State
[2006]
SCA 108 (RSA).
_____________________________________________________
JUDGMENT
_____________________________________________________
NAVSA JA
NAVSA JA:
[1] On 19 February 2000 a robbery took
place at the Asperanza Café in Sidwell, Port Elizabeth.
Subsequently the appellant faced
three charges in the regional court
in relation to this incident. He also faced a number of charges in
relation to a robbery that
took place during 1999 at certain business
premises in Walmer, Port Elizabeth. He was acquitted on those charges
and we need not
be concerned with them. In relation to the robbery at
the Asperanza Café, the appellant was charged first, with
robbery with
aggravating circumstances within the meaning of that
expression in
s 1(1)
of the
Criminal Procedure Act 51 of 1977
, in
that he had unlawfully assaulted Martin Maasdorp and had forcibly
taken from him a watch, a cell phone and cash. Second, the
appellant
was charged with unlawful possession of a firearm in contravention of
s 2
read with ss 1, 39 and 40 of the Arms and Ammunition
Act 75 of 1969. Third, he was charged with unlawful possession of
ammunition
in contravention of s 36 read with ss 1, 39 and
40 of that Act.
[2] The appellant was convicted on the
first two counts and sentenced to twelve years imprisonment on the
first count and three years
imprisonment on the second. The
magistrate ordered two years of the latter sentence to run
concurrently with the first. The appellant
unsuccessfully appealed
against his convictions to the Grahamstown High Court. He now appeals
further to this court, with the necessary
leave.
[3] The sole issue in this appeal is
the adequacy of the evidence concerning the identification of the
appellant as the gun-wielding
robber. The incident occurred at
approximately 06h30 when Mr Maasdorp, the complainant and owner of
the café, was reading
the morning newspaper when two men
entered, one of whom asked for a cool drink and presented payment. As
this occurred a third person,
wielding a firearm, accosted him, held
the firearm against his head, forced him to the ground and demanded
money. The other two,
who took part in the robbery, searched the
premises, including the cash register. The complainant was forced
into the café’s
kitchen where he was made to lie on the
floor. A short while later, one of the complainant’s regular
customers, one Temba,
was brought in by the three men. Temba and the
complainant were locked up in a toilet on the premises. During this
process the robbers
took the complainant’s watch which he had
inherited from his father, his cell phone, his wallet and
approximately R300-00 in
cash.
[4] The complainant described the
robber with a firearm as someone who was relatively tall (about six
feet), and who had short fat
fingers (‘poffervingers’).
He testified that at the time of the robbery he had noticed that this
robber had a dark mark
on his right index finger ─ when the
firearm was pointed at him and the person’s index finger was
curled around the trigger.
He could not say whether this was a
permanent mark or a healing wound. The complainant first identified
the appellant at an identification
parade and later in the dock.
Significantly, the appellant was not shown to have been arrested on
the strength of a description provided
by the complainant. Indeed
there is no evidence that the complainant gave the police a
description or, if he did, what it was.
[5] In his judgment, the magistrate
reminded himself to be cautious in his approach to the evidence
concerning identification. He
was aware that the evidence should not
only be honest but also reliable. The magistrate was of the view that
the complainant was
honest
and
that his identification
evidence was reliable.
[6] Insofar as opportunity for
observation was concerned, the complainant stated that he had looked
at the armed robber’s face
when he first entered the café
and on a second occasion, when he was forced to the ground. The
complainant testified that
in total the time he had for observation
was between one and two minutes. The first occasion on which he
observed the appellant was
not one which demanded his attention and
the second was fleeting and stressful. The very foundation of the
identification must therefore
be regarded as shaky.
[7] The complainant’s testimony
about how he identified the appellant at an identification parade is
important. He testified
that he saw two tall people at the parade,
one of whom was the appellant. The following is a relevant part of is
testimony:
‘
. . . toe lyk
[dit] asof die een persoon
dalk
die booswig kon wees, maar toe sien ek heel op die punt regs het ook
‘n lang persoon gestaan, toe het ek nou geloop tot op
die punt
en weer teruggekom en by [die appellant] het ek vasgesteek.’
[8] A short while later he testified
as follows:
‘
Ja, nadat ek nou
na [die appellant] gekyk het en gedink het wel dit is die persoon,
wou ek baie seker maak en ek het na regs geloop
waar ek die ander
lang persoon gesien het, toe sien ek hierdie lang persoon op die punt
is definitief nie die man nie, toe kom ek
terug na [die appellant]
toe en toe identifiseer ek hom.’
Almost immediately thereafter he said
the following:
‘
Nadat ek by die
laaste lang persoon gewees het, het ek teruggekom weer na sy gesig
gekyk en ook na sy hande gekyk.’
The complainant supplied the following
reason for returning to look at the appellant’s face and hands:
‘
Dit was omdat ek
absoluut seker wou maak, het ek elke persoon deurgekyk en toe
teruggekom het en baie deeglik in [die appellant se]
gesig gekyk het,
was ek al definitief seker maar net om nog ‘n honderd persent
seker te maak het ek na sy vinger ook gekyk.’
[9] At one stage during his testimony
the appellant said that the appellant had two distinguishing
features, namely, his ‘poffervingers’
and ‘’n
redelike groot maag’.
[10] During his testimony at the trial
the appellant said the following:
‘
Edelagbare nadat
ek die fotos nou gesien het van die uitkenningsparade en ek na die
persoon daar kyk, hoef ek nie, ek kan duidelik
sien dit is dieselfde
persoon.’
[11] When asked whether the appellant
had any distinguishing facial features the complainant replied as
follows:
‘
Nee, niks
spesifieks nie . . . Alhoewel ek hom nou sou geken het daarna en ek
het hom ook uitgeken.’
When asked a second time which
distinguishing features led him to believe that the appellant was the
robber, he replied as follows:
‘
[D]it was vir my
baie duidelik dit is dieselfde persoon wat in my winkel gewees het.
Ek het spesifiek na sy hande gekyk en dit was
vir my baie duidelik
dieselfde hande.’
[12] The complainant testified that
during the identification parade he saw the mark on the appellant’s
index finger as described
earlier in this judgment. Importantly, when
he was asked how the mark he saw on the appellant’s index
finger compared with
the mark he saw on the day of the robbery, he
replied as follows:
‘
[D]it sou miskien
‘n bietjie moeilik wees om presies te sê, want daardie
man se vinger was om die sneller getrek, so ek
het net ‘n
gedeelte van sy vinger gesien en toe hy gestaan het, was sy hand nou
nie meer op ‘n sneller nie. Daar was
definitief ‘n merk.’
Almost immediately thereafter the
complainant was adamant that it was a mark on the index finger and
that it was on the same place.
[13] Under cross-examination the
complainant testified that the mark was not the decisive factor in
his identification of the appellant
and stated the following:
‘
Ek het die man se
gesig herken, ek het sy maag herken, sy poffervingers en tesame met
dit het ek die merk op die vinger gesien.’
[14] The following part of the
complainant’s testimony is a further cause for concern:
‘
[E]k het dit
gestel vroeër ek kan nie vir u sê dit is ‘n
geboortemerk of ‘n seerplek wat hy gehad het nie.
‘n
Seerplek kan gesond word, maar dat daar ‘n merk aan sy hand
was, dit kan selfs ghries gewees het, maar daar was definitief
‘n
merk aan sy hand. Verskoon tog . . . dit kan nou nie ghries wees nie,
want hy het daardie merk toe ek hom geïdentifiseer
het ook nog
gehad.’
[15] It is common cause that at the
trial there was no mark visible on the appellant’s index
finger. It is to be noted that
the identification parade took place
approximately nine weeks after the robbery.
[16] The identification of the
appellant as the armed robber is based on the evidence of a single
witness. As correctly pointed out
by DT Zeffertt, AP Paizes and
A St Q Skeen
The South African Law of Evidence
(2003) p 143
appellate courts have frequently remarked upon the danger of relying
on the identification of a single witness.
The learned authors state
the following at 144:
‘
Lastly it should
be stressed that the courts have frequently said that “the
positive assurance with which an honest witness
will sometimes swear
to the identity of an accused person is no guarantee of the
correctness of that evidence.” ‘
In this regard the judgment of Van
Heerden JA in
R v Magelang
1950 (2) SA 488
(A) at 493 is
relied on as are the following cases:
R v T
1958 (2) SA 676
(A) at 681,
S v Mlati
[1984] ZASCA 88
;
1984 (4) SA 629
(A) at 633A-C and
S v
Sithole
1999 (1) SACR 585
(W) at 591d.
[17] In my view, there is substance to
the submissions on behalf of the appellant that the identification by
the complainant was not
shown to be sufficiently reliable. The
complainant was motivated initially by the height of the appellant
and at the identification
parade sought him out as one of two tall
persons. His description of how he identified the appellant at the
identification parade
is consistent with uncertainty. The
identification by the mark on the finger is dangerous. The
complainant himself said it was not
a decisive factor in the
identification. The absence of the mark at the trial and a failure by
the complainant to supply any other
corroboration for the
identification left the trial court with no means of testing the
complainant’s say-so, which itself depended
on the reliability
of his observation in the restricted and pressured circumstances
referred to earlier.
[18] It is true that the alibi
evidence on behalf of the appellant was not satisfactory. As pointed
out by Leach J, in his judgment
in the High Court, dismissing the
appellant’s appeal, the appellant and his alibi witness were
not convincing. Their evidence
on this aspect is subject to
criticism. In
The South African Law of Evidence
, supra, p 151,
the learned authors correctly point out that courts occasionally fall
into the error of treating an alibi defence
as a separate issue to
the issue of identification. An alibi defence is essentially a denial
of the prosecution’s case on the
issue of identification.
The learned authors state the
following:
‘
As the Appellate
Division has said in
R v Hlongwani
and
R v Khumalo en Andere
the correct approach is to consider the alibi in the light of the
totality of the evidence and the court’s impression of the
witnesses. It is sufficient if it might reasonably be true. This does
not mean that the court must consider the probability of the
alibi in
isolation. If someone says that he was in bed at midnight and no
other evidence may be considered, it would be difficult
to say it
could not reasonably be true, but if there is sufficiently strong
evidence to show that he was in fact breaking into a
shop, the court
may consider that his story can safely be rejected.’
[19] The complainant’s evidence
is not sufficiently strong and it cannot be excluded that the
appellant was elsewhere at the
time of the robbery. I have no doubt
concerning the complainant’s honesty. In my view, though, for
all the reasons stated earlier,
he cannot be said to be a reliable
witness on the crucial issue of identification. Counsel representing
the State rightly acknowledged
that he could not argue the contrary.
Considering the totality of the evidence it cannot be said that the
appellant’s guilt
was proved beyond a reasonable doubt.
[20] There is a disturbing aspect of
this case that we are constrained to address. The record shows that
the appellant’s first
appearance in the regional court occurred
on 19 July 2000. He was convicted on 27 November 2003.
It thus took
more than 40 months to finalise a criminal case that was
uncomplicated. It is true that the matter was postponed during 2000
and
the first half of 2001 to enable the appellant to obtain legal
representation. At one stage the appellant changed his legal
representative.
There is no ostensible reason for further delays. It
is now more than six years since the appellant’s first
appearance. He
has been in custody for all of that time. Counsel for
the State was himself troubled by this state of affairs. He stated
that such
delays have become commonplace due to a variety of reasons.
He explained that there were massive police investigation backlogs in
the Eastern Cape and that the rate at which they were being addressed
indicated that the problem would be exacerbated. The problem
became
more acute because there were not enough police. Counsel for the
State submitted that training of new recruits had to be urgently
addressed. He described how regional courts in certain areas did not
have sufficient magistrates. He was concerned that the measures
to
address the backlog of court cases were such that the backlog was
likely to increase. It appears that there were bureaucratic
delays in
the transmission of the record, both in the first and present appeal.
[21] Counsel for the State rightly
accepted that it was outrageous that in a constitutional state such
as ours persons who might ultimately
be acquitted would have spent
many years in jail awaiting finalisation of their cases. It makes a
mockery of the constitutional rights
of detained and accused persons.
[22] In
S v Liebenberg
2005 (2)
SACR 355
(SCA), this court stated that the period of almost ten years
that it took for an appeal to be finalised was an unacceptable delay.
In that case the appellant was tried within a reasonable time from
the date on which the offences were committed. He was, however,
in
custody pending finalisation of his appeal.
[23] The delays in this case are a
serious cause for concern. The issues set out in para [20] must be
addressed urgently in the interests
of the proper administration of
justice. The Registrar is instructed to bring this judgment to the
attention of the Ministry of Justice
and the National Director of
Public Prosecutions.
[24] The appeal succeeds and the
appellant’s convictions and related sentences are set aside.
_________________
M S NAVSA
JUDGE OF APPEAL
CONCUR:
HOWIE P
HEHER JA