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[2013] ZAFSHC 87
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Zulula v S (A144/2012) [2013] ZAFSHC 87 (30 May 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No.: A144/2012
In
the appeal between:
ZEFANIAS ZULULA
.................................................................
Appellant
and
THE STATE
..........................................................................
Respondent
_____________________________________________________
CORAM:
RAMPAI, AJP
et
MOCUMIE, J
et
JORDAAN, J
_____________________________________________________
JUDGEMENT:
RAMPAI, J
HEARD ON:
29 APRIL 2013
_____________________________________________________
DELIVERED ON:
30 MAY 2013
_____________________________________________________
[1] This was an appeal in
terms of
section 309
of the
Criminal Procedure Act 51 of 1977
. It was
heard by the full bench. The appellant was convicted in connection
with two of the three charges and sentenced to an effective
term of
24 (twenty four) years imprisonment. He came to us with the leave to
appeal against his conviction granted by the court
a
quo
.
[2] The appellant was
tried in the Virginia Circuit Court by an acting judge. His trial
commenced on 21 May 2012 and endured until
25 May 2012. He was
legally represented by advocate K. Pretorius. Advocate R. Hoffman
appeared for the State at the trial.
[3] Notwithstanding his
plea to the contrary, the appellant was found guilty of housebreaking
with intent to steal and theft as
well as rape being the first and
the second charges respectively. He was acquitted in respect of the
third charge of attempted
rape.
[4] Following his
conviction, the appellant was sentenced to 18 (eighteen) years
imprisonment in respect of the housebreaking charge
and 12 (twelve)
years imprisonment in respect of the rape charge. The court
a
quo
directed in terms of
section 280
of Act
No 51 of 1977 that a six year part of the rape sentence should run
concurrently with the burglary sentence. That direction
meant that
the effective sentence imposed on the appellant was 24 (twenty four)
years imprisonment.
[5] The grounds of the
appellant’s appeal were couched as follows:
“
AD
SKULDIGBEVINDING
Dat die Agbare Hof verkeerdelik
bevind het dat die getuienis van die klaagster Elizabeth Viljoen
(ten aansien van aanklag 2) genoegsaam
betroubaar was ten einde bo
redelike twyfel te kon bevind dat die Applikant een van die rowers
was.
Feitlik geen basis vir sodanige
uitkenning bestaan en skiet dit met eerbied vêr te kort gemeet
aan riglyne neergelê
in relevante regspraak.
Dat die Agbare Hof fouteer het deur
te bevind dat daar voldoende getuienis rakende die eienaarskap van
bewysstuk 1 (Nokia selfoon)
was en deur te bevind dat dit inderdaad
aan Mnr de Beer behoort het en aldus van hom op die betrokke datum
geroof is.
Dat die Agbare Hof fouteer het deur
die weergawe van die Applikant rakende bewysstuk 1 te verwerp as nie
redelik moontlik waar,
sowel as sy alibi getuienis.”
[6] The particulars of
the first charge were that the appellant and his alleged unidentified
cohorts broke into the house commonly
known as 18 Tana Street, Doorn,
Welkom on Tuesday 5 October 2010 where certain specified goods, the
property of the De Beers, their
daughter, their son-in-law and their
grandchildren were stolen. The particulars of the second charge were
that at the same place
and time their visiting daughter was vaginally
raped by the appellant.
[7] The version of the
prosecution was narrated by eight witnesses, namely:
Mr W.J. de Beer, the
homeowner,
Ms P.A. de Beer, the
homeowner’s wife,
Ms E. Viljoen, the
couple’s daughter, aka Zelda
Ms P. Lubbe, the
couple’s granddaughter, aka Lalla
Constable L.S. Sinxedi,
member of the task team unit,
Constable W. Letsie,
member of the task team unit,
Warrant Officer I.A.
Fick, police officer in charge of the identification parade, and
Warrant Officer A. Tait,
the investigating officer.
[8] On Sunday 5 August
2010 the four civilian witnesses were at 18 Tana Street, Doorn in
Welkom. Between 18:30 and 19:00 that residential
dwelling was under
attack. A group of three or so men broke into the house. The members
of the group were armed with an assortment
of weapons, among others,
they had a gun, a panga, a bottle, vuvuzelas and cables. The group
gained entry into the house through
the sliding door of the lounge.
[9] The members of the
group attacked and assaulted inmates of the house. They demanded
money, guns, jewellery and car key. They
ordered the victims to
remain quiet and not to dare look at them in the face. Mr De Beer was
surprised in the study, detained there,
forced to lie facing down on
the floor, tied with cables around his neck, his forward stretched
arms were fastened together behind
his head, they were then tied to
his neck, his body was covered with a duvet and he was guarded by an
armed burglar.
[10] Ms De Beer was
surprised in the kitchen. She was marched from there to the study.
She and two of her four grandchildren were
deposited into the study.
There they were thrown on the bed and covered with blankets.
[11] The couple’s
daughter, Ms Viljoen, and their son-in-law, a certain Mr Dave Marais,
arrived on the scene from Rustenburg.
They had come to visit. As fate
would have it, they unsuspectingly stumbled upon a robbery in
progress. The burglars ambushed them
at the main door. They too were
attacked, assaulted and also deposited into the study where the rest
of the victims were. The unconscious
Mr Marais was also put on the
floor and covered with a duvet, together with his father-in-law, but
Ms Viljoen was thrown on the
bed and covered with blankes, together
with the rest of the female victims.
[12] One by one the
victims were then taken out of the study to one or other room
elsewhere in the house in search of money. After
every outing, the
victim was returned to the detention centre, in other words, the
study. Ms Viljoen was shuttled to and from the
study on no less than
five occasions. During those innings and outings she was slapped now
and then at the slightest attempt she
made to lift her head up. The
repeated assaults were frequent reminders or stern warnings that she
was not supposed to look the
burglars in the face. During her last
outing she was raped in her parents’ main bedroom. She was
lying down and in a state
of unconsciousness at the time she was
sexually violated. The burglars thoroughly ransacked the house. They
left no stone unturned.
The loot included, among others, twelve
cellular mobile phones, R15 500,00 cash and a VW Jetta. They
eventually vanished from
the scene leaving all the victims behind in
the study.
[13] On the same day the
car was recovered. The very next day, on 6 August 2010 to be precise,
the appellant and another man were
arrested at the notorious G Hostel
in Thabong. They were arrested as suspects. The two men were arrested
on the strength of some
confidential information obtained from the
police informer, as well as the police informer’s pointing out
of the two men
as suspects. They were arrested by constable Sinxedi
and his colleague constable Letsie. The police seized the two
cellular mobile
phones allegedly found in the appellant’s
possession when he was later searched at the Welkom Police Station.
[14] Still on Monday, 6
August 2010, constable Sinxedi took the two mobile cellular phones to
the investigating officer Warrant
Officer Tait. She in turn took them
to the complainants who positively identified them as theirs. By then
the list of the stolen
goods had not yet been drawn up and finalised.
[15] On Thursday, 13
September 2010, an identification parade was held at the offices of
the detective branch in Welkom. Warrant
Officer Fick was in charge of
the proceedings. In the parade there were two suspects – the
appellant and his fellow arrestee,
a certain Mr John Novela. There
were three witnesses, namely Ms De Beer, her daughter and
granddaughter, namely Ms Viljoen aka
Zelda and Petronella Lubbe also
known as Lalla. Ms De Beer pointed nobody out. Petronella pointed two
participants out, but none
of them was a suspect. Ms Viljoen pointed
one participant out – participant number 5 – Zefanias
Zulula, in other words,
the appellant. No witness identified Mr John
Novela – participant number 2 – the second suspect.
[16] This then completes
my summary of the undisputed facts as well as some facts which,
though denied, could not be seriously disputed.
The summary
represents a collective overview of the testimonies of the various
prosecution witnesses.
[17] The version of the
defence was narrated by one witness only, namely Mr Z. Zukula, in
other words, the appellant himself.
[18] Briefly stated the
version of the appellant was:
that he stayed at 4064
Las Vegas;
that he was there and
not at Doorn on Sunday, 5 August 2010 at the time of the incident;
that a Nokia with a
silver trimming – exhibit 1 – was his lawful property;
that he was arrested by
an informer called Sonnyboy and not any of the constables;
that the two constables
were, however, present at the time Sonnyboy arrested him;
that the allegation that
he was a member of the criminal gang involved was untrue;
that he was not the one
who raped Ms Viljoen;
that he robbed none of
the victims of their belongings; and
that he was found in
possession of no cellular phone stolen from the victims.
[19] The crisp issue in
the appeal was whether the evidence of Ms Viljoen, the one and only
witness who identified the appellant
as one of the attackers, was
reliable in all material respects or not. The identity of the rapist
was the only bone of contention
in the appeal before us.
[20] Mr Pretorius
submitted that the answer to that question was negative and that the
court
a quo
erred in finding otherwise. However, Mr Hoffman
submitted that the answer to that question had to be in the
affirmative. He added,
therefore, that the court
a quo
correctly found the evidence of the aforesaid witness credible and
reliable.
[21] In convicting the
appellant, the court
a quo
underlined the foundation of its
conclusion as follows:
“
In my view
the involvement of the accused as one of the assailants in respect of
charges 1 and 2 has been clearly established on
the basis of the
evidence of the identifying witness and the relevant cellphones.”
[22] In
S v Mthetwa
1972 (3) SA 766
(A) at 768A – C the following was said by
Holmes JA:
“
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.”
[23] The first encounter:
Ms Viljoen’s first physical encounter with the burglars was in
the lounge. She and her brother-in-law,
Mr Dave Marais, arrived on
the scene where she first met the robbers. Her companion entered the
house first through the sliding
door of the lounge. He was
immediately struck on the head and overpowered by two men. Ms Viljoen
was on the verge of entering the
house when she witnesses the attack
on her companion. She had no chance to retreat or to escape. The
third attacker, to whom I
shall refer as Z, whose face she saw,
swiftly pounced upon her, pulled her inside towards him, quickly
turned her around and held
her arms behind her back. This was how she
put it:
“
Die een wat
my getrek het, het my dadelik na hom toe geruk en my omgedraai en my
arms agter my rug vasgehou.”
[24] There were certain
favourable features of the identifying witness’ evidence in
respect of the first encounter. She followed
her companion into the
house and perhaps had a slightly better opportunity for observation
than he had. She saw that there were
three attackers in the lounge,
X, Y and Z. Moreover, she saw the face of one of the three attackers,
Z. She was in closest proximity
of Z than any of the attackers. The
attackers apparently were wearing no balaclavas.
[25] There were also
unfavourable features of the identifying witness’ evidence in
respect of the first encounter. The attack
was totally unexpected,
very sudden, and very violent. Although she saw the two companions of
Z, she did not see their faces at
all. Therefore she could give no
description whatsoever of X and Y. She saw the face of Z and nothing
more. About that peculiar
face she saw nothing else. The high
watermark of her observation was that she fleetingly had a glimpse of
his face.
[26] It was crystally
clear to me that whatever she saw did not meaningfully register on
her mind. That was so because Z gave her
no adequate opportunity of
making proper observation. He immediately turned her 180 degree. The
whole idea was to deny her such
an opportunity. He did not want her
to see any of their faces. That much he told her in no uncertain
terms. He certainly succeeded.
The witness had virtually no prior
knowledge of Z. He was a total stranger to her. [The scene was very
active and mobile.]
[27] The second
encounter: From the first scene in the lounge Ms Viljoen was taken to
the second scene, the study. Together she
and Z walked to the study.
She did not normally walk while she was in transit. She was awkwardly
marched to the study. She was
made to bend forward. She was forced to
walk facing down. Her hands were held behind her back. The idea was
obvious – to
prevent her from seeing the uncovered faces of the
attackers, that of Z in particular.
[28] Z deposited her in
the study.
“
Hy het my
onder die kombers ingedruk waar ek my kinders, my ma en my sussie se
kinders gesien lê het.”
It was significant to
note that in the study, unlike in the lounge, she did not see the
face of Z at all. She and the rest of her
family were covered. Those
on the bed were placed under the blankets and those on the floor
under a duvet.
[29] There were certain
favourable features of the identifying witness’ evidence. In
the study she could see her father’s
feet on the floor next to
the bed before she was covered. She could also see members of her
family on the bed. It seemed, therefore,
that there was some sort of
visibility in there.
[30] There were also
unfavourable features of the witness’ evidence. However,
visibility or no visibility, it did not really
matter. The hard fact
of the matter was that she saw nothing of importance in the study
that she could cling onto for later identification
of Z. The witness
must have been frightened. Seemingly she did not see an attacker who
was deployed in the study to guard the captives.
While she was under
the blanket she became aware that the attackers were kicking her
father and heard that they were demanding
money. In a desperate
attempt to save him, she told the attackers that she knew where the
money was.
[31] The third encounter:
The witness was then taken out of the study. The third scene was the
homeshop – the so-called tuckshop.
There she opened the till,
but found very little amount of R20,00 plus a few coins.
[32] There was again
nothing positive about her observation in the homeshop. There were no
favourable features worth commenting
on, save that she was very close
to Z.
[33] The witness was
vigilantly guarded by Z. He was still holding her hands behind her
back during her forward outings from and
her return innings to the
study. She did not have the opportunity of freely walking. Z was
still very close behind her all the
time in the homeshop. He
assaulted her again in the tuckshop. He demanded more money than the
trivial cash that she had found in
the cash register. Once again she
did not see his face. It was clear to me that the witness did not
have any opportune moment of
making proper observation in the
tuckshop. The prevailing circumstances were not conducive for proper
observation.
[34] Back in the study
she was placed under the blankets one more time. She did not see the
face of Z in there. The assault on her
father was continuing. She was
very concerned about him. Again she volunteered to show the attackers
where the money was. She did
so in the hope that they would stop
assaulting her helpless father.
[35] The fourth
encounter: The witness was again taken out of the study. Together
with Z she walked out again. On that occasion
she was taken to the
main bedroom to look for more money.
Z was still holding her
hands behind her back on their way to the fourth scene. His companion
walked in front of the witness and
he behind her. She looked for
money in the drawer of the dressing table. Regrettably she found
none. She then lifted her head,
but Z immediately slapped her. He
reminded her that she was not supposed to look at him in the face.
[36] It may well be that
in the bedroom the witness managed, for the second time, to see Z’s
face. It remains a debatable
point, though, as to whether she did or
did not. But even if it is accepted that she did, no-one knows what
she really saw, because
she did not say. That been the case, it is
not unfair to assume that she did not have adequate opportunity for
proper observation
before she was slapped. By then she knew all too
well that the slightest attempt to glance at the face of Z infuriated
him and
that her glance would be violently repelled.
[37]
Soon thereafter she received a blow which knocked her unconscious.
When she regained her mental state of consciousness, she
noticed that
Z was busy belting up his pair of trousers. His companion called her
a dirty bitch and inserted something in her vagina
. Later the
doctor ascertained that toilet paper had been stuffed into her
vagina. The witness gave no description whatsoever of
that abusive
man, the companion of Z. I have to stress that the abusive man was
standing right in front of her. I say so because
he physically lifted
her head up as he hurled those hurtful and contumelious words at her.
To rub salt into the wound, he fiddled
with her vagina.
Notwithstanding such close proximity, her evidence disclosed no
description of the abuser she actually observed
at such close range.
[38] After her sexually
degrading encounter, the abuser stepped back, so it appeared, and Z
stepped forward closer to the victim’s
back. He pecked her in
the neck and said to her:
“
Don’t
worry, we will not kill you.”
[39] Thereupon the
witness turned around to look at him. The reaction of Z was
consistently predictable. He wasted no time. Once
again he violently
slapped her and gave her the warning she had become accustomed to:
“
Don’t
look at my face.”
[40] Notwithstanding her
very close proximity, I could not ascertain any useful details of her
observation. She did not volunteer
to describe it. It was not clear
to me why she failed to describe the two attackers who violated her
in the main bedroom. Perhaps
poor visibility or inadequate
illumination had to do with it. But one thing is certain, the
prevailing circumstances in the main
bedroom were not conducive. They
were the worst to her. They deprived her of an opportunity for proper
observation. It must also
be remembered that she was recovering from
a state of unconsciousness. Perhaps she was still very dizzy after
the blow and the
rape. Those two agonising incidents probably
impaired her mental faculties to properly observe her abusers.
[41] From the horror she
had to endure in the main bedroom, she was taken back to the study.
Her hands were still undoubtedly held
behind her back by her unwanted
bodyguard, Z. He did not just deposit her into the study and leave
her there. He placed her yet
again under the blankets. He then
demanded the car key. He was told where to find the bunch of keys. He
fetched them and returned
to the study. He must have carefully and
slightly opened the blanket and called upon the witness’ mother
to identify the
car key for the VW Jetta. It was not the witness’
evidence that she saw his face on that occasion. Shortly after that
the
attackers vanished from the scene.
[42] An examination of
the aforegoing account of events reveals that the witness was thrice
taken to and twice from the study. During
each one of those journeys
her hands were firmly gripped together behind her back by Z whenever
they went. Therefore, it can be
reasonably deduced that Z must have
been directly or slightly behind the witness throughout those various
innings and outings.
Obviously Z maintained that strategic position
for a reason.
It must also be accepted
that the very active and very mobile scene to some extent hampered
her chances to properly observe Z, even
though she was in his close
proximity in the lounge, the study, the homeshop and the main
bedroom.
[43] The most favourable
factor of Ms Viljoen’s evidence was the result of the
identification parade. She pointed out one
of the two suspects in the
parade. The participant she pointed out was the appellant.
[44] Notwithstanding such
a positive factor, there were many factors which highlighted the
unfavourable features of Ms Viljoen’s
evidence. Her testimony
was deficient as regards factors such as lighting and visibility in
the house in general and in the lounge,
study, homeshop or main
bedroom in particular. Whether there was light or darkness in any of
those rooms was never canvassed. To
say visibility must have been
good in any of those rooms, because she was instructed to look for
money, guns or jewellery, was
unconvincing.
[45] Similarly, the
argument that it was visible in the study, because she was able to
see her father’s feet and the unconscious
Mr Dave Marais, was
guesswork. The fact of the matter was plain and simple. There was no
mention of any source of light. How good
or poor her eyesight was,
remained anybody’s guess. We know she did not have a good
opportunity for observation. She was
immediately slapped every time
she tried to lift up her head. As a result of such repeated assault,
she could not at all see or
properly see the particular burglar. The
only place where she pertinently said she saw his face was in the
lounge. But even there
it was obvious that she must have fleetingly
seen his face, which was why she could hardly describe the particular
burglar’s
facial features. Nothing is known about the burglar’s
beard, moustache, goatie, hairstyle, skinhead, hair, facial scars,
complexion, physique, gait, dress or whichever features enabled her
to recognise him at the identification parade. She had no prior
knowledge of the appellant.
[46] The circumstances
that were prevailing at the door of the lounge were not conducive for
proper observation. She and Mr Dave
Marais were ambushed there. Out
of the blue her companion was viciously chopped with a panga. Before
she could precisely figure
out who was doing what, she was quickly
pulled into the lounge, quickly turned around and commanded to look
down and specifically
warned not to look at the faces of the
burglars. She was certainly caught up in a nightmarish situation. The
scene was not only
highly mobile, but chaotic, brutal and horrific.
[47] It also emerged from
the witness’ account that Z angrily smacked her on no less than
four different occasions every time
he supposed or suspected that she
wanted to take a look at his face. When she failed for the first time
to find money in the homeshop,
Z slapped her. When she failed for the
second time to find money in the main bedroom she knew she was in big
trouble. The impression
I gained was that she turned her head and
lifted it up, not because she wanted to identify Z but rather to
plead with him not to
harm her again. But Z misconstrued her innocent
intention and struck her so hard that she fainted.
[48] The witness had
three brief episodes of respite when she was detained in the study.
On those three occasions when she was not
walking in the shadow of
her violent escort, Z, she was placed under the blanket. In there she
could hear that her father was repeatedly
been assaulted. She heard
the robbers threatening to kill him and his family.
[49] It follows from the
aforegoing examination of the witness’ evidence that the
robbers went to great length to ensure that
the victims, in
particular Ms Viljoen, did not have an opportunity of looking at
their faces in order to identify them later. The
criminal plan
strategically worked out very well. The inability of all but two
witnesses to point out anyone was proof of that
success.
[50] Although at the
subsequent police identification parade Ms Viljoen pointed out the
appellant as Z – her identification
was extremely unreliable,
in my view. She was very very hesitant. She took five minutes to do
so. While she was still so doubtful
and before she had finally made
up her mind, the officer in charge of the identification parade then
ordered the appellant to step
forward. We can never tell how the
witness interpreted that order. What we do know, is that immediately
after Z was ordered to
move out of line, the witness suddenly became
certain that he was one of the attackers.
[51] The witness’
pointing out of the appellant must be considered against the backdrop
that her father, Mr De Beer, did not
even participate at the police
identification parade, because he would not have been able to
identify anyone. The same applied
to her brother-in-law, so it seemed
to me. He neither participated in the police identification parade
proceedings nor in the court
trial proceedings.
[52] The witness’
mother, Ms De Beer participated at the police identification parade
and court trial proceedings. Unlike
her daughter, she could not point
the appellant or anyone out. The witness’ niece, Petronella
Lubbe, also known as Lalla,
pointed two participants out but not the
appellant. Those two were not even suspects. The appellant’s
co-suspects was hardly
pointed out by any witness.
[53] All those omissions
and failures were not without significance. They cast some doubt on
the reliability of the one and only
witness who positively identified
the appellant as Z, one of the robbers. It is so that she spent most
of the time with Z than
any other witness. But that alone does not
reliably validate her pointing the appellant out and equating him to
Z. Quite apart
from the omissions, failures and errors attributable
to the other witnesses, her own evidence was bedevilled by extreme
shortcomings
of identificative substance. In my view such material
deficiencies of the single identifying witness, substantially
diminished
the evidentiary value of the results of her
identification. I say positive result in a narrow sense that she,
unlike the other
victims, managed to point out one of the two
suspects on the parade but not necessarily to mean that he was the
actual culprit.
[54] The decision in
R
v Shekeleke & Another
1953 (1) SA 636
(T) at 638F –
G reminds us that looks can deceive; that honest witnesses frequently
but mistakenly identify saints as villains;
that an identifying
witness should be asked appropriate questions to explore the
foundation of the mental recognition that precedes
the actual
fingering out of a person as a culprit; and that great care should be
taken to test the evidence in order to determine
whether it is beyond
reasonable doubt reliable to sustain conviction.
[55] In my view this
appeal is a classic example of a case where appropriate questions
were never asked to sustain the witness’
evidence pertaining to
her identifying of the appellant. We were urged, as the court
a
quo
certainly was, to accept a bold statement that the appellant
was involved because one of the four eyewitnesses said he was
involved.
I am not convinced that such a statement –
uninvestigated, unexplored, unquestioned and untested was materially
reliable
for us to endorse on appeal as the court
a quo
did.
[56] In a string of
decisions the highest court of appeal in our land has, time after
time, stressed the nature of the appropriate
approach to cases where
identity of a perpetrator is an issue. According to those
authoritative decisions the identity inquiry
has two distinct,
autonomous and disjunctive dimensions. The one has to do with
credibility aspects of the evidence of an identifying
witness. The
other has to do with reliability aspects thereof. Each of the two
legs is an exclusively independent dimension of
the inquiry.
[57] In
R v
Masemang
1950 (2) SA 488
(A) on page 493 Van den Heever JA:
“
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. 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.”
[58] In
R v Dladla
1962 (1) SA 307
(AD) at 310C:
“’
One
of the factors which in our view is of the greatest importance in a
case of identification
, is the
witness' previous knowledge of the person sought to be identified. If
the witness knows the person well or has seen him
frequently before,
the probability that his identification will be accurate is
substantially increased. Even in the case when a
witness has some
difficulty in the witness-box in giving an accurate description of
the facial characteristics and clothes of the
person whom he has
identified, the very fact that he knows him provides him with a
picture of the person in the round which is
a summary of all his
observations of the person's physiognomy, physique and gait, and this
fact will greatly heighten the probability
of an accurate
identification . . ..”
[59]
In
S v Mthethwa
1972
(3) SA 766
(AD) at 768A-C Holmes JA said:
“
It
is not enough for the identifying witness to be honest: the
reliability of his observation must also be tested.”
[60] In
S v MLATI
[1984] ZASCA 88
;
1984 (4) SA 629
(AD) at 632H – I Botha JA said:
“
Juis
die klaagster se ooglopende eerlikheid en haar eie vaste
oortuiging van die korrektheid van haar uitkenning maan 'n mens
egter
tot groot versigtigheid by oorweging van die vraag of haar uitkenning
met veiligheid as betroubaar aanvaar kan word, want
in 'n saak soos
die huidige mag die klaagster se eerlikheid en eie oortuiging nooit
toegelaat word om die afsonderlike ondersoek
na die betroubaarheid
van haar uitkenning te vertroebel nie. Waar die Staat se saak
teen 'n beskuldigde in sy kern uitsluitlik
berus op die uitkenning
deur 'n enkele getuie van die beskuldigde as die misdadiger, lê
die gevaar van 'n verkeerde skuldigbevinding
juis opgesluit in die
altoos aanwesige moontlikheid dat die getuie 'n eerlike fout begaan
in die identifikasie van die beskuldigde
as die misdadiger.”
[61] In
S
v Khumalo en Andere
[1991] ZASCA 70
;
1991
(4) SA 310
(AD) at 328C – H,
Grosskopf,
Smalberger,
et
Nienaber
AJJ
said:
“
Die
Hof moet tevrede wees dat die uitkennende getuie nie net eerlik is
nie, maar ook betroubaar (
S
v Mthetwa
1972
(3) SA 766
(A)
op
768A-B). Eerlikheid op sigself is geen waarborg van betroubaarheid
nie. In dié verband merk Van den Heever AR in
R
v Masemang
1950
(2) SA 488 (A)
op
493 tereg op:
'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.'
Gevolglik
mag 'n getuie 'se eerlikheid en eie oortuiging nooit toegelaat word
om die afsonderlike ondersoek na die betroubaarheid
van (sy)
uitkenning te vertroebel nie' (
S
v Mlati
1984
(4) SA 629 (A)
op
632H-I). Daar is 'n menigte faktore wat 'n getuie se
uitkenningsvermoë kan beïnvloed en wat in gedagte
gehou
moet word wanneer die betroubaarheid van sy uitkenning oorweeg
word. Verskeie van hierdie faktore word na verwys in
S
v Mthetwa (supra
op
768A-C). (Sien ook in dié verband die onlangse uitspraak van
die Geheime Raad in
Junior
Reid v The Queen
[1989]
3 WLR 771
(PC) op 777-9.) Die waarskynlikheid dat 'n uitkenning
betroubaar is, word verhoog waar die persoon wat uitgeken is voorheen
aan die getuie bekend was (
R
v Dladla and Others
1962
(1) SA 307
(A)
op
310C). Maar selfs dan moet daar noukeurig gelet word op die
geleentheid wat die getuie gehad het om in die heersende
omstandighede
'n korrekte uitkenning te maak (
R
v Dladla and Others (supra
op
310 (E))). Op die ou end bly die toets of daar bewys van skuld bo
alle redelike twyfel is, gesien die getuienis in sy geheel,
insluitende die feit dat 'n beskuldigde òf nie getuienis
afgelê het nie (vgl
S
v Mthetwa (supra
op
769A-E)) òf 'n valse alibi geopper het (wat oor dieselfde kam
geskeer word as 'n versuim om te getuig - sien
S
v Nkombani and Another
1963
(4) SA 877
(A)
op
893G).”
[62] In
S v Charzen
and Another
[2006] 2 ALL SA 371
(SCA) at [11] Cameron JA
said:
“
[11] 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.”
[63]
In casu
the
court
a quo
considered the evidence of Ms Viljoen as an
identifying witness. It reasoned as follows:
“
In the
present matter the court never got the impression that Elizabeth
never had the opportunity to see the perpetrator clearly
regard being
had to the following among others:
She early in her evidence in chief
clearly testified that she only saw the face of one of the
assailants.
She proceeded to testify, still in
chief, that at that stage when they arrived and one of the
assailants called her to come in
saying “come, come”,
she was hit on the head and told not to look the person in question
in the face. She lifted
her head after the accused, as the person
holding her hands from behind, had to let go of one of her hands so
as to enable her
to open the box in search of the money and he
slapped her and said she should not look at his face.
When she regained her consciousness
after the blow to the left side of her head she saw the person who
had held her hands, busy
fastening up his trousers and he threw
things at her private parts and pushed them into her private parts.
The said person came back to the room
and asked her mother for specifications of the car keys.
She further testified that the blow
to her head left an impact on her, thus she could not forget the
accused’s face.
It can be accepted that there was
lighting in the house, as correctly conceded by Mr Pretorius, because
it was in the evening and
Elizabeth and others were ordered to search
around for the money. They could not have been expected to do so if
it was dark in
the house. This evidence does not suggest that
Elizabeth never had an opportunity, nor visibility on her side to see
the accused
as one of the assailants as she has testified. The truth
has been told.”
[64] On the strength of
the aforesaid snippets from the evidence of the identifying witness
the court
a quo
implicitly found her evidence reliable. The
finding was premised on the conclusion that the witness “had
the opportunity
to see the perpetrator clearly” because, there
was lighting in the house. There was no evidence that the house or
any room
thereof was lit. The finding was premised on a questionable
inference. The court
a quo
believed the witness’
assuring statement that she would never forget the appellant’s
face since she saw that face:
firstly, in the lounge on her arrival;
secondly, in the main bedroom where she was raped; thirdly, in the
same bedroom while he
was fastening up his trousers and fourthly, in
the study when he was talking to her mother about the cark-key. I
have already critically
dealt with the merits and demerits of the
witness’ evidence in respect of each of the four aspects of her
observations. I
found each one of them wanting and thus materially
unreliable. Their combination did not produce a stronger cumulative
impact than
they individually did. The court
a
quo in an
uncritical way accepted the witness’ evidence on its cosmetic
value.
[65] Indeed she was an
honest witness. However, her honesty and subjective conviction should
never be allowed to blur the inquiry
as regards the reliability of
her identification -
S v Mlati
,
supra.
Her
positive and emotional assurance that she would never forget the
appellant’s face did not in itself provide a reliable
guarantee
that her evidence concerning her identifying of the appellant was
beyond reasonable doubt correct -
S v Masemang
,
supra.
As a single witness who identified the appellant, she had to be
endorsed, not only as a credible witness, but also as a reliable
one
–
S v Khumalo
,
supra
. In my view when the
witness’ evidence is cautiously approached, the fallible
symptoms of human observations inherent in
her evidence of
identification emerge like a colossal on the horizon –
S
v Mthethwa
,
supra
and
S v Ntsele
1998
(2) SACR 178
(SCA) at 187.
[66] In the result I have
come to the conclusion that the evidence of that identifying witness
could not, without more, be reliably
used to sustain the appellant’s
conviction. This then disposes of the first leg on which the
conviction was based.
[67] Because of lack of
testimonial corroboration to cure the deficiencies of identification
inherent in the evidence of Ms Viljoen,
it becomes imperative to
determine whether there was any other objectively reliable safeguard
to ensure that the identity of the
appellant, as a robber, was indeed
established beyond reasonable doubt as the court
a quo
found.
[68] Mr Pretorius
submitted that the court
a quo
erred in finding that the
cellphone (exhibit 1) found in the appellant’s possession
indeed belonged to the identifying witness’
father and not the
appellant and that such exhibit served as a guarantee of the
reliability which underlined the correctness of
the identification by
the identifying witness.
[69] Mr Hoffman
submitted, contrary to Mr Pretorius’ submission, that no error
could be found with the finding of the court
a quo
. Counsel
submitted that the cellphone(s) in question, with particular emphasis
on exhibit 1, formed part and parcel of the loot
stolen from the
victims. To that issue I now turn.
[70] Indeed it was
undisputed that exhibit 1 was seized, by the constables, from the
appellant shortly after the time of his arrest.
The issue at this
junction revolved around the ownership of the particular cellphone.
[71] The prosecution’s
case was that the silver edged Nokia cellphone belonged to Mr De
Beer. Therefore, the cursory exposition
and examination of the
gentleman’s evidence becomes necessary. I have randomly
selected portions of the exchange between
Mr Pretorius and the
witness:
“
Ken u die
reeksnommer daarvan? … Nee, nee, nee.”
“
Hoe lank
het u daardie foon gehad tot met die tyd dat dit weggeraak het? …
Hoor hier ek is nie seker nie.”
“
Het u
daardie foon gekoop of waar het u dit gekry? … Ek is nie
doodseker nie. Ek dink ek het hom by Gustav gekoop.”
“
U het nie
die papiere van daardie foon nie? … Nee, nee, nee.”
“
En u weet
ook met ander woorde nie die reeksnommer of dit ‘n imei-nommer
van daardie foon is nie? … Nee, nee.”
“
Nou u ken
daardie foontjie maar uit as u foon aan die algemene voorkoms? …
Ja.”
“
Daardie
Nokia waarna u verwys, BEWYSSTUK 1, ek kry nie die indruk dat
daardie foon op die lys van gesteelde eiendom is nie? …
Is hy
nie hierop nie?”
“
Nou wat
spesifiek aan daardie foon maak dat u sê dit is u foon? …
Want myne het so gelyk.”
[72] It was quite
apparent that the supposed owner knew absolutely nothing about the
cellphone which allegedly belonged to him.
No wonder the court
a
quo
made no reference to his evidence at all. In my view he
dismally failed to identify the cellphone as his property.
[73] The next prosecution
witness who testified about exhibit 1 was Ms De Beer. About her
evidence the court
a quo
made the following positive comments:
“
Mrs De Beer
gave the identifying marks of the phone in question and her evidence
was not challenged, save for the statement with
which she agreed to
the effect that such wear and tear marks resulted from the general
use of the phone and could have been present
even on the accused’s
phone. She however – that is now Mrs De Beer - remarked that it
would be a strange coincidence
that such marks would be on the same
places in both cellphones.”
[74] During her
examination, Mr Hoffman, counsel for the State, asked Ms De Beer
about her stolen cellphone.
“
Watter foon
van u self was dan nog ook gesteel op daardie aand, behalwe die
Samsung foon waaroor u nou gepraat het? … So
silwer Nokia foon
wat ek vir my man gegee het. Dit is eintlik syne en so ‘n
swartetjie.”
[75] The silver Nokia she
was talking about was, of cause exhibit 1. Like her husband she did
not know the serial number or the
imei-number of the cellphone and
she did not have cellular documents relative to the purchase of the
cellphone. Unlike her husband
she testified that she was the previous
owner thereof; that it was given to her by her daughter and that she
later gave it to her
husband.
[76] The witness
materially contradicted her husband as regards the origin of the
cellphone in dispute. According to her, she acquired
it from her
unnamed daughter. According to him, he acquired it from his friend
Gustav. That material contradiction was telling
against the
prosecution’s case. However, it was overlooked. Her husband was
supposed to know it better, not only because
he was allegedly the
owner, but because he was ordinarily the user thereof at the time it
was stolen and had been such for some
time before the robbers
dispossessed him. Ms De Beer had not been using that phone for quite
some time at the time it was stolen.
[77] The court
a quo
was satisfied that the lady had reliably identified the cellphone by
means of the wear and tear marks somewhere at the top of its
face.
The manner in which the witness was asked to identify the cellphone
was disturbingly irregular. Mr Hoffman:
“
As ek nou
die hofordonnans vra om net die foon vir u te gee, as u miskien net
so ‘n aanduiding kan gee van hierdie gekrap
bokant, aan die
bokant van die foon want u sê die swart merkies is daar. Kan u
net vir die hof wys waar is daardie merkies?
Inspekteur, asseblief.”
Ms De Beer:
“
Nie swart
nie, silwer,
sorry
.
Hy het gekrap, die grys is afgekrap hierso.
Die getuie wys so aan die bokant. Ek
sien so bokant van die glas. Nie in die … (tussenbei) --- Ja,
hier bo.”
[78] Ever heard of a dock
identification? This was it. The witness did not first describe the
nature, extent and location of the
alleged identificative marks
without looking at the exhibit. She was given an unfair advantage by
first inviting her to inspect
the exhibit and after inspecting the
exhibit asking her to say through which peculiar features she
recognised the exhibit. The
difficulty I had was simply this: The
witness did not describe the exhibit. She merely told the court what
she could see on the
exhibit in her hands. Any idiot could surely
have done precisely the same.
[79] Although the witness
was given that good opportunity, her identification of the cellphone
was pathetically vague. The following
demonstrates such vagueness:
Were the marks in question vertical, horizontal, spherical, diagonal,
straight, crooked or indescribable
conglomerate network?
[80] The cellphone in
dispute was seized from the appellant, handed over to the
investigating officer and shown to the witness and
her husband a day
after the incident. That too was a highly irregular police conduct. A
neutral, in other words, an impartial investigator,
in the position
of the investigator in this matter, would first have obtained a list
of the goods stolen from the victims, to ascertain
whether the
article seized from the suspects were specified or listed as stolen.
It was never done in this matter. Notwithstanding
the unorthodox
method and unfair pre-trial procedure used by warrant officer Tait,
the two cellphones – exhibit 1 and exhibit
2 – seized
from the appellant, did not appear on the list of the stolen goods –
annexure “a” to the written
indictment. That list was
drawn some time after the phones had been recovered and shown to the
witnesses.
[81] During
cross-examination of warrant officer Tait by Mr Pretorius, the
following exchange was recorded:
“
Ja, en
daardie vier verwys na die vier van Marais, die getuie wat hier
getuig het. Inteendeel, drie van sy selfone want hy het
drie selfone
gehad as ons kyk na die dossier. --- Ja, Edelagbare, dit kan wees
dat die klaers nie op daardie stadium agtergekom
het dat van die
eiendom gesteel is nie. Die lys is opgestel. Dit kon wees dat dit
dalk nie op die lys gesit is nie.
Was daar op die 6de al ‘n lys
opgestel van die vermiste goedere? Insluitende dan die selfone. ---
U Edele nee, daar was
no ‘n voorlopige lys of hulle het begin
om hom op te stel aangesien die slagoffers my meegedeel het dat dit
alles deurmekaar
is en dat daar soveel goeters gesteel is. So hy was
nog nie volledig opgestel nie.
En u sal met my saamstem dat daar was
en is geen lys van gesteelde goedere waarop daardie twee selfone
voorkom nie en waar hulle
beskryf word soos wat hulle lyk, een swart
kleur en een is ‘n silver kleur Nokia 1020 of wat ook al. Daar
was geen lys
nie wat daardie beskrywing van daardie twee selfone
gehad het nie? --- Dit is korrek, u Edele.”
[82] In
S v Nortjé
1996 (2) SACR 308
(C) the court per Foxcroft J said the following
about crime investigatory procedures and police conduct:
“
The police
procedures in this case were fundamently unfair and the accused did
not have a fair trial. As has been pointed out,
it would be
farcical to insist on the highest standards of fairness in the courts
while at the same time tolerating a low standard
of fairness in
police procedures which take place before an accused person reaches
the court. See, for example,
R
v Hackwell and Others
1965 (2) SA 388
(SRA) at 400E 320d – f.”.
[83] I hold a view, and
it is a very firm view, that neither exhibit 1 nor exhibit 2 provided
any corroborative and objective safeguards
which positively linked
the appellant to the scene of the crime. In my view the evidence
tendered by the prosecution was materially
deficient to determine the
issue of ownership in favour of the State against the appellant.
[84] During the course of
the judgment the court
a quo
found:
“
Even if I am
wrong in this finding that Mrs De Beer has managed to prove that
Exhibit 1 belonged to her husband, I am satisfied
that the issue of
the said handset is neutral in so far as she conceded that such marks
could have been made on the accused’s
phone and as such that
phone can reasonably possibly have belonged to the accused and can
also reasonably possibly belong to her
husband.”
[85] If we accept, and I
believe we should, that Ms De Beer’s evidence was irredeemably
contaminated by procedural irregularities;
that it was substantially
unreliable and that she was
strictu sensu
a single witness
whose unsatisfactory evidence was materially inconsistent with that
of her husband – then there was no objective
evidence which
corroborated her daughter’s identification of the appellant and
undoubtedly rendered it reliable.
[86] The court
a quo
also rejected the explanation of the appellant as to the second
cellphone – exhibit 2. His evidence was that the constable
seized it from the second suspect, one John Novela. On the contrary,
the evidence of the constables was that they seized it as
well from
the appellant. Perhaps their evidence was correctly accepted as true
and his correctly rejected as untrue.
[87] Although the
evidence of the appellant was false on that particular aspect
relating to the second cellphone in dispute, the
unreliable evidence
of the De Beer couple was not thereby rendered reliable. The
favourably heavy weight allocated to the evidence
of a witness on the
credibility scale, cannot be later used to compensate for the
unfavourably weak evidence of that witness on
the reliability scale.
To do otherwise conflates the issues. The danger is that the
distinction between the reliability component
and the credibility
component of the inquiry becomes blurred. In those blind spots
between the two disjunctive components, one
is destined to go astray
and to fall into hazardous pitfalls of error.
[88] The reliability
interrogation of the evidence of identification is an independently
separate inquiry. It was impermissible
to treat the lies of the
appellant as a curative remedy for the lack of objective evidence to
corroborate the identifying witness.
There was no evidence of
cellular data led. The forensic evidence – “exhibit d”
– exonerated the appellant.
Firstly, the vaginal swab excluded
him. Secondly, the two vuvuzelas also excluded him. The available and
reliable evidence tendered
in this case, objectively favoured him.
[89] If the court
a
quo
was correct in finding that the evidence concerning the
ownership of the handset – exhibit 1 – was neutral, then
that
should have been the end of the inquiry. The court
a quo
found, and correctly so, that the version of the appellant that the
cellphone belonged to him was reasonably possible. Implicit
in that
finding was the logical conclusion that the State had failed to prove
beyond reasonable doubt that such cellphone was Mr
De Beer’s
stolen property. It follows, therefore, that the second basis on
which the appellant was convicted, could not and
cannot sustain the
conviction.
[90] I would, therefore,
uphold the appellant’s grounds of appeal. The court
a quo
materially misdirected itself, with respect. The two principal
findings of the court
a quo
are findings which I, sitting as I
was in the full appellate mode of this division, could not support.
[91] In the result I make
the following order:
91.1 The appeal is
upheld.
91.2 The conviction is
set aside.
________________
M.H.RAMPAI, AJP
I concur.
_______________
B.C. MOCUMIE, J
I concur.
_______________
A.F. JORDAAN, J
On
behalf of appellant: Mr K. Pretorius
Instructed by:
Bloemfontein Justice
Centre
BLOEMFONTEIN
On behalf of respondent:
Adv R Hoffman
Instructed by:
Director of Public
Prosecutions
BLOEMFONTEIN
/spieterse