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2012
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[2012] ZAGPPHC 164
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Nduma v S (A187/2010) [2012] ZAGPPHC 164 (14 August 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
Case
no:A187/2010
Date:14/08/2012
In
the matter between:
BOIKIE
NDUMA
..........................................................................................
APPELLANT
AND
THE
STATE
.................................................................................................
RESPONDENT
JUDGMENT
BAQWA
J
[1]
The appellant herein appeared before the Oberholzer Regional Court
charged on seven counts namely: Count 1 House breaking with
intent to
steal and theft Count 2 Robbery
Count
3 Unlawful possession of a firearm Count 4 Unlawful possession of
ammunition Count 5 Possession of stolen property Count 6
Attempted
robbery Count 7 Discharge of firearm.
[2]
The appellant entered a plea of not guilty at the court aquo without
tendering a section 115 statement explaining the basis
of his plea.
[3]
He was found guilty and convicted on four counts namely, theft,
robbery, unlawful possession of a firearm and unlawful possession
of
ammunition.
[4]
He applied for leave to appeal from prison and was granted leave to
appeal against both conviction and sentence.
[5]
This matter served before this court on 13 September 2010 and it was
postponed sine die for reconstruction of the record.
[6]
As stated, the first count was housebreaking with intention to steal
and theft but the state had failed to prove the charge
of
housebreaking hence the conviction on theft only. In my view, it can
hardly be argued that the appellant had no intention to
steal when
participated in the removal of goods from a place that did not belong
to him without the owner's permission. The fact
that the goods were
removed for the concealment of the theft of a firearm that had been
removed earlier can hardly come to the
rescue of the appellant.
[7]
Concerning the robbery count, complainant states that it was at night
and the only source of light was an Apollo light some
distance away
and this was to some extent obscured by a peach tree. Complainant was
seeing appellant for the first time. The incident
lasted for a few
minutes. He does not identify the appellant in his police statement.
[8]
In this poorly lit environment, the evidence of Selibalo and
Lekonjani does not lend much corroboration if any to the evidence
of
complainant. In my view their evidence clouds the issues even
further. One fact is clear however and it is that there was a
person
(possibly the robber) who made a clean get away by jumping over a
fence. If appellant was a participant in the robbery,
it is most
unlikely that he would not also have jumped the wall and got away.
[9]
The appellant is a single witness with regard to the robbery incident
and with regard to the identity of the perpetrator or
perpetrators.
There was no identity parade held and the state tried to prove its
case on the basis of dock identification.
[10]
The law with regard to the Identification of an alleged perpetrator,
is summarised in the case of
S
v Charzen and another 2006(2) SACR 143 (SCA) (19) G-l:
"
The court is to bear in mind the inherent possibility that even
honest witnesses may be mistaken about identification. This
means
that the mere assertion by a witness that he recognises his offender,
without more, leads to the inherent potential for mistaken
identity.
Such evidence would seldom suffice to justify a conviction. Despite
this, and in addition, the honesty and sincerity
of the identifying
witness is not sufficient, as there must be certainty beyond a
reasonable doubt as to the reliability of the
evidence".
Add
to this, the fact that not a single item robbed from the complainant
was recovered from or found in the possession of the appellant
and
the fact that he was detained minutes after the incident, the result
cannot but be a weak case for the state.
[11]
There were not many people during the commission of the crimes that
gave rise to this case yet the uncertainties and contradictions
in
the evidence of complainant, and state witnesses Lekonjani and
Selibalo leave one in the state of discomfort regarding their
credibility. For example complainant testified that Lekonjani handed
a firearm to appellant. Lekonjani did not even refer to this
incident
in his evidence in chief. Yet Selibalo speaks of the appellant having
been present earlier in the day in possession of
a firearm.
[12]
If appellant was at the scene and in possession of a firearm, what is
the likelihood that a knife would be used and not a firearm.
I
cannot but agree with appellant's submission that there are
significant material contradictions and inconsistencies in the state
case that cannot but create a reasonable doubt regarding identity of
the perpetrator regarding count 2. Regarding count 3 and 4
which were
the unlawful possession of a firearm and ammunition, the evidence is
equally unsatisfactorily. No ballistic or forensic
reports were
tendered by the state and the firearm was not presented at the trial.
[13]
Regarding these counts the state called the evidence of constable
Chikomo who says that whilst patrolling he saw the appellant
alone
next to a car. He then says "I told them I saw somebody throw
something under the vehicle". This was at a shebeen
where
Chikomo and other policemen were searching people. It was at night.
He looked under the car and found a Norrico Firearm with
14 bullets.
Constable Chikomo was a single witness in this regard. The state did
not prove that this was the firearm removed from
complainant
Mandlate. Further, the state did not prove that this was a firearm as
envisaged by the Act and whether it was in working
order and capable
of discharging any ammunition. The state simply failed to provide the
most basic evidence to sustain a conviction.
[15]
In the result, having considered the matter and having listened to
counsel I am of the view that an appropriate order should
be as
follows:
15.1.
The conviction and sentence in respect of count one is hereby
confirmed and the appeal is dismissed.
15.2.
The appeal with regard to both conviction and sentence in counts 2,3,
and 4 is allowed.
I
agree, it is so ordered.
S.A.M
BAQWA
JUDGE
OF THE HIGH COURT
I
agree.
N.V
KHUMALO
(ACTING
JUDGE OF THE HIGH COURT)