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[2012] ZAFSHC 59
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Ganda v S (A182/2011) [2012] ZAFSHC 59 (5 April 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A182/2011
In
the appeal between:-
RICKY
GANDA
…......................................................................
Appellant
and
THE
STATE
….......................................................................
Respondent
_____________________________________________________
CORAM:
VAN
ZYL, J
et
DAFFUE, J
_____________________________________________________
HEARD ON:
6
FEBRUARY 2012
_____________________________________________________
JUDGMENT BY:
DAFFUE, J
_____________________________________________________
DELIVERED ON:
5 APRIL 2012
_____________________________________________________
INTRODUCTION
[1]
On 4 February 2011 the appellant was convicted by the Regional Court
at Welkom on two counts of robbery with aggravating circumstances.
On
the same day he was sentenced to 8 years imprisonment in respect of
both counts, such sentences to run concurrently.
[2]
On 5 April 2011 leave to appeal against conviction was granted by the
court
a quo
.
THE
ISSUES
[3]
It is apparent from the application for leave to appeal that
appellant relies on several grounds of appeal, but the two main
issues to be considered are (a) whether the acceptance of appellant’s
identification by the two state witnesses is correct
and (b) whether
appellant’s alibi in respect of the two incidents was correctly
rejected as not reasonably possibly true.
Pertaining to
identification it is appellant’s case that the ID parade was
defective and the court
a quo
incorrectly accepted the
evidence in that regard notwithstanding serious irregularities. One
alleged irregularity is the evidence
by the state witness, Lydia
Hlanganiso that the investigating officer was present during the
parade and also in the same room with
the identifying witnesses.
Secondly, the witnesses were able to see the line-up of suspects
before the ID parade started. Insofar
as appellant’s alibi is
concerned, it is appellant’s case that the court
a quo
incorrectly doubted the authenticity of the document indicating that
he was detained in Mozambique. It is averred that an onus
was placed
on appellant to prove his innocence insofar as the court
a quo
found that appellant should have called the author of the
document. It is also alleged that the court
a quo,
without
sufficient reason, regarded the procedure at the border between
Mozambique and South Africa as described by appellant questionable.
Pertaining to the second incident it is alleged that the court
a
quo
incorrectly found that there was nothing to suggest that the
host of a traditional feast/ceremony had to remain on the premises
at
all time during the ceremony.
LEGAL PRINCIPLES
[4] In assessing the
evidence, a court must in the ultimate analysis look at the evidence
holistically in order to determine whether
the guilt of the accused
is proved beyond reasonable doubt. This does not mean that the
breaking down of the evidence in its component
parts is not a useful
aid to a proper evaluation and understanding thereof. See
S v
SHILAKWE
2012 (1) SACR 16
(SCA) at 20, para [11]. The Supreme
Court of Appeal approved of the following
dictum
:
“
But in doing
so, (breaking down the evidence in its component parts) one must
guard against a tendency to focus too intently upon
the separate and
individual part of what is, after all, a mosaic of proof. Doubts
about one aspect of the evidence led in the trial
may arise when that
aspect is viewed in isolation. Those doubts may be set at rest when
it is evaluated again together with all
the other available evidence.
That is not to say that a broad and indulgent approach is appropriate
when evaluating evidence. Far
from it. There is no substitute for a
detailed and critical examination of each and every component in a
body of evidence. But,
once that has been done, it is necessary to
step back a pace and consider the mosaic as a whole. If that is not
done, one may fail
to see the wood from the trees.”
See
S v HADEBE AND
OTHERS
1998 (1) SACR 422
(SCA) at 426F – H and
S
v MBULI
2003 (1) SACR 97
(SCA) at 110, para [57].
[5] The same principles
apply when an alibi defence is relied upon by an accused. The
acceptance of the evidence on behalf of the
state cannot by itself be
a sufficient basis for rejecting the alibi evidence. Something more
is required. The evidence must be
considered in its totality. In
order to convict there must be no reasonable doubt that the evidence
implicating the accused is
true which can only be done if there is at
the same time no reasonable possibility that the evidence exculpating
him is not true.
See
S v VAN ASWEGEN
2001 (2) SACR 97
(SCA) at paras [7] & [8], 100f-101e and
S v LIEBENBERG
2005 (2) SACR 355
(SCA) at 358H – 359E, paras [14] and [15].
The effect hereof is that once the trial court accepts the evidence
in support
of an accused’s alibi as reasonably possibly true,
it follows that the court should find that there is a reasonable
possibility
that the evidence led on behalf of the state is mistaken
or false.
[6] Bearing in mind the
above the correct approach is to consider the alibi in the light of
the totality of the evidence in the
case and the court’s
impression of the witnesses. See
R v HLONGWANE
1959 (3)
SA 337
(A) at 341A. In doing so, the trial court should remind itself
that no onus rests on an accused and that the state must prove that
the accused committed the crime and it must therefore disprove the
alibi.
[7] It is acceptable in
evaluating the evidence in its totality to consider the inherent
probabilities. Heher AJA (as he then was)
dealt with this aspect as
follows:
“
The correct
approach is to weigh up all the elements which point towards the
guilt of the accused against all those which are indicative
of his
innocence, taking proper account of inherent strengths and
weaknesses, probabilities and improbabilities on both sides and,
having done so, to decide whether the balance weigh so heavily in
favour of the State as to exclude any reasonable doubt about
the
accused’s guilt.”
See
S v CHABALALA
2003 (1) SACR 134
(SCA) paragraph [15]. In this regard it is apposite
to consider the evaluation of inherent probabilities by the trial
court as
accepted by the Supreme Court of Appeal in
MAGADLA v
S
, 80/2011
[2011] ZASCA 195
delivered on 16 November 2011,
(unreported), at paragraph [22] and further.
[8] The right to remain
silent and its effect on the disclosure of an alibi defence was
thoroughly discussed and considered in the
S
v THEBUS
2003(6) SA 505 (CC) at 533 and
further. The CC, per Moseneke J, found that a distinction may
properly be made between an inference
of guilt from silence and a
credibility finding connected with the election of an accused person
to remain silent. It is clear
that the late disclosure of an alibi is
one of the factors to be taken into account in evaluating the
evidence of the alibi, although
standing alone, it does not justify
an inference of guilt. Secondly, such late disclosure is a factor to
be taken into consideration
in determining the weight to be placed on
the evidence of the alibi. The Court stated further: “
The
failure to disclose an alibi timeously is therefore not a neutral
factor. It may have consequences and can legitimately be taken
into
account in evaluating the evidence as a whole. In deciding what, if
any, those consequences are, it is relevant to have regard
to the
evidence of the accused, taken together with any explanation offered
by her or him for failing to disclose the alibi timeously
within the
factual context of the evidence as a whole.”
At
para 68, 537G.
[9] In
S
v MBULI
loc cit
at
para [42] at 107A Nugent JA stated that our courts have over the
years drawn attention to circumstances that might placed the
probity
of identification parades in doubt. So, for example, the accused
person should not be so distinctive from the others on
the parade
that a witness might tend to identify him on extraneous grounds; the
parade should not be conducted in circumstances
that allow prior
discussions amongst the witnesses and the police officers who are
investigating the crime should avoid being involved
in the conduct of
the parade. In paragraph 48 of the judgment Nugent JA commented that
the mere presence of the police officers,
including the investigating
officer, at the identification parade was an insufficient ground upon
which to doubt the probity of
the identification evidence.
[10] The identification
of a perpetrator, based on the evidence of a single witness must also
be considered.
Section 208
of the
Criminal Procedure Act 51 of 1977
provides that an accused may be convicted of any offence on the
single evidence of any competent witness. There is no magic formula
to apply when it comes to the consideration of the credibility of a
single witness. The trial court should weigh the evidence of
a single
witness and consider its merits and having done so, should decide
whether it is satisfied that the truth has been told,
despite the
shortcomings or defects in the evidence. See
S v SAULS
1981 (3) SA 172
(AD) at 180E – G. Our courts have repeatedly
stated that evidence of identification must be approached with
caution. There
is no doubt that honest witnesses may make mistakes
because of the fallibility of human observation and therefore all
various factors
set out in
S v MTHETWA
1972 (3) SA 766
(AD) at 768A – C and any other factors that need to be consider
should be weighed one against the other, in the light of
the totality
of the evidence and the probabilities.
[11] The fact that a
witness failed to provide a description of the accused does not
always assist him or her. In the event where
the witness was in a
situation where he or she had ample opportunity to make a proper and
reliable observation of the perpetrator,
such factor will be taken
into consideration to consider the value to be attached to such
evidence, especially so where the witness
did not have any reason to
falsely implicate the perpetrator. See
MAGATLA
loc
cit
at paragraph [32]. In this matter three judges found that the
perpetrator had been identified correctly notwithstanding the fact
that there was no evidence by the complainant as to the perpetrator’s
clothing and any physical attributes or marks on his
face or body
with which she identified him, factors that the minority heavily
relied upon in an endeavour to uphold the appeal.
In the minority
judgment strong reliance was placed on the judgment of Willamson JA
in
S v MEHLAPE
1963 (2) SA 29
(AD) at 32A – F.
[12] In
S v NDUNA
2011 (1) SACR 115
(SCA) at 120H – 121E, the Supreme Court of
Appeal dealt with similar fact evidence as follows:
“
[17] It is
settled law that, whilst similar fact evidence is admissible to prove
the identity of an accused person as the perpetrator
of an offence,
it cannot be used to prove the commission of the crime itself. This
legal principle operates, in addition, to exclude
such similar fact
evidence from being confirmatory material on another count.
[18] However, the application of the
rule is not to be confused with the situation where the rule is
invoked to establish the cogency
of the evidence of a systematic
cause of wrongful conduct, in order to render it more probable that
the offender committed each
of the offences charged in respect of
such conduct (S v GOKOOL
1965 (3) SA 461N
at 475A – D)……
This court (per Schreiner JA) stated the rule succinctly in R v
MATHEWS AND OTHERS
1960 (1) SA 752(A)
at 758B – C:
‘
Relevancy is
based upon a blend of logic and experience lying outside the law. The
law starts with this practical or common sense
relevancy and then
adds material to it or, more commonly, excludes material from it, the
resultant being what is legally relevant
and therefore admissible….
Katz’s case is authority for asking oneself whether the
questioned evidence is only, in
common sense, relevant to the
propensity of the appellants to commit crimes of violence, with the
impermissible deduction that
they for that reason were more likely to
have committed the crime charged, or whether there is any other
reason which, fairly considered,
supports the relevancy of the
evidence’”
THE EVIDENCE
[13] Two branches of Pep
Stores were robbed exactly two months apart. In the first instance
the Pep Stores branch of Wesselsbron
was robbed of cellular phones
and cash in the amount of R33 000,00 on 4 December 2005. In the
second instance Pep Stores in Virginia
was robbed of R22 000,00 cash
on 4 February 2006. Appellant, who was charged with these two counts,
pleaded not guilty and elected
not to give any plea explanation.
[14] In both robberies
the assailants did not wear any form of disguise and used firearms in
the execution of the crimes. Two employees
of Pep Stores, Me Rose
Khabe and Me Nongamtini Joyce Dithebe testified in respect of the
first robbery in Wesselsbron. Me Dithebe
was not able to identify any
of the assailants. Me Khabe the manageress, a 48-year old lady who
was in the employ of her employer
for 24 years at the stage when the
robbery was committed, not only pointed out appellant in the dock,
but also at an ID parade
held on 23 September 2006. The assailant
identified as the appellant pointed a firearm at her. The robbery was
executed at 11 o’clock
in the morning and the lights in the
shop were on. She was ordered to accompany the assailant to the
office. He took cellular phones
and ordered her to open the safe and
remove the money which she did. Thereafter she and another employee
were taken to the toilet
where they were locked-up with other
employees. She was neither asked by the prosecutor, nor by the
defence counsel to provide
the trial court with any distinctive
features of the assailant. Her testimony pertaining to her
opportunity to identify appellant
reads as follows:
“
Even if I
was shocked at the time he pointed me with the firearm the very first
instance, he looked me in the eye and I also looked
him in the eye.
Secondly, when I handed him the cash in the office I looked him in
the eye and even when he demanded airtime from
me I was looking him
in the eye and I was talking to him.”
When confronted with
appellant’s alibi, she mentioned the following:
“
I will not
change my mind because on the 4
th
of December he was in Pep Stores in Wesselsbron. He cannot say that
it was not him.”
Although she was told
that she was going to point out one of the people who were involved
in the robbery since he had been arrested,
she testified as follows:
“
If this
person who was present at the robbery was not there I would not have
pointed out anyone.”
She denied in her
evidence that the investigating officer was present with the
witnesses in the same room during the ID parade.
In this regard, she
contradicts the version of the state witness Me Lydia
Hlanganiso.
[15]
Me
Maggie Matshela and Me Lydia Hlanganiso were employers at
Pep Stores, Virginia on the 4
th
February 2006. Me Matshela
was not able to identify any of the assailants, but Me Hlanganiso
identified the appellant. According
to her the appellant and another
person visited the store two days prior to the 4
th
of
February 2006. The appellant was looking at school trousers, but she
noticed that he was in fact observing the employees within
the shop
whilst holding grey school trousers in his hands. They did not buy
anything and left. On the day of the robbery she was
standing close
to the counter where another employee, Mr Rodger Mohape was busy
packing sweets when appellant pointed a firearm
at Mr Mohape. They
were also taken to a toilet after the appellant went to the office
first to obtain money from the safe. When
appellant’s alibi was
put to her, she denied that and specifically said that appellant “was
there with gum boots on
as well as a blue machine cover”. When
asked about any marks with which she could identify appellant, she
stated that “I
don’t know of any marks, but it was him.”
She confirmed that she identified appellant at the ID parade by his
facial
appearance.
[16] Captain Lushana was
called to testify. He was in charge of the ID parade. Appellant was
represented during the ID parade by
a legal practitioner, one Mr
Macheka. Me Khabe identified the appellant within 50 seconds and Me
Hlanganiso took 57 seconds to do that. Captain
Lushana denied that the investigating officer, inspector Dlamini was
present at the
ID parade. The customary SAP 329 form was completed
during the parade and handed in as an exhibit. Inspector Masilo was
also called
upon to testify. He guarded the witnesses before
attending the ID parade and confirmed that he was the only police
officer inside
the room where the witnesses were kept prior to them
being taken to the parade. The matter was not discussed with the
witnesses
and they were not told who to point out. After a witness
went to the parade, such witness did not return to the waiting room
and
the witnesses were not allowed to communicate with each other. Mr
Matsohole was also called to testify. He is employed by the
Department
of Correctional Services. He escorted the witnesses from
the ID parade. He did not have anything to do with the investigation
and
did not discuss anything with the witnesses.
[17] It is recorded that
appellant was arrested on 14 November 2006 and after several
postponements the trial eventually started
on 29 January 2009 on
which date Me
Hlanganiso testified. Me Khabe
only testified on 3 November 2009. It was put to her in
cross-examination that the appellant was
detained at the Mozambique
border, after being arrested on 2 December 2005 for not having a
valid passport, that he was released
only on the 5
th
of December 2005 and that he could not commit the crime on the 4
th
of December 2005. It was at that stage mentioned that appellant has
proof of such detention. The witness was not confronted with
proof.
On that day and after the State closed its case, the defence
requested a postponement. Appellant’s legal representative
referred to a document in his possession, the authenticity which was
challenged by the prosecutor and hence they needed to obtain
the
author of the document to testify and also to obtain an interpreter
to interpret the contents which were written in Portuguese.
The
prosecutor mentioned the following:
“
Your
Worship, my only problem is that this document comes now after this
case has been on the roll for so long. If the document
was already in
the possession of the defence why don’t (sic) they produce it
long ago. This matter has been dragging from
last year already, so it
is just a waste of time, delaying tactics Your Worship, and this
document that the defence have in their
position, is not for the
state to help them to get the witness to the court, it is the
defence… This matter comes from 2007,
it’s already now
2009, and now we are going to 2010 and the document is still in the
possession of the defence. Why did they
keep it so long?”
Mr Mokhele, acting for
the appellant, replied as follows:
“
Your
Worship, just to add on with the availability of the document, the
instruction that we got from the client was that the document
was
available, but because of the present situation we were struggling to
get hold of the person who was suppose to bring the document,
hence
it came in late, because we could have arranged that a long time
back, Your Worship.”
[18] On 16 September
2010, the trial was resumed and the appellant testified in his
defence and called a witness in support of his
alibi, Mr J Tjabane.
When asked where he was on the 4
th
of December 2005, he
said that he was in Maputo in Mozambique and that he specifically
went to Maputo as his young daughter was
ill. He testified that on
his arrival at Maputo he was arrested. He went to Maputo without
being in possession of a passport. He
obtained a document, which was
handed in as exhibit, to the effect that he was detained from 2
December 2005 and released on 5
December 2005 only. This document he
obtained from “the offices on site of Mozambique at the
border”. It should be
noted that appellant later testified that
he was not allowed to cross the border and that he did not continue
with his journey
to Maputo. He thus contradicts himself insofar as he
testified initially that he was arrested at Maputo, which is far away
from
the Mozambique/ South African border, it being the capital of
Mozambique.
[19] Pertaining to the
robbery on the 4
th
February 2006, he relied on an alibi
insofar as he hosted an ancestral feast/ceremony at his parental
home, which ceremony was
also attended by his sister’s son, Mr
Tjabane, who testified on his behalf. He was at the premises the
whole day and could
not leave as a result of his culture. Therefore
he denied that he was at Pep Stores in Virginia on the 4
th
February 2006. The people who attended the family feast “have
been an average of so-called lot, there was a lot of people”
according to his version. He mentioned that he was at his place of
employment, Symunya Wholesale in Welkom on the 2
nd
February 2006, being the day on which he was allegedly seen by the
witness, Me
Hlanganiso, two days prior to the
robbery.
In
cross-examination appellant stated that he went to Mozambique before
and that he used public transport. That time he was not
arrested and
he also passed through the border without a passport. In December
2005, he was arrested at a roadblock between Maputo
and a certain
town or place named Matola. On his version in cross-examination he
was somewhere between the border and Maputo, being
a third version.
According to him, he pleaded with the personnel at the border to let
him through and they acceded to his request.
[20] It is to be noted
that the document he relied upon and which was handed in as exhibit
“D” in support of his alibi
that he was in Mozambique at
the time, is dated 5 December 2005. This document was for the first
time referred to during the trial
at the end of 2009, and long after
the trial started. On appellant’s version it was kept in a file
that he normally carried
with him. Appellant could not give any proof
that he was working with Symunya Wholesalers on the 2
nd
February 2006.
[21] The appellant’s
witness, Mr Tsabane was vague in his evidence and several questions
had to be put to him more than once.
He could not even remember when
he was requested by appellant to testify on his behalf pertaining to
the alibi. When he was asked
about other ceremonies, he confirmed
that other ceremonies were held, but was not able to give the dates
thereof. This specific
ceremony, on the 4
th
February 2006,
was important to him and that is why he remembered the date, but he
could not explain why this specific date was
so important or why he
could remember this date, but not the others.
THE COURT
A
QUO
’
S FINDINGS
[22] The court
a quo
correctly found that it was not in dispute that the two Pep Stores at
Wesselsbron and Virginia were robbed two months apart, that
cash were
stolen in both instances and that the robbers were armed with
firearms in each case. Also on both occasions, the robbers
locked the
employees in the toilets before they escaped. The only issue was who
orchestrated it. The court
a quo
was aware of the fact that
the two state witnesses were single witnesses and that the evidence
had to be treated with caution.
It was also clear that the court
a
quo
considered the aspects dealt with in the case law pertaining
to identification. The court
a quo
also fully dealt with the
factors why Me
Hlanganiso was able to identify
appellant whilst the co-employee could not and the same reasoning
applied to the identification
of Me Khabe, whilst her co-employee was
also not able to identify appellant. It is apparent from the record
and the judgment of
the court
a quo
that Me Hlanganiso and Me Khabe had more time and more opportunities
to observe the assailant than the co-employees. The court
a
quo
further found that there was no
reason why the state witnesses would falsely accuse appellant. The
court
a quo
also
found that the ID parade was properly conducted and that the state
witnesses were not influenced to point out anybody. In my
view, and
notwithstanding the attempts in cross-examination to show that the ID
parade was irregular, the court
a
quo
’s finding cannot be
faulted. It must also be taken into consideration that the
appellant’s legal representative was
present during the ID
parade and it is apparent that he did not question any conduct and/or
alleged irregularity. Appellant was
given an opportunity to change
his position on the parade, but he elected not to do so, indicating
that he was satisfied. It must
also be pointed out that Mr Nel, on
behalf of appellant, made it clear that he could not attack the ID
parade within any conviction.
The court
a quo
dealt in detail with appellant’s alibi evidence. It was
critical of appellant’s conduct and evidence insofar as the
relevant document from the Mozambique authorities, indicating that he
was detained for three days and which was in his possession
all the
time, only came to the fore and was mentioned at the end of 2009,
long after the trial started. Mr Nel submitted that although
there
might be suspicion and question marks in this regard, that was not
enough for the court
a quo
to reject the alibi, as it should
have accepted it. He referred to
S v LIEBERBERG
loc
cit
and
S v THEBUS
loc cit
in order to
persuade us to find in appellant’s favour. The court
a quo
also referred to the inherent improbabilities and contradictions in
appellant’s version pertaining to crossing the South
African
and Mozambique borders without a valid passport. It must also be
recorded that it was put to Me Khabe that appellant was
arrested for
not having a valid passport. During his evidence it transpired that
appellant never had a passport at all. The criticism
of appellant’s
evidence is well founded and even considered on its own, could be
rejected as false and improbable. However
if it is considered with
the totality of the evidence the court
a quo’s
rejection
of appellant’s alibi in this regard is supported.
[23] Appellant’s
alibi pertaining to the traditional feast that he arranged and
attended on 4
th
February 2006 must also be considered. As
indicated his nephew testified on his behalf. The court
a quo
found that he had reason to be biased, that he had sufficient
opportunity to concoct his evidence in favour of the appellant and
that his version pertaining to what occurred during the day that the
traditional feast was allegedly held, appeared to be improbable.
On
his version he observed the appellant the whole day and appellant
never left the premises from the morning until the evening.
He
testified in this vein notwithstanding the fact that “a lot of
people” attended the festival. In my view and having
regard to
the improbabilities in the version of the defence, especially in the
light of the totality of the evidence, the court
a quo
did not
misdirect itself and rejected the alibi in this regard on proper
grounds.
[24] Consequently the
court
a quo
did not err in its finding that the State had
proven its case beyond reasonable doubt and therefore appellant’s
conviction
in respect of both counts of robbery is in order.
ORDER
[25] Therefore, I would
make the following order:
Appellant’s appeal
is dismissed.
_____________
J.P. DAFFUE, J
I concur and it is so
ordered.
________________
C. VAN ZYL, J
On
behalf of appellant: Adv. J S Makhene
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of respondent: Adv. W J Harrington
Instructed
by:
Office of the Director of
Public Prosecutions
BLOEMFONTEIN
/eb