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[1984] ZASCA 97
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S v Zono (418/83) [1984] ZASCA 97 (11 September 1984)
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CASE
NO. 418/83
/ccc
IN
THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE
DIVISION)
In the matter between
SIPHIWO
ZONO
APPELLANT
and
THE
STATE
RESPONDENT
CORAM
:
KOTZ
é
,
CILLI
é
JJA et ELOFF AJA
HEARD
:
16 AUGUST 1984
DELIVERED:
11 SEPTEMBER 1984
JUDGM
ENT
ELOFF
/
2.
ELOFF,
AJA
The
appellant was convicted in the Eastern Cape Division on one count of
murder, one of rape, one of robbery with aggravating circumstances,
and one of attempted robbery. On the first count he was sentenced to
death, on the second he was sentenced
to
8 years' imprisonment, and on the remaining counts, taken together,
he was sentenced to 10 years' imprisonment.
An
application for leave to appeal was refused by the trial Court, but
leave was granted by this Court to appeal
against the
convictions and sentences.
I
turn firstly to the convictions
on
the first two counts, which can conveniently be
discussed/
3.
discussed together. The findings
by the trial Court were that on 20 February 1981 the witness, G.D.,
had intercourse with the late
Zwelakhe Doctor Gwele in
a
bushy area near Beaconsfield, East London. Immediately thereafter a
black man pounced on the deceased, bludgeoned
him
to death with a heavy instrument and removed some possessions from
his person. He subsequently forced the
witness
to have sexual intercourse with him. He then
sat
in her presence folding and smoking a cigarette,
whereafter
he suddenly struck her a few blows on her head
which dazed
her. He then disappeared.
Counsel
for the appellant in the
first
instance criticised the finding of the Court a
quo
that/
4. that it was proven beyond
reasonable doubt that the appellant was the assailant in question. He
contended that on the question
of identity the case for the State
rested solely on the evidence of G.D.. He emphasised that her
evidence had not only to be clear
and satisfactory in every material
respect, but that the possibility of error had to be excluded. He
argued that the evidence of
the appellant, namely that he had not
been near the scene of the attack on 20 February 1981, might
reasonably be true.
The trial Court found G.D. to be
an "excellent witness" who was both intelligent and honest,
and whose evidence of identification
was
reliable/
5.
reliable. The Court appears to
have accepted that
there
was nothing in addition to her evidence to support the State case (an
approach with which I do not entirely
agree,
and to which I shall revert later), and it was
found
that her evidence sufficiently justified a conviction.
The
evidence of the appellant was rejected.
Appellant's
Counsel endeavoured to persuade us that the trial Court's high
opinion of
G.D.' s
honesty was misplaced. A number of points
of
criticism were raised. I do not think it necessary to detail them.
They were all on peripheral questions and unimportant matters.
They
lack substance and I
am/
6.
am
not persuaded that- the Court a
quo
erred in its
view that
the witness was honest. I proceed to the question whether it was
rightly found that there was
no
reasonable ground for thinking that she may have
been
mistaken.
When
giving evidence G.D. stated that she took special note of the
appearance of her assailant while he was going through the
possessions
of the
deceased, and thereafter, while he was folding his
cigarette
and smoking it. His outstanding feature was a scar on the left side
of his neck in the region of his jaw. She also studied
his general
appearance. She testified that she observed him carefully so that she
would/
7.
would be able to identify
him afterwards.
Five
months later, on 22 July 1981,
after
the appellant had been apprehended, an identification parade was
held. The appellant and nine other black men of comparable
ages and
build were used. The witness studied each of the persons on parade in
turn, and when she came to the appellant, he held
his head aslant.
She asked him to straighten his head, for she was looking for a
person with a scar on the left side of his neck,
and the appellant
was holding his head so that his scar was obscured. When he
straightened his posture G.D. saw the scar and informed
the officer
in charge that the appellant
was/
8.
was the
man who had attacked the deceased and raped
her.
While it
is no doubt correct to
say, as
Counsel contended, that the witness was in a
state of
fright while her assailant was in her presence,
and he was
moreover a complete stranger to her, the
Court
a
quo
was in my opinion correct in saying that
she had an
adequate opportunity to observe him and to
take note
of his features. The most important factor
is of
course the distinguishing scar on the left
side of
his neck. The mark was described by the District
Surgeon,
who had examined him as
"...
a very prominent scar to the
left
side of his neck which is
about/
9.
about
12 cms in length and
extends
from up to down in a
vertical
direction. It is a
wide
scar, about three quarters
of
a centimetre in width..."
G.D. at
one point in her evidence referred to it
as follows
-
"On
this side of the neck it is
like
a scar or burning scar".
She later
said "there was a mark on the left side of the
face or
cheek." When cross-examining Counsel took her
up on her
statement that the mark was on the cheek as well,
she
testified that she "cannot be specific as to whether
it is the
jaw or the cheek, but it is on the left side
of the
face."
Much was
made by Counsel of the
apparent/
10.
apparent contradiction between
the evidence of the district surgeon, who made reference solely to a
mark on the neck, and to
that of G.D., who
at one
stage alluded also to a mark on the face. I do not think that
anything of importance arises therefrom. G.D. seemed to
think
that the scar on the neck extended higher up on to the cheek. She may
have been mistaken, that is not significant;
what
is important is that her description of the
general
locality of the scar, clumsy as it was, seems
to
accord substantially with that given by the district
surgeon.
In
my view there is a significant
feature/
11.
feature
of the description of the scar given by
G.D.,
which was not commented on by the Court
a
quo
,
namely that the scar on the neck "is like a
scar
or burning scar". That accords markedly with
the
description of appellant's scar given by one of the
complainants
on the fourth count, Kisi Mntwaphi. He testified about an attack on
him by appellant some
five
weeks after that on G.D.. He also identified
the
appellant
inter alia
by reference to the scar on the
left
side of his neck which to him seemed as if appellant "had a burn
on that side". Kisi's identification of the
appellant
was, as I shall indicate later, found by the trial Court to be
correct beyond reasonable doubt, and
for/
12.
for reasons given later
in this judgment I agree with
that finding.
I
should, while referring to Kisi's evidence, point out that he
identified the appellant not only by reason of the scar on the left
side of his face, but also on account of another scar, like an
inverted C,
on the right
upper side of appellant's face. G.D. did not see that scar. That was
probably due to the fact that at the time of the
attack on her the
appellant wore a cap which covered the C shaped scar.
There
is a further aspect of G.D.'s description which is in accord with
that of Kisi. She said
that her assailant wore a
checked/
13.
checked shirt with red
spots. I think this factor
serves
to strengthen the value of G.D.'s
identification.
It
is, in my judgment, of importance that according to the evidence' of
the investigating
officer,
G.D. told him about the scar on the neck of her assailant before
being taken to the identi
fication
parade. That shows that the witness did not, on seeing the appellant
on the parade and afterwards in Court,belatedly decide
that her
attacker had a scar. Counsel for the appellant argued that a danger
lay in this aspect. He contended that after being
told that G.'s
attacker had a scar on the side of his neck,
the/
14.
the
police were on the lookout for a man answering
to
that simple description. There might have been
several
persons with scars on the left side of their necks, and appellant,
who by chance found himself in a police cell on another
charge, might
coincidentally be one of those. Is it not possible that the moment
G.D. saw a scar-faced man
at the identification
parade
she without more ado also decided he was the culprit? I think that
the chances that there was more than one black in the
East London
area with a scar on the left side of his neck "like a burning
scar", are extremely remote. It is also of
importance that at
the parade G.D. did not see the scar on the neck of the
appellant/
15.
appellant
at once. As I said before, she thought
he
might well be her attacker, and became sure when,
at
her request, he lifted his tilted head.
Counsel
also criticised G.D.'s identification because she could not recall
whether her assailant wore a beard or a moustache. I
do not think
that is important. There seems to be
a
likelihood that in February 1981 appellant had a diminutive
beard
and a small moustache, but these are not such special
features
as the other which I discussed.
The
conclusion of the trial Court
that
the identification parade was fairly conducted was
criticised
on a number of grounds. Counsel firstly
argued/
16.
argued
that the evidence of G.D. showed that she was conveyed to the police
station where the parade was to be held in the same
police vehicle as
the complainants on the other charges - there might then have
been the opportunity to compare notes before
the parade. There seems
to be some doubt whether it was borne out by the evidence that all
the complainants came to the parade
in the same vehicle. G.D.
testified that just before the parade started she and the other
com
plainants were
kept in one vehicle, but the witnesses
Kisi
Mntwaphi and Abigail Malina testified that they were
conveyed
to the police station in a vehicle other than that in which G.D.
arrived. In any event, these
witnesses/
17.
witnesses were at all
relevant times under police
supervision,
and it was never suggested that in fact
any
discussion between them took place before the
parade.
Counsel
argued that the appellant
differed
markedly from the others on the parade since
he
appeared to be older, and he was the only one with
a
moustache. The appellant does not however, judging
by
photographs of the persons on parade, appear to be
older
than the others, and his moustache was not a
particularly
noteworthy feature.
Appellant's
Counsel also contended
that
the parade would only have been fair if the other
persons/
......
18.
persons on the parade were also
scarred. The way things were arranged created the danger - so it was
argued - that G.D. would single
out the first person whom she saw
with a scar on his neck. I think that such concern as one might have
over the fact that
no one
on the parade other than appellant was scarred
is
relieved by the fact that according to G.D. the appellant managed to
conceal the scar on the left
side of his neck by tilting his
head.
The
organisation of the parade was further queried. It appeared that
another person
on the
parade at some stage changed his position. This
was
not noticed by the Officer in charge. I do not
however/
19.
however
think that that gives rise to any uncertain
ty
concerning the fairness and value of the parade.
Counsel
rightly pointed out that there appeared to be some inconsistency
between the State witnesses on the question whether, when
the
complainants on the various counts left the quadrangle in the
prison building wherein the parade was held, they
left
by the same door as that by which they had entered. I do not however
think that there is any reason to doubt
the
evidence of the witness Sergeant Mabece, who was in charge of the
parade, that there was no opportunity for the complainants
to
communicate until the parade
was over.
When/
20.
When
giving evidence the appellant
testified
that before the parade started he saw that the complainants were
brought to a room from which they could see him. This
evidence was
countered by that of several state witnesses, all of whom were, for
good reason I think, believed by the trial Court.
I
agree
with the trial Court that in all material respects
the parade
was fairly conducted.
Counsel
pointed out that the form
concerning
the parade proceedings states that G.D.
pointed out the appellant without hesitation.
G.D.
testified that, in accordance with instruc
tions
she first examined all of the persons on the
parade/
......
21.
parade and then
confronted the appellant. That, in
my
judgment, does not signify hesitation.
I
believe that the factors which
I
discussed are such as to exclude the reasonable possibility of error.
As to the evidence of the appellant, I share the view of
the Court a
quo that he
was
significantly discredited by his effort to question
the
identification parade proceedings. His denial that
he
was the attacker cannot stand against the weighty
evidence of
G.D..
I
conclude that the trial Court
correctly
found it proven beyond reasonable doubt that
appellant was the
attacker.
The/
22.
The
next point raised by Counsel was that there was no satisfactory proof
that the injuries from which the deceased died were inflicted
by the
appellant. The contention was that G.D. could not say whether the
deceased was dead or fatally injured when she left the
scene, and the
possibility exists that some other person may have finished off the
deceased, after she had left. This possibility
is to
my
mind so far fetched as not to merit serious consideration.
While
the body of the deceased was already so decomposed when it was
ultimately found that the fatal wounds could
not
be clearly identified, the probability that the injuries described by
G.D. led to the death of
the/
23.
the deceased is overwhelming.
The
last point argued by Counsel
in
regard to the episode under discussion is that the appellant may have
believed that she was a willing party to sexual intercourse
with him.
I consider
that the
appellant must have realised that G.D.
did
not offer resistance to having intercourse with him
as
she feared suffering the same fate as had befallen
her late
companion.
In
my judgment the appellant was
rightly
convicted on the first two counts.
That
brings me to the conviction on
counts 3 and 4.
The
account of the two complainants
had/
24.
had
some similarity to that of G.D.. On 21 March 1981, while they were
having sexual intercourse, they were attacked by a black
man who,
after striking the complainant Kisi Mntwaphi several blows with a
stick, removed some R58
in cash from his possession.
He
next searched Kisi Mntwaphi's companion, Abigail
Malima,
for money; but it could not be clearly established
whether
he found or took anything. He then again assaulted Kisi Mntwaphi with
the stick, and disappeared. There was no real dispute
concerning the
nature of the attack, only the evidence of identification was in
dispute. Abegail Malima did not contribute anything
to this question.
Kisi Mntwaphi was sure however, that
it/
25.
it
was appellant. He identified him mainly by reference to his stature
and his scars. He also, as I said earlier, noticed that his
attacker
wore a checked shirt with red spots. As far as scars are concerned he
not only described the scar on the left side of
appellant's neck, but
also the other scar, like
an
inverted C, to which I alluded earlier. He also pointed
appellant
out at the identification parade of 21 July 1981.
The
Court a
quo
accepted Kisi Mntwaphi's evidence and rejected appellant's denial
that he was the attacker. The argument presented by
Counsel
for the appellant was mainly directed at Mntwaphi's
credibility.
He argued that the trial Court should have
found/
26.
found
his evidence to be unsatisfactory for a number of reasons. It was
(argued Counsel) inconsistent with that of Abigail. Mntwaphi
said
that he observed
appellant
in their vicinity before he and Abigail had intercourse, and
that appellant briefly disappeared from sight;
while
Abigail made no reference to anyone coming into sight before they had
intercourse. It does not however appear that she was
ever asked
whether she saw their assailant at any stage before the actual
attack. Counsel pointed out that Kisi Mntwaphi testified
that the
appellant had a full-
faced
beard at the time of the identification parade,
while
that is not borne out by the photograph taken of those on the parade.
The answer, I think, is that
while/
27.
while
appellant's beard may have been full-faced it does not appear to have
been thick, and would not necessarily have been shown
distinctly on
the photograph. It was next argued that Kisi Mntwaphi was shown to be
unreliable when he tried to account for the
fact that he saw the mark
on appellant's head although the latter wore a cap - the witness said
that at some stage during the attack
the cap moved back revealing the
scar like an
inverted C.
This version does not strike me as improbable.
Appellant's
Counsel mentioned a number of matters on which Kisi Mntwaphi was
inconsistent. The suggested contradictions appear
to me to be
more imaginary than real. I am not persuaded that the trial Court
erred in accepting
the/
28.
the evidence of
identification, and in rejecting
appellant's
evidence. In my judgment appellant was
rightly
convicted on these counts as well.
It
remains to consider the question of the sentences imposed on counts
2, 3 and 4. The
sentence
for the rape was, as I have said, 8 years'
imprisonment,
and that on the other two counts, taken together, 10 years'
imprisonment. For a first offender these sentences are
certainly
severe. There does not however appear to be any misdirection, nor was
any relevant consideration left out of account.
I cannot
say
that any of the sentences are startingly inappropriate, and there is
no basis on which I can intervene.
The/
29.
The appeals are
dismissed.
ELOFF,
AJA
KOTZé,
JA )
)
CONCUR
CILLIé, JA )