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[2010] ZAFSHC 116
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Jama and Another v S [2010] ZAFSHC 116 (12 August 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A119/2009
In
the matter between:-
MOHLOLO JAMA
…...................................................................
Appellant
1
ABE
LEBAKENG
…....................................................................
Appellant
2
versus
THE STATE
…...........................................................................
Respondent
CORAM:
MOCUMIE
et
MOLEMELA, JJ
HEARD
ON:
2 AUGUST 2010
_______________________________________________________
DELIVERED ON:
12
AUGUST 2010
JUDGMENT : APPEAL
_______________________________________________________
MOCUMIE, J
[1]
The appellants appeared on two charges of robbery in the Magistrate
Court, Ficksburg. They were convicted as charged on 4 June
2009 and
each sentenced to three (3) years imprisonment on each count. They
now appeal against their conviction only with leave
of the court
a
quo
.
[2]
Mr. Pretorius, on behalf of the appellants, submitted that in essence
the trial court erred by accepting that the State had
proved its case
beyond reasonable doubt and rejecting the appellants’ version
as not reasonably possibly true.
[3]
The facts of this case are simple. The two complainants, a husband
and wife, were robbed by a group of four men of R1 500,00
and a
handbag on the night of 8 November 2008 on their way back from
Lesotho. When a police van emerged, the assailants ran away.
According to both witnesses each one was robbed seven to fifteen
paces away from the other by a set of robbers. Thus each one could
only identify one of the assailants who attacked them.
[4]
The first complainant, the husband, identified his assailant by his
light complexion. When a person was arrested, he then saw
his face
and told the police that it was his assailant. The second
complainant, the wife, identified her assailant by his dark
complexion and his tall height. She too saw the face of a person
arrested when the police brought him into the police van. Both
complainants gave no other description of their assailants because
the area where they were accosted was dark; it was the first
time
they met the assailants; the incident happened quickly and they were
terrified for their lives.
[5]
The appellants denied that they committed these robberies from the
outset. At the scene where they were arrested they were refused
to
say anything and were pepper sprayed when they tried to explain their
side of the story. According to them they were from a
traditional
ceremony and under the influence of liquor. They came across two
people. Just as they were passing them one of the
two made remarks to
the effect that they are the “tsotsi’s”, robbers,
that had just robbed them. Just then a
police van emerged. At that
stage they were arguing and challenging the two witnesses about why
they called them robbers. The complainants
there and there told the
police that they were the alleged robbers.
[6]
It is common cause between the state and the defence that the
complainants were robbed by a group of four men on the night in
question. The only question is whether the complainants indeed
pointed out the correct people as the trial court found.
[7]
The evidence of the two complainants is based on complexion,
unidentified clothing and what emerged during cross examination,
the
faces of the assailants, without any particular description. From the
evidence it was not clear beyond reasonable doubt that
the two
appellants were the only people who were in the area on the night in
question as also testified by both the complainants
and the police
officer. It is highly improbable that the appellants having robbed
the two complainants would have remained at the
scene when their
counter parts fled after committing such a serious offence. The items
taken from the complainants were not even
found in the appellants’
possession but some distance away from where they were accused of
having robbed the complainants
a few seconds ago. As was held in
S
v Charzen
2006 (2) SACR 143
(SCA) at 149g-h:
“
There
was no physical evidence: not a fingerprint, not a recovered
cellphone, nor wallet, nor purse …nothing to connect the
accused to the crime and thus provide a measure of objective
assurance against the pitfalls of subjective identification.”
[8]
The appellants’ version that they were at the wrong place at
the wrong time is more probable than that of the two complainants.
It
is highly improbable in these circumstances that the complainants
could have identified their assailants. Their evidence shows
that
they did not have the time and opportunity to do so. The description
they gave of their assailants is general and is not supported
by any
extraneous evidence.Moreso as both are single witnesses in the
identification of their respective assailants.
[9]
In my view the trial court did not caution itself against the
possibility of the witnesses’ fallibility in identifying
the
appellants in line with the approach set out in
S v Mthetwa
1972 (3) SA 766
(A) at 768 A - C and in
S v Charzen
supra at 147i-j where the Supreme Court of Appeal states:
“
[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...”
“
[19]
… The greatest assurance of guilt must lie in such [physical]
evidence, rather than in identification on its own, which,
as this
case shows, can be beset by error and misdescription and doubt, in
which case, possibly and even presumably, guilty persons
must walk
free.”
[10]
On this basis alone the appeal ought to succeed.
[11]
In the circumstances the following order is made:
ORDER:
The
appeal against the conviction in respect of both appellants
succeeds.
The
conviction and sentence in respect of both appellants are set aside.
_______________
B.C.
MOCUMIE, J
I concur.
_________________
M.B. MOLEMELA, J
On behalf of the
appellant: Mr. J. Pretorius
Instructed by:
Justice Centre
BLOEMFONTEIN
On behalf of the
respondent: Adv. C.F. Steyn
Instructed by:
Director of Public
Prosecutions
BLOEMFONTEIN
BCM/eb