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[1984] ZASCA 131
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S v Daliwe and Another (128/84) [1984] ZASCA 131 (19 November 1984)
MHLANGENQARA APRIL DALIWE
First Appellant
(Accused No 1 in the
Court
a quo
)
ZIMINISILE MOSES MYACA
Second Appellant
(Accused No. 2 in the, Court
a quo)
and
THE STATE
Respondent
Case No: 1/84
mp
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
MHLANGENQARA APRIL DALIWE
First Appellant
(Accused No 1 in the Court
a quo
ZIMINISILE MOSES MYACA
Second Appellant
(Accused No 2 in the Court
a quo
and
THE STATE
Respondent
CORAM:
JANSEN, JOUBERT, HOEXTER, BOTHA
et
VAN HEERDEN, JJA
HEARD:
14 September 1984
DELIVERED:
19 November 1984
JUDGMEN
T
HOEXTER, JA
This
2. This is a criminal appeal. The appellants are two black men
whose ages are given in the indictment as 34 and 37 years respectively.
In the
South Eastern Cape Local Division the appellants stood trial on the following
charges: murder (count 1); robbery with aggravating
circumstances (count 2);
attempted murder (count 3); unlawful possession of a firearm (count 4) and
unlawful possession of ammunition
(count 5). Both appellants pleaded not guilty
on all counts and at the trial each was represented by counsel. At the
conclusion of
the State case neither appellant took the witness-stand and each
closed his case without adducing any evidence whatever. The trial
came before
CLOETE, JP., and two assessors. The trial Court found each appellant guilty on
the first three counts and the second
appellant also guilty on counts 4 and 5.
As part of the inquiry into the possible existence of extenuating circumstances
affecting
count 1 each appellant testified under oath. The trial
Court
3.
Court found, however, that extenuating
circumstances had not been established by either appellant. Each appellant was
(a) sentenced
to death on count 1 (murder); (b) sentenced to imprisonment for
fifteen years and ten years respectively on count 2 (robbery with
aggravating
circumstances) and count (3)(attempted murder), such sentences to run
concurrently; and (c) the second appellant was
sentenced to imprisonment for one
year on counts 4 and 5 (contraventions of Act 75 of 1969), both counts being
taken together for
the purposes of sentence.
With leave of the trial Judge each appellant appeals against the convictions
and sentences aforesaid. Their appeals were argued by
the same counsel who had
represented them,
pro De
o, at the trial. This Court is indebted to Mrs
Saunders
(counsel for the first appellant) and Mr
Horn
(counsel
for the second appellant) for their assistance.
The
4. The facts of the case fall within a small compass. The Vukuzake
Cash Store ("the shop") is situated on Stofile Street in the township
of
Kwazakele within the . district of Port Elizabeth. Stofile Street is a wide
thoroughfare consisting of a narrow tarred mid-section
flanked on either side by
a very broad sidewalk. Immediately adjacent to the shop there is a cafe.
Shoppers gain entrance to the
shop by its front door which abuts on the
sidewalk. At the rear of the shop there is a door affording access to living
quarters in
the yard of the shop. Within the shop there are electric fluorescent
lights. On the sidewalk immediately before the shop electric
light is provided
by a wall lamp some 2 /2 metres from the ground. This lamp is attached by a
bracket to the external wall of the
shop at a point roughly midway between the
front door of the shop and the adjacent cafe. On the night of Sunday 22 August
1982 two
armed assailants entered the shop, inflicted a fatal gunshot wound on
the proprietor, took
cash
5.
cash from the shop; and, in fleeing from the shop, fired a further shot at
three men pursuing them. The State case is that the guilty
persons involved are
the two appellants.
At about 8 pm on the night in question three men were standing in front of
the cafe adjacent to the shop. They were Solomon Nyanti,
Tanduxelo Ngotya and
one Mswandile. For the sake of brevity I shall refer to them collectively as
"the threesome". The threesome
was approached by a man clad in a grey coat who
was wearing a balaclava cap on his head. The man in the grey coat inquired of
them
what the closing-time of the shop was. At or about the same time there were
within the shop the deceased, a man in his seventies,
and various of his female
employees including Christina Mfengu and Deborah Jwaga. The deceased was about
to shut up shop. Before
he could do so two black men entered the shop by the
front door. One held a large knife in his hand and his
confederate
6.
confederate was armed with a handgun. The man with the knife closed the front
door of the shop behind him. Speaking in Xhosa the man
wielding the firearm
demanded money. Before the firearm was discharged first Christina and then
Deborah slipped out of the shop by
using the back-door mentioned earlier.
Shortly thereafter the man with the firearm shot and mortally wounded the
deceased and thereupon
the intruders rifled the till. I shall refer to the shot
which fatally wounded the deceased as "the first shot". The first shot was
heard
by Christina who had just telephoned the police from a room at the back of the
shop. The first shot was also heard in the street
outside by the threesome. They
had meanwhile moved away from the cafe and had walked across the tarred section
of Stofile Street.
After the first shot the threesome saw emerging from the
front door of the shop on to the sidewalk two men, one of whom was wearing
a
grey coat. The threesome gave chase whereupon
the
7
the fleeing men fired a shot ("the second shot") at
them. The second shot missed the threesome but induced them to abandon their
pursuit
of the two men.
The deceased had a son nicknamed "Stunkie". At midnight on the Sunday
following the slaying of the deceased (29 August 1982), sgt.
Ntabeni of the Port
Elizabeth . Murder and Robbery Section of the South African Police and Stunkie
paid a visit to the single quarters
at No 265 Kwazakele. They were in the
company of a man who took them to a room in which they found the first appellant
sitting on
a chair. Sgt. Ntabeni was a state witness at the trial. He testified
that when the first appellant saw him the first appellant said:
"Ons was met Basie gewees toe die ou man van Vukuzake geskiet was."
whereupon sgt. Ntabeni arrested him. "Basie" is a name by which the second
appellant is known. According to Ntabeni the first appellant
requested Ntabeni
to take him to Zwide
Township
8.
Township in order to fetch a coat belonging to the first appellant.
Ntabeni acceded to this request. A coat handed in at the trial
as exhibit 1 was
identified by Ntabeni as the coat in question. From Zwide the party proceeded to
the shop at Vukuzake where Ntabeni
showed the first appellant to Deborah Jwaga.
On the following day (Monday 30 August 1984), and at a house pointed out to him
by the
first appellant, sgt Ntabeni arrested the second appellant.
Apart from sgt Ntabeni there testified as witnesses for the prosecution,
inter alios,
Christina Mfengu, Deborah Jwaga, Nkosinathi Jwaga, Tanduxelo
Ngotya, Solomon Nyanti, the deceased's son Stunkie and certain police
officers
involved in the holding of identification parades to which reference will be
made hereafter. It is necessary next to consider
the effect of the testimony of
those witnesses upon whom the trial Court chiefly relied in convicting the
appellants.
It
9. It is convenient to begin with the witness Solomon Nyanti.
According to this witness the man in the grey coat who addressed the
threesome
outside the shop wore his balaclava rolled up in such a fashion that his face
was exposed. In making his inquiry, moreover,
the man in the grey coat stood
directly in front of Nyanti. When the man spoke to the threesome Nyanti noticed
that he was toothless
and that his cheeks were sunken. Nyanti said that when
they heard the first shot they stopped in their tracks, directly opposite
the
front door of the shop. The two persons who emerged therefrom wore balaclavas
covering their faces. Nyanti nevertheless recognised
one of the two men. He said
in his evidence in chief -
"Ek het hom herken aan die grys jas wat hy aangehad het toe hy ons gevra het
om hoe laat die winkel toemaak."
Nyanti said that the threesome pursued the two men until the latter fired at
them. In response to the second shot
the
10.
the threesome retreated to the shop. On 9 September 1984 Nyanti attended a
police identification parade at which he pointed out the
second appellant as the
man who had inquired of the threesome when the shop was due to close. In what
fashion Nyanti so pointed out
the second appellant will be considered presently.
In connection with the events of this identification parade Nyanti was closely
cross-examined by counsel for the second appellant. In a brief re-examination
the following question and answer appear from the record:
"Om watter rede net jy vir nr. 2 uitgewys?
Ek het beskuldigde nr. 2 herken as die persoon wie met ons gepraat het daar
naby die winkel wat sonder tande was en wat sy balaclava
op sy kop gehad het en
dit laat hang het bokant die oë."
The identification parade in question was described to the trial Court by
det. sgt. Fourie, who had recorded in writing what transpired
thereat. Fourie
said that Nyanti was the fifth person summoned to view the parade. The
reactions
of
11.
of Nyanti was described thus by Fourie in his evidence in chief:
"Die getuie is gevra om die verdagtes indien op die parade uit te wys deur
hulle skouers aan te raak, wie [sic] hy op 22 van die agste
maand 1982 om
ongeveer 20h30 in Vukuzake winkel sien staan het en gevra het hoe laat maak die
winkel toe. Die getuie het voor die
parade gestaan en gevra dat die parade hulle
monde
oopmaak. Die getuie wys toe die verdagte op nr. 3 uit.. Dit is Ziminisile
Myaca, beskuldigde nr. 2."
In cross-examination it was suggested to Fourie by counsel for the second
appellant that at the parade Nyanti had betrayed uncertainty;
and in particular
that Nyanti had walked up and down several times before the row of people before
making his identification. Fourie
repudiated this suggestion. He said:
"Hy het van links na regs op die parade beweeg, as hy heen en weer geloop
het, sou ek dit aangeteken het."
According
12. According to the witness Christina Mfengu,
she first noticed the first appellant on the evening in
question at a
stage when there were still customers in the
shop engaged in making
purchases. Christina said that at
that stage the first appellant was standing
within the
frame of the front door to the shop. He was smoking and
looking
at the customers within the shop. Although he had
a balaclava cap on his head
it was rolled up to a position .
above his ears. The witness was unoccupied
at the time
and she had the opportunity of observing the first
appellant
in this situation for some fifteen minutes. Christina
told the
trial Court that as the deceased left his place
behind the shop counter and
moved towards the front door
in order to close it, two men entered the shop
by the
front door. The man who led the way proceeded to the
shop counter. He wore a long greyish coat and a balaclava
which left
uncovered only his eyes and his nose. The man
following also wore a coat and a balaclava; and save for
his
13. his eyes and nose his face likewise was obscured. He held a long
knife in his hand. Christina said that her attention was concentrated
on this
man, and that he remained at the front door until she ran from the shop.
Meanwhile, so testified Christina, the other intruder
who had walked up to the
counter, spoke in fluent Xhosa asking "Where is it?". At the same time he
produced a handgun, whereupon
Christina moved backwards and made a quick exit
from the shop through the door at the rear. She reported to Nkosinathi Jwaga
that
there were "tsotsis" in the shop. According to Christina she noticed that
the two intruders were not white men but while they were
in the shop she had
been unable to see whether they were Africans or Indians. Before the night in
question the first appellant was
a stranger to her, but at an identification
parade held on 9 September 1982 she had pointed him out. It appears that the
first appellant
has a physical
peculiarity
14. peculiarity in the form of a raised scar or weal above
his right cheekbone and immediately below the corner of his right eye.
The
learned Judge-President described this facial feature of the first appellant as
"obvious and prominent." To this distinctive
feature Christina alluded for the
first time in cross-examination. She was adamant, however, that the intruder
with the knife was
the same man who had stood earlier in the doorway of the
shop. I quote from her cross-examination:
"Toe ek kyk na die persoon wat inkom en die deur toemaak het ek gesien dat
ja, die persoon is dieselfde een wat ek gesien het voor
dit daar by die deur
staan en na binne die winkel kyk.
So u het hom uitgeken aan sy oë en sy neus
die tweede keer toe jy hom goed dopgehou het?
Die oë - ek het hom aan die oë, die neus, die merk, sy gesig, kleur
en sy lengte."
It was put to Christina by Mrs
Saunders
that first appellant was not
at the scene of the crime on the night in question.
The . ..
15. The witness insisted that he had been there. Christina told
the trial Court that after the intruders had departed it was established
that
some R400 was missing from the till.
Det. W/O Strydom of the South African Police was in charge of an
identification parade at which Christina pointed out the first appellant,
and
the proceedings thereat were recorded by him in writing. He says that Christina
was asked to point out the person, should he
be present on the parade, whom she
saw entering the shop "met wapens" at approximately 8.30 pm on the night in
question. Strydom
described the reactions of the witness as follows:
"Sy loop van links na regs en terug en gaan dan en wys nr. 5 uit. Dit was
binne een
minuut gewees Nr. 5 is beskuldigde nr.l
nou voor die Hof."
The witness Deborah Jwaga gave an account of the entry into the shop of the
two intruders which in essential respects coincided with
the version of
Christine.
Deborah
16.
Deborah described the colour of the coat worn by the. intruder who carried
the knife and who closed the front door as "greenish or
bottle-green"; the
colour of the coat worn by the other man was grey, said Deborah, and she
identified it as exhibit 1 before the
trial Court. Deborah testified that on a
subsequent occasion, late at night, sgt. Ntabeni brought a man to her and asked
her whether
this man "was the one". She says that she recognised this man as the
intruder who had come into the shop with the knife in his hand
and had closed
the door. She pointed out the first appellant as being the man in question.
Nkosinathi Jwaga is the husband of Deborah Jwaga. Having been alerted by
Christina after the latter had made good her escape, Nkosinathi
hurried to the
shop and peeping from the back door he witnessed the actual shooting of the
deceased by the intruder carrying the
firearm. Nkosinathi confirmed that both
intruders wore
balaclava
17.
balaclava caps; but he was so shocked by what he had witnessed that he failed
to notice any further details , concerning the dress
of the intruders.
The evidence given by sgt. Ntabeni in regard to the circumstances surrounding
the arrest of the first appellant was confirmed by the
testimony of the
deceased's son Stunkie. Concerning the words uttered by the first appellant at
the time Stunkie testified that the
first appellant said:
"Ek was saam met Basie gewees"
and that he went on to speak of -
" die dood van die ou man asook die
roof op 'n ou man te Vukuzake".
Stunkie corroborated sgt. Ntabeni's account of the first appellant's request
for his coat, the journey to Zwide to fetch the coat;
and the further journey to
Stunkie's parental home behind the shop. Stunkie also confirmed
the
18
the evidence of Deborah relative to her identification of
the first appellant when the latter was brought by Ntabeni to Deborah.
The last witness for the prosecution was det. sgt. Els, the investigating
officer in the case. He told the trial Court that after
he had warned the second
appellant the latter stated that he had an alibi. The following passage in the
evidence in chief of Els
indicates the nature of the alibi mentioned to Els by
the second appellant:
"Wat was sy alibi gewees? Sy alibi was
dat hy by sy oom Elliot, te 700 Erf en Diens was te Kwazakele.
Het u dit ondersoek hierdie alibi? Dit is korrek en ek kon geen stawing vind
nie."
During cross-examination by counsel for the second appellant Els told the
trial Court that in investigating the alibi mentioned to
him by the second
appellant he had not taken
the
19.
the latter with him and that he had been accompanied only by a black
interpreter whose identity he was not then able to recall. After
the State and
defence had closed their respective cases, but before argument, the trial Judge
deemed it necessary to call as a witness
the second appellant's uncle,Elliot.
The learned Judge inquired of Elliot whether at about 8.30 pm on 22 August 1982
the second appellant
had been in the company of the witness. Elliot replied that
at that particular time the second appellant had been in his (Elliot's)
house
after the funeral of Elliot's child. Elliot was then subjected to a lengthy
cross-examination by counsel for the State, at
the conclusion of which the trial
Judge considered it necessary to recall det. sgt. Els. In response to questions
by the learned
Judge-President Els gave the following account of what had taken
place between him and Elliot at the time when Els had investigated
the second
appellant's alibi -
" die ....
20
"....die doel van my besoek was om vas te stel of beskuldigde Nr. 2 wel by
Elliot was en ek het hom gevra of die man daar was en ,
hy het net vir my gese
'ek weet niks van die man af nie, ek kom ook nie hof toe nie, en ek maak nie 'n
verklaring nie.'
'Hy het 'n bale aggressiewe houding ingeneem toe ek by die huis was."
From further questions put to Els it emerged that his visit to Elliot had
taken place shortly after the robbery at the shop. This
prompted the learned
Judge-President to ask Els whether any written record of the visit to Elliot
might not exist, and in this connection
Els undertook to consult his
pocket-book. The further hearing of the trial was then postponed. At the resumed
hearing counsel for
the State informed the Court that Els had found his
pocket-book covering the relevant period and that the interpreter who had
accompa=
nied Els upon his visit to Elliot was also present at Court. Having
refreshed his memory from his pocket-book Els told the trial
Court that during
the early morning of
27 October 1982 ......
21.
27 October 1982 he had fetched det. const. Oliphant from. his
home and that shortly after 6 am they had spoken to Elliot at the latter's
home.
He was informed by Elliot:
"....dat Basie lieg en dat hy nie sal saamgaan om 'n verklaring te maak
nie."
The Court then called const. Oliphant who confirmed the substance of the
conversation between Elliot and Els as deposed to by the
latter. Having regard
to such further evidence by Els, and the evidence of Oliphant, the learned
Judge-President found it necessary
to recall Elliot. The evidence of Els and
Oliphant was put to Elliot and he was asked to comment thereon. Elliot denied
that their
evidence was true.
In the Court below much cross-examination and a good deal of argument on
behalf of the appellants was directed at establishing that
the identification
parades
at
22. at which the appellants were pointed out had been marred by
irregular and unfair procedures. So far in this judgment there has
been reviewed
the evidence of those State witnesses upon whom the trial Court relied. Here
brief mention should be made of one State
witness, Tanduxelo Ngotya, whose
evidence was rejected by the trial Court. This witness, it will be recalled, was
a member of the
threesome on the sidewalk in front of the . shop. In
cross-examination Tanduxelo conceded the commis-
sion of various
irregularities in the holding of both the identification parades in question. In
particular there was extracted from
Tanduxelo an admission that in a passage
near the room in which the identification parades were held the appellants were
displayed
beforehand to the identifying witnesses and the latter were informed
by the police that the appellants were the suspects. This evidence
by Tanduxelo
was completely contradicted by the witnesses Christina Mfetu, Solomon Nyanti and
all the police
witnesses
23
witnesses who testified in regard to the conduct of the identification
parades. The trial Court accepted the evidence of the witnesses
just mentioned
and rejected the evidence of Tanduxelo whom it described as an unreliable and
unacceptable witness. It is not necessary
to consider the evidence of Tanduxelo.
in any detail. Suffice it to say that Tanduxelo was manifestly an unsatisfactory
and untruthful
witness upon whose testimony no reliance whatever can be placed.
The trial Court found that the identification parades in question
had not been
vitiated by any irregularity. On all the facts of the present case that finding
is, in my view, an unassailable one.
An examination of the record reveals a number
of
24.
of minor imperfections in the evidence of
Christina Mtefu and Solomon Nyanti, but none of these was, I think, overlooked
by the trial
Court. A few examples will suffice. During her evidence Christina
had some difficulty in describing the colour of the coat worn by
the intruder
identified by her as the first appellant. Initially she was hesitant to name any
colour at all. Later she described
the colour as being "greyish". This evidence
differs from the evidence of Deborah who said that the man with the knife wore a
green
coat. In truth the colour of the coat in question appears to be somewhat
nondescript. The judgment of the trial Court describes the
coat as having an
"in-between" or a "greenish/greyish" colour.. I agree with the view expressed by
the learned Judge-President that
little in the case turns on Christina's
evidence as to the colour of the coat. Again, at one stage during his
cross-examination Solomon
Nyanti made a mistake by identifying exhibit 1 as the
coat worn by the second
appellant
25.
appellant. Immediately thereafter, however, he corrected himself and made
plain that the man who had addressed the threesome on the
sidewalk had worn a
grey coat. Despite such blemishes as may be noticed in the evidence of these two
State witnesses, each made a
distinctly favourable impression upon the trial
Court. The trial Court recorded its impression that Christina was an intelligent
person and a truthful, fair and convincing witness. The learned Judge further
observed that Christina had had an adequate opportunity
for observing the
episode in the shop and of identifying the intruder with the knife. Solomon
Nyanti was described in the judgment
of the Court
a quo
as being
intelligent and alert, and a candid witness who stood up well to
cross-examination. That Nyanti fared well in cross-examination
is, I think,
fully borne out by the record.
It was not suggested that the trial Court had erred in its conclusion that in
relation to (a) the
slaying
26.
slaying of the deceased (b) the robbery and (c) the shooting at the
threesome, the actual miscreants involved had acted with common
purpose. Before
this Court the main argument addressed to us by counsel for each appellant was
that his-failure to testify could
go into the scale against him only if at the
close of the State case the prosecution had made out a
prima facie
case
against him. On behalf of the appellants it was properly conceded that since
against each appellant there was direct evidence
of the commission of the
offences by him, if such direct evidence were sufficiently cogent to establish a
prima facie
case, the appellant's failure to testify would
ipso
facto
reinforce such direct evidence. The chief contention advanced on
behalf of each appellant was that upon a proper appraisal of the
matter the
evidence adduced by the State was so lacking in cogency as not to amount to a
prima facie
case requiring an answer. It was stressed that the case
against the first appellant hinged largely on the sufficiency of the
identification
27.
identification by the single witness Christina; and
that
the case against the second appellant depended exclusively on the
sufficiency of the identification by the single witness Nyanti.
I deal first with the case against the first appellant. In weighing the
position of the first appellant the trial Court took into
consideration against
him neither Deborah's spontaneous identification of the first appellant when on
the night of his arrest he
was displayed to her by sgt. Ntabeni, nor the fact
(to which both Ntabeni and Stunkie testified) that the first appellant had
failed
to evince any reaction to such identification of him by Deborah. The
trial Court, exercising caution, disregarded the evidence of
Deborah's
identification of the. first appellant. It is indeed undesirable to take to a
po= tential witness to the commission of
a crime a suspect who has been seen by
such witness only once, in order to determine whether the suspect is connected
with the commission
of
the .
28.
the alleged offence. See:
R v Madudube,
1958(1) SA 297 (0). However,
the trial Court was satisfied that Christina was a credible and reliable
witness; and it further accepted
the evidence of sgt. Ntabeni and the witness
Stunkie as to the admissions made by the first appellant at the time of his
arrest.
In my judgment these admissions significantly strengthen the case
against the first appellant. At face value the words attributed
to the first
appellant serve to establish a clear link between the first appellant and the
crimes committed in and about the shop
on the night in question.
For the first appellant it was urged that inasmuch as some brief interval of
time separated Christina's observation of the man standing
in the doorway and
the actual entry into the shop by the intruders, there existed a risk that
Christina might simply have assumed
that the
intruder
29.
intruder with the knife was the same man whom she had earlier seen standing
in the doorway. The answer to this argument is that the
evidence of Christina
that she positively identified the intruder with the knife as the man she had
observed in the doorway stands
uncontradicted, and no particular reason for
doubting such evidence exists. Next it was suggested that something sinister
should
be seen in the fact that Christina's reference to the distinctive feature
of a scar below the first appellant's right eye was made
for the first time in
cross-examination. But cross-examination was pertinently addressed to this very
feature of her evidence and
there is no reason to suppose that the trial Court
overlooked this matter in trying to assess Christina's merits as a witness. Then
it was said that Christina's version is suspect on the ground that she estimated
that some five minutes elapsed between the entry
of the intruders until her
escape through the back door
to
30
to the shop, whereas, so the argument proceeds, it is clear that the whole
episode to which she was a witness could hardly have lasted
more than a few
seconds. I am not swayed by this argument. It is, I think, a matter of common
knowledge that in situations of stress
estimates of time tend to be inaccurate.
Giving due attention to everything urged by counsel for the first appellant,I am
not persuaded
that any substantial flaw mars Christina's evidence. In my
judgment the evidence on which the Court below properly relied represented
a
strong
prima facie
case against the first appellant and his failure to
testify reinforced the case against him sufficiently to afford proof beyond
reasonable
doubt of his guilt at the end of the trial. In my view the first
appellant was rightly convicted.
In the case of the
second appellant, as already pointed out, the State case rests solely on the
accuracy
31
accuracy and reliability of the pointing out of
him by the sole witness Nyanti. On behalf of the second appellant it was urged
that
Nyanti was prompted to point out the second appellant at the identification
parade for no reason other than that the second appellant
was toothless. Whether
or not Solomon was moved to point out the second appellant on this narrow ground
is a question of critical
importance in the case. Logically the position was
correctly formulated thus by Mr
Horn:
Were the intruder armed with the
firearm in fact toothless, the fact of the second appellant's toothlessness
hardly excludes the
inference that some other toothless man may have been the
intruder; or alternatively: assuming that the intruder with the firearm
were a
toothless man, then while the toothlessness of the second appellant is
consistent with the second appellant having been the
intruder, it cannot sustain
the conclusion that the second appellant was in fact the armed intruder as the
only reasonable inference
to be drawn.
Now
32.
Now it is true that in cross-examination Nyanti conceded
that at the identification parade in question the second appellant was the
only
toothless person. But this concession by the witness does not, I think,
necessarily - or even probably - entail the further
consequence that it ' was
this physical peculiarity alone which induced Nyanti to point out the second
appellant. It is important
to notice, in the first place, that during
cross-examination it was never specifically suggested to Nyanti that in pointing
out the
second appellant he had relied solely on the fact of such toothlessness.
As mentioned earlier in this judgment, in re-examination
Nyanti was specifically
asked for what reason he had pointed out the second appellant at the parade.
Nyanti answered this question
by saying that he recognised the second appellant
as the toothless person who had spoken to the threesome at the shop. In these
circumstances,
so I consider, it is mere speculation to
suggest
33.
suggest that in pointing out the second appellant Nyanti relied only and
exclusively on the second appellant's toothlessness. Bearing
in mind, further,
the trial Court's assessment of Nyanti as an alert and intelligent person, it
should be remembered that the identification
parade was held little more than a
fortnight after the robbery at the shop had taken place. In considering whether
the prosecution
made out a
prima facie
case against the appellant it is
moreover not out of place to examine the precise line of attack upon Nyanti's
evidence upon which
the second appellant's counsel embarked. In the course of
such cross-examination the possibility of irregular procedures at the
identification
parade was vigorously explored with the witness, but it appears
not to have been directly put to Nyanti that he was mistaken in pointing
out the
second appellant as the man who had addressed the threesome on the sidewalk on
the night in question. The case of the second
appellant admittedly presents
greater difficulty
than
34. than that of the first appellant. Upon anxious conside=
ration of all the facts, however, I remain unpersuaded that
the trial
Court was wrong in concluding that after the
prosecution had led its evidence
the case against the
second appellant clearly called for an answer by him;
and
that by reason of his silence there was, at the end of the
trial,
evidence beyond reasonable doubt of his guilt.
In a further submission advanced on behalf of the second appellant his
counsel urged that in any case the trial Court had misdirected
itself in regard
to the matter of the second appellant's alibi. By way of preface I mention that
the second appellant's uncle, Elliot,
proved to be a thoroughly mendacious
witness. His evidence was rightly disbelieved by the trial Court. The submission
of Mr
Horn
in regard to the alleged misdirection is summarised thus in
the written heads of argument:
"In the instant case the Court
a quo
deemed it necessary to call Elliot after the
close
35.
close of the State case. Having heard Elliot's evidence who
supported the appellant's alibi defence, the Court
a quo
then proceeded
to
mero motu
conduct its own enquiry into the validity of this defence.
In its endeavour the Court
a quo
called Elliot; then in rebuttal sgt. Els
(twice), constable Oliphant, sgt. Els again and lastly Elliot again in order to
finally
destroy his testimony."
In the Court below counsel for the second appellant advanced a like argument
in support of his application for leave to appeal. In
response to such argument
the learned Judge-President remarked as follows in his judgment on the
application for leave to appeal:
"It was not the purpose of the Court to call any rebutting evidence to
counter what Elliot
had said in the witness-box The
purpose of it was to get on full record the conversation which had taken
place with Elliot, because all that was before the Court
was that the
investigation into the alibi was incon= clusive and did not substantiate the
alibi. That was a matter for the Court
to judge.
Having called Elliot it was necessary in the circumstances to hear, in the
interests of
justice
36.
justice, the full story of what transpired at that
interview."
Now
sec 186
of the
Criminal Procedure Act, 51 of 1977
, invests a trial Court
with a wide power to call witnesses of its own accord. In my view it cannot be
said in the instant case that
the developments in the trial subsequent to the
first occasion on which Elliot was called as a witness by the Court resulted in
a
failure of justice or that the second appellant was in any way prejudiced
thereby. Sgt. Els was the very last witness for the prosecution.
Not to a single
State witness called before Els had counsel for the second appellant suggested
even remotely that at the relevant
hour on the night of 22 August 1982 his
client's presence at a place other than the shop in Stofile Street made it
impossible for
second appellant to have committed the crimes with which he was
charged. When sgt. Els testified, however, the fact emerged that
after the
arrest of the second appellant
the
37.
the latter had mentioned to him the alibi described earlier
in this judgment. Notwithstanding such evidence by Els the second appellant
was
content, upon closure of the State case, to let the matter of his alibi rest
there. Can it be said that as a result of the evidence
adduced from the
witnesses called and recalled by the Court after closure of the defence case the
position of the second appellant
was any weaker than it had been after he had
closed his case? I think not. The second appellant closed his case without
seeking either
through cross-examination of the State witnesses or by adducing
any evidence of his own to establish that on the night of the crime
he had been
with Elliot. Inasmuch as the second appellant himself elected not to raise at
his trial the defence of an alibi the fact
that the later evidence complained of
demonstrated to the trial Court that an alibi previously asserted by the second
appellant on
a different occasion was a spurious one
did
38.
did not, so I consider, in any way serve to
supplement the State case or weaken the position of the second appellant at his
trial.
After the witnesses called by the trial Court had been heard the
evidential material by reference to which the possible guilt of
the second
appellant fell to be determined was exactly the same evidential material to be
weighed by the Court when the second appellant
closed his case: the sufficiency
of the identification of the second appellant by the witness Nyanti.
For the aforegoing reasons the appeal of both
appellants are dismissed.
G G HOEXTER, JA PP
JANSEN, JA ) JOUBERT, JA ) Concur BOTHA, JA ) VAN HEERDEN, JA)