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2009
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[2009] ZAGPPHC 244
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Maziya v S (A 951/07) [2009] ZAGPPHC 244 (14 May 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE NO.: A 951/07
DATE:14/05/2009
In
the matter between:
JAMES
THOMAS MAZIYA
….................................................
APPELLANT
and
THE
STATE
….........................................................................
RESPONDENT
JUDGMENT
MAKGOKA,
AJ:
[1]
The appellant stood trial in the district court, Meyerton, on two
counts, namely, assault with intent to do grievous bodily
harm and
theft. The appellant was convicted on both counts and referred for
sentencing in the regional court, Vereeniging, where
the appellant
was sentenced as follows: 6 years imprisonment on count one and 1
year imprisonment on count 2. The regional court
ordered the sentence
in count 2 to run concurrently with sentence imposed in count 1.
[2]
The appellant was represented throughout the trial by different legal
representatives. The regional court, before sentence,
referred the
matter to the High Court for special review in terms of section
116(3), as the regional magistrate was in doubt as
to the correctness
of the convictions. On 24 August 2007 Murphy J found the proceedings
to be in accordance with justice. The Honourable
Judge also noted
further that there was no adequate explanation for the failure to
lead or call for evidence in respect of the
alibi defence as raised
by the appellant during the trial.
[3]
With leave of the regional court, the appellant approached this court
on appeal against the conviction on both counts.
[4]
The evidence led by the State, which culminated in the conviction of
the appellant, was tendered by three witnesses, namely
Anna Fransiena
Petronella Jakcba Grobler (jnr), Anna Fransiena Petronella Jakoba
Grobler (snr), as well as Humprey Bagula.
[5]
From the evidence of the complainant and her mother, Grobler (snr),
it is common cause that on 24 January 2007 the complainant
was
assaulted with intent to cause grievous bodily harm, as a result of
which she sustained some injuries. With regard to the second
count,
it is common cause that the complainant on this count, Mr Bagula,
lost an amount of R190, which amount was stolen together
with his
bag.
[6]
As there was no dispute that the complainants were assaulted and
stolen from, respectively, as testified by them, the crisp
issue to
be decided on appeal relates to the identity of the culprit/s.
[7]
The genera! guidelines relating to evidence of identity were laid
down by the then Appellate Division in State v Mthethwa 1972(3)
SA
766 [A] at 768, wherein Holmes JA articulated the guidelines thus:
"Because
of the fallibility of human observation, evidence of identification
is approached by the Courts with some caution.
It is not enough for
the identifying witness to be honest. The reliability of his
observation must also be tested. This depends
on various factors,
such as lighting, visibility and eyesight; the proximity of the
witness; his opportunity for observation, both
as to time and
situation; the extent of his prior knowledge of the accused; the
mobility of the scene; corroboration, suggestibility;
the accused’s
face, voice, build, gait and dress; the result of identification
parades, if any; and of course, the evidence
by or on behalf of the
accused. The list is not exhaustive. These factors, or such of them
as are applicable in a particular case,
are not individually
decisive, but must be weighed one against the other, in light of the
totality of the evidence, and the probabilities.
"
See
also State v Nango 1990 SACK 450 [A], where it was held that:
“
Wanneer
'n beweerde misdadiger se identifikasie by ‘n strafverhoor in
geskil is, draai alles om die eerlikheid van die uitkennende
getuies
en die betroubaarheid van hulle waamemings. ”
[8]
Applying the factors set out in Mthethwa to the first count, the
following are worth noting: although the incident occurred
during
broad day-light, the scene was quite mobile, at least as regards the
start and duration of the attack. Up to that point,
the complainant
had no reason to particularly observe her attacker, as the attacker
appeared friendly and helpful Once the attack
commenced, the
complainant did not have sufficient time to observe the assailant.
She was scared and fell short of breath; the
complainant had no prior
knowledge of the assailant; and the fact that no identity parade was
held. The same goes for Grobler (snr).
The fact that the appellant
was later pointed out in a group of people becomes irrelevant. Even
if one accepts the evidence of
both witnesses that the appellant was
the only one who tried to run away when he was approached, does not
take the issue any further.
[9]
With regard to the second count, the evidence against the appellant
was as follows: John Masuku testified that he was seeing
the person
who stole Baguia’s money, for the first time on the day of the
incident. The person was sitting under a tree with
another person
drinking liquor. Suddenly the said person stood up and grabbed the
complainant’s bag and ran away with it.
He then chased the
person, using his bicycle, but the person threatened him with a beer
bottle and disappeared into a bush. He
went back to the complainant.
[10]
According to the complainant, he later went to the police station,
where he was told that “the guy who took his documents
is
arrested.” He also saw the person who stole his bag for the
first time on the day of the incident.
[[1]
The appellant’s defence was that of an alibi. The appellant
provided the court with sufficient particulars for his alibi
to be
followed. He gave the name and place of his employment before his
arrest, where he testified he was on the two dates of the
crimes. He
further gave three names of people who were with him on those
particular days. It should at all times be kept in mind
that the
appellant does not bear any onus to prove his alibi. The duty to
prove an accused’s guilt beyond reasonable doubt,
rests on the
State throughout the trial.
[12]
The regional magistrate, in his referral in terms of section 116(3)
of the Act, expressed himself as follows with regard to
how the
appellant’s alibi was treated in the district court.
“
Wat die alibi betref het die
beskuldigde vanuit die staanspoor sy verweer openbaar. Hy is in
hegtenis gehou, en op sy eie was daar
niks wat hy kon doen om kontak
te behou met die werkgewer nie. Dit blyk dat nog die
regsverteenwoordiger, nog die vervolgingsgesag,
ndg die landdros,
enigiets gedoen het om te sorg dat die alibi ondersoek word en die
relevante getuienis voor die hof geplaas word.
Die beskuldigde kon
met min moeite die bouperseel waar hy gewerk het aan die
ondersoekbeampte gaan uitwys, sodat vasgestel kon
word wie die
werkgewer was en die nodige getuienis voor die hof geplaas word.. ”
[13]
The regional magistrate could not have articulated the position more
aptly. In his judgment, the magistrate did not address
the alibi
raised by the appellant. In my view that constituted a material
misdirection on the part of the magistrate. On the facts
of the case,
and in particular given the doubt expressed above relating to
identification, it can not be safely held that the alibi
of the
appellant was not reasonably possibly true,
[14]
Given the totality of the factors in the appeal, I am of the view
that the conviction of the appellant on both counts is not
sustainable.
[15]
As a result I propose the following order:
[15.1]
The appeal against conviction succeeds;
[15.2]
The conviction on both counts is set aside.
TM
MAKGOKA
ACTING
JUDGE COURT, PRETORIA
I
agree.
C.P
RABIE
JUDGE
OF THE HIGH COURT. PRETORIA