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[2009] ZAFSHC 94
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Motaung v S (A191/2007) [2009] ZAFSHC 94 (25 September 2009)

FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : A191/2007
In
the
matter
between:-
JOHANNES
HLALELE MOTAUNG
Appellant
and
THE
STATE
Respondent
CORAM:
KRUGER,
J
et
VAN
ZYL, J
JUDGMENT:
KRUGER,
J
_______________________________________________________
HEARD
ON:
14
SEPTEMBER 2009
_______________________________________________________
DELIVERED
ON:
25
SEPTEMBER 2009
[1]
The
appellant was convicted in the regional court, Welkom on seven counts
of robbery with aggravating circumstances and sentenced
to fifteen
years on each count. The sentences on counts 1, 2, 3, 4, 6 and 7
were to run concurrently, which means that the effective
sentence was
thirty years’ imprisonment. All the robberies were committed on
the same day and place. Leave to appeal to this
court against the
convictions and sentences was granted by the trial magistrate.
[2] On
20 March 2005 about
36
women, belonging to a society, gathered in Welkom. Two armed robbers
entered and robbed six women of money and personal belongings
(Counts
1 – 4; 6 – 7). The robbers left and robbed the complainant on
count 5 of his motor vehicle and fled. The total amount
of cash
taken was in excess of R18 000. The Mazda motor vehicle was worth R4
500, and the owner recovered it in the same condition
two days after
the robbery.
[3] The appellant places
identity in dispute and contends that he was wrongly identified as
one of the robbers by the witnesses.
There is no other evidence than
the oral evidence linking appellant to the crimes. The crimes were
committed on 20 March 2005
and appellant was convicted on 3 May 2005
after being identified at the police station. An identify parade was
held on 25 July
2005.
[4]
Three
witnesses identified the appellant on the identification parade:
Yvonne
Hlongwane
[5]
Yvonne
Hlongwane testified that on 20 March 2005 at about 16h00 in the
afternoon she was present at a meeting of a group of ladies
of about
36. It was a Sunday. The ladies were collecting money on the table.
They comprise different groups and put in various
amounts ranging
from R250 to R3 000 per week or month. Each group gets a chance to
go to the table so that their money can be
written down. While they
were busy collecting the money she saw the appellant and a shorter
male approaching. The shorter person
went straight to the table.
The accused came to the witness and blocked and assaulted them and
said they must take out the money.
They started screaming. The
accused blocked them with his hands spread out. He assaulted them
with a knob-stick. He assaulted
Yvonne all over her body, twice.
She took out her handbag to take out money, because the accused said
they must take out money
and cellphones. Her spectacles fell and
broke due to the shock. Yvonne handed R300 to the appellant. He
grabbed the money and
put it in his pocket. At one stage when Yvonne
bent over, the “hat” or object which was covering the appellant’s
face, fell
off. Then Yvonne took a closer look because her brother,
who is a police officer, had taught her when someone does something
wrong
to her, she must take a proper and closer look at that person.
Yvonne described the object which covered the appellant’s face
as
something which covers his whole face, only the eyes and the mouth
are visible. It was a balaclava. While the appellant
was busy
assaulting her, this balaclava fell off his face. While Yvonne was
in the process of bending she had a closer look at
the appellant.
The appellant instructed Yvonne to shake her bag out and R60 fell
out, which he also took. Thereafter appellant
drove the women into
the bathroom. The shorter male had a black bag in which he put the
money. After she was in the bathroom,
she could no longer see what
was happening. She could not identify the shorter person but she
could identify the appellant because
he stood in front of her and she
was looking at him all the time. After a while the owner of the
house unlocked the bathroom and
let them out. She estimated that at
that stage there was about R60 000 on the table. She noticed that
the appellant had a firearm
with him and a knob-stick.
[6]
On
3 May 2005 at 7h00 she was at Tabong Police Station where she went to
certify her child’s certificates. As she entered she
noticed the
appellant sitting on a bench. She looked at him and at that stage
she handed her items for certification over to the
police officer.
She took another look at the appellant. She told the police that he
was the person who assaulted her at the event.
She identified the
appellant by his big lips, his height and his eyes, because she was
looking at him during the incident. He
is tall. His eyes were small
like Chinese people, with thick or big lips. She also noticed that
his knees are close to each other.
She also noticed that his face is
not smooth. He was not bald at that time.
[7]
On
25 July 2005 Yvonne attended an identity parade. She pointed
appellant out. She noticed the same features she had seen
previously,
including the knees. She would not forget him because he
assaulted her. The features she noticed on the identification parade

were his eyes, lips, legs and height. She estimated that the
incident lasted 20 – 30 minutes.
[8]
In
cross-examination she said she used her spectacles for reading. She
was counting money and had to write down the amount. Questioned

about incident at the police station when she saw the appellant,
Yvonne said she looked at him and he looked at her. She told
a
police official who was outside that he was the person who had
assaulted and robbed her. In questioning by the court the witness

said that the appellant did not have the balaclava on his face for
about two to three minutes.
[9]
The
appellant’s evidence of the events at the police station was that
he was on correctional supervision at the time. He heard
two police
officers talking about him. The captain asked him to accompany him
to the charge office and to sit down there. A lady
entered. She
looked at the appellant. Thereafter she spoke to the captain and
they both nodded their heads. The captain told
appellant he was
going to arrest him, which he did. Appellant later discovered that
this lady was Ms Hlongwane.
Magala
Gertrude Ramalahloane
[10]
She
was present at the ladies’ meeting when two men entered without
knocking. They ordered the ladies to lie down and take out
their
money. The short man went to the table where the money was. The
appellant was standing at the door where the witness was.
They
ordered the ladies to take out money. She opened her bag and showed
appellant she had no money in it. Appellant then hit
her with a
knob-stick. He hit her once on the shoulders. Then she lay down.
After some more assaults the ladies were ordered
to the bathroom
where they were locked in.
[11]
She
went to an identity parade on 25 July 2005 where she pointed out the
appellant. She was able to recognise him because she
had seen him
for a reasonably long period during the incident. She described the
appellant’s eyes as “sleepy”, with the
eyelids downwards. She
also noticed his thick lips. She was 1½ - 2 metres from the
appellant when he asked for money.
Appellant had a balaclava on when
he arrived, but when he spoke to the witness he took it off. He
lifted the balaclava up and
put it down from time to time.
[12]
In
cross-examination the witness was asked whether on the Monday after
the incident the ladies of the society had a meeting, which
she
confirmed. They discussed what plans they were going to make now
that their money was gone. Asked about the balaclava, the
witness
said that if you are pulling it up and down your face, it is bound to
fall at some stage. She admitted that immediately
after the incident
they spoke about the event, but not the details of the assailants.
She confirmed that the day of the incident
was the first time she saw
the appellant. It was put to her that she leased property from the
appellant. She said she leased
from a lady, she did not know whether
that lady had a husband and whether such husband might have been the
appellant. After the
incident she knew that the appellant was her
husband, because she saw the lady in court. It was put to her that
the appellant
knows her very well, to which the witness responded
that the appellant might know her, she does not know him. After the
incident
the witness heard that people called the appellant “Tall”.
She heard people talking about the name “Tall”. After the
identity parade people said the person’s name is Tall.
[13]
The
witness confirmed that after Yvonne pointed out the appellant at the
police station she told the witness that she had pointed
out Tall at
the police station. The witness did not at the time realise who Tall
was because she did not know him. The rumour
that the robber was the
man known as Tall, started the same day the robbery took place. The
witness used her own transport to
get to the identification parade.
The other witnesses were fetched in one vehicle. In re-examination
the witness said that when
the rumours did the rounds after the
incident that the assailant is the man called “Tall”, it did
cross her mind who Tall was.
She did not know the appellant as
“Tall” before the identification parade.
Mamosala
Kabudu
[14]
She
was also at the meeting of the society on the day the incident
occurred. While they were collecting the money, two males entered,

one tall, the other short. The appellant was the tall one.
Appellant was wearing a balaclava. The appellant ordered them to
lie
down, in an aggressive manner. The money was placed in a bag and the
ladies were ordered to go into the bathroom.
[15] On
25 July 2005 there was an identity parade held at Odendaalsrus
Correctional Service. They were taken in Mr. Dlamini’s
vehicle.
She pointed out the appellant at the identity parade. She was able
to identify him because during the robbery when appellant
was giving
instructions he would remove the balaclava from his face and
thereafter cover his face again. That happened more than
once. She
recognised him at the identity parade because he was the tallest and
by his big nose. She was lying under the sofa
during the robbery and
could see appellant throughout the whole incident.
[1
6] In
cross-examination the defence put to the witness that she referred to
the appellant’s nose because it had been put to the
previous
witness, to which the magistrate responded that the court did not
adjourn between the two witnesses and the witnesses
had no
opportunity to discuss the evidence. In re-examination the witness
said she did not know a person called Tall before the
incident, but
she did before the identity parade. She would have been able to
point out the assailant, which she did. In response
to question by
the court, the witness said she knew the name of the person who had
been arrested.
Dock
Identifications
[17] Apart
from identification on the identity parade, Nomonde Myande
,
Annie Pulane Mpuru, and Tshepeho Moshe identified the appellant in
court. Moshe, whose Mazda motor vehicle was robbed said he

recognised the appellant by his face. He gave no further
explanation. There was definitely something over his head on the day

in question. He was about one and a half metres from the appellant.
Moshe was not called to the identity parade. He was waiting
for the
police to fetch him, but they did not. Dock identification is not
inadmissible – the question relates to its evidentiary
value (
MATWA
v S
[2002] 3 All SA 715
(EC) at 721 e – f). On the identity parade
Nomonde Myande and Annie Pulane Mpuru were both unable to point out
the appellant.
No value can be attached to their dock
identification. In the case of Moshe, who was not called to the
identity parade, and who
had adequate opportunity to observe the
appellant, and who was adamant and certain in his identification in
court, some value has
to be given to his dock identification of the
appellant.
Appellant’s
Evidence
[18]
Appellant
had an alibi defence. He testified that he was at home with his wife
and children on Sunday 20 March 2005, the day of
the robbery, from
the morning until the night. The appellant was serving a
correctional supervision sentence at the time and he
had to stay home
because the correctional officials were supposed to monitor him on a
daily basis.
[19] On the day of his
arrest, appellant went to the police station to attend a parole board
meeting. That meeting is held in a
building behind the police
station. A police captain arrived and asked appellant to accompany
him to the charge office, where
the captain requested the appellant
to sit down. After a while a lady (Yvonne Hlongwane) arrived, looked
at him and left through
the same door the captain had used to exit.
As appellant went out he saw the lady talking to the captain and
nodding their heads.
The captain then arrested the appellant.
[20] As
to the identifying witness Magala Gertrude Ramalahloane, the
appellant testified he knew her and she knew him, they used
to meet
each other regularly at drinking places. Appellant’s wife told him
that she was a tenant at appellant’s premises.
Appellant said
Magala pointed him out because she was told that the assailant was
“Tall” or “Tolla” and he is known by
that name.
[21] Regarding
the identity parade, appellant testified that all the other persons
on the parade were shorter than him, except one
who is still a young
boy.
[22] Appellant said he
knew nothing of the robbery.
[23] In
cross-examination appellant confined that he was at home on the day
the robbery took place. Asked why he decided to wear
dreadlocks on
the identity parade, he said a boy volunteered to lend him
dreadlocks. He did not ask for them, but that person
decided he was
going to lend his dreadlocks to the appellant when he heard that
appellant was going to an identity parade, and
told appellant to put
the dreadlocks on. Asked why he disguised his appearance with the
dreadlocks appellant said he had come
to court on several occasions
and the witnesses used to see him at court.
Appellant’s
Wife
[2
4] Appellant’s
wife testified in support of his alibi, but it was clear that she
could not recall the specific day of the incident,
which was two
years earlier. She just gave general evidence that the appellant was
always at home on Sundays. Her evidence is
also unsatisfactory
because she testified that she and the appellant did not discuss the
case. That is hard to believe.
Discussion
[
25] The
three eye witnesses identified the appellant at the identity parade.
It was admitted that the parade was properly conducted.
Each of the
witnesses who identified the appellant took two minutes to identify
him. It is unfortunate that the identity parade
was held so long
after appellant’s arrest, but the identifying witnesses dealt
satisfactorily with the criticisms against their
identification. The
reliability of the observations of the witnesses is strengthened by
the fact that the incident took place
during the day and the
appellant was close to the identifying witnesses for a period of
about 20 minutes. The characteristics
of the appellant by which each
witness identified him, were placed on record, which strengthened the
reliability of their identification.
All the witnesses testified
that the appellant’s face was uncovered at some stages. There is
no basis to accept that such evidence
was fabricated. The dock
identification of Moshe, who was not afforded an opportunity to go to
the identity parade affords support
for the identification of the
appellant. Yvonne Hlongwane gave a detailed and appropriate
description. She had been taught by
her brother who is a police
officer to pay careful attention when “something wrong” happens
to her. This she did. She was
observant, also at the police
station. Her evidence that she saw the appellant there by chance,
reads fluently and the appellant’s
version that she was taken to
the police station to specifically point out the appellant in the
light of her denial, would amount
to a conspiracy.
[
26] The
appellant was not a satisfactory witness. His evidence as to why he
put on the dreadlocks at the identity parade, namely
because another
young person had instructed him to do so, is not credible. The
obvious inference is that the appellant was attempting
to confuse the
witnesses. Although the defence alleged that appellant was much
taller than the other persons on the identity parade,
the photographs
indicate that all were about the same height, and one person was
taller than appellant.
[27] The
identification was satisfactory and there is no basis to interfere
with the convictions.
[
28] As
to sentence, Mr. Moos, for the State, concedes that an effective
sentence of thirty years is too severe, bearing in mind
that the
robberies inside were one transaction with the robbery of the getaway
car in count 5. The effective sentence should be
twenty years.
Order
[
29] The
convictions are confirmed. The appeal against the sentences succeeds
to the extent that it is ordered that ten years of
the sentence on
count 5 should run concurrently with the sentence on counts 1, 2, 3,
4, 6 and 7, with the result that the effective
sentence is twenty
years’ imprisonment. This sentence is deemed to have been imposed
on 21 February 2007.
___
___________
A.
KRUGER
,
J
I
concur
.
__
__________
C.
VAN ZYL
,
J
On
behalf of the appellant
: Adv.
T.B. van Rensburg
Instructed by:
Legal Aid Board
BLOEMFONTEIN
On
behalf of the respondent: Adv. A. Moos
Instructed by:
Director of Public
Prosecutions
BLOEMFONTEIN
/sp