S v Gayi and Another (1236/2006) [2008] ZAWCHC 275 (24 October 2008)

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[2008] ZAWCHC 275
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S v Gayi and Another (1236/2006) [2008] ZAWCHC 275 (24 October 2008)

IN
THE SUPREME COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
CASE NO
:
A236/2006
DATE
:
24
OCTOBER 2008
In
the matter between:
UNATHI
GAYI
FIRST
APPELLANT
MIKE
MASHABA
SECOND
APPELLANT
versus
THE
STATE
RESPONDENT
JUDGMENT
THRING,
J
At
approximately 11:00 p.m. on the 7 January, 2003, the complainant in
this matter, one Gumede, his girlfriend, one Nobuthulazi,
or Mitzi,
one Menzi Duma, since deceased, and one Umlungisi were asleep in two
separate rooms in a dwelling in Mont Clair, Mitchelt's
Plain, when
four unknown men broke into the house and robbed them at gunpoint of
a number of articles, including car radios,
a television set, video
players, hi-fi sets, a CD player, other electronic sound equipment,
clothing, a cellphone, R3 000,00
in cash, two identity books and
a Ford Escort motor vehicle which belonged to one
Buthelezi, who was absent
at the time but who normally resided at
the house. The following day the police arrested the two appellants
and also two other
men. All four of them were charged in the
regional court of robbery with aggravating circumstances. The first
appellant was accused
No 1, the second appellant was accused No 3
and one Sfmphiwe Jacobs was accused No 2. He died during the trial,
before the verdict,
and no more need be said about him. One Prince
Mangolwane was accused No 4. For the sake of convenience I shall
refer to the
appellants and the other accused by their accused
numbers as they were arraigned at the trial.
They
all pleaded not guilty to the charge. They were all represented at
the trial by an attorney.
Accused
Nos 1
,
3 and 4 were apparently all found guilty as charged, and each of
them was sentenced to seven years imprisonment. I say apparently,

because the magistrate's conclusion at the end of her judgment is
rather curiously worded as follows:
"They
are charged with robbery with aggravating circumstances and
therefore 1 am going to judge all three of them.''
However,
be that as it may, with the magistrate's leave, the appellants
appeal to this Court against both their convictions and
sentences.
As
regards the two appellants, accused Nos 1 and 3, as well as accused
No 4, the magistrate in her judgment reEied on three features
of the
evidence which she found connected them all to the robbery. These
were:-
(1).
Their identification by the complainant, Gumede;
(2).
The presence, on the day after the robbery, of accused Nos 1 and 3
at a certain house at Lower Crossroads where they lived,
where the
police found some of the allegedly stofen items, and the presence of
accused No 4, later on the same day, at another
house at Lower
Crossroads where he lives and where the police found certain other
items which had allegedly been stolen from
Gumede's house;
(3).
The fact that certain items of clothing worn by accused Nos 1 and 4
on their arrest on the
B
tt]
January,
2003 allegedly belonged to Gumede and to another occupant of the
complainant's house, the said Buthelezi, and were among
the stolen
goods.
Accused
Nos 1, 3 and 4 all gave evidence in their defence in which they
disavowed complicity in the robbery and sought to explain
away the
features to which the magistrate refers. They all put up alibis for
the evening on which the robbery was committed.
The
magistrate appears to have found the accused to be unworthy of much
credence as witnesses and to have concluded that the state
had
proved its case against them beyond reasonable doubt, inasmuch as
the version of the accused could not reasonably possibly
be true. In
fact she found that they were lying witnesses.
Part
of the absence of clarity in the evidence may be attributable to
poor interpreting. Gumede and Buthelezi are both Zulu-speaking,

whilst the interpreter seems to have been a Xhosa, but seldom in
nearly 40 years at the Bar and on the Bench have I had the
misfortune of having to read the record of a case in which the
evidence for the prosecution has been presented to the Court in
such
a haphazard, undisciplined, inept and inadequate fashion as was done
here. Any prosecutor worth his or her salt would have
been ashamed,
I think, of the state's performance in this case. Simple matters,
such as what was stolen from the witnesses and
what was recovered,
and who owned what, are mired in bottomless morasses of confusion
and uncertainty. After reading and re­reading
the transcript of
their evidence a number of times
r
I still have very little idea of what the two principal state
witnesses, Gumede and Buthelezi
r
were trying to convey to the Court during substantial portions of
their evidence. How the magistrate could have made a coherent
tale
out of it, as she seems to have tried to do
r
I do not know.
As
to the first feature relied on by the magistrate as implicating the
four accused, that is, Gumede's identification of them
during the
robbery, the evidence seems to be the following. Gumede Is a single
witness on this aspect. He was fast asleep when
he was woken up by
the robbers. As he puts it, be was
u
in
shock". This of course is perfectly understandable. The four
robbers were complete strangers to him, none of whom he had
ever
seen before. The robbers immediately ordered the witness to put his
head under a blanket, presumably so that he would not
be able to
identify them. This he did. From under the blanket he says that he
coutd not see the robbers, nor did he peep out
from under the
blanket to observe them. He says that everything happened very
quickly. The witness was unabfe to give the police
a description of
the robbers, nor of their clothing. In any event, according to
Gumede, the two appellants, accused Nos 1 and
3, spent most of their
time in the house ransacking the room next door, which was occupied
by Menzi Duma and Umlungisi, and not
in the room occupied by the
witness.
On
the day after the robbery, Gumede and Buthefezi were summoned to the
Nyanga Police Station, They were tofd by the police that
four
suspects had been arrested and that they must come to the police
station to identify them. In the police cells they were
shown the
four accused, and only the four accused. At that point Gumede claims
to have "recognised" the accused as
the four robbers. He
claimed in his evidence that "I only knew their faces". He
was unable to point to a single other
characteristic of any of the
men which stood out for him as an identifying feature. He did say
that during the robbery the lights
of the house were switched on.
In
her judgment the magistrate said nothing about the merits or
demerits of any of the three prosecution witnesses. From this
it may
be inferred, I think, that the impression which they made on her as
to reliability was neither very good nor very bad.
The
dangers of uncorroborated evidence of identification are legion and
trite.
Mr
Pothier
.
for the appellants, has referred us to the well-known passage in the
judgment of
Holmes.
J A
in
S
v Mthetwa
.
1972(3) SA 766 (AD), where the iearned Judge of Appeal said the
following at 768A to C>
"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 the light of
the totality of the evidence,
and the probabilities."
The
magistrate says nothing in her judgment about the risks attaching to
evidence of identification. One wonders to what extent
she was aware
of them. However, be that as it may, Gumede's identification of the
four accused is clearly fraught with problems,
no matter how honest
a witness he may have been. Thus, he was in a state of shock, having
just been woken up; he must have had
only a very short and limited
opportunity to observe the robbers before his head went under the
blanket, hence his inability
to describe them to the police; the
robbers were complete strangers to him; most important of all, the
following day he was asked
by the police to come and identify four
arrested suspects at the police station. Human nature dictates that
the witness probably
expected them to be the culprits. In my view,
these shortcomings in Gumede's evidence render his identification of
the four accused
open to large doubt, and must render it unreliable.
The
evidence of the two appellants and of accused No 4 denying
complicity in the robbery may well be equally or even more
unreliable,
but that is insufficient, in my view, to cure the
manifest weaknesses in Gumede's identification.
I
conclude that the magistrate placed far too much credence on the
identification evidence, which, as 1 have said, stands alone.
I
turn next to the second feature relied on by the magistrate, i.e.
the finding by the pol ice the day after the robbery of some
of the
stolen items at the houses occupied by the two appellants and
by accused No 4. This evidence was given by an Inspector
Stephanus.
He says that at about 11:30 a.m. on the 8
th
January, 2003 he saw accused No 3 behaving suspiciously outside a
certain house in Lower Crossroads. He went into this house
and found
accused Nos 1 and 2 inside. He then searched the house and found two
car radios which he suspected had been stolen.
These were not
identified by either Gumede or Butheiezi as their property. Behind
the house, be said, was what he called a "plakkershut",

which he also searched. In this hut he found a number of other
items, which he suspected were stolen goods, including an amplifier,

a CD player, a hi-fi set, two speakers, a vehicle jack and wheel
spanner, and Buthelezt's identity book. Save for the last item,
none
of these articles were identified by either Gumede or Butheiezi as
having been stolen from them.
Inspector
Stephanus then proceeded, he says, to another address in Lower
Crossroads where accused No 4 lives. He found the latter
there. In
this house he also found three video players, a Blaupunkt hi-fi set
with two speakers, an identity book and two bags
of clothes. Save
for the Blaupunkt hi-fi set and speakers, which were identified by
Butheiezi as his property, none of these
items were identified as
having been stolen from Gumede or from Butheiezi.
The
difficulty which the prosecution has with inspector Stephanus's
evidence, which might otherwise have been very cogent in implicating

accused Nos 1 and 3 in the robbery, is that, with the single
exception of Buthefezi's identity book, not one item mentioned by

Stephanus in his evidence as having been found at the house occupied
by accused Nos 1 and 3, or in the hut behind it, was positively

identified as his property by either Gumede or Buthelezi.
Stephanus
compifed a list of the property which he had found at the two
houses, a so-called SAP299, which property he says was
returned to
Gumede and Buthelezi. This list was placed before the Court. This
list, however, was not shown to Gumede during his
evidence, nor did
he clearly identify any of the articles which were stolen from his
house as being amongst the items mentioned
on the SAP299 list. It
ought not to have been difficult for Gumede to have identified at
least some of his property in the witness
box had the prosecution
case been conducted properly. Instead, a
lacuna
exists
in the prosecution case in this regard. In fact, at one point during
Buthelezi's evidence, the magistrate voiced her suspicions
as
follows:-
“
The
Court has a strong suspicion that you took things that did not
belong to you on that day,
because
all the stuff was there and you just said,
it's
ours',
and some of the stuff was not yours."
In
her judgment the magistrate said:-
"Now
all items that were recovered from the house of accused No 1 and 3
were identified by Mr Gumede and Mr Butheiezi as
being stolen or as
belonging to them and being part of the items that had been stolen
the night before, that is plus-minus 12
hours before the recovery.
Now these items, according to Stephanus, were recovered from the
main house and from a shack that
was at the back of the house."
Later
in her judgment she also said the foliowing:-
"Now
accused 1 and 3 do not dispute that Inspector Stephanus made the
recovery at their place. They also do not dispute that
the goods
belonged to the complainant and that some were recovered from the
house and others from the shack."
These
are fundamental misdirections. As \ have said, it is not true that
all the items recovered from accused Nos 1 and 3's house
were
identified by Gumede and Butheiezi as having been stolen or as
belonging to them, nor is it correct to say that accused
Nos 1 and 3
did not dispute that the goods belonged to the complainant. Of the
items listed on the SAP299 form, Butheiezi was
able to identify as
his property only the Blaupunkt hi-fi set and speakers, some compact
discs, and his identity book. Inspector
Stephanus says that the
identity book was found in the hut behind the house occupied by
accused Nos 1 and 3, and that the Blaupunkt
hi-fi set and speakers
were found in accused No 4's house. He did not say where the compact
discs were found. As I have said,
Gumede was not asked to identify
any of the items listed on the SAP299 form.
It
is moreover quite clear from the cross-examination of Gumede and
Butheiezi that the defence did in fact place in issue the
ownership
of the articles found in the respective houses of the accused.
As
for the single article which was unquestionably identifiable, i.e.
Buthelezi
r
s
identity book, this
r
as I have said, was found by Inspector Stephanus in the hut behind
accused No 1 and 3's house. Their explanation was that this
hut was
rented at the time by one Xholani. It was not occupied by them, they
said. Inspector Stephanus was cross-examined about
Xholani. The
following passage occurs in his cross-examination:-
“
En
hulle he! aan u gese Xholani bly agter, dis sy plek? --- Mevrou dis
moontlik dat hulle gese het daar bly 'n Xholani, maar ek
het, ek kan
nie, ek praat onder korreksie
r
maar ek is baie amper doodseker ek het nie 'n persoon daar Kom soek
nie. Ek was besig om met gewone patrollie toe die man se
optrede
verdag (onduidelik).
Maar
u het vir die Hof gese hulle het gese die eienaar van daardie hut of
plakkerhuisie was nie daar nie? — Dis korrek, ja.
U
se u was doodseker? —- Amper doodseker."
Later
he testified further as follows:-
"
Hulle se u het gese dat die hut of die plakkerhuis hier behoort aan
Xholani, Xholani is nie daar, hy's weg? -— Oit is
moontlik dat die
eienaar van die woning se naam wel Xhofani is, en hulle het my
meegedeel dat hy nie op die oomblik daar was
nie."
Whether
or not Inspector Stephanus was looking for Xholani that day, as is
suggested by accused Nos 1 and 3, the existence of
Xholani was
clearly not an afterthought or a subsequent fabrication on their
part, for Stephanus conceded that he was tofd by
them that the owner
of the hut was absent and that the name Xholani might have been
mentioned by accused Nos 1 and 3.
The
magistrate seems to have rejected the accused's evidence about
Xholani as false, along with much of their other evidence,
but there
is no direct evidence to contradict what accused Nos 1 and 3 said in
this regard. Indeed Stephanus goes some way to
conceding that it
might be true, at least to the extent that the hut was occupied by a
tenant at the relevant time. Whether or
not his name was Xholani is
immaterial. If the hut was occupied by a tenant, the link between
accused Nos 1 and 3 and the robbery
via Buthelezis identity book,
which was found in the hut, is of course broken. In my view the
magistrate erred in rejecting the
reasonable possibility that the
hut was occupied at the relevant time by somebody other than the
accused.
Lastly,
there is the evidence on which the magistrate refied that some of
the clothes being worn by accused Nos 1 and 4 at the
time of their
arrest was the property of Gumede and Butheiezi. Butheiezi says that
when he went to the Nyanga Police Station
on the 8
th
January, 2003, he found accused No 1 wearing his, Buthelezi's,
trousers. He says that he was able to identify them because
be had
just had them dyed and the dyer had left an indelible number on them
with his name on it. He was unable to say what the
number was, nor
were the trousers handed in as an exhibit before the Court. In
cross- examination he said that they were Rockport
jeans. Accused No
1 was made to remove these trousers, says Buthelezi, and to return
them to him at the police station. Gumede
was present when this
happened, he says. However, none of this is borne out by the
evidence of either Gumede or of Inspector
Stephanus. Gumede does not
mention Buthelezi getting his trousers back from anyone.
In
fact his rather garbled
evidence
is as follows:-
"You
say accused No 2 was wearing your clothes and the others were
wearing the other people's clothes. Mr Interpreter, that's
what
(indistinct) please? --- Yes, that is correct, others were wearing
the others
1
clothes."
If
Gumede had seen accused No 1 being made to remove his trousers and
hand them over to Buthelezi, one would expect him to have
remembered
it and to mention it in his evidence. Perhaps more important, there
is no mention of Buthelezi's trousers on the SAP299
list drawn up by
Inspector Stephanus. If this garment had formed part of Buthelezi's
stolen property which was returned to him
by the police, there is no
reason why it should not have featured on the fist. Better still,
the trousers should have been handed
in as an exhibit and listed as
such in the so-caF!ed SAP13 register. No such register appears to
have been opened in this case.
In
his evidence, albeit that it may not be worth a great deal in view
of its numerous shortcomings, accused No 1 denied that he
was
wearing Butheiezi's trousers or that he was made to remove them. He
said that he was wearing a black tracksuit with yellow
and green
stripes. Inspector Stephanus was not cross-examined on this point.
In
my view there are too many question marks hanging over Butheiezi's
evidence about this trousers for it to have been accepted
by the
magistrate as true beyond reasonable doubt. This link between
accused No 1 and the robbery is just too tenuous to rely
on.
The
prosecution did not see fit to call either Gumede's girlfriend,
Nobuthulazi, nor Umlungisi as witnesses. Both of them were
present
during the robbery and they may or may not have been able to give
corroborative evidence as to the identity of the robbers.
The
reasons advanced by the prosecutor at the trial for not calling
these people do not impress me.
Be
that as it may, the state's case against accused Nos 1 and 3 suffers
from the shortcomings which I have mentioned, some of
which appear
to have escaped the magistrate.
At
the same time it is apparent from a reading of the record that all
three of the accused who gave evidence were poor witnesses,
and the
magistrate was undeniably correct in finding that they lied in
certain respects. They are very probably guilty of this
robbery: but
strong probability is of course not proof beyond reasonable doubt.
The edifice of the prosecution case is'sufficiently
shaky in my view
as to render the conviction of accused Nos 1 and 3 unsafe. The
demerits of their evidence are insufficient to
supply the
deficiencies in the state case.
In
my judgment the appeal against their conviction must accordingly
succeed.
The
position of accused No 4 is somewhat different. In his house
Inspector Stephanus found the Blaupunkt hi-fi set and loudspeakers

which were positively identified by Buthelezi as having been stolen
from him the night before. Other than to deny falsely that
the
articles had been found there, accused
No
4 had no explanation to offer for the presence of this piece of
stoien property in his house.
The
identification of accused No 4 by Gumede is no more reliable than
his identification of accused Nos 1 and 3. Whilst going
some way to
connect him with the robbery, accused No 4's possession of the
stolen hi-fi set does not in my view go far enough
to justify the
inference that he was beyond reasonable doubt one of the robbers.
The possibility cannot be excluded, in my view,
that he came into
possession of this article in some other way.
As
to the reliance by the magistrate on accused No 4 being found
wearing a garment or garments belonging to either Gumede or
Butheiezi, there is no evidence of this on the record.
In
my judgment, accused No 4 was wrongly convicted by the magistrate of
the robbery. He is, however, guilty on the evidence of
a
contravention of the provisions of section 36 of the General Law
Amendment Act, No 62 of 1955, which is a competent verdict
on a
charge of robbery. The section reads as follows:-
“
Any
person who is found in possession of any goods other than stock or
produce as defined in section 1 of the Stock Theft Act,
1959, Act No
57 of 1959, in regard to which there is a reasonable suspicion that
they have been stolen, and is unable to give
a satisfactory account
of such possession, shall be guilty of an offence and liable on
conviction to the penalties which may
be imposed on a conviction of
theft."
Exercising
this Court's powers of review under
section 304(4)
of the
Criminal
Procedure Act, No 51 of 1977
, it should in my view set aside the
conviction of accused No 4 and substitute an appropriate conviction
of contravening section
36 of the General Law Amendment Act.
On
that basis, sentence must be imposed afresh on accused No 4. At the
time of the offence he was a youth of 17 years and some
ten months
of age. He had no previous convictions. He left school in standard
eight, having had an unfortunate childhood without
a father. Direct
imprisonment is generally not appropriate under such circumstances.
In my view, a totally suspended short period
of imprisonment would
be adequate in the circumstances.
Accordingly
the following order is made:-
1.
The appeals of accused Nos 1 and 3 against their convictions are
upheld and their
CONVICTIONS
AND SENTENCES ARE SET ASIDE.
2.
On review, the conviction of accused No 4 is also
SET
ASIDE
and for it is substituted a
CONVICTION
OF CONTRAVENING THE PROVISIONS OF SECTION 36 OF THE GENERAL LAW
AMENDMENT ACT, NO 62 OF 1955
.
The sentence of accused No 4 is also
SET
ASIDE
,
and for it is substituted the following:
SIX
(6^ MONTHS IMPRISONMENT. SUSPENDED IN ITS ENTIRETY FOR FIVE (5)
YEARS
on condition that the accused is not convicted of robbery, theft or
any other crime of which the accused may be found guifty
as a
competent verdict on either such charge, committed during the period
of suspension.
THRING,
J
I
agree.
W.J.
VAN DER MERWE, AJ