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[1989] ZASCA 13
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S v Sunduza (53/88) [1989] ZASCA 13 (17 March 1989)
SIMON SUNDUZA
and
THE STATE
Judgment by:
NESTADT JA
CASE NO. 53/88
/CCC
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE
DIVISION)
In the matter between
SIMON
SUNDUZA
APPELLANT
and
THE
STATE
RESPONDENT
CORAM
: BOTHA, HEFER et NESTADT
JJA
HEARD
: 3 MARCH 1989
DELIVERED:
17 MARCH 1989
JUDGMENT
2/
2.
NESTADT, JA
:
Appellant was convicted in a regional
court of attempted murder. It was found that at about
11:15 am on 10 December 1985 he shot at the occupants of
a police vehicle
(known as a Casspir) as it patrolled the
streets of the KTC squatter camp
near Cape Town. A
sentence of seven years imprisonment was imposed.
He
unsuccessfully appealed against his conviction and
sentence to the Cape
Provincial Division. The matter is
now before us by way of a further appeal,
with the leave
of this Court, against the conviction only.
A number of witnesses, all policemen,
testified for the State. The case made out was, in
outline, the following.
The vehicle in question, being
driven by constable Kok, was moving slowly
forward.
Constable Bezuidenhout was sitting at the back, next to
the rear open doors. Suddenly a shot was fired by
someone in the street. The bullet narrowly missed
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3.
striking Bezuidenhout in the head. He stood up and closed the doors of
the vehicle. Each door contained a small, square window. He
looked through one
of them and noticed a Black man, wearing black trousers, a white shirt and
having "een van hierdie gebreide mussies
wat rooi in kleur was" on his head,
standing about 15 - 20 meters away. This person, whose face he also saw, was
holding a firearm.
It was aimed at the vehicle. Two further shots went off.
Bezuidenhout and constable Slinger, who had been sitting in the front next
to
the driver, immediately sprang out of the Casspir in order to apprehend the
culprit. He was, however, quick to flee. He turned
round, ran off and
disappeared from view amongst the houses. Bezuidenhout and Slinger pursued him.
He intermittently reappeared in
small passageways between the houses. Each time
Bezuidenhout called on him to stop but the command went unheeded. Eventually
4.
he and Slinger reached a point on the crest of a dune. As they
stood there, they again saw this person, "aan die ander kant van die
duine af,"
standing in front of a shack with the firearm in his hand. He was looking
directly at them from a distance of some 35
- 40 meters away. As they moved
towards him he vanished from sight. They did not see him again until about 7-15
minutes later, when,
having heard that an arrest had been made, they hastened to
the spot near where this had taken place. There they saw appellant. He
was the
person who had fired the shots and whom they had chased. He was in the custody
of warrant-officer Barnard. Whilst on duty
in nearby Guguletu, he had received a
report over his radio of the incident as well as a description of the clothing
of the criminal.
(It presumably came from one of the policemen in the Casspir.)
He drove to the scene of the shooting and then joined in the search.
After
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5.
10 - 15 minutes he noticed a Black man who was
wearing
black trousers, a white shirt and a red hat. This
accorded with
the description he had been given. This
person (ie, as it turned out,
appellant), together with
another (who was wearing a blue overall):
"(het) koes-koes tussen die huise deurbeweeg en ... tussen twee sinkhokke in
verdwyn ... Hulle het gebukkend gehardloop, Edelagbare,
dit is duidelik dat
hulle, as jy hardloop, normaalweg hardloop jy regop en elke slag as hulle by 'n
huis omhardloop, het hulle eers
om the draai gekyk voor hulle verder gehardloop
het. Hulle was duidelik op die uitkyk vir
iemand."
He followed them for a distance of about 50
meters.
Within 2-3 minutes he caught up with them where they
stood between
two sheds and apprehended appellant. This
was about one kilometer from where
the crime had taken
place. Appellant "was besig om om die hokkie te loer
in
die rigting van waar die ander polisiebeamptes in die pad
besig was."
No firearm was seen or found in appellant's
possession (or at all) but he had
had ample opportunity
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6.
to get rid of it before being caught. Appellant, and the other
person, denied all knowledge of the crime.
Consistent with what he had told
the police, appellant's defence was in the nature of an alibi. In support of his
denial that he had
fired the shots or even been at the scene, he testified that
the place where he was arrested was just outside his house. He was innocently
standing there, talking to this other person, when he was approached by Barnard
and arrested. He had not been pursued. He had not
even been running. He had just
come out of his house where he had slept the night before.
The issue to be
decided is whether the trial court was correct in rejecting appellant's version
and in finding, as it did, that the
identity of appellant as the person who
fired the shots was established. If it was, the verdict of attempted murder
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7.
was correct. The attack was clearly unlawful. And an intention
to kill is, in the circumstances, the only reasonable inference.
Evidence to
prove a person's identity may be direct or circumstantial (Hoffmann and
Zeffertt:
South African Law of Evidence
, 3rd ed, 477-8). The State case
in the present matter comprised both. I consider, firstly, the direct evidence.
This involves a closer
examination of Bezuidenhout's testimony, for it was on it
that this part of the State case ultimately rested. He relies on two
idehtificatory
features; the offender's clothing and his facial appearance.
Appellant, he says, was similarly dressed and looked the same. He was,
accordingly, "doodseker" that appellant was the culprit.
The fallibility and
resultant unreliability of human observation is well known. This type of
evidence of identification is accordingly
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8.
approached with caution. It has to be closely
scrutinised. And it must be borne in mind, as has so
often been said, that
the positive assurance with which a
witness identifies a person is no
guarantee of its
correctness. Applying these principles, and
although
Bezuidenhout's truthfulness was not in question, had
his
identification of appellant by his face been the only
evidence, I do
not think it would have been sufficient to
sustain a conviction. This part of
his evidence (though,
as will be seen, not without some weight) suffers
from
certain inherent weaknesses which detract from its
reliability. I
proceed to deal with them.
(i) Bezuidenhout described the opportunity he had
for observation as follows:
"(D)it het 'n hele tydjie geduur, dit was omtrent 'n minuut, 'n minuut en 'n
half na twee minute se kant toe wat die . . . verdagte
daar gestaan het, voordat
hy nou begin, of voordat hy omgedraai het en begin weghardloop het
nie."
9/...,..
9.
This is surely an exaggeration. It is
improbable that the period could have been so
long. On the contrary , it must have been
considerably shorter.
(ii) On a proper reading of his evidence, it is
doubtful whether his identification rests on
any particular facial features of the offender.
The evidence in point reads:
"Nou sê vir my, het u gekyk na sy gesig? -- Dit is korrek, ek het
genoeg tyd gehad om hom deeglik, want die tydperk wat hy bly
staan het, voordat
hy die, of terwyl hy die tweede en derde skoot gevuur het, kon ek presies sien
hoe lyk hy.
Is daar iets wat u opgemerk het in sy gesig, wat u hom kon laat identifiseer?
-- Nee, nie iets spesifiek nie, maar as 'n mens 'n persoon
sien, dan sien 'n
mens 'n persoon.
Het hy 'n snor gehad? -- Wel, op daardie tydstip het hy h snor gehad en, wel,
presies soos hy nou lyk het hy op daardie tydstip gelyk.
Sy hare was net 'n
bietjie korter gewees."
There is a contradiction here. Initially, he
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10.
says that he did not notice any particular facial features. Then, immediately
thereafter, in answer to a leading question, he refers
to a moustache. This is a
physical characteristic which, if it was relied on, should have warranted
initial mention by the witness.
Nor does Bezuidenhout say that he noticed
anything in particular about the face of the person who looked directly at him
from across
the dune. What has been said is not a criticism of Bezuidenhout.
Often a witness is able to obtain only a general impression of a
person's face.
A particular feature is not always sufficiently pronounced so as to attract
attention. But the less distinctive a
face, the greater the chance of it being
mistaken for that of another.
11/
11.
(iii) This is particularly so seeing that Bezuidenhout did not previously know
appellant. His identification of him was not at a
parade. It took place when and
where he came across appellant in the custody of Barnard. There was therefore no
opportunity for Bezuidenhout's
identification to be tested by him having to make
a choice from among a number of people.
This brings
me to the circumstantial evidence against appellant. Here the State case was
more formidable. It established (to begin
with) that (i) the person who shot at
the Casspir had on black trousers, a white shirt and a red hat and (ii) after
his attack, he
ran away and was pursued (by Bezuidenhout and Slinger, though not
captured by them). This, as I have indicated, is what Bezuidenhout
(and Slinger)
deposed to and there is no reason to doubt the veracity of this evidence. As
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12.
to (i), whatever the exact duration of the period that
existed for Bezuidenhout to see this person, it was obviously sufficient to
enable him, contemporaneously with the shooting, to notice how the offender was
dressed. Visibility was apparently good. No one else
was in the immediate
vicinity of where the gunman stood. A distance of only 15 - 20 meters was
involved. Bezuidenhout's evidence
was that even though the glass of the window
of the rear doors of the Casspir was extra thick and had a greenish tint, his
view through
it was clear and unobstructed. The magistrate's finding, based on
an inspection he held of a Casspir which was not proved to have
glass of the
same kind as that of the Casspir in which Bezuidenhout was, can therefore be
left aside as superfluous. And, as to (ii),
despite them on occasion losing
sight of him, it is clear that the person Bezuidenhout and Slinger chased was
the offender. Mr
13/
13.
Potgieter
, for appellant, quite rightly did not
contest
this.
The next link in the circumstantial
chain of evidence against appellant is that it was he
whom Barnard saw to
be fleeing and dodging in the manner
described. Although Barnard momentarily
lost sight of
the two fugitives on one occasion, there can be
no
reasonable doubt that on his evidence appellant was one
of the persons
he was following. Barnard went on to
describe appellant's condition when he
caught up with him
as follows:
"Beskuldigde, beide van hulle was baie senuweeagtig en natgesweet... Hulle was
baie bewerig en duidelik verskrik toe ek om die draai
kom...
U het ook gesê hulle was natgesweet? -- Dit is korrek.
Kan u dit in bietjie meer detail beskryf? --Dit was natuurlik 'n baie warm dag
gewees, maar dit was ook duidelik dat beide van hulle
gehardloop het, ek het
natuurlik gesien hulle hardloop en dit was duidelik dat hulle beide gehardloop
het, hulle asem het ook gejaag."
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14.
Of course, appellant denied that he had been fleeing or
that he was perspiring or that he was out of breath. But
the magistrate, after a careful consideration of all the
evidence,
rejected this. In my view, there is no basis
upon which we can interfere with
this credibility
finding. On the contrary, the record reveals
ample
justification for the trial court's assessment of
appellant as
untruthful.
A crucial issue is what clothes
appellant was wearing. Unless they matched those of the
offender, the case
against appellant collapses. It was
not suggested that by the time he was
apprehended he had
changed his clothes. On the contrary, the State
case
was that they were the same as those which he wore when
he committed
the crime. I indicated earlier that
appellant was wearing i.a. a white shirt.
This is an
over-simplification of the evidence. At the instance of
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15.
the magistrate, his shirt was produced as an exhibit. It was,
in fact, light cream or off-white (and had a thin, light-brown or cream
stripe).
This, argued Mr
Potgieter
, was different from the "white" shirt which the
witnesses said the culprit wore. Well, I suppose it is. But I think counsel is
putting
too fine a point on the witnesses' description of the culprit's shirt as
"white". When it comes to the déscription of the
colour of an object, one
is, to some extent, dealing with an individual's subjective perception of such
colour. Such description
will not always take account of the many gradations of
colour and shade that exist; it may merely be a general one which was not
intended to be precise. Judged in this light, a cream or off-white object could
fairly be described as white. Indeed, one of the
definitions of "white" given in
the
Shorter Oxford English Dictionary
is "of a light or pale colour;
16/
16.
applied to things of various indefinite hues approaching
white, esp. dull or pale shades of yellow". Barnard himself, until appellant's
shirt was shown to him in Court, said that it was white. So he described it in
the same way as Bezuidenhout. Moreover, it is not
as if Bezuidenhout said that
the shirt worn by the offender was "snow-white" ("spierwit"). Had this been the
case, there may have
been a discrepancy sufficient to found a serious doubt as
to appellant being the culprit or indeed sufficient to show that he was
not. A
fortiori
, had appellant's shirt 'been a distinctly different colour. It
is a question of degree. In
casu
the difference was insignificant. I
therefore do not think that the point under consideration detracts from the
reliability of Bezuidenhout's
description of the offender or his identification
of appellant as that person.
I must briefly also refer to the hat.
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17.
As I have said, Bezuidenhout's evidence was that this person
wore "een van hierdie gebreide mussies wat rooi in kleur was". A "mussie"
is,
strictly speaking, a type of (small) hat without a brim (see
HAT
sv
"mus"). The hat that appellant was found to be wearing (it was also produced as
an exhibit), whilst having the appearance of being
made of knitted material, was
not a "mus". It was (in the words of Barnard) 'n 'floppie' hoedjie, soos wat
hulle gebruik as hulle
krieket speel of visvang". Further it was, as the
magistrate found, "maroon-kleurig". So, here too, there were differences between
Bezuidenhout's description of what the culprit was wearing and what appellant
was found to be wearing. But, as in the case of the
shirt, I do not think these
are material. Maroon is very much akin to red and could be described as such. As
regards the type of
hat, Bezuidenhout, on his recall, albeit in answer to a
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18.
leading question, explained that "(d)ie kante was so op, soos
'n mussie". The magistrate described what the witness had indicated
as follows:
"Die getuie het die kante opgerol langs die kant, dan gee dit 'n mus-voorkoms."
Unfortunately, Barnard does not deal
with how exactly appellant was wearing his
hat when he was followed and apprehended but obviously Bezuidenhout's evidence
in this
regard was, despite appellant's assertion that he wore the hat in the
ordinary way, accepted. It follows that as regards the hat
as well there was,
broadly speaking, correspondence between what the offender and appellant were
respectively wearing.
The position thus is that it was proved that within
some 12 - 20 minutes after the shooting and about one kilometer away, appellant
was found to be wearihg items of clothing corresponding to what the criminal had
worn. This, in itself, was, so I
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would have thought, a relatively singular coincidence. But
the matter does not rest there. As I have said, a second feature identifying
the
culprit is that he ran away. So, too, did appellant. Whether the respective
pursuits by Bezuidenhout and Barnard were in the
same direction and where in
relation to each other they took place, does not appear from the record. Nor
does one know what the interval
was between them. It would have been helpful had
there been evidence on these points and, even more so, had there been a plan
depicting
the area and the routes taken. But, even without this information, the
probative value of the evidence under discussion remained.
It was strongly
inculpatory. An inference that it gave rise to was that the person pursued by
Bezuidenhout (the offender) was the
same person as Barnard followed and caught
up with (appellant).
20/
20.
Two questions remain to be dealt with. The one is whether the
facts referred to exclude every reasonable inference save that appellant
is the
culprit. The other is whether the inference is consistent with all the proved
facts (
R v Blom
1939 AD 188
at 202-3). I consider the latter first. It
has already been indicated that such proved facts are i.a. that appellant, when
followed
by Barnard, (i) was in the company of another and (ii) had no firearm.
This is to be contrasted with the offender. It will be remembered
that when
pursued by Bezuidenhout and up to the time Bezuidenhout lost sight of him he (i)
was alone and (ii) had a firearm. The
critical issue is whether these
differences are reconcilable. They are peculiar. On the State case there is no
explanation for them.
Obviously Barnard's pursuit was subsequent to that of
Bezuidenhout. One wonders why, on the supposition that
21/
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it was the same person who was being successively followed,
such person would have retained his firearm during the first part of the
chase
but discard it thereafter. And how and under what cicumstances he was joined by
his fellow fugitive is a mystery. On the other
hand, the fact that these
features were not, on the State case, explained, does not
per
se mean
that they are necessarily inconsistent with appellant's guilt. After anxious
consideration, I have come to the conclusion
that they are not. It may be that
it was only after shaking off Bezuidenhout, that an appropriate opportunity
arose (at a point in
time before Barnard began to follow him) for appellant to
discard his firearm. There would have been good reason for him to want
to do
that. Barnard specifically states that appellant had such opportunity. The
person that Barnard saw appellant running with could
well have been a
confederate of his who, for some reason,
22/
22.
had remained in the background and only joined up with
appellant at a late stage. This, of course, is speculation but I indulge in
it
in an attempt to show, without the use of too fertile an imagination, that the
factors under consideration do not detract from
appellant's guilt being
consistent with all the proved facts.
The last stage of the enquiry is.
whether the inference of guilt is the only reasonable one; in other words has
the identity of appellant
been established (beyond reasonable doubt)? I have
already evaluated the cumulative effect of the evidence against appellant.
Clearly,
it was such that an explanation by him was called for. But he did not
give one. Instead, he untruthfully denied that he ran away
(in the manner
described by Barnard). Now, an accused's untruthfulness must not be allowed to
loom too large in
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23.
considering whether the State proved its case (
R vs du
Plessis
1944 AD 314
at 323). What weight it has depends on the circumstances
of each case (
S vs Mtsweni
1985(1) S A 590(A) at 593 I - 594 E). Here
appellant lied on a material point. Why did he do so? And from what was he
running away?
It would not seem to have been an innocent flight. Had it been so,
he presumably would have said so. It could, of course, have been
for an
illegitimate purpose unconnected with the crime. It could even be that he was,
for some reason, at the scene of the incident
(though not as a perpetrator). But
this is conjecture. Appellant deliberately took the risk of giving false
evidence. He therefore
forfeited the benefit of these explanations (
R vs
Mlambo
1957(4) S A 727(A) at 738 C - D) . He obviously had something to
hide. I think the magistrate was right in holding; as he in effect
did, that
this was a suitable case for
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regarding appellant's untruthfulness as corroborative of the
State case. This is particularly so if regard is had to the following.
When
Barnard caught up with appellant (and the other person), he demanded the firearm
"waarmee hulle op die polisiemanne geskiet
het". Appellant thereupon (so the
magistrate found) showed Barnard "h stukkie pyp ... wat eenkant teen h huis
gelê het en gesê
dat dit is wat hý in sy hand gehad het".
This statement of appellant was false. It was clear to Barnard that the pipe
"was
duidelik h ding wat al lankal daar gelê het en nie iets wat het daar
neergegooi is nie". This is significant. Appellant admits
that just before he
was confronted by Barnard he had something in his hands. But on Barnard's
evidence appellant's assertion that
it was a pipe was not true. This strengthens
the State case that (at an earlier stage) he had a firearm.
I must return to Bezuidenhout's
25/
25.
purported recognition of appellant by his face. Despite
the defects referred to, it is not without weight. His
honesty having been
accepted, it at least follows that
appellant and the offender facially
resembled each other.
This being so, the following statement (with which
I
agree) in Hoffmann and Zeffertt, op
cit
, at 465, is in
point:
"The cogency of circumstantial evidence usually arises from the number of
independent circumstances which all point to the same conclusion.
Each fact may
be in itself perfectly consistent with innocence, but the court is not obliged
to consider them in isolation. The question
is whether the evidence as a whole
furnishes sufficiënt proof of guilt. Nor is the court restricted to a
consideration of those
facts which are in themselves proved beyond reasonable
doubt. For example, an item of circumstantial evidence may be the testimony
of a
witness who says that he saw the accused near the scene of the crime. If this
were the only fact in issue, the court might not
be able to say that the
witness's identification was sufficiently trustworthy to prove beyond reasonable
doubt that the accused was
the person whom he saw. But this does not mean that
the witness's evidence must be
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ignored. The fact that someone who at any rate resembled the accused was seen in
the area, when taken with other facts, may still
be a significant item of
evidence."
In my opinion (though formed not without
hesitation), and on a conspectus of the evidence, the only reasonable inference
was that
appellant was the culprit. Not more than about 20 minutes after the
shooting he was found in relatively close proximity to where
it had taken place.
He was similarly dressed to the offender. They resembled each other. Like him,
he had been running away (in a
furtive manner). He untruth-fully denied this. I
think he was correctly con-victed.
One final observation. As I have al-
ready indicated, the record discloses
a number of
examples of the prosecutor putting, and being allowed to
put,
leading questions of an important nature and
involving obviously controversial aspects to the State
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27.
witnesses. This is unfortunate, particularlý because
appellant was unrepresented. It cannot, however, affect the result of
this
particular matter.
The appeal fails and is dismissed.
NESTADT, JA
BOTHA, JA )
) CONCUR HEFER, JA )