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[1990] ZASCA 25
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S v Gwenxa and Another (410/88) [1990] ZASCA 25 (26 March 1990)
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IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE
DIVISION)
In the matter between
SANDILE GWENXA
First Appellant
CLEMENT SENGO
Second
Appellant
and
THE STATE
Respondent
CORAM
: E M GROSSKOPF, SMALBERGER et
KUMLEBEN JJA
HEARD
: 13 MARCH 1990
DELIVERED
: 26 MARCH
1990
JUDGMENT
KUMLEBEN JA/
1.
KUMLEBEN JA
The appellants were two of three accused who stood trial in the regional
court on a charge of theft. They featured as accused nos
2 and 3 and I shall
continue to refer to them as such. The charge alleged that they stole cash and
notes totalling Rl 662,44. They
pleaded not guilty but were nonetheless
convicted. Accused nos 2 and 3 were each sentenced to 5 years' imprisonment.
Their appeal
to the Cape of Good Hope Provincial Division against the conviction
and sentence in each case failed, as did that of accused no 1.
However, that
court granted accused nos 2 and 3 leave to prosecute this further appeal.
The evidence of the State witnesses is not contradicted by any defence
evidence, the accused
2/...
2.
having elected not to testify or call any witnesses. The
evidence on which the State relied, in chronological order, was to the following
effect.
On Friday, 2 May 1986 at about 10 am, Mr Joubert went to the Goodwood branch
of Barclays Bank in Voortrekker Street, Goodwood, to
draw some money. As he
parked his car in front of the bank, he saw three Black men standing cm the
opposite side of the street, two
of whom he identified as accused nos 2 and 3.
On more than one occasion within a matter of weeks before this day, when drawing
the
weekly wages at the bank, he had seen accused no 3 in the vicinity in the
company of two other men. (The witness refers to "them"
without making it quite
clear whether he at that stage identified accused no 2 as well.) On one such
occasion "they" followed him
by car to his place of employment.
3/...
3. On this account he was concerned at their presence
across the street on this Friday and took particular note of them. He entered
the bank and, while standing in the queue to be served by the teller, he noticed
accused no 3 standing a few places behind him in
the same queue. After he had
been given his money in a canvas bank bag, he saw that accused no 3 was no
longer in the queue or in
the bank. On emerging from the building, he saw
accused nos 2 and 3 standing next to a mustard-coloured Colt Galant motor car.
The
car was parked on the opposite side of the street with a third person seated
behind the steering wheel. The two men, accused nos
2 and 3, entered the car
which drove off and promptly made a U-turn. This confirmed his suspicion that he
might be the object of
their attention. He turned on his heel and re-entered the
bank. After he had unsuccessfully attempted to enlist
4/...
4. the help of the flying squad, he left the bank again.
Before doing so he substituted a bank bag containing paper for the one with
the
money. At this stage the Colt Galant was parked about a block away. Accused no 3
was standing close by looking at a shop window.
Joubert returned to the bank and
telephoned his assistant at his place of work. He re-emerged from the bank, this
time apparently
without either of the bags. . At this point he recorded the
registration number of the colt Galant, CA 115478. When his assistant
arrived he
was given the money and left. The Colt Galant again drove off and stopped a
short distance away in such a position that
its occupants could see Joubert and
the entrance to the bank. At this stage a traffic officer, Mr de Goede, arrived
on the scene.
Joubert told him what had happened. Joubert saw the car drive off,
presumably because its occupants had seen him talking
5/...
5.
to a traffic officer in uniform. De Goede also took note of the car,
which he described as a "mustard-coloured Colt", and before it
drove off he saw
that three Black men were seated in it. De Goede set off after it. He also, by
radio broadcast, gave a description
of the car and its registration number to
all traffic officers on duty at the time, one of whom was the witness, Mr
Spence.
Later that same day the complainant, Mr Pienaar, went by car to the Parow
branch of Barclays Bank in Voortrekker Street to collect
the weekly wages to be
paid to employees of his firm. The money, consisting of coins and bank notes and
totalling Rl 662,44, was
handed to him in a canvas bank bag. This he locked in
the boot of his car. On his way back, at about 2 pm that afternoon, he parked
his car
6/...
6. to make a purchase. Whilst he was away the lock of the
boot was removed and the money stolen from the boot.
Mr Louw, another State witness, told the complainant what he had seen. He and
his wife were seated in their car in a parking area
close to where Pienaar had
parked his. Louw saw three Black men tamperihg with the boot of the car. They
opened it and
took what he described as a "yellow packet" from it.
They
then dispersed. One of them walked to a Colt Galant motor car, which Louw
described as beige, yellow or mustard-coloured, and
drove off in it. At the time
he told Pienaar what had happened he handed him a piece of paper on which Louw
had recorded the registration
number of the Colt Galant. Pienaar said in
evidence that as far as he could recollect the registration number given to him
was 11576,
but he was not certain
7/...
7. of the last few digits.
Pienaar, on his return to his firm, reported the matter to one of his
colleagues, Mrs Spence. By strange coincidence she was the wife
of Spence, the
traffic officer who had received de Goede's radio message. On receiving this
information from Mr Pienaar, she telephoned
her husband at the traffic police
depot at about 3 pm saying that the wages had been stolen and furnishing him
with the registration
number "CA 15478" together with a description of the car
as given to her by Pienaar. Spence checked the number on the computer and
found
that no such number had been designated to any vehicle. He, however, linked this
number to the registration number broadcast
in the radio message (CA 115478) and
deduced that this was probably the car involved.
8/...
8.
At about 4 pm that afternoon he spotted and stopped a
Colt Galant with such a registration number. Accused no 1 was the driver,
accused
no 2 was next to him and accused no 3 was seated at the back. At that
stage another traffic officer, Mr de Villiers, arrived on the
scene. Spence saw
him pull out "some bank bags" from underneath the passenger seat of the car. The
three accused were conveyed by
Spence in a patrol car to the Goodwood police
station, accompanied by de Villiers and another traffic officer on motor cycles
as
outriders. On their way to the police station de. Villiers signalled to him
to stop the car. When the car had come to a standstill,
de Villiers opened the
door and pulled from the trouser leg of one of the accused - Spence could not
say which - a length of wire
that he had been trying to secrete or replace in
his trouser leg. (De Villiers, who could no doubt have
9/...
9. said which accused did this, was not called as a
witness.)
On reaching the police station the accused were handed over to a detective,
Sgt Swiegers. Earlier that afternoon Pienaar had reported
the theft to him.
Swiegers found a palm print on the boot of Pienaar's car which turned out to be
that of accused no 1. The evidence
on the amount of money found in the car and
on each accused was not all that explicit. When Spence spoke of "bank bags"
taken from
the car it is not clear whether he was referring to móre than
one canvas bag or to the small plastic bags in which notes and
coins of the same
denomination were contained. The accused were searched before they reached the
Parow
10/...
10. police station, where they and the exhibits, including
the money, were handed over to Swiegers. He made the necessary entries
in an
exhibit register. This register or extracts from it were produced in court.
Details of certain of those entries were elicited
and placed on record during
the cross-examination of Swiegers. According to these entries: R114,75 was found
in the bank bag; R197,08
on accused no 1; R528,21 on accused no 2; and R238,87
on accused no 3. The evidence of what was reflected in these entries, though
elicited by the defence, is hearsay since Swiegers was not present when the
search took place or when the money was taken from the
car and from each
accused. Be that as it may, it appears to have been common cause that a bank bag
containing a large amount of money
was found in the car, that each of the
accused had money in his possession and that the total amount of money found
11/...
11. was considerably less than the sum stolen - in fact
about half the amount.
The State sought to prove that each accused committed the theft by relying on
direct identification on the part of the two witnesses,
Louw and Joubert, and on
certain circumstantial evidence.
Louw's evidence on identification need not detain one. He was unable to point
out any of the accused at the identification parade.
Before us counsel for the
respondent did not seek to rely on the evidence of this witness for
identification purposes. However, there
are no grounds for rejecting his
statement that he saw three Black men committing the theft in the manner
described by him.
12/...
12. Joubert's evidence on identification is another matter. In his
evidence-in-chief he described how he observed both accused on
more than one
ocasion when they were in the street outside the bank and he in addition saw
accused no 3 inside the bank building.
He too attended the parade held on 12 May
1986 where he pointed out accused nos 2 and 3 by placing his hand on the
shoulder of each
one of them. He was standing-approximately opposite the middle
point of the line bef ore doing so. No 2 accused was more or less
opposite him
and accused no 3 was on his far right hand side as he faced them. He does not
know what notes of the proceedings were
recorded. As he put it, he simply did as
he was told and pointed out these two persons.
Sgt Cockerell conducted the identification parade and had no other interest
in the investigation
13/...
13. of the case. He recorded the proceedings on the form
(SAP 329) used for this purpose. This was handed in as an exhibit. According
to
this form there were 16 men on parade. Though they bore no numbers, those in the
line were allocated, for record purposes, numbers
from 1 to 16 from left to
right as one faces them and their names were entered on the form against the
appropriate number. According
to this form, accused nos 1, 2 and 3 were in
positions 4, 9 and 14 respectively. As regards the pointing out by Joubert, the
form
reads: "Wys No 9 sonder versuim uit" but there is no reference to his
identifying accused no 3. The evidence of Cockerell accords
with what appears on
the form, namely, that Joubert pointed out one person only: accused no 2. The
witness was not asked by the prosecutor
whether this assertion was based solely
on what is stated in the form or whether he had in
14/...
14. addition an independent recollection of what took place.
Predictably such question was not put in cross-examination. Instead he
was
asked: "En as mnr Joubert enige ander persone uitgewys het, sou u natuurlik dit
aangeteken het op daardie vorm, korrek?" The
witness, not surprisingly, answered
this question affirmatively and the matter was left at that.
This is a rather perplexing contradiction. The trial court remarked on it,
did not attempt to resolve it and, one infers, did not
rely on Joubert's
identification of accused no 3 in convicting him. After discussing the
contradiction and the evidence of Joubert,
the judgment reads: "Die hof laat dit
daar, want hy het eintlik volgens die vorm net beskuldigde 2 uitgewys." The
court a
quo
accepted Joubert's version of what took place by concluding
that Cockerell was
15/...
15. relying on his (incorrect) notes because he "clearly"
had no independent recollection of what took place. But, as has been pointed
out, this question was not canvassed in evidence.
On an appraisal of all the evidence in this regard I consider that Joubert's
testimony can be confidently accepted in preference to
that of Cockerell for a
number of reasons.
Joubert's evidence on his pointing out at the parade of accused no 3 - and no
2 for that matter - was positive and reads convincingly.
One has the firm
impression that he was recounting what he vividly remembered - to the extent of
recalling where the two persons
were standing in the line opposite. And, one
notes, his recollection in this regard corresponds with
16/...
16. the positions these two men had in fact taken up. It
can hardly be disputed that Joubert pointed out
two
men. Had he pointed
out but one, it is highly unlikely that he would have dishonestly claimed to
have identified a further person,
accused no 3, in order to implicate him, in
the knowledge that a number of people had witnessed his identification (and
probably
in the knowledge - or perhaps one should say on the assumption-- that
the proceedings were being accurately recorded). Moreover,
if this evidence were
fabricated, it is most unlikely that he would have by coincidence placed accused
no 2 in his correct position
in the line. It is every bit as unlikely that he
could have
mistakenly
thought that he had identified a second person,
whether it be accused no 3 or anybody else. It is in this regard significant
that
in his statement subsequently made to the police he is recorded as
17/...
17. having said that two persons were identified by him at
the identification parade.
There are other considerations which lend credence to his evidence on what he
did at the parade. He had ample opportunity to take
a hard look at accused no 3
and every reason for doing so. He was, as I háve said, suspicious of the
conduct of the three
men he had seen and had reason to suspect that he might be
their target. He saw accused no 3 at close quarters at the bank. Joubert
had, as
he put it, "eye contact" with him and was able to notice that the outer rims of
his eyes were inflamed. It is noteworthy
that Joubert was able to point out
accused no 2 "without hesitation" ("sonder versuim") although he had
considerably less opportunity
of taking note of him than of accused no 3. During
cross-examination Joubert said that he suspected
18/...
18. that accused no 1 was also at the parade and standing
in the line to his (Joubert's) left (where in fact we know he was positioned)
but that he did not point him out because he was not 100% certain of his
identification of this accused. This shows that his approach
was a cautious one
and points to his being certain of his identification of the other two. Finally
one must refer to the fact that
during cross-examination on behalf of accused no
3 it was put to Joubert that this accused would say that he was in fact not
pointed
out by Joubert at the identification parade. However, accused no 3 did
not take the witness stand to contradict Joubert's evidence
and confirm that of
Cockerell.
Taking all these considerations into account the inference is inescapable
that Joubert's evidence is
19/...
19. correct and acceptable and that Cockerell is mistaken and his
notes inaccurate.
On this finding the circumstantial evidence against accused nos 2 and 3 is
substantial. The evidence on the make of the car and its
registration number
irrefutably proves that it was seen by Joubert at 10 am, by Louw at about 2 pm
and that it was the car
in which the three accused were travelling at about
4
pm when it was stopped by Spence. It is true that Pienaar was vague and
wrong in his recollection of the registration number as given
to him by Louw. It
must have been CA 15478 or CA 115478. It was the former number that Pienaar in
turn conveyed to Mrs Spence. Obviously
one digit of the registration number came
to be omitted by Louw or Pienaar and this is how the discrepancy is to be
explained. It
is
20/...
20. fanciful to suggest that another car of similar make and
colour, bearing (illegally) the registration CA 15478 was used in the
actual
theft.
Against the background of these facts it is on the face of it beyond the
range of realistic coincidence that, after accused nos 2
and 3, as members of
the group of three, were behaving suspiciously when seen by Joubert, they were
replaced by two other men for
the theft itself but were nevertheless shortly
afterwards found in this car and in the company of accused no 1, whose palm
print
established that he was a party to the theft. In the circumstances, if in
fact either of them was absent during this intervening
period when the offence
was committed, they were plainly under a duty to testify and explain how this
came about. In the
21/...
21. absence of any such explanation the strong
prima facie
case becomes proof beyond reasonable doubt.
The application for leave to appeal has not been included in the record
before us. For this reason it is not clear whether leave to
appeal against the
sentence was in fact granted. Be that as it may, Mr Fischer, who appeared on
behalf of the appellants, candidly
- and in my view correctly - conceded that,
in the light of the previous convictions of each of these accused, he was unable
to advance
any reasons why their sentences should be reduced.
The appeals of both appellants are dismissed.
M E KUMLEBEN JUDGE OF APPEAL
E M GROSSKOPF JA) SMALBERGER JA) - Agree