About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2000
>>
[2000] ZASCA 183
|
|
S v Mohlathe (230/99) [2000] ZASCA 183; 2000 (2) SACR 530 (SCA) (29 September 2000)
CASE
NO 230/99 REPORTABLE
IN
THE SUPREME COURT OF
APPEAL
OF SOUTH AFRICA
In
the matter between
D
MOHLATHE
APPELLANT
and
THE
STATE
RESPONDENT
CORAM : F H GROSSKOPF, SCOTT
et
PLEWMAN JJA
HEARD : 26
SEPTEMBER 2000
DELIVERED: 29
SEPTEMBER 2000
Further
evidence in support of application for condonation for late filing of
heads of argument in Court below admitted on appeal
- circumstances
justifying admission of such evidence - identity parade - need to
ensure that non-suspects be similar to suspects
in general appearance
- desirability of photograph to enable Court to see for itself.
J
U D G M E N T
SCOTT
JA
/.....
SCOTT JA
:
[1] The appellant was convicted on
two counts of robbery in the Regional Court. He was sentenced to 10
years imprisonment on each
count
but eight years of
the sentence on the one was ordered to run concurrently with the
sentence on the other so that in the result
the effective period of
imprisonment imposed was 12 years. Both counts related to incidents
in which female motorists were robbed
of their vehicles at gun point.
Originally the appellant (who was accused 2 at the trial) was charged
with four counts of robbery.
However, one of the counts (count 1) was
withdrawn before the commencement of the trial. He was acquitted on
count 2 but convicted
on counts 3 and 4. As to his fellow accused,
accused 1 was convicted on counts 2 and 4 (and acquitted on count 3),
while accused
3 and 4 were convicted on counts 2, 3 and 4.
[2] The appellant noted an appeal to
the Witwatersrand Local Division against both his conviction and
sentence. Counsel’s
heads of argument were filed 13 days late.
The appellant’s application for condonation of the late filing
was refused by
the Court
a
quo
without
reference to the merits of the appeal and the appeal was struck from
the roll. The present appeal is against that order
and is without the
leave of the Court of
a
quo
, such leave
being unnecessary. (See
S
v Gopal
1993 (2)
SACR 584
(A).)
[3] The dates and events relevant to
the application for condonation in the Court
a
quo
are recorded in
the judgment of Blieden J as follows:
“
1. On 11 June 1998 the
appellant was informed that the appeal would be heard on 6 November
1998, which is today.
On the same date
and in the same notice, the appellant was informed that his heads of
argument were to be filed on or before 6 October
1998, such being the
date fixed in terms of Rule 8(1) of the Rules of the High Court
(Transvaal Provincial Division and Witwatersrand
Local Division).
2. On 8 October 1998 as the
appellant’s heads of argument had not been filed by the due
date referred to in the above paragraph,
the respondent served a
notice to have the appeal struck off the roll and this notice was
served on the appellant’s attorney
and counsel.
3. On 19 October 1998, some thirteen days out of time
the appellant filed his heads of argument with the respondent and the
court.
4. On 29 October 1998 the respondent
filed its heads of argument. In these heads of argument the
in
limine
point was
taken that as the appellant had not filed any application for the
condonation of its late filing of his heads of argument
the appeal
should be struck off the roll.
5. On 4 November 1998, that is two days before the
dates fixed for the hearing of this appeal, the present application
for [condonation
for] the late filing of the appellant’s heads
of argument was served.”
[4] Subsequent to the trial, the appellant’s
mother, acting on his behalf, terminated the services of the attorney
who had
represented him at the trial and engaged a new legal team to
prosecute the appeal. At the time the appellant was in custody as,
indeed, he still is. The application for condonation was supported by
the affidavit of the appellant’s mother. The sole explanation
advanced for the late filing of the heads appears from the following
paragraphs of her affidavit.
“8. There were several consultations with Counsel
prior to October 1998 in connection with this appeal. However,
shortly
before 6 October 1998, the due date for the filing of the
Appellant’s Heads of Argument, I had a further consultation
with
Counsel and was presented with a rough draft of the Heads of
Argument prepared by Counsel. I was not satisfied that all material
points had been raised in said draft and presented Counsel with
several pages of points for argument which I insisted be canvassed
in
the Heads of Argument.
9. I was advised by Counsel that as a result of these
new points he was compelled to reread substantial parts of the
record, the
record being some 600 pages in length, to consider
whether my points had any merit in them.
10. My insistence on this course of action as set out
above, I intended to be in the best interests of the Appellant.
However, because
Counsel had to consider new fresh points, reread
substantial parts of the record and include these points in the Heads
of Argument,
it resulted in same being filed late with the above
Honourable Court.”
[5] In dismissing the application
the Court
a quo
noted its vagueness and lack of candour and emphasised that no
attempt had been made to explain why the preparation for the
appellant’s
heads of argument had only taken place shortly
before 6 October 1998. It pointed out further that the appellant’s
attorney
had not made an affidavit explaining the reason for the
delay and concluded that in effect no acceptable explanation had been
furnished
for the delays, including the delay in the filing of an
application for condonation.
[6] In this Court counsel for the
appellant (who was not the counsel who represented the appellant in
the Court
a quo
)
readily conceded that having regard to the explanation advanced in
the Court below he was unable to contend that it had erred
in
dismissing the application for condonation and striking the appeal
off the roll. He accordingly relied solely on the further
evidence
which it was sought to place before this Court by way of an
application in terms of s 22 of the Supreme Court Act 59 of
1959.
[7] The evidence sought to be admitted is contained in
the affidavits of the appellant himself, his present attorney, his
mother
and other members of his family. There is much which is of
little relevance but the following are the salient facts or
allegations
which emerge from the affidavits.
(a) From the time of his conviction and sentence (the
latter being imposed on 23 December 1997) the appellant has been
intent upon
appealing against both his conviction and sentence.
(b) In early January 1998 members of the appellant’s
family, acting on the recommendation of a friend, approached an
advocate
directly, i e not through an attorney, and requested him to
prosecute the appeal on the appellant’s behalf. The advocate,
to whom I shall refer as ‘K’, accepted the brief and on
13 January 1998 personally visited the appellant in prison
to obtain
his power of attorney to prosecute the appeal.
(c) The appellant’s family paid K a total of R11
000 for his services. This amount was paid in instalments. The first,
of
R4 500, was paid in May 1998. The final instalment of R1 000 was
paid on 8 September 1998.
(d) The appellant took an active interest in the
progress of his appeal. At least on two occasions he produced
hand-written notes
relating to the merits of the appeal which were
rewritten (and the grammar corrected) by his mother and handed to K.
The first,
dated 28 May 1998, contained nothing, apart from certain
references to the Constitution, which would not have been readily
apparent
from a reading of the record. The second, dated 8 October
1998, was no more than a repetition of something the appellant said
in
his evidence in chief.
(e) In response to a telephone call on 3 November 1998,
the appellant’s mother visited K in his chambers on 4 November
1998.
(This, it will be recalled, was the day on which the
application for condonation was filed.) She was given an affidavit to
sign
dealing with what K described as “a technical aspect”.
She said she paid little regard to its contents and merely did
what
she was told. K handed her a copy of his heads of argument which she
studied at home.
(f) On reading the heads, she realised that there was
to be an application for the appeal to be struck from the roll. She
immediately
telephoned K to arrange to see him on 5 November 1998,
which she did. K told her not to worry and that it was normal
practice for
the courts to accept affidavits seeking condonation for
the late filing of documents.
(g) The following day, 6 November 1998, the appellant’s
mother and other members of his family were in court when the appeal
was struck from the roll.
(h) On 9 November they consulted the appellant’s
present attorney. They also lodged a complaint against K with the
Society
of Advocates. As a result, a member of the society has been
appointed to investigate the complaint. The amount of R11 000 paid to
K has since been returned.
[8] The circumstances in which this
Court will admit further evidence, whether on affidavit or otherwise,
or remit a matter to
the court of first instance for the hearing of
further evidence are extremely limited and the basic requirements
that must be satisfied
before such a course will be adopted are well
established. The formulation of those requirements by Holmes JA in
S
v De Jager
1965(2)
SA 612 (A) at 613 C - D has been repeatedly quoted. It reads:
“
(a) There should be some reasonably sufficient
explanation, based on allegations which may be true, why the evidence
which it is
sought to lead was not led at the trial.
(b) There should be a
prima
facie
likelihood of
the truth of the evidence.
(c) The evidence should be materially relevant to
the outcome of the trial.”
The need for circumspection is
obvious. Quite apart from the interests of finality, there is always
the possibility of evidence
being fabricated after conviction to meet
a weakness in an accused’s case exposed in the judgment (
S
v N
1988(3) SA 450
(A) at 458 F - G). In the present case, of course, the evidence
sought to be admitted does not relate to the guilt
or innocence of
the appellant but to the circumstances in which the heads of argument
on behalf of the appellant came to be filed
some 13 days late in the
Court below. At the time the appellant was in custody. The best
person to explain the delay would have
been the appellant’s
erstwhile legal representative, K, who was engaged to prosecute the
appeal and whose duty it would have
been to file the heads of
argument timeously. That person chose not to make an affidavit
himself but instead to draft an affidavit
for the appellant’s
mother to sign which was hopelessly inadequate. At the time the
appellant’s mother relied upon
him for advice and to do what
was necessary to carry out his mandate with reasonable skill. By
the very nature of things it is
understandable that the appellant
should now find himself hard pressed to provide an explanation why
the evidence sought to be
admitted was not placed before the Court
a
quo
. The mandate
of K has been terminated. His conduct in relation to this case is
presently being investigated. The appellant is
unlikely to obtain his
cooperation in these proceedings. In appropriate circumstances this
Court has the power to relax strict
compliance with the requisite of
a “reasonably sufficient explanation”, but only in rare
instances (
S v Njaba
1966 (3) SA 140
(A) at 143 H). The present case seems to me to be
such an instance.
[9] The main thrust of the argument
advanced on behalf of the respondent was, however, that the new
material did not assist the
appellant as there was still no
explanation for the failure to file the heads of argument timeously.
There was also no explanation
why the application for condonation
was filed only two days before the matter was to be heard.
Accordingly, so it was contended,
the evidence sought to be
introduced was not “materially relevant to the outcome of [the
application]”. (See subpara
(c) of the passage quoted above
from
De Jager
’s
case.) This brings me to the criteria to be applied when considering
an application for condonation. In
Melane
v Santam Insurance Co Ltd
1962 (4) SA 531
(A) at 532 C Holmes JA pointed out that
“
the basic principle is that the Court has a
discretion, to be exercised judicially upon a consideration of all
the facts, and in
essence it is a matter of fairness to both sides”.
The learned judge continued:
“
Among the facts usually relevant are the degree
of the lateness, the explanation therefor, the prospects of success,
and the importance
of the case. Ordinarily these facts are
interrelated: they are not individually decisive, for that would be a
piecemeal approach
incompatible with a true discretion, save of
course that if there are no prospects of success there would be no
point in granting
condonation”.
(See also
S
v Di Blasi
, 1996(1)
SACR 1 (A) at 3f - h.) Whether an explanation is acceptable or not
for the purpose of granting condonation is therefore
essentially a
matter for the discretion of the court to be exercised in the light
of all the circumstances of the case including
the considerations
referred to in the passage quoted above.
[10] It is true that K did not make an affidavit in
which he acknowledged the fault to be his or attempt to explain that
the reason
for the failure was something beyond his control. What I
think is clear is that the appellant’s family did all that was
expected
of them. They could hardly have done more. Counsel for the
respondent pointed out that the appellant’s mother did not
refute
the explanation contained in her earlier affidavit of 4
November 1997 to the effect that shortly before 6 October 1998 (the
date
by which the heads had to be filed) she had furnished K with
several pages of points which she insisted be canvassed in the heads
of argument. But this does not mean that the blame must be laid at
her door. K could easily have incorporated the points briefly
in his
heads and filed a supplementary note later, or he could merely have
done the latter and explained to the appellant’s
mother the
importance of filing the heads timeously. In any event, if the
appellant’s notes annexed to the papers are anything
to go by
it is difficult to imagine that an advocate who had read the record
would have had much difficulty in adapting his heads
to accommodate
some layperson’s point which he thought might have merit.
Presumably, neither the appellant nor his mother
are trained in the
law. In all the circumstances the inference is overwhelming that the
late filing of the heads of argument was
solely the fault of K.
[11] As was pointed out by Steyn CJ
in
Saloojee And
Another NNO v Minister of Community Development
1965 (2) SA 135
(A) at 141 C,
“
there is a limit beyond which a litigant cannot
escape the results of his attorney’s lack of diligence or the
insufficiency
of the explanation tendered.”
He warned:
“
To hold otherwise might have a
disastrous effect upon the observance of the Rules of this Court.
Considerations
ad
misericordiam
should not be allowed to become an invitation to laxity.”
But the present is not a case in which the client simply
left it to the practitioner to get on with the case. On the contrary,
the
appellant’s family took a keen and active interest in the
prosecution of the appeal and kept themselves informed of
developments.
There was nothing they could have done to avoid the
heads being late. In the event, the heads were filed 13 days out
of time
and eight days prior to the hearing. No doubt this would have
caused much inconvenience, but the delay was not inordinate.
Similarly
there was a delay in filing the application for
condonation, but this, too, was no more than a matter of a few days.
This does
not seem to me to be an instance where the dilatoriness of
the practitioner is to be visited on the client.
[12] In all the circumstances I have come to the
conclusion that the evidence sought to be admitted is sufficient to
tip the scales
in favour of the appellant at least to the extent that
it would be inappropriate to refuse condonation without reference to
the
prospects of success. The evidence will accordingly be admitted.
Whether condonation is to be granted or not must depend therefore
solely on an assessment of the prospects of success of the appeal.
This is the question to which I now turn.
[13] It was not in dispute that on the evening of 18
November 1996 Ms Dianne Kritzinger, the complainant in count 3, was
robbed
of her BMW motor car. Her account of the incident, in brief,
was the following. She said that just after 7 pm as she pulled into
her driveway in Jukskei Park, Randburg, she observed a white BMW
motor car parked in her neighbour’s driveway. She was about
to
alight when she was approached by two men. They were both armed with
handguns. The one came to the driver’s door and the
other, whom
she later identified as the appellant, climbed into the passenger
seat next to her. She was pulled out of the driver’s
seat and
the two robbers drove off in her car. At the same time the white BMW
pulled away, driving slowly in the opposite direction.
[14] There was a marked similarity between Ms
Kritzinger’s experience and that of Ms Ann Murphy, the
complainant in count
4, who was robbed of her BMW motor car on 4
December 1996. She testified that at about 7.15 pm, as she pulled
into the driveway
of a friend in Jukskei Park, Randburg, a white BMW
motor car drew up alongside her. Four men jumped out. Two came to
her door;
they were both armed with handguns. One of them she
identified the next day as the appellant. The window of the driver’s
door was smashed and she was pulled out of the car. She tried to
make for a nearby gate but was confronted by the other two who
had
come from the white BMW car. They grabbed her and ripped her watch
from her wrist and two chains from her neck. The robbers
then drove
off in her motor car followed by the white BMW. She observed two
men in the latter vehicle.
[15] An identification parade was held at the Brixton
police station the next day, 5 December 1996, at which the appellant
was
pointed out by both Ms Kritzinger and Ms Murphy. Their
identification of the robbers was the subject of much criticism at
the trial.
Ms Kritzinger not only pointed out the appellant at the
identification parade but also a “non-suspect” whom she
said
was one of the persons she saw in the white BMW. She also
requested that accused 4 be asked to step forward so that she could
have
a better look at him. (The witnesses were required to identify
persons through tinted one-way glass.) Although she refrained from
positively identifying him then, she did so months later in court.
Ms Murphy identified both the appellant and accused 4 at the
identification parade. At the trial, however, she confused accused 4
with accused 3, pointing out the latter as the person she
had
identified at the parade. The constitution of the parade itself
was similarly criticised, both with regard to the age and
the build
of the non-suspect participants. The appellant also alleged that he
had been denied the right to have his attorney present.
[16] It is convenient to consider first the appellant’s
conviction on count 4. The evidence against him on this count
strikes
me as overwhelming, even if his identification by Ms Murphy
is disregarded.
[17] Some time prior to the robberies the police had
set up what was described in evidence as a “front” house
in Olivedale
where stolen vehicles were “received” at
prices far below their true market value. The operation was conducted
mainly
by inspector Silamolela who was attached to a special
investigation unit at Braamfontein. In his dealings with the
underworld he
was known as “Brian”.
[18] On the evening of 4 December 1996 captain Ludick
of the organised crime unit, Johannesburg, was at the “front”
house in the absence of inspector Silamolela. He testified that at
7.30 pm a blue-grey 316 BMW motor car pulled up outside the
gate. The
appellant who was the driver got out of the car and came to the gate
where he was met by Ludick. The appellant asked
for “Brian”.
Ludick told him that Brian was not there and suggested that the
appellant speak to him on his cellular
phone. The appellant then
drove the car through the gate and parked it outside the garage.
Ludick observed that the other occupants
were the other three
accused. The right front window was broken. All four accused then
proceeded to search the vehicle and found
in it various items
including a handbag and a baseball bat. The appellant handed the keys
of the car and also the immobiliser to
Ludick and said that he would
arrange with Brian for payment for the car. In the meantime Ludick
had noticed a white BMW motor
vehicle parked outside with two
occupants. He made a mental note of its registration number. The
four accused then got into the
white BMW which drove away.
[19] A decision was taken to arrest the accused the
next day at the “front” house when they came to collect
the money
for the vehicle which had been delivered to Ludick. At
about 10.30 am on 5 December Ludick was on his way to the “front”
house for the purpose of procuring the arrest of the appellant and
the other 3 accused when he saw all four of them in the same
white
BMW motor car presumably headed for the same destination. The
appellant was the driver. Ludick was accompanied by sergeant
Mostert,
inspector Holtzhausen and superintendent Fourie. He feared that one
or other of them may have been recognised as policemen
and the
decision was accordingly taken to arrest the appellant and his fellow
accused there and then. The white BMW was stopped,
its occupants
first frisked for weapons and then more thoroughly searched. Ludick
testified that he found a gold chain in the
pocket of the appellant’s
jeans. Inspector Holtzhauzen confirmed having been shown the chain,
although he did not actually
observe Ludick finding it on the person
of the appellant. The investigation officer, sergeant Ras, was
called to the scene.
He testified that he was handed the gold chain
by Ludick who also gave him the keys to the BMW motor car which had
been left
at the “front” house the previous evening.
Ras testified that both the BMW motor car and the gold chain were
identified
by Ms Murphy as the motor car and chain respectively which
had been taken from her the previous evening.
[20] The appellant denied in evidence that he had
participated in any of the robberies or that he had gone to the
“front”
house on the evening of 4 December 1996. As far
as the events of 5 December were concerned, he said that he had
merely been given
a lift by the others and was on his way to assist
his aunt whose motor car would not start. He said that he had taken
over as
driver from accused 3 as the latter complained that his leg
was sore. The explanation offered by the other accused who gave
evidence
was that they similarly were innocent and were merely acting
on behalf of someone known as “oupa” who had sent them
to
the “front” house to collect money.
[21] The trial court accepted the evidence of Ludick
and rejected that of the accused (including the appellant) to the
contrary.
I can see no reason for interfering with this finding. It
was not suggested that Ludick’s identification of the appellant
was merely mistaken. Nor, I think, could this be seriously contended.
According to Ludick he had a conversation with the appellant
on the
evening of 4 December 1996. He again saw the appellant the next
morning at 10.30 am when the latter was arrested. The intervening
period was therefore no more than a matter of hours.
[22] It was suggested on behalf of the appellant that
had he indeed been involved, it is improbable that he would have
handed
the vehicle over to Ludick whom he did not know. But the
“front” house as a place where vehicles were purchased
was
known at least to accused 3 and 4 who had delivered Ms
Kritzinger’s vehicle to that address and received payment for
it.
In any event, the fact remains that Ms Murphy’s vehicle
which had been “high-jacked” at 7.15 pm was delivered
to
the “front” house some 15 minutes later and the keys
entrusted to Ludick. However unwise it may have been for the
robbers
to trust Ludick, they must have believed that he was in the business
of receiving stolen motor vehicles.
[23] Ludick was also criticised for not arresting the
persons concerned
on the evening of 4 December when they were still in
possession of the stolen
vehicle. This criticism is misplaced. As explained by
Ludick, he and sergeant
Haley were the only policemen present at the time.
(Haley was hiding in the
house to avoid possibly being recognised.) He,
Ludick, was unarmed and he
had no way of knowing whether the six persons (the four
appellants and the two
occupants of the white BMW)
were armed or not.
His decision not to attempt an
arrest, it seems to me, was a wise one in the
circumstances.
[24] With regard to the gold chain,
it was put to Ludick in cross-examination that the appellant would
say in evidence that Ludick
had “planted” it on the
appellant and then “found” it on him at the Brixton
police station. However, in
his evidence in chief
the appellant gave
a somewhat different version. He said that while they were at the
Brixton police station Ludick had approached
him with the chain and
asked him where it had come from. In cross-examination the appellant
attempted to reconcile the two versions.
His attempt was far from
persuasive. In any event, according to Ras the chain was handed over
to him at the place where the appellant
was arrested and before he
and the other accused were taken to the Brixton police station.
[25] It follows that I am satisfied that the appellant
was correctly convicted on count 4 and there can be no reasonable
prospect
of him succeeding on appeal. The same is true of the
sentence of 10 years imprisonment imposed in respect of this count.
It is
true that the appellant was a first offender and only 21 years
of age at the time of the offence, but the regional magistrate was
fully aware of this. He nonetheless felt that the gravity of the
offence was such that a sentence of 10 years imprisonment was
called
for. I am unpersuaded that there is any justifiable reason for
interfering with this sentence.
[26]
The
appeal against the order refusing condonation must therefore fail in
so far as it relates to count 4.
[27] I turn to count 3. The
appellant’s conviction
on this count
rested almost entirely on the evidence of Ms Kritzinger who
identified him as one of the robbers. As previously mentioned,
Ms
Kritzinger pointed out someone at the identification parade who was
not a suspect. She also identified accused 4 at the trial
as one of
the robbers although she had failed to point him out at the parade.
Furthermore, the constitution of the identification
parade itself
was in my view far from satisfactory. According to the printed
form, which was completed at the time, those participating
in the
parade were said to be “of about the same height, build, age
and appearance and were dressed more or less similar
to the
suspects”. But this was clearly not so. The oldest of the four
accused was 23. The appellant was 21 and accused
4 only 17 years
old. It appears from the form, which records the ages of the suspects
as well as the non-suspects, that of the
15 non-suspects, one was 40
years of age, six were in their thirties and two were 29. Sergeant
Jordaan who was in charge of the
parade suggested that in appearance
they were all more or less of the same age. I have difficulty
accepting that the difference
in age between say a 17 year-old and a
40 year-old would not have been immediately apparent. No photographs
were taken so as to
enable the court to judge for itself.
[28] The same difficulty arises in relation to the
question of height. Two of the accused, the appellant and accused 4,
were tall
and slim, the latter being taller than the former. Accused
3 was very short and accused 1 somewhat taller. The appellant
testified
that he and accused 4 were the tallest at the parade. His
evidence was to some extent supported by that of Mr Medlock who
attended
the parade as a witness in respect of count 2. He
described accused 4 as standing out “head and shoulders above
the other
people in line”. Jordaan sought to refute this by
saying that one of the non-suspects, Rashid Kaldin was no more than a
few centimetres shorter than accused 4 and that there was another
non-suspect who was of the same height and build as the appellant.
But not only was Rashid Kaldin described as “coloured”,
he was 40 years of age, almost twice as old as the appellant
and more
than twice as old as accused 4. The person who, according to Jordaan,
was of the same height and build as the appellant,
was not
identified. Once again the absence of a photograph precluded the
court from seeing for itself and making its own assessment.
[29] Common sense dictates that the
non-suspects participating in an identification parade should be
similar to the suspect in
general appearance. Indeed, as appears from
the identification parade form which was used on this occasion, it is
a matter of police
practice that the non-suspects be “of about
the same height, build, age and appearance” as the suspect and
that they
be similarly dressed. Where the parade includes several
suspects whose general appearance is markedly different, whether on
account
of height, build, age or otherwise, care should be taken to
ensure that there are sufficient non-suspects whose general
appearance
approximates that of each of the suspects. In such
circumstances it may be advisable to hold more than one parade,
particularly
if the number of non-suspects that would be required
would result in the parade being unduly large and cumbersome. If the
number
of non-suspects whose general appearance approximates that of
each suspect is too few, or if there are other features of the parade
which may materially influence an identifying witness, the probative
value of the identification will be greatly reduced. The danger
in
such a case is, of course, that, because the identification is made
at a parade, it carries with it an assurance of reliability
which is
unjustified. (See
R
v Kola
1949 (1) PH
H 100 (A).)
[30] In order to succeed in relation to count 3 the
appellant has to show that there is a reasonable prospect of success
on appeal.
In the light of the unsatisfactory features of the
identity parade to which I have referred and the shortcomings of Ms
Kritzinger
as an identifying witness the conclusion to which I have
come is that condonation for the late filing of heads of argument
should
be granted in respect of the appellant’s conviction on
count 3. For the reasons given in relation to count 4, I am
unpersuaded
that there are reasonable prospects of success in so far
as the appeal against sentence is concerned.
[31] In the result the following order is made:
(a) The application in terms of s 22 of the Supreme
Court Act 59 of 1959 to admit further evidence is granted.
(b) The appeal against the refusal
of the Court
a quo
to grant condonation for the late filing of heads of argument in
relation to the appeal to that Court against the conviction on
count
3 is upheld and condonation for such late filing of heads of argument
is granted.
(c) The appeal against the refusal of
the Court
a quo
to grant condonation for the late filing of heads of argument in
relation to the appeal to that Court against the conviction and
sentence imposed on count 4 is dismissed, as is the appeal against
the refusal of the Court
a quo
to grant such
condonation in relation to the appeal to that Court against the
sentence imposed on count 3.
(d) The matter is referred back to the Witwatersrand
Local Division for adjudication of the appeal against the conviction
on count
3.
D
G SCOTT
Concur
:
F
H GROSSKOPF JA
PLEWMAN JA