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1995
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[1995] ZASCA 82
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S v Khan (468/93) [1995] ZASCA 82 (24 August 1995)
CASE NO
: 468/93 N v H
IN THE SUPREME C
OURT OF SOUTH AFRICA (
APPELLATE DIVISION)
In the matter between:
ZUFYR KHAN
and
THE STATE
SMALBERGER, JA
Case No: 468/94 N v H
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between:
ZUFYR KHAN
Appellant
and
THE STATE
Respondent
CORAM
: SMALBERGER, STEYN, JJA, et
VAN COLLER, AJA
HEARD
: 15 AUGUST 1995
DELIVERED
: 24 AUGUST 1995
JUDGMENT
SMALBERGER, JA:
The appellant was convicted in May 1993 in the Magistrate's Court, Verulam,
of assault with intent to do grievous bodily harm.
2
He was sentenced to a whipping of five strokes in terms of
sec 294
of the
Criminal Procedure Act 51 of 1977
and, in addition, to three months imprisonment
conditionally suspended for five years. His appeal to the Natal Provincial
Division
against both his conviction and sentence was unsuccessful, but he was
granted leave to appeal to this Court. Since then the Constitutional
Court has
ruled that
sec 294
is inconsistent with the Republic of South Africa
Constitution Act 200 of 1993 and has ordered that no sentence imposed in terms
of that section shall be carried out
(S v Williams and Others
1995(7)
BCLR 861(CC)).
The main issue on appeal is one of identification. The evidence establishes
that at about midday on 27 April 1991 the complainant,
Reginald Lee Naidoo, was
fishing in a stream near his home. He was accompanied by another youngster named
Anil Singh ("Anil"). The
two boys were aged 10 and 11 years respectively. A
youth standing in an elevated position on an
3
adjoining bank shouted to them to go away. When they failed to respond he
threw a half-brick (sometimes referred to in evidence as
a stone) in their
direction. The missile struck the complainant on his left eye causing severe
injury to, and resultant permanent
blindness of, the eye.
The evidence is
somewhat inconclusive with regard to whether or not the person responsible for
the complainant's injury was alone
at the time, but this is a matter of no great
moment. The complainant was unable to identify the person concerned; Anil, the
only
other witness for the State, testified that it was the appellant who had
thrown the half-brick. The trial magistrate accepted Anil's
evidence despite the
appellant's denial under oath that he was the guilty party.
Anil's honesty as a witness was not seriously questioned on appeal, but the
reliability of his identification was. The appellant has
a friend, Rakesh
Nundlall ("Rakesh"), who testified in
4
circumstances which I shall outline in due course. The evidence reveals that
Anil lived in the same general vicinity as Rakesh and
the appellant. They were
both known to him, Rakesh by name but the appellant only by sight. It is common
cause that in his original
statement to the police Anil named Rakesh as the
person who threw the half-brick that struck the complainant. On the strength of
this Rakesh was originally accused as the perpetrator. However, at a later
identification parade on which both Rakesh and the appellant
were present, Anil
pointed out the appellant as the one who had actually thrown the half-brick. It
is a matter for comment, and indeed
concern, that Anil's statement implicating
Rakesh was not, in the light of his contradictory evidence in court, made
available to
the defence, as its contents may have discredited him completely as
a witness. In relation to why he initially mentioned Rakesh,
Anil's evidence,
when questioned by the trial magistrate, was to the following effect:
5
"Who's Rakesh? — His friend's name. I didn't know
his
name.
The accused's friend. What did you tell the police about
Rakesh? — He asked me if I saw who threw a stone. I
said, yes.
What did the police ask you? — Did you see who threw
a stone?
Yes? — I said to him, Rakesh did.
You said Rakesh? — Did.
Rakesh threw the stone? Why did you say that? — Well,
I didn't know his name.
Why didn't you tell the police that it was Rakesh's friend that
threw the stone, not Rakesh? — I didn't know his name.
So why didn't you say it was Rakesh's friend, you don't know
his name? Why did you say Rakesh threw the stone —
(No reply).
No answer? — No."
Rakesh did not initially testify at the
trial. It was only after reserving judgment that the magistrate, some three days
later, on
the appointed day for giving judgment, exercised her discretion to
call Rakesh as a witness. It appeared that Rakesh had made a written
statement
to the police on 3 July 1991. In his statement he
6
claimed that on the day of the incident he was at work the whole
day
(which was not strictly correct as he had returned home at
about midday
(lunch time) to collect his lunch which he had left at
home). His statement
then proceeds as follows:-
"I returned home the same day at about 19:30. I was approached by my neighbour
Zufyr [the appellant]. He stated to me that he had
a problem and I told him to
tell me.
He told me that during the day, there were a few boys in the drain behind my
house.
He requested them to leave but they refused to leave. He then stated that he
threw a half-brick into the drain and he heard a scream.
He then walked away and
began painting my house. Few minutes later he heard someone say the brick fell
from heaven."
When giving evidence Rakesh initially omitted any
reference to the appellant having mentioned that he threw a half-brick, as
recorded
in his statement. When confronted with the relevant passage he at first
vehemently denied having said what was recorded. It was
7
only when made to read the whole statement that he eventually
agreed with what was recorded in it
With regard to Rakesh's evidence the magistrate in her
judgment
said the following:
"The Court wants to place on record at this stage, that it is not at all
looking at the evidence of Rakesh. Although the Court called
this witness, the
Court is not taking any of his evidence into account, because the Court was not
exactly satisfied with the manner
in which this witness testified. My findings
will be based only on the evidence that was tendered to this Court, before
today."
In my view the magistrate was correct in not seeking, in the circumstances,
to place any reliance on Rakesh's evidence. He was a witness
with a possible
interest or bias and was clearly discredited on his own evidence. Having at one
time been, according to him, falsely
accused, it is unlikely that he would have
forgotten any admission made by the appellant of his involvement. The fact that
he did
not initially disclose the admission in evidence,
8
and even denied its existence, suggests that it was either never made
or
that he deliberately lied in withholding it. Either way his
evidence is not
worthy of credence. Nor can any reliance be
placed on the contents of his
statement. It therefore cannot in any
way be corroborative of Anil's
evidence.
One is accordingly left only with Anil's evidence and
the
unexplained discrepancy between his statement and his
evidence
regarding the identity of the person who threw the half-brick. Anil
claims to have known all along that the person concerned was the
appellant. If that is so it is inexplicable that he should have
referred to him in his statement as Rakesh (rather than Rakesh's
friend), something he was at a total loss to explain, as appears from
the passage from his evidence quoted above. The magistrate
sought to explain this away as follows:
"There is a possibility that he could have been mistaken about the accused's
actual name and he could have thought at that time, that
this was actually
Rakesh and believed this to be
9
Rakesh and that is why he furnished the name of Rakesh to the
police."
There is no factual foundation for the postulated
possibility. It is purely speculative. Anil at no time claimed, or even hinted,
that he had originally mistakenly been under the impression that the appellant's
name was Rakesh.
The magistrate, in accepting Anil's evidence, also relied heavily on the fact
that he had pointed out the appellant on an identification
parade. There is no
evidence on record with regard to the identification parade, whether it was
properly and regularly constituted
and conducted, nor were any admissions made
in this respect. This detracts from any value it might otherwise have had. In
any event,
the fact that Anil pointed out the appellant cannot take away the
fact that he initially implicated Rakesh, despite both being known
to him. If
anything, it is indicative of the uncertainty in his mind as to the identity of
the perpetrator.
10
Significantly, both Rakesh and the appellant were in the vicinity at the
approximate time of the occurrence. Either could thus have
committed the
offence.
Bearing in mind that Anil is both a child and a single witness with
regard to identification, his evidence must be approached with
the requisite
caution enjoined by law. His evidence is open to criticism in respects other
than those mentioned. But even if one
accepts that the conditions for accurate
observation were good, and that he was an honest witness, reasonable doubt
exists concerning
the reliability of his identification of the appellant arising
from his initial naming of Rakesh. In the result the State failed
to prove the
appellant's guilt.
The appeal is allowed and the conviction and sentence are set aside.
J W SMALBERGER JUDGE OF APPEAL
STEYN, JA )
VAN COLLER, JA) concur