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[2012] ZAWCHC 269
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Valentine v S (A206/2012) [2012] ZAWCHC 269 (1 June 2012)
JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
: A206/2012
DATE
:
01 JUNE 2012
In
the matter between:
XAVIER
VALENTINE
...................................................................................
Appellant
and
THE
STATE
.............................................................................................
Respondent
JUDGMENT
CLOETE,
AJ
:
The appellant, who was
legally represented throughout the trial, was convicted, as charged,
on 9 November 2011 in the Parow Regional
Court on two counts of
robbery with aggravating circumstances and sentenced on 16 November
2011 to an effective five years direct
imprisonment. With the leave
of the trial court he now appeals against both his conviction and
sentence.
The appellant had
pleaded not guilty and had exercised his right to remain silent and
not to provide a plea explanation.
The State called three
witnesses, being the two complainants and a security officer, Mr
Mkuntse who was one of the people who had
apprehended the appellant.
The latter testified in his own defence and called his sister, Ms
Barends, to testify, on his behalf.
It was common cause
that on the evening of 23 May 2011 the two complainants were robbed
of their cell phones while standing on the
platform at Netreg train
station in Bishop Lavis, and that they subsequently identified the
appellant as the perpetrator. Both
cell phones as well as the firearm
allegedly used in the robbery were never found. The only issue in
dispute was whether the complainants
had correctly identified the
appellant.
The first complainant,
Mr Masebe, testified that the robbery had occurred at dusk at about
6:15 p.m. A male person wearing a grey
Nike top with a hood pulled
over his head and black tackies approached him and his companion, Ms
Kolokoto, the second complainant.
The person had a firearm in his
hand which he pointed at Ms Kolokoto, who was talking on her cell
phone, and instructed her to
hand the cell phone to him, which she
did. He then pointed the firearm at Mr Masebe and demanded his cell
phone, which he took
out of his jacket pocket and handed over. The
person then put the gun into the side of his clothing and moved
towards the steps
leading down from the station platform where three
others were waiting for him about 8 meters away. Mr Masebe chased
after the
attacker but stopped when the latter’s companions
started throwing stones at him.
Shortly thereafter a
train pulled into the station and four security officers climbed out.
Mr Masebe reported the incident to them
and they apparently told them
that there was nothing they could do since the perpetrator and his
companions had already fled the
scene. According to Mr Masebe, it had
been five minutes later that the perpetrator was again seen by him on
the station platform.
This time the perpetrator was alone. Mr Masebe
called the same security officers who had alighted from the train a
few minutes
earlier. They ran towards the appellant, who was standing
with his back to them, and apprehended him. The appellant was found
in
possession of his own identity document.
Mr Masebe also
testified that although it was dusk when the incident occurred, he
could clearly see the perpetrator’s face.
He could not however
dispute the appellant’s version that he had already been
standing on the station platform when Mr Masebe
had returned after
pursuing his attacker. He could also not dispute the appellant’s
version that the train from which the
security officers had
disembarked had only puiled into the station about 30 minutes after
the incident. Mr Masebe conceded that
he was in shock after the
robbery to the point that he was crying when he identified the
appellant as the perpetrator.
During her testimony Ms
Kolokoto confirmed Mr Masebe’s version of events, although she
claimed that the perpetrator had again
been seen on the station
platform five to 10 minutes after the incident. She testified that
when the appellant was confronted by
the security officers, he told
them that he was; waiting for his sister to arrive by train.
During
cross-examination it was put to Ms Kolokoto that when the appellant
was apprehended, he was wearing a red and black hooded
top bearing
the logo “Quicksilver” and brown and orange tackies. She
was adamant, however, that his tackies had been
black and that he was
wearing a grey hooded Nike top.
Despite having
initially testified that the perpetrator was again spotted on the
station platform about five to 10 minutes after
the incident, it is
clear from Ms Kolokoto’s subsequent evidence that this could
not have been the case, since she said that
the train from which the
security officers had disembarked pulled into the station at 6:55
p.m. or 7 p.m. This must mean that about
30 minutes had passed since
the robbery before the train arrived. She confirmed that she too was
extremely shocked after the incident.
Adding further doubt as
to the timing of events was the testimony of the security officer, Mr
Mkuntse who said that he had only
arrived by train at the Netreg
station at 7:20 p.m., thus approximately an hour after the robbery
allegedly took place. Mr Mkuntse
confirmed that the. appellant was
simply standing on the station . platform and had said that he was
waiting for his sister to
arrive by train. Mr Mkuntse could not .
recall the colour of the appellant’s clothing or tackies, nor
did he volunteer that
the appellant’s clothing had any
distinctive features.
No other witnesses were
called by the State to corroborate the complainant’s testimony
relating to the clothing worn by the
appellant, despite Mr Mkuntse’s
evidence that he had been assisted by the other security officers
when apprehending the appellant
and that the appellant had
subsequently been handed over to the police.
The appellant testified
that he received a call and immediately thereafter left the home
which he shared with his family, including
his sister, at 6:26 p.m.
that evening, in order to meet her at the station for safety reasons.
It is about a 35 minute walk and
he arrived there at 6:50 p.m. He
usually met her at Bishop Lavis station but because trains were
delayed that day she had requested
him to collect her at Netreg
station. She was scared to walk alone, because she had been robbed at
that station on previous occasions.
When he reached the
station he waited on the platform for her train to arrive. He was
confronted by the security officers who demanded
to know if he had
robbed anyone and where his firearm was. He informed them that he had
no knowledge of any robbery and that he
was simply standing on the
platform waiting for his sister. He claimed that the security
officers then assaulted and handcuffed
him and pulled him away from
the platform. He sent his sister a text message to call him.
The appellant
maintained that he was wearing a black, hooded top bearing the logo
“Quicksilver” and orange and light
brown tackies. He had
pulled his hood over his head since it was raining. He explained that
he had not run away when approached
by the security officers since
there was no reason for him to do so. He had only been standing on
the station platform for five
minutes before he was apprehended by
the security officers.
The appellant testified
that after he was taken from the platform he noticed a missed call on
his cel! phone from his sister. She
arrived at the station about 15
minutes later. He was cross-examined about how exactly his sister had
arrived at the station. His
evidence was that she had walked there
from their home, apparently accompanied by a family friend and that
when she arrived her
clothing was wet.
The appellant denied
that he owned any clothing of the type described by the complainants.
The appellant’s sister confirmed
that she had contacted him by
text message and a phone call at 6:25 p.m. on the evening in question
requesting him to meet her
at Netreg station. She was able to provide
detail as to why she could confirm the time of her text message. That
detail was not
seriously challenged during cross-examination.
When the appellant’s
sister eventually arrived at the station she could not see him on the
station platform. Her cell phone
was running out of airtime and she
and her colleague decided to start walking. It began to rain and they
walked quickly. As she
arrived home, she saw a text message from the
appellant, asking her to call him, which she then did. The appellant
told her that
he was with the security officers and sounded to her as
if he wanted to cry. She immediately left home and ran back to the
station
in the rain with a family friend. She confirmed that when she
got there, the appellant had been assaulted.
The appellant’s
sister confirmed that he was wearing a black Quicksilver hooded top
which she said she had purchased for him
on her Edgars account, and
red and. light brown tackies. She denied that the appellant owned a
grey hooded top.
It
was against this background that the prosecutor correctly submitted
in the Court a
quo
that although the State witnesses appeared to have been honest in
their testimony it could not be said that objectively the evidence
was sufficiently reliable to discharge the onus that rested upon the
State to establish the guilt of the appellant beyond a reasonable
doubt. He also correctly highlighted the fact that the appellant’s
conduct before he was apprehended was inconsistent with
that of a
person who had just committed two serious offences.
This notwithstanding
the magistrate convicted the appellant after having reasoned as
follows:
1. The two complainants
had sufficient opportunity to look at the appellant’s face
during the robbery itself.
2. After identifying
the appellant by his clothing, when he later stood with his back to
them on the station platform, they had
recognised his face once he
had turned around.
3. There were some
contradictions in the evidence of the appellant and his sister which
she regarded as material. In particular
the evidence that according
to the appellant his tackies were orange and light brown and
according to his sister they were red
and light brown. She also
regarded the contradiction in their testimony about whether the
appellant’s sister had sent him
a text message as well as
having called him to meet her at the station, as sufficient to place
real doubt on their version.
4. She found as a fact
that the identification of the appellant took place 10 to 15 minutes
after the robbery.
5. She delved into what
can only be described as speculation about the presence of Ms
Barends' work colleague when she arrived by
train with him at the
station and why, if the appellant and his sister were to be believed,
they were content to leave Ms Barends’
eight year old daughter
alone at home every day for an hour so that the appellant could meet
his sister at the station in accordance
with their arrangement. I say
that this was speculation for the simple reason that neither of these
two aspects had been sufficiently
canvassed during the course of the
trial.
In my view the
magistrate was wrong in reaching the conclusion which she did. Of
crucial importance was the timing of the robbery
and: the subsequent
identification of the appellant. The evidence of both complainants
showed that they had identified the appellant
not minutes after the
robbery as the magistrate, found,: but at least half an hour
thereafter. The evidence of Mr Mkuntse was
of no assistance in this
regard since on his version he only arrived at the station at 7:20
p.m. which was an hour after the
robbery.
It is not understood
how the Magistrate in her judgment could have accepted Mr Mkuntse’s
evidence, then criticised the appellant’s
legal representative
for not having challenged him on this aspect - although it was in
the appellant’s favour - and then
found as a fact that the
complainants identified the appellant as the perpetrator only 10 to
15 minutes after the / robbery.
The timing of the appellant’s
presence on the station platform to meet his sister about 30 minutes
after the robbery was
not only supported by the testimony of the
complainants themselves, but also by that of the appellant and his
sister.
Contrary to the
magistrate’s finding it is my view that the evidence of the
appellant and his sister corroborated each other
in all material
respects. Despite having had the opportunity to do so, the State
called no other witnesses to confirm what clothing
the appellant was
wearing when he was apprehended and subsequently arrested. It also
cannot be said that the appellant’s
testimony that his tackies
were orange and light brown, and his sister’s testimony that
they were red and light brown,
constitutes a material contradiction.
Further the evidence of the appellant and his sister that her
clothing was wet when she
arrived back at the station after he was
apprehended, was not challenged.
However, having found
the evidence concerning the appellant’s tackies to constitute
a material contradiction in the evidence
of the defence witnesses,
the magistrate appeared to attach little or no weight to the other
evidence regarding the appellant’s
clothing and instead
concentrated on the reliability of the complainants’
identification of the appellant’s face.
In this regard the
magistrate based her conclusion on the reliability of that
identification on an incorrect assumption, namely
that the
identification had taken place 10 to 15 minutes after the robbery
when on the evidence of all the witnesses it had to
have been at
least 30 minutes later.
And it was common
cause that both complainants were in shock; that the appellant’s
conduct prior to him being apprehended
was not that of a person who
had just committed two serious offences; and that the complainants’
cell phones and the weapon
allegedly used during the robbery were
never found.
It
is trite that the honesty of a complainant cannot on its own
translate into reliability and, having regard to all of the evidence
before the Court a
quo
it is my view that the magistrate was wrong in concluding that the
appellant’s version was not reasonably possibly true.
She
misdirected herself in convicting the appellant and the appeal must
succeed.
In the result I
propose the following order:
1.
THE APPELLANTS APPEAL
AGAINST HIS
CONVICTION AND
SENTENCE IS UPHELD.
2.
THE
CONVICTION
AND SENTENCE ARE SET ASIDE
CLOETE,
AJ
I agree and it is
so ordered:
BLIGNAUT,
J