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[2014] ZAWCHC 96
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Mdidimba v S (A45/14) [2014] ZAWCHC 96 (25 June 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Reportable
CASE
NO: A45/14
DATE:
25 JUNE 2014
In the matter
between:
SIMPHIWE
MDIDIMBA
...................................................
Appellant
And
THE
STATE
...................................................................
Respondent
JUDGMENT
DELIVERED ON 25
JUNE 2014
HENNEY, J et
ROGERS, J
[1] The Appellant
was convicted on 12 December 2013 on one count of robbery with
aggravating circumstances committed at Nyanga on
2 June 2010. It was
alleged that he robbed the complainant, Beauty Baninzi of R1000,00
cash, 3 bottles of Brandy and an Omega
enforce fire system. On 17
December 2013 he was sentenced to 10 years imprisonment. With the
leave of the court a quo, he appeals
against his conviction.
[2] The Appellant
was arraigned with three other accused to whom we shall refer to
where necessary as accused no.1, accused no.2
and accused no.3. The
Appellant was
the fourth accused
and he was the only one who was convicted by the court a quo.
[3] The Evidence
Evidence of the
complainant
Beauty Baninzi is
the complainant and she stays at Mphetha Square, Zwelitsha, Nyanga.
The Appellant is known to her as Trimpie.
On 2 June 2010 she was at
her home between 21h00 – 22h00. The Appellant and accused no.2
entered her house through the
kitchen door. The complainant operates
a shebeen from her place of residence. The Appellant and accused
no.2 entered the premises
first. It seems that the door was open.
The security gate in front of the door was not locked and the accused
pushed it open before
she could lock it properly. A third person
also entered and went into her bedroom. They ransacked her place by
going through
all the cupboards and threw everything out on the
floor.
[4] Accused no.2
took some alcohol from a fridge, and the Appellant took R1000,00 cash
that was kept in a plastic bag, as well as
the complainant’s
cell phone. The Appellant was the one who asked where the money was.
The Appellant thereafter asked for
more money and took out an okapi
(ou kapie) knife. She did not see him stabbing her with the knife
but she was bleeding. She
was unable to recall how she sustained her
injury. The witness further testified that she saw accused no.3
coming from her room
with an amplifier. She was shoved around in the
house and she was dizzy. She recognized accused no.2 because he was,
as she also
put it, a “bit tall”. She also remembers him
by the particular hairstyle he had. He had dreadlocks. When he came
in she did not see who it was, but when he left, she saw him from
behind and she could see from his hair that it was him. Accused
no.2
was the one who took 3 bottles of brandy. After they took her
belongings, they left and not long after that the police came
to her
house. The police came back with 2 cases of beer. She later went to
the police station to lay a charge.
[5] She testified
that Accused no.2 and Accused no.3 each had a firearm. She saw it
when they came and asked her for money. Accused
no.2 pointed the
firearm towards her face and it was in that time when she was touched
with the ou kapie. The witness further
stated that the Appellant
pushed her against a wall. The injury sustained was just a small
prick. Her children came to help her
afterwards. The incident
happened very quickly. Although accused no.2 had a hooded top on his
head, accused no.3 and the Appellant
did not have anything over their
heads. The Appellant’s head was shaven.
[6] Accused no.2 did
not say anything. The complainant testified that on 19 October 2010
they went to Manenberg Police Station
to attend an identity parade
but it was cancelled. In cross-examination she testified that she
did not see accused no.1. She
only saw 3 persons in her house. It
was accused no.1 and accused no.2 and the Appellant.
[7] She further
stated that she took a good look at the Appellant because he is known
to her. She did not have much time to observe
the face of accused
no.2. The Appellant was however very close to her. She further
testified that although she was in shock,
she did not make a mistake
about the identity of accused no.2 although she did not know him.
[8] The complainant
testified that the Appellant grew up in front of her and she had
known him since he was a small child. She
further testified in
cross-examination that the Appellant pointed at her with a gun and
also had a knife. She only saw the knife
at the time when he pushed
her. The Appellant did not have the gun and the knife with him when
they entered her house. She further
testified that she is unable to
say how she sustained the wound. She further said that she could not
say what clothes the Appellant
was wearing. She further stated that
she has trouble with her eyesight. Sometimes she goes blind and is
unable to see or read.
[9] She further
denied that she made a mistake due to the failing eyesight when she
pointed out the Appellant and the other accused
and that on the night
in question, she did not have any problems with her eyesight.
[10] Sizakele Ngqele
is a policeman and his evidence was to explain why an identity parade
was not held. According to the evidence
of one of the witnesses, the
erstwhile attorney of the accused informed him that the Appellant and
the other accused saw the witnesses
before the identity parade was
held. The identity parade was therefore cancelled. The evidence
does not however take this matter
any further.
[11] Skumbuzo Sani
is the grandson of the first witness Beauty Baninzi and testified
that on 2 June 2010 he was at his grandmother’s
place between
21h00 – 22h00 that evening. He testified that accused no.1,
accused no.3 and the Appellant were known to him
for years. He knows
them from the area. This witness, the other accused and the
Appellant all stayed in the same area, Zwelitsha.
Accused no.2 was
not known to him. On the day of the incident, he saw the Appellant
enter the house of his grandmother. The
Appellant was in the company
of accused no.1. They opened the burglar gate. The witness
testified that he left the house and
went to look for help. He went
to their neighbour to contact the police. At that same time, he saw
the Appellant and accused
no.1 coming from his grandmother’s
house. Accused no.1 had a case of beer in his possession, but he
could not see what the
Appellant had in his possession. Thereafter
he went back to his grandmother’s house who informed him what
had happened.
He cannot remember what accused no.1 or the Appellant
was wearing. He never had any problems with either accused no.1 or
the
Appellant.
[12] In
cross-examination, Sani explained that at the time, when accused no.1
and the Appellant entered the house, he was sitting
and drinking beer
with a friend of his, Nazo. He drank about 5 beers. According to him
the lights inside the house were shining
bright. He further
testified that he did not see any other person enter the house at the
time when he was there. He further testified
that he did not ask the
Appellant what he was doing at the gate when he saw him standing
there. He also knew the Appellant by
the name of “Trimpi”
and he knows where he lives. He was further unable to say how
accused no.2 became involved in
this case and did not point accused
no.1 out to the police.
[13] Under
cross-examination he said that he was confused and in a state of
shock when he told the police two unknown males entered
his house.
When he was further asked why he had not mentioned in his statement
that it was accused no.1 and the Appellant, and
that he knows where
they lived, he also said that he was confused. He further testified
that he did in fact mention their names
to the police, but that it
was not written down and that, it was the police who made a mistake
when they did not write down the
names of the accused no.1 and the
Appellant. He denied that he did not give the names to the police
because he did not know who
they were.
[14] It was pointed
out to this witness in cross-examination that he said in his
statement that he also saw accused no.3 at the
time when he was at
his neighbour’s house, pointing or gesturing to the other
accused to go towards his grandmother’s
house. In response to
this, the witness answered that he saw all 3 of them, but he only saw
accused no.3 a bit later when he was
outside. Later on, he said he
forgot to tell the prosecutor about accused no.3. He further
testified that the only person that
he did not mention was accused
no.2, because he did not know him and testified that when he came out
of his neighbour’s house,
he saw quite a number of people. He
did not see them clearly because it was dark. There was however
sufficient light for him
to clearly see Accused no.1 and the
Appellant. It was only accused no.1 and the Appellant that he could
clearly see. He later
testified that he could see the people outside
the house, because of the spread of the street lights. He further
testified that
it was at that stage that the Appellant looked to his
side and then downwards.
[15] He further
could not say why his grandmother said that accused no.3 was inside
the house, whereas he said that Accused no.3
did not enter the house.
He denied that the Appellant and the other accused were not in his
grandmother’s house. He further
denied that he said that the
Appellant and the other accused were in his grandmother’s house
because his grandmother had
told him about it. He further said in
cross-examination that he did not see whether any of the persons
entering the house, had
a weapon.
[16] Ntandazo
Ndengane was the next witness who testified on behalf of the
prosecution. Only accused no.1, accused no.3, and the
Appellant were
known to him. He grew up with them. They are however not his
friends. He further said that accused no.1, accused
no.3 and the
Appellant are known to each other and they are friends. On 2 June
2010 he was also present at the shebeen of the
complainant. Ndengane
testified he was having a beer, when two gentlemen first appeared.
At that stage, the previous witness
left. After the witness left,
three other gentlemen appeared. The first two gentlemen instructed
them to lie down. The other
one went to the side of the house where
the complainant, to whom he referred as “Mamjeli”, was
behind a burglar gate.
He however could not see what they were busy
doing inside. He then saw people passing cases of beer from the
inside of the building,
where the complainant was towards the
outside. He saw these people taking four cases of beer. Thereafter
they left. This witness
said at that stage he was scared and only
stood up after about 15 minutes. He recognized these people by their
clothing and after
they left the premises, they went in the direction
of Cross Roads.
[17] The police
thereafter arrived and he accompanied the police into the area of
Cross Roads where they found one person who had
a “warm”
beer in his possession and two other persons who were walking with
two cases of beer. The police however
did not manage to apprehend
these people. The witness further testified that he is unable to
identify any of the persons that
were involved in the incident. He
did not see any of their faces.
[18] In his
evidence, the Appellant denied any involvement of the offences in the
commission for which he was charged. On 2 June
2010 on the night
when the incident is alleged to have occurred, he was at home with
his aunt. The complainant, Ms Beauty Baninzi,
is known to him. He
further denied that he was involved in the robbery of the
complainant. Throughout the day in question, he
was at home and did
not leave his house.
[19] He was arrested
in July 2010 during which time the police came to his house and asked
if he was “Trimpie”. He
appeared in court alone when the
case was postponed. At the next appearance, he met his co-accused.
On that same day, he was
told that they were going to hold an
identity parade. For this purpose he was taken from Athlone
Magistrate’s Court to Manenberg
police station. He was
accompanied by his fellow accused. When they arrived at the police
station, they found people sitting
there. Accused no.3 then said,
“Here are the people who are going to point us (them) out.”
He (accused no.3) said
that the lady who said they robbed her was
also there, whereupon a police officer who opened the door of the
vehicle in which they
were travelling remarked that it was not right
for the people who were going to point them out in the identity
parade to see them
before the time. They were taken to a cell to
wait for their attorney. When the attorney arrived, accused no.3
told her what
happened. They told the attorney that the lady who at
that stage was wearing a scarf, who is also known as “Mam
Mcherry”,
and who was present, was the one who said that they
robbed her. (The name “Mam Mcherry” in the record is
probably a
different phonetic transcription of the same name given by
the last State witness, namely “Mamjeli”.) According to
the Appellant, Mam Mcherry is the owner of the shebeen that they say
was robbed. She was the lady who testified in court. The
accused’s
attorney thereafter went to these people and she came back and
confirmed to them that they were going to point
them out at the
identity parade. At that stage, they were still waiting for the
investigating officer. The identity parade did
not proceed. The
Appellant further testified that he knows the witness Skumbuzo Sani.
They stayed in the same area. He only
heard in court for the first
time that there was a robbery at the shebeen.
[20] Grounds of
Appeal
The main thrust of
the attack on the conviction of the Appellant is that the
identification of the Appellant based solely on the
evidence of the
complainant, Beauty Baninzi, is not reliable enough to sustain a
conviction, in particular, due to the fact that
this witness admitted
that she had problems with her eyesight. A further ground of appeal
that she contradicted herself whether
it was accused no.2 or the
Appellant who demanded money from her, as well as in respect of who
the person was who pointed at her
with a firearm. Lastly, it was
argued that she was also contradicted by the witness Ndengane, who
testified that all the perpetrators
had hoodies over their heads,
whereas the complainant testified that they had nothing over their
heads. The complainant is further
contradicted by Ndengane who
testified that he could not see their faces.
Evaluation
[21] We do not agree
with the submissions made by the Appellant. In our view, the
Regional Magistrate gave a comprehensive and
carefully considered
judgment. In evaluating the identification evidence of the
complainant, he applied the relevant cautionary
rules to test the
reliability thereof. He found that she made a very good impression
on the court. He was aware of the fact that
during the evaluation of
identification evidence the witness needs not only be honest but also
reliable. In regard to honesty,
it was not argued at the trial or on
appeal that the complainant’s testimony was dishonest. The only
question was whether
she was reliable or whether there was a
reasonable possibility that she was mistaken.
[22] In assessing
the reliability of her evidence, the magistrate placed great emphasis
on the fact that the Appellant was known
to the complainant and that
she had known him for many years. This fact was not disputed.
According to the objective further
evidence, this was the very reason
why the identity parade was not held, because of the fact that the
Appellant recognized her
as the person who he knew as Mam Mcherry,
the shebeen owner whose shebeen had been robbed.
[23] The Regional
Magistrate, in further assessing the reliability of the complainant’s
identification evidence, mentioned
that according to her evidence,
the Appellant stood directly in front of her. He spoke to her
directly when he asked for her cell
phone and money.
[24] We do not agree
that the reliability of the complainant’s identification
evidence can be called into question because
of her concession that
she had failing eyesight. This could have been a factor to consider
if the lightning in the room where
the incident occurred had not been
very good or if the Appellant had not been in close proximity of her.
Those, however, were not
the circumstances of the case.
[25] We also do not
agree with the further criticism that she contradicted herself as to
whether the Appellant or accused 2 demanded
money from her, where she
initially said accused 2 demanded money and later said that the
accused 2 did not say a word and the
Appellant asked for money and
was doing all the talking. The complainant was never confronted with
this inconsistency or contradiction,
if it can be regarded as such,
or asked to clarify it either by the prosecutor, counsel for the
Appellant and the court. We do
not think it can be regarded as a
contradiction by the court a quo if regard is to be had to the
overall impression which she created
in her evidence which is, that
the Appellant was the person that was doing all the talking and not
accused 2.
[26] As regards the
other contradiction concerning the question whether accused 2 or the
Appellant had a firearm, her evidence is
clear that initially she did
not see the Appellant with a firearm, but only afterwards. She did
not say that accused 2 only had
a firearm to the exclusion of the
Appellant. In any event, even if this evidence can be regarded as
contradictory, it does not
adversely affect the reliability of her
identification evidence.
[27] We also do not
regard the evidence of Ndengane, who could not and did not see the
faces of any of the assailants, as having
an adverse impact on the
reliability of her evidence. Ndengane was clearly not as involved
with the attackers as she was. He
had only seen them briefly before
they went into the part of the house where the complainant was.
[28] A point which
the Regional Magistrate did not refer to in his assessment of the
evidence of the complainant was that her version
was, albeit only to
a limited extent, corroborated by the evidence of her grandson
Skombizo Sani who also placed the Appellant
at the scene of the
robbery. The Appellant was also known to Sani. However, the
Regional Magistrate, due to the contradictory
nature of his evidence,
did not place much reliance thereon.
[29] The Regional
Magistrate was in our view also correct in finding that the evidence
of the Appellant was not reasonably possibly
true. The reasons upon
which the Regional Magistrate based his finding were that the
Appellant’s version was not only inconsistent
and contradictory
but also improbable. The Appellant clearly was a dishonest witness
in many respects, especially where he denied
that he told his legal
representative the version that was put to the various state
witnesses by his counsel about his involvement
in the robbery. When
he was pushed for an answer about a version that was put to the State
witnesses, he either said he forgot
what his legal representative
told the witness or that he did not give her instructions at all.
For these reasons,
we are unable to find that the Regional Magistrate’s assessment
of the evidence upon which he convicted
the Appellant can be faulted.
[30] Before
concluding, we wish to comment on a procedural aspect. When the trial
in the court a quo resumed on 25 October 2012,
the prosecutor placed
on record that he had been told by police officers and by the court
orderly that the appellant had made utterances
to the effect that as
soon as they got out of prison they were going to kill him The
prosecutor said he would nevertheless continue
on that particular day
to assist (ie not inconvenience) No 3’s witness, Michael Pitts.
When the matter resumed on 15 November
2012, the prosecutor said that
the matter was on the roll to ascertain the State's position
regarding the threats made by the appellant
against the prosecutor.
The prosecutor said that he had taken a decision to “recuse”
himself because he had to think
of his safety and because he would
not be doing justice by having to go through "the
cross-examination against the very same
person whom I know…
has made these particular threats threatening my life". The
defence advocate said she had nothing
to say about the allegations
but did not object to a further postponement.
[31] On 21 November
2012 the prosecutor said he had raised with his senior the threats
made by the appellant. His senior had advised
him to reduce the
allegations to writing, which the prosecutor had done. The matter had
been referred to the DPP’s office
for a risk assessment. The
prosecutor asked for a further postponement. On 13 December 2012 the
matter was again postponed because
the DPP had not completed the risk
assessment. On 30 January 2013 the prosecutor informed the magistrate
that, having consulted
telephonically with the DPP’s office, he
had "decided to proceed with the case to its conclusion and in
so doing to
avoid further delays". The trial then proceeded
without further reference to the alleged threats.
[32] In our view, it
was irregular, and an error of judgment on the part of the
prosecutor, to disclose to the magistrate the alleged
threats. In
effect, hearsay information, prejudicial to the appellant and his
character, was communicated by the prosecutor to
the magistrate. The
Regional Magistrate might even have thought, in the light of this
disclosure, that he would need to recuse
himself. The proper course,
if the prosecutor thought he might need to withdraw from the case,
was to discuss the matter privately
with defence counsel, in which
event the legal representatives would probably joined in requesting
the magistrate to postpone the
case for sound reasons which they were
not at liberty to disclose to the court. If defence counsel refused
to consent to this course,
the prosecutor could simply have informed
the magistrate that he was seeking a postponement on sound ethical
grounds which it would
not be proper to disclose to the court.
[33] We do not think
that in the event the irregularity vitiates the trial. The evidence
against the appellant was strong. The prosecutor's
cross-examination
of the appellant does not appear to have been inappropriately
aggressive. The alleged threats were not raised
in the evidence. The
magistrate made no reference to them. Nevertheless, we trust that
prosecutors, faced with similar dilemmas
in the future, will be
guided by our remarks. We also think that magistrates should in such
a situation promptly intervene to prevent
further disclosure and
should, if disclosure has already slipped out, make clear to the
accused in open court that the unproven
assertions will have no
effect on the court’s assessment of the evidence.
[34] In the result
therefore we make the following order:
“That the
appeal against conviction is dismissed”.
HENNEY , J
Judge of the High
Court
ROGERS, J
Judge of the High
Court