JUDGMENT CASE NO: A735/2005

Transcription

1 1 IN THE HIGH COURT OF SOUTH AFRICA (CAPE OF GOOD HOPE PROVINCIAL DIVISION) CASE NO: A73/0 DATE: OCTOBER 06 In the matter of: THE STATE versus 1. SITHEMBELE PLATI 2. TOFO HEBE J U D G M E N T KLOPPER, AJ: 1 [1] The appellants appeared in the Regional Court at Paarl on charges of robbery with aggravating circumstances (count 1) and attempted murder (count 2). [2] The first appellant was convicted on count 1 and acquitted on count 2. convicted on both counts. The second appellant was On the first count, both appellants were sentenced to 1 years imprisonment. The second appellant was sentenced to a further six years imprisonment on count 2. The appellants appeal 2 is against their conviction and sentence, although it is --06/:13-:2 /.

2 2 clear from the record that leave to appeal against sentence was not granted by the regional magistrate. Counsel for the defence and State have, however, in their heads of argument submitted aspects concerning sentence. [3] The State s case was based mainly on the evidence of the complainant, a Mr Gaba, and his wife, whilst both appellants in their testimony denied being involved and in fact have alibis. It is not in dispute that the complainant was robbed at gunpoint of various personal items by two assailants. It is not in dispute that one of the assailants who was in possession of a firearm, fired two shots at the complainant and that he was struck by a bullet in the leg. 1 W hat, however, is in dispute is the identity of the assailants. [4] It is well known that evidence of identification must be approached with caution and that various factors and circumstances play an important role in determining whether evidence of identification is accurate and reliable. (See S v Mthetwa 1972(3) SA 766 (A) at 768A) The regional magistrate also correctly observed that the appellants did not bear the onus of proving an alibi. (See 2 S v Mhlongo 1991(2) SACR 7 A) --06/:13-:2 /.

3 3 [] The correct approach to an alibi is to consider the evidence holistically and as indicated in S v Hlapezulu & Others 196(4) SA 438 (A) at 442: in the light of all the evidence in the case, the Court s impression of the witnesses and from that totality to decide whether the alibi might reasonably be true. Not only must the identifying witness be credible, but the evidence of identification must also be reliable. [6] The regional magistrate in her judgment sets out the various factors, which she took into account and which 1 were pertinent to the question of identity in this case. They were: 1. The complainant and his wife s prior knowledge of the appellants. 2. The lighting at the time of the incident. 3. The first photo identification. 4. The second photo identification. [6] A summary of the testimony that was led is as follows: The complainant testified that he had prior knowledge of 2 the first appellant, including the fact that he had seen --06/:13-:2 /.

4 him in the township since his testimony, knew his name. 4 He also, according to From time to time he would see him at the supermarket. He believed that the first appellant stayed in the Chris Hani section of the township but there was no confirmation of this fact and it was disputed by the first appellant. [7] As far as the second appellant is concerned, the complainant and Mrs Gaba knew him on the scene by his name and they were able to supply his address at P Block, P300, Mbekweni. The second appellant was seen by both frequently in the township. Mrs Gaba s prior knowledge of the second appellant includes knowledge of his school years and his attendance at the Langa Vuya 1 School with her brother. She also received music lessons from second appellant s aunt. These facts were basically confirmed by the second appellant. The light at the scene of the robbery was not ideal, as indicated by the regional magistrate, but the evidence is that it was not totally dark and adequate light to identify someone came from the houses in the vicinity and a large floodlight situated some 0 metres away. This was not disputed by the defence. --06/:13-:2 /.

5 [8] There were furthermore various identifications done from photo albums on two occasions during which the photographs of the appellants were pointed out in these albums by the Gabas. More concerning the circumstances in which this was done will be dealt with infra. The particular albums unfortunately do not form part of the record and this Court does not have the benefit of viewing the circumstances in which these identifications were made. [9] As far as the evidence of both appellants is concerned, they testified that they were at their respective houses at the time of the incident and were not in any way involved. The regional magistrate accepted the evidence of 1 identification of the complainant in respect of the first appellant and the evidence of both the complainant and Mrs Gaba in respect of the second appellant. The denial of both appellants was rejected as not being reasonably possibly true. [] Mr Carnow, for the appellants, argued with reference to authority that the regional magistrate erred in regard to her finding on identification. Advocate Magona argued that this finding was basically correct /:13-:2 /.

6 6 [11] The regional magistrate, in my opinion, correctly rejected the evidence of Mrs Gaba concerning her ability to identify the first appellant because she was unable to do so according to her statement to the police. Based on the totality of the evidence, the regional magistrate did not reject her evidence on the identification of the second appellant and I am not convinced that she erred in this respect. The manner in which the complainant testified in English makes it difficult at times to follow his evidence and the regional magistrate had the opportunity over an extended period to observe both the complainant and Mrs Gaba and was therefore in a much better position to determine their credibility and demeanor as witnesses. 1 [12] There are a number of aspects, which corroborate the evidence of the complainant to be found in the testimony of Mrs Gaba concerning the involvement of the second appellant in the robbery and including the fact that he was in possession of a firearm. [13] Considering the evidence as a whole, I am not persuaded that the regional magistrate s finding in respect of the second appellant was incorrect /:13-:2 /.

7 7 [14] As far as the first appellant is concerned the following aspects raise concern. It appears that the complainant in his statement to the police was not in a position at that stage to supply the name of the first appellant, despite the fact that he indicates that he had prior knowledge of the first appellant which is as good as his knowledge of the second appellant. The circumstances in which the first photo identification was conducted are confusing in many respects, and the evidence in this regard in no way provides a basis for eliminating error or possible suggestion. [1] The investigating officer, Coetzee, who conducted this process, did not testify. Before a Court can rely on this 1 process as a means of identification, there must be a thorough investigation into the process and the circumstances in which the identification was made. (See S v Moti 1998(2) SACR 24 (SCA) [16] There is furthermore confusion surrounding the fact that the complainant identified photographs of Hebe and one Jack Molewe and the prosecutor s indication that this is one and the same person. This would indeed mean that the complainant only identified the second appellant on 2 this occasion, if Hebe and Molewe are the same person. --06/:13-:2 /.

8 8 The exercise of having the complainant go through the process of identifying photographs in the presence of the appellants did not increase the reliability of his identification in my opinion. There is furthermore the suspicious situation, which should have been, investigated further that in spite of Inspector Carolis indicating the contrary, names of both appellants were present under the relevant photographs in an album and the surname under the photograph of the first appellant had been amended from Lefatse to Plati. [17] If the complainant somehow managed to establish the name of a person, which could be linked to the second appellant, which he knew better, it would have been a simple exercise to page through the album and come up 1 with a photo indicated by that name. This was hardly a manner to establish reliability of identification. [18] Most of the other discrepancies in the testimonies of the complainant and Mrs Gaba relating to prior knowledge as identified by the regional magistrate in her judgment, relate to the first appellant, which furthermore places a question mark over the extent of the prior knowledge and the reliability of accurate identification. --06/:13-:2 /.

9 9 [19] Bearing in mind that a cautious approach is required and that the same guarantees for the complainant s identification of the second appellant do not exist in respect of the first appellant, I am of the opinion that there is a reasonable doubt regarding the reliability of the complainant s identification of the first appellant. [] For these reasons I am of the opinion that the appeal against the conviction of the first appellant should succeed and that his sentence should also be set aside. [21] As far as sentence is concerned, and although there was no leave in this regard, the Court does have an inherent jurisdiction to consider this. I find no reasons to do so 1 as the sentence is neither inappropriate nor excessive and the sentences of the second appellant were furthermore tempered by an order that they be served concurrently with the sentence that the second appellant was already serving. [22] As a result I would dismiss the appeal of the second appellant against conviction and sentence and confirm it /:13-:2 /.

10 KLOPPER, AJ MOTALA, J: I agree. The appeal of the first appellant is upheld. The conviction and sentence are set aside. The appeal of the second appellant is dismissed. The convictions and sentences on both counts are confirmed. MOTALA, J --06/:13-:2 /.