JUDGMENT. [1] The appellant was charged with and convicted of two counts of robbery with

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1 IN THE HIGH COURT OF SOUTH AFRICA EASTERN CAPE DIVISION, GRAHAMSTOWN C.A.& R: 141/2014 Date Heard: 25 February 2015 Date Delivered: 3 March 2015 In the matter between: KHANYISO KLAAS Appellant and THE STATE Respondent JUDGMENT EKSTEEN J: [1] The appellant was charged with and convicted of two counts of robbery with aggravating circumstances. He appeals with leave granted on petition to the Judge President against his conviction on count 2 only. [2] The State contends in count 2 that on 25 January 2013 the appellant and three others robbed the two complainants of R600 in cash, a Samsung cell phone, a tracksuit and a pair of shoes. It is not in dispute that on the said night the first complainant was walking with her boyfriend, the second complainant, in Zwide near Port Elizabeth when they were approached and robbed by four men. The incident occurred at approximately 11 o clock at night in darkness.

2 2 [3] The money and the cell phone were taken from the first complainant at gunpoint and the items of clothing were removed from the body of the second complainant. The second complainant was drunk and the evidence shows that three of the assailants attacked him whilst the fourth, carrying a firearm, robbed the first complainant. The second complainant did not see any of his attackers and is unable to contribute at all to the determination of the identity of the attackers. The first complainant, however, says that it was the appellant who attacked and robbed her. The appellant denies any knowledge of the event and denies that he was present at the scene contending that he was at his home at the time. [4] The sole question for adjudication before the magistrate related to the identity of the person who attacked and robbed the first complainant. [5] In S v Mthetwa 1972 (3) SA 766 (A) at 768A-C Holmes JA considered the question of identification and stated: Because of the fallibility of human observation, evidence of identification is approached by the Courts with some caution. It is not enough for the identifying witness to be honest: the reliability of his observation must also be tested. This depends on various factors, such as the lighting, visibility, and eyesight; the proximity of the witness; his opportunity for observation, both as to time and situation; the extent of his prior knowledge of the accused; the mobility of the scene; corroboration; suggestibility; the accused s face, voice, build, gait and dress; the result of identification parades, if any; and of course, the evidence by or on behalf of the accused. The list is not exhaustive. These factors, or such of them as are applicable in a particular case, are not individually decisive, but must be weighed one against the other, in the light of the totality of the evidence and the probabilities.

3 3 (See also S v Shekelele and Another 1953 (1) SA 636 (T) at 638.) Mthetwa s case has consistently been approved of in the respects discussed in the above passage. [6] The evidence of the first complainant is that her attacker came up to her in darkness, swore at her and demanded money and held her against a fence. She had R600 in the pocket of her jeans and she was about to take the money out when the attacker tripped her. She fell onto the ground on her side and her attacker then bent over her and removed the money and the cell phone from her trouser pocket. Where she fell, she says, there is some light and she contends that when her attacker bent over her removing the items from her pocket she looked at him and realised that she recognised him as she used to go to church with him. She also knows his family. [7] It emerges further from the evidence of the appellant that he had been away from his home on the morning after the event. On his return to his home he was advised that a lady had been to his house whilst he was absent alleging that he had robbed her of R600 and a cell phone. [8] The first complainant clearly impressed the magistrate as a witness and he believed her. Clearly she honestly believed that it was the appellant who had robbed her as is evidenced by the fact that she had gone to his home the following morning and reported the robbery to those present. That, however, is

4 4 not enough. In S v Mehlape 1963 (2) SA 29 (A) Williamson JA at 32F-G cautioned: The often patent honesty, sincerity and conviction of an identifying witness remains, however, ever a snare to the judicial officer who does not constantly remind himself of the necessity of dissipating any danger of error in such evidence. And in R v Masemang 1950 (2) SA 488 (A) at 493 it was stated: The positive assurance with which an honest witness will sometimes swear to the identity of an accused person is in itself no guarantee of the correctness of that evidence. [9] There is no indication in the judgment that the magistrate was alive to the caution which he was required to exercise or that he consciously reminded himself of the necessity of dissipating any danger of error in the evidence of the complainant. In this case the complainant was a single witness in respect of identification and the need for caution is even greater. [10] In S v Shekelele and Another, supra, 638H Dowling J stated: Witnesses should be asked by what features, marks or indications they identify the person whom they claim to recognise. Questions relating to height, build, complexion, what clothing he was wearing and so on should be put. A bald statement that the accused is the person who committed the crime is not enough. Such a statement unexplored, untested and uninvestigated, leaves the door wide open for possibility of mistake.

5 5 [11] The comments of Dowling J were, of course, made in the context of the case before him. The kind of questions which should be asked will vary from case to case depending on the facts of the case under consideration, however, it is always necessary to test the witness s identification of the accused person by eliciting evidence in respect of the kind of issues set out in Mthetwa s case, supra. [12] I have set out earlier in broad terms the evidence of the first complainant. The first complainant s eyesight was never explored in evidence. No questions were put to her in respect of what features, marks or indications she identified on the person of her attacker. She does not say whether she saw his face or whether she recognised him by some other physical feature. The magistrate made no finding of any prominent feature in the face or on the body of the appellant which would be easy to identify. [13] She testifies that she did not have much time to observe him and this accords with the nature of the events described. No further detail was elicited relating to the opportunity for observation as to time. The event occurred in darkness late at night. Very little evidence was led as to the nature of the scene of the crime. The only evidence on record in respect of a light is that she states: When I looked up I noted that I do know this guy, there is an electric light there next to (indistinct). There is no evidence as to the nature of the light, its brightness or its proximity to the scene. The evidence does not disclose whether the light was behind the attacker accentuating his silhouette or whether it illuminated his face.

6 6 [14] In respect of the complainant s alleged prior knowledge of the appellant she states that she used to go to church with the appellant but that, she says, was a long time ago when he was still young. No greater clarity was obtained as to what was intended to be conveyed by a long time ago. It may have been a year earlier or it may refer to her childhood days. She does, however, say that she sees him from time to time in the street. Again the frequency of the sightings and the extent of such observation was not explored nor does the evidence disclose when the last encounter was. The court does not know if she had ever seen him close by or had ever spoken to him so as to permit of the observation of facial features. [15] The first complainant s identification accordingly stands untested in material respects. In these circumstances I think that the magistrate erred in failing to enquire into the reliability of the complainant s observation relating to the identity of her assailant. [16] The version of the appellant, as set out earlier, is that he was at home at the time. If this, on a consideration of the facts, is reasonably possibly true he would be entitled to his acquittal. The magistrate did not in his judgment weigh the evidence of the appellant against the proven facts and probabilities. He did not consider the reasonableness of his version save to state that the appellant is just a bad liar. [17] It appears that the magistrate disbelieved the appellant purely because he believed the untested assertion by the first complainant that it was the appellant who had robbed her. This, to my mind, is a misdirection. A balanced enquiry is called for

7 7 to assess, not only the honesty of the complainant, but the reliability of her observation. [18] In the result, the appeal succeeds and the conviction of the appellant on count 2 is set aside. J W EKSTEEN JUDGE OF THE HIGH COURT GOOSEN J: I agree. G GOOSEN JUDGE OF THE HIGH COURT Appearances: For Appellant: For Respondent: Mr O Mtini instructed by the Justice Centre, Grahamstown Adv D Els instructed by the Director of Public Prosecutions, Grahamstown