South Africa: North West High Court, Mafikeng

S v Tshekedi (CA 96/2004) [2004] ZANWHC 26 (29 October 2004)

[2] Central to the appeal against conviction is the question whether the State witnesses correctly identified the Appellant as being their attacker whereas the sentence is only challenged on the basis that it invokes a sense of shock.

Facts

[3] The State led the evidence of Ms Lucia Lovedelia Tsamai (“Ms Tsamai”) and her brother, Mr Lesedi Tsamai (“Mr Tsamai”)

[4] Ms Tsamai’s evidence was basically to the effect that the Appellant broke into their house and employed some violent means to dispossess her of her cellular phone as detailed below. On 13 August 2003 at about 21h00 a male person knocked at the kitchen door which was the only door of the Complainant’s parental house that led to the outside. He called her twice by her name. She woke up and proceeded to the kitchen. That person, who turned out to be the Appellant, opened the kitchen door, entered the house and switched the electric light on. The Appellant was in possession of a firearm which he immediately pointed at Ms Tsamai. He demanded a cellular phone from Ms Tsamai and drove her to the bedroom so that she could produce the cellular phone. They got into the bedroom. She awoke Mr Tsamai who peeped at them for about one minute and then covered his head with blankets. When she made utterances that suggested that the cellular phone was not in the house, the Appellant threatened to kill her if the phone were not produced. She gave up employing any tricks and handed the cellular phone and the charger to the Appellant.

[5] Of crucial importance to the identity of the Appellant are the following factors which emerge from Ms Tsamai’s evidence:

5.1 Ms Tsamai had never seen the Appellant prior to 13 August 2003;

5.2 The incident took place at night;

5.3 It lasted for about two minutes;

5.4 She was shocked by the incident so much so that she cried after the perpetrator had left the house. This shock did not, however, affect her capacity to see the perpetrator properly;

5.5 The kitchen was illuminated by a 100 watts globe which was not covered;

5.6 The light was very bright;

5.7 Whilst in the kitchen she and the Appellant were facing each other;

5.8 They were, at all material times, not more than two to three paces apart;

5.9 There was no door between the kitchen and the bedroom;

5.10 The kitchen light illuminated the bedroom with the result that visibility was good in the bedroom;

5.11 Ms Tsamai could and did see the Appellant at all material times;

5.12 Appellant was wearing a cream jacket and white canvass shoes. She does not remember the colour of his pair of trousers. He had not covered his head with anything;

5.13 She had no doubt whatsoever that the Appellant was her assailant.

[6] The next State witness was Mr Tsamai. He was 13 years old and a grade 7 pupil. He testified that on 13 August 2003 the Appellant came to his parental home demanding a cellular phone from Ms Tsamai. Ms Tsamai woke him up asking him to go and collect the cellular phone in question from their grandmother’s home. He removed the blanket with which he had been covering his head and immediately saw the Appellant holding a firearm in his hand pointing it at Ms Tsamai demanding that she give her cellular phone to him. He saw all this as he was looking on for about 15 seconds. Ms Tsamai gave the Appellant the cellular phone. He then demanded the charger thereof which was also given to him. The Appellant then ordered Ms Tsamai to go and sleep otherwise he would become upset. Mr Tsamai saw the Appellant’s face and noticed that he was wearing a cream jacket and that his head was not covered with anything. The material aspects of his evidence relating to identity are as follows:

1. Mr Tsamai had never seen the Appellant before as at the time of the incident;

2. The incident took place at night;

3. There was no lamp or globe inside the bedroom in which he saw the Appellant;

4. The illumination inside the bedroom came from the kitchen light which was too bright;

5. There was only one step between the Appellant and Mr Tsamai when he saw the face of the Appellant;

6. He saw the Appellant very clearly and had no doubt that it was the Appellant that he saw.

The State only led the evidence of these two witnesses and closed its case.

[7] The defence led the evidence of the Appellant and of his girlfriend. The Appellant testified that he was at his girlfriend’s parental home at the time when the incident allegedly took place. He never left the place until the next day. He knew the Complainant by sight but only got to know her parental home after his arrest for the charges that she laid against him. He said that he did not even have the jacket which the State witnesses alleged that he was wearing. The Appellant also testified that he could not have robbed the Complainant of her cellular phone because he had his own cellular phone and had also applied for a police post for which a criminal is not eligible.

[8] The next defence witness was Ms Shirley Tsietso, the Appellant’s girlfriend. She confirmed that the Appellant slept at her parental home on 13 August 2003 and left in the morning of the next day. From the time of their arrival between 20h30 and 21h00 until they slept at about 23h00 or 24h00, she had been studying in the bedroom whereas the Appellant was watching wrestling matches on television in the adjacent room. She could see the Appellant all the time and basically indicated that to the best of her knowledge he did not leave the house. She testified that their toilet is located outside the house. When asked whether the Appellant could have gone to the toilet unnoticed she did not concede that as a possibility. The defence case was then closed.

Analysis

[9] As I said from the outset, the conviction turns on identity. The principle relevant hereto was articulated in S v Mthethwa 1972 (3) SA 766 (A) at 768A-C as follows:

“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 lighting, visibility, and eyesight; the proximity 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 built, gait, and dress; the result of identification parade, if any; and, of course, the evidence by or on behalf of the accused.”

[10] There are at least two factors which stand out against the State witnesses’ ability to correctly identify the Appellant as their assailant. They are (i) the very short period that they had within which to see the face of the Appellant and (ii) the fact that none of them knew the Appellant before the incident took place. Viewed in isolation one could be tempted to conclude that there is a real risk that the Appellant may well be an innocent person who was convicted for a crime he did not commit. There are, however, other factors which suggest otherwise and they are dealt with below.

[11] When the Appellant entered the house through the kitchen door, he switched the light on. He faced the Complainant as he was demanding the cellular phone from the beginning to the end of his mission. The distance between the two of them was not more than two to three paces. The light was very bright. The period of two minutes over which the incident took place is not such a short period as to render it somewhat difficult for the Complainant, who does not have a serious eyesight defect, to clearly see the face of her attacker who is facing her and who is threatening to kill her with a firearm. Where else would the Complainant who was facing the most serious danger imaginable look but at the body and face of the person who was threatening to kill her?

[12] I have made a deliberate effort to determine whether a period of 15 seconds is sufficiently long to enable a person to see a stranger or a new thing clearly. That period is, as Mr Tsamai intimated, sufficiently long for that purpose. Mr Tsamai was one step from the Appellant when he saw his face and there was sufficient illumination in the bedroom to enable him to see the Appellant clearly.

[13] Having considered the guidelines in Mthethwa supra, the evidence of the State witnesses and their opportunity for observation, I am satisfied that the State has proved beyond a reasonable doubt that the Appellant is the one who robbed the Complainant of her cellular phone and its charger.

[14] The evidence for the defence is not reasonably possibly true and, therefore, stands to be rejected. For example, it is improbable that the Appellant’s girlfriend would on the one hand have kept track of everything that the Appellant was watching on television, as she seemed to suggest she did, while studying on the other hand. It is highly improbable that she would have paid so much attention to his movements as to know whether or not he ever left the house to go to the toilet which is located outside the house. The Complainant lived in the same vicinity as the Appellant’s girlfriend. The Appellant could, with ease, have dashed off to the Complainant’s home, committed robbery over a period of two to five minutes and returned to his girlfriend’s home to watch whatever was on the screen. I say this assuming in the defence’s favour that the two lovers were together at the girlfriend’s parental home as they alleged. I have found no reason whatsoever to interfere with the conviction and it will, therefore, be confirmed. I turn to deal with the question of sentence.

[15] Section 51(2)(a)(i) read with Part II of Schedule 2 to the Criminal Law Amendment Act 105 of 1997 (“the Act”) provides that a sentence of 15 years imprisonment shall be imposed on a person convicted of robbery with aggravating circumstances unless substantial and compelling circumstances are found to exist (s 51(3)(a)). The Appellant was basically convicted of robbery. He committed this robbery (a) against a defenceless woman; (b) at night; (c) having gained unauthorised entry into the house whose door was closed (thus committing the offence of housebreaking); and (d) used a firearm to commit the robbery. All these factors demonstrate the existence of aggravating circumstances. Such aggravating circumstances point to the applicability of s 51(2)(a)(i) read with Part II of Schedule 2 to the Act.

[16] The learned Magistrate committed an irregularity by not applying these provisions thus allowing the Appellant to unjustifiably avoid the mandatory sentence of 15 years imprisonment. I say unjustifiably advisedly because in order for a term of 8 years imprisonment which is lesser than the prescribed term of 15 years imprisonment, to be imposed on an accused person, who has been convicted of robbery with aggravating circumstances, substantial and compelling circumstances must be found to exist and they must be recorded (s 51(3)(a) of the Act). Clearly, the presiding officer was not aware that s 51(3)(a) applied to this case. As a result, the existence or otherwise of substantial and compelling circumstances was not enquired into before the sentence of 8 years imprisonment was imposed. It, therefore, was unjust and irregular for a lesser term of imprisonment to have been imposed on the Appellant without further ado. This is regrettable.

[17] No notice was given to the Appellant to prepare for the possibility of the sentence being increased and no submissions were made in this connection. For this reason the Court has no choice but to allow the Appellant to enjoy the undeserved benefit of only having to serve a period of 8 years imprisonment notwithstanding the provisions of s 51(2)(a)(i) read with Part II of Schedule 2 to the Act and s 51(3)(a) of the Act.

[18] There is no merit whatsoever on the appeal against sentence and the appeal against sentence will, therefore, also be dismissed. In the result, I make the following order:

“The appeal against conviction and sentence is dismissed, and the conviction and sentence are confirmed.”

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M.T.R. MOGOENG

JUDGE PRESIDENT OF THE HIGH COURT

I agree

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R.E. MONAMA

ACTING JUDGE OF THE HIGH COURT