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IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CASE NO: CA 118/05

In the matter between:

MONNAPULA EZEKIEL MATSHWE Appellant

and

THE STATE Respondent

CRIMINAL APPEAL

HENDRICKS J; LANDMAN J

DATE OF HEARING : 03 FEBRUARY 2006

DATE OF JUDGMENT : FEBRUARY 2006

COUNSEL FOR THE APPELLANT : ADV A G VAN TONDER

COUNSEL FOR THE RESPONDENT : ADV Z RAMORWESI

JUDGMENT

HENDRICKS J:

1. Condonation:

[1] The Appellant’s Heads of Argument was supposed to be filed with the Registrar of this Court on the 20^th of January 2006 but was instead only filed on the 26^th of January 2006.

[2] It was however filed on the Office of the Director of Public Prosecutions on the 20^th of January 2006.

[3] An application for condonation for the late filing of the Heads of Argument on behalf of the Appellant was handed into Court on the morning of the 03^rd February 2006, when this appeal was heard.

[4] The affidavit attached to the notice of the application for condonation is silent as to why an application for condonation was only drafted and handed into Court on the day of the hearing of this appeal and not earlier.

[5] The fact that this application was only handed up in Court without explaining why it could not have been done at an earlier stage is indeed inexcusable. Although there may be no prejudice to the Director of Public Prosecutions, it is indeed prejudicial to the Court to accept and have sight of the document at such a late stage. This practice must be avoided. It is incumbent upon Attorneys and Counsel to ensure that applications of this nature reach the presiding judges before hand in order for them to read and reflect on the affidavits and the application.

[6] The affidavit accompanying this application consists of only three (3) pages and is therefore not voluminous. It is for this reason that we granted condonation.

B. Point-in-limine:

[7] At the hearing of the appeal, Ms Ramorwesi, on behalf of the Respondent, raised as a point-in-limine that Appellant’s Heads of Argument are vague. She contended that she had difficulty in responding thereto as it is not clear.

[8] Although the Appellant’s Heads of Argument are not very comprehensive, it cannot be said to be vague. In my view, it is not difficult to understand the points raised in these Heads of Argument.

[9] The drafting of Heads of Argument is a question of style and it will definitely differ from person to person. Allowance must therefore be made for the fact that some Counsel might choose not to be too elaborative when drafting Heads of Argument. It is for these reasons that the point-in-limine was dismissed.

C. The Merits:

[10] The appellant, Monnapula Ezekiel Matshwe, was convicted on the 25^th of July 2005 for being in possession of thirteen (13) unpolished diamonds (7 carats) to the value of R15 000-00 in contravention of Section 18 read with Sections 1, 82(a), 87(a), 89, 90 and 92 of the Diamonds Act, Act 56 of 1986. He was sentenced to five (5) years imprisonment. He appeals against both the conviction as well as the sentence.

[11] The State presented the evidence of two (2) witnesses namely Inspector Pretorius, and Captain Lombard. Pretorius testified that, after receiving information, he was involved in an undercover operation to buy diamonds illegally from a certain Robert. He met Robert at the place of one Alfred. Robert produced three packets containing a total number of thirteen (13) diamonds. He wanted R30 000-00 for all thirteen (13) diamonds. After negotiations it was agreed that Pretorius would pay R15 000-00 for all thirteen (13) diamonds.

[12] Pretorius however only had R10 000-00 cash with him which Lombard had given to him to facilitate the transaction. As a result Pretorius was short of R5 000-00, Robert was reluctant to hand the said diamonds to him.

[13] He instead gave it to Alfred to keep until the balance of R5 000-00 was paid. They proceeded by car to Kimberley.

[14] Along the way, they were stopped by a policeman who identified himself as Sergeant Matshwe (the Appellant) of Kgomotso Police Station, who conducted a routine search of the motor vehicle and its occupants.

[15] When Alfred was searched, the diamonds were found in his pocket. The Appellant then produced his appointment certificate and arrested Alfred. The diamonds were handed by the Appellant to a colleague, an Inspector, who was standing on the other side of the road. Pretorius and Eric were ordered to leave whilst Appellant said that he was taking Alfred to the Kgomotso Police Station.

[16] Pretorius recorded the registration numbers of the vehicle allegedly driven by the Appellant. He informed Lombard what transpired. The following day Pretorius met Lombard and they proceeded to Kgomotso Police Station to ascertain whether any case had been registered and to trace the motor vehicle used by Appellant.

[17] No case was registered and no vehicle bearing the registration number was found at that Police Station.

[18] A few days thereafter, Pretorius met Lombard, Captain Botha and Superintendent Bruwer, all being members of the Gold and Diamond Branch of the South African Police Service (Kimberley) at the Van Der Kloof dam where they showed some photographs to him. He identified the Appellant on one of the photographs.

[19] He contacted Alfred on the instruction of Superintendent Bruwer. Alfred was supposed to call him back but he never did.

[20] Lombard also testified and confirmed the evidence of Pretorius with regard to the R10 000-00, the video that he gave to Pretorius and the report that Pretorius made to him. He also corroborates the evidence of Pretorius about their visit to Kgomotso Police Station to ascertain whether the Appellant was stationed there and whether the vehicle apparently used by the Appellant was kept there.

[21] A few days later he met Pretorius at the Van Der Kloof dam. Captain Botha, who was in his company, showed some photographs to Pretorius. The Appellant was identified on one of the photographs. He investigated the matter further and discovered that the Appellant was stationed at Warrenton Police Station and was a member of the detective Branch.

[22] He proceeded to Warrenton Police Station. Investigations revealed that Appellant booked out the motor vehicle on the day in question as evidenced by the logbook. No entries were made in any investigating diary regarding the investigations done by the Appellant when he booked out the motor vehicle.

[23] The Appellant testified in his defence. He stated that he booked out the motor vehicle in order to travel to an informer in search of information. He was accompanied by Sergeant Spagen.

[24] He returned the motor vehicle at approximately 18h45, and filled in the logbook. Inspector Makgowe was awaiting the return of the said motor vehicle. He denied any knowledge of the alleged offence.

[25] No entry about his investigations was made in any docket but an entry was made in his pocketbook, which pocketbook was full and handed in.

[26] Inspector Spagen was called as a witness by the defence. She confirmed and corroborated the evidence of the Appellant in all material respects, with regard to the fact that:-

- she accompanied the Appellant on the day in question;

- Appellant returned the motor vehicle and made an entry in the logbook;

- Sergeant Makgowe was awaiting the return of the said motor vehicle as well as the time of the return of the motor vehicle;

- Appellant made an entry into his pocketbook.

[27] Pretorius is a single witness to the events that occurred on the day of the incident. It is clear that the Appellant was not known to him before the day of the incident. The Magistrate was indeed conscious of the fact that he should treat the evidence of Pretorius with caution, because he is a single witness.

[28] Mr Van Tonder, on behalf of the Appellant, submitted that the Magistrate erred in accepting Pretorius’s evidence regarding the identity of the Appellant. Pretorius is a single witness, who saw the Appellant once and could not even give a description of the Appellant. Pretorius could not even tell whether the Appellant had a moustache on the day in question.

[29] It is trite law that the evidence of a single witness must be treated with caution. Much depends on the circumstances under which an accused is identified. Because of the fallibility of human observation, evidence of a single witness identifying an accused person needs to be treated cautiously.

See : S v Mthetwa 1972 (3) SA 766 (A) at page 768 A-C where Holmes JA states:-

“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 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 weighted one against the other, in the light of the totality of the evidence, and the probabilities; see cases such as R v Masemang, 1950 (2) SA 488 (AD); R v Dladla and Others, 1962 (1) SA 307 (AD) at p 310C; S v Mehlape, 1963 (2) SA 29 (AD).”

[30] It is evident that Pretorius could not remember whether the motor vehicle allegedly driven by the Appellant had a North West (NW) or Northern Cape (NC) registration. The video recording depicting the registration numbers of the motor vehicle was allegedly recorded by Pretorius, but was never screened in court.

[31] No description of the facial appearances of the Appellant was testified to by Pretorius. He only testified that he remembered how the Appellant looked. No distinct marks or any particular detail about facial appearances was testified to by Pretorius.

[32] The State relied as a form of positive identification on the evidence of Pretorius, as corroborated by Lombard, that he identified the Appellant from a photograph. It is common cause that no formal identification parade was held.

[33] There is however nothing wrong in showing a photograph of a suspect to a witness. Such evidence of a photo identification is also admissible as evidence.

[34] However, because of the absence of a formal identification parade, the evidence of a photo identification, as in this case, must be treated with caution. The photo identification happens in the absence of the suspect (accused). It is therefore difficult to determine the circumstances under which the photo identification was held.

[35] A court must therefore be aware of the inherent danger of false implication or undue influence.

[36] It is common cause that Lombard, Captain Botha and Superintendent Bruwer are all police officers attached to the Diamond and Gold Branch of the South African Police Services at Kimberley. The possibility that they could have influenced Pretorius with regard to the photo identification of the Appellant cannot be excluded. More so, because no one else except Lombard testified and confirmed the process of the photo identification that was followed. It would have been advisable for the State to have called Captain Botha and Superintendent Bruwer to testify and corroborate the procedure that was followed with regard to the photo identification.

[37] The fact that no formal identification parade was held when the Appellant, as a policeman, was available and easy to trace, raises concern.

[38] In S v Moti 1998 (2) SASV 245 (SCA) on page 255 f-I the following is stated:

“Betroubaarheid hang weer van ‘n verskeidenheid ander faktore af. Relevant sou wees: die geloofwaardigheid van die ooggetuie self en van enigiemand anders wat die foto-identifikasie-sessie bygewoon het; of laasgenoemde die ondersoekbeampte of deel van die ondersoekspan was; die geleentheid wat die ooggetuie gehad het om die verdagte tydens die pleging van die misdaad waar te neem; of hy vooraf ‘n beskrywing van die verdagte aan die polisie gegee het wat met die foto ooreenstem; waar, deur wie en onder welke omstandighede die foto van die verdagte aan die ooggetuie getoon is: wat sy instruksie was en in die besonder of hy vooraf meegedeel is dat ‘n foto van die verdagte óf beslis óf dalk glad nie op die foto-parade sal wees nie; of die getuie alleen was toe hy sy uitkenning gemaak het dan wel in die teenwoordigheid van ander potensiële ooggetuies; die aard en duidelikheid van die foto van die verdagte; of slegs die foto van die verdagte aan die getuie getoon is en indien nie, die aantal ander foto’s wat ook aan hom getoon is; die vergelykbaarheid van die ander foto’s wat aan die ooggetuie getoon is met dié van die verdagte; en of die foto’s wat aan die ooggetuie getoon is (van die verdagte en van ander persone) steeds beskikbaar is en aan die hof voorgelê word sodat die hof sy eie indruk en oordeel oor die vergelykbaarheid daarvan kan vorm. Dit is maar sommige van die omstandighede wat by so ‘n ondersoek in ag geneem moet word.”

[39] It is clear that Pretorius did not give a description of the Appellant beforehand that suited the photograph depicting the Appellant which was shown to him.

[40] The photographs used from which Pretorius identified the Appellant were not handed in as exhibits to enable the court to determine as to whether these photographs, when compared, reflects persons of the same colour, height, physical appearance, etc.

[41] The version of an accused need only be reasonably possibly true in order to be accepted by the court. The court need not believe the version of an accused, less believe it in all its detail. If the version of an accused is reasonable possibly true, it must be accepted and the accused must be given the benefit of the doubt.

[42] The only serious criticism raised by the Magistrate against the evidence of the Appellant is the fact that the Appellant and also his witness, Sergeant Spagen, were unable to give an estimation as to how long their trip to Shaleng took.

[43] The evidence is clear that Appellant received a telephone call at approximately 17h10 and he left shortly thereafter. This is also confirmed by Sergeant Spagen.

[44] They returned at approximately 18h45 as testified to also by Sergeant Spagen and corroborated by the logbook entry which was presented as evidence in the court a quo.

[45] There are also no material contradictions in the evidence of the Appellant and Sergeant Spagen that warranted the rejection of their evidence.

[46] Appellant and Sergeant Spagen testified about the time of their departure to be at approximately 17h10. This is borne out by the logbook register, exhibit “A”. It is highly improbable, if not at all impossible, that Appellant, when he booked out the motor vehicle foresaw that time will be of the essence and so crucial that he entered the time as 17h10 in anticipation of an investigation that may follow some days thereafter. The same applies to the time of 18h45 as the time at which they returned the said motor vehicle.

[47] Furthermore, both Appellant and Sergeant Spagen testified to the effect that Sergeant Makgowe was awaiting the return of the said motor vehicle. It is evident from the logbook, exhibit “A”, that the said Sergeant Makgowe signed for receipt of the keys to the motor vehicle. The time of the return of the motor vehicle being 18h45. It is therefore impossible that the Appellant could have been at Mmamutla Village at approximately 19h00 as testified to by Pretorius.

[48] The evidence of Pretorius is to the effect that the Appellant, after finding the diamonds on Alfred, went across the street and handed it to his colleague, a male Inspector.

[49] The evidence of the Appellant and Sergeant Spagen was to the effect that they were together. If it was Sergeant Spagen who accompanied the Appellant, why does Pretorius testify that it was a male Inspector because Sergeant Spagen is a female.

[50] Furthermore, it is questionable why Pretorius, who also happens to be a policeman, did not attempt to identify this male Inspector who received the said diamonds.

[51] It is also interesting to note that the evidence of Pretorius clearly indicates that the male Inspector was the recipient of the said diamonds and not the Appellant. The Appellant merely confiscated the diamonds and handed it over to the male Inspector. If foul play was suspected why were investigations not done with regard to the person who actually received and possessed the diamonds?

[52] Seeing that Sergeant Spagen admitted that she accompanied the Appellant on the day of the incident, why was she not also charged?

[53] It is also a matter for some concern that Inspector Pretorius would leave with Eric when the Appellant told them to leave. Pretorius as an Inspector informed the Appellant that he is a policeman and was part of an operation. He could easily have co-operated with the Appellant and the alleged other Inspector who was in the company of the Appellant, to see to it that Alfred and possibly also Eric were arrested for illegal diamond dealing, which in any event was what he wanted to achieve.

[54] I am of the view that he State did not succeed in proving the guilt of the Appellant beyond reasonable doubt.

[55] In view of the aforementioned, doubt exists as to whether the Appellant was correctly identified and whether the events indeed happened as testified to by Pretorius. The possibility of false implication cannot be excluded.

[56] In my view, the appeal must succeed.

[57] Consequently, I make the following order:

[i] The appeal is upheld.

[ii] The conviction and sentence are set aside.

R D HENDRICKS

JUDGE OF THE HIGH COURT

I agree.

A A LANDMAN

JUDGE OF THE HIGH COURT

Attorneys for the Appellant: DE BRUYN & STRAUSS INC

c/o VAN ROOYEN TLHAPI WESSELS INC

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