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NORTH WEST HIGH COURT, MAFIKENG

CA17/2010

In the matter between:

JIMMY DUBE …..................................................................................Appellant

and

THE STATE …...................................................................................Respondent

CRIMINAL APPEAL

HENDRICKS J, KGOELE J

DATE OF HEARING : 17 September 2010

DATE OF JUDGMENT :

COUNSEL FOR APPELLANT : Advocate N.L. Skibi

COUNSEL FOR RESPONDENT : Advocate R.R. Makgaga

JUDGMENT

KGOELE J.

A. INTRODUCTION

1. The appellant was charged with two counts of robbery with aggravating circumstances as intended in section 1 of the Criminal Procedure Act (CPA) and further read with section 51 (2) of Act 105 of 1997.

2. He pleaded not guilty to both counts. He was subsequently acquitted in terms of section 174 of the CPA in respect of the first count and convicted of the competent verdict, common robbery on the second count. He was sentenced to five (5) years imprisonment. Leave to appeal was granted to this court on both the conviction and sentence, hence this appeal.

FACTS

[3] The state relied on the evidence of a single witness who is the complainant in the second count. She testified that she was taking the complainant in the first count, Johannes, halfway to his parental home when the incident took place. Although it was during the night, it was not too dark as the outside lights from the houses nearby were lit. Johannes was in possession of her cell-phone.

[4] They came across the appellant and his friend, who was not charged. She knew the appellant before by sight only. They two greeted them. They also responded. They stopped them and inquired what time it was. When Johannes inserted his hand in his pocket with the aim of taking out the cell-phone to look at the time on it, the appellant’s friend tried to grab the complainant with her clothes, but she managed to push his hand away, fled and screamed for help.

[5] The appellant and his friend remained at that scene fighting Johannes. She saw this as she had after running away, stopped at a distance from the scene. Johannes took out her cell-phone from his pocket and threw it at her. As she was about to pick up the cell-phone from the ground, the appellant’s friend came, took out a knife, threatened here with and even pushed here aside. He managed to take away the cell-phone. Appellant at that time was still fighting Johannes. The two then fled taking different directions.

[6] The appellant testified and denied having robbed the complainant and being on the scene as he was home watching television at the time the incident took place.

AD CONVICTION

Identity

[7] The appeal is mainly based pm the ground that the presiding officer erred by making a finding that the state proved the identity of the appellant beyond reasonable doubt by over emphasizing the complainant’s prior knowledge of the appellant. The appellant’s argument is that, because the incident took place during the night, she could not properly identify / see his face. According to the appellant, this is so because complainant described the clothing the accused was wearing and did not testify about seeing his face.

[8] The state conceded to these submissions by the appellant, abeit on different reasons that, that constitute the appellant second leg of his arguments, that I will deal with later.

[9] The law in as far as dealing with the evidence of identity, has been excellently dealt with by the writers D.T. Zeffert, A.P. Paizes and A St Q Skeen in their book “The South African Law of Evidence” formerly Hoffman and Zeffert 2003 edition as follows and hardly need any more emphasis:-

“ (a) Direct evidence

1. Fallibility

It is generally recognized that evidence of identification based upon a witness’s recollection of a person’s appearance is dangerously unreliable unless approached with due caution. The Appellate Division in S v Mthetwa laid down:

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 weighed one against the other, in the light of the totality of the evidence, and the probabilities.

The average witness’s ability to recognize faces is poor, although few people are prepared to admit that they have made a mistake. On a question of identification, therefore, the confidence and sincerity of the witness are not enough. As Williamson JA has said:

The often patent honesty, sincerity and conviction of an identifying witness remain, 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.

Evidence of identification thus requires to be closely scrutinized. In R v Shekelele, Dowling J said:

Witnesses should be asked by what features, marks or indications they identify the person who they claim to recognize. 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 unexplained, untested and uninvestigated, leaves the door wide open for possibilities of mistakes.

[10] From the record of the proceedings it is clear that the court a quo dealt with the issue extensively. The following are also clear from the record:-

• that the appellant is not a stranger to the complainant. Both the complainant and the appellant testified that they know each other from seeing each other. The appellant took this to a step further, he said he knows that the complainant went to a school close to Bethanie Hospice where he was employed. (extent of prior knowledge) corroboration

• in addition to the above, the complainant said she knew where accused was working, and she took the police to that place and they were told that he is on leave. (extent of prior knowledge) (corroboration)

• The complainant gave a description of the appellant to the police which ultimately led to his arrest. She also gave a description to other people during her own investigations which led to her to her finding the names of the appellant (extent of prior knowledge) (suggestibility)

• Although the incident took place during the nightly hours, complainant send the scene where the incident took place was lit. She could even give the description of the clothes which the appellant was wearing, which according to the complainant, the accused normally wear (lighting visibility)

• Complainant had enough opportunity to clearly observe the appellant at the time she was standing at some distance from the scene, as at the place where she was standing. It was dark, and where the incident took place, that is when appellant was fighting with Johannes, it was lit (proximity, visibility)

[11] All these are factors which when taken together cumulatively according to the case of S v Mthethwa above tends to prove the complainant’s reliability of her observation

[13] The following quotation from the case of R v Dladla 1962 (1) SA 307 (A) at 310 is equally applicable in our matter:-

In a case where the witness has known the person previously, questions of identifying marks, of facial characteristics, and of clothing are in our view of much less importance than in cases where there was no previous acquaintance with the person sought to be identified. What is important is to test the degree of previous knowledge and the opportunity for a correct identification, having regard to the circumstances in which it was made.

[14] There is therefore in my view no misdirection on this issue by the court a quo.

[15] Another concession made by the state which was during the submission in court adopted by the appellant’s counsel as a second a second led to his arguments is to the effect that the complainant’s evidence was riddled with material contradictions which the court a quo misdirected itself by finding that they are not material. The submissions of both counsel are that the court may only convict on the single evidence of a single witness if such evidence is clear and satisfactorily in al material respects. They quoted section 208 of the CPA and the case of S v Mthethwa 1972 (3) SA 766 (A) in support of this.

[16] The state mainly relied on the following as glaring contradictions in the complainant’s evidence:-

1. She said she fled to an area which was dark and witnessed the appellant fighting with her boyfriend, because where this firth was taking place there was light. She however changed her version and said that there was light both at the area she had fled to and where the fight was taking place.

2. She said when she wanted to pick up the cell phone which her boyfriend threw towards her direction the appellant’s friend threatened her with a knife and took the said cell phone. But during cross-examination she said she was never threatened with any weapon. NB the charge sheet avers that a firearm was use.

3. She said in her evidence she told the police that she knew the appellant’s place of employment. But during the cross-examination she said she told the police she did not know the appellant’s place of employment.

4. In her evidence she said the appellant was clad in brown trousers, a lumber jacket and camouflage pants. During cross-examination she said appellant was dressed in camouflage plants white t-shirt and a camouflage cap.

5. In her evidence she said that she was told by one “Angie” that the appellant’s name was “Long”. During cross-examination she said one “Prince” told her the appellant’s name.

[17] Unfortunately the number of contradictions does not necessarily render the evidence of the witness unreliable. A critical examination of the evidence as a whole is necessary when there are contradictions to evaluate whether the two versions are in fact contradictions and secondly, they are material to the issue in dispute. Corroboration also, is regarded as an aid or factor in the process of evaluating evidence.

[18] In R v W 1949 (3) SA 772 (A) at A788-9 and S v Gentle 2005 (1) SACR 420 (SCA) at 430 j to 431 c the following was emphasized.

“It must be emphasized immediately that by corroboration is meant other evidence which supports the evidence of the complainant, and which renders the evidence of the accused less probable, on the issue in dispute.”

[19] Indeed, as correctly held by the court a quo, there are contradictions but are not material to the issue in dispute. Instead, there are abundance of corroboratory evidence from the appellant himself that corroborates the complainant’s version on the issue in dispute. Appellant admitted that he also knew complainant by sight. He usually see the complainant at a school she is attending which is next to where he, the appellant is working. Of significance is the fact that the complainant was during her evidence honest enough to tell the court a quo that he could not identify the appellant’s friend well as she saw him for the first time that particular day. This clearly shows that she was able to identify the appellant because she is used to see his face and features regularly, that is why appellant and not his friend was ultimately arrested.

[20] All of these are credible evidence which renders the complainant’s version more likely that appellant was present at the scene. It further renders the complainant’s evidence reliable. I am thus satisfied that the trial court correctly applied cautionary rules applicable to the complainant’s evidence correctly and there is no misdirection on is part as far as this issue is concerned.

AD SENTENCE

[21] It is trite law that sentence is primarily in the discretion of the trial court and a court of appeal will not lightly interfere with a sentence imposed by the trial court. Only where it is clear that the discretion of the trial court was not exercised judicially or reasonably, will the court of appeal be entitled to interfere.

[22] Fortunately in this matter both the state and the appellant’s counsel conceded to the fact that the sentence imposed by the court a quo is neither harsh nor shockingly inappropriate. In my view the concession is well made. There is therefore no need to consider this issue by this court.

E. ORDER

[23] The appeal against both conviction and sentence is dismissed.

A.M. KGOELE

JUDGE OF THE HIGH COURT

I agree

R.D. HENDRINCKS

JUDGE OF THE HIGH COURT

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