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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST HIGH COURT, MAFIKENG

CA135/04

In the matter between:-

MONAMODI SIBUSISO IGNATIUS …...................................................Appellant

AND

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

CRIMINAL APPEAL

MMABATHO

HENDRICKS J, KGOELE J.

DATE OF HEARING : 25 FEBRUARY 2011

DATE OF JUDGMENT : 24 MAY 2011

COUNSEL FOR APPELLANT : Adv. Lidovho

COUNSEL FOR RESPONDENT : Adv. Jacobs

JUDGMENT

KGOELE J.

A. INTRODUCTION

[1] The appellant was convicted in the Regional Court Odi (Court a quo) on one count of robbery with aggravating circumstances and five counts of attempted murder. He was sentenced to fifteen (15) years imprisonment on the robbery count and five (5) years imprisonment on each count of attempted murder. The sentences were ordered to run concurrently. The appellant appeals against conviction on all the six counts.

B. FACTS

[2] The allegations by the state are to the effect that on the 10^th of April 2000 at Mabopane, the appellant, who was accused no. 3 in the court a quo, together with the other co-accused attempted to rob the occupants of Coin Security Company and further attempted to murder five persons who were at or in the vicinity of the scene.

[3] For the sake of brevity, I will deal mainly with the evidence of one Mr Lucas Nkosi in this judgment because of the following reasons:-

• The case for the state rests on his evidence and he is a single witness regarding the identification of the robbers;

• The crux of the grounds of appeal by the appellant revolves around the evidence of this witness.

[4] The summary of his evidence in as far as identifying the appellant is concerned is to the effect that when the robbery took place, he was approaching the scene but could not, in the distance at which he was, identify the robbers. It was only when their vehicle took a turn in the direction that he was, was he able to recognise the appellant and the other co-accused. According to him the appellant was amongst the others that were seated at the back of the bakkie at its tailgate. He testified that appellant is well known to him. He further testified that he used to stay with accused 1 before the incident, and he saw appellant several times when he had visited accused 1 before. He admitted having been involved in criminal activities with some of the co-accused including the appellant. Accused one was the driver of the bakkie. According to his evidence, when accused 1 noticed him, he pointed him out to those at the back of the van, and they started opening fire in his direction. It was at this stage that he dropped himself to the ground. Whilst on the ground he could see the vehicle stopping at another corner. He stuck out his head and managed to see two men alighting from the vehicle getting into a red Venture Combi. The two cars then drove away.

[5] The appellant admitted knowing the witness very well and confirmed that he used to meet him at accused 1’s place. He however denies all the criminal activities in which this witness Nkosi implicated him and especially the current one, as he was never around Pretoria on the day mentioned in the charge sheet. According to him the last time he saw this witness was around October 1999. He admitted that this witness could easily point him out at the parade because of his physic and prior knowledge.

[6] It is important in this judgment to point out at the onset that amongst the facts that were admitted in the proceedings before the court a quo is the identification parades which were held in respect of accused 2 and 3 (appellant) on the 22^nd of March 2000 and the 10^th August 2002 respectively where the witness, Nkosi, pointed them out. What was also admitted was that these parades were held according to the standard procedure.

C. SUBMISSIONS

[7] The trial court made a finding that despite some contradictions that were pointed out by the defence in the evidence of this witness, it was satisfied that he was credible and that his evidence could be relied upon. The court a quo rejected the appellant’s version.

Identification of the appellant by Lucas Nkosi

[8] Counsel for the appellant submitted that the court a quo erred by not properly applying its mind to the prevailing circumstances under which Nkosi allegedly identified the appellant as being an occupant of the bakkie because of the following:-

• Nkosi describes in his evidence in chief only the positions of Thabiso (driver) and Dick, George and Jimmy, being the three persons on the right hand side of the bakkie;

• Nkosi testified that he identified the occupants as the bakkie approached him “ …… the distance was becoming short and their heads protruding”;

• Nkosi then later testified that the appellant was sitting at the tailgate, facing backwards;

• At this stage of the proceedings it was clear from Nkosi’s evidence that only the heads of the people on the back of the bakkie were protruding and that Nkosi identified them whilst the bakkie was approaching him, with the appellant facing backwards.

[9] Appellant’s counsel argues that this in itself is indicative of the improbabilities of Nkosi being able to see the face of a person facing backwards on the bakkie whilst it was approaching him. Despite this improbability, the court a quo found that Nkosi identified the appellant by concluding: “He could easily recognize number three who stands out in a crowd because of his hefty built…”

[10] 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 on pages 142 & 143:-

“ (i) 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 1972 (3) SA 766 (a) 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”

[11] The following remarks from the case of R v Dladla 1962 (1) SA 307 (A) at 310 are important and equally applicable in this 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 that 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”.

[12] The following are clear from the record of proceedings:-

• that appellant is not a stranger to the witness. They know each other well. That is why the witness managed to identify the appellant during the identification parade. Appellant took this a step further by saying that the witness can easily identify him in an identification parade. (extent of prior knowledge, corroboration)

• the incident took place in broad day light (lighting, visibility)

• the witness had enough opportunity to clearly observe the appellant. The following is the evidence of this witness as it appears in the record of proceedings on page 75 line 6-9 as proof of this:-

“I saw them before they could reach the corner and there were three on the right hand side of the car at the back that I could see. And then it turned I saw the driver and the three behind the driver. And after it had turned I then saw the one who was at the tailgate of the vehicle”. (proximity, opportunity to observe).

• The other factor that adds on his opportunity to observe is the fact that, he observed the incident well before the shots were fired at him. (Opportunity to observe)

• Again, when the shots were fired, he took cover and managed to see them up until when they boarded a getaway car. This means that he had an interest to see what they were doing and therefore had ample time to make a proper observation (added opportunity to observe)

[12] All these are factors which, when taken cumulatively according to the case of Mthethwa quoted above, tends to strengthen the witness’s reliability of his observation in as far as the identity of the appellant is concerned.

[13] In my view and as correctly submitted by the counsel for the respondent, the court a quo dealt with this issue thoroughly and I find no misdirection on its part.

Reliability of the witness and the finding of the court a quo that he is a credible witness

[14] It is the submission of the appellant that the court a quo erred in accepting the evidence of Nkosi for the following reasons:-

• The witness is and was not a credible or reliable witness

• The witness was a self confessed criminal

• The witness also materially contradicted himself in the viva voce evidence he presented in court vis–a–vis the various statements he made

• He specifically mentions during evidence in chief the name of one Lerato as being involved, although this name does not appear on Exhibit F (his affidavit to the police)

• He further specifically mentions during evidence in chief the name of one Jaftha as being involved, although this name does not appear on Exhibit E (his affidavit to the Magistrate at Mogwase)

• In Exhibit E he omits the name Jaftha but mentions the name Carter

• Carter is not repeated in his evidence in chief

• On each of the above contradictions the witness first denies any contradiction, and when confronted blames the Police

• The fact that he made a mistake about the identity of accused 2, this can apply to the appellant as well

[15] In the case of S v Mkohle 1990 (1) SACR 95 (A) at 98 F Nestadt JA made the following remarks, which remarks need no more emphasis:-

“Contradictions per se do not lead to rejection of a witness’ evidence. They may be an indication of error. Not every error made by a witness affects his credibility. In each and every case the trier of facts has to make an evaluation, taking into account such matter as the nature of the contradictions, their number and importance and their bearing on other parts of the witness’ evidence.

See also S v Mafaladiso en Andere 2003 (1) SACR 583 (SCA)

[16] Indeed there are some contradictions in the evidence of this witness. I agree with the submission made by counsel for the respondent that although the witness made a mistake in his identification of accused no. 2 and Reba, a sentenced prisoner at the time of the incident, this does not per se mean that the trial court should reject his evidence in totality and find him to be a liar on the whole of his evidence.

[17] In the case of S v Sauls 1981 (3) SA 172 (A) the following was said which I find to be apposite in this matter:

At page 180 F

“The trial Judge will weigh his evidence, will consider its merits and demerits and, having done so, will decide whether it is trustworthy and whether, despite the fact that there are shortcomings or defects or contradictions in the

testimony, he is satisfied that the truth has been told”.

At page 180 G

“It has been said more than once that the exercise of caution must not be allowed to displace the exercise of common sense”.

[18] The court a quo dealt with these wrong identifications by the witness (Nkosi) in his well reasoned judgment, and clearly found them to be honest mistakes, which clearly does not influence the credibility nor affect the identification made by this witness regarding the appellant (and also accused no. 1.

[19] The learned magistrate warned himself of the cautionary rules applicable towards the witness’s evidence (Nkosi) (Nkosi)and despite certain short comings made a credibility finding with regards to this witness, based on the way in which he gave his evidence and on the fact that the appellant was well known to the witness.

[20] I come to the conclusion that from the above considerations the trial court was correct to find that Mr Nkosi’s identification of the appellant was sufficient enough to render a conviction of the appellant on the various charges.

C. ORDER

[21] Consequently the following order is made:-

1. The appeal is dismissed.

A.M. KGOELE

JUDGE OF THE HIGH COURT

I agree

R.D. HENDRICKS

JUDGE OF THE HIGH COURT

Attorneys for the Appellant : Sekukuni Incorporate

C/O Magabane Incorporated

639 Corner Robert Sobukwe and Molamu Street

MAFIKENG

Attorneys for the Respondent : Director of Public Prosecution

Old Standard Bank Building

Corner Robinson and Main Str

MAFIKENG

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