IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case No.: 11206/2008
In the matter between:

and

JUDGMENT DELIVERED: FRIDAY, 12 NOVEMBER 2010

SALDANHA, J

[3.] The appellant was legally represented at the trial and having pleaded not guilty on all three counts chose not to disclose the basis of his defence.
(4.J The state tendered the evidence of 6 witnesses while the appellant chose not to testify nor to call any witnesses in his defence.

[5.] The central issue in appeal on the conviction is whether the state had proved beyond reasonable doubt the identity of the appellant as having been the assailant on al! three charges.

[9.] Adams further claimed that at a later stage he met the appellant while in the cells at the Athlone Police Station. He claimed that the appellant had said to him that he did not really want to shoot at him but that he had really targeted the deceased. Adams said nothing in response to the appellant. He claimed that the deceased were members of the "26" gang and that the appellant was also a member of the same gang. Adams had not attended a formal identification parade but was asked to identify the appellant from a set of photographs handed to him by the investigating officer Witbooi. He identified the appellant on one of the photographs. The set of photographs of twelve faces was also handed into evidence with the consent of the defence. One of the photograps on which the appellant had been identified was signed by Adams
[10.] In cross-examination Adams conceded that in his statement to the police he had stated that he was not certain if he would have been able to identify Madora if he saw him again. He claimed though that he would be able to identify the tattoo marks of the person. He further claimed in the statement that Madora had on a woolen cap which was up to his eyes. He also claimed that he and the deceased had been about five to seven minutes in the company of Madora as they walked along Thames Avenue.

[13.] Madat did not know Madora and she had also made a statement to the police.

[16.] It was also put to Witbooi that the appellant would confirm that he had been questioned by the police about his background as part of the profiling process and that the appellant had informed them about his schooling and his membership of gangs. The appellant would deny though that he had read and confirmed the details taken down in the profile.

[18] In cross examination he maintained that the appellant was known to him as Madora He also claimed that he had worked for a very long time in the Manenberg area and was familiar with the known gangsters. He claimed that he would not have easily forgotten a nickname such as "Madora". He denied that he had mistaken the appellant for other persons who were known as "Madota's" who are members of the 26 gang. It was also put to him that the appellant's version was that he was known as a "Madota" in the context of being a member of the 26 gangs and that he had also been a member of the Young Americans.

[20.] The state thereafter closed its case whereupon the defence applied for the discharge of the appellant in terms of section 174 of the Criminal Procedure Act. The application was dismissed. The appellant thereafter closed his case without tendering any evidence.

He also conceded that he had only seen the face of the appellant from the eyes downwards and that he had said to the police that he was not sure as to whether he would have been able to identify the person Madora again. However it only became clear to him after the appellant had approached him in the police cells at Athlone where the appellant apologized for having shot at him, that Adams was convinced of the identity of the appellant as Madora. The magistrate correctly approached the facial identification of the appellant by Adams with the necessary caution given the circumstances in which the incident had taken place and the limited opportunity for the observation of the assailant by Adams. However the name Madora which was given to the police during the course of the investigation was clearly linked to that of the appellant from not only the personal knowledge of the three police officers who knew the appellant as a member of the gangs in Manenberg but also as the name that was recorded on the criminal profile of the appellant. The magistrate was satisfied that the police officers had correctly linked the appellant to the name Madora. Moreover, Adams had testified that he had seen the "YA" tattoo mark on the inner arm of the appellant. The tattoo mark accorded with that which the court observed on the appellant's arm in the court. The court found that the observation supported Adams identification of the appellant. In the assessment of all the evidence of the state the court was satisfied that there was sufficient corroboration by the police with regard to the identification of the appellant as "Madora" and that of Adams's evidence as having seen the person Madora shot at him and the deceased.

"Yet there are, as has been held by the Supreme Court of Appeal and the Constitutional Court, limits to this right (to silence)There comes a stage in a prosecution where an accused has a duty to tell her or his story or to lead other evidence, which would show that, for example^ the denial of participation is reasonably possibly true. The question is, of course, whether that stage has been reached in this case."

para [20]. as follows:
'As was pointed out in S v Mthetwa 1972 (3) SA 766 (A) at 769D: "Where . . . there is direct prima facie evidence implicating the accused in the commission of the offence, his failure to give evidence, whatever his reason may be for such failure, in general ipso facto tends to strengthen the State case, because there is nothing to gainsay it and therefore less reason for doubting its credibility or reliability; see S v Nkombani and Another 1963 (4) SA 877 (A) at 893G and S v Snyman 1968 (2) SA 582 (A) at 588G."

[26.] In considering the approach of the magistrate to the issue of identification I am satisfied that he correctly found that the appellant had been properly identified as the person Madora who had shot at the deceased and the witness Adams. Moreover in the face of the evidence proffered by the state the appellant ought to have led evidence in response thererto. During the course of cross examination his alibi and version was put to the state witnesses yet none of it was confirmed under oath.

[27.] In the result I propose to uphold the convictions of murder and that of attempted murder.

Ad sentence
[28] The provisions of the Minimum Sentence Act Act 105 of 1997 were applicable to the charges. The magistrate however found that the murder of the deceased was not premeditated and therefore dealt with the sentence as falling under Part 2 of Schedule 2 of Act 105 of 1997. The accused was 23 years at the time of sentencing and had lived with his family members. It appeared that while he was awaiting trial he became the father of twins who were living with their mother. The mother of the children was unemployed. The appellant had been a member of a band from which he had earned some money. Counsel for the appellant emphasised that the appellant was brought up in an environment which was plagued by gangsterism and violence and that he did not enjoy the opportunities afforded to others in his upbringing and community. The appellant had left school in grade 9.
[29] The magistrate having considered the appellant's circumstances pointed to the prevalence of the crimes of violence in the Manenberg area The magistrate also appeared to be mindful of the circumstances in which the appellant had grown up in but did not find that it was an excuse for his conduct. It also appeared that the murder of the deceased was gang related which lead to the deceased being killed in cold blood

[30] The court did not find that the appellant's difficult upbringing nor his personal circumstances constituted substantial and compelling circumstances that warrented a lesser sentence than the prescribed sentence of less than 15 years on counts one and two.

[31.] The court however took into account the cumulative effect of the three charges and the fact that the appellant had spent over a year and a half in custody awaiting trial.

(1.)   The appeal against conviction and sentence is dismissed.
(2.)   The conviction on all three counts and the sentence imposed by the
magistrate is confirmed.