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Khahlakala v S (A485/2010) [2010] ZAWCHC 565 (19 November 2010)

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JUDGMENT

VIVIER, AJ:

The appellant was convicted in the Regional Court for the district of Strand on a charge of robbery with aggravating circumstances and sentenced to a period of nine years direct imprisonment. This is an appeal against his conviction. The State alleged that on or about 25 July 2009 and at Somerset Street in Gordon's Bay, the appellant had unlawfully and intentionally assaulted the complainant and forcibly removed a Nokia cell phone from her under threat of a knife.

In this court, the essence of the appellant's attack on his conviction is that the magistrate had erred in finding that the evidence of the complainant, one Alexandra Hammond, was reliable and satisfactory in respect of the identification of the appellant as her assailant, in respect of which identification, the complainant was a single witness.

The complainant testified that on the morning of the incident, approximately at 07:30, she was walking from her boyfriend's home in Somerset Street, Gordon's Bay to her parents' home in Olienhout Street where she stayed. Close to her home she walked past the appellant whilst he was urinating on the lawn of a residence on the left-hand side of the street. When the complainant passed the appellant, she noticed that he had turned his head and was looking towards her. Shortly thereafter the complainant realised that she was being followed and when she turned around, she noticed the appellant on the opposite side of the road to where she was walking.

The appellant caught up with her, approached her from the side and pointed to the two bags which she was carrying, a leather bag, as well as a smaller book bag. At the same time, the appellant spoke to the complainant, she could not understand what he was saying, but she did make out the word bag. The complainant told the appellant to leave her alone, upon which he produced a knife, which the complainant described as a folding knife with a green handle and pointed the knife at her abdomen. The complainant immediately responded by handing her bags to the appellant.

In evidence she explained this response that she did not want to be injured. She testified that she had experienced the knife being pointed at her as a "very real threat". The appellant took the bags and fled and the complainant proceeded to run to her home, which was close by at that stage, where she reported the incident to her parents. Whilst the complainant's mother called the police, the complainant and her father went in search of the appellant in her father's vehicle. Not far from their home, the complainant noticed the appellant standing on a street corner and she noticed her bags lying at his feet.

The complainant testified that she was able to identify the appellant by the clothes he was wearing, namely a pair of jeans and a white shirt, which she had previously observed. The complainant further testified that upon noticing the appellant, she exited her father's vehicle and fetched the bags, whereafter they went in pursuit of the appellant, who had fled in the meantime. At one stage the appellant tried to hide in a garden, but shortly thereafter he fled again. He was stopped by a police vehicle and apprehended. The police removed a knife, which was the same knife previously witnessed by the complainant and a Nokia cell phone from the appellant's pockets. The complainant identified the cell phone as hers on the scene.

According to the evidence, the incident occurred in a residential area at a time when it was still quiet and deserted, being a Sunday morning. Under cross-examination the complainant explained that apart from the appellant's clothes, she was able to identify him on the street corner by his prominent facial features. The complainant's father, Mr Dennis Hammond, corroborated the complainant's evidence in a number of material aspects. These are, inter alia, the report she had made to her parents shortly after the incident, the immediate pursuit of the appellant in his vehicle, that the complainant, was able to identify the appellant shortly thereafter on the street corner and the eventual intervention of the police and the arrest of the appellant.

However, Mr Hammond, was inclined to elaborate on events which was not mentioned by the complainant in her evidence, for instance that during the pursuit of the appellant, the latter had tried to attack Mr Hammond with a knife. In her judgment, the magistrate was alert to these discrepancies between the evidence of the complainant and Mr Hammond. Mr Hammond was, however, adamant that the person whom the police had arrested was in fact the same person whom the complainant had previously pointed out as her assailant. He testified that both persons had a peculiar hairstyle, which the police officers, in their evidence, described as a "tabletop cut".

Sergeant Engelbrecht testified that he was busy with routine patrol services in the Gordon's Bay area, when he responded to a report of a robbery in Somerset Street. He was accompanied by Constables Robertson, Du Toit and Williams. They immediately proceeded to the Hammond residence, where they were told by a female person, apparently Mrs Hammond, that the complainant and her father had left in pursuit of the suspect. The police officials then drove in the direction of Kirby Street, where the suspect had in the meantime been noticed in terms of a further report received by the police officials.

While searching the area, they noticed a person whose description fitted that of the suspect, running away from Kirby Street into West Crescent. They followed him and were eventually able to apprehend him when he tried to scale a fence. At the same time the complainant and her father arrived on the scene and the complainant identified the fugitive, being the appellant, as her assailant. Sergeant Engelbrecht then searched the appellant and found the knife, which according tot the complainant's evidence, had been used in the robbery, as well as the complainant's cell phone in the appellant's pocket. Upon being confronted by Sergeant Engelbrecht as to why he was in possession of a cell phone, the appellant could not explain himself.

The last witness for the State was Constable Robertson, who corroborated the evidence of Sergeant Engelbrecht in all material aspects, save for the fact that he described the appellant's clothing as a pair of jeans and a red top. However, in re-examination he conceded that he could have been mistaken with regard to the latter item of clothing.

In essence the appellant's version is that he was nowhere near the scene of the robbery, he knew nothing about the incident and the witnesses for the State had concocted a story to falsely implicate him in the crime. According to the appellant, on this particular morning he was returning from his employer's residence in Gordon's Bay to his home in Zola. He was walking along the main road between Gordon's Bay and Strand when a police vehicle stopped next to him. Police officials exited the vehicle and promptly searched him. They found a knife and a Motorola cell phone upon him and he was told that he should accompany the police officials to the Gordon's Bay Police Station.

In cross-examination the appellant denied that his arrest had been carried out by Sergeant Engelbrecht and Constable Robertson. He could not name the police officials who had in fact, according to his version, arrested him. Significantly this was never put to the police witnesses during the cross-examination by the appellant's legal representative. The appellant further testified that upon his arrival at the police station, accompanied by the police officials who had arrested him, they saw the complainant leaving the police station. She was stopped by the police officials and asked whether the appellant was the person who had robbed her from her possessions, which she denied.

The appellant's evidence contained a number of contradictions and improbabilities. During cross-examination of the State witnesses, it was put to them that the appellant would testify that he had been walking along the N2 main road when he was arrested. This was some distance away from the road between Gordon's Bay and Strand, which the appellant referred to in his evidence as being the place where he had been arrested. Secondly, although at that stage the appellant had been employed by his employer for a period of time, he could not supply any information whatsoever about his employer. His version that he had been summoned to his employer's house early on a Sunday morning to come work, is highly improbable. The appellant could not satisfactorily explain this aspect of his evidence.

At the police station where the complainant had indicated that it was not the appellant who had robbed her, according to the appellant's evidence, the appellant testified further that he specifically enquired from the police officials why had been arrested, upon which they informed him that he would, in due course, be sent home by the magistrate. In her judgment, the magistrate was mindful of the fact that the identity of the person who had committed the crime was in issue and that the evidence should be carefully considered, having regard to the cautionary rules that apply in this regard. In addition, the magistrate concluded that in respect of the attack on and robbery of the complainant, the complainant was a single witness which constituted a further reason to evaluate her evidence with caution.

The magistrate concluded that the complainant's evidence was thoroughly tested during cross-examination, that there were no material contradictions or improbabilities in her version and that she had sufficient opportunity to positively the appellant as her assailant. The magistrate regarded the complainant as a reliable and honest witness. In S v Carolus [2008] ZASCA 14; 2008 (2) SACR 207 (SCA) at 212a, the Court said in relation to an appeal against a conviction on the basis that the State had failed to prove the identity of the perpetrator:

"There is no formula to apply when it comes to the consideration of the credibility of a single witness. The trial court should weigh the evidence of the single witness and consider its merits and demerits and, having done so, should decide whether it is satisfied that the truth has been told despite the shortcomings or defects or contradiction in evidence. As stated in S v Webber 1971 (3) SA 754 AD at 758A-759A, the cautionary rule is merely a guide to a right decision. It naturally requires judicious application and cannot be expected to provide, as it were, automatically the correct answer to the question whether the evidence of the State witness should be accepted as truthful and accurate. It does not mean that an appeal must succeed if any criticism, however slender, of the witness' evidence were well founded."

Having regard to the evidence as a whole, the magistrate, in my view, gave a well considered judgment and cannot be faulted for coming to the conclusion which she did. Accordingly, it is proposed that the appeal against the conviction must fail and I propose that the following order be made, that the appeal be dismissed.

VIVIER, AJ

LE GRANGE. J: I agree and it is so ordered.

LE GRANGE. J