---

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA,

GAUTENG LOCAL DIVISION,

JOHANNESBURG

APPEAL COURT CASE NO: A257/2017

DPP REF NO: 10/2/5/1-(2017/417)

In the matter between:

NAKI, OSCAR XOLILE                                                                                                     Appellant

and

THE STATE                                                                                                                       Respondent

J U D G M E N T

KAIRINOS AJ (MEYER J CONCURRING):

1. The Appellant was convicted in the Regional Court, Randburg of Robbery with aggravating circumstances as defined in Section 1 of The Criminal Procedure Act 51 of 1977 and sentenced to a term of 15 years imprisonment in terms of the Section 51(2) of Act 105 of 1997.  He was serving another lengthy sentence of imprisonment and the trial court ordered that half of the sentence of 15 years imprisonment ‘be served concurrently with any other sentence the accused is currently serving’.  The appeal, with the leave of the trial, is against his conviction and sentence.

2. The main issue in the appeal is that of identification and, more particularly, the reliability of the identification of the Appellant by the State’s two eyewitnesses.

3. The facts in the matter are simple and essentially undisputed. On 11 December 2006, at approximately 20h00, Ms Arabang Ramakau (“Ramakau”) and Mr Ramoletsi Morogeli (“Morogeli”) (jointly “the complainants”), who were siblings, were driving home in Ramakau’s new Volkswagen Golf 5 (“the vehicle”). Upon reaching their home, Morogeli opened the gate and Ramakau drove her vehicle into the premises and parked in the garage. A group of three men then accosted them. The leader of the group, who was described in the evidence-in-chief, as a tall slender man of a light brown complexion, was holding a firearm. Ramakau pleaded with the men not to proceed with the robbery and to desist from taking her vehicle since they could see she was wearing black clothing, being in mourning for the loss of her husband only a month before. The leader of the robbers then searched Morogeli and took his cellular phone and also made him lie on the floor. The robber who stood near Ramakau took her cellular phone after it began ringing. He also took a packet of food from Nando’s out of her hands. The interaction took approximately ten minutes. The leader of the robbers then instructed the two accomplices to drive the vehicle out of the garage and out of the property, whereupon he ran to the vehicle and opened the left rear door and entered the vehicle and the robbers departed with Ramakau’s vehicle.

4. The vehicle was recovered the following day and Appellant’s palm-print was discovered on the left rear outside of the body of the vehicle between the left rear door and the boot. There was no evidence of any other fingerprints found on or in the vehicle. During evidence in the court a quo, it emerged that the Appellant was identified and charged on the basis of the palm-print. It also emerged that a certain Percy and Leon was also arrested before the Appellant in connection with the robbery but they were not charged and the prosecution against them not proceeded. The reason for not proceeding were not dealt with in the court a quo and no evidence was led in this regard.

5. Both Ramakau and Morogeli positively identified the Appellant as being the tall slender man who was the leader of the robbers and who used the firearm. However, such identification took place during the trial where they identified the Appellant where he sat in the dock. This type of identification is commonly known as a dock identification and it is trite that such identification must be treated by a court with extreme caution.  Generally, a dock identification carries little weight, unless it is shown to be sourced in independent preceding identification.  (See S v Tandwa and Others 2008 (1) SACR 613 (SCA), paras 129-131.)

6. The Appellant denied that he had taken part in the robbery. He did not however deny that it was his palm-print that had been found on the vehicle. Both in his plea explanation and in his evidence at the trial, the Appellant testified that he had been requested by a friend known as Percy to “assist” Percy to drive Percy’s sister’s new motor-vehicle to her house. He accompanied Percy in Percy’s Honda Civic to an address where the vehicle, being a new white Golf 5 was parked. A friend of Percy’s known as Leon was waiting for them. The Appellant stated that he walked around the vehicle admiring it and during this process, he testified he may have touched the vehicle with his palm. He then climbed into the front passenger seat and accompanied Leon to Percy’s sister’s address whilst Percy followed them. The Appellant initially testified that this had taken place on the morning of 11 December 2006. However, when it was pointed out to him during cross-examination that this could not be so on his version of events, he explained he may be mistaken about the date since it was so many years ago. Neither Percy nor Leon was called by the Appellant to corroborate his version. He explained that Percy had died and it was rumoured that Leon had disappeared from the township.

7. The court a quo relied on the dock identification, the credibility of the two State witnesses, being Ramakau and Morogeli and the fact that the Appellant’s palm-print had been found on the vehicle.

8. It is trite that a court must exercise caution when relying on the evidence of the identification of an accused by witnesses and even more so when such identification takes place as a dock identification. In the locus classicus in this regard, Holmes JA held as follows in S v Mthetwa 1972 (3) SA 766 (A) at 768A-C:

“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; 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).”

9. A useful summary of the test is set out in Volume 18 of LAWSA paragraph 263, where the learned authors state as follows:

“Judicial experience has shown that evidence of identity should, particularly in criminal cases, be treated with great care. Even an honest witness is capable of identifying the wrong person with confidence. Consequently, the witness should be thoroughly examined about the factors influencing his or her identification, such as the build, features, colouring and clothing of the person identified. An early identification before the trial (which is admissible as an exception to the rule prohibiting previous consistent statements) lends credibility to the evidence. Particular care should be taken if the only evidence connecting the accused with the crime is that of a single identifying witness; then the cautionary rule relating to single witnesses should also be taken into account.”

10. In this matter, there was no identification parade held prior to the first occasion when the State witnesses saw the Appellant sitting in the dock as the accused. This is most unfortunate, particularly when the trial was postponed for the purposes of an identification parade. No explanation was furnished during the trial as to why no identification parade was held before the trial. There was also no evidence of the witnesses’ witness statements and how the witnesses had described the robbers therein and whether their descriptions therein matched the features of the Appellant.

11. Both witnesses were found to be credible witnesses and this Court does not interfere with that finding. They both had ample opportunity to view their assailants, there was good lighting in the garage and they would have been focused on the leader of the robbers holding the firearm. However, as pointed out in the above case law, even honest witnesses may make mistakes with confidence in regard to identification. This is particularly so when they have had the suggestive benefit of viewing the accused in the dock prior to the trial and when they are probably of the view that the Appellant must have been involved since his palm-print was found on the vehicle. Their evidence is not therefore reliable beyond a reasonable doubt.

12. In this matter the Appellant’s version of how his palm-print got onto the vehicle is reasonably possibly true and cannot be rejected as being far-fetched or impossible.

13. The failure to hold a prior identification parade and to have presented the statements of the state witnesses in evidence is therefore fatal to the State’s case and it cannot be held that the State has proved its case beyond reasonable doubt.

14. In the circumstances, the following order is made:

14.1 The appeal is upheld.

14.2 The conviction and sentence are set aside.

14.3 The order of the court a quo is substituted with the following order:

“The accused is acquitted and found not guilty on the charge of Robbery with aggravating circumstances.”.

 

_________________

 

G Kairinos

Acting Judge of the High Court: Gauteng Local Division

 

I agree.

_________________

 

PA Meyer

Judge of the High Court: Gauteng Local Division

For the Appellant:

Adv S.H. Mcwango

For the State:

Adv R Bester

Dates of Hearing: 23 August 2018

---