In the matter between:

versus

JUDGMENT

THRING, J

At approximately 11:00 p.m. on the 7 January, 2003, the complainant in this matter, one Gumede, his girlfriend, one Nobuthulazi, or Mitzi, one Menzi Duma, since deceased, and one Umlungisi were asleep in two separate rooms in a dwelling in Mont Clair, Mitchelt's Plain, when four unknown men broke into the house and robbed them at gunpoint of a number of articles, including car radios, a television set, video players, hi-fi sets, a CD player, other electronic sound equipment, clothing, a cellphone, R3 000,00 in cash, two identity books and    a    Ford    Escort    motor    vehicle    which    belonged to one Buthelezi, who was absent at the time but who normally resided at the house. The following day the police arrested the two appellants and also two other men. All four of them were charged in the regional court of robbery with aggravating circumstances. The first appellant was accused No 1, the second appellant was accused No 3 and one Sfmphiwe Jacobs was accused No 2. He died during the trial, before the verdict, and no more need be said about him. One Prince Mangolwane was accused No 4. For the sake of convenience I shall refer to the appellants and the other accused by their accused numbers as they were arraigned at the trial.

They all pleaded not guilty to the charge. They were all represented at the trial by an attorney.

"They are charged with robbery with aggravating circumstances and therefore 1 am going to judge all three of them.''
However, be that as it may, with the magistrate's leave, the appellants appeal to this Court against both their convictions and sentences.

As regards the two appellants, accused Nos 1 and 3, as well as accused No 4, the magistrate in her judgment reEied on three features of the evidence which she found connected them all to the robbery.   These were:-

(1).   	Their identification by the complainant, Gumede;

(2). 	The presence, on the day after the robbery, of accused Nos 1 and 3 at a certain house at Lower Crossroads where they lived, where the police found some of the allegedly stofen items, and the presence of accused No 4, later on the same day, at another house at Lower Crossroads where he lives and where the police found certain other items which had allegedly been stolen from Gumede's house;

Accused Nos 1, 3 and 4 all gave evidence in their defence in which they disavowed complicity in the robbery and sought to explain away the features to which the magistrate refers. They all put up alibis for the evening on which the robbery was committed.

The magistrate appears to have found the accused to be unworthy of much credence as witnesses and to have concluded that the state had proved its case against them beyond reasonable doubt, inasmuch as the version of the accused could not reasonably possibly be true. In fact she found that they were lying witnesses.

On the day after the robbery, Gumede and Buthefezi were summoned to the Nyanga Police Station, They were tofd by the police that four suspects had been arrested and that they must come to the police station to identify them. In the police cells they were shown the four accused, and only the four accused. At that point Gumede claims to have "recognised" the accused as the four robbers. He claimed in his evidence that "I only knew their faces". He was unable to point to a single other characteristic of any of the men which stood out for him as an identifying feature. He did say that during the robbery the lights of the house were switched on.

In her judgment the magistrate said nothing about the merits or demerits of any of the three prosecution witnesses. From this it may be inferred, I think, that the impression which they made on her as to reliability was neither very good nor very bad.

"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 magistrate says nothing in her judgment about the risks attaching to evidence of identification. One wonders to what extent she was aware of them. However, be that as it may, Gumede's identification of the four accused is clearly fraught with problems, no matter how honest a witness he may have been. Thus, he was in a state of shock, having just been woken up; he must have had only a very short and limited opportunity to observe the robbers before his head went under the blanket, hence his inability to describe them to the police; the robbers were complete strangers to him; most important of all, the following day he was asked by the police to come and identify four arrested suspects at the police station. Human nature dictates that the witness probably expected them to be the culprits. In my view, these shortcomings in Gumede's evidence render his identification of the four accused open to large doubt, and must render it unreliable.

The evidence of the two appellants and of accused No 4 denying complicity in the robbery may well be equally or even more unreliable, but that is insufficient, in my view, to cure the manifest weaknesses in Gumede's identification.

I conclude that the magistrate placed far too much credence on the identification evidence, which, as 1 have said, stands alone.

Inspector Stephanus then proceeded, he says, to another address in Lower Crossroads where accused No 4 lives. He found the latter there. In this house he also found three video players, a Blaupunkt hi-fi set with two speakers, an identity book and two bags of clothes. Save for the Blaupunkt hi-fi set and speakers, which were identified by Butheiezi as his property, none of these items were identified as having been stolen from Gumede or from Butheiezi.
The difficulty which the prosecution has with inspector Stephanus's evidence, which might otherwise have been very cogent in implicating accused Nos 1 and 3 in the robbery, is that, with the single exception of Buthefezi's identity book, not one item mentioned by Stephanus in his evidence as having been found at the house occupied by accused Nos 1 and 3, or in the hut behind it, was positively identified as his property by either Gumede or Buthelezi.

“The Court has a strong suspicion that you took things that did not belong to you on that day,

In her judgment the magistrate said:-

"Now all items that were recovered from the house of accused No 1 and 3 were identified by Mr Gumede and Mr Butheiezi as being stolen or as belonging to them and being part of the items that had been stolen the night before, that is plus-minus 12 hours before the recovery. Now these items, according to Stephanus, were recovered from the main house and from a shack that was at the back of the house."

Later in her judgment she also said the foliowing:-

"Now accused 1 and 3 do not dispute that Inspector Stephanus made the recovery at their place. They also do not dispute that the goods belonged to the complainant and that some were recovered from the house and others from the shack."

These are fundamental misdirections. As \ have said, it is not true that all the items recovered from accused Nos 1 and 3's house were identified by Gumede and Butheiezi as having been stolen or as belonging to them, nor is it correct to say that accused Nos 1 and 3 did not dispute that the goods belonged to the complainant. Of the items listed on the SAP299 form, Butheiezi was able to identify as his property only the Blaupunkt hi-fi set and speakers, some compact discs, and his identity book. Inspector Stephanus says that the identity book was found in the hut behind the house occupied by accused Nos 1 and 3, and that the Blaupunkt hi-fi set and speakers were found in accused No 4's house. He did not say where the compact discs were found. As I have said, Gumede was not asked to identify any of the items listed on the SAP299 form.

It is moreover quite clear from the cross-examination of Gumede and Butheiezi that the defence did in fact place in issue the ownership of the articles found in the respective houses of the accused.

“
Maar u het vir die Hof gese hulle het gese die eienaar van daardie hut of plakkerhuisie was nie daar nie? — Dis korrek, ja.
U se u was doodseker? —- Amper doodseker."

Later he testified further as follows:-

" Hulle se u het gese dat die hut of die plakkerhuis hier behoort aan Xholani, Xholani is nie daar, hy's weg? -— Oit is moontlik dat die eienaar van die woning se naam wel Xhofani is, en hulle het my meegedeel dat hy nie op die oomblik daar was nie."

Whether or not Inspector Stephanus was looking for Xholani that day, as is suggested by accused Nos 1 and 3, the existence of Xholani was clearly not an afterthought or a subsequent fabrication on their part, for Stephanus conceded that he was tofd by them that the owner of the hut was absent and that the name Xholani might have been mentioned by accused Nos 1 and 3.

The magistrate seems to have rejected the accused's evidence about Xholani as false, along with much of their other evidence, but there is no direct evidence to contradict what accused Nos 1 and 3 said in this regard. Indeed Stephanus goes some way to conceding that it might be true, at least to the extent that the hut was occupied by a tenant at the relevant time. Whether or not his name was Xholani is immaterial. If the hut was occupied by a tenant, the link between accused Nos 1 and 3 and the robbery via Buthelezis identity book, which was found in the hut, is of course broken. In my view the magistrate erred in rejecting the reasonable possibility that the hut was occupied at the relevant time by somebody other than the accused.

evidence is as follows:-

If Gumede had seen accused No 1 being made to remove his trousers and hand them over to Buthelezi, one would expect him to have remembered it and to mention it in his evidence. Perhaps more important, there is no mention of Buthelezi's trousers on the SAP299 list drawn up by Inspector Stephanus. If this garment had formed part of Buthelezi's stolen property which was returned to him by the police, there is no reason why it should not have featured on the fist. Better still, the trousers should have been handed in as an exhibit and listed as such in the so-caF!ed SAP13 register. No such register appears to have been opened in this case.

In his evidence, albeit that it may not be worth a great deal in view of its numerous shortcomings, accused No 1 denied that he was wearing Butheiezi's trousers or that he was made to remove them. He said that he was wearing a black tracksuit with yellow and green stripes. Inspector Stephanus was not cross-examined on this point.

In my view there are too many question marks hanging over Butheiezi's evidence about this trousers for it to have been accepted by the magistrate as true beyond reasonable doubt. This link between accused No 1 and the robbery is just too tenuous to rely on.

The prosecution did not see fit to call either Gumede's girlfriend, Nobuthulazi, nor Umlungisi as witnesses. Both of them were present during the robbery and they may or may not have been able to give corroborative evidence as to the identity of the robbers. The reasons advanced by the prosecutor at the trial for not calling these people do not impress me.

Be that as it may, the state's case against accused Nos 1 and 3 suffers from the shortcomings which I have mentioned, some of which appear to have escaped the magistrate.

At the same time it is apparent from a reading of the record that all three of the accused who gave evidence were poor witnesses, and the magistrate was undeniably correct in finding that they lied in certain respects. They are very probably guilty of this robbery: but strong probability is of course not proof beyond reasonable doubt. The edifice of the prosecution case is'sufficiently shaky in my view as to render the conviction of accused Nos 1 and 3 unsafe. The demerits of their evidence are insufficient to supply the deficiencies in the state case.

In my judgment the appeal against their conviction must accordingly succeed.

The position of accused No 4 is somewhat different. In his house Inspector Stephanus found the Blaupunkt hi-fi set and loudspeakers which were positively identified by Buthelezi as having been stolen from him the night before. Other than to deny falsely that the articles had been found there, accused
No 4 had no explanation to offer for the presence of this piece of stoien property in his house.

The identification of accused No 4 by Gumede is no more reliable than his identification of accused Nos 1 and 3. Whilst going some way to connect him with the robbery, accused No 4's possession of the stolen hi-fi set does not in my view go far enough to justify the inference that he was beyond reasonable doubt one of the robbers. The possibility cannot be excluded, in my view, that he came into possession of this article in some other way.

As to the reliance by the magistrate on accused No 4 being found wearing a garment or garments belonging to either Gumede or Butheiezi, there is no evidence of this on the record.

In my judgment, accused No 4 was wrongly convicted by the magistrate of the robbery. He is, however, guilty on the evidence of a contravention of the provisions of section 36 of the General Law Amendment Act, No 62 of 1955, which is a competent verdict on a charge of robbery. The section reads as follows:-

Exercising this Court's powers of review under section 304(4) of the Criminal Procedure Act, No 51 of 1977, it should in my view set aside the conviction of accused No 4 and substitute an appropriate conviction of contravening section 36 of the General Law Amendment Act.

On that basis, sentence must be imposed afresh on accused No 4. At the time of the offence he was a youth of 17 years and some ten months of age. He had no previous convictions. He left school in standard eight, having had an unfortunate childhood without a father. Direct imprisonment is generally not appropriate under such circumstances. In my view, a totally suspended short period of imprisonment would be adequate in the circumstances.

Accordingly the following order is made:-

I agree.