IN THE HIGH COURT OF SOUTH AFRICA 
WESTERN CAPE HIGH COURT CAPE TOWN

CASE NO A 372/10

IN THE MATTER BETWEEN:

AND

JUDGEMENT : 19 OCTOBER 2010

MARAIS AJ

[1] Shortly after midnight on 7 May 2005, Mr Justin Nero and his girlfriend Allison Ruiters were going to his home in the West Coast town of Saldanha.He was on a bicycle while she was walking beside him. At the local taxi rank Mr Nero deviated from his course to avoid the uneven terrain there. Ms Ruiters proceeded straight on.

[2] A man dressed almost completely in black passed her from behind and approached Mr Nero who was some 40 metres away at that time. The man pulled out a gun and indiscriminately fired at Mr Nero who attempted to ward off the shots. He shouted to his girlfriend to run away. The first shot hit him in his left wrist. The next shot hit him in his stomach. Mr Nero fell from his bicycle and was shot three more times - in his right upper leg, in his upper left leg and in his right foot. More shots was fired but did not hit him. (Nine spent bullet casings was found on the scene and sent for forensic testing.)Mr Nero was left lying on the ground and his assailant ran off into the night.

[3] Ms Ruiters took refuge at a nearby house together with two other persons who were also in the vicinity when the shooting started. (these persons were on the list of witnesses but were not called. The Prosecutor informed the court that they were unable to recognise the attacker).When everything had quieted
down she emerged from the house and ran towards her boyfriend who was lying some distance away from where he was shot. Mr Nero told the bystanders who had gathered there to help him that the person who shot him was a man called " Holland". He was subsequently taken to hospital.

[4] Both Nero and Ruiters made written statements to the police on the same day of the shooting. In his statement (it was handed in as an exhibit) Nero described his assailant's clothes merely as " swart klere" and gave no further description of any of his features or any other identifying aspect. Nero stated that he recognised the man when he was standing in front of him just before the first shot was fired as a person called " Holland". During the shooting he called out to the man "Holland!". In her statement ( also handed in as an exhibit) Ruiters stated that the attacker wore black clothes but she was unable to give any further description of the man. She said that she did not see his face -" dit was te donker" She added that she would not have been able to identify the man if she saw him.

[5]The Appellant was arrested on 15 October 2005 and charged with attempted murder and the contravention of section 3 of Act 60 of 2000 being unlawfully in possession of a fire arm. The case against the Appellant was postponed on various occasions without any evidence being led. Eventually he failed to appear for his trial on 14 March 2007 and his bail was estreated. He was subsequently re-arrested and appeared again on 17 June 2008.The Trial eventually proceeded on 19 March 2009.

[6] The Appellant was initially not represented. The Magistrate refused the Appellant's application for a postponement in order to appoint an attorney and ordered that the trial should proceed - in the event the Appellant refused to cross-examine the witnesses Nero and Ruiters. Both these witnesses were recalled later during the trial after Mr Cook was appointed to act for the Appellant and was cross-examined by him.

[7]Mr Nero testified that on the night of the shooting the moon was shining very brightly and that there was a streetlights at the Taxi rank. He said that he recognised the man who shot him as "Holland". He saw his face and stated that he knew him well. According to him he went to school with 'Holland" and had known him for 26 years. In court Nero gave a full descripton of the man's clothing - he wore a black jacket with a hood as well as a "beanie" on his head and a red scarf. He described "Holland" as tall and added that he recognised him from his gait.

[8] Just before the first shot was fired " Holland" removed the hood from his head .Nero was very confident that the man who shot him was the Appellant and was adamant that he was not mistaken in identifying the Appellant as his assailant. To support his confidence he said that a few days prior to the shooting the Appellant showed him and others a gun that Appellant possessed.

[9] He further testified that the Appellant had a motive for shooting him because he,Nero, was accused of stealing a safe with a large amount of cash in it belonging to a friend of the Appellant,and had been seriously assaulted by friends of the Appellant a few days before the shooting. He said the Appellant shot him because Appellant and his friends were afraid that he would revenge the assault by shooting them and he had to be shot first.

[10] Ms Ruiters testified that the man who shot her boyfriend was tall and dark of complexion and wore a dark cap,black jacket and black trousers. According to her she did not see the red scarf, the "beanie" or the hooded jacket. The collar of the jacket was turned upright and covered the lower part of the man's face. The cap was drawn low down to almost over the man's eyes.

[ll]She did not see the man removing anything from his head at any time. She was unable to recognise the person and did not see his face. She stressed the fact that the man was tall and was of similar height as the Appellant. She confirmed that Nero told the bystanders and his mother that it was " Holland" who shot him.

[12 The State produced no other evidence to link the Appellant to the crime. Statements in terms of Section 212 of Act 51 of 1977 was handed in by agreement indicating that the spent bullet casings found on the scene was fired from a fire arm that was confiscated by the police on 28 May 2005 at a house in Vredenburg.
[13] The Appellant gave evidence and denied that he was the person who shot Nero. He testified that on the night in question he was at his mother's house and was not in the vicinity of the shooting. He further denied that he was known as " Holland" and denied that Nero and he were friends or that they went to school together. He described Nero's claim that they had known each other for 26 years as nonsense and pointed out that he was only 18 years at the time of the incident.( according to the record Nero is six years older than the Appellant).

[14] The Magistrate called a witness to testify in terms of section 186 of Act 51 of 1977 in order to establish whether the Appellant was known under the alias of "Holland".Inspector Karosieni testified that the Appellant was known under the alias of "Holland". When cross-examined by Mr Cook he conceded that the Appellant was known to him as such only from the time of the investigation of the present shooting incident.

[15] In his judgement the Magistrate correctly held that the main issue in dispute was identification of the person who shot Mr Nero. The Magistrate, somewhat tentatively, concluded that in relation to the identification Nero was a single witness, n this finding he was correct.

[16] However, in my view,the Magistrate failed to approach the evidence of Nero as a single witness with the necessary caution. He also generally appears not to have applied the usual caution with which our Courts are called upon to scrutinise evidence of identification. (See S v Mlati 1984 (4) SA 629 (A) at 632-633; S v Pretorius 1991 SACR 601 (A) at 609 )

[17] Before a Court can place any reliance on the evidence of a single witness the evidence must be clear and satisfactory in every material respect. The evidence must not only be credible, but also reliable.In this respect see R v Makoena 1956(3)SA 81(A); S v Webber 1971(3) SA 754(A); S v Sauls and others 1981 (3) SA 172(A); S v Ge ntle 2005 (1) SACR 420 (SCA) and S v Janse Van Rensburg and Another 2009(2) SACR 216 (CPD).

[18] Unfortunately I cannot agree with the Magistrate that Mr Nero was a good witness. A perusal of the record discloses that Nero gave contradictory evidence in relation to the clothing worn by the assailant. This a crucial aspect in assessing the reliability of his evidence - it is closely linked to the circumstances under which his observation was made . On his version he had sufficient time to observe the person who shot at him and who was very close to him. According to him the lighting at the scene was good - there was street lighting and the moon was very bright.

[19] In these circumstances one would then expect that there would be very little if any difference in the description of the clothing given by Ruiters the other eye witness . However, Ruiters contradicts Nero substantially in this regard. Ruiters also contradicts Nero in regard to the removal of the hood and also contradicts him in regard to the relative positions of Nero and the assailant when the shots were fired. Nero also contradicted himself. The Magistrate was of the view that the contradictions were not substantial but in the circumstances of the nature of the evidence I cannot agree with his assessment.

[20] It is also significant that Nero was unable to give the detailed description of the clothes, length and gait as well as the real name of Appellant in his statement he made on the same day as the shooting when the events was still fresh in his memory but gave all this detail for the first time five years later in court. The ineluctable conclusion is that this evidence was added on to strengthen his version.
[21] That he was prone to bolster his evidence is borne out by his steadfast insistence that the moon was shining brightly and there was sufficient street lighting at the taxi rank. Both these assertions were contradicted by objective evidence. Nero had to concede during cross-examination that there was no lights at the taxi rank and the nearest street light was far away from the scene. The scientific evidence produced by Mr Cook proved that on that night the moon was not visible being a so-called "new moon". It is clear that Nero lied about this in order to make his identification of Appellant more likely. For the same reason he also lied about the length of time that he ostensibly knew the Appellant.

[22] It is further clear that Nero showed bias against the Appellant and admitted that they were adversaries. The circumstances Nero testified about provided a motive for himself to accuse the Appellant of the shooting. In these circumstances it cannot be said that Nero's evidence was satisfactory in all
material respects. On the contrary, a reading of his evidence reveals that Nero was argumentative, attempted to avoid questions and gave vague answers when it suited him.
[23] The Magistrate was impressed by Nero's adamant and confident assertion that he was certain that it was the Appellant who Shot him. But as our courts have so often said " The positive assurance with which an honest witness will sometimes swear to the identity of an accused person is in itself no guarantee of the correctness of that evidence." ( R v Masemang 1950 (2) SA 488 (A) at 493; see also S v Mehlape 1963 (2) SA 29 (A) at 32 and S v Pretorius supra at 608.)
[24]ln regard to Nero's claim that he knew the Appellant very well, it is apposite to refer to the following words by Dowling J in R v Shekele 1953(1) SA 636at 638 g concerning the identification of persons said to be well known by witnesses :
" An acquaintance with the history of criminal trials reveals that gross injustices are not infrequently done through honest but mistaken identifications. Strangers are sometimes mistaken for old acquaintances. In all cases that turn on identification the greatest care should be taken to test the evidence." See also S v Thebus 2002 (2) SACR 566 AT 576
[24]When the proper caution is applied it is clear that not only is the evidence of Nero unreliable but it is also not trustworthy. He is not honestly mistaken. It would be dangerous to rely on such evidence to find that a proper identification was made. In my view the Magistrate misdirected himself by accepting Nero's evidence as truthful and relying thereon to convict the Appellant.

[25]]The Magistrate further erred in finding corroboration for Nero's evidence in the fact that he identified his attacker as "Holland" and by repeating this assertion to other persons. The Magistrate also erred in finding that the Appellant was in fact "Holland". Firstly, as conceded by Ms Galloway who ppeared for the State in the appeal, the statements by Nero are nothing more than self corroboration that carries no weight - a repetition of a mistaken fact does not make it true and, secondly the evidence by inspector Krasieni in this regard did not establish that the Appellant was known as " Holland" at the time of the shooting.

[26] It is trite that there is no onus on an accused person to prove an alibi. In the present case the Appellant maintained that he was at his mother's home at the time. Nothing in his version appears to be improbable or not reasonably possibly true.The Magistrate rejected the Appellants' evidence because it was in conflict with the State's evidence that he has found to be true. This is the wrong approach. In this regard see Sv Saban en 'n ander 1992(1)SACR 1999(A); S v Van der Meyden 1999(2) SACR447 (W)

[27] In seeking to find some form of guarantee of trustworthiness in Nero's evidence, the Magistrate was of the view that there was no reason to believe that he came to court to falsely or wrongfully implicate the Appellant and therefore he can find him to be a witness on which the court can rely. This is a serious misdirection. Our Courts have often held that it is a wrong approach in a criminal case to say ' Why should a witness for the prosecution come here to commit perjury ?' (see R v Mtembu 1965(4) SA 334 (T) at 335-6 ; S v Kubeka 1982 (1)SA 982 and the cases cited at 537 D)

[28] Ms Galloway conceded that the evidence about the firearm that was linked to the shooting does not provide any nexus between the Appellant and the shooting and is of no consequence. She was also constrained to concede that the allegation that the Appellant showed some people that he had a firearm days before the incident was also of no consequence. In my view it is a disturbing aspect of this case that the State did not provide any explanation for its failure to lay a foundation for the tendering the section 212 certificates relating to the fire arm seized in Vredenburg some three weeks after the event when there was no link with the Appellant. It appears that the Police did not attempt and /or failed in tracing the owner and/ possessor of the fire arm that was undoubtedly used in the shooting. In the nature of the seriousness of the crime involving a fire arm one would have expected that the weapon used in the attack would form a crucial piece of evidence. That this weapon was not even remotely connected to the Appellant and not even a suggestion that he was in possession thereof must,in itself, cast serious doubt on the case against the Appellant.

[29] It is trite that if an accused's version is reasonably probably true he is entitled to his acquittal. A court is not entitled to convict unless it is satisfied not only that the explanation is improbable but that it is beyond any reasonable doubt it is false.
(see S v V 2000(1) SACR 453 (SCA); Sv Shackell 2001(2) SACR 185 (SCA); S v Mafiri 2003 (2) SACR 121 (SCA); S v Chabalala 2003 (1) SACR 134 (SCA)

[30] The version of the Appellant cannot be said to be improbable and there is no reason to reject it as false.The Magistrate should not have rejected his version and should have ordered his acquittal.

[31] In view of the aforegoing I am of the view that the State has not succeeded in discharging the onus of proving beyond reasonable doubt that the Appellant was the man who attempted to kill Mr Nero.
[32] I would accordingly uphold the appeal and set both the convictions and the sentences imposed in respect thereof aside.

JC MARAIS, AJ

I agree and it is so ordered