IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)
						CASE NO: A351/10

In the matter between:

And
THE STATE

JUDGMENT DELIVERED ON 4 FEBRUARY 2011

CLOETE, AJ
[1] The appellants were tried and subsequently convicted in the regional court on charges of robbery with aggravating circumstances (as defined in s1 of the Criminal Procedure Act, No 51 of 1977) as well as the unlawful possession of a firearm and ammunition of unknown calibre and origin. First appellant was also tried and convicted on a charge of attempted murder.

[2] First appellant was sentenced to an effective term of twenty years imprisonment and the second appellant to an effective term of fifteen years imprisonment. The first appellant appeals against both his conviction and sentence and the second appellant against his conviction for unlawful possession of a firearm and ammunition as well as his sentence.

[3]     Both appellants had legal representation almost throughout the proceedings.

[4] In his judgment, the presiding regional magistrate summarised the evidence given during the trial in some detail. I do not believe it necessary to repeat this level of detail; suffice it to highlight certain aspects thereof.

[5] At approximately 16h10 on 13 March 2003 an armed robbery took place at AJ Brick Sales in the industrial area of Blackheath. Two persons, one of whom was armed, took part in the robbery. The firearm was used to threaten certain employees and other persons at the premises to hand over cash in an amount of R15 553 as well as two cellphones. Immediately after the robbers had left the building some of the employees, together with one Dawid van Wyk, followed them in a bakkie. The robbers were spotted and after an altercation in which a shot was fired by first appellant at the driver of the bakkie (Donovan Zimmery), second appellant was arrested and handed over to the SA Police. The second appellant was found in possession of the missing cash and cellphones and these were handed over to the SA Police, and in turn to the owners thereof. First appellant was arrested by the SA Police shortly thereafter. Approximately 45 minutes later both appellants were brought to the premises of AJ Brick Sales by the SA Police where two of the employees identified them through the window of the police vehicle as the robbers.

[6] The state called five witnesses, two of whom were employees of AJ Brick Sales, the third, the aforementioned Van Wyk, the fourth a forensic analyst and the fifth a police photographer. The appellants testified in their own defence and called no other witnesses.

[7] The appellants' defence was that they were not the persons responsible for the robbery. The first appellant claimed that he had simply been walking through bushes near where the altercation after the robbery took place and had run away out of fear. The second appellant claimed that he was walking along a path near the place where such altercation took place when he was suddenly assaulted by persons unknown to him and rendered unconscious. He further claimed that he only regained consciousness later when he found himself in the police cells.

[8] It was not seriously placed in issue by the appellants that the robbery had taken place as described by the state witnesses. The only real issue in dispute was identification by the state witnesses of the appellants. The magistrate found that although none of the state witnesses could describe the appellants in detail, they were all consistent in their identification of the faces of the appellants. In respect of the first appellant, all of the witnesses made mention of his 'ronde gesig', a description which the presiding magistrate found to be correct based on his own observations They also testified about his dark jacket which was also identified in the police photograph taken of him at the time. In respect of second appellant, none of the witnesses called by the state identified a particular facial detail but all were consistent in their identification of him, in particular, because they had all seen the two appellants shortly after the robbery (albeit under different circumstances) and had identified them. It is also noted that the second appellants face was swollen and bloody. This was no doubt as a result of the assault on him as mentioned above.

[9] In his judgment, the presiding regional magistrate considered and evaluated the evidence, accepted that of the state witnesses, rejected that of the appellants, and convicted them as set above.

[10]     On appeal before this court, appellants' counsel submitted the following:

[10.1.] In respect of first appellant, the state witnesses' identification should not be accepted as reliable because:
[10.1.1.] They had been traumatised by the events prior to identifying the first appellant who was in the back of a police van when the identification took place, which could have affected their ability to make a reliable identification;
[10.1.2.] In the circumstances they could have been mistaken in respect of the identification.
[10.2.] In respect of second appellant:
[10.2.1.] The evidence of the state witnesses was that only the first appellant was in possession of the firearm (and thus the ammunition) There was no direct evidence that the second appellant was ever in possession of. or shared possession with first appellant, of the firearm and ammunition;
[10.2.2.] The presiding magistrate misdirected himself in convicting the second appellant on theses charges by virtue of 'joint possession' as provided in the Arms & Ammunition Act, 60 of 2000

"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 light of the totality of the evidence, and the probabilities "
[12] To my mind, the presiding magistrate was correct in finding that it was unrealistic that the state witnesses who followed the fleeing robbers would identify and confront two complete strangers, unless those people were indeed the ones who had just robbed them The presiding magistrate was also correct in finding that it was highly unlikely that the recovered cash and cellphones would have been in the possession of a complete stranger so shortly after the robbery

'In my respectful view, Marais J set out the correct legal position ... when he said the following in S v Nkosi 1998 (1) SACR 284 (W) at 286h-i:
The issues which arise in deciding whether the group (and hence the appellant) possessed the guns must be decided with reference to the answer to the question whether the state has established facts from which it can property be inferred by a court that:

[16]     I would therefore dismiss the appeals of the appellants against their convictions.

[17] Regarding sentence, it was submitted by counsel on behalf of the appellants that the presiding magistrate did not exercise his discretion judicially and misdirected himself by finding that no substantial and compelling circumstances existed in order to depart from the obligatory minimum sentence of 15 years imprisonment for the convictions of robbery with aggravating circumstances. In support hereof, appellants' counsel submitted that the presiding magistrate failed, in addition to the personal circumstances of the appellants, to give due consideration to the following:
[17.1.] That all of the stolen property had been recovered and returned to the lawful owners / possessors;
[17.2] That apart from the second appellant no one sustained any injuries; [17.3.] That although the appellants were on bail, the matter was unduly prolonged (from 2003 to 2010) whilst the appellants' lives were held in abeyance pending the outcome of the trial.

[18]     My view on these submissions is as follows:
[18.1.] The fact that the stolen property was recovered was not as a result of any actions on the part of the appellants.
[18.2] That no one apart from the second appellant sustained any injuries should more correctly be attributed to good fortune, particularly bearing in mind that the first appellant fired a shot directly at the persons following the appellants and could thus have killed or injured any one of them.
[18.3.] Neither of the appellants was incarcerated during the seven years which it took for the matter to come to trial and, whilst it may be that their lives were placed on hold during this period, both were on bail and continued to have freedom of movement.

'Unless there are. and can be seen to be, truly convincing reasons for a different response, the chmes in question are therefore required to elicit a severe, standardised and consistent response from the courts '

[23]     I would therefore also dismiss the appeals against sentence.
J I Cloete

I agree. It is so ordered

E MOOSA