IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NO.: A341/09

In the matter between 
LUVUYO NGUBO 							Appellant
and
THE STATE								Respondent

JUDGMENT DELIVERED ON 04 FEBRUARY 2011

SAMELA, J

[3]     Ms Kloppers argued on Appellant's behalf that:
a)	

the victim could not remember how he alighted from the motor vehicle as the incident happened quickly;
the victim's powers of observation in all probability was diminished by the trauma of the incident;
the victim could not precisely describe the Appellant at the police station save to say that the one who drove the car wore a red shirt with stripes;

(j)     the complainant did not suffer any physical injuries; and 
(k)    the motor vehicle was recovered on the same day free from any damages.

[5] The Appellant denied that he was on the crime scene. He testified that he was from Langa going to see a friend at Joe Slovo. He had an appointment to meet with his friend at Mapindi's Tavern. On arriving at Joe Slovo he went to his friend's place and did not find him. On his way to the tavern, he met the police who arrested him.

[6]     Mr Pillay argued on the State's behalf that:

[7] The crux of the appeal is whether the Appellant was correctly identified by the victim and his witness.

[8] Considering the identification aspect of the accused, it is indeed trite law that when dealing with identification, a court must take care to ensure that witnesses are not only honest, but their identification of the accused is reliable, see S v Mthetwa 1972 (3)
SA 766 (A) at 768 A-C.

[8] In this case, the credibility of the complainant and his witness cannot be seriously challenged. This is on account of factors which contribute and confirm the reliability of the state witnesses' versions from the record. These are:
(a) the complainant's description of the robber that was driving as far as his height and clothing worn accords with what the police found;
(b) the incident happened during the day;
(c) each witness identified the Appellant independently;
(d) each witness was certain that the Appellant was one of the robbers;
(e) Constable van der Merwe chased, arrested the Appellant who was at all times in his sight;
(f) the Appellant's explanation for going to his friend's place instead of going to the tavern as per appointment does not make sense.

[9] Considering the totality of the evidence presented by the witnesses, the Magistrate correctly accepted their evidence. The Appellant's version is highly improbable and cannot be believed. It is therefore difficult to visualise why the witnesses would falsely implicate the Appellant in this matter.

[11 ] The Appellant's version is difficult to folfow. His explanation is not convincing at all. I am of the view that the Magistrate correctly ruled on the evidence before her. The appeal has no merit in respect of the conviction.
Regarding sentence, only the addresses by the defence and the state are reflected in the court's record, the Magistrate's part regarding sentence and reasons is missing. In the court's record there is a signed copy of the purported notes by the Magistrate. In the interests of justice, I am of the view that this court should proceed with the documents before it and conclude this case without delay

[13] The offence the Appellant committed is a very serious offence and the interest of the society needs to be protected against offenders. At the same time, the interest of the society needs to be balanced against that of an offender and the seriousness of the offence. It would seem to me in the circumstances of this case, that the sentence is not shockingly inappropriate.

[14]   In the result I accordingly propose the following;
The appeal is dismissed and the conviction and sentence are confirmed.

										SAMELA, J