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Petersen v S (A439/11) [2011] ZAWCHC 547 (11 November 2011)

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IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NO: A439/11

DATE: 11 NOVEMBER 2011

In the matter between:

ANDREW PETERSEN ….....................................................................................Appellant

and

THE STATE …..................................................................................................Respondent




JUDGMENT




VELDHUIZEN. J



The appellant was convicted in the Regional Court on the charge of robbery with aggravating circumstances and sentenced to six years imprisonment. He now appeals his conviction and sentence.



On 17 August 2010 at about 7:50 am the complainant was a fare paying passenger in a taxi. She was on her way to the Waterfront in Cape Town. She testified that while they were driving the appellant grabbed hold of her bag which she had slung over her shoulder. She resisted and landed on his lap. He then took out a screwdriver and started, as she put it, swinging at her and hit her on the hand. In the process the appellant managed to get hold of her cell phone. The appellant jumped out of the taxi and ran off.



The complainant reported the incident to the police at the Sea Point police station. One of the policemen drove around with the complainant in an attempt to find her assailant but to no avail. Back at the police station she was shown 14 to 15 photos on the computer and identified the appellant as her assailant. He was arrested the next day.



The appellant denied that he had robbed the complainant and testified that he was at home sleeping at the time of the robbery. The magistrate found the complainant to be a good and honest witness and that her identification of the appellant was reliable. I pause here to observe that it was the first time that the complainant had seen the appellant, and from her description of the incident she could not have had much time for an accurate observation. One must also keep in mind that the circumstances under which she observed her assailant was not conducive to reliable identification.



The magistrate had no criticism of the appellant's evidence and in my view rightly so. There is very little to choose between the complainant's version and that of the appellant. It is in the circumstances unsafe to convict the appellant on the evidence of a single witness.



In the result the APPEAL IS UPHELD AND THE APPELLANT'S CONVICTION AND SENTENCE SET ASIDE.





VELDHUIZEN, J



I agree,

SABA, AJ