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Louw v S (A32/2011) [2011] ZAWCHC 79 (23 March 2011)

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1. On 23 March 2009 the appellant was convicted in the Cape Town Regional Court on one count of robbery with aggravating circumstances committed on 11 March 2008 for which he was sentenced to fifteen years imprisonment.

1 S v Chauke and Another 1998(1) SACR 354 (VK S v Damoyi 2004(1) SACR 121 (C)

2. The appellant, with the leave of the court a quo, appeals both his conviction and sentence.

3. At trial the appellant, a 39 year old male, entered a plea of not guilty to the charge, exercised his right to remain silent, gave no plea explanation and made no formal admissions of any nature.

4.. At the commencement of the hearing there was no translator available for the complainant, Mr Elimanto, who is Nigerian. He testified in what he himself had described as "broken English". The appellant, in turn, is Afrikaans speaking and indicated to the court that he would ask for the evidence to be translated should it be necessary. The court invited him to indicate when he did not understand what was being said. The same invitation was extended to Mr Elimanto.

5. This is not a case where the proceedings are vitiated as a result of the lack of translators, but in my view, it would may have been advisable for the appropriate translators, and in particular to also assist the complainant to have been present¹.

6. Mr Elimanto testified that he and his wife, Mrs Azukio, were robbed at their home in Palm Close, Summer Greens in the morning of 11 March 2008. Mr Elimanto had opened the gate for a person wearing a police uniform and there was a police car outside. This person then pointed a gun at him and at the same time the second person, a black man, sneaked in. The first person was a coloured person. Mr Elimanto had thought that the first person was a policeman, and asked him where his search warrant was.

7. They robbed Mr Elimanto and his wife of R4 000.00. and US Dollar S350.00, took their wedding rings and his wife's jewellery. They were tied, covered with a duvet and drenched in water. Their assailant ransacked the house and took three cell phones which Mr Elimanto described as two Nokia's and one Motorola (so he thought).

8. Mrs Azukio testified that they gave their cell phones to the assailants, she had a Samsung and he had a Nokia. She testified that she brought it back from Nigeria. Mr Elimanto had previously testified that they had bought it at Edgars. She also asked the assailants for a warrant, meaning a search warrant.

9. Mr Elimanto testified that before the appellant had knocked on his gate, his gardener informed him that somebody was looking for him. He invited the two visitors in. one of which later took part in the robbery - the second accused - and another person, who informed him that they had drugs to sell. He told him that he did not deal in drugs and they left.

10. He described the second accused as Nigerian In discussions subsequent to the robbery with his Nigerian friends it seems they were able to identify this person as Mr John Elemde, also known as "Friday", and Mr Elimanto informed the police that the second accused stays in Phoenix.

11. The second accused fled his home, but was arrested at the Phoenix taxi rank by the police. Mr Elimanto identified this accused on the clothes he was wearing - a black short sleeve shirt with blue jeans. He was with the person who had called on Mr Elimanto just prior to the robbery.

12. In cross-examination it was put to Mr Elimanto that the appellant did not know him, he had never met Mr Elimanto and had no direct dealings with him. The appellant delivers drugs, that is all he does, he was meant to delivered the drugs from one Barry to the second accused, but instead "Friday', who had an agreement with Mr Elimanto, decided that the two of them should sell the drugs.

13. It was put to Mr Elimanto that the second accused wanted the promised return on his investment of R17 000.00 he had put into this business with Mr Elimanto and that Mr Elimanto was not paying him.

14. Although he (Mr Elimanto) had stated in his statement to the police that the second person (the second accused) was standing outside, he denied that this was correct. He reiterated, as he had testified, that the second accused had sneaked in

15. It was put to Mr Elimanto that the appellant was at his home the day of the robbery, with his wife and children.

16. The police found a police cap after conducting a search at the residence of the appellant — this much was common cause. They also found a maglite torch and the appellant informed him that it (the maglite and cap) belonged to one Constable Moloto. The police could not find the blue trousers or the firearm used in the robbery.

17. Officer Moloto testified that he had lost his torch and cap" which was placed in a yellow bag, at the creche his child attended. He had also seen the appellant there from time to time. This was on the same day that he was contacted by a Captain at the Milnerton Police Station who had informed him that they had found his cap with the appellant.

18. It was put to him that the creche was run by the appellant's wife and that the appellant lived at the creche.

19. When the appellant testified it transpired that he was not at home that day, as was put to the various witnesses, but that he was doing private building work, which later changed to building work for the municipality. In respect of the drugs he testified that he had to pick the drugs up and that it was to be delivered to the complainant. "Friday*, however, had decided that they should sell the drugs as the complainant owed "Friday" monies. They sold the drugs to Nigerians who knew the complainant, so he testified. The complainant had given them three days to come up with either the drugs or the money. This version, again, was somewhat different to what was put to the witnesses. It is also completely contradicted by what Mr Elimanto had testified, namely that the second accused had attended earlier on him that morning to offer him drugs.

20. The central issue is whether the appellant was correctly identified by Mr Elimanto and Mrs Azukio.

21. In S v Mthetwa 1972 (3) SA 766 (A) Holmes JA held as follows at 768A-D:

"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 accuseds 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; see cases such as R v Masemang 1950 (2) SA 488 (AD); R v Dladla and Others 1962 (1) SA 307 (A) at 310C; S v Mehlape 1963 (2) SA 29 (A)."

22. No formal identification parade was held Both Mr Elimanto and his wife immediately identified the appellant later that afternoon when they attended the Milnerton police station where he was being held in a cell with others. Mr Elimanto identified the appellant from a group of three or four people. Mr Elimanto testified that there were four coloured persons in the cell and this was not challenged in cross-examination. Though his spouse was not clear on how many other people there were, nothing accordingly turns on this. He testified that he was face-to-face with the appellant when he opened the gate He identified the appellant within seconds at the police station.

23. Both Mr Elimanto and his spouse were in close proximity to the appellant during the robbery_: and the robbery was of a sufficient duration to ensure that they had adequate opportunity to make accurate observations. Her evidence was that she clearly identified the appellant having had a good look at his face during the robbery.

24. I should add that it is unfortunate that the necessary steps were not taken to hold a proper identity parade. It is highly undesirable that identification of suspects take place in a police cell. There are clearly defined rules on how to conduct identification parades. ²

25. Mr Elimanto identified both the appellant and his co-accused in court - the appellant being the person with the uniform and of colour. The description Mr Elimanto gave was as follows: "...fair and tall and I think he is having beards, you know. So it's iike they recognise him, they know him" with reference to the reaction of the policeman when he described the first assailant.

26. In cross-examination he re-iterated that he described the coloured man "tall with beard".

27. It was put to him that he had described, presumably in his statement, the appellant as "beard - dean-shaven, moustache -clean-shave"; and the only reason for stating that the appellant had a beard was because he had a beard in court.

28. Mrs Azukio identified the appellant as the coloured man with the police uniform. Although he had instructed her to not to look at his face she was able to picture his face.

29. She identified the assailants at the Milnerton Police Station in a cell. She testified that the experience was a very traumatic one, that she thought she was going to lose her baby and "yes I should not miss a face like that':

30. She had given a description of the assailants before identifying them. The description was "a white, a coloured guy, tall and a darker guy probably a Nigerian or something."

31. Mr Elimanto's evidence had some contradictions -

(a) The testimony in chief that he saw a police vehicle outside his residence when he opened the gate to the appellant. This was not stated in his statement or repeated in cross-examination.

(b) His description of the appellant having a beard, whilst in his statement to the police had stated that the first assailant was clean-shaven.

(c) He made no reference to any discussion regarding drugs or that the second assailant, who had since absconded during the trial,³ and an unidentified man, had earlier, before the robbery, called on him to offer him drugs.

32. I pause to point out that the statement was not handed during the trial, contrary to the submission made on behalf of the appellant nor was it part of record before us. It is an obligation which rests on both parties to see that a proper record is placed before the court.

33. These contradictions, however, are not destructive of his evidence. The learned magistrate had found the complainant and his wife to be honest and reliable witnesses. They had corroborated each other in all material respects. I find objective assurance against the pitfalls of subjective identification in the fact that the car of constable Moloto was found in the possession of the appellant. Ms Kuun placed reliance on the absence of fingerprints. The evidence, however, was that the assailants were gloves ⁴

34. The difficulty with the appellant's version is first this - how could the complainant identify him if they had never previously met. Second, what are the probabilities of the appellant having the cap of constable Moloto in his possession the very day that the robbery takes place, with the robber wearing such a cap? Third, his evidence is that he had received R20 000 for the drugs, but he said nothing about this to the police? Finally, the trial was postponed in order for the appellant to call corroborating witnesses in the form of people he was working with or working for that day. No such witnesses were called Instead the appellant called his wife. The import aspect of her evidence was that she knew nothing about the bag left behind by constable Moloto. or that her son had played with his cap, as the appellant had testified.

35. The Supreme Court of Appeal has recently, in S v Naude & Another (488/10) [2010] ZASCA 138 (16 November 2010) affirmed⁵

S v Van der Meyden 1999 (1) SACR 447 (W) at 449j-450b, where the following was stated by Nugent J (as he then was):

'The proper test is that an accused is bound to be convicted if the evidence establishes his guilt beyond reasonable doubt, and the logical corollary is that he must be acquitted if it is reasonably possible that he might be innocent. The process of reasoning which is appropriate to the application of that test in any particular case will depend on the nature of the evidence which the court has before it. What must be borne in mind, however, is that the conclusion which is reached (whether it be to convict or to acquit) must account for all the evidence. Some of the evidence might be found to be false; some of it might be found to be unreliable; and some of it might be found to be only possibly false or unreliable; but none of it may simply be ignored.'

36. Navsa JA, continued in Naude as follows

'129] Importantly, in that case Nugent J warned against separating evidence into compartments and to examine either the defence or State case in isolation.⁶ See also S v Van Aswegen 2001 (2) SACR 97 (SCA) at 101a-e, S v Trainer 2003 (1) SACR 35 (SCA) at 40f-41c and S v Crossberg [2008] ZASCA 13; 2008 (2) SACR 317 (SCA) at 349f-i and 354b-

37. As the learned magistrate had found, there were material discrepancies between the evidence of the appellant and what was put to the state witnesses - so for instance it was put that he was at home with his wife and children when the robbery took place. When he took the stand he testified that he was at work - and then, after two postponements had been granted for this very purpose - he failed to adduce any corroborating evidence. The only inference to be drawn is that he could not. and it must follow that his evidence in this regard is to be rejected

38. In the premises 1 am satisfied that the appellant had been correctly convicted and I would dismiss the appeal against the conviction.

39. The learned magistrate carefully evaluated all relevant factors in deciding on sentence. In particular she found that an aggravating circumstance was the fact that Ms Azukio was pregnant at the time of the robbery. I am satisfied that there are no compelling circumstances to deviate from the minimum sentence imposed by the learned magistrate.

40. In the premises I would dismiss the appeal against the sentence and confirm the sentence of seven years imprisonment.

Sven OLIVER, AJ

I agree and it is so ordered.

N. C. ERASMUS, J

1S v Chauke and Another 1998 (1) SACR 354 (V); S v Damoyi 2004(1) SACR 121 (C)

2S v Carolus 2008(2) SACR 207 (SCA) at paragraph [20]

3Although the record is not clear on this

4SvCharzenand Another 2006(2) SACR 143 (SCA)

5at paragraph [29] per Navsa JA

6“At 449g-i and sec also D T Zeffertt. A P Paizes, A St Q Skeen The South African Law of Evidence (2003) pp 151-152'