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IN THE HIGH COURT OF SOUTH AFRICA /ES

(TRANSVAAL PROVINCIAL DIVISION)

CASE NO: A247/2004 (PA128/2004)

DATE: 29/8/2005

not reportable

IN THE MATTER BETWEEN:

DANIEL MASILELA APPELLANT

AND

THE STATE RESPONDENT

JUDGMENT

PATEL, J

[1] The appellant, who was accused no 3, was charged and convicted in the Klerksdorp regional court on one count of housebreaking with the intent to steal and attempted theft and one count of contravening section 82 of the General Law Third Amendment Act 129 of 1993 in that he was in possession of tools or an object which may reasonably be deemed as tools or an object which were used or are intended to be used to commit housebreaking. Both counts occurred on 24/25 August 2001. He was sentenced to five years imprisonment on the first count and to twelve months imprisonment on the second count. He was effectively sentenced to six years imprisonment. The appellant is appealing against both the conviction and sentence.

[2] Briefly, the facts that led to the arrest of the appellant were, according to the first state witness, Mr Smith, that he found the security gates at the Meiringspark Primary School where the motor vehicle is kept, were broken and the door where the vehicle was parked was forced open. The starter of the motor vehicle was damaged and the wires were cut. The second state witness, Mr Siko, testified that he works at and lives on the school premises. He was asleep and upon hearing a noise he woke up and he saw unknown persons tampering with the premises. He telephonically contacted the police. They subsequently arrested three persons. The arrested persons were not identified by either the first or the second state witnesses. The evidence of both police officers Le Roux and Young, who were on patrol duties, were contacted at about 01:30 and informed of the housebreaking at the school. Le Roux observed two persons in the vicinity of the school premises who were walking towards a nearby Ultra City. Young received the information by radio. The appellant was arrested and certain items were found in his possession. These were a screw-driver, pliers, torch and shifting spanner. He denied that he was inside the school premises or that he had any knowledge of the crimes which had been committed. The items he had were used to repair a motor vehicle in which he had travelled earlier.

[3] It is against this backdrop the trial magistrate found that the prosecution proved its case beyond reasonable doubt. The finding was based on the magistrate's assessment of the evidence that the evidence of Siko was trustworthy since he had no reason to fabricate his evidence and that he was a good witness. Similarly that the evidence of Le Roux was also trustworthy as he too had no reason to fabricate his evidence. He impressed the magistrate as an honest and good witness. Finally, the appellant's evidence was unreliable, improbable and false.

[4] Mr De la Rey for the appellant argued that the magistrate not only erred but also misdirected herself pertaining to the identification and description of the perpetrator. Siko testified that he saw a person with a "bruin lumber baadjie". When he telephoned the police he described one person as wearing "'n bruin lumber baadjie". But, Le Roux's evidence was that the information he received was that one of the persons was wearing a "lang jas". He testified that the appellant was wearing a "lang bruin jas". Young, however, testified that the report which was received indicated that they should look for a person wearing a "lang donker kleur". His evidence was that later he saw that the appellant who was arrested was wearing a "donkergroen jas".

[5] The evidence regarding the identification of the appellant is of critical importance. It would substantially contribute to the determination whether the burden of proof was satisfied by the state. Counsel for the appellant submitted that the magistrate erred in her findings because the person who was seen by Siko tampering with the premises was the same person who was seen by Le Roux when he spotted two persons. The person Siko saw had a brown lumber jacket but the person who was arrested had a dark green overcoat. Further there appears to be lack of corroboration between the evidence of the state witnesses. This raises the question whether the person Siko saw was the same person who was arrested by Le Roux and Young.

[6] The crux of the evidence of identity is that Siko noticed a person wearing a jacket which was brown in colour. However, Le Roux spotted a person with a long coat whilst Young testified that it was dark green. The magistrate simply found that the appellant was the person who was seen by Siko. The trustworthiness of a witness is not enough because the fallibility of human observation needs to be approached with caution (S v Mthetwa 1972 3 SA 766 (A) at 768; S v Nango 1990(2) SACR 450 (A)). Evidence of identification requires close scrutiny since a bald statement that the accused is the person who committed the crime is not enough. A statement that is unexplained and untested invariably leaves the door open for possibilities of mistake (S v Shekelele 1953 1 SA 636 (T) at 638). The mere identification of a person's clothing has a limited value especially where there is no other evidence by the witnesses. The three witnesses Siko, Le Roux and Young did not corroborate each other's evidence in any material respect regarding the jacket or coat the person wore. There appears to be discrepancies in material respect in their evidence the colour and type of jacket or coat worn by the person each one of them identified. Thus, there exists a reasonable possibility that a different person from the one Siko saw was subsequently spotted by Le Roux and Young. And that person was not necessarily the appellant who just happened to be in the vicinity. The fact that the appellant had certain items for repairing a motor vehicle cannot simply be said that they were reasonably deemed as objects used to commit housebreaking at the school. It was for the State to prove beyond reasonable doubt that the appellant was one of two persons at the school before the deeming provision kicks in as contemplated by section 82 of Act 129 of 1993.

[7] The flaw in the magistrate's finding is that although she found Siko was trustworthy but during his evidence he did not remember that he provided the police with information about two persons and not one. In the circumstances, the only reasonable inference which could have been drawn is that Siko was the only person who reported the incident to the police and that he clearly failed to remember that he gave them information regarding the second person. This surely calls into question Siko's credibility as a witness. Further, he must have given to the police information regarding the second person since Le Roux testified that the information they received was to look out for "'n persoon wat in 'n lang jas geklee was. Die ander persoon was donker klere aangetrek. Die een was langerig, die ander een was kort." This discrepancy further tainted the credibility of Siko. There is an inherent possibility that even an honest witness may be mistaken about identification because the mere assertion by a witness that he saw or recognised the offender without much ado would seldom justify a conviction (S v Sithole and 0thers 1999(1) SACR 585 (W)).

[8] Therefore the magistrate ought to have found that the testimony of Siko was unreliable regarding the jacket or coat worn by the appellant. She ought to have weighed this factor with the appropriate degree of caution. Further, in the light of the totality of all evidence there was a reasonable doubt since the possibility of an error in identifying the appellant required more than the jacket or overcoat worn by the person.

[9] Furthermore, the magistrate found that the manner in which Le Roux identified the appellant was proof beyond a reasonable doubt that it was the appellant who committed the offences. She failed to have regard that Le Roux was a single witness and ought to have approached his evidence with circumspection. Young was unable to identify the persons when they were walking across the field and subsequently he lost sight of them. However, Le Roux was the only witness who had sight of the appellant at all times after he first saw him, and that therefore the person who he saw was the person who was arrested by him at a later stage. The magistrate relied exclusively on the evidence of Le Roux that: "Die belangrikste getuie wat vir die staat getuig het is inspekteur Le Roux." There is no indication in her judgment that she treated crucial aspects of Le Roux's evidence with the circumspection. According to Scwikkard, Principles of Evidence, 2^nd edition, p513:

"The cautionary rule requires, first, that the court should consciously remind itself to be careful in considering evidence which practice has taught should be viewed with suspicion and, secondly, that the court should seek some or other safeguard reducing the risk of a wrong finding based on the suspect evidence."

[10] In my view, the magistrate's judgment is lacking both in its reasoning and finding since there is nothing to indicate she applied the cautionary rule to Le Roux's evidence who was a single witness and to the evidence of the state witnesses regarding the identification of the appellant. The appellant's counsel rightly submitted that the proceedings were irregular and thereby unfair to the appellant since there was a total failure to apply the cautionary rule.

[11] A further consideration is that the magistrate found that the version of the accused was false simply on the basis that his version was highly improbable. Mr De la Rey argued that that was the incorrect test in so far as it relates to the version of the accused since the appellant only has to show that his version is reasonably possibly true, and not that it is improbable. Even if there is an inherent improbability in an accused's evidence his version may still be reasonably possibly true. The version of the accused was not decimated at all under the cross-examination by the public prosecutor or the questions which were subsequently asked by the magistrate. That the magistrate descended into the arena when she questioned the accused, this is apparent from the nine pages of the transcript following the cross-examination by the prosecutor.

[12] The magistrate in rejecting the appellant's version in essence applied the wrong test namely that his version was improbable. The correct test is whether there is a reasonable possibility that the evidence of the accused might be true. Even if the State's evidence is not rejected, the accused is entitled to an acquittal if his or her version is not proved to be false beyond reasonable doubt (S v Ipeleng 1993(2) SACR 185 (T) at 189; S v Kubeka 1982 (1) SA 534 (W) at 537E; R v M 1946 AD 1023 at 1027). The Supreme Court of Appeal in S v V 2000 (1) SACR 453 at 453g 454b/c held:

"It is trite that there is no obligation upon an accused person, where the State bears the onus, 'to convince the court'. If his version is reasonably possibly true he is entitled to his acquittal even though his explanation is improbable. A court is not entitled to convict unless it is satisfied not only that the explanation is improbable but that beyond reasonable doubt it is false. It is permissible to look at the probabilities of the case to determine whether the accused's version is reasonably possibly true, but whether one believes him is not the test. As pointed out in many judgments, the test is whether there is a reasonable possibility that the accused's evidence may be true. Accordingly it is a misdirection for a trial court to regard an accused's failure 'to convince' it as a guarantee of the veracity of the evidence tendered by the State."

[13] In my view the magistrate not only misconceived the test but also misunderstood the test as one of improbability and thereby misdirected herself in not only rejecting the appellant's evidence but also convicted him by applying the wrong test.

[14] Having regard to the fundamental misdirection in the magistrate's approach and not having due and proper regard to the doubtfulness of the evidence regarding the identification of the appellant by Siko and Le Roux and the failure to approach their respective testimonies with caution as well as applying the wrong test to the appellant's version, the appeal must succeed.

In the result, the following order is made:

(a) The appellant's appeal succeeds.

(b) The accused's conviction and sentence are set aside.

E M PATEL

JUDGE OF THE HIGH COURT

I agree

N M MAVUNDLA

JUDGE OF THE HIGH COURT

A247-2004

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