SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy	

IN THE HIGH COURT OF SOUTH AFRICA
(WITWATERSRAND LOCAL DIVISION)
Case No.  A165/2007
Date:23/10/2008

In the matter of:

 LUCAS MOTSAMAI MOITSHEKI.............................................................Appellant

versus

THE STATE

JUDGMENT

[1]	On 14 June 2004, the appellant, Mr. Lucas Motsamai Moitsheki, and a co-accused, were convicted in the regional court, Krugersdorp on six counts of robbery and two counts of rape.  The charges relate to three incidents that occurred in the Krugersdorp area during 2001 and 2002.

[2]	The proceedings were stopped and the regional court committed the appellant and his co-accused for sentence by a High Court under s. 52(1) of the Criminal Law Amendment Act 105 of 1997.  On 15 March 2005, Satchwell J sitting in this division set aside two of the robbery convictions and confirmed the convictions in respect of counts 1 (robbery), 2 (robbery), 3 (rape), 6 (robbery), 7 (robbery) and 8 (rape).  

[3]	Two periods of eight year’s imprisonment running concurrently were imposed upon the appellant in respect of his robbery convictions on counts 1 and 2, and again in respect of his robbery convictions on counts 6 and 7.  He was sentenced to a period of imprisonment for life in respect of each conviction (counts 3 and 8).   

[4]	On 15 November 2005, the appellant was granted leave to appeal against his convictions on counts 1, 2 and 3, which convictions concern the robbery and rape of Ms. van Aarde and the robbery of her companion, Mr. Nagel, on 26 April 2001. 

[5]	The only issue is one of identification, and the question is therefore whether there was proof beyond a reasonable doubt that the appellant was one of the two persons who committed the serious crimes on the evening of 26 April 2001.

[6]	The undisputed facts were that the two complainants were travelling in a motor vehicle on the evening in question.  Armed with knives, their two assailants made their way into the vehicle at a traffic light and they seated themselves on the rear seat.  The complainants were ordered to drive to a certain place where they were ordered out of the vehicle and told to undress in order to ensure they were not armed.  They were then ordered to get dressed again, they were tied up, Mr. Nagel was placed in the boot of the motor vehicle, and Ms. v A on the rear seat.  One of their assailants drove the motor vehicle and the other touched her indecently while they were driving.  They arrived at Coronation Park where the vehicle was parked.  Mr. Nagel was left in the boot and Ms. v A was taken to what she described as a nearby donga where she was raped - first by the one and thereafter by the other assailant.  She was placed back in the vehicle.  One of their assailants removed a radio from the vehicle whereafter the two of them left.  They also robbed Ms. V A and Mr. Nagel of other items during the course of the events.

[7]	On 26 August 2002, which was approximately sixteen months after the incident, Ms. VA identified the appellant as one of the persons who had robbed them and raped her.  She also identified the appellant at the trial as that person.  Mr. Nagel was unable to identify anybody.	

[8]	The appellant raised a defence of alibi and denied the prosecution’s case on the issue of his identification by Ms V A and his involvement in the commission of any of the offences with which he was charged on counts 1, 2, and 3.  

[9]	is no onus on an accused to establish his or her alibi, and if it might reasonably be true he or she must be acquitted [R v Hlongwane 1959 (3) SA 337 (A), at pp 340H – 341B].  It is also trite that lies in themselves or improbabilities in an accused’s version do not establish the guilt of an accused [see:  S v Steynberg 1983 (3) SA 140 (A);  S v Mtsweni 1985 (1) SA 590 (A);  S v Shackell 2001 (2) SACR 185 (SCA)].      	  

[10]	The following dictum by Holmes JA in S v Mthetwa 1972 (3) SA 766 (A), at p 768A – C, is relevant to the determination of the issue of identification:
“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 the light of the totality of the evidence, and the probabilities:  see cases such as R. v. Masemang, 1950 (2) S.A. 488 (A.D.);  R. v. Dladla and Others, 1962 (1) S.A. 307 (A.D.) at p. 310C;  S. v. Mehlape, 1963 (2) S.A. 29 (A.D).” 

[11]	In S v Mehlape 1963 (2) SA 29 (A), at p 32F – G, this was said:
‘The often patent honesty, sincerity and conviction of an identifying witness remains, however, ever a snare to the judicial officer who does not constantly remind himself of the necessity of dissipating any danger of error in such evidence’

[12]	The identification by a witness may be unreliable even if the witness is found to be a good witness, patently honest, intelligent, confident, coherent, and verbally expressive [see:  S v Charzen and Another2006 (2) SACR 143 (SCA).
 
[13]	It is accepted that Ms. v A was an honest and sincere witness.  The learned regional magistrate described her as an impressive witness.  The record of the trial proceedings supports that finding.  The reliability of her identification evidence was, however, not properly tested.  The prosecutor hardly led her on the various factors required to properly establish the reliability of her identification of the appellant. Critical factors relating to her opportunity for observation and identifying personal characteristics of the appellant remain uncertain.    

[14]	Ms. v A described one of the assailants as the wild one and the other one as the calmer one.  She referred to the appellant as the calmer one.  It, however, appears from her evidence that she possibly had less opportunity of identifying the calmer assailant than she had in respect of the other one.  Furthermore, it is recorded in the identification parade form (SAP329) that the person identified by her at the identity parade was the one who damaged the motor vehicle and slapped her in the face.  The person identified at the identity parade seems rather to fit her description of the wild one.  

[15]	Of further concern on the issue of identification is the following evidence given by Ms. V A when she was cross-examined:
‘HOF:		Wat sê u daarvan?  Stem u saam dat u ‘n fout gemaak het toe u hom uitgewys het?  -  Nee, my gedagte, ek het self gevoel dit is daardie een.  So ek kan verkeerd wees, maar my binneste het gevoel dit is hy.
MR MOTLAPI:	So you rely on your instinct that this is the man who committed the offence?  -  In my memories and my instinct, yes.’	 

[16]	A crime kit was collected from Ms. van Aarde, but no DNA evidence was presented.  She assisted the police in compiling an identikit, but such was not presented in evidence.  Such evidence might have corroborated her identification of the appellant.          

[17]	Approaching the evidence of Ms. v A with the necessary caution that should be applied to evidence of identification [see:  Mthetwa (supra)] and to that of a single witness [S v Sauls and Others 1981 (3) SA 172 (A), at pp 179G – 180G], and weighing up all the relevant elements which point to the guilt of the appellant in respect of counts 1, 2, and 3, against those indicative of his innocence, I am unable tfind that the evidence as a whole establishes the guilt of the appellant on these counts beyond a reasonable doubt.  The identification evidence of Ms. v A, viewed in the context of all the evidence, is simply not sufficiently trustworthy and reliable to conclude that the evidence establishes the guilt of the appellant on counts 1, 2, and 3 beyond reasonable doubt.  On all the evidence relevant to these counts there is a reasonable possibility that the alibi defence put forward by the appellant may be true.
    
[18]	Regarding the manner in which the matter was dealt with by the prosecution and the police I consider it is apposite to repeat what Slomowitz AJ said in S v Kubeka 1982 (1) SA 534 (W), at pp 538G – H:
‘The rule that the State is required to prove guilt beyond a reasonable doubt has on occasion been criticised as being anomalous.  On the other hand, the vast majority of lawyers (myself included) subscribe to the view that in the search for the truth it is better that guilty men should go free than that an innocent man should be punished.  More especially is this so in capital cases.  It should be borne in mind, however, that a Court seeks to do justice not merely to the accused but to society as a whole.  If then the police do not fully and properly investigate crimes, especially of the type with which I am here concerned, as a result of which insufficient evidence is made available to the prosecution and in consequence put before the Court, guilty men will go free, not because of the existence of the rule to which I have referred, but simply because cases have been inadequately investigated.’ 

[19]	In the result the appeal should in my view succeed.  The appellant’s convictions on counts 1, 2, and 3 and the sentences imposed upon him pursuant to such convictions should be set aside and he should be found not guilty on count 1 (robbery with aggravating circumstances), on count 2 (robbery with aggravating circumstances), and on count 3 (rape).   	    

							
P. A.  MEYER
JUDGE OF THE HIGH COURT

I agree.

							
S. SNYDERS
JUDGE OF THE HIGH COURT

I agree.

							
I.M.M. MOTLOUNG
ACTING JUDGE OF THE HIGH COURT

23 October 2008