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/SG

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

DATE: 03/03/2008

CASE NO: A2250/2004

UNREPORTABLE

In the matter between:

NKULULEKO S MPHONZA APPELLANT

And

THE STATE RESPONDENT

JUDGMENT

JOOSTE, AJ

The appellant was charged with three other accused and convicted in the regional court for the division of Southern Transvaal held at Oberholzer on the following counts:

1. Robbery;

2. Illegal possession of a firearm;

3. Illegal possession of ammunition;

4. Two counts of attempted murder;

5. Theft of a motor vehicle.

He was sentenced on 2 March 2004 to an effective term of fifteen years imprisonment. The appellant was legally represented during the trial and the present appeal is against conviction only.

The state called fifteen witnesses. The appellant pleaded not guilty and raised an alibi as his defence. He alleged that on 4 June 2001 he was in the company of a certain Nkululeko Mbele, who also testified in the appellant’s defence.

The following was not in dispute:

1. That at approximately 11:30 on 4 June 2001 at the Eskom cash offices in Khutsong a robbery was committed by a group of armed men of about six or seven and cash in the amount of about R10 000.00 as well as certain jewellery were taken from the business as well as from members of the staff.

2. That the perpetrators fled the scene in a green/blue Bantam bakkie with registration number BPC857GP and pursued by members of the South African Police Service.

3. That there were four men in the bakkie, two in the cab and two on the back.

4. That during the pursuit shots were exchanged between the persons on the back of the bakkie and the pursuing police officers.

5. That at a T-junction in Suurbekom where there are agricultural smallholdings the bakkie skidded and came to a standstill against a gravel embankment in a cloud of dust.

6. That the passengers jumped out and ran off in different directions.

7. That the four accused, including the appellant, were arrested at different points in Suurbekom in the vicinity of where the bakkie came to a standstill.

8. That three firearms and the Ford Bantam bakkie were recovered, the latter having been stolen from Mark Wanaka at his residence in Edenvale on the night of 28 May 2001 by unknown persons.

9. That the appellant was identified at an identification parade by several state witnesses which parade was held within three to four hours after the incident.

It should also be noted that the court a quo held an inspection in loco at the Suurbekom agricultural smallholdings where the arrests were alleged to have taken place. Findings were recorded and a sketch map of the area are prepared. Various points were pointed out by the witnesses and the accused.

The evidence of the state witnesses regarding the robbery are common cause, but their evidence regarding the identification of the appellant are in dispute. The evidence of the police officials regarding the chase, shooting by and arrest of the appellant was only contested insofar as it referred to the identity of the appellant being a person involved in the chase and shooting as well as the circumstances of his arrest. The court also had to determine whether the identification parade was properly held and reliable.

The first state witness Maureen Funego testified that she was on 4 June 2001 employed as a casual cashier at the Eskom offices in Khutsong selling coupons for electricity to the public. At about 11:30 two males entered. One being short with a clean shaven head and dressed in a blue two-piece overall. The other being a taller man, who was dark in complexion and had an afro hairstyle. A conversation about the card they wanted to buy and the relevant house number had taken place between her and two men. The short man then pulled out a firearm and told her to open the door to her office. She complied and was grabbed by the taller man and told not to scream as she had tried to exit. He then dragged her back into her office. Her co worker, Lusigu Mokhaye was called in as he had a third key to the safe with him. The safe was opened and emptied and the tall man instructed her to take off her earrings, chain and rings and hand them over to him. When the men left she looked through the window, wrote down the registration number of the vehicle and phoned the police immediately. In toto, she said she had spent about twenty minutes in their presence talking to them. The police arrived, information was gathered and they were taken to the police station for their statements. Whilst there they were informed that people had been arrested. They were then taken to Carltonville police station where she attended a identity parade and identified accused two (the short man was) and the appellant.

She identified the appellant by the fact that he was tall, his dark complexion and the afro hairstyle. During cross examination she admitted that she did not notice that appellant had a beard nor that he had a moustache. She also admitted that she did not in her statement to the police mention that one of the robbers had an afro hairstyle and a dark complexion. She, however, explained that when she made the statement she was still in a state of shock and nervous and could not remember all the detail. She stated that she was able to recognise their facial expressions because they were the people that she spoke to.

Foneka’s co employee, Lesego Mokaye also testified about the events at the office and corroborated the evidence of Foneka in all material respects. He was outside the office when the robbers arrived but was called inside and was ordered to open the safe, which he did. Later the same day he attended the identity parade and according to his evidence he pointed out accused one, two, three and four as the robbers. However, it should be noted that according to exhibit B, being the photographs taken at the identity parade, it appears that the witness in fact did not point out accused number three. He, however, identified the appellant by the distinctive afro hairstyle and his facial features, although he did not notice a scar the appellant had under his left eye. He stated that he had opportunity to look the robbers in the face and because they did a bad thing he was able to remember their faces.

The witness Zolile Blaai testified that he was visiting Mr Mokaye at the Eskom offices. Whilst they were seated outside four men appeared, two of whom entered the offices and two remained outside. He heard a firearm being cocked and heard the lady inside screaming. They were all taken inside where Mokaye was ordered to open the safe. About four or five hours later he also attended the identity parade. He identified the appellant by the afro hairstyle and the scar underneath his left eye.

It is clear from the record that at the scene of the robbery there was clear visibility with no obstructions between the witnesses and the perpetrators and that they had sufficient opportunity to identify the assailants for a period of about 20 minutes.

It is well known from experience that when a state witness is asked to describe an accused in detail, it is not always possible to do so, but that an inability to do that is not necessarily fatal to proper identification. S v Pretorius en Ander 1991 (2) SACR 601 (A) 607G-J. At least the witness Blaai gave a reference to the scar underneath the eye of the appellant. The trial court properly exercised its discretion in determining the credibility of their witnesses and correctly found that their evidence regarding the robbers and the identification following thereupon cannot be faulted. Of importance is also the fact that the getaway car’s registration number was written down, and the SAPS phoned who chased the bakkie with the relevant registration number together with the perpetrators.

As far as the arrest of the appellant is concerned, Detective Inspector Brits testified that when the bakkie came to a stop, one of the men on the back jumped off and ran into a mielie field. He fired warning shots at this man who however kept running. When he saw other police officers about to catch this fleeing person, he turned his attention to the other persons who were running to a veldt. He climbed back into his car and drove back in the direction he had come. He saw one of the fleeing suspects about 200 metres away near a courtyard wall. As he got out of his car this man fired a shot at him, threw the firearm over the wall and jumped over the wall. Brits fired three shots at him and also climbed over the wall. On the other side of the wall he saw two of the suspects running in the direction of a house. When approaching this house he saw one of the men peeping from around a wall. He pointed his firearm at this man and commanded him to lie down. This person was the appellant. Brits also attended the inspection in loco and pointed out where the pursuit had taken place and where he arrested the appellant, at the back of the house behind a round structure with concave arches.

Brits’ evidence was criticised on behalf of the appellant in that he initially in his evidence made no mention of the long hair of the appellant and did not do so in his statement either. The evidence of Brits was that he could not identify the people as they ran away. Given the circumstances of the chase and the events preceding that, it is not surprising that Brits did not take note of the detail of the fleeing suspects and this criticism is in my view without merit and does not detract from the quality of the evidence of Brits.

As far as the identification parade is concerned, all the police officers that took part in the organisation and holding of the ID parade testified. The court a quo dealt in detail with the evidence of these officers and for purposes of this judgment it is in my view unnecessary to repeat the evidence. Inspector Van Staden who was not involved in the investigation organised the parade and recorded the proceedings on the official form SAP329, exhibit B. The court a quo found that on the face of the form it appeared that the parade was properly organised and also accepted the evidence of the police officers concerned.

The regularity of the parade was attacked in argument on behalf of the appellant on the basis that Inspector Tsotetsi overheard Inspector Van Staden informing the witnesses at the parade that the suspects have been arrested and that they would be on parade. Van Staden’s own evidence was that he did not see or speak to the witnesses before the parade. Even on the basis that Van Staden’s evidence is not correct, I am of the view that this does not presuppose that the witnesses were told who to point out. There is no evidence on record which suggest that the state witnesses were assisted in pointing out the appellant.

According to exhibit B, paragraph 7 and 8 thereof, the accused had been informed of their right to legal representation but had declined such. This fact was disputed by the appellant. He said that he insisted on legal representation but that his request was ignored. On the basis that this be accepted, the court a quo considered the question whether this breached any of the appellants’ constitutional rights with reference to S v Mphala and Another 1998 (1) SACR (W) the court came to the conclusion that in casu this did not happen.

In S v Monyane and Others 2001 (1) SASV 115 (T) 130b, BORCHERS J said the following:

“The appearance of an accused as a suspect at an identification parade cannot, in my view, be equated with a situation where he is invited to make a statement or pointing out which may be incriminatory. At an identification parade an accused is required to stand mute and passive amongst other people of similar appearance while the witness scrutinises the line up with the view of identifying the person who has allegedly committed a particular crime. An identification parade does not invite self incrimination. Its aim is the obtaining of real evidence against the accused, similar to the position where a fingerprint is taken with the intention of comparing it with a fingerprint found at the scene of a crime, or with the taking of a blood sample from an accused with the view of analysing it to ascertain its alcohol content.”

The learned judge continued on 130i as follows:

“There is in my view no danger that an accused will incriminate himself at an identification parade. The advice of counsel prior to a properly conducted parade cannot achieve any purpose and the procedure is thus in stark contrast to the situation where an accused is invited to make any statement or pointing out, where the advice of the legal representative on the advisability of taking such a step may well be of crucial importance to an uninformed accused.”

Given the facts of the present matter and specifically the direct evidence as to the identification of the appellant and his arrest, it is my considered view that the court a quo was correct in its finding that the constitutional rights of the appellant were not infringed at the identification parade and that the evidence thereof could properly be admitted.

As stated earlier the appellant’s defence was that of an alibi. According to him he did not know the other three accused. He lived in Rockville, Soweto and on the Sunday evening, 3 June, he accompanied his friend Nkululeko Mpele to Suurbekom where the latter lived and stayed the night with this friend. He woke up the following morning at 12:00 and decided to return home as he had to hand over tools to the taxi drivers to service their vehicles. Whilst walking along the street in front of Plot 320 on his way to the taxi rank he heard shooting and saw dust in the road up ahead of him. He ran for safety into Plot 320 which had a high fence in front of it. However, the gate was open and he hid behind a wall near the kitchen courtyard. When things quieted down and as he was getting up he was told by Inspector Brits to lie down, was searched and arrested. He confirmed that that day he had a long afro hairstyle as was reflected in the photographs. He told the police of his alibi, however, they did not listen to him. In fact he was taken to his uncle’s house in Soweto.

Nkululeko Mpele testified on behalf of the appellant and confirmed that they were friends and that he worked at a family business in Rockville, Soweto. He also confirmed that on the evening of 3 June 2001 after locking up the shop the appellant accompanied him home to Suurbekom where he had slept over. The appellant left the following morning to go back to Soweto. He never heard any noise or shooting on that particular day but heard the day afterwards that the appellant had been arrested.

The magistrate thoroughly considered the evidence of Mr Mpele and found that he was not an impressive witness, continuously putting counter questions, not being sure of any facts and clearly evasive. He could not remember what he and the appellant did that night after they arrived home, whether they watched TV or played TV games in the TV room or in the bedroom. In the court a quo’s opinion the witness was clearly adapting his evidence in an attempt to meet the circumstances, more specifically as to why he did not give his good friend a lift back to Soweto the following day but left him to walk. The specific address of his home was never conveyed to the court either.

A reading of the evidence and the consideration by the court a quo thereof, supports the negative finding regarding Mr Mpele’s evidence.

In considering the alibi of the appellant, the court a quo specifically stated that it is for the state to prove the guilt of the accused beyond reasonable doubt and that should the version of the accused be reasonably possibly true, even the court does not believe it in all its detail, the accused will be entitle to be acquitted. There is no burden on the accused to prove his alibi. To come to a decision regarding the alibi, the court must, however, look at the evidence in its totality, giving consideration to circumstantial evidence, the credibility of witnesses and the probabilities. The magistrate, however, correctly pointed out that if you have a sound alibi you would inform and should inform the authorities of its nature as soon as possible so that it can be investigated. Brits denied being told of the appellant’s alibi and stated that if he had been told he would have written it down and investigated it. Instead he stated that what happened that the appellant gave him information relating to other suspects and that because of this information they took him to his uncle’s home in Soweto to look for these persons. It was correctly pointed out by the magistrate that if Brits was prepared to take the appellant to his uncle’s home in Soweto then there was no apparent reason why he would not have taken him down the street to enquire from Mpele about the appellant’s alibi. This would have been more logical and quicker than going to Soweto on a wild goose chase. Unless the appellant had given Brits this address in Soweto, they would not have gone there as it would have served no purpose.

The court a quo further correctly pointed out that it is strange that he appellant ran into the premises concerned as the shooting was not in his immediate vicinity. He was still walking towards the intersection where the vehicles concerned raced passed and the bullets were flying, not where he was walking. He could have easily gone back to Mpele’s house which was alleged to be in the same street. Furthermore according to the appellant he had to leave early in the morning to return home to be able to give tools to the taxi drivers to service their vehicle, but in spite of this he slept late and it must have been after 12:00 that he decided to leave by walking to the taxi rank. Notwithstanding this he was also not offered a lift by Mpele’s family or Mpele himself to Soweto, where the family business was, or at least to the taxi rank.

Apart from the aforegoing aspects highlighted, a careful reading and consideration of the record and the magistrate’s analysis of the evidence relating to the appellant’s alibi, not only warrants the finding that the alibi be rejected as false but puts it beyond criticism.

In summary the appellant is connected to the crime by way of direct evidence. He was properly identified at the scene of the crime and at the identification parade a few hours after the incident. Moreover the assurance of his guilt is to be found in the evidence of the manner of his arrest as a person who was seen having alighted from the Ford Bantam bakkie which was identified at the robbery scene and chased down by the pursuing members of the SAPS. In conclusion, given the totality of the evidence, the state in my view succeeded in proving the guilt of the appellant beyond a reasonable doubt and the appellant was correctly convicted.

The appeal against conviction is therefore dismissed.

F J JOOSTE

ACTING JUDGE OF THE HIGH COURT

I agree

K MAKHAFOLA

ACTING JUDGE OF THE HIGH COURT

A2250/2004

Heard on: 6 August 2007

For the Appellant: Adv S J Coetzee

Instructed by: Messrs David H Botha, Du Plessis & Kruger

Inc, Pretoria

For the Respondent: Adv H O R Modisa

Instructed by: Director of Public Prosecutions

Date of Judgment: 03/03/2008

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