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IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)

In the matter between:

LULAMA LIVINGSTONE NTONGANA...First Appellant

ZANELE MAPANDILE Second Appellant
and
THE STATE Respondent
CORAM : E M GROSSKOPF, KUMLEBEN JJA et

FRIEDMAN AJA
HEARD : 20 AUGUST 1990
DELIVERED : 3 SEPTEMBER1990

JUDGEMENT

KUMLEBEN JA:/...

1.

KUMLEBEN JA:

The two appellants were convicted in the regional court of robbery and each was sentenced to 6 years' imprisonment. Their appeal against conviction and sentence to the Cape Provincial Division of the Supréme Court failed, though leavê was granted to prosecute a further appeal in this court.

The robbery took place on Friday 9 March 1984

at Brackenfell on the Northern outskirts of Cape Town.
The two complainants, Mr Moolman and Mr Errera, were in
the office of their firm when two black men entered.
The weekly wages to be paid to the staff had just been

fetched. The money, R8 112,04, was on the table in the

office. One of the men produced a revolver and pointed

it at Errera, demanding money. The other took the
money, which was in a carrier bag, and both left the

2/...
2.

office. The armed one before leaving fired a shot from the revolver which struck a wall in the office.

On the night of 16/17 March 1984 W/O Fouche

was in charge of a road block set up near De Doorns. A

Kombi motor vehicle was stopped. The first appellant
was the driver and the second appellant, Mr Daniso and
Mr Liwaene were passengers. Money was found in the
vehicle. It was initially counted on the spot and

thought to total R3 770,00. In the early hours of
Saturday 17 March 1984 the money and the appellants
were handed over to W/O Barkhuizen at Worcester. He
became the investigating officer in the case. The
appellants were taken by him to the Brackenfell police

station. On a recount there the total amount of money

turned out to be R4 388,50. On the same day the
appellants were transferred to the Bishop Lavis police

station. The next day, the Sunday, an identification

3/...

3. parade was held in a large prison cell at the Guguletu police station.

The above facts were common cause. The sole issue was one of identity: the defence was an alibi. The determination of this issue turns, on the one hand, on the acceptability and strength of the identifying evidence and, on the other, on the credibility and reliability of the testimony of the two appellants and the witnesses called by them.

The trial court discounted any possibility of

the two complainants being dishonest witnesses who
had deliberately and falsely implicated the appellants.
There are simply no grounds for any such conclusion.
It also held that their evidence identifying the
appellants was reliable. The incident took place in
broad daylight in a well-lit office and was of more

4/...

4. than brief duration. The complainants and the intruders were virtually face to face when the latter spoke, took the money, fired the shot and left. Some ten days later the identification parade was held. Moolman pointed out the first appellant. Errera pointed out the second appellant and, with a reservation, incorrectly identified another man as his partner in crime.

Mr Uijs, who appeared for both appellants before us, strenuously argued that the identification might well have been faulty on the following grounds (with my comment in parenthesis).

Counsel relied upon the fact that each

complainant only pointed out one of the appellants.

(But, as was said in the judgment of the court a quo:

"Each witness may have had his own reasons for 5/...

5.

focussing more intently upon one person than another.")

It was argued that the selection of the other persons

to attend the parade, sixteen of them, gave the

exercise a bias against the appellants in that there
were a limited number of men of approximately the same
age and build as the appellants, only some of whom
were bearded. (W/O Schilder, who conducted the parade,

said that as far as he could recollect the persons at

the parade were of more or less the same length. He
was not challenged on this. Moreover, neither in
cross-examination nor in the evidence of the appellants
was there any suggestion that the composition of the
parade rendered it in any way unfair or unreliable.)
Moolman said that the first appellant wore a beard at

the time of the robbery and, one assumes, this was the

case at the time of the identification parade. There
were "several" others in the line with beards. It was

contended as a point of criticism that this fact

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6.

narrowed the range of selection. (Bearing in mind that
a beard is not a permanent appendage and that the

second appellant was also involved, the procedure
adopted of having some with beards appears to me to
have been a reasonable and sensible one.) Errera was
criticised for having unsuccessfully attempted to point
out the other robber. (But, as mentioned, he did so
with the explicit reservation that he was uncertain:
by contrast his identification of the second appellant
was done with assurance.) Errera was taxed in cross-
examination with this mistake. The man he incorrectly
pointed out was in fact bigger than the first

appellant. His explanation was in effect that looking

into the barrel of a gun makes its holder appear larger

than life. (Whether or not this somewhat imaginative
explanation is convincing, there is no suggestion that

it was not honestly given and it therefore cannot in

any way detract from Errera's identification of the

7/...
7.

second appellant. ) The f act that he at the trial
pointed out the first appellant in the dock as the
other robber was also relied upon to guestion the
reliability of his identification of the second
appellant. (But this likewise has no real bearing on
his accurate identification of this appellant.)
Finally, Mr Uijs sought to cast doubt upon the evidence
of the complainants and to suggest that they were not
observant because there were some - not as many as
submitted - contradictions in the account each gave of
the sequence of events during the robbery and because
they were unable to give details of the clo.thing or
head-gear, if any, worn by those who robbed them. (As
to the former, the discrepancies are of an order one
would expect in the circumstances: as to the latter,

the appellants would have naturally concentrated on,

and taken in, facial features, rather than details of

clothing.)

8/...
8.

It is common cause that the appellants were

friends and business associates and, as we know, were

found together in the Kombi a week later. The trial

court regarded this as significant confirmation of the

identification on the part of each complainant. In my
view it was fully entitled to do so. Mr Uijs attempted

to counter this by pointing out that a friend of the

second appellant, the said Liwaene, was also one of

those in the line. Had he been mistakenly pointed out
with the second appellant,the fact of their friendship,

so it was submitted, would have similarly carried
weight but would have been erroneously relied upon.
This is as may be, but is not an satisfactory answer:
that there was a friendship connection amongst three of

the eighteen does increase the chances of coincidence
marginally but the fact that the two people who were

pointed out turned out to be friends remains a cogent

one.

9/...

9. In the result there are strong grounds for concluding, as the trial court did, that the identification by these two witnesses was accurate.

As mentioned, each appellant raised an alibi

defence. The first appellant said that he was at the
time playing golf at the Metropolitan Golf Course with
a friend, Mr Cecil Macani. For the past four years it
had been their regular practice to play eighteen holes
there every Wednesday and Friday. The assistant
professional at the course was Mr Izak Mtunta. After
their round, which ended about 4.30 pm, the first
appellant gave these two men a lift home. Later, some
time after 6 pm, he took some children by car to the
Clarence Carter show at a venue called "Three Arts".

(The reference to this event was no doubt intended to

identify this particular Friday, 9 March, as the day on
which he had been playing golf at the time the robbery

10/...

10. was committed.) The second appellant alleged that at the relevant time he was drinking at a shebeen called "Fraser's Place". Later he dressed for the Clarence Carter show, a musical of some sort featuring the singer Clarence Carter, and attended it. As he left Fraser's place he happened to see the first appellant as he came from golf.

A great deal of evidence was devoted to the

question whether some or all of the money found in the
Kombi was the stolen money. I find it unnecessary to
canvas this issue: I am prepared to accept in the
appellants' favour that there may have been an

innocent, or at least some other, explanation for its
presence there. The significance of the evidence of

their being found in the Kombi with the money, lies in
the fact that their credibility is tainted by the

conflicting explanations they gave in this regard. At

11/...
11.

the road block the first appellant told W/0 Fouche that
the money (R3 700,00 as then was thought) belonged to
him, but he could not say how much there was. He first

said that they were going to a funeral in Bloemfontein
and on further questioning changed the destination to
East London or a place near East London. When he was
handed over to Barkhuizen, the first appellant was
again uncertain of their destination, first saying it
was Bloemfontein then Ntanzani, near East London. When
giving evidence in court, the first appellant said
Rl 600,00 had been given to him by one David Vundla and
a further R2 000,00 had been collected from

contributors: the latter amount being a contribution

to defray funeral expenses. However, when questioned

by Barkhuizen on the Saturday morning, both appellants

said at that stage that they were dagga dealers and

that the money was to be used for purchasing dagga in

the Transkei. The appellants also said, when giving

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12.

evidence, that the two complainants had been seen by
them at close quarters at the Bishop Lavis and
Brackenfell police stations before the identification
parade was held. A wealth of evidence refutes this.
This story was plainly a conspired attempt on their
part to discredit what took place at that parade. In
these respects the appellants were shown to be
unreliable and untruthful witnesses. (I shall return to
the question of their credibility when examining more
closely how the Clarence Carter show features in this
case.)

Five witnesses testified for the defence.

One of them, Mr Davidson Vundla, was called to explain
the origin of the money found in the Kombi and to

confirm that its occupants were on their way to a

funeral near East London. In the light of the

assumption in this regard in favour of the appellants,
his evidence need not be considered.

13/...

13. Three witnesses, the said Mtunta, Mr Eric Jones and the said Cecil Macani sought to confirm the evidence of the first appellant that he was playing golf that afternoon.

Mtunta said that he remembered that

particular Friday because the first appellant gave him
a lift home and a meeting was to take place at his

(Mtunta's) house that evening. However, further
questioning revealed that the first appellant played
golf regularly on Fridays, always gave him a lift home
and that every Friday a meeting was held at his house.
Moreover, when he was telephoned by the first
appellant's attorney on 20 March to find out whether

the first appellant had played golf on 9 March he was
unsure and had to ask Jones before replying
affirmatively. And at a later stage when Barkhuizen

showed him a photograph of the first appellant, his

14/...

14. answer to him was that the first appellant had not played golf at the Metropolitan course on that Friday.

The evidence of Jones, the caddy master, was

that the first appellant did play golf on that day.
But when questioned about the previous Friday (2 March)
and the subsequent Friday (16 March) he was shown to
have no independent or reliable recollection of the
particular Fridays when he had seen the first appellant
at the course. As to the f irst date, he said that
the first appellant played in a four-ball game but
could not remember any of the other players , - and a
string of unsatisfactory and evasive answers followed.
As to the second date, he said that he could not say
whether the first appellant had played because he may
have been off duty when he teed off. When asked
whether he might not have been similarly off duty at

that time on 9 March, and therefore not able to say

15/...

15. whether or not first appellant played that afternoon, he said he could still see the players starting off from where he relaxed when off duty during his lunch break. He, like Vundla, was quite unable to confirm the alibi. Mr Uijs conceded that they were both "poor witnesses". On my reading of the record this appraisement is fully borne out and is, if anything, rather charitable.

The witness Macani fared no better. He was

the first appellant's regular golfing partner on
Wednesdays and Fridays: in fact he said that they
had not missed a round together on these days over the
past four years. When asked whether he had played golf
with him on the f ollowing Friday (16 March) he said

that he had gone to the first appellant's home that
morning to make arrangements for the game that

afternoon, but was informed by the first appellant's

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16.

sister that he had been arrested that morning. On
being told that the arrest only took place in the early
hours of the following day, he was at a loss to explain
what was obviously false evidence given by him. He
maintained that he remembered that particular Friday
because the Clarence Carter show was on that evening.
He did not attend it. When cross-examined in this
regard it was plain that he knew nothing about Clarence
Carter and took no interest in singing or musical

shows. There was thus no reason why he should have

remembered 9 March, or a round of golf on that day, in

relation to this event. He also stated that when the

first appellant dropped him off at his house, he (the

first appellant) said that he was going to the Clarence

Carter show that evening. (One recollects in passing,

that according to the first appellant he was simply to

transport some children to the show which they were to

attend.)

17/...

17. Mr Uijs pointed out that a number of witnesses had come forward to support this alibi and submitted that, though unsatisfactory in many respects, some weight should be attached to their testimony. As counsel put it in his written heads of argument, "it is highly improbable that a large number of otherwise uninvolved witnesses would perjure themselves in evidence on behalf of the Appellants and that, accordingly, a reasonable possibility exists that the evidence of these witnesses, supportive of the Appellants' alibis, was true." But quantity as such can never be a substitute for quality. There were, as I trust I have indicated, sound reasons for rejecting the evidence of each in so far as he sought to support the alibi evidence of the first appellant. Cumulatively their evidence cannot therefore amount to anything.

The last witness, Liwaene, who was also

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18.

arrested at the road block, was called to confirm the

(false) evidence that the complainants had seen the

appellants at close quarters on two occasions before
the identification parade. He too was a most
unsatisfactory witness. Under cross-examination he

said for the first time that he had been drinking with
the second appellant on that Friday afternoon and thus
purported to support his alibi. He first said that
they had been drinking at a shebeen called "Sana's
place" all afternoon, from 1 pm to 6 pm. When

"Frazer's place" was mentioned to him, he altered his
evidence to say that they did go there during the
afternoon to buy some liquor but returned to "Sana's
place" to prepare for the show at the Three Arts. He
gave patently contradictory accounts of where they were
and what they did that afternoon and by way of
explanation said that his recollection was faulty
because he was "a little drunk".

19/...
19. Reverting to the Clarence Carter show one notices that whenever it is raised by an appellant or a defence witness such evidence has a particularly false ring. The first appellant described in detail the clothing he wore at golf on that Friday but was unable to say what he wore on certain other days. It is in this connection that the Clarence Carter show is artificially introduced by him, as appears from the following extract from his evidence under cross-examination:

"Wat se klere het jy verlede week aangehad,
Maandag Ek kan nie meer onthou nie.
Nou hoekom onthou jy die 9de Maart so goed?

Edelagbare, Clarence Carter skou, ons sou by 'Three Arts' gespeel het, so ek onthou die klere

wat ek daar al die tyd gehad het om daardie
gebeurtenis.
Die eerste keer wat jy na die 'Three Arts' toe
gegaan het? Nee, ekself was nie daar nie, maar
ek onthou Clarence toe ek daar gespeel het.
Nou hoekom wat laat dit nou jou klere onthou? Die
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20.

'show' wat nou aan is? Ek weet dat ek die

betrokke dag by die gholfbaan was, Edelagbare, so ek kan goed onthou hoe ek die dag aangetrek was.
Nou wat het Clarence Carter se 'show' daarmee te doen? 'n Vertoning waarnatoe jy nie eers was nie?
Ek moes mense vervoer het soontoe omstreeks
sesuur, maar ek was laat."

The second appellant's evidence on this topic was as unconvincing. It was the only show of that kind that he had ever attended: he had never in his life gone to listen to any other singer. I have referred to the particularly poor guality the evidence of Macani and Liwaene in this regard. The inference is a strong one that the introduction of the Clarence Carter show was schemed and intended to lend credence to a false alibi.

Thus on the totality of the evidence it can

in no way be said that the trial court was wrong in
holding that the appellants were proved beyond

reasonable doubt to have committed the robbery.

21/...

21. On the question of sentence, Mr Uijs submitted that the trial court misdirected itself in two respects: by over-emphasizing the seriousness of the offence and under-emphasizing the consideration that the first appellant had no previous convictions and that the second appellant's previous conviction was not one involving violence or dishonesty. I am not certain whether the emphasis placed on or evaluation of a factor, properly taken into account by the court, ought to be regarded as a "misdirection". Be that as it may, there are no grounds for concluding that these considerations were not properly taken into account in deciding on an appropriate sentence. To rob persons of a considerable amount of money at gun point remains a very serious offence. The first appellant demonstrated that the revolver was loaded and, had either of the

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complainants resisted, it is reasonable to assume that

it would have been more effectively used. Even if both appellants are taken to be first offenders, the sentence imposed does not appear to me to be disturbingly inappropriate or indeed unreasonable.

The appeal of each appellant against conviction and sentence is dismissed.

M E KUMLEBEN JUDGE OF APPEAL

E M GROSSROPF JA) FRIEDMAN AJA) - agree

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