Matikinga and Others v S (13/2020) [2021] ZAECGHC 73 (3 August 2021)

REPORTABLE

IN THE HIGH COURT

OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

APPEAL NUMBER: 13/2020

CASE NUMBER: PE573/2017

Date of Hearing: 24 March 2021

Date of Delivery: 3 August 2021

In the matter of:

SIVE

MATIKINCA

First Appellant

UNATHI

TSHANGA Second Appellant

SIYABULELA

NTANTE Third Appellant

and

THE

STATE

Respondent

JUDGMENT

NOTYESI AJ

Introduction

[1] The appeal is against the judgment of the Port Elizabeth Regional Court wherein the three appellants were convicted and sentenced to 15 years imprisonment on a charge of robbery with aggravating circumstances as defined in section 1(1)(b) of the Criminal Procedure Act, 51 of 1977. The appellants appeal against the conviction and sentence. The Regional Court granted leave to appeal against both conviction and sentence.

[2] On a proper conspectus, this appeal turns on two issues; firstly, whether the identification of the appellants as perpetrators and their conviction was correctly made, secondly whether the sentence imposed by the Regional Court was correct.

Background

[3] The allegations against the appellants are the following:

3.1 On the morning of 15 May 2017 and at Central Hill, Port Elizabeth, the appellants threatened and stabbed Sisanda Mpahlwa, the complainant, with a knife and forcefully took his cellphone Samsung Galaxy S3 valued at R4,000-00, his wallet and an amount of R150-00.

3.2 The complainant identified the appellants as his attackers prior, during and after the attack in different circumstances.

3.3 The appellants denied the allegations against them and pleaded not guilty.

[4] The State called three witnesses and the appellants also testified. I briefly deal with the evidence.

[5] The complainant testified that on 15 May 2017 and at about 7:10 am, he was on his way to work. Whilst going up the stairs at Prosperity Hill, he saw three males approaching him from the front. They appeared to him to be in a hurry. As they came closer to him, they split up. One person going to his right side and the other two people to his left side. When the complainant was in between them, the one who was on the right side, grabbed him by his collar and tripped him causing him to fall on his back. The complainant identified this person as the first appellant.

[6] As the complainant was laying down, they asked whether he had a cellphone. At that stage the first appellant was busy pick pocketing him and the complainant was resisting. The first appellant grumbled to one of the persons who was on the left side that the complainant was making things difficult.

[7] The complainant identified the person who was spoken to as the second appellant. The second appellant opened a knife and went around the complainant.

[8] The third person who was standing guard, warned the other appellants about time and urged them to be quick. He used the word “Buddas” when speaking to the other appellants. The complainant identified that person as the third appellant.

[9] The complainant was kicking, resisting the pick pocketing. At that stage, the second appellant stabbed him with the knife on the leg. The first appellant continued pick pocketing the complainant.

[10] The appellants managed to take the complainant’s cellphone, wallet and R150-00 in cash. Thereafter, they all ran away.

[11] The complainant gave chase and met with Metro officers. He informed them of his ordeal. Whilst speaking with the Metro officers, a person came and in informed them that he saw three men running along the street. K9 security was called and when they arrived on the scene, the complainant explained what happened and gave a description of his attackers. The complainant testified that he saw their faces as he had looked directly at them.

[12] K9 security requested the complainant to accompany them as they gave chase. They entered Berg Street. On the way, they saw three persons running into a dilapidated building. When entering the building, the complainant identified them as the same people who robbed him. The first appellant was caught and arrested by K9 security officers in the presence of the complainant. The other two managed to run away.

[13] The first appellant was taken to Humewood police station where the case was opened. The complainant gave a statement to the police about the robbery.

[14] The following day, 16 May 2017, the complainant received a telephone call from the police. The police requested him to come to the Humewood police station. On arrival at Humewood police station, he was asked whether he still remembered the persons who had robbed him. He confirmed that he remembered them well.

[15] The complainant was shown photos of 9 persons and each photo among those was numbered from 1 to 9. He was not told who those people were and was asked if he could recognise any of those persons. He identified the second appellant as the person in the photo marked 9 and the third appellant as the person in the photo marked 7.

[16] The second witness for the State was Constable Jacques Botha. He testified about the arrest of the first appellant. In his evidence, he confirmed that the first appellant was pointed out by the complainant as one of the three males who robbed him.

[17] The next witness was the Investigating Officer, Mr Xolisa Ngeni. His testimony related to the arrest of the second and third appellants. In his evidence, he testified about the photo identity parade. The Investigating Officer prepared a photo identity parade and provided the complainant with photographs in order for him to see if the images of any of his attackers were amongst the photographs. The complainant identified the second and third appellants without any hesitation. Thereafter, the Investigating Officer took the complainant’s statement in this regard. According to the investigating officer, this was part of his investigation of the case.

[18] That was the State’s case.

[19] In their respective testimonies, the appellants disputed the allegations against them and pleaded an alibi.

[20] The first appellant testified that on 15 May 2017 he was at the third appellant’s place of residence, which is a dilapidated building. He described the place as an old place where everyone who does not have accommodation, stays and stated that he does not normally stay with the third appellant. The first appellant testified that he is a friend of the third appellant and that the third appellant is a friend of the second appellant.

[21] On the night before the incident, the first and third appellants were together the whole night smoking drugs. In the morning, they ran out of a lighter and the first appellant went out to buy a lighter, leaving the third appellant in the dilapidated building. On the way to the shop, he saw a vehicle that was parked in front of a clinic with its windows down and the door opened. He then saw a Tupperware lunch box and some cash that was in an ashtray, which he took. He went back to the third appellant and gave him money to go and buy the lighter. After the third appellant left for the shop, the second appellant arrived and they shared the contents of the lunch box. Whilst they were eating with the second appellant, the first appellant left the room to get water.

[22] On his way to get water the first appellant was accosted by Metro police and other people. The complainant also arrived and assaulted him, thereafter the first appellant was arrested. The first appellant disputed that he went to Prosperity Hill.

[23] The second appellant testified that he knew both the first and third appellants. The third appellant was his best friend and the first appellant was just an acquaintance.

[24] On the date in question, around 7am, the second appellant went to the third appellant’s place where he found the first appellant eating from a lunch box. The first appellant went out to fetch water. Shortly thereafter, he heard banging on the doors and noticed that something was going on outside. He went out to see what was happening and noticed the first appellant being assaulted and then he ran away.

[25] The second appellant was arrested on the following day, 16 May 2017, whilst he was in Victoria Street, where he stays with his lady. After his arrest, he went to show the police the third appellant’s place and then the third appellant was also arrested. The second appellant denied the allegations of robbery.

[26] The third appellant also testified. According to him, he was asleep in his room when the second appellant came with the police. He was arrested at his place. He denied the allegations of robbery.

[27] The court, after the analysis of evidence, rejected the version of the appellants and convicted them upon the finding that the State had proved its case beyond reasonable doubt. The Magistrate was impressed with all the State witnesses and found them to be credible. In the notice of appeal, there is no attack directed on any of the credibility findings made by the Magistrate.

[28] In the main, the grounds of appeal are based on the reliability of the complainant’s evidence as a single witness. In the heads of argument, the appellants introduced a further ground, namely the legality of the photo identification parade.

[29] I discuss the general principles of law on evidence of identification and photo identification parade.

[30] In general, evidence of identification has to be treated with caution. In S v Mthetwa[1] Holmes JA set out the proper approach as follows:

“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) SA 488 (AD); R v Dladla and Others, 1962 (1) SA 307 (AD) at p 310C; S v Mehlape, 1963 (2) SA 29 (AD).”

[31] It is generally accepted that evidence of identification based upon witnesses’ recollections of persons appearance is dangerously unreliable unless approached with due caution. The average witness’ ability to recognise faces is poor, although few people are prepared to admit that they have made a mistake. On a question of identification, the confidence and sincerity of the witness is not enough.[2]

[32] The often patent, honest, sincerity and confidence of an identifying witness remain, however, a snare to a judicial officer who does not constantly remind himself of the necessity of disputing any danger of error in such evidence.[3]

[33] Regarding photograph identification, this has been said, it is not appropriate to impose strict requirements of regular identification parade, such evidence need to be carefully approached and the court has to be satisfied that the identification was proper and that the evidence is reliable. The danger in photographic identification is that a witness may identify the person whose photograph he/she saw and not necessarily the person who committed the offence. Whilst it is permissible to rely on photographic identification, such identification must be considered with caution[4].

[34] In S v Daba[5] Kroon J held that the Magistrate ought to have entertained serious reservations as to the reliability of the identification where the only evidence of identification before the court below (when dock identifications had been disregarded) was the complainant pointing out the appellant in an identification parade and no evidence had been led ‘as to the circumstances under which the identification took place and therefore whether it was reliable’. I deal with these broad principles in the context of this case.

Evaluation and Analysis

[35] It is common cause that the complainant was robbed by three persons. The robbery took place in the morning at about 7am. The visibility was clear. There is no evidence to the contrary.

[36] There are four instances in which the appellants were identified by the complainant. The first instance is at the scene of the robbery (before the actual robbery, when they approached him from his front. His attention was drawn by their actions when they appeared to be in a hurry and simply split up in front of him and at the time of the assault and robbery); the second instance is when the first appellant was identified by the complainant during his arrest; the third instance is when the complainant identified the second and third appellants from the photographs at the police station; and; the fourth instance is during the trial when the complainant pointed them out from the dock.

[37] The question that should be answered is, therefore, whether the finding of reliability of such identification was correct.

[38] The contentions by the appellants are that the complainant had no prior knowledge of the appellants before the incident; he was in a state of shock, the complainant had been stabbed by the attackers and that must render the circumstances unconducive for a reliable identification.

[39] Mr Geldenhuys, counsel for the appellants, had further submitted that the complainant did not have sufficient time to identify his attackers. The upshot of the submission is that the identification is unreliable. This court had been urged by Mr Geldenhuys to take into account that no items were found on the appellants, which would link them with the robbery.

[40] On the contrary, Ms Prince, counsel for the State, submitted that the incident took place in the morning and the lighting was adequate. The State further submitted that the complainant did not have a motive to falsely implicate the appellants and that his credibility on the identification of the appellants has not been attacked. Ms Prince had further submitted that the complainant gave a detailed description of the roles played by each of the appellants, which shows that he had an opportunity and ample time to observe the appellants. In such circumstances, the submission goes, the complainant had sufficient time to make a reliable identification, moreso that the appellants were in close proximity to him.

[41] The trite legal position is that an identification must not only be credible, but must also be reliable.[6] I have outlined that there are four instances in which the complainant had identified the appellants. The complainant’s testimony is to the effect that when they held him down, he was looking straight at their faces.

[42] The appellants had immediately been chased by the complainant after the robbery and the first appellant was arrested within minutes after the incident of robbery. The complainant identified the first appellant as the one who tripped him and searched him during the robbery. The first appellant was pointed out by the complainant during the arrest. The other two appellants, who happened to know each other, were pointed out from the photos. The complainant did not have any prior knowledge of the appellants’ relationships. The inference is irresistible that he identified them during the robbery.

[43] The complainant was found to be a credible witness and there is no attack on his credibility. The notice of appeal, in this regard, reads:

“The Learned Magistrate erred in not treating the complainant’s evidence with sufficient caution this despite the fact that he was a single witness with regard to the identification of the appellants.”

[44] This ground must be viewed with reference to the Magistrate’s reasons for the judgment. In this regard, I quote from the record the excerpt below:

“The complainant is indeed a single witness which means that the court had to approach his evidence with caution. His evidence has to be satisfactory in all material aspects. He was found to be quite meticulous in his details about how the three accused approached him, the armed robbery took place and role of each of the accused. Even during cross examination, his evidence could not be faulted in any way and so even as a single witness, this court is satisfied that his evidence is satisfactory in all material respects.”

[45] There is no attack directed to this finding. I therefore accept that the complainant was a credible witness and the court carefully applied the necessary caution in consideration of his evidence as a single witness. I have no basis upon which I can interfere with the Magistrate’s findings in this regard.

[46] The version of each appellant was carefully considered by the Magistrate, who correctly, in my view, rejected their version. I also find that there are no objective facts to support the version of the appellants. Their evidence placed them together in one place at the same time on the date of the incident. Coincidentally, the time of their meeting is almost the same time as the incident of robbery.

[47] In his testimony, Constable Botha, whose evidence was not meaningfully challenged by the appellants, testified:

“The complainant pointed out Mr Matikinca as being part of the three males who had robbed him earlier that morning. The complainant then informed me that the role the accused played was to search his person before he was stabbed.”

[48] I therefore accept that the identification of the first appellant is sufficiently reliable. The complainant had ample time to observe and identify him.

[49] The stabbing of the complainant by the second appellant took place at a time when he was facing the second appellant and after he first observed them approaching him from the front. The suggestion of shock in these circumstances stands to be rejected. Whatever shock that may have been, must have occurred after first identification, which I have described. It has no bearing to the first observation and identification before the actual robbery. The suggestion of shock only emerges at the stage when the second appellant approaches the complainant with a knife. In this regard, I quote from the record:

Ms Baatjies: You must have been shocked in that stage to see these three men approaching you and one has a knife.

Mr Mpahlwa: I was shocked but I was looking at them.

[50] It is obvious from the answers that the shock did not have an impact on the complainant’s observations and identification of the appellants. He was looking at them and had the opportunity to do so before the assault.

[51] The second and third appellants were identified from photographs prepared by the investigating officer, Constable Ngeni. The photographs are part of the record. They were admitted into the record with no objections from the appellants. There is no ground of appeal directed to the admission of the photographs as evidence. However, Mr Geldenhuys, in his written and oral submissions, sought to attack the photographic identification of the second and third appellants.

[52] Mr Geldenhuys’ submission is that the investigating officer conducted the photographic identification himself and that is irregular. Mr Geldenhuys heavily criticised the investigating officer for holding the parade and in his criticism, he was short of calling the reasons given by the investigating officer to be flimsy and thus unsatisfactory. I am unable to uphold the submission for several reasons. Firstly, the admissibility of the photographic evidence was not challenged during the trial. Secondly, it is not a ground of appeal. Thirdly, photos were used as part of investigations. This argument, ought to be rejected purely on these grounds. However, notwithstanding the failure on the part of the appellants to raise this issue timeously, I have decided to give it consideration.

[53] I have already found that the complainant had ample time to identify the appellants. The photo identification was a corroboration of the first identification. The defence ought to have placed in dispute the evidence of photo identification.

[54] A detailed explanation has been proffered by the investigating officer and the Magistrate correctly accepted that explanation. I quote from the record :

“It is for that reason therefore that this court is of the view that although the investigating officer conducted himself irregularly, it does not necessarily mean that the evidence he led and in particular, the method by which the complainant identified the two accused is not found credible or is inadmissible before this court.”

[55] The complainant, as an identifying witness, provided sufficient evidence to substantiate the reliability of the photographic identification parade conducted. There were 9 photos and the witness was left alone to peruse those photos. He recognised the second and third appellants, on his own accord. The complainant was not prompted nor was his attention directed to any specific photograph. That evidence has not been gainsaid.

[56] This court is aware of various judgments regarding the circumstances to be taken into account when considering the reliability of an identification made from a photograph.[7] The photographs are for purposes of criminal investigation. There is no indication that the identification of the appellants by the complainant was tainted by irregularities. The main complaint is the involvement of the investigating officer. I therefore reject the submissions based on the irregularity of photo identification. The fact remains that the second and third appellants were identified at the scene by the complainant.

[57] For all the reasons stated above, this court is satisfied that the appellants were correctly identified and convicted by the Magistrate. Their conviction should therefore stand.

Whether the Magistrate imposed an appropriate sentence

[58] The appellants were convicted on a charge of robbery with aggravating circumstances. The sentence is in line with section 51(2)(a) of the Criminal Law Amendment Act, 105 of 1997. In sentencing the appellants, the Magistrate found that there were no substantial and compelling circumstances for her to deviate from the prescribed minimum sentence of 15 years.

[59] In this appeal, the appellants submitted that the Magistrate had erred in her finding that there were no substantial and compelling reasons, when regard is had to their personal circumstances. They contended that the sentence of 15 years is shockingly disproportionate and too harsh.

[60] On the contrary, the State submitted that the Magistrate had correctly exercised her discretion when imposing the prescribed minimum sentence. The thrust of the State’s submission is that the sentence imposed is not shockingly inappropriate, having regard to the seriousness of the offence and the interest of justice. In addition, the appellants failed to establish any substantial and compelling circumstance to justify a deviation from the prescribed minimum sentence.

[61] The task of imposing an appropriate sentence is the discretion of the trial court. A court of appeal may only interfere if the sentence imposed is shockingly inappropriate; there is an irregularity or misdirection on the part of the trial court.[8]

[62] In S v Rabie[9], it was held:

“In every appeal against the sentence, whether imposed by the Magistrate or a judge, the Court hearing the appeal:-

(a) should be guided by the principle that punishment is pre-eminently a matter for the discretion of the trial Court; and

(b) should be careful not to erode such discretion; hence the further principle that the sentence should only be altered if the discretion has not been judicially and properly exercised. The test under (b) is whether the sentence is vitiated by irregularity or by misdirection or is disturbingly inappropriate.”

[63] In S v Malgas[10], it was held:

“The courts are required to approach the imposition of sentence conscious that the Legislature has ordained life imprisonment (or the particular prescribed period of imprisonment) as the sentence that should ordinarily and in the absence of weighty justification be imposed for the listed crimes in the specified circumstances... The court is obliged to take into account all relevant factors as it retains its discretion when passing a sentence.”

[64] Mr Geldenhuys, counsel for the appellants, submitted that the personal circumstances of the appellants amount to substantial and compelling circumstances. Those personal circumstances are:

64.1 The first appellant was 27 years old at the time of the sentence, he is unmarried, but has a minor child, he has a grade 10 education level, he has previous convictions and he spent about 6 months in custody as an awaiting trial prisoner.

64.2 The second appellant was also 27 years old at the time of the sentence, he is unmarried, he has no children, he left school in grade 8, he had an informal employment, he had previous convictions and spent about 6 months in custody as an awaiting trial prisoner; and

64.3 The third appellant was 22 years old at the time of sentence, he has no children, he left school in grade 7, he was unemployed and was financially supported by his father and siblings, and he had previous convictions and spent about 6 months in custody as an awaiting trial prisoner.

[65] I have to consider the appellants circumstances in accordance with how they decided to approach the complainant. The complainant was robbed with a knife. He was stabbed when he attempted to resist the robbery. The robbery was violent. Not only did the complainant lose his personal possessions but he was injured and traumatised by the robbery. He testified that he was shocked by the attack.

[66] The appellants have previous convictions which involve crimes of violence ranging from theft, conviction under the drug and drug trafficking act and robbery. The previous convictions date from 2011 and as recent as to 2017. There are recent convictions. On numerous occasions, they have been sentenced to short sentences or sentences which have been suspended. This offence was committed on 15 May 2017, which is within the period of those convictions. The Magistrate seems to have been persuaded that the short sentences have not rehabilitated the appellants.

[67] The Magistrate, in sentencing the appellants, considered their personal circumstances, the seriousness of the offence and the interest of justice and found that the seriousness of the offence outweighs the personal circumstances. In view of the repeated commission of previous offences which are relevant, the appellants were not rehabilitated from the previous short sentences on their convictions. In this regard, I quote from the record:

“This court is of the view that they should have been rehabilitated by all those light sentences that they got from all these other offences they have been convicted for previously.”

[68] The offence for which the appellants have been convicted, was violent. Other than pleading their personal circumstances, there is nothing peculiar about their circumstances. The previous convictions on the one hand, which are as recent as 2017, indicate a propensity to commit further crimes.

[69] In S v Vilakazi[11], the court held:

“In cases of serious crime, the personal circumstances of the offender, by themselves, will necessarily recede into the background. Once it becomes clear that the crime deserving of a substantial period of imprisonment, the question whether the accused is married or single, whether he has two children or three, whether or not he is in an employment, are in themselves largely immaterial to what that period should be, and those seem to me to be the kind of flimsy grounds that Malgas said should be avoided.”

[70] When looking at the circumstances of this case, the interest of society, the interest of the complainant and the personal circumstances of each appellant and the aggravating nature of the case, I am of the view that the aggravating circumstances outweighs the mitigating factors. I agree that the Magistrate correctly found that there were no substantial and compelling reasons to deviate from the prescribed minimum sentence. The sentence imposed is appropriate.

[71] The grounds of appeal and the submissions about the personal circumstances of the appellants constitute those flimsy grounds that the courts have been warned to avoid in Malgas.

[72] I hold the view that any sentence with a shorter term of imprisonment would overemphasize the appellants’ personal circumstances and underemphasize the seriousness of robbery, where the complainant had been violently dispossessed of his property with the infliction of harm.

[73] It follows that the Magistrate was correct in holding that there were no substantial and compelling circumstances that would justify the imposition of a lesser sentence. The sentence should stand as well.

Conclusion

[74] I am satisfied that the Magistrate had carefully considered the evidence and thus convicted and sentenced the appellants correctly. That finding leads me to a conclusion that both the appeal against conviction and sentence stands to be dismissed by this court.

Order

[75] In the result the following order shall issue:

1. The appeal is dismissed.

M NOTYESI

JUDGE OF THE HIGH COURT (ACTING)

I agree

M MAKAULA

JUDGE

OF THE HIGH COURT

Appearances:

Counsel for the appellants : D P Geldenhuys

: Legal Aid South Africa

Grahamstown

Counsel for the respondent : L A Prince

: Director of Public Prosecutions

[1] 1972 (3) SA 766 (A) at 768A-C.

[2] S v Pretorius & Another 1991 (2) SACR 601 (A); See also S v Zitha 1993 (1) SACR 718.

[3] S v Miggel 2007 (1) SA 675 (C) at 678 E; see also Zacharia Masian Phetla and Others v The State (A632/2015) [2016] ZAGPPHC 555 (24 June 2016) – Full Bench judgment by Legodi J.

[4] S v Moti 1998 (2) SACR 245 (SCA)

[5] 1996 (1) SACR (E), 249d-e.

[6] S v Mthetwa supra, S v Mehlape 1963 (2) SA 29 (A)

[7] R v Jackson 1955 (4) SA 85, S v Shandu 1990 (1) SACR 80(N), S v Nkomo 1990 (1) SACR 682 (ZS), S v Moti supra. See also S v Zwayi CC 5/97, at pg 16 of an unreported judgment by the Bisho High Court, Eastern Cape delivered by Ebrahim AJ on 2 September 1997.

[8] S v Singh 2016 (2) SACR 443 (SCA).

[9] 1975 (4) SA 855 (A) at [857 D-E], S v Kibido 1998 (2) SACR 213 (SCA) at [216G-H].

[10] 2001 (1) SACR 469 (SCA) at page 481i

[11] S v Vilakazi 2009 (1) SACR 552 (SCA) at par 58.