Nkosi v S (A798/15) [2017] ZAGPPHC 697 (12 October 2017)

IN THE REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NO: A798/15

DATE: 12/10/2017

DUMISANE MZIYABO NKOSI

APPELANT

and

STATE

RESPONDENT

JUDGMENT

KHUMALO J

INTRODUCTION

[1] With leave granted on petition to this court, the Appellant is appealing his conviction on 31 July 2014 by the Regional Court,

sitting in Pretoria on a charge of house breaking with intent to steal and theft. He was sentenced to a period of seven (7) years

imprisonment.

[2] The offence was according to the charge sheet committed by the Appellant and one other Accused at a business called Huge PC ("HPC") owned by one Mr Prinsloo ("the complainant ") in the early hours of the morning on' 10 December 2012. Laptops valued at R100 000.00 (One Hundrend Thousand Rand) that were stolen from the business were recovered within the vicinity of HPC premises following the arrest of the Appellant, his co­ accused and one other person who were seen walking not far from the business premises shortly after the incident.

[3] The trial proceeded only against the Appellant as Accused 1 and his co-accused as Accused 2. Appellant who was unrepresented and his legally represented co-accused pleaded not guilty to the charges. They both exercised their constitutional right to remain silent in terms of s 35 (3) (h) of the Constitution of the Republic of South Africa, 1996 ("Constitution") and did not lead any evidence in their defence except for the oral statements in terms of s 115 of the Criminal Procedure Act 1977 ("the Act") in explanation of plea.

[4] Appellant's explanation was that on the day he was stopped, ordered to lie down and searched by the South ·African

Police or security personnel when they found him walking in the early hours of the morning. He explained to them that he was coming from work and also offered to take them there. Accused 2's explanation was that he was arrested walking from his workplace where he was employed as a car guard.

[5] They were both convicted of both charges following the evidence of the complainant and a Mr Selolo ("Selolo"), a security

guard employed by an armed response company at the time as a reaction officer to the business. Selolo arrested the Appellant and his co-Accused responding to an emergency call following the alarm going off at HPC. The evidence of the two state witnesses, corroborated by a video footage from a CCTV camera installed at HPC that captured the break in and theft of the laptops allegedly by the Appellant and his co­ accused, their arrest near the crime scene, admissions allegedly made by them to Selolo to the crime and the recovery of the stolen items near the crime scene allegedly pointed out by the Appellant and his co-Accused, was found by the court to prove the accused's guilt beyond reasonable doubt.

[6] The Appellant is appealing his conviction on the basis that the learned magistrate erred, in:

[6.1] admitting as evidence the admission/confession and pointing out allegedly made by the appellant.

[6.2] concluding that the state's evidence proved his identification as one of the perpetrators beyond reasonable doubt.

[6.3] in neglecting to appropriately consider the appellant's alibi defence.

EVIDENCE LED

[7] In brief, the evidence of the state witnesses as recounted by the complainant was that, he received a call at around two o clock in the morning on 10 December 2012, that an alarm has gone off at HPC, his business premises. He immediately drove to the premises and found security personnel already there. He walked around the building with the security personnel. At the back, a window was broken and a stepladder left against the wall. He opened the gate to the building and unlocked the door to HPC that is on the first floor of the building. A window and blinds at HPC were damaged. It was also apparent that some items were removed from the shelves. He had earlier on his arrival at the premises, contacted the police. Suddenly he heard a commotion of people rushing and cars speeding

away. A short while later the police came back with 2 suspects. They told him that they had received information about the whereabouts of the stolen items and asked him to follow them. They drove around the corner from Huge PC and recovered two bag loads of the stolen items behind an electric box, most of which were still in their bags. He followed the police to the police station where he identified the stolen items by their serial numbers to be the one stolen from HPC. He then made a statement. Only 9 of the 14 stolen laptops, valued at R100 000 .00 including a tablet were recovered.

[8] He further recalled that before the security left HPC and came back with the Appellant and his co-accused, they all had viewed a CCTV video footage showing two men entering HPC through a window, packing laptops into a bag and afterwards exiting through the same window. When the police arrived with the Appellant and his co accused afterwards he could identify them as the men on the CCTV camera and they had the identical clothing as the men shown on the CCTV camera.

[9] The court and the parties viewed the video footage and all agreed on what they observed from the footage, which according to the record was noted by the court as follows:

“an entry of two men through the window, one of them carrying a bag. The men's faces were not visible as they had their backs on the camera. The one man continued to remove the laptops from the display area putting them on the floor whilst the other one disappeared only to reappear and pack the laptops from the floor into the bags. One man became clearly visible on one angle busy packing and the other finished packing and started moving towards the window. He lifted the blinds and went out through the window with a bag full of laptops. The second man followed, going out, through the same window. One of the men was wearing a dark blue or black cap and a hoodie. The other one was bald headed wearing dark coloured pants with white tekkies and had a distinct pinkish shirt or jersey hanging underneath his jacket. The one with a cap was wearing a cream white shirt underneath his hoodie jacket, dark pants and white or cream tekkies. Colour of hoodie army colour or brownish green and had a small face. Both men dark skinned. The one with a darkish pink shirt and hoodie was slightly taller and bigger whilst the one with cap on was definitely shorter and smaller. Their faces became more visible as they were exiting. But it could not be said from their faces with clarity who they were.”

[10] The photos of the Appellant and his co-Accused taken by the complainant with his cell phone camera at the police station were

also admitted into evidence without any objection from the defence. The clothes they were wearing on the photos were found to resemble

the clothes of the men in the video footage.

[11] When the complainant was under cross examination, Appellant put to him that in his statement to the police he did not mention that he identified them by their clothing and also pointed out the obscurity and darkness of the pictures which made it difficult to make out their faces. The complainant indicated that he had mentioned identifying them from the video footage by their clothing, their built and the fact that one was bald and the other had a cap which matched that of the men in the video. He indicated that the CCTV cameras stay on for 24 hrs a day people walking under a nearby bridge and decided to follow them. They ordered them to lie down and asked them where they were coming from. It was the Appellant, his co-accused and 1 other person. They alleged to be coming back from work. He noticed that two of the men's clothing resembled the clothes worn by the men in the video footage. The complainant arrived at the scene of arrest and confirmed that indeed it was the same people on the video footage. The Appellant and his co-accused were then taken back to the business premises and shown the CCTV camera footage. On seeing the footage, they, without being coerced or assaulted, voluntarily confirmed that they are the men in the video. Appellant admitted to having taken the laptops and volunteered to go and show them where they were hidden. Appellant and his co-accused were driven by the police to where they pointed out to have hidden the laptops, in Telecoms boxes a street away from HPC. The laptops were still Inside the bags. The police took the bags and Appellant and his co-accused to the police station.

[13] During cross examination, the Appellant put to Selolo that he was not one of the two security guards who arrested him and turned down his request to take him to his work where he worked from 3pm to 3am, to verify if he was indeed coming from there. They instead ordered him to lie down, searched and pepper sprayed him, causing him to cough. He therefore could not talk or watch any video. He only became better at the police station. He denied ever entering the business premises were the crime was committed. Selolo's response was that he did not take Appellant to his work because the police told them to take the Appellants back to HPC. He denied searching or pepper spraying the Appellant and his co-accused and admitted to only warning them that if they moved he was going to bliksem them .

[14] Accused 2 put the same facts to Selolo that when they were arrested they were walking at about 02 am and he was coming back from where he worked as a car guard. He denied admitting to being in the video footage. Selolo's response was that the two were in their proper senses when they were brought back to HPC and without being promised anything they confirmed to be the persons on the footage. They both gave information on the whereabouts of the stolen goods. He denied assaulting, threatening or pepper spraying any of them or putting any undue influence. He had testified that one of the guys was wearing something bluish which was denied by Accused 2. He also said none of them was wearing a hat. He confirmed that the person who came to the scene was driving an Audi vehicle and might not have been the complainant but the other owner of HPC.

[15] Appellant refused to lead evidence in his defence, notwithstanding having put these facts to the state witnesses during cross

examination and also hinting to having an alibi. The court advised Appellant of the assistance he can get from the state / prosecution

to subpoena witnesses he may wish to testify in his favour and was implored to consider presenting evidence in his defence, an advise he declined. The court again advised him of procuring legal assistance which he refused.

[16] The court therefore in assessing the evidence found the state to have proven the guilt of the accused beyond reasonable doubt and refused to consider Appellant's alleged alibi as he failed to testify on it under oath or to call the witnesses who could have been able to verify the alibi.

[17] The accused is now challenging the court's refusal to accept the evidence of his alibi and its admission of the evidence of pointing out. He is also disputing that his identification as the perpetrator was proven beyond reasonable doubt. Whilst the state contends that the decision of the court was correct as his alibi defence could not be tested through cross examination and therefore the court could not assess its reliability.

On Appellant's alibi

[19] Generally an exculpatory explanation, readily proffered at arrest, and capable of speedy verification may save both the arrestee and the arrester a great deal of unnecessary trouble. However where such an explanation for whatever reason was not investigated, it would be incumbent upon the presiding officer, as a just cause to inform the unrepresented accused of his right and implore him to call witnesses, lead evidence in order to proffer and confirm the exculpatory explanation, especially where the alleged facts are exclusively within the knowledge of the Accused. If nevertheless the accused remains silent, that being on the face of prima facie evidence, the inference of guilt would be justified; see S v Saaiman 1967 (4) SA 440 (A) at 442F.

[20] It is also the same where it had appeared from an unrepresented accused 's plea explanation or questions he put to the state

witnesses during cross examination that reliance will be placed on a particular witness or alibi, the presiding officer must inform the accused about his right to call witnesses under s 179 (3) of the Act and what he could do to submit his alibi; S v Kibilo 1988 (1) SA 802 (C).

[21] Although the right to remain silent is guaranteed by the Constitution in s 35 (3) (h), it is not absolute. As a result even though no adverse inference can be drawn from the mere fact that the Appellant chose not to lead evidence, the presence of prima facie evidence proving his guilt may lead to adverse inference being drawn from his silence, especially where the accused has been informed of his right to call witnesses to rebut the established incriminating facts (even if he himself does not testify), and also offered assistance in terms of s 179. In such instance the prima facie (or incriminating) evidence remain uncontested; see sv Chabalala 2003 (1) SACR 134 (SCA), and cannot be rebutted by untested allegations

of existence of an alibi or evidence put to the witnesses by the accused during cross­ examination and denied.

[22] Furthermore where the court assists an unrepresented accused, by explaining the intricacies of deciding whether or not to testify, it should be mindful of the provisions of s 196 (1) (a) of the Act that prohibits the compulsion of the accused to testify. As a result, no matter how strong the court may feel that the unrepresented accused has to address a certain aspect of the evidence, the accused's choice of remaining silent is the ultimate.

[23] The onus remains with the Appellant to lead evidence on his alibi. The court a quo was therefore correct in disregarding the alibi that was not presented to the court under oath and remained untested, therefore carried no weight.

On admissibility of admission and pointing out

[24] The Appellant and his co-accused were found near the crime scene, not long after the crime was committed, wearing clothes that resembled those of the men seen on CCTV camera committing the crime, and when shown the footage they are said to have confessed to the crime and pointed out were the stolen goods were recovered. In 5 v Kanyile 1968 (1) SA 201(N)) it was held that when a suspect on a charge of housebreaking or theft points out the place where the stolen goods are, it can be justifiably be inferred that he or she is guilty of the housebreaking as well as the theft. According to s 218 (2) of the Act, the fact that a pointing out forms part of an inadmissible confession is irrelevant to the admissibility of evidence concerning

the pointing out. The pointing out under the circumstances is admissible even though the confession/admission might not be admissible. It must however still also be clear beyond reasonable doubt that Appellant is guilty.

[25] The court also took into account that the admissions were alleged to have been made spontaneously, without any coercion, compulsion or persuasion by the security personnel. Since the Appellant denied making the statements, the court did not order the holding of a trial within a trial hearing, to test the admissibility of the evidence. An informal admission to the crime made freely and voluntarily outside the court by the Appellant and his co accused, can be sufficient for a conviction if confirmed by circumstantial or other independent evidence or other probative material; see S v Skosana 1960 (4) SA 723 (A) at 729 (C); S v Mjoli 1238A-B and 1244F and 1247G-H. The finding or recovery of the stolen goods due to such admission weighed in the context of the whole evidence, as in casu, which includes the time and place of their arrest, the resemblance of their clothes to those of the two men shown on the CCTV footage breaking and stealing the recovered items, constitutes adequate corroboration, satisfactory and reliable evidence for a court to return a conviction, proving beyond reasonable doubt the accused's guilt; see S v Bambo 1975 (2) SA 540 (A).

[26] The admission of such evidence cannot be said to have amounted to an unfair trial. The Appellant had also through cross examination denied making the admission. Appellant put it to Selolo that on his arrest he was pepper sprayed and therefore could not stop coughing and feeling dizzy until he regained awareness at the police station. Therefore the holding of a trial within a trial to determine

voluntariness would not have resolved the issues of whether or not the admission was made, which is solely reliant on the credibility of Selolo's evidence.

[27] On the argument raised on behalf of Appellant that the complainant did not testify about the admission him and his co-accused allegedly made. The complainant confirmed that he heard from the police/security who told him that they have received information on the whereabouts of the stolen goods. He was then asked to follow the police who were driving with the Appellants in their van, to where the stolen goods were recovered. Selolo's version was also that he followed the police vehicle to a spot pointed by the Appellant where the stolen laptops were recovered, thus corroborating each other. It was Selolo's evidence as well that the laptops were hidden and not visible to any passerby that they could be stumbled upon. The fact that the goods were found on the information from the Appellants in the vicinity of the scene of crime is very relevant and cannot be ignored.

Appellant's identification whether beyond reasonable doubt

[38] The break in at HPC by two men seen on the video footage and the arrest of the Appellant and his co-accused near the vicinity of PHC a few minutes after the break in and the recovery of the stolen items, pointed out by the Appellant, not far from the scene of crime soon after their arrest are co-incidental facts that were not in dispute. The court also confirmed observation by all the parties that Appellant and his co-Accused resembled the men in the video, who were built differently, one shorter and smaller and the other tall, bald headed and slightly built, even though their faces could not be made out on the CCTV. This observation substantiated the state witnesses' evidence that when the Appellant and his co-accused were arrested near the vicinity of the crime scene they were wearing clothes similar to those of the two men in the video, a comparison made immediately after their arrest. The only inference that can be drawn from the totality of this evidence is that the Appellant and Accused 2 were the two men who broke into HPC; see the approach adopted by Cameron JA in S v Van Aswegen 2001 (22) SACR 97 (SCA); Also see R v Blom 1939 AD 188 .

[39] Their alleged admission to be the men in the video (even though denied) and pointing out the place where the stolen items were recovered, strengthened the already overwhelming circumstantial evidence that infers their involvement beyond reasonable doubt. The fact that the relevant evidence constitutes mutually independent material facts that points to the same direction is very significant;

see R v Mthembu 1950 (1) SA 670 (A) at 679-680. It can be concluded that the facts proves the identity of the perpetrators to be Appellant and his co-accused beyond reasonable doubt.

[39] The Appellant and his co-Accused even though they disputed the evidence, they however declined to testify. They did not offer any explanation on the coincidence of being found near the crime scene in each other's company just after 02h00 a few minutes after the break in, dressed in clothes that resembled those of the perpetrators when they allegedly worked at different places and knocked off at different times, one allegedly working at a bar and the other as a car guard and knocking off at 03h00 and 02h00 respectively. Appellant was also arrested before the time he was even supposed to knock off. The Appellant's failure to give his version on the face of such incriminating evidence or to put such evidence to the witnesses and thereafter be tried, or to confirm their alibi under oath had to be viewed by the court in the negative light and validates the inference of guilt drawn; see S v Letsoko 1964 (4) SA 768 (A).

[40] The police/security personnel found the stolen items after they had arrested the Appellant and his co- Accused who took them to the spot where the items were hidden. Selolo indicated that the spot was not easily visible to any passerby, therefore they would not have been found if not with the assistance of the Appellants. They could be able to point out the spot only if they were involved or had a hand in the theft. Therefore the fact that they made the admissions is not far- fetched. The court was also entitled to evaluate the evidence and decide whether it is credible or not as it was denied by the Appellants. There was no allegation of a compelled pointing out or admission, because then the court would have been compelled to conduct a trial within a trial before admitting the evidence.

[41] The court a quo, when finally looking at the whole evidence, correctly considered the contradictions, specifically on the version

by Selolo, and weighed them against the undisputed incriminating facts. It found that the state's case was not weakened by such

contradictionsas they were not of a material nature. The credibility of the whole evidence was therefore not affected. I agree with such a conclusion. The contradictions were about whether or not the Appellant were searched and if it was the Complainant or his partner who came to where the Appellants were apprehended. It was also about the colour of the Appellant's jersey. Since the contradictions were immaterial, the evidence of the state witnesses was as a whole found correctly to be credible and sufficient to sustain a guilty verdict. They corroborated each other on the material aspects of the evidence.

[42] Under the circumstances the following order is made:

[42.1] The Appeal is dismissed.

__________________________

N V KHUMALO J

JUDGE OF THE HIGH COURT

GAUTENG DIVISION: PRETORIA

I concur

N MALI J

For the Appellant: ADV F VAN AAS

Instructed by: Pretoria Justice Centre

2nd Floor, 206 Church Square

PRETORIA

0795240939

For the Respondent: ADV LA MORE

Instructed by: Director of Public Prosecutions

North Gauteng, Pretoria

Tel: 012 3516735