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Single witness; identification CRIM. CASE NO.
22/98
In the matter
between
REX
VS
Coram S.B. MAPHALALA – J
For the Crown MISS.
LANGWENYA
For the Defence MR. MAMBA
JUDGEMENT
(23/11/98)
On this indictment Thokozani Gengenyane Mavuso is charged with
murdering an old woman Bester Hlophe at Mantambe on the 26th August
1997 according to the first count preferred against the accused. On the second
count the said accused is charged with the
crime of arson of having burnt the
property of the said Bester Hlophe by setting on fire and thereby damage two
houses on the same
day. When the indictment was put to the accused he pleaded
not guilty to both counts.
According to the post-mortem report the
deceased died as a result of multiple stab wounds. There is also clear evidence
from the
pictures taken by the scene of crime police officers that the two huts
were gutted by fire.
The crown called six witnesses to prove its case.
The evidence of Dr. Rammohan the police pathologist who performed a post-mortem
examination and compiled a report of his findings on the deceased was entered by
consent. The evidence of the identifying witness
Jeremiah Hlophe was also
entered by consent. So is the evidence of Norah Busisiwe Hlophe whose evidence
according to the summary
of evidence that she was the deceased daughter-in-law.
She was going to tell the court that on the 26th August 1997, she was
in her house together with her husband Elliot Hlophe (who was introduced as PW3)
when she heard a loud bang
at the deceased hut. Her husband went out of the
house to inquire and she followed him. Outside he saw a huge fire and two huts
burning. The deceased was shouting and saying “I saw you Mavuso boy,
you are killing me for nothing because the person I am dying for is not
here”. After uttering these words, the deceased died. Outside the
hut there were people who were calling each other “Joe”.
This
witness did not see these people. The estimated value of the property that was
destroyed in the two huts was E15,000-00.
The crown then called PW1
Ncedile Hlophe who told the court that at about 8.00pm on the 26th
August 1997 she inside the house together with her grandmother Bester Hlophe and
Simangele Phindile Hlophe (PW2). They saw fire
and their grandmother took out
some water and attempted to put out the fire. When the deceased went out of the
hut she was hit with
an object which she did not see and she bled. When her
grandmother went out she was raising an alarm. PW1 was able to get out of
the
house when the fire was burning ad she ran away. She told the court that she
knew who set the house on fire, it was the accused.
They could see the accused
peeping through the window; he was wearing a white headgear. The deceased
called him out and said that
there she could see him he was a Mavuso. She ran
outside and raised an alarm and subsequently the matter was reported to the
police.
The crown then called PW2 Simangele Phindile Hlophe who told the
court that at about 8.00pm on the 26th August 1997 they were inside a
hut together with PW1 and the deceased. They saw that the hut was on fire and
they then raised an
alarm. The deceased opened the door and went out, someone
hit her. Before that they heard footsteps of people running around outside.
They saw one person who was peeping through the window. She saw that it was the
accused who was wearing something white in his
head. She saw his top part of
his body. The accused stabbed the deceased with a spear on the cheek. Her
grandmother said “I
can see you, you are a Mavuso boy”. She then
came out with PW1 and ran away. They left the deceased inside the house. Two
huts were burnt. After the incident she did not see the accused. The matter
was reported to the police and she also recorded a
statement with the police.
However, it should be noted that after the defence has completed its cross
examination, the crown applied
to invoke Section 273 of the Criminal Procedure
and Evidence Act (as amended) No. 37 of 1938 to have this witness impeached. It
became apparent that this witness when questioned by the crown was not worthy of
credit as she lied through her teeth, she told the
court in chief she was
materially different from what she told the police in her statement.
The
crown called PW3 Norah Hlophe whose evidence was entered by consent as I have
earlier on in the judgement pointed out.
The crown then called PW4 Elliot
Hlophe whose evidence is materially similar to that of his wife PW3 Nora Hlophe.
He was not cross-examined
by the defence.
The crown then called PW5
Constable Tutu H. Dlamini who told the court that on the 27th August
1997 at about 0130 hrs he went to the scene of the crime. He observed the scene
and the body of the deceased. He then took
the body of the deceased to the
mortuary. There was a twenty litre empty tin, which was smelling petrol and a
small green plastic
container also smelling of petrol next to the huts. He took
these items as exhibits. On the 5th September 1997, he introduced
himself to the accused who was at his homestead. He arrested the accused and
took him in accordance
with the Judge’s Rules and questioned him about
this matter. The accused denied everything concerning this offence.
The
crown then called PW6 2600 Sergeant D. Dube who is the Scene of Crime Officer
who told the court that on the 27th August 1997, he took pictures of
the scene of crime.
The crown then closed its case where Mr. Mamba
attempted to launch an application in terms of Section 174 (4) of the Criminal
Procedure
and Evidence Act (as amended) and after full arguments on both sides
he abandoned it and called his client to his defence.
The crown then
called the accused to the witness stand where he denied liability in this case.
That what PW1 said about him is not
true, as he was not at the scene of crime at
the material time. He was cross-examined at length by the crown.
The
court then entertained submissions from both sides. The crown submits that the
accused be found guilty as charged on the basis
of the evidence of PW1 and PW4.
PW1 stated that on the night in question she was asleep in her hut together with
the deceased and
they were woken up by the noise of stones pelting the windows.
She saw the accused peeping through the window and at that time the
house was
already on fire. The evidence of PW1 in law is sufficient. It is the evidence
of a competent witness in terms of Section
236 of The Criminal Procedure and
Evidence Act (as amended). Miss Langwenya further directed the court’s
attention to the
case of S vs Mokoena 1932 N.P.D. 79 at page 80
where Devillers JP stated that the uncorroborated evidence of a single competent
and credible witness is no doubt declared
to be sufficient for a conviction by
Section 284 of Act 31 of 1917. This Section being in accordance with our
Section 236 of our
penal code. He proceeded to say that the evidence should be
relied on when it is clear and satisfactory in all material respects.
It is for
the court in the case in casu to look for the truth in the
evidence of PW1. Why would these witnesses come to court to give such damning
evidence? The accused
failed to explain why the evidence of PW1 because it is
the truth. The story by PW1 is confirmed by that of PW4 who said that when
he
arrived at the homestead of PW1 and PW2 PW1 told him about the person who burnt
down the huts and assaulted the deceased.
On the other hand Mr. Mamba for
the accused contends that the crown has missed the point. The issue in this
case is whether or not
the accused was one of the attackers that fateful night.
The only evidence that links him with the commission of the offence is
that of
PW1. The accused does not bear the onus to explain away the evidence of PW1.
He does not even have to give a reason why
a child of 13 years (PW1) should lie
against him. The evidence of young persons should be taken with caution. The
court should
look for some other material, which link the accused with the
commission of the offence. She is an unsophisticated girl from a rural
background. She said before coming to court to give evidence she had the
opportunity to discuss the matter with her mother and PW2.
She said it was
after her grandmother (the deceased) had said, “you are Mavuso” that
she saw that it was the accused.
On her own she did not know who the attacker
was. She said she was not able to see the whole body. She said the head
including
the assailant’s ears were covered. The person who appeared on
the window was disguised. No credible identification could
have been made under
those circumstances. PW1 tried to tell the court that she had about 30 minutes
to look at the person. But
according to Mr. Mamba this is fanciful. There is
no cogent and reliable evidence from this witness. Mr. Mamba submitted that it
is trite law that there should be an exercise of caution by the court in
evidence of identification. Why did the police act on her
evidence and that of
PW2 there and there and wait for two weeks (refers to the case of R vs
Masemang 1950 (2) S.A. 488 (AD) at page 493). Finally
that the accused should be given the benefit of the doubt in this
case
These are the issues before me. I have also availed myself to the
legal authorities cited by counsel. It is clear from the evidence
before court
that this was a very gruesome attack on an old defenceless woman at night. She
was not only brutally stabbed a number
of times; her huts were burnt into
cinders. Her grandchildren she was sleeping with that night were traumatized
and had to run away
for safety leaving the old woman to die. That as it may,
the court is to determine whether or not the accused is connected with
the death
of the deceased. It is common ground that the court is to rely on the evidence
of a single witness that of PW1 who was
13 years old at the time of the
incident. PW1 told the court that she saw that it was the accused who was
peeping through the window
but she could only see his upper body and that his
head was covered in a white headgear. She said under cross-examination that she
saw that it was the accused after the deceased had said she could see that it
was a Mavuso boy. She further told the court that
she was able to observe the
accused for 30 minutes peeping through the window.
In our law young
children are competent witnesses if the judge considers that they are old enough
to know what it means to tell the
truth, but it has frequently been emphasized
that their evidence should be scrutinized with great care. The danger is not
only that
children are highly imaginative but also that their story may be the
product of suggestion by others. In the case in casu we are
dealing with the evidence of a 13-year-old girl. We are also dealing with the
evidence of identification. It is trite law
that it is generally recognized
that evidence of identification based upon a witness’s recollection of a
person’s appearance
is dangerously unreliable witness approached with due
caution. The Appellate Division in S vs Mthetwa 1972 (3) S.A. 266
laid down:
“Because of the failability of human observation,
evidence of identification is approached by the courts with caution. It is
not
enough for the identification witness to be honest; 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
face, voice, built, 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 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” (per
Holmes JA).
This is the legal guideline the
court has to follow in testing the evidence of PW1. It appears to me as I have
earlier mentioned
that PW1 was able to say it was the accused after this fact
was suggested to her by the deceased utterances. She says so in
cross-examination.
To me it appears as if there was an element of
suggestibility which cannot be washed away. She further tells the court that
she
observed the accused for 30 minutes peeping through the window. To me this
is not only fanciful but suggest that PW1’s orientation
as to time is
highly questionable. She told the court that she only saw the upper side of the
accused body and the head was covered
in a white headgear. She further tells
the court that she made a statement to the police that very night. However,
what is curious
in this case is that the accused is confronted by the police 14
days after the accident. Does this mean that the police officers
investigating
this case did not believe PW1, as one would expect them to follow the scent
while it was still fresh (so to speak)?
For the reasons I have advanced above I
agree with the submissions made by Mr. Mamba when he was applying for accused
discharge
in terms of Section 174 (4) of The Criminal Procedure and Evidence Act
(as amended) and at the close of the defence case that it
would be highly
dangerous to convict on the single evidence of this witness which is peppered
with a number of improbabilities.
In the premise I give the accused the
benefit of the doubt and he is found not guilty on both counts and acquitted
forthwith.
S.B. MAPHALALA
JUDGE
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