S v T

• Jurisdiction: South Africa
• Citation: 2005 (2) SACR 318 (E)

S v T
2005 (2) SACR 318 (E)

2005 (2) SACR p318

Citation	2005 (2) SACR 318 (E)
Case No	CA&R 163/04
Court	Eastern Cape Division
Judge	Mhlantla J and Plasket J
Heard	September 1, 2004
Judgment	October 15, 2004
Counsel	H Obermeyer for the State.; E Theron for the appellant.

Flynote : Sleutelwoorde D

Evidence — Of identification — Identification parade — Shortcomings in identification E parade — Identification parade conducted by street committee — Not sufficient for State to show that identifying evidence emanated from identification parade — Must also lead evidence giving identifying evidence stamp of reliability — Power to hold identification parades vested specifically in police officials — Informal parade organised by street committee F in numerous respects failing to comply with rules of practice developed as guidelines — Identification parade described as 'extra- legal' — Not for street committee to comply with rules for identification parade but rather to provide relevant information to police so that proper investigation could be conducted — Conviction and sentence set aside. G

Evidence — Of identification — Dock identification — No weight to be placed on dock identifications when following upon irregular identifications at identification parade held by street committee — No-one with physical characteristics resembling those of appellant present in court when dock identifications made — Conviction and sentence set aside. H

Headnote : Kopnota

The appellant had been convicted and sentenced in a regional court on two counts of indecent assault. The appellant had been identified by the complainant, a nine-year-old boy, and the complainant's younger friend, at an informal identification parade conducted by members of a street committee. He had also been identified in court by the complainant and the complainant's friend. I

2005 (2) SACR p319

Held, that, because of the ever-present possibility of honest mistakes being made, evidence of identification was to be A treated with caution. It was not sufficient for the State to show that identifying evidence emanated from an identification parade; it must also lead evidence that would give the identifying evidence the stamp of reliability. (Paragraphs [11] and [14] at 322a and 323c.)

Held, further, that the power to hold identification parades was specifically vested in police officials and in nobody else. B (Paragraph [15] at 323f.)

Held, further, that, the Court having extensively reviewed the rules of practice that have been developed as guidelines for the holding of identification parades, the identification parade organised by the street committee was 'extra-legal', and that it had failed in numerous respects to conform to these rules of practice. (Paragraphs [30] - [34] at 327c - 328e.) C

Held, further, that no reliance could be placed on the identifications made at the parade conducted by the street committee; and that no weight could be placed on the dock identifications since these followed upon the irregular identifications at the street committee's parade, and since no-one with physical characteristics resembling those of the appellant was present in court when the dock identifications were made. (Paragraph [35] at 328h - i.) D

Held, further, that it was not for street committees to try to comply with the rules for identification parades, but rather to provide relevant information to the police so that a proper investigation could be conducted. In casu, there was no suggestion that the police had not done their job properly, and no justification for the street committee's usurpation of the police's investigative functions; indeed, the street committee's actions had fatally compromised the investigation. (Paragraphs [39] - [40] at E 330c - f.)

Held, accordingly, that the conviction and sentence were set aside. (Paragraph [41] at 330g.)

Cases cited

R v Kola 1949 (1) PH H100 (A): referred to F

R v Masemang 1950 (2) SA 488 (A): referred to

R v Mlambo 1957 (4) SA 727 (A): referred to

R v Nara Sammy 1956 (4) SA 629 (T): referred to

R v Shekelele and Another 1953 (1) SA 636 (T): referred to

S v Daba 1996 (1) SACR 243 (E): referred to G

S v Maradu 1994 (2) SACR 410 (W): referred to

S v Matwa 2002 (2) SACR 350 (E): referred to

S v Mbuli 2003 (1) SACR 97 (SCA): referred to

S v Mlati 1984 (4) SA 629 (A): referred to

S v Mohlathe 2000 (2) SACR 530 (SCA): referred to

S v Monyane and Others 2001 (1) SACR 115 (T): referred to H

S v Mthetwa 1972 (3) SA 766 (A): dictum at 768A - C applied

S v Phallo and Others 1999 (2) SACR 558 (SCA): referred to

S v Zuma and Others 1995 (1) SACR 568 (CC) (1995 (2) SA 642; 1995 (4) BCLR 401): referred to.

S v Bailey (CPD case No 215/2000, 31 August 2000): referred to. I

Foreign cases

Woolmington v Director of Public Prosecutions [1935] AC 462 (HL) ([1935] All ER Rep 1): referred to. J

2005 (2) SACR p320

Legislation cited

Statutes A

The Criminal Procedure Act 51 of 1977, s 37(1)(b): see Juta's Statutes of South Africa 2004/5 vol 1 at 1-328.

Case Information

Appeal against a conviction and sentence by a regional magistrate's court. The facts appear from the reasons for judgment.

H Obermeyer for the State. B

E Theron for the appellant.

Cur adv vult.

Postea (October 15). C

Judgment

Plasket J:

A Introduction

[1] The appellant was convicted in the regional court, Port Elizabeth, of two counts of indecent assault. He was sentenced to ten years' imprisonment on the first count and five years' imprisonment D on the second count. Two years of the latter sentence was ordered to run concurrently with the sentence on count one. He appeals against conviction and sentence.

[2] The central issue in this matter is the identification of the appellant as the person who indecently assaulted the complainant, a E nine-year-old boy. This is central because the identification of the appellant was made by the complainant and his younger friend at what may best be described as an informal identification parade organised and conducted by members of the street committee from the area in which the offences occurred. I shall deal with this issue in more detail below, as well as with the relationship between the police, the F communities that the police are required to serve and the courts which are required to determine whether the guilt of alleged offenders have been established beyond reasonable doubt.

B The facts G

[3] It is not in dispute that the complainant was indecently assaulted as alleged in count 1: the medical evidence established that he had suffered injuries to his anus consistent with having been penetrated as alleged in count 1. In addition, the complainant testified that his assailant had, after sodomising him, ordered him to suck his penis. This was the basis for the charge in count 2. H

[4] On the afternoon of 21 February 1999, the mother of the complainant sent him and his friend on an errand. When they were returning, a man joined them, walked with them for a while and then suggested that they go to a shop for a cold drink. Soon thereafter, the man chased the complainant's friend away, and proceeded to force the I complainant to accompany him. The complainant's friend went to the complainant's home where he reported what had happened to the complainant's mother. She testified, strangely, that, rather than dropping everything and proceeding to search for her son, she decided to finish doing her J

2005 (2) SACR p321

Plasket J

ironing, even though she appears to have believed the report of the abduction of her son. A

[5] In the meantime, the complainant's assailant had taken him into some bushes, had forced him to lie on his stomach and had proceeded to sodomise him. Then the assailant had forced the complainant to suck his penis before ordering him to leave. The complainant made his way to a road where he was assisted by a motorist B who gave him a lift home. When he arrived home, his mother was, she testified, about to go and look for him, having finished her ironing. A while after arriving home in a shocked state, he told his aunt what had happened to him. Both the complainant and his friend gave descriptions of the assailant. The noteworthy features that both described were that C he had a defective eye and scars or marks on his face. (The complainant also stated that he had a scar on his stomach. This was shown to be erroneous.)

[6] It would appear that it was only two days later - on 23 February 1999 - that the complainant's mother took him to a doctor to be examined. She had, D however, reported the matter to members of the street committee in the area in which the assaults on her son had taken place.

[7] The matter was reported to the police on the same day: the complainant's mother testified that when the doctor had examined the E complainant, he had advised her to go to the police to lay a charge.

[8] The complainant's mother and her sister began to make enquiries about the identity of the complainant's assailant in the area in which the assaults on the complainant had occurred. They were advised to involve the street committees from their area and that area because 'ander mense kan nie by ander mense se plek oorgaan nie'. F

[9] A street committee member, Ms Nompumolelo Kakasi, testified that when the matter had been reported to her and her committee, the appellant was identified by them as the person who met the description that the complainant's mother had given. A group of four men had gone G to speak to him and had 'invited' him to a street committee meeting to deal with the matter. The appellant had come to the meeting. Another person with a false eye and a person who was squint were also invited and the three of them were made to sit among the male members of the street committee. Then...