Mugove Lunga v The State

### Preamble
1
HH 433-13
CA 43/12
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MUGOVE LUNGA

versus

THE STATE

HIGH COURT OF ZIMBABWE

HUNGWE & MAVANGIRA JJ

HARARE, 20 November 2012 & 20 November 2013

CRIMINAL APPEAL IN CHAMBERS IN TERMS OF SECTION 35 OF THE HIGH COURT ACT, [CHAPTER 7:06]

HUNGWE J:	The appellant, despite his protestations of innocence, was convicted of plain robbery as defined in s 126 of the Criminal Law (Codification and Reform) Act, [Cap 9:23]. He was sentenced to 5 years imprisonment with one year suspended on appropriate conditions. He still protests his innocence and seeks this court’s intervention over his grievance of improper conviction and sentence. This is a classical case in which the dangers of relying on the uncorroborated evidence of a single witness are well demonstrated. I will demonstrate.

The State, to prove the case of robbery against the appellant, called the evidence of a single witness, the complainant. It is important to note that the robbery occurred around 03h00. Complainant was coming from church. He was accosted by a group of people who demanded money from him. He initially resisted but was overpowered by this group who then robbed him of his laptop, three mobile phone handsets, cash and a bag with certificates. They ran away. Complainant gave chase pleading with the culprits to release his sim cards. They obliged. He picked these up and continued to follow his assailants up. He then met the appellant who he claims was coming from the City Sports Bar. He shouted for help and the appellant took to his heels. He gave chase and apprehended the appellant with the help of other members of the public. Nothing was recovered from the appellant upon his arrest. The appellant on the other hand told the court that on the day in question he was on night duty. He ran out of cigarettes and decided to walk downtown to a night club called Chez Ntemba in Kaguvi Street from his point of duty near the main railway station in Kenneth Kaunda Way. As he was about to get to Chez Ntemba. He was confronted by the complainant who threatened to die with him. As complainant lurched forward to grab him, fearful for his safety, he ran towards Bakers Inn, a bread shop where he sought security in numbers. Complainant shouted that appellant was a thief. When complainant came to where he was the appellant asked what this was all about. Complainant then demanded his property back. As they quarrelled, a police van arrived and he was arrested immediately on these allegations. He denied that he had stolen anything from the complainant. He called the evidence of his supervisor, Rangarirai Muteyo of Agrifoods. This witness confirmed the appellant’s version that on the day of his arrest he was deployed at the Kenneth Kaunda Avenue depot of Agrifoods on night duty.

The proof of appellant’s guilt beyond a reasonable doubt depended on whether he was correctly identified by the complainant. In my view, the evidence of identification was insufficient to discharge the onus required in cases where the identification of the assailant is in issue. Besides the evidence being given by the victim who made such observations in a fluid situation, there is no independent corroborative evidence supporting the identity of the appellant as the actual assailant. The superior courts have frequently cautioned trial courts to treat evidence of identification when the opportunity to observe was limited by such factors as the mobility of the situation, the lack of previous knowledge of the identity of the person so identified particularly cautiously. In S v Dhliwayo and Another 1985(2) ZLR 101 DUMBUTSHENA CJ cited with approval the following passage from S v Mthetwa 1972 (3) SA 766 (AD) at 768A where HOLMES JA said:

“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 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 & Ors 1962 (1) SA 307 (AD) at p 310; S v Mehlape 1963 (2) SA 29 (AD).”

Similarly in S v Ndhlovu & Ors 1985 (2) ZLR 261 at 263G–264E, GUBBAY CJ said:

“Confidence and sincerity are not enough. The possibility of a mistake occurring in the identification, especially where the witness is not known to the person previously, demands that the greatest circumspection be employed."

(See also: S v Musakwa 1995 (1) ZLR 1 (SC); S v Mutandi 1996 (1) ZLR 127 (HC);  S v Mutsinziri 1997 (2) ZLR 6 (HC).

The learned trial magistrate did not advert to the apparent danger in relying on the uncorroborated evidence of a single witness on this vital aspect of the case electing instead to place his faith in the honesty and sincerity by the complainant. As WILLIAMSON JA cautioned in S v Mehlape 1963 (2) SA 29 (A) at 32F-G:

"The often patent honesty, sincerity and conviction of an identifying witness remains, however, ever a snare to the judicial officer who does not constantly remind himself of the necessity of dissipating any danger of error in such evidence."

The magistrate dealt with the issue of identification by relying on the finding that the robbery occurred in a well-lit area and that the appellant wore a distinct T-shirt emblazoned with the inscription “Replay” so prominently that he stood out. The court went on to rely on the description of appellant’s stature as another factor which strengthened the accuracy of complainant’s observation and therefore excluding any danger of erroneous identification. These remarks by the learned trial magistrate overlook the fact that, as previously stated, honesty and sincerity are not enough. Complainant could have been seriously mistaken when he believed that the person coming towards him was one of his assailants. Since he had made this error honestly, the complainant believed that this person was his assailant.

First there was no-one to corroborate the accuracy of that observation immediately. The trial court failed to warn itself of the dangers of relying on the evidence of a single witness. In S v Corbett 1990 (1) ZLR 205 DUMBUTSHENA CJ cited with approval the passage in S v Nhemachena S-89-86 (not reported) at p 4.

It was there said:

"The court must, when confronted by a single witness with an interest to serve, not only apply the cautionary rule but also look for corroboration. In R v Mokoena 1932 OPD 79 at 80 DE VILLIERS JP said this of the evidence of a single witness and of a witness with an interest:

'Now 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 but in my opinion that section should only be relied on where the evidence of the single witness is clear and satisfactory in every material respect. Thus the section ought not to be   invoked where, for instance, the witness has an interest or bias adverse to the accused ...'

The cautionary rule is not of course a rule of law but the court should, in assessing the evidence of a single witness, be cautious and should 'weigh up the good qualities of such a witness against all the factors which may diminish the credibility of the witness', per RUMPFF JA in S v Webber 1971 (3) SA 754 (AD) at 758H (official translation)."

Second, there was so much room for error in appellant’s observation since the possibility of someone of similar stature wearing a similar shirt who could have been making his way towards the scene at that time was not safely excluded. There is no indication as to how much time passed between the robbery incident occurring and the subsequent identification by the single witness of the appellant. The appellant was a single witness who had an interest to serve in the form of seeking punishment for the perceived robber. Arising from his relationship with the appellant, he certainly could not be unbiased in his evidence. As pointed out, there was nothing in the evidence on record to corroborate complainant’s version regarding identification.  Appellant was consistent in his explanation from the outset as to his presence at the scene. His version that he was on duty was corroborated by his superior. The danger of false incrimination was not excluded especially if it is considered that appellant’s explanation was reasonably possibly true. In the premises the conviction remained unsafe and the court was not entitled to convict. There was no proof beyond a reasonable doubt that the complainant had identified the appellant as one of the people who attacked him when he was robbed.

In the result the appeal against conviction is allowed. The conviction is quashed and the sentence is set side

MAVANGIRA J agrees……………….

Coghlan welsh & Guest, appellant’s legal practitioners

Attorney-General’s Office, respondent’s legal practitioners