COUNSEL FOR APPELLANT : Adv. P.I. Shapiro COUNSEL FOR RESPONDENTS : Adv. A. Mogoeng

IN THE HIGH COURT OF SOUTH AFRICA (BOPHUTHATSWANA PROVINCIAL DIVISION) CA 204/04 BONGANI DUBE LODRICK ALLEN MKHIZE NTOBEKO NDLOVU First Appellant Second Appellant Third Appellant and THE STATE Respondent CRIMINAL APPEAL MMABATHO MOGOENG JP, GURA J DATE OF HEARING : 30 June 2006 DATE OF JUDGMENT : 26 October 2006 COUNSEL FOR APPELLANT : Adv. P.I. Shapiro COUNSEL FOR RESPONDENTS : Adv. A. Mogoeng JUDGMENT GURA J:

2 Introduction 1. The Appellants were convicted of robbery with aggravating circumstances and sentenced to undergo sixteen years imprisonment each by a regional court. The present appeal is directed against the conviction only. Factual Background 2. This case is a sequel to the events of 26 March 2002 where an FNB bank was robbed of R119 000 00 by four men at Koster. Amos Gwile (Gwile) testified as set out below. For the sake of convenience, the appellants will be referred to as in the court below. It was immediately after 09h00 and shortly after the bank had opened and the customers were standing in a queue when trouble started. Thomas Molefe (Molefe) stood just in front of Gwile in the queue. Suddenly Accused 2 and 3 entered the bank. Both of them then jumped the queue and they took a place between Molefe and Gwile. Gwile protested and told Molefe to refer Accused 2 and 3 to the back of the queue. Accused 2 then complied and stood behind Gwile. However, Accused 3, still between Molefe and Gwile, produced a firearm, pointed it at Gwile and warned him this is a bank robbery, lie on the ground. 3. The customers then lay on their stomachs. Accused 2 produced a crowbar from a green plastic bag and moved to the inner door of the bank. He tried to force that door open, but he failed. He then ran to another inner door and forced it open with the crowbar. It was a staff only door. Accused 2 and the two other men who had entered the

3 bank after Accused 2 and 3 had entered, entered through that door whilst Accused 3 was watching the customers. Immediately after he had opened that door, Accused 2 produced a firearm. The lady at the front row of the queue refused to lie down as a result of which Accused 3 hit her on the forehead with a gun butt. As he was lying on the ground, Gwile looked stealthily at the robbers, who were behind the counter at that stage. 4. They pointed firearms at a white man behind the counter and he raised his hands above his head. At that stage Accused 2 had placed the plastic bag under his armpit. He took it out and shook it and opened it. He then instructed the ladies to put money into the plastic bag. After it was filled with money three of the robbers got out through that very same door through which they had entered. As they emerged, Accused 3 insisted that they should keep their heads to the floor. Later they were awoken by the white man who was earlier pointed with firearms behind the counter. The duration of the robbery could have been ten minutes. As Accused 3 was keeping watch over the customers throughout the robbery, he stood one metre from Gwile. 5. Gwile described Accused 2 and Accused 3 as follows: Accused 2 had a mark (cut) next to his mouth. He is unsure on which side. Accused 2 was clad in a black lumber jacket. Gwile identified Accused 2 on a photograph which was handed over to him in the witness box. In that particular photograph, which was taken by the bank camera, he was clad in a black lumber jacket. When he was cross examined by Accused 2, he denied that he (No. 2) had a brimless cap ( mus ) on. However, when the Court questioned him, he stated that Accused 2 had a brimless cap on. Accused 3 was clad in a T shirt which had

4 stripes as well as a denim pair of trousers. Accused 3 had nothing on his head. He identified Accused 3 who was standing next to Accused 2 on the bank camera photograph. At an identification parade, he identified Accused 3 first then also Accused 2. 6. Thomas Molefe testified that he was also a client at this bank on the day in question. He was standing in the queue with his colleague, Gwile, and some other people when Accused 2 came to stand in front of him. When he advised him to join the queue at the back, he produced a firearm and pointed it at a white man who was on his way to the tellers. He was also ordered to lie down on his stomach. Accused 2 then broke open a door leading to the office with a crowbar. Accused 3 entered the bank at this stage. Thereafter, Accused 1 and another unknown man entered the bank from outside. These two, together with Accused 2, then entered the tellers area through the broken door. Before then, however, Accused 2 and 3 ordered all the clients to lie down on their bellies. 7. Accused 3 remained there watching over the customers. Behind the counter, Accused 1 and the unknown man drove the bank manager to the strongroom whilst pointing a gun to his back. They later pointed it to his head. Accused 2 was with this trio. In the meantime, Accused 3 hit a lady with the butt of the firearm and took her mobile phone. Subsequently, Molefe saw Accused 1 and the unknown man running out of the bank with plastic bags containing money. During the robbery this witness had his arms under his head and his chin rested on his hands. He estimates that this incident lasted for about ten minutes. Before they were ordered to lie down he had seen only Accused 2. As the robbery was in progress, Accused 3 stood at a distance of about

5 nine to ten metres away from him. When he first saw Accused 1, he was about four metres from him. Accused 2 has a mark on the left side of his mouth towards the chin. Accused 3 has a bald head. 8. On 16 May 2002 he attended an identification parade at the police station. Before they went to the identification room, they were in a secret room, overseen by someone. A black lady escorted them from the waiting room to the parade room, but at the door of the parade room, she handed them over to a white man who opened the door for them. The lady who escorted them to the parade room is the same policewoman who was with them at the waiting room. Inspector Motwagadi is the one who conveyed them from their place of residence to the police station on that day. No one told them who to identify. He personally pointed out Accused 2 and 3. He did not see Accused 1 on that day. 9. Under cross examination Molefe conceded that he did not see Accused 1 s face in the bank. He stated further that he did not see the second mark on Accused 2 s face. He testified that Accused 2 had a brimless cap on as well as a windbreaker under which he had hidden the crowbar. Accused 2 is the only person who had a brimless cap on the head. Apart from the crowbar, Accused 2 had a firearm tucked in his waist in his trousers. When he went out of the bank, Accused 2 also had black plastic bags. The bank camera photographs were handed over to this witness and he stated that the pictures were blurred. He could not identify anyone who appeared on them. In relation to Accused 3, he testified that he had a striped T shirt on similar to the T shirt he was wearing at the trial. The denim trousers which Accused 3 had on at the scene differed from the one which he

6 wore at his trial because the latter had been discoloured. He also had canvas shoes on.

7 10. James Khumalo (Khumalo) testified that he is a Public Relations Officer of the bank in question. On the day of this incident he was at the inquiries desk, behind the counter busy serving a customer. There were four people who queued in front of him awaiting his service. Accused 2 and 3 entered the bank and Accused 2 went to stand in front of the people who had been there. The customers protested and wanted to hear from him why he jumped the queue. For a while he lost sight of Accused 2 but suddenly he resurfaced. In front of Khumalo, there was a glass panel which has a round hole. Accused 2 tried to put his head through this glass. When he realised that his head was too big for the hole, he went to the staff door which he opened with a crowbar. 11. Accused 3 was with the customers there and there was a misunderstanding between them. He then produced a firearm and pointed it at Gwile. Khumalo ran away for dear life and hid himself in the toilet. From his sanctuary, he ran to the staff room in order to activate an alarm. Whilst in the latter room, he could not see what was happening near the tellers counter. Accused 2 had a mark on his head and he wore a greenish lumber jacket. He further had the beard which is the same as that of the witness (Khumalo). Accused 3, on the other hand, had a denim trousers which was discoloured. He also had a striped T shirt and canvas shoes on. 12. At the identification parade, Khumalo first identified a wrong person whom he mistook for Accused 2. Incidentally, Accused 2 stood just next to that man. He informed the officer in charge that he had made a mistake and he then identified Accused 2 and 3. He testified further

8 that the pictures on the bank camera photographs were blurred for him to see and identify any of the accused on them. He stated that he only saw one mark and not two on Accused 2 s face. 13. Andrew Titus Nawe (Nawe) is a cleaner at this particular bank. He testified that he went out of the bank shortly after opening. He found four unknown men in front of the bank. One of them grabbed him by his head, pointed him with a firearm and took R500 00 cash out of his pocket. He ordered him to lie down but he refused. He then drove him into the bank with a firearm pointed at his back. They found the people in the bank already lying down at that stage. He (Nawe) bowed and remained on his knees. Two men were busy taking money from the tellers. Thereafter all of them jumped over the customers and went out. There were four robbers in all. The person who robbed him was keeping an eye initially outside and then inside the bank. That robber is not in court but he pointed him out at the parade 14. Mark Kromhout (Kromhout) is the manager of this bank. His evidence is to the effect that around 09h15 on the day in question, he heard noise as a result of which he went out of his office. He saw two black males who were running towards the staff only door. They screamed at him to open the door. He did not comply with the instruction but ran towards the tellers. One of them had a firearm whilst the other had a crowbar. When he came to the tellers, one of the attackers pointed the firearm at him and urged him to open the door. He told them that since he was outside the tellers area, he could not open the door as it is opened from inside. While he was screaming at the tellers to open the door, one of the robbers broke it open with a crowbar. He was ordered to accompany them to the tellers. Thereafter the robbers took plastic

9 bags and started to put money into those bags. A third man entered, he pushed a plastic bag under the counter and demanded that it be filled with money from the strongroom. After Kromhout had filled this bag with bank notes, he pushed it under the counter to that third robber who was not armed. The three robbers then ran out of the bank with plastic bags containing money. The empty plastic bags were brought to the bank by the robbers. 15. Five police officers testified about the identification parade. Inspector Ramogae (Ramogae) was in charge of the parade. His evidence is that he recorded all those proceedings in writing. He gave his evidence whilst perusing the parade form. Before the parade started, he made the following arrangements: An inspector from Phokeng had to guard the witnesses before they could enter the parade room. He did not say which inspector. Inspector Ruth Matlhoko (Matlhoko) had to escort them from the waiting room to the parade. Inspector Christina Lentoro (Lentoro) had to escort them from the parade room to office No. 232. At room 232, they were to be overseen by Inspector Bogatsu (Bogatsu). 16. The first parade witness was Molefe who pointed out Accused 2 and 3. Thereafter, Accused 2 changed the tracksuit with a person who was No. 8 on the parade. Accused 3 took off his jersey. The two Accused did not, however, change their positions. The second parade witness was Nawe who pointed out Accused 2 who at that time was at position No. 7. Gwile was the next witness at the parade. He identified Accused 2 and 3. The last witness was Khumalo who pointed out a wrong person, Thomas Sithole, at position No. 8. He then informed the person in charge that he had made a mistake. Thereafter he

10 pointed out Accused 2 and 3. 17. During cross examination Ramogae testified as follows: He does not know who fetched the parade witnesses from their places of residence that morning but he received them from the investigating officer. He initially denied that Accused 3 changed a jacket or that one of the witnesses then pointed out the person who had Accused 3 s jacket on. He insisted that if that did happen, then it would have been reflected on his parade form. The judicial officer then interposed and drew his attention to photographs No. 1 to 4. He then confirmed that indeed, as per these photographs, Khumalo first identified a wrong person who happened to be wearing Accused 3 s jacket at that time. 18. Caroline Black (Black) testified that she received the identifying witnesses from Ramogae and she watched over them in the waiting room before they went to the parade room. Matlhoko is the one who led them from the waiting room to the parade room. Matlhoko confirmed under oath that she led the witnesses to the parade room. She handed them over to Inspector Bogatsu. Inspector Lentoro stood at the door of the parade room and she (Lentoro) led them into the parade room. Lentoro also handed the witnesses back to Matlhoko after the parade. Matlhoko then took them to Bogatsu. Lentoro s evidence is that she received these witnesses from Matlhoko. She then led them in and out of the parade room and finally handed them to Bogatsu. The last witness in this part of the case was Bogatsu. She says that she oversaw the witnesses before they went to the parade room. However, these witnesses were handed to her by Matlhoko. Matlhoko stood at the door of the parade room and after the witnesses had identified suspects, they were again brought to Bogatsu by

11 Matlhoko. During the course of her evidence in chief, Bogatsu changed her original version and testified that she did not watch over the witnesses before they went to the parade room. It is Black who supervised them in the waiting room. They were escorted from Black by Matlhoko and she handed them over to Lentoro. The latter then brought them to Bogatsu so that she could keep an eye on them. Bogatsu attributed her earlier version of the evidence to a misunderstanding of the question put to her by the State Prosecutor. 19. Dirk van Rensburg s (Van Rensburg) evidence is to the effect that during the morning of that day, he saw a venture vehicle speeding out of Koster towards the direction of Ventersdorp. It was grey in colour, with pink, blue and green stripes on the sides. There were five people in it and its registration letters were CMR GP. Inspectors Bester and Rautenburg testified, that they found a grey venture station wagon next to the road between Koster and Ventersdorp later on the same day. Its driver was Accused 1. When the two Inspectors approached this vehicle, which was about ten kilometres away from Ventersdorp, Accused 1 was standing next to it but on the side of the veld. When he saw the police, he threw a vehicle registration plate into the veld. This plate read as follows: CNR 476 GP. He then rushed to the car and occupied the driver s seat. Inside the vehicle, behind the passenger s seat, there was another car registration plate, NZR 304 GP. The registration number which was attached at the back and front of the vehicle (outside) was NZR 304 GP. 20. Thembinkosi Siziba testified that he is the owner of the motor vehicle in question, a venture with Registration No. MZR 304 GP. On 24 March 2002 he lent the car to Accused 1 and he was supposed to bring it

12 back on 26 March 2006. All Accused 1 had to do was to convey people from Sandton to Hillbrow. The car had no roof carrier but instead it had a spoiler on its roof. A spoiler resembles a roof rack. A photograph was handed to this witness which depicts the alleged vehicle and he confirmed that it was his. In that photograph, its colours are grey with pink, blue and green on the sides. 21. Accused 1 s evidence is to the effect that he was driving this vehicle in Krugersdorp when suddenly, at a stop sign, three men, who were armed with firearms, hijacked it. One of them sat next to him at the front, whilst two occupied a seat just behind the driver. He was instructed to drive on and they told him which road he had to use. He complied. When they reached Koster, he was ordered to stop. 22. The two men at the back alighted and went away on foot. He remained with the one on the front seat. When they came back, these men were more than two. One of them occupied the driver s seat. Accused 1 was shifted to the middle of the front seat between the driver and his original front seat passenger. They drove away and at some point the vehicle stopped whereupon he was searched. It was next to the road but in the veld. His personal belongings, which were in the pockets, including a driver s license, were taken. The robbers then got into a Volkswagen car which pulled off; leaving him lying there. They went away with the keys of the venture station wagon. He started to hitch hike in order to go and report this incident to the police. Suddenly, the police arrived and they pointed firearms at him. He then told the police everything which had happened to him. Accused 1 denied that he ever threw a number plate away. Under crossexamination he informed the court that at Koster, when he remained

13 with the passenger next to him in that vehicle, he could not run away because throughout he was pointed with a firearm until the others came back. When these other people joined them again, they came running and they were six in number. That particular place at Koster where they stopped is a BP garage which is back opposite the First National Bank. Accused 2 and 3 are not part of the seven people whom he saw in his vehicle that day. He never saw anyone replacing his venture registration numbers. 23. Accused 2 testified that the police came to his place on 10 May 2002 in the evening. They introduced themselves as members of the police force. They told him that he was a suspect in a Koster case and they searched the house. He was informed that there were photographs which were taken at the Koster and that one of the people on the photographs resembles him. Since it was late at night, they promised to show him the photographs at the police station the subsequent day. The police then took him along to Phokeng police station and showed the photographs to him on the subsequent day. They were satisfied that he was not amongst the robbers. 24. In his evidence in chief, Accused 3 said the following: Earlier on 10 May 2002, that is, the day of his arrest, a person came to his house around 09h00. This particular person identified himself as an employee of the MTN service provider. He alleged that he had spoken to him through the cellular phone the previous week and that particular morning around 07h00. He informed Accused 3 that he had won a price from MTN but said that the price was only limited to MTN service provider clients. He looked at Accused 3 s cellular phone set and discovered that he was not an MTN client. Accused 3 also confirmed to him that he was a VODACOM client. He then informed him that since he was not an MTN client, he was therefore not legible for the

14 price. He then asked Accused 3 if there was an MTN client there whereupon Accused 3 told him that his friend, Accused 2, with whom he stayed, was. This stranger then left. Later that day, Accused 3 asked Accused 2 if he did not receive a call from a person who is attached to MTN. Accused 2 confirmed that he did. Later, at 03h00 (I assume that this refers to 15h00), that stranger made his appearance again at Accused 3 s place. It was at that stage that Accused 3 confirmed to him that the person he (stranger) had spoken to on the cellular phone was Accused 2. He then promised to deliver the price to Accused 2 the subsequent day. This never happened because at 24h00 on the same day the stranger came again, this time he was with other people. He produced his appointment card (certificate) and introduced himself to Accused 3 as a police officer. They told him that they would search the house and they wanted the person whom they had telephoned the previous week. Since Accused 2 was not at home at that time, they asked Accused 3 to lead them to where he was. When they arrived there and found Accused 2, they told him that they were investigating a Koster robbery case. They were then taken to Phokeng Police Station for the purpose of having a look at the bank photographs. The photographs were indeed shown to them. This concluded the evidence and I will now set out the grounds of appeal. Grounds of appeal 25. The following are the main grounds of appeal in the present case: 25.1 The magistrate was sarcastic and he humiliated and bullied Accused 2 and 3 who were undefended at that time; 25.2 The magistrate failed to explain their rights to cross examination;

15 25.3 The magistrate failed to assist them when they testified; 25.4 The arrest of Accused 2 and 3 was unlawful; 25.5 The description of the getaway vehicle, as seen at Koster, differs from the description of the vehicle which was found near Ventersdorp; 25.6 The identification parade was flawed; and 25.7 The identifying witnesses did not have sufficient opportunity to identify the robbers and the magistrate failed to deal with material contradictions in his judgment. 26. The Constitution of the Republic of South Africa, Act 108 of 1996 guarantees proper respect and protection of the right of all persons to their dignity (section 10), and the right to a fair trial to every accused person, whether defended or not defended (section 35(3)). It is therefore incumbent on all judicial officers and all court officials to control their temper and treat all witnesses as well as accused persons with respect and courtesy (Tshona and Others v Regional Magistrate, Uitenhage and Another 2001 (8) BCLR 860 (E)). Any criminal trial, must be characterised by the notions of fundamental fairness and justice. See also S v Mseleku and Others 2006 2 SACR 237 (NPD). Sarcastic, rude, humiliating and bullying remarks

16 27. I now proceed to deal with some extracts from the record which contain the alleged sarcastic and rude remarks, the harassment, humiliation or bullying by the judicial officer. Accused 2 crossexamined Molefe and he said: Ek stem nie saam nie met u getuienis. Hof: Ag meneer wees spesifiek, waarmee stem u nie saam nie? Dat hy in die Eerste Nasionale Bank was, dat daar ń rooftog plaasgevind het. Waarmee stem u nie saam nie? The magistrate is right. The accused was not specific. More importantly, the magistrate guided the accused on the issues that he could be specific about. Accused 3 questioned Nawe as follows: Ja, ek wil net weet sê u u het my gesien of u verneem dat ek daar gewees het of u het iemand gesien was soos my lyk daar in die bank? Hof: Nee meneer, wat is nou eintlik die stelling? Besk. 3: Ek wil net weet lyk ek soos iemand in die bank of het u my gesien? The magistrate interposed here clearly to clarify this question and he did achieve that result. When Accused 2 cross examined Khumalo, the court interposed in an attempt to clarify the question to the witness. Accused 2 then responded as follows:

17 Nee, wat ek impliseer is behalwe die klere wat ek aangehad het die kleur baadjie nie met spesifiek ń sekere plek nie maar oor waar u my sou gesien het hoe het u my uitgeken? (Sic) Hof: Nee, ek weet nie, meneer dit praat van uitken nou kon dit beteken dat hy u daarna gesien het en dan se hy dit is u omdat dit en dit en dit. Dit is waaroor die woord uitken gaan. Daarom verstaan ek nou nie wat u probeer vra nie. I do not understand the question as it stands. It is the duty of the judicial officer to protect witnesses against ambiguous questions, and to guide undefended accused to ask questions that are clear and relevant to the issues. Accused 2 questioned Khumalo about the pictures on the bank photographs. Khumalo had already stated, more than once, that the pictures were blurred, and the exchange between the accused and the court is set out below. Sien u mense wat die roof gepleeg het op daardie foto? Hof: Meneer, hy sê mos nou die fotos is dof hy kan nie sê wie is wie op die fotos nie. Accused 2 then made a follow up on the previous question: Maar kan u uitmaak dat daardie foto wat daar verskyn mense sê foto is? Khumalo: Die mense sê, ek verstaan nie die vraag nie. Besk 2: Die beeld daarvan wat op die fotos verskyn die van ń mens is, kan

18 u dit uitmaak? Hof: Ag meneer, ek dink dit is gemeensaak: Dit is nie bobbejane of beeste en goed wat op daardie foto verskyn nie. There is nothing offensive in the interaction. The word bobbejane must never be taken out of the context in which it was used. Accused 2 also questioned Molefe about the camera in the bank and the photographs taken by the surveillance camera. He continued: As die hof vir u altans aan u die fotos kan toon wat daar in die bank deur die kamera geneem is sal u in staat wees om my te kan identifiseer? Hof: Nee, net ń oomblik. Die hof het geen fotos daarvan nie. As u daarby probeer its insinueer nie meneer. Die fotos wat in die hof se besit is, is fotos van die uitkenningsparade en het niks met die bank te doen nie. The magistrate is right, these photosgraphs were not yet handed in at that stage. The court then turned to the prosecutor and asked him if the state had such photographs. The prosecutor then confirmed that he had them but all that one can see is a silhouette. But later the photographs were, through the assistance of the court, handed to the accused and the witness. Again here, I am unable to detect any bullying tactic or rudeness on the part of the magistrate. Accused 2 questioned Gwile about the alleged brimless cap on his head at the time of robbery. This witness said that he had not testified about a brimless cap.

19 Besk. 2: Se my meneer, wie van julle nou praat die waarheid, tussen u en die getuie wat voor u kom getuig het betrefende die mus op die kop. Hof: besluit. Nee, vergeet nou daarvan meneer, daaroor sal die hof Initially, Molefe denied in his evidence that Accused 2 had a brimless cap on. But at the conclusion of his evidence in chief he conceded that he had it on. So there was, accordingly, no contradiction between Gwile and Molefe in that regard. The question by Accused 2, suggesting that there was such a contradiction, could not be allowed. The interaction continued as follows: Besk. 2: Meneer, sê my soos u aan die hof voorgehou het was ek baie naby u gewees toe u my daar sien. Hoe het u daaringeslaag om een van my merke te sien en nie daarin geslaag om die ander een te sien wat ook in my gesig is nie. Hof: Nee meneer, weereens kan die hof nie die vraag op hierdie wyse toelaat nie. As u beweer dat daar ook ander merke aan u gesig is dan kan u vir hom vra of hy weet van ander merke. U kan dit miskien aan hom toon, maar nie op die wyse wat u dit nou doen nie. Accused 2 put it to the witness, in a follow up to the previous overruled question: Ek het ń ander merk op my gesig, hoekom het u dit nie gesien nie. The court ordered that the accused should show the witness the second mark before he replied. Why? This defeats the purpose of

20 such an important question. The magistrate should have ordered the witness to answer this question and not first to check whether at the time of the trial the accused had another mark. The court aquo was also criticised for the alleged improper interference with Accused 3 s cross examination of Gwile. Ja meneer, maar se my hoekom het u my daar by die uitkenningsparade uitgewys het, want daardie persoon se liggaam is kleiner as ek (as my liggaam). Hof: Wat is die vraag nou eintlik meneer. U kan nie ń dubbel door vraag stel nie. Although I think that the court should have allowed this question as it stands, since it is not complex, I don t think that the criticism levelled by Mr Shapiro against the court is justified. The cross examination continued: Goed as u nou saamstem dat daar is mense was soos ek lyk u bedoel dat die mense wat u, die persoon wat u daar op die uitkennings parade uitgewys het is die persoon wat net soos ek lyk nie noodwendig ek nie. Hof: Ag meneer, sê u nou u is nie op die uitkenningsparade nie, is die wat u nou sê? This ruling is fair. There is no insulting language here. We were referred to several other examples in the record where the magistrate is alleged to have either led witnesses unfairly, was sarcastic, bully or harassed and humiliated the accused. I have gone through all these objections one by one. I found nothing objectionable in all of them and I did not deem it necessary to overburden this

21 judgment with each and everyone of them. Failure to explain the accused s right to cross examination 28. Mr Shapiro submitted that the magistrate failed to explain the accused s rights to cross examination adequately. I disagree. This right was explained to them immediately after the first state witness had testified. It was never explained again. Counsel for the accused submitted that it should have been done with each and every witness. This submission is without substance. After this right was explained once, both accused cross examined all the witnesses effectively. Accused 2 was in fact a very good cross examiner. Even when he was overruled he did not lose his determination to ask questions. In my view, a judicial officer will explain this right more than once if he/she is of the view that it is absolutely necessary to do so for example, if there was a lengthy postponement between the last time when the right was explained and the testimony of another witness. In the present case, no such need has been shown. After accused 3 had cross examined Molefe, the court questioned this witness at length. The questions and the responses thereto had the potential of assisting accused 3. Failure to assist the accused when they testified 29. It was submitted by Mr Shapiro that the judicial officer failed to assist the accused when they gave evidence. The reasoning behind this argument was that both accused 2 and 3 said nothing about the alleged offence in their testimony. They confined their evidence to what happened at the time of their arrest, at the police station and at

22 the identification parade. In S v Rall 1982 (1) SA 828 (A) at 831G Trollip AJA stated the following: Thus, if the accused is not represented by counsel, the Judge should and ordinarily would assist him to put his defence adequately, if necessary by the Judge himself questioning prosecution witnesses as well as the accused and his witnesses. The word Judge as used here should be construed as referring to any judicial officer. What concern me are the following remarks by the magistrate in his judgment: Beskuldigde 1, 2 en 3 het wel getuienis aangebied. Beskuldigde 2 en 3 het niks gesê wat hulle beweerde deelname aanbetref nie. Slegs beskuldigde 1 het direkte getuienis aangebied wat volgens hom aan toon dat hy nie by die plegging van die misdrywe betrokke was nie. In my view, the approach of the trial court is wrong in this regard. It is the duty of the court to assist an undefended accused to refute evidence that incriminates him/her. The court itself never assisted these two accused, in their evidence in chief, to place their alibi on record. But their denial of involvement was clear throughout the trial. The above remarks by the magistrate should not be blown out of proportion. 30. I have already made an observation that on at least two occasions, the trial court disallowed or queried a question which should have been allowed and I also referred to the unfortunate remarks in its

23 judgment. The next question is whether such misdirections do constitute such a gross irregularity as would vitiate the proceedings. The proper approach which this court should adopt has been laid down in S v Gidi and Another 1984 (4) SA 537(C) at 543 D F. A test which may conveniently be applied in determining whether or not such irregularity has the effect of vitiating the proceedings at the trial is whether the guilt of the accused was proved beyond reasonable doubt despite the irregularity, by evidence which was not affected by the irregularity. Would the accused inevitably have had to be found guilty even if the unfair interrogation had not been resorted to? In short, the enquiry is whether the irregularity has resulted in a failure of justice within the meaning of s 322 (1) of the criminal Procedure Act 51 of 1977. That in turn depends upon whether the irregularity prejudiced the accused, or possibly whether or not this Court s intervention is required in the interests of public policy It is my considered opinion that the nature of the present irregularity, bearing in mind the totality of the evidence, would never affect the result of the trial either way. As I said above, the accused have placed their alibi on record and they denied any involvement in the crime although they did not do so in their evidence in chief. The legality of the arrest 31. It was submitted that the arrest of the accused was unlawful in that the police tricked them into accompanying them to Phokeng police station in order for them to assist them in the identification of the photographs of the suspects. This issue was never raised at the section 115 stage of the proceedings. All what the accused did at the trial was to place all the elements of robbery in dispute. Specifically, they denied that

24 they were ever at the scene of crime. An accused person is not obliged to disclose the basis of his/her defence. In my view, once he/she decides to exercise his/her choice to disclose the basis of his/her defence, he/she is equally obliged to disclose all his defences. This is of extreme importance for the purposes of fairness in a trial. A criminal trial is not a game where an accused person can put one card on the table and hide the rest of the cards beneath it, and later during the proceedings, hit the state with a hidden weapon. Fairness of the trial, as envisaged in section 35 of the Constitution encompasses fairness not only to the accused person but also to the state. The matter does not end there. Throughout the trial, up to the closure of the case for the state, the court, as well as the state, were not aware that the legality of the arrest was challenged. It was only when Accused 2 and 3 testified that they, for the first time, explained the circumstances of their arrest. It is equally true that the state may have applied to reopen its case in order to lead relevant evidence. In my view, this see saw type of a procedure in a trial is not desirable unless there are compelling reasons for doing so. There must be finality in every criminal trial. I now turn to deal with the alleged deception or tricks by the police on suspects. Let me give a practical example where the police lures a suspect to arrest. Two robbers part ways immediately after robbing a bank but before they share the spoils. The police arrest the first suspect (No.1) immediately, who, incidentally, has in his possession the stolen money. The police then instruct No.1 to telephone the second suspect (No.2) on his (No.1 s) cell phone and to make an appointment with him to meet at OK Shopping Centre at Bramley on a specific date and time so that he could receive his share. No. 2, on the agreed date, honours the appointment but lo and behold, he walks right into the police net. He is arrested. Is this arrest

25 unlawful or unconstitutional, especially when he is told at arrest what is the reason for his arrest? There is nothing, in my view, which smacks of illegality in this arrest. In the present case, the police must have laid their hands on Accused 2 s cellular phone numbers and they needed to find him physically. If they called him on his cellular phone and introduced themselves as police would they finally have found him? We should bear in mind that they did not know the physical address of both accused (this is the evidence of Accused 3). One of the reasons for the MTN price deception was to get the physical address of the suspects and to find them. It is worthy to note that once they had established their identity and their place of abode, the police came out of their mask and disclosed their true identity and the real reason for their visit. In my view, there is no element of illegality in the arrest of the accused. The taking of the accused to Phokeng Police Station to look at pictures is normal procedure in police investigations. The identification of the getaway car 32. Inspector Raubenbach described the car as follows: Die venture was grys van kleur en hy het daardie standaard kleur strepe langs die kant, pienk en groen en blou. This description tallies with the description by Van Rensburg, the difference being the registration letters. Apart from the fact that a registration number plate was thrown in the bush, its number being CNR 476 GP, there was yet a spare number plate behind the seat, No NZR 304 GP. But the car owner testified that his registration number was MZR 304 GP. Why was it necessary to have a spare number

26 plate inside this car because it had its number plates (NZR 304 GP) displayed on its body outside? It is clear to me that on the day in question this car had more than one registration number. It would come as no surprise therefore that at Koster it used a CMR GP identity. A car registration number is very easy to change. It is common knowledge that robbers use false registration numbers in order to disguise the true identity of the car. Why would the robbers who hijacked Accused 1 drive away from near the scene of crime with the correct number plates of the venture? The car would easily be traced back to its owner. It is clear that at the time of arrest, Accused 1 was in charge of a car which had displayed false registration numbers. It is worthy to note that Accused 1 personally admits that the venture in question was at Koster on that day. The trial court was satisfied that the venture which was seen speeding out of Koster is the same venture which was later found near Ventersdorp. I am satisfied that the facts justify this conclusion. The identification parade was flawed 33. It was submitted on behalf of the accused that Ramogae was a poor witness, his notes were unreliable and the innumerable contradictions by police witnesses left one in a state of confusion. 34. Rule 1 of the Rules of Practice at an identification parade (the rules) provides: The proceedings at the parade should at the time of the parade be recorded (preferably on Form SAP329) by the police official in charge of the parade

27 (Du Toit et al: Commentary on the Criminal Procedure Act, at Page 3 12). It is important that this form (SAP 329) must be completed in detail and that all essential information should be noted down. However, noncompliance with any rule does not ipso facto deprive an identification parade of all evidential weight (Bailey v The State, unreported CPD full bench decision, Case No. 215/2000, 31 August 2000). However, there must be substantial compliance with the requirements of the rule. In S v Chabalala 2003 1 SACR 134 (SCA) the discrepancies in the notes made by the parade officer were not considered fatal. 35. I must mention at this stage that this Court, unlike the trial court, did not have the privilege of seeing the documentary exhibits which were handed in at the trial. The information at our disposal is that all the photographs as well as form SAP 329 disappeared. It does not appear from the record that the parade form was handed in as an exhibit during the trial proceedings. But Ramogae had it in the witness box. I am satisfied that this form, had at least one inaccuracy: it omitted to mention that Khumalo also identified a wrong person who, incidentally had Accused 3 s jacket on. This information is vital because it goes directly to the question of the reliability of Khumalo s identification. There are two possibilities here. It is either Ramogae omitted this information unintentionally or he left it out deliberately in order to conceal it to the trial court. When he omitted to record this information, whether deliberately or inadvertently, he was aware that there was a camera in that room which would either corroborate or

28 contradict his notes. Ramogae is an experienced detective in serious and violent crime. In my view, he could not have concealed this information deliberately knowing that the photographs would expose him (and this is what happened at the trial). 36. It is trite law that credibility findings and findings relating to facts are the province of the trial court and a court of appeal will not easily interfere unless such a finding is manifestly wrong (R v Dhlumayo and Another 1948 2 SA 677 (AD). In its judgment, the trial court proceeds from the premise that Khumalo identified only one wrong person. With respect, what led the court to misinterpret this evidence is difficult to understand. In fact it is the very same judicial officer who illicited this evidence from Ramogae, during cross examination by Accused 3. The court even referred Ramogae to photographs 1 to 4 of Exhibit 1. In my view therefore, the trial court misdirected itself by approaching the evidence of Khumalo on the basis that he pointed out one wrong person and because he gave a reason for his mistake, he was honest. My problem is that there are two mistakes here by Khumalo, both of which are disturbing. 37. Is Khumalo s identification of Accused 2 and 3 at the parade reliable? The evidence of Ramogae is to the effect that at that same parade, Khumalo identified two wrong persons and two correct persons (the latter being Accused 2 and 3). What I find rather strange is that in each case of pointing out a wrong person, such wrong person either had accused 2 or 3 s top. Why such a coincidence? I have serious doubts about the honesty and the reliability of his identification. In my view, no reliance should have been placed on his identification.

29 Besides, Khumalo never testified that he identified two wrong persons. Why did he conceal it? 38. I now proceed to deal with the contradictions in the police witnesses evidence. Stage 1 is the waiting room for identifying witnesses. Stage 2 is the route to the parade room. Stage 3 is the threshold of the parade door. Stage 4 is the return route to room 232 and stage 5 is room 232 (the end point). Ramogae says there was an inspector at stage 1, Matlhoko at stage 2, Lentoro at stage 4 and Bogatsu at stage 5. Black corroborates Ramogae in regard to stages 1 and 2. Lentoro corroborates Ramogae in regard to stages 1 and 2. But she goes further to say that she led them in and out of the parade and handed them to Bogatsu. In other words, she says that she was at stages 2,3 and 4. Bogatsu gave two starkly contradictory versions. This is the first version: She (Bogatsu) was performing services at stage 1, but she received witnesses from Matlhoko. Matlhoko stood at Stage 3 and she brought the witnesses from the parade room back to Bogatsu (ie. stage 1). The public prosecutor then asked her the last and final question: U het vroeër vir die hof gesê u het hulle opgepas voor die parade. Hoekom het u dit gesê? Bogatsu replied: Ja nee, ek het ń gly van my tong gehad. Miskien het ek nie mooi verstaan nie ek (onhoorbaar). She proceeded to give her second version: Black was at stage 1,

30 Matlhoko at stage 2, Lentoro at stage 3 and, she (Bogatsu) was at stage 5. She corroborated Lentoro s version. The trial court should have dealt with these contradictions. Unfortunately it did not. 39. The first version of Bogatsu goes against the evidence of four police officers. Her initial evidence, that it was her and Matlhoko only who were controlling the movement of witnesses is unrealistic. In any event, the evidence of the four police officers, to the effect that more than two police officers were involved in this exercise, stands unchallenged. The other contradictions in the evidence of police witnesses do not go to the core of the identification parade. 40. Rule 13 of the rules provides that: Identifying witnesses should be kept separately, should not be allowed to discuss the case while waiting to be called upon to attend the parade, should not be allowed to see the parade being formed or re formed and should be kept under the supervision of a police official who is neither the one in charge of the parade nor the investigating official. (the underlining is mine) In R v Nara Sammy 1956 (4) SA 629 (T) 631C D Dowling J strongly disapproved of the procedure.. of herding the witnesses together in a room without supervision or control, without warning not to discuss, and in circumstances where they had every opportunity of exchanging notes as to the appearance of the accused.

31 Finally, Rule 15 provides that: A police official who is neither the investigating official nor the official in charge of the parade nor the official charged with supervising the identifying witnesses should escort one identifying witness at a time from the place or office where the latter is kept to the parade; and after such identifying witness s inspection of the parade, such official should escort the witness to an office or place where the witness can have no contact with witnesses who are still waiting to inspect the parade. The police official who escorts the identifying witness may not discuss the case with him. There is no doubt in my mind that the witnesses at stage 1 were kept separately from witnesses who were at stage 5. I am satisfied that since the witnesses at stage1 were under the supervision of Inspector Black, they did not discuss the appearance of the suspects. I am satisfied further that no one showed these witnesses the accused or schooled them about their apparel.

32 Observation by identifying witnesses 41. The trial court accepted that Gwile, Molefe, Khumalo and Nawe had sufficient time of observation because, it was in daylight, robbers took their time inside the bank, they were very close to the witnesses, there was nothing to obstruct their view and Accused 2 had a remarkable identifying mark on his face. When the trial court made these findings, it had the cautionary rule in mind. The trial court found that it was easy for Nawe, within two months after the incident, to identify Accused 2 because his appearance was still fresh in his mind. It also accepted that he may have forgotten Accused 2 s face at the time of his testimony because there was a lapse of a period of about one year since the incident took place. Now the evidence by Molefe, Gwile and Khumalo was that the main role which Accused 3 played was to watch the customers. Equally, they never testified that Accused 2 watched over the witnesses during the robbery. But at the identification parade, Nawe identified Accused 2 as the one who kept an eye on the customers. The trial court believed him although his evidence flew in the face of the other evidence about the specific role played by Accused 2. That was a misdirection. If the court believes the evidence of Gwile and Molefe on this aspect, it cannot believe that of Nawe. In my view, the person whom Nawe alleges kept an eye on the customers was not Accused 2. At that stage Accused 2 was behind the counter, having opened the door with a crowbar. Consequently, no reliance can be placed on the evidence of Nawe except when it is in line with the credible evidence of Gwile and Molefe. Earlier in this judgment, I highlighted some unsatisfactory features of Khumalo s identification of the suspects at the parade. This is the witness who ran away immediately when he realised

33 that there was a robbery. In my view, he did not have sufficient time of observation before he left the tellers area. I have a serious doubt about the reliability of his observation. 42. There are two witnesses whose evidence incriminate Accused 2 and 3 inside the bank. It is Gwile and Molefe. A perusal of the record leaves me convinced beyond a reasonable doubt that these two had sufficient opportunity to observe and identify Accused 2 and 3. It will be recalled that they saw Accused 2 and 3 when they jumped the queue, as a result of which they complained about that conduct and a firearm was pointed at them and they were ordered to lie down by the same Accused 2 and 3. At that time both Gwile and Molefe were close enough to these two accused to be able to see them properly. Their evidence was not contradictory and was never weakened during a thorough cross examination. It is satisfactory in every material respect. With regard to what happened behind the counter, Gwile was corroborated by Kromhout. The most important feature which I find in the evidence of Gwile and Molefe is that they corroborate each other on the specific roles which were played by Accused 2 and 3. Even if Accused 2 and 3 would have stated in their evidence in chief that they were not at the scene of crime, that would not change the results of the case. 43. Notwithstanding the misdirections and/or irregularities committed by the court a quo, I am satisfied that on the whole, justice was done. The magistrate generally took all the important factors into account and his judgment as a whole is beyond reproach. The criticism levelled

against him by Mr Shapiro is, with respect, exaggerated. 34

35 44. In the result, the following order is made: The appeal is dismissed and the conviction is confirmed. SAMKELO GURA JUDGE OF THE HIGH COURT I agree M.T.R. MOGOENG JUDGE PRESIDENT OF THE HIGH COURT Appellants Attorneys: Messrs Moima Ledwaba Suite 1, First Floor Nedbank Building, corner Church and Andries Streets, PRETORIA OR Mmabatho Correspondents Messrs Magabane Attorneys, Suite 4 Totobola Building, Station Road MAFIKENG Respondents : The Director of Public Prosecutions MMABATHO