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It is very important in criminal proceedings that a witness makes a positive identification of the person they claimed was the perpetrator. The court in Magadla v S (SCA) (unreported case no 80/2011, 16-11-2011) (Mhlantla JA, Mthiyane JA, Meer AJA) at para 26 echoed the observations of Holmes JA in S v Mthetwa 1972 (3) SA 766 (A) to the approach to be adopted when identification of an accused is at issue; ‘Because of the fallibility of human observation, evidence of identification is approached … with some caution. It is not enough for the identifying witness to be honest: the reliability of his observation must also be tested.’ How is this observation tested?
In Cupido v S (SCA) (unreported case no 1257/2022, 16-1-24) (Tokota AJA, Mokgohloa, Mbatha and Goosen JJA and Keightley AJA) at para 21 the court referred to the case of S v Mehlape 1963 (2) SA 29 (A), where it was held that it should not be enough for a witness to be honest but in the circumstances, he must have had ‘a proper opportunity’ to make his observations and that his observations can be relied on. The court further held that such observations should be tested against ‘proximity of the persons, or the visibility, or the state of the light, or the angle of the observation, or prior opportunity or opportunities of observation or the details of any such prior observation or the absence or the presence of noticeable physical or facial features, marks or peculiarities, or the clothing or other articles such as glasses, crutches or bag, etc, connected with the person observed, and so on.’
In Macuvele v S (GP) (unreported case A748/2013, 9-7-2014) (Makgoka J, Moseamo AJ) at para 12 the court referred to S v Jochems 1991 (1) SACR 208 (A) noting that: ‘Witnesses should be asked by what features, marks or indications they identify the person whom they claim to recognise. Questions relating to height, build, complexion, what clothing he was wearing and so on should be put.’ The fact that the witness just says that ‘the accused is the person who committed the crime is not enough.’ The court held that it is ‘unexplained, untested and uninvestigated’ and it makes room for the possibility of mistakes. The accused in Macuvele at the time of the incident was unknown to the complainant. These qualifying questions when answered in the affirmative would give the court more assurance that the alleged perpetrator is indeed the accused before court. The identifying witness at the time of the incident may either know the accused or the accused might be unknown to the witness at the time of the incident.
In Magadla the accused was unknown to the complainant at the time of the incident and the defence placed the identification made by the complainant in dispute. In dismissing the defence’s submission that the complainant erred when she identified the accused, the court concluded that she was in ‘close proximity’ with the appellant when they were driving, she entered a well-lit room with the appellant and ‘spent several hours in that room.’ At para 32 the court held that: ‘In my judgment, the complainant had ample opportunity to make a proper and reliable observation of the appellant.’
In S v Zwane (KZP) (unreported case no AR297/2021, 24-1-23) (Henriques J, Mlaba J), the complainant was a single witness and admitted to not knowing the accused prior to the incident. He indicated at para 9 that he was at ‘arm’s length’ away from the accused before being shot. He also testified that he stood approximately ten minutes in front of the accused having an undisturbed view of the accused face in clear daylight conditions. He noticed that the accused had a notable scar on his face, was dark in complexion and it appeared that the accused was cross-eyed. The witness observed that the accused’s clothes were dirty. It later transpired that this was a result of his work as a mechanic. At para 25 the court held that the witness ‘had ample opportunity to see the [accused] at the time of the incident and kept him under observation for at least five minutes as he was an arm’s length away from him.’ At the time the police officer received information as to the whereabouts of the accused, he visited the complainant in hospital and on the combined strength of both pieces of information he arrested the complainant who was dark in complexion with a facial scar and had a disfigured eye, as identified by the complainant.
In Abdullah v S (SCA) (unreported case no 134/2021, 31-3-22) (Nicholls, Mocumie, Schippers JJA, Tsoka and Meyer AJJA), the court at para 7 held that the witness’s observation of the accused must be tested against the ‘lighting, visibility, proximity of the witness and opportunity for observation.’ The witness identified the shooters as members of the criminal gang called the ‘Firm’ who operated in Valhalla Park on the Cape Flats. The witness went to school in Valhalla Park and while he was not friends with them, he saw them regularly in that area. He only knew them by their nicknames. The defence argued that the witness did not have a proper opportunity to observe the gunmen due to the fact that he only had two to four seconds of observation. At para 13 the court held that ‘had the appellant [shooter] been a stranger to him, this could have been a significant factor. However, when seeing a person who is known to you, it is not a process of observation that takes place but rather one of recognition.’ The court went further and held at para 13 that: ‘The time necessary to recognise a known face as opposed to identifying a person for the first time, is very different. It has been recognised by our courts that where a witness knows the person sought to be identified, or has seen him frequently, the identification is likely to be accurate.’ Even though the observation period was very brief the witness could identify the shooters on the strength of his previous encounters with them and could recognised them as the perpetrators. The court accepted his identification of the shooters as accurate and reliable. It is more than possible for people in an area, due to their community activity or association, that they are more known to the rest of the people in an area and such person is more recognised than others in that area. The court in Zulu v S (KZP) (unreported case no CC32/15P, 22-7-2016) (Dlwati J), at para 54 held that: ‘It is natural that people would know a person without that person knowing them.’
The court in Phetla and Another v S (GP) (unreported case no A632/2015, 24-6-2016) (Legodi, Rabie, and Mabuse JJ) at para 27 held that: ‘An identifying witness should be asked to give [a] detailed description of the alleged criminal at the earliest possible moment.’ In Langa v S (GJ) (unreported case no A109/2017, 18-9-2020) (De Villiers AJ, Ismail J, and Malungana AJ) at para 18 the court held that: ‘The cautionary practice (to establish a description of the perpetrator as soon as possible) does not mean that evidence of identification will only stand if a witness can recite a list of descriptive factors about the accused’s face, build, and dress in his/her original statement.’ The court in Zwane at para 27 found that the criticism levelled against the witness for giving the police a detailed description of the accused was without merit. The court held that: ‘The complainant had been through a traumatic ordeal; had been shot and was laying on a stretcher in the hospital when the police interviewed him. He could hardly be expected at that point in time to provide a detailed description.’ The court concluded that it was satisfied that on the totality of the evidence produced that the accused was the one who shot the complainant.
In Kenku v S (FB) (unreported case no A65/2015, 10-9-2016) (Van Zyl J and Mokoena AJ), the accused was found guilty of nine counts which included two counts of robbery with aggravating circumstances. Two perpetrators entered a shop, a tall man and a short man as described by the witness. The incident was caught on the shop’s video cameras which was installed to assist in the shop’s surveillance. The video that held the evidence went missing before the trial started. The Regional Court was satisfied that the witness that saw the footage, testified as to what she saw on the footage and could identify the perpetrators. The matter was taken on appeal. The court in Kenku at para 17 held that: ‘A court needs to be able to assess evidence itself.’ At para 17 the court went further where it held that ‘it was impossible for the court and the defence to also watch the footage and make their own observations.’ The court dismissed the evidence by the witness that related to what she saw on the video footage due to its unavailability for the court to evaluate such evidence for itself. The decision in Kenku was confirmed by the Supreme Court of Appeal (SCA) in Ndimande v S (SCA) (unreported case no 248/2018, 30-9-2019) (Ponnan, Saldulker, Swain, Mbatha JJA and Hughes AJA). At para 25 the SCA held that ‘the reliability of his subsequent identification of the appellant as a single witness, cannot be properly assessed in the absence of the video footage.’ It seems that the courts place a very heavy reliance on evidence regarding the identity of an accused that can be tested and evaluated.
In Mabunda and Another v S (GP) (unreported case no A202/2010, 29-10-14) (Basson J and Beatson AJ) at para 15 the court held that: ‘It is accepted that a dock identification has very little probative value.’ This value, however, can be increased if the witness on a prior occasion positively identified the accused to the police in a statement or in an identification parade. In Mbele and Another v S (FB) (unreported case no A246/2003, 17-8-2006) (Rampai J and Mathebula AJ) the witness during the incident just saw the accused fleetingly. The accused was unknown to her at the time of the incident. An identification parade was held and for some reason this specific witness did not attend it. The court at para 32 held that: ‘The value of her dock [identification] was drastically diminished by the fact that no practical steps were taken to protect the first appellant. The trial court should have, at the request of the prosecutor, caused the accused to be removed from the dock before the identifying witness or witnesses were ushered in. In a case such as this justice demands that the accused should mingle with the members of the public, if not in the public gallery anywhere else in the court room, but they certainly should not remain in the dock.’ The court at para 33 went on to say that, a witness who sees a person sitting in the accused box naturally ‘feels reassured that he is correct in his identification, even though this may not have been the position were they not there.’ The court also stated that by standing in the accused box it is ‘suggestive of him being one of the parties involved in the crime.’
It is the duty of the State to prove its case beyond a reasonable doubt. Making a positive identification is vital in any criminal case. When doubt is cast on the identity of the person before court, that person is more likely to walk out a free man than being convicted.
Andrew Swarts LLB (Unisa) is a District Court Prosecutor at the National Prosecuting Authority in Sutherland, Fraserburg and Williston.
This article was first published in De Rebus in 2024 (November) DR 26.
