We
are in agreement that the court a quo did not fully investigate the appellant's
defence of alibi and the possibility of mistaken identity. The appellant
indicated that at the time of the alleged robbery he was at the seminary
carrying out duties.
It
is trite law that the State bears the onus to disprove the accused person's
alibi. S v Masawi & Anor 1996 (2) ZLR 472 (SC).
Besides
his own testimony, the appellant called two witnesses in support of his alibi.
Father McQuillen, the Dean of Students at the seminary, testified that the
seminary followed a daily timetable; with prayers at 1215 hours and lunch at
1230 hours. Father McQuillen testified that the appellant was at the seminary
and that it was indeed true that he was one of the organizers for a party for
third year students. He, however, conceded that he (i.e. the witness) left the
seminary just before the lunch and thus could not tell whether or not the
appellant left the seminary at lunch time. Another witness, Gerald Chipangwa,
testified that he was with the appellant from morning until when they parted
company at 1255 hours. If this testimony is accepted, then the appellant's
defence of alibi should have succeeded – S v Musakwa 1995 (1) ZLR (SC). The
trial prosecutor did not challenge this testimony under cross-examination.
In
the circumstances, counsel for the respondent rightly conceded that the issue
of the appellant's alibi and the disparity in time was not fully canvassed to
bring out the reasonable doubt.
The
facts of the case are mainly common cause.
On
the 9th May 2008, at around 12 noon, the complainant was at corner George
Avenue and Harare Road waiting for transport. She was confronted by a man she
did not know and robbed of her handbag containing a Samsung E250 cellular phone
and cash amounting Z$1,000,000=. Her assailant fled. A police vehicle arrived
at the scene, and, after a report, the police details gave chase. The assailant
dropped the complainant's handbag but the police details failed to catch up
with him. Thereafter, the complainant phoned her husband and gave him the
description of her assailant's attire and the direction he took when he fled.
Using his description, the husband apprehended the appellant around 1300 hours
at Paddonhurst.
The
type of identification evidence is less than ideal. In S v Mutandi 1996 (1) ZLR
367 (HC) the court rightly observed –
“Mistakes
often happen with identification evidence. Where a person identified claims he
was elsewhere at the time of the crime, the police should check his alibi, as
the onus is on the State to disprove his alibi.”
S
v Shabala 1986 (4) SA 734 (A) and R v Mokoena 1958 (2) SA 212 (T).
In
casu, no identification parade was held after the apprehension of the
appellant. This was necessary because the persons who apprehended him where not
at the scene of crime, they were relying on a telephonic description given by
the complainant…..,. As alluded to above, there is a parallel between the time
the offence occurred and the time that appellant allegedly left the seminary.
This parallel in time created doubt that the appellant's guilt was proven
beyond reasonable doubt. More importantly, the description of the appellant, as
given by the complainant, differed from that given by her husband, Mandla
Khumalo. The latter indicated that he was phoned by the complainant to the
effect that the appellant was putting on a black jacket and a rosary and yet
the complainant indicated that the appellant was wearing a blue jacket with
orange stripes.
This
disparity escaped the eye of the trial magistrate….,.
No
other description was supplied by the several witnesses who testified. What
value can be attached to such identification via clothing when there is
disparity on the type of clothing? No real persuasive value can be attached to
this kind of identification. R v Masemong 1950 (2) SA 488 (A); S v Sibanda
& Ors 1969 (2) SA 345 (T) and S v Mlati 1984 (4) SA 629 (A).
There
was no testimony given about the appellant's sex, size, gait, colour or any
other distinguishing features.
It
is trite that in all cases that turn on identification the greatest care should
be taken to test the evidence. Witnesses
should be asked by what features, marks or identifications they identify the
person whom they claim to recognize – R v Mokoena 1958 (2) SA 212 (T); R v T
1958 (2) SA 676 (A) and S v Ndhlovu and Ors 1985 (2) ZLR 261 (SC).
For the foregoing reasons, the conviction cannot
stand. In the circumstances, we upheld the appeal and quashed the conviction
and set aside the sentence.
