THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Case no: 344/05
REPORTABLE

In the matter between:

Jimmy H CHARZEN

First appellant

Brian M MSIBI

Second appellant

and

The STATE

Respondent

Before:
Cameron JA, Jafta JA and Maya AJA
Appeal:

Friday 24 February 2006
Judgment:
Thursday 9 March 2006

Criminal law – Evidence – Identification – Error in description of
attacker – Error unignorable, and not explained – Doubt created
about other aspects of identification – Absence of physical
evidence (fingerprints or retrieved items) creating reasonable
doubt

Neutral citation: This judgment may be cited as S v Charzen
[2006] SCA 6 (RSA)

JUDGMENT
_____________________________________________________

CAMERON JA:

[1] This appeal turns on the reliability of identification evidence.
On Tuesday 23 January 2001 at Chiawelo in Soweto, three
armed men committed a bloody robbery at the home of the
complainant, Mr Alexius Lambert Amtaika, a political science
lecturer at Vista University.  They took his Audi A4 motor
vehicle, a wallet containing R600 in cash, a mobile phone,
books, cassettes and a blue baby seat.  One of the robbers
threw his eleven-month old daughter, who had been strapped
into the seat, from the car before they left.  In the course of
their depredation two of them shot the complainant – seemingly
quite gratuitously, for he offered no resistance.  He suffered
five gunshot wounds to his legs and was fortunate not to
undergo an amputation.
[2] Two days later, on Thursday 25 January 2001, two men were
arrested in Eldorado Park in connection with the Chiawelo
robbery.  Since the investigating officer was not called to
testify, we do not know the circumstances of their arrest, nor
(so far admissible) what led to it.  We only know that on 8
February 2001, after the complainant was discharged from
hospital, an identification parade was held at Protea Police
Station in Soweto.  Amongst nine other persons, three

suspects in connection with the Chiawelo robbery were on
parade.  They were the two appellants and one Julius
Hlongwane, who had apparently been arrested earlier.
[3] The complainant identified two persons at the parade as the
two robbers who shot him.  They were Brian Musa Msibi and
Jimmy Hlangabeza Charzen, the two appellants.  He could not
identify the third.  His wife, who fled the scene, distressed but
unharmed, was unable to make any identification at the
parade, and was not called to testify.
[4] In June 2002 Msibi and Charzen stood trial in the Protea
Regional Court in Soweto as accused 1 and 2 on charges of
robbery and attempted murder, together with associated arms
and ammunition counts.1  There were only two state witnesses:
the complainant, and inspector Luthuli, who was in charge of
the identification parade.  Neither accused offered any plea
explanation, but both testified in their own defence.  They
denied involvement in the robbery.  The regional magistrate, Mr
H Badenhorst, convicted both of robbery, and accused 2 (who

1 Since the order in which the appellants appeared at the trial created some confusion in the
high court, and since the order in which they are cited in the appeal has been reversed, it
seems clearest to refer to them as at the trial.

the complainant said fired four of the five shots) in addition of
attempted murder.  Both were convicted of unlawful possession
of arms and ammunition.   Applying the minimum sentence
provisions of the Criminal Procedure Act 51 of 1977, he
sentenced accused 1 to effective imprisonment of 20 years,
and accused 2 to 32 years.
[5] The Johannesburg High Court (Masipa J, Tshiqi J concurring)
dismissed the appeals against conviction, but ordered that
accused 2’s twelve-year sentence on the attempted murder
charge run concurrently with the other sentences, thus making
both accused’s effective sentence 20 years.  The high court
granted accused 2 leave for this further appeal against
conviction and sentence.  Shortly before the hearing, accused
1 obtained similar leave.
[6] Before us, as in the high court, the principal question was the
adequacy of the complainant’s evidence identifying the
accused as the two robbers who shot him; and to appreciate
the argument on their behalf it is necessary to set out the
state’s case in more detail.

State case

[7] The complainant was the sole witness to the robbery.  He
testified that he arrived at his home and parked his car in the
garage.  His wife and daughter were with him.  As he was
locking and immobilising the vehicle, he heard his dog barking
and saw three armed men entering his property.  One – whom
he identified as the first accused – ordered him to hand over
his keys.  While accused 1 was searching him, a second
robber – whom he identified as accused 2 – shot his dog.
Accused 1 ordered him to lie down, but while he was trying to
do so, accused 1 shot him in his right foot.  He fell to the
ground.  Accused 2 then came forward and fired four further
shots at him: in his left hip and calf, and on his right leg and
ankle.  A third robber was at or near the gate, but did not enter
the garage.  The two robbers dragged him outside, where they
left him lying face up.  Accused 1 could not start the car.  He
returned and fired further shots into the ground next to the
complainant, who explained to him what had to be done.  The
car started.  As accused 1 reversed he threw the toddler out
(she landed on the complainant’s chest), picked up his two
accomplices, and sped off.
[8] The complainant testified that he had ample opportunity to
identify two of the robbers.  He saw accused 1 at close range

several times, and had considerable time to look at accused 2
while he was lying face-up outside his garage, pleading for
mercy.  The third he could not identify: the man did not enter
the garage, but retired to the gate to keep a look-out.
[9] During the complainant’s ten-day stay in hospital (the date
unfortunately does not appear from the record), Inspector
Swanepoel took a sworn statement from him.  Swanepoel did
not testify, so we do not have his account of the complainant’s
apparent physical and mental state, but in cross-examination
the complainant affirmed that the statement recorded
accurately what he told Swanepoel and that its contents were
confirmed with him before he signed.

Was the complainant’s identification of the accused reliable?
[10] The complainant was emphatic that his identification was
accurate.  He related that when asked in hospital whether he
could identify his attackers, he told Swanepoel, ‘Yes, even in a
million years I’ll be able to identify them.’  During cross-
examination he stated that not only did he have time ‘to look at
them thoroughly, but I had physical contact with them, verbal
contact with them, and eye contact with them’.  ‘All I was
interested [in] is to look at their faces, because I knew that

maybe I will survive ... to help the police in drawing the identikit
of the people who came – who invaded my home, took my car
and shot me.’  What is more, as the magistrate pointed out in
his judgment, and the high court emphasised on appeal, the
complainant was a good witness: clear, coherent, specific and
verbally expressive.
[11] But, as our courts have emphasised again and again, in
matters of identification honesty and sincerity and subjective
assurance are simply not enough.  There must in addition be
certainty beyond reasonable doubt that the identification is
reliable, and it is generally recognised in this regard that
evidence of identification based upon a witness’s recollection of
a person’s appearance can be ‘dangerously unreliable’, and
must be approached with caution.2  This case illustrates the
risks.
[12] In his statement to Swanepoel, the complainant ascribed one
feature only to each of his attackers, whom he had never seen
before.  The first – identified as accused 1 – was a ‘man with

2 DT Zeffertt, AP Paizes and A St Q Skeen, The South African Law of Evidence (2003) page
142.

dreadlocks’.  The other – accused 2 – ‘had a light complexion’.
The trial confirmed that accused 2 was light in complexion.  But
neither at the identification parade, held some sixteen days
after the robbery, nor at trial did accused 1 have dreadlocks.
His hair was short.
[13] On its own, this would not be remarkable, for dreadlocks (‘a
Rastafarian hairstyle in which the hair is twisted into tight braids
or ringlets’)3 are eminently removable; and indeed a criminal
may deliberately remove them to try to mask his identity.  What
is significant is the complainant’s response when challenged on
the apparent absence of dreadlocks.  His response suggested
that there may have been no dreadlocks at all:
‘He was putting on something like you know, something like that lady has
on.  It’s a – it was something like a hat, but – yes, of that type, yes.’
This proved to be a woollen hat, as worn by a person in court,
pulled down to the hairline.  After conceding that ‘dreadlocks
and that hat … are totally different things’, the complainant
proceeded:

3 Concise Oxford Dictionary.

‘Well, to me what he was wearing is not very important.  To me the face
mattered most, because I knew that I cannot go for identity parade to
identify somebody who has got dreadlocks, or who has got a hat.  To me,
what matters most is the face.  You cannot identify someone by a hat or
dreadlocks.  The face matters most.’
[14] The
complainant’s
observation
is
correct:
facial
characteristics are a more reliable and enduring source of
identification than variable features such as hairstyle or
clothing.  But that assertion – propounded repeatedly during his
cross-examination – underscores the significance of his
mention of the dreadlocks.  If they were immaterial to his
recollection, why did he mention them at all?  On the other
hand, if they were material, but there were no dreadlocks, his
error is unignorable.
[15] The mystery was not cleared up during the complainant’s
evidence, for he neither insisted that there were dreadlocks
during the robbery (which must have been shaved off later),
nor conceded that he had made an error: instead, he attempted
to minimise the importance of what was in his statement by
insisting on the irrelevance of non-facial features.  In keeping
with this approach, counsel for the State urged us on appeal to
find that the complainant was an impressive witness overall,

and that the dreadlocks were immaterial.  But they cannot be
dismissed, for the complainant’s statement mentions them
twice; and his very articulacy as a witness, and the precision of
his recall in other respects, make the unaccounted error the
more obtrusive.  It unavoidably raises the question of how
reliable his recall was in other respects.  And it makes it the
more regrettable that the police officers who arrested the
accused were not called to testify, since they would have been
able to relate whether accused 1 had dreadlocks two days after
the robbery.  We shall never know.
[16] If the complainant did err, his error may be explained in
another feature of his evidence, namely the time at which the
attack occurred.  He testified very specifically that he returned
at about 19h15, having left home at 18h30 to fetch his spouse
in Coronationville.  In his police statement, too, he gave the
time as 19h15.  When quizzed about visibility at this hour, he
recorded that there was no electric light inside his garage, but
that (a) the sun was still shining; and (b) the street lights
outside were on.  When the cross-examiner suggested a
contradiction, he insisted that in his area the streetlights could
be on at any time.

[17] Yet, if the complainant was correct about the time, we must
take notice that more than a month after the summer solstice in
Gauteng the sun has already set by 19h15, and that dusk is
settling in.  The absence of electric illumination inside the
garage would have deepened the gloom in which the
complainant faced his attackers.  While outside there would
have been more light, the unsettling uncertainty must obtrude
that he may have mistaken the nature and appearance of his
first attacker’s headgear because the light was bad.  And if that
is so, then there must be a measure of perceptible doubt also
about his identification of his attackers’ faces.
[18] This is an unhappy conclusion, for by their own admission
the two appellants are friends; and the chance that from a
twelve-person line-up the complainant would have wrongly
picked out two persons so connected, who were arrested on
the same occasion, in each other’s company, must be
statistically small.  But the dreadlocks issue raises unavoidable
doubt about the reliability of the identification on its own.
[19] This is inevitable mainly because the only evidence the state
called about the robbery was the single testimony of the
complainant.  There was no physical evidence: not a
fingerprint, not a recovered cellphone, nor wallet, nor purse,

nor baby seat: nothing to connect the accused to the crime and
thus to provide a measure of objective assurance against the
pitfalls of subjective identification.  The greatest assurance of
guilt must lie in such evidence, rather than in identification on
its own, which as this case shows can be beset by error and
misdescription and doubt, in which case possibly and even
presumably guilty persons must walk free.
[20] The appeal must succeed.  The order of the court below is
set aside.  In its place there is substituted:
‘The appeal succeeds.  The accused are acquitted of the
charges.’

E CAMERON

JUDGE OF APPEAL

CONCUR:
JAFTA JA
MAYA AJA
Supreme Court of Appeal of South Africa

MEDIA SUMMARY– JUDGMENT DELIVERED IN SUPREME
COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal

Date:
Thursday 9 March 2006

Status:
Immediate

Please note that the media summary is intended for the benefit of
the media and does not form part of the judgment of the Supreme
Court of Appeal

S v Charzen 344/05

In a judgment delivered today, the Supreme Court of Appeal has
upheld the appeal of two men who were convicted in the Protea
Magistrates’ Court, Soweto, of robbery and of arms and
ammunition charges, and sentenced to 20 years’ imprisonment.

The appeal turned on the reliability of identification evidence.  The
complainant identified the two accused at an identification parade
just more than two weeks after the robbery.  This was the only
evidence the state called.  But the complainant had said twice in
his police statement that one of his attackers was wearing
dreadlocks, while in court he said instead that the man was
wearing a hat.  Both at the identification parade and in court the
man had short hair.  The complainant could not explain why he
spoke of dreadlocks, and admitted that dreadlocks and a hat were
‘totally different’.  The robbery occurred at dusk, and there was no
electric lighting in the complainant’s garage.

In upholding the appeal, the SCA emphasised that the courts had
repeatedly stated that identification evidence had to be
approached with caution, since people make mistakes in
identifying others.  The greatest assurance of guilt lies in physical
evidence
(fingerprints,
recovered
items,
blood
samples)
connecting the accused to the crime, rather than identification
evidence alone, which can be beset by error and misdescription
and doubt.