Cupido v The State

On 26 April 2018 at approximately 18h00-19h00, two men wearing hooded jerseys and gloves arrived in a Nissan 1400 bakkie at 8 Short Street, Athlone, at the house of Mr Ashraf Mitchell (Tony). The complainant, Mr Samuel Brown, was selling drugs there on behalf of Tony. One of the men, identified by Mr Brown as the appellant (known as "Rompie"), purchased drugs from Mr Brown. Shortly thereafter, the appellant pulled out a 9mm firearm and shot Mr Brown in the jaw. Multiple shots were fired, resulting in injuries to Mr Brown, Clint Scholtz, and 12-year-old Asheeq Mitchell, who died from his injuries. Mr Brown, unable to speak due to his wired jaw, wrote on paper that "Rompie" from Q-town was the shooter. Police showed Mr Brown a photo album, and he identified the appellant's photograph. The appellant reported to the police station the next day after learning he was a suspect. At trial, the appellant relied on an alibi defence through his girlfriend Ms Isabella Davids, who testified he was at home from 18h00 to 20h30. The appellant was convicted on all counts: murder, two counts of attempted murder, and unlawful possession of a firearm and ammunition. He was sentenced to life imprisonment for murder plus additional terms for other offences.

• Whether the trial court erred in relying on the evidence of a single witness (Mr Brown) without proper application of the cautionary rule
• Whether the photo identification evidence was admissible where the rules of identification parade were not followed
• Whether the use of the appellant's photograph violated his constitutional right to privacy under section 37(6)(a)(iii) of the CPA
• Whether the trial court properly considered and evaluated the exculpatory statement made by the appellant in terms of section 115(3) of the CPA regarding his alibi
• Whether the trial court erred in refusing to admit the entire bail record
• Whether the trial court erred in the treatment of hearsay evidence admitted in terms of section 3(1)(a) of the Law of Evidence Amendment Act 45 of 1988

The appeal against conviction and sentence was dismissed.

1. A single witness's identification evidence may ground a conviction under section 208 of the CPA where the witness is credible, had adequate opportunity to observe in terms of the factors enumerated in S v Mehlape (lighting, proximity, prior observations, duration, etc.), and the court properly applies the cautionary approach. 2. Photo identification procedures conducted during police investigations to confirm a suspect's identity after the witness has already positively identified the perpetrator, and where the suspect is known to the witness, need not comply with the strict requirements of formal identification parades. Such evidence is admissible and can play a decisive role in conviction (S v Moti applied). 3. Exculpatory statements made in plea explanations pursuant to section 115(3) of the CPA have no evidential value unless repeated under oath (S v Mkhize applied). They do not constitute proof of facts and do not relieve the State of its burden of proof. 4. Once the prosecution establishes a prima facie case, an accused who fails to testify runs the risk that the State's evidence may be sufficient to prove guilt beyond reasonable doubt. This does not breach the right to silence but reflects the adversarial nature of the criminal justice system (Osman v Attorney-General, Transvaal applied). 5. The admissibility of hearsay evidence under section 3 of the Law of Evidence Amendment Act requires assessment of reliability, probative value, and the interests of justice. Hearsay statements from available witnesses who are not called without explanation, which are contradictory and unreliable, may properly be accorded minimal or no weight. 6. The test for whether procedural irregularities or misdirections warrant setting aside a conviction is whether, on evidence unaffected by the defect, there is proof of guilt beyond reasonable doubt (Thebus v S applied).

The court made several non-binding observations: (1) The purpose of the Hearsay Evidence Act is to ensure all relevant evidence is placed before the court, primarily to cater for witnesses who are unavailable due to death or incapacity, not to allow available witnesses to avoid cross-examination without explanation - allowing the latter would not be in the interests of justice and could open a floodgate to witnesses avoiding scrutiny; (2) While formal admissions under section 220 of the CPA constitute proof of facts, exculpatory statements under section 115 should generally be repeated under oath to have value for the accused; (3) The court emphasized that liberty to make choices (such as whether to testify) brings corresponding responsibility, and accused persons who make such choices "with eyes open" must accept the consequences; (4) In assessing alibis, courts must determine whether the alibi is reasonably possibly true or obviously false, but this does not shift the onus from the State to prove its case beyond reasonable doubt; (5) The court noted that the trial judge is best placed to determine what constitutes a fair trial, and interlocutory rulings can be revisited during trial if circumstances warrant.

This case provides important guidance on several procedural and evidential issues in South African criminal law: (1) It reaffirms the principles governing reliance on single witness testimony and application of the cautionary rule, particularly in identification cases; (2) It clarifies that photo identification procedures conducted during police investigations to confirm existing suspicions do not require adherence to the strict rules governing formal identification parades; (3) It confirms the limited evidential value of exculpatory statements made in terms of section 115(3) of the CPA unless repeated under oath; (4) It reinforces that rulings on admission of bail proceedings are interlocutory, discretionary, and do not constitute irregularities affecting trial fairness; (5) It provides guidance on the assessment of hearsay evidence under section 3 of the Law of Evidence Amendment Act, emphasizing that reliability and probative value are central considerations; (6) It reiterates the constitutional principles balancing the right to silence with the adversarial nature of criminal proceedings, and the risks an accused assumes when choosing not to testify in the face of prima facie State evidence.