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[2014] ZASCA 23
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Mugwedi v S (694/13) [2014] ZASCA 23 (27 March 2014)
THE SUPREME COURT
OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 694/13
DATE:
27 MARCH 2014
Not
Reportable
In the matter
between
MUGWEDI
MAKONDELELE JONATHAN
...........................
APPELLANT
And
THE
STATE
............................................................................
RESPONDENT
Neutral citation:
Mugwedi v The State (694/13)
[2014] ZASCA 23
(27 March 2014)
Coram: Navsa,
Leach and Saldulker JJA
Heard: 14 MARCH
2014
Delivered: 27
MARCH 2014
Summary: Criminal
law – Rape – Insufficiency of identification evidence –
Comment about lack of DNA testing.
ORDER
On appeal from:
Limpopo High Court (Makgoba J sitting as court of first instance):
The following order
is made:
1 The appeal is
upheld and the convictions and sentences imposed by the High Court
are set aside.
JUDGMENT
SALDULKER JJA
(NAVSA and LEACH JA concurring):
[1] The appellant
was charged in the Limpopo High Court on two counts of rape. On 13
August 2003 he was convicted on those counts
and sentenced to life
imprisonment on each, ordered to run concurrently. On 29 January 2013
the appellant was granted leave to
appeal against both the
convictions and sentences.
[2] There were
regrettable occurrences before and during the trial. First, in
respect of the investigation of this matter, I make
the following
comments. The complainant was taken by the police, and transported to
the trauma centre for a medical examination
on the same day as the
incident. It appears that no steps were taken to obtain DNA sampling
for analysis. In S v Carolus
1
this court emphatically stated that it was imperative in sexual
assault cases especially cases involving children that DNA tests
be
conducted. For this to occur the relevant kits have to be available.
I have difficulty in understanding why repeated judicial
pronouncements are not acted upon by the relevant authorities. In S v
Nedzamba
2013 (2) SACR 333
(SCA) at para 35 Navsa JA stated the
following:
‘One remaining
aspect requires attention, namely the manner in which the police
investigation and medical examination was
conducted. It appears at
least on the face of it, from the complainant’s evidence, that
there was material for DNA testing
that was likely to prove
conclusive. There was no indication that a testing kit was used or
available. No explanation was proffered
for the state’s failure
to conduct such an investigation. In S v Carolus
[2008] ZASCA 14
;
2008 (2) SACR 207
(SCA) para 32 the following was stated: “There are disturbing
features of this case that we are constrained to address. In
addition
to the flagrant disregard of the rules relating to the identification
of suspects, no crime kits were available at the
hospital to enable
Dr Theron to take a sample for DNA analysis. It is imperative in
sexual assault cases, especially those involving
children, that DNA
tests be conducted. Such tests cannot be performed if crime kits are
not provided. The failure to provide such
kits will no doubt impact
negatively on our criminal justice system. Fortunately in this matter
such negative outcome has been
avoided by the brave and satisfactory
evidence of A as corroborated by other witnesses”. Every effort
should be made by the
relevant authorities to ensure proper testing
with appropriate sensitivity.
[3] I now turn to
deal with the evidence adduced at the trial. I commence by dealing
with the medical evidence that the state sought
to lead in support of
its case. During the trial, the doctor, Dr Vilakazi who medically
examined the two young girls after the
incident was not called to
testify nor was any effort made by the prosecuting authorities to
secure his attendance. No attempt
was made to present his findings on
affidavit in terms of
s 212(4)(a)
of the
Criminal Procedure Act 51 of
1977
.
3
Instead, the State called another doctor, Dr Makulane who testified
that he knew Dr Vilakazi but did not know where she was that
day, and
that he had been delegated by the medical superintendent of
Tshilidzini Hospital to come to court. Dr Makulane proceeded
to read
out the contents of both J88s in the court below and opined that
there was vaginal penetration of both young girls. This
evidence was
clearly inadmissible, based as it was, on the hearsay evidence of Dr
Vilakazi’s findings. To the appellant’s
detriment, there
was surprisingly no challenge to the manner in which the medical
evidence was adduced. Before us, the state was
constrained to concede
that the medical evidence in these circumstances should not have been
received.
[4] The state’s
case essentially relied on the identification by the complainant on
count one TN, who was seven years’
old at the time of the
incident. According to her, she and the complainant on count two,
MN, who was two years old at the time
of the incident, were called
into the house where the appellant resides where they were both raped
in turn. Shortly after they
had left the house, they were met by the
parent’s of MN, a Mr and Ms N who were on the way to a spaza
shop. They proceeded
together towards the spaza shop and, at some
stage TN informed them that she and MN had been raped by a ‘boy’,
and
pointed out the house where the appellant resides.
[5] Ms N testified.
According to her, they were at the spaza shop when the complainant
was made and, accompanied by her husband
and the two young girls,
they returned to where the appellant resides. Ms N testified that she
found the appellant outside the
house, on the veranda. She confronted
the appellant about the accusations of rape, which he denied, stating
that he had just arrived
there. The following part of Ms N’s
evidence with reference to TN is important: ‘We asked her to
point Makondelele
(appellant) and she first just looked at him and
keep quiet. . . She just stood and she was about to cry and then she
pointed at
him and said, “this is the one”. . .’
Significantly, Ms N had first confronted the appellant with the
accusation
in the presence of the complainant before the latter
identified him.
[6] The significance
of this sequence is that Ms N confronted the appellant as the
perpetrator, whereafter TN was asked to identify
the wrongdoer. It is
clear from what is set out above that there was no spontaneous
identification.
[7] Part of Ms N’s
evidence was that a shoe belonging to TN and underwear belonging to
MN were left behind at the perpetrator’s
home and when a search
was effected shortly after the incident these items could not be
found. This is a significant factor favouring
the appellant.
[8] Mr N’s
testimony contradicted the evidence that the appellant was found
outside the house. According to him the appellant
only emerged from
his quarters after they had knocked on the door. His evidence as to
how the complainants identified the appellant
is as follows: ‘.
. .I asked him if he knows the children. . .He indicated that he does
not know them and I asked the kids
and then they said that they know
him. . . I asked them if he was the one whom they were relating to
me. . . and they indicated
that he was the one.’ As already
stated it is clear that TN was prompted in her identification.
[9] TN testified
that she and MN were both called into the house where they were
raped, and she pointed to a place where the appellant
resides. It
bears recording that the place where the appellant resides was
referred to as a homestead, suggesting that his was
not the only
living quarters within the immediate vicinity. It should be borne in
mind that TN’s initial identification of
the perpetrator to Mr
and Ms N was that it was a boy who had committed the offence in
question. It is common cause that the appellant
was 27 years old and
could not by any stretch of the imagination be described as a boy.
Yet another aspect in favour of the appellant.
[10] It was
suggested that the appellant’s disappearance for the three
weeks following the confrontation between himself and
Mr and Ms N,
was a feature to be taken into account against him. He provided an
explanation for his disappearance, which on its
own, having regard to
the paucity of reliable evidence, cannot be rejected.
[11] To sum up, the
identification evidence for the reasons set out above cannot be
relied upon to sustain a finding of guilt.
Consequently the appeal
must succeed. The appeal is upheld and the following order is made:
‘The
convictions and sentences imposed by the high court on the two
charges of rape are set aside.’
HK SALDULKER
JUDGE OF APPEAL
APPEARANCES
For appellant M
Madima
Instructed
by: Thohoyandou Justice Centre Thohoyandou
Bloemfontein Justice Centre
For Respondent A
Madzhuta
Instructed
by: Director of public Prosecutions, Thohoyandou
Director of
Public Prosecutions, Bloemfontein
1
S
v Carolus
[2008] ZASCA 14
;
2008
(2) SACR 207
(SCA) para 32.
3
S
212
(4)(
a
)
reads as follows: ‘Whenever any fact established by any
examination or process requiring any skill –
(i)
in biology, chemistry, physics, astronomy,
geography or geology;
(ii)
. . .
(iii)
in computer science or in any discipline
of engineering;
(iv)
in anatomy or in human behavioural
sciences;
(v)
in biochemistry, in metallurgy, in
microscopy, in any branch of pathology or in
toxicology; or
(vi)
in ballistics, in the identification of
fingerprints or body-prints or in the examination of
disputed documents, Is or may become relevant to the
issue at criminal proceedings, a document purporting to be an
affidavit made
by a person who in that affidavit alleges that he or
she is in the service of the State or of a provincial administration
or
any university in the Republic or any other body designated by
the Minister for the purposes of this subsection by notice in the
Gazette
, and that he or she has established such fact
by means of such an examination or process, shall, upon its mere
production
at such
proceedings
be
prima
facie
proof of such fact: Provided that the person who may make such
affidavit may, in any case in which skill is required in chemistry,
anatomy or pathology, issue a certificate in lieu of such affidavit,
In which event the provisions of this paragraph shall
mutatis
mutandis
apply with reference to such certificate.