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[2019] ZAGPJHC 304
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Nhlozi v S (A315/17) [2019] ZAGPJHC 304 (16 August 2019)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
SOUTH GAUTENG DIVISION, JOHANNESBURG
CASE
NO: A315/17
ZWELITHINI
WONDERBOY
NHLOZI
APPELLANT
And
STATE
RESPONDENT
JUDGMENT
KEKANA AJ:
Introduction
[1]The appellant was charged in
the Germiston Regional Court on the following counts:
Count 1: Kidnapping
Count 2: Rape in terms of section
3 of Act 32 of 2007, read with the provisions of section 51 of Act
105 of 1997.
He was found guilty on the count
of rape and sentenced to (10) years imprisonment. He is appealing
both his conviction and sentence.
[2] The version of the State is
that the appellant and his co-assailant accosted the complainant and
forced her to go with them
to an RDP house where they raped her and
kept her for approximately 6 hours against her will. The appellant’s
defense is
an alibi in that he was in Port Elizabeth during the time
when the rape is alleged to have taken place.
[3] It is submitted on behalf of
the appellant that the complainant failed to describe the appellant
and thus the identification
is unreliable. It is further submitted
that the chain of evidence regarding the DNA has not been established
as the doctor who
took samples from the complainant was not called to
testify at the trial. It is contended that the trial court ought to
have found
that the appellant’s version that at the time of the
alleged offence he had gone to Port Elizabeth to see his pregnant
girlfriend
was reasonably possibly true.
[4] It is trite that the powers
of the appeal court to interfere with the factual findings of the
trial court are limited to where
there has been a material
misdirection on the part of the trial court (see S v Hadebe
1997 (2)
SACR 641
(SCA) at 645f ); R v Dhlumayo and another
1948 (2) SA
677
(A). The state bears the onus to prove its case beyond reasonable
doubt. The corollary to the abovementioned onus of proof is that
the
accused is entitled to be acquitted if it is reasonably possibly true
that he might be innocent.
Identification
[5] It is submitted on behalf of
the appellant that there is not sufficient evidence of identification
to prove beyond reasonable
doubt that, the appellant was one of the
perpetrators especially since the complainant did not know the
appellant. The complainant
is the single witness regarding the
identity of the person that raped her. She identified the appellant
in court as one of the
assailants that raped her and could not
furnish any features with which she was identifying the appellant.
[6] According to the complainant
when they arrived at the RDP house, the assailants switched on the
light which was an electric
light bulb. She spent about 6 hours in
that house with the assailants and therefore had ample opportunity to
observe his assailants.
She indicated when she reported the matter to
the police that she would be able to recognize her assailants if she
saw them again.
[7] It is a well-established
principle that it is not sufficient for the identifying witness to be
honest, the reliability of her
evidence must also be tested.
Sincerity and subjective assurance are not enough. Various factors
such as lighting, proximity of
the witness, opportunity for
observation, corroboration, the height, built of the appellant and
evidence of the appellant ought
to be taken into account. These
factors are not individually decisive but must be weighed one against
the other in light of the
total evidence (see S v Mthetwa
1972 (3) SA
766
(A) at 768 A-C; S v Charzan and Another
2006 (2) SACR 143
SCA at
147 I-J).
[8] The trial court found the
complainant to be a credible witness. It concluded that the
complainant had properly identified the
appellant as she had
sufficient time to observe her assailants. This was so despite the
fact that the complainant did not provide
any description of her
assailants. It is not sufficient for the witness to be honest as
identification is not merely a matter of
credibility but one of
objective reliability. The court is required to guard against the
inherent risk of misidentification by
an otherwise honest witness.
There was no identity parade in this case and therefore the
complainant’s evidence regarding
the identity of her rapist
needed to be tested with great care. The complainant did not provide
any description of the appellant
such as the features, marks by which
she identify the rapist. There was also no evidence regarding the
height, built, clothing
or complexion of the rapist either at the
trial or when she first reported the case at the police station. see
S v Sithole and
Others
2002 (1) SACR 585
(W) at 591; R v Shekelele
1953 (1) SA 636
(T). I have to agree with the appellant that the
complaint’s identification of the appellant was not sufficient
and the trial
court erred in accepting her evidence in this regard.
Chain of evidence
[9] I now turn to deal with the
submission made on behalf of the appellant that the state failed to
establish a chain of evidence
regarding the DNA evidence. It is
submitted that the state failed to call Dr Keshav to testify as to
how the sample of the sexual
assault kit was collected to complete
the chain of how the exhibit was handled.
[10] The evidence before the
trial court in this regard was that the complainant was examined by
Dr Keshav who compiled a J88. The
appellant was later arrested as a
result of the investigation due to forensic link. A computer matched
the DNA in the database
from different cases in which the appellant
was involved. The investigative lead was provided to the
investigating officer who
arrested the appellant. Sergeant Mpuka took
a Buccal sample from the appellant and submitted it to the forensic
laboratory.
[11] Ms Reynolds tested the semen
from the sexual assault kit obtained from the complainant and the
saliva swab obtained from the
appellant. She found that the sample
from the sexual assault kit was exactly the same as the DNA result
obtained from the sample
obtained from the appellant. The
abovementioned evidence was largely uncontested.
[12] The trial court noted the
following information from the J88, that: (a) the complainant
reported the rape on the 6
th
June 2013; (b) forensic
evidence was collected from her vaginal vault and cervix the same
day; (c) the complainant was examined
by Dr Keshav; (d) the sample
was taken and the number of evidence collection kit was recorded as
10DIAA0251TF; (d) that the specimens
were handed to Constable Modiba.
[13] The trial court further
noted that the state did not file section 212(4) statement by Dr
Keshav and admitted the J88 provisionally
by agreement between the
parties. The respondent did not call Dr Keshav to testify. Despite
noting that Dr Keshav was not called
the trial court proceeded and
placed much reliance on the evidence contained in the J88 which is
hearsay and thus inadmissible.
[14] It is not in dispute that
the complainant was taken to the hospital where she was examined by
Dr Keshav, a J88 was completed
and a rape kit was compiled. There is
however no evidence regarding the collection of specimen, receipt of
specimen, custody, packing
and marking and delivery of specimen to
the forensic laboratory. In my view the trial court erred in finding
that the evidence
of Mpuka, Reynolds and Ntini established the
necessary chain of evidence and therefore, both the conviction and
sentence falls
to be set aside.
[15] However, the appeal court
has the power to remit the matter to the trial court for correction
of an irregularity in terms of
Section 322(3) of Act 51 of 1977 which
provides as follows:
“
where
a conviction and sentence are set
aside by a court of appeal
on
the ground that a failure of
justice has in fact resulted
from the
admission against the accused of
evidence otherwise admissible but
not
properly placed before the trial court
by reason of some defect
in the
proceedings , the court of appeal may remit
the case to the
trial court with
instructions to deal with any matter,
including the
hearing of such evidence,
in such manner as the court of appeal may
think
fit.”
[16] The abovementioned section
is in my view applicable to the present circumstances. The trial
court admitted the J88 and the
rape kit despite the fact that Dr
Keshav was not called to testify and the section 212(4) affidavit had
not been filed. Constable
Modiba who received the rape kit from Dr
Keshav did not testify as to the receipt, the marking and the
delivery of the specimen
to the forensic laboratory. The court erred
in admitting the above evidence and the evidence of the DNA results
while there was
this missing link. This constitutes an irregularity.
It is therefore my view that the matter should be remitted to the
trial court
for the above evidence to be properly placed before it.
[17] In the result I make the
following order:
1. The conviction and sentence
of the appellant is set aside.
2. The matter is remitted to the
trial court for the evidence regarding the collection and receipt of
specimen, custody, packing
marking and delivery of specimen to the
forensic laboratory to be placed properly before the trial court.
______________________
P D Kekana
Acting Judge of the High Court
I agree
________________________
M L Twala
Judge of the High Court
Date
of hearing: 28 May 2019
Date
of judgment: 16 August 2019
For
the Appellant: Mr E Tlake
Instructed
by: Legal Aid South Africa
Tel:
011 870 1480
For
the Respondent: Mr P T Mpekana
Instructed
by: Office of the Director of Public Prosecutions
Tel:
011 220 4105