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[2014] ZASCA 103
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Mulala v S (074/2014) [2014] ZASCA 103 (29 August 2014)
THE SUPREME COURT
OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 074/2014
DATE:
29 AUGUST 2014
REPORTABLE
In the matter
between:
JOSEPH MFULA
MULULA
....................................
APPELLANT
And
THE
STATE
.........................................................
RESPONDENT
Neutral citation:
Mulula v The State (074/14) [2014] ZASC 103 (29 August 2014).
Coram: Brand,
Bosielo, Zondi JJA, Fourie et Mathopo AJJA
Heard: 18 August
2014
Delivered: 29
August 2014
Summary:
Criminal appeal – conviction on two charges of rape –
application for leave to introduce further evidence of facts
established subsequent to conviction and sentence –
requirements to be satisfied – further question whether new
evidence
should be allowed in the form of affidavits on appeal or
whether the matter should be remitted to the trial court.
ORDER
On appeal from:
North Gauteng High Court, Pretoria (Moshidi J sitting as court of
first instance):
It is ordered
that:
1 The application
for the hearing of further evidence on appeal is granted.
2 The appeal is
upheld.
3 The appellant’s
convictions by the regional magistrates’ court on two charges
of rape are set aside.
4 The sentence of
15 years’ imprisonment imposed by the high court is set aside.
JUDGMENT
Brand JA
(Bosielo, Zondi JJA, Fourie et Mathopo AJJA concurring):
[1] This is an
appeal against conviction and sentence coupled with an application to
lead further evidence. The appellant was charged
in the Secunda
Regional Court with two counts of rape. In support of these charges
the State alleged that the appellant had intercourse
with the
complainant, who was under the age of ten at the time – to whom
I shall refer as PZ – on two occasions. The
first incident
allegedly occurred in January and the second in February 2004. The
appellant, who was represented by a legal aid
attorney at the trial,
pleaded not guilty. In spite of this plea, he was, however, convicted
by the trial court as charged and
then referred to the North Gauteng
High Court for sentencing pursuant to the provisions of
s 52(1)(b)
of
the
Criminal Law Amendment Act 105 of 1997
. In the event, the matter
came before Moshidi J, who confirmed the convictions and sentenced
the appellant to 15 years’ imprisonment
on both counts, taken
together for purposes of the sentence. The appeal against that order
is with the leave of this court.
[2] The background
facts are as follows. PZ was the stepdaughter of the appellant’s
brother. They lived together in the same
house with other adults and
children. Included amongst the adults were three men. PZ slept in her
own room. She testified that
in January 2004 a man came into her room
while she was asleep, got into bed with her, undressed her and then
proceeded to have
intercourse with her without her consent. She tried
to scream but he put his hand over her mouth and threatened to kill
her if
she should tell anybody. In February 2004 more or less the
same thing happened, but on this occasion she heard someone at her
door.
She tried to keep the door closed but her assailant forced it
open. Thereupon she ran to her bed where her assailant followed her
and once more forced her to have sexual intercourse with him. Again
he threatened to kill her if she should tell anybody what happened.
Because of these threats, PZ said, she did not report the incidents
to anyone. According to PZ’s mother, it came to her notice
some
time after these incidents that PZ experienced some discomfort and
irritation in her private parts. She took PZ to a medical
practitioner, Dr de Villiers, who identified the condition as
emanating from a sexually transmitted disease, herpes 2. When the
mother was informed about the cause of the condition, she questioned
PZ about what had happened whereupon she came out with the
version
that she retold in court.
[3] It was not
suggested that PZ’s account of what had happened to her was
entirely fabricated. What was challenged was her
identification of
the appellant as her assailant. In chief she was quite confident
about this aspect of her evidence. She knew
the appellant well, so
she said, and although the incidents happened at night, the appellant
switched on the electric light on
both occasions before he got into
her bed. Hence she had no problem in recognising him. Yet, under
cross-examination she showed
some misgivings about this issue which
is reflected in the following passage in the judgment of the regional
magistrate:
‘[S]he was not
very certain as to whether the light was on or off, whether the door
is completely closed … so on those
issues later in her
cross-examination she became a bit confused but with regards to the
incident itself she maintain[ed] the accused
on these both occasions
had raped her. And at no stage she was actually told to fabricate
such versions.’
[4] What PZ in fact
said in cross-examination with reference to the January incident was:
‘He went into
my bedroom and I was sleeping and then he came nearer to my bed. I do
not remember if the light was on or not
and then I tried to shout or
scream and then he put his hand over my mouth.’
And on another
occasion she conceded that: ‘I thought it was [the appellant].’
I find this
uncertainty crucial. If the light was indeed not on she could easily
have ‘thought’ – as she said
– that her
assailant was the appellant. In this event the self-evident
possibility is that she could have been mistaken,
albeit honestly,
about who her assailant was. In addition, there is what I regard as
the inherent probability, that with so many
people in the house, the
assailant would not have switched on the light and left it on while
he performed his evil deed. Unlike
the regional magistrate, I derive
no comfort from the subjective certainty on the part of PZ that it
was the appellant who raped
her. Subjective conviction rarely affords
any safeguard against an honest mistake. Nor am I reassured by the
absence of any suggestion
that PZ’s version is a fabricated
one. Again this consideration would have been an answer to the
contention that PZ was deliberately
untruthful. But in the same way
it provides no valid answer to the proposition that she was making an
honest mistake.
[5] In rejecting the
appellant’s denial that he was the assailant, the regional
magistrate relied mainly – if not exclusively
– on the
appellant’s clearly unconvincing thesis as to why PZ and her
mother would have singled him out as the false
target of their blame.
But although the inherent logic of the trial court’s reasoning
in this regard cannot be faulted, our
courts have in the past often
cautioned against this approach since it wrongly supposes an
obligation on the part of accused persons
to explain the motives of
false accusations by their accusers. An adverse credibility finding
against an accused person based solely
on a failure to offer an
acceptable motive for false incrimination, can therefore not be
sustained (see eg S v Lotter
2008 (2) SACR 595
(C) para 38; Maseti v
S
2014
(2) SACR 23
(SCA). But perhaps most important is the
recognition that the State’s difficulty in the instant case is
not so much based
on the possibility of a deliberate false accusation
by PZ, but on the possibility of a mistaken identification of her
assailant.
In the event the inquiry into a potential motive for a
deliberate false accusation does not even arise.
[6] In this light I
have real discomfort about the soundness of the appellant’s
convictions. On the other hand, there is the
time-honoured reluctance
on the part of this court to interfere with the factual findings of
trial courts. As it happens, however,
I find it unnecessary to pursue
this line of enquiry any further, since the outcome of the matter
would, in my view, be sealed
by the new evidence that the appellant
seeks to present, either on appeal or upon remittal to the high
court. The context of this
evidence requires the introduction of some
further background facts. A starting point for this introduction is
the evidence by
Dr de Villiers that PZ was infected by a sexually
transmitted disease, herpes 2, which means that she must have had
sexual intercourse
with someone suffering from that disease. There is
no other way in which she could have contracted it.
[7] In
cross-examination of Dr de Villiers, it was put to her that the
appellant did not suffer from this disease. Her response
was,
however, that herpes 2 could be dormant in the body of the infected
person with the result that the appellant could be suffering
from the
disease without him being aware of the fact. The further point she
made was that once herpes 2 is in a person’s
blood, it remains
there for life and would thus be detectable by a blood test even in a
dormant state. Perhaps, with the benefit
of hindsight, it is rather
surprising that the State did not pursue this avenue. The reason for
the surprise is, of course, that
a simple test of the appellant’s
blood would conclusively determine one way or the other whether the
appellant could be responsible
for PZ’s infection, which would,
in turn, be highly relevant in removing any uncertainty that could
exist about whether or
not she was correct in the identification of
the appellant as her assailant.
[8] This brings me
to the evidence that the appellant seeks to introduce on appeal.
Broadly stated it amounts to this: after the
conviction of the
appellant in the trial court, he was no longer represented by the
same legal aid attorney. Subsequent to sentencing
in the high court,
his new legal representative then sent him for a blood test with the
specific purpose of determining the presence
of herpes 2. A sample of
his blood was taken by a phlebotomist employed by Lancet
Laboratories, Ms P M Hope, and allegedly tested
by another employee
of Lancet, Ms E Havenga. Among the evidence which the appellant seeks
to introduce is firstly reflected in
an affidavit by Ms Hope.
According to this affidavit she took a blood sample from the
appellant on 6 November 2008 in accordance
with the normal procedure
prescribed by her employer and submitted it, again in accordance with
the prescribed procedure, for testing
to the laboratories with the
request that it be tested for herpes 2.
[9] The second
document is a pathology report by Lancet Laboratories with a
reference number and particulars of the patient corresponding
to the
requisition form completed by Ms Hope. Thirdly, there is a report by
Dr Karin Richter, a specialist pathologist in which
she interprets
the pathologist’s report so as to indicate a result which is
herpes 2 negative. In the light of this result
she expressed the
expert opinion that the appellant was not infected with herpes 2 at
‘anytime before the date of the [pathology]
laboratory report
stated above (6/11/2008) and could not have transmitted herpes
simplex virus type 2 to any sexual partner up
to 6/11/2008’.
Finally, there is an affidavit by an employee of the appellant’s
legal representative, to the effect
that Ms E Havenga, who tested the
blood sample, left the employ of Lancet Laboratories and could not be
traced. According to his
affidavit, the same holds true for the
person(s) responsible for taking the sample from Ms Hope to Ms
Havenga.
[10] This court’s
authority to deal with an application to introduce further evidence
derives from s 22 of the Supreme Court
Act 59 of 1959. Although
s 19
of the
Superior Courts Act 10 of 2013
, which is now in operation,
provides for the same powers in virtually identical terms, the latter
section does not find application
because this appeal was already
pending when the new Act commenced on 23 August 2013. Both
legislative provisions referred to,
provide for this court to deal
with an application to introduce new evidence at the appeal stage in
one of two ways: it can hear
the evidence on appeal or it can set
aside the conviction and sentence and refer the case back to the
trial court for the hearing
of the further evidence. However, it is
well-settled that it is only in exceptional circumstances that the
courts will adopt either
of these two courses. Apart from the general
interest in the finality of litigation, there is always the
possibility, having regard
to the frailty of human nature, that
evidence may be shaped or even fabricated to meet the trial court’s
difficulties. Accordingly
this court has over a series of decisions
worked out certain basic requirements. These are summarised thus in S
v De Jager
1965 (2) SA 612
(A) at 613:
‘(a) There
should be some reasonably sufficient explanation, based on
allegations which may be true, why the evidence which
it is sought to
lead was not led at the trial.
(b) there should be
a prima facie likelihood of the truth of the evidence.
(c) the evidence
should be materially relevant to the outcome of the trial.’
[11] In addition,
the general rule is that an appeal court will decide whether the
judgment appealed from is right or wrong according
to the facts in
existence at the time it was given, not in accordance with new facts
or circumstances subsequently coming into
existence. Nonetheless,
this court has previously indicated that the rule is not written in
stone. Evidence of facts subsequently
arising will be allowed in
circumstances that can be described as exceptional and peculiar (see
eg S v EB
2010 (2) SACR 524
(SCA) para 5). Whether or not this test
is met, I venture to suggest, will be dictated by what the interests
of justice demand
in a particular case. Of course, in a sense, the
evidence that the appellant did not suffer from herpes 2 at the time
when PZ was
raped, was available before his conviction, albeit
unknown. Nonetheless I will accept for the sake of argument that the
appellant
must pass the more stringent interests of justice test.
[12] In the present
context the import of the first De Jager requirement, is of course,
not so much why the evidence regarding the
results of the blood test
had not been introduced at the trial, but why the test had not been
done earlier. With regard to the
latter the State’s objection
is that the appellant offers no real explanation for this failure.
Although the objection is
not without merit, it seems to me that the
same criticism can be levelled at the State: why did the State not
request a test for
herpes 2 at the time? After all, as has often been
said, a prosecutor’s role is different from that of counsel or
an attorney
representing a client. Prosecutors stand in a special
relationship to the court. Their primary duty is not to procure a
conviction
at all costs, but to assist the court in ascertaining the
truth. This is particularly so where in this instance the prosecution
went to the trouble of procuring a DNA test. The fact that the
results of the DNA test then proved to be inconclusive is neither
here nor there. The point is that it would have been much easier to
procure a blood test, which by all accounts turned out to be
highly
relevant, than a DNA test. I am not saying all this to cast any
aspersions on the State, but simply to make it plain why
I do not
regard this as an instance where the appellant and his legal
representative should take sole responsibility for the fact
that the
blood test had not been done earlier.
[13] As to the
second leg of the De Jager test, I am satisfied that the evidence
regarding the blood test is at least prima facie
true. This is not a
case where it could be suggested that the new evidence had been
manufactured or shaped to erode the basis of
the convictions or
sentence (see eg S v H
1998 (1) SACR 260
(SCA). The State’s
objection under this heading rests on the grounds, (a) that the
evidence tendered does not prove the chain
of custody of the blood
sample, nor the correctness of the test, and (b) that the medical
legal report by Dr Richter was not made
in terms of
s 212
of the
Criminal Procedure Act 51 of 1977
. But as I see it, these objections
do not detract from the fact that the evidence is at least prima
facie true. In consequence,
the objections are more relevant to the
enquiry further down the track, namely, if the evidence is to be
allowed at all, whether
this court should accept the evidence in the
form of the affidavits tendered or whether it should set the
convictions aside and
refer the matter back to the trial court for
the hearing of oral evidence.
[14] The third
requirement of De Jager, that the evidence should be materially
relevant to the outcome has, in my view, clearly
been satisfied. The
State’s contention in this regard is that even if the evidence
is accepted it would not justify the conclusion
that it was not the
appellant who raped PZ. Its argument in support of this contention
was twofold. First, that the possibility
cannot be excluded that the
appellant was infected with herpes 2 when he raped PZ, but had been
cured before the sample of his
blood was taken on 6 November 2008.
Secondly, that PZ could have been infected with herpes 2 by someone
else before or after she
was raped by the appellant. As to the first
proposition, the possibility raised is in fact conclusively ruled out
by the medical
evidence. According to Dr Richter’s statement,
which is supported by the evidence of Dr de Villiers led by the State
at the
trial, recovery from herpes 2 is simply not possible. It is a
lifelong affliction. Even when dormant it is still present in the
blood of the infected person and will be detected by means of a blood
test. As to the second argument the answer is that it is,
in my view,
far more likely that the nine year old PZ was infected by the rapist
than that she had sexual intercourse with a second
person on another
occasion. According to the trial court’s reasoning, the fact
that PZ suffered from a sexually transmitted
disease, corroborated
her version that she was raped. But if this reasoning is sound, as it
obviously is, logic dictates that she
must have been infected by the
rapist, which means, in turn, that the rapist must have suffered from
herpes 2. Indeed, to my way
of thinking, it can be said that if the
new evidence is to be admitted the convictions and sentences are
bound to be set aside.
[15] Hence I am
satisfied that in the interests of justice, the appellant must be
allowed to present the evidence that he seeks
to introduce. This
gives rise to the next question: should this evidence be admitted on
appeal in the form of the affidavits already
before this court or
should the matter be remitted to the trial court for that purpose?
There are no fixed rules for determining
whether we should adopt the
one approach rather than the other. The disadvantage of remittal is
obviously that of additional delay
in finalisation which is
undesirable, especially in a criminal appeal. On the other hand,
unless the evidence that the appellant
seeks to introduce is
undisputed or incontrovertible, remittal seems to be the only viable
option. In testing the evidence proposed
by the appellant against
this yardstick, the starting point is that the evidence reflected in
the affidavit of Ms Hope is not disputed.
It must therefore be
accepted that she took a blood sample from the accused – whom
she identified by his identity document;
in the process the blood was
collected in a sealed container; the container was marked with a
unique reference number and with
the name and further particulars of
the appellant; the container was then sent to the laboratories for
analysis; and that resulted
in the pathology report before us.
[16] This pathology
report reflects the same unique reference number and further
particulars pertaining to the appellant which Ms
Hope entered on the
sealed container. The report clearly reflects that at the time of the
test the appellant was not suffering
from herpes 2. The State’s
first contention is, however, that the appellant had failed to prove
the chain of custody of the
blood sample. Although the argument is
correct as far as it goes, it raises the rhetorical question –
what are the chances
of the contents of the sealed container being
substituted between Ms Hope and whoever did the analysis? The answer,
I believe,
must be ‘slight indeed’. The State’s
second objection is that the pathology report is not confirmed by the
person
who did the test. That is so. But the original report was
handed to us at the hearing and there is no suggestion that it
contains
any misstatement of the test results. The only remaining
possibility is thus that something could have gone wrong with the
test.
Absent any evidence to support this hypothesis, I think it must
be accepted that the inherent probabilities favour the accuracy
rather than the inaccuracy of the test results.
[17] The final
objection raised by the State concerns the report by Dr Richter. This
report, so the objection went, was not made
in terms of
s 212
of the
Criminal Procedure Act and
is not a proper affidavit at all. I
consider the objection well-founded. Having said that, however, it
seems to me that Dr Richter’s
report does not take the matter
any further. It relates to two aspects only. First, to an
interpretation of the pathologist’s
report that the appellant
did not suffer from herpes 2. But that interpretation appears clearly
from a proper reading of the report
itself. Secondly, it confirms
that, because herpes 2 is for life, the appellant could not have
suffered from herpes 2 at any time
before the sample was taken.
Although that evidence is patently of cardinal importance, it already
appears from the testimony of
Dr de Villiers who was called as a
State witness at the trial.
[18] In these
circumstances, and particularly in the light of the fact that the
trial proceedings were concluded about eight years
ago, I find that
we should allow the evidence in the form of the affidavits before us
rather than to remit the matter to the trial
court. From what I have
said earlier, the consequence is, in my view, that the convictions
and sentence are to be set aside.
[19] It is ordered
that:
1 The application
for the hearing of further evidence on appeal is granted.
2 The appeal is
upheld.
3 The appellant’s
convictions by the regional magistrates’ court on two charges
of rape are set aside.
4 The sentence of
15 years’ imprisonment imposed by the high court is set aside.
F D J BRAND
JUDGE OF APPEAL
APPEARANCES:
For the
Appellant: C Joubert
Instructed by:
Pretoria Justice Centre, Pretoria
c/o Bloemfontein
Justice Centre, Bloemfontein
For the
Respondent: F W van der Merwe
Instructed by:
Director of Public Prosecutions, Pretoria
c/o Director of
Public Prosecutions, Bloemfontein