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[2023] ZAKZPHC 35
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Khambule v S (AR 267/2018) [2023] ZAKZPHC 35 (24 March 2023)
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IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case no: AR 267/2018
In the matter between:
JABULANI ALFRED
KHAMBULE
APPELLANT
Vs
THE
STATE
RESPONDENT
ORDER
1. The appeal against
conviction is upheld
2. The conviction and
sentence is set aside.
3. The verdict of the
Regional Magistrate is replaced with the following verdict: ‘
Not
Guilty and Discharged on both charges.
’
APPEAL JUDGMENT
Mngadi J
[1]
The appellant appeals against conviction and sentence. The Regional
Magistrate after
a hearing evidence convicted the appellant for one
(1) count of rape and for one (1) count of robbery with aggravating
circumstances.
The court sentenced the appellant to life imprisonment
for rape and to fifteen (15) years imprisonment for robbery with
aggravating
circumstances.
[2]
The charges against the appellant are based on an incident which took
place on 14
April 2013 when the complainant, K [....] L [....], was
accosted, raped and robbed by two assailants. The appellant after his
arrest
first appeared in court on 24 January 2014, he was, after the
trial, convicted and sentenced on 20 March 2018. The sentence of life
imprisonment, in terms of the Judicial Matters Amendment Act 42 of
2013, ss 10 & 11 read with s 43(2) grants to the appellant
an
automatic right of appeal against both conviction and sentence.
[3]
On 16 March 2018 through Legal Aid South Africa, Newcastle, the
appellant filed with
the clerk of court Madadeni a notice of appeal
appealing against conviction and sentence on the charge of rape. The
registrar of
this court after receipt of the appeal record of the
trial, set the appeal down for hearing on 8 March 2019. On 18
February 2019,
State counsel advised the Judges’ Registrar that
the appeal record appeared incomplete. On 15 February 2019, Van Zyl J
advised
the parties that there was no leave to appeal granted in
respect of the charge of robbery with aggravating circumstances. In
addition,
on 19 February 2019 Van Zyl J advised the parties that the
appeal record was incomplete, in particular, of the missing parts of
the evidence, namely; portion of the appellant’s evidence in
chief, entire evidence of Dr Staviska, and that the reconstructed
evidence of constable Mthimkhulu was out of sequence. On 19 February
2019 appellant’s counsel advised Van Zyl J that the
appellant
has instructed Legal Aid South Africa to move an application for
leave to appeal against conviction on the charge of
robbery with
aggravating circumstances. On 8 March 2019, Van Zyl and Mbatha JJ
granted an order for reconstruction of the record
in the usual terms.
[4]
On 13 February 2020 the court manager of Madadeni Magistrate’s
Court advised
the registrar that there were six appeals (including
that of the appellant) outstanding for reconstruction of the record
by the
Regional Magistrate (Ms Lubuzo) who had passed on. On 19
February 2020 the registrar conveyed the problem to the Acting
Regional
Court President. The Acting Regional Court President advised
that the responsible regional magistrate passed away in 2019 and that
no one else is able to reconstruct the missing evidence but enquires
may be made to a National Director of Regional Court Efficiency
Services for an attempt to retrieve the record from the main frame of
the server. On 30 September 2022 the registrar set the appeal
down
for hearing on 17 March 2023. The stamps on the appeal record serving
before us show that on 28 September 2022 it was stamped
by the Clerk
of Court : Madadeni Court and on 30 September 2022 by the registrar
of this court.
[5]
On 2 March 2023, after the appeal as set down was allocated to us, we
received a joint
notice from both counsel. Counsel in the joint
notice advised us that the appeal record transcript is still
defective as it was
in March 2019 and it requires reconstruction. The
notice proposed that the appeal be adjourned
sine die
, and the
record be referred to the clerk of court for the reconstruction. We
responded by advising counsel that a request for postponement
of the
appeal for proper reconstruction of the record is not granted, the
appeal shall proceed as scheduled.
[6]
It is clear from the above that the defects in the record were
pointed out in February
2019 and the reconstruction order was made on
8 March 2019. Similarly, the need for leave to appeal in respect of
the charge of
robbery with aggravating circumstances was raised with
counsel in February 2019. The communication indicates that the
regional
magistrate who conducted the trial passed away late in 2019
and that no one would attend to the reconstruction of the record.
From
February 2019 up to February 2023 no leave to appeal application
was done and no reasons furnished for the failure to do so. The
request on 2 March 2023 to postpone the appeal did not provide any
grounds to indicate that the reconstruction and the leave to
appeal
not done for a period of three (3) years could now be done. Both
counsel during the hearing of the appeal could not furnish
any
reasons of whether the reconstruction of the record was now possible,
and if so, why it was not done. In addition, the appellant’s
counsel could not give any reasons for the failure to do the
application for leave to appeal relating to the conviction on the
charge of robbery with aggravating circumstances. In my view, the
matter has reached a stage to be dealt with despite the incomplete
record and leave to appeal not done. In my view, the defects in the
appeal record are not fatal to the hearing of the appeal. There
was
no dispute relating to the medical evidence and the medical
examination report (J88) was available and it formed part of the
record. The appellant’s defence was mistaken identity. His
version was put to the state witnesses and it is summarised in
the
regional magistrate’s judgment. The record is not inadequate
for a proper consideration of an appeal. See
S v Chabedi
2005
(1) SACR 415
(SCA) at para[5].
[7]
The appellant, as stated above, was charged with and convicted of
rape and robbery
with aggravating circumstances by the regional
magistrate and he was sentenced to life imprisonment for rape and to
fifteen (15)
years imprisonment for robbery with aggravating
circumstances.
[8]
The appellant was legally represented during the trial. The charges
were put to the
appellant and he pleaded not guilty to the charges.
His legal representative disclosed the basis of defence as denial of
all the
allegations and stated that it was a case of mistaken
identity. The regional magistrate after hearing evidence convicted
the appellant
as charged and sentenced him accordingly.
In
S
v Hadebe and Others
1997 (2) SACR 641
(SCA) at 645e it was reiterated that in the absence
of demonstrable and material misdirection by the trial court, its
findings
of fact are presumed to be correct and will only be
disregarded if the recorded evidence shows them to be clearly wrong
[9]
The state lead the evidence from K [....] P [....] L [....], the
complainant. She
testified that in April 2013 she stayed with her
husband and their two children at Section 7 in Madadeni. On 14 April
2013 at about
18h30 she was on her way to her home. She was walking
on foot from Section 3 in Madadeni, after she had disembarked from a
taxi.
She walked through a playground where there were people taking
down a marque close to her home. She noticed two boys walking behind
her. She walked fast. One of the two boys said ‘don’t be
afraid neighbour.’ One of them was carrying a builders’
steel bar square. He is the one who said ‘don’t’ be
afraid neighbour.’ He then placed the square on her
neck in
front pulling it back strangling her from the back. He told her that
if she screams or do anything she would die. He strangled
her with
the square until she fell down. As she fell she had a cell phone in
her hand. The other boy took the cell phone from her
and he held her
hands above her head. They asked her for money. She took the money
from her chest pocket and gave it to the boy
who held her hands. He
took the money and he said to the other one they must leave, but the
one with the square said they cannot
leave, he has been lusting for
her for a long time. The one with the square was the appellant. The
appellant then removed her tights
and panties whilst his companion
continued holding her hands. She was still on the ground lying facing
up. He then got on top of
her after he had removed his jeans. He
tried to insert his penis into her vagina but he could not because he
had no erection. He
then said he could not get aroused, he then
called his companion who was still holding her. The appellant then
held her, his companion
removed his pants. He got on top of her. He
inserted his penis into her vagina raping her until he finished.
[10]
The complainant testified that the appellant’s companion after
he finished raping her held
her and the appellant got on to her and
he raped her until he finished. When the appellant’s companion
saw that she was looking
at the appellant’s face, he hit her on
her face with a fist. Her cell phone in her breast switched on. The
appellant said
she was making a fool out of them, he took the cell
phone. The appellant continued raping her until he finished. She
asked the
appellant to give her the sim cards of the cell phone. He
agreed, and he said as he got up he has been lusting for her for too
long.
[11]
She testified that she got up and she opened a gate to her home. She
got into the house and she
switched on the lights. She went to her
neighbour where she had left the children. She phoned her husband and
she told him what
had befallen her. He arrived later and other
members of the community joined them in looking around for the
assailants but they
did not find them. They met a police officer. She
described the assailants to the police but the assailants were not
found.
[12]
The complainant testified that she had not initially recognised the
appellant, she recognised
him when he got on top of her. He was a
person she knew by sight. She had seen him in the area. She with her
cousin met him in
the streets and they would greet each other. He
referred to them as neighbours. She did not know his name and she did
not know
where he lived.
[13]
She testified that the appellant was wearing a blue top of a worker’s
gear and a faded
blue jean. She did not see what he was wearing on
his feet. He spoke with a stutter. She did not see what the
appellant’s
companion was wearing or how he looked like except
that he was tall. She would not be able to recognise him. She
testified that
at the spot where she was attacked by the appellant
and his companion it was dark but not too dark. There was a street
light about
40 metres away providing light. No light came from her
house. The complainant testified that in the neck area she sustained
bruises,
as well as on her upper arms and shoulders because of being
held and strangled with a square.
[14]
The complainant testified that on 19 October 2013 she walked from her
home to Shoprite. She walked
through a sports field. She then saw the
appellant he was a bit far from her standing at a certain yard and
talking to another
person. She had not seen him since the day of the
incident. She went back to her home and she phoned the police. Around
22h00,
the police arrived and they took her to the place where she
had seen the appellant. The police knocked and they came out with the
appellant. She identified him to the police.
[15]
The complainant testified that when she saw the appellant in October
2013 (after about five (5)
months), she correctly identified him. His
face was always in her mind and she wanted to ensure that he goes to
jail for what he
did. The complainant after she had identified her
police statement, when asked why in her statement she stated that she
was attacked
as she opened the gate to her home, she said it is how
it happened. Asked why in the statement she said her two cell phones
were
taken by the assailants before they raped her, she said it is
how she put it. The complainant in her police statement also said
while the appellant was strangling her with a square from behind his
companion stood in front of her legs and he is the one who
started to
undress her of her tights and underwear, which conflicts with her
evidence in court. In fact in her police statement
it is the
appellant’s companion who first raped her. The complainant
asked why it did not appear in her police statement
that the
appellant said ‘don’t be afraid neighbour,’ said
she did not think of it at the time. The complainant
stated that she
recognised the appellant when he came on top of her for the second
time without explaining why she did not recognise
the appellant when
he first tried to rape her.
[16]
She said they would come across the appellant when he was with one or
two other people. She had
come across him four or five times. She
said she paid particular attention to the appellant because as he was
on top of her for
the second time, he was the kind of a person who
was just talking with her saying he wanted her for a long time, and
that at times
he saw her at the top or when she was walking on the
street. She said she asked him why when he saw her he did not ask her
out
instead of raping her but the appellant said nothing to that. She
asked him for the sim card and he said he would give it to her.
She
said the appellant’s companion when she asked the appellant why
he did not ask her out, struck her with a fist. He whilst
he was on
top of her hit her asking her why was she looking at him. Asked why
in her police statement, she did not state that she
had a
conversation with the appellant. She said she was told that she would
say everything in court.
[17]
The complainant asked, why she stated in the police statement: ‘I
tried to look at them,
the other one with a building square struck or
hit me with his fist and it became dark for me to see their faces’,
she said
that he said that at the time when she was already on the
ground and he had removed this iron piece from her neck . She said
when
he struck her it was at the time when they were raping her. The
complainant was referred to her statement which read as follows:
‘
The African, unknown make who was standing in front of my legs
started to undress, started with my tights and underwear
he calmly
took out his belt, I did not see him, he opened his zip but with no
condom on, he started to rape me, forcing his penis
in my vagina, but
he did not finish because his penis got un-erected so he stopped and
got up to strangle me whilst the other one
raped me after him until
he ejaculated, he was also not wearing any condom’. The
complainant said her statement stated what
she said in her evidence;
she denied that her version in court differed from the version in her
police statement. She said the
appellant’s companion when he
was penetrating her and he saw that she was looking at him, put his
hand over her eyes. She
said the other person was wearing black pants
and a Pirate Football Clubs t–shirt black. She said when the
appellant spoke
to her he stammered, but she could not disagree if
told that the appellant does not stammer because she did not talk to
him for
a long time. The complainant asked, if she had a similar
opportunity to identify the appellant and his companion why would she
was not be able to identify the other person, she said she did not
know what to say. She said ‘even though it was dark, what
I
told myself was to concentrate on one of them even if it was dark, I
would not have gone and alleged that it was him when it
was not. She
confirmed that as recorded in her statement that after they were done
they told her to remain down and not to wake
up as they fled the
scene.
[24]
The other evidence lead by the state was the medical evidence, the
evidence of the constable
who took a warning statement from the
appellant and the evidence of the complainant’s husband. It is
not necessary to summarise
this evidence. The appellant testified and
he denied being involved in the incident.
[25]
The evidence of the doctor confirmed complainant’s injuries
around the neck area. The evidence
of the complainant’s husband
serves as evidence of a first report but otherwise it did not take
the state case anywhere.
The evidence of constable Mthimthulu as it
relates to what the appellant said to the constable and what the
appellant pointed out
to the constable accompanied by certain
utterances required that its admissibility be determined. The defence
indicated that the
warning statement was challenged, that the
accused’s constitutional rights were not observed in taking the
warning statement,
and that the police threatened the accused with
violence to force him to make a statement. The state contended during
the trial
that the warning statement although placing accused at the
scene with a companion, it was exculpatory. There was no trial within
a trial held. The learned regional magistrate stated in the judgment
that ‘in the Warning Statement the accused exonerated
himself
from the commission of the offences and he pushed the blame to one
Jabulani Nhlapho and most importantly, the reading of
the warning
statement clearly suggests that the accused was present at the place
of the incident.’ The reading of the warning
statement shows
that the accused admits meeting with the complainant and taking her
cell phone. In my view, the State in order
to rely on the warning
statement was required to prove its admissibility. It failed to do so
which results in that the admissibility
of the warning statement was
not proved and the reliance on it is irregular.
Section 217
(1) (a)
of the
Criminal Procedure Act 51 of 1977
, further, rules inadmissible
confession statements made to police officers other than commissioned
officers. The warning statement
is a confession statement either to
robbery or to theft. It constitutes inadmissible evidence since the
constable is not a commissioned
officer.
[26]
In the result, the only evidence that implicated the appellant is the
evidence of the complainant.
It is evidence of a single witness and
it is evidence relating to identification. Therefore, it is evidence
to be approached with
great caution. The regional magistrate, apart
from the warning statement, relied on the identification by the
complainant as set
out in her evidence. However, the evidence of the
complainant that the appellant was a person who would meet and greet
her whilst
she was with her cousin was not corroborated by the
cousin; there was no corroborating evidence that the appellant was in
the area
at the time or that he was dressed on that day as described
by the complainant. The appellant was not arrested as a result of the
description given to the police by the complainant. In her police
statements, the complainant did not give a description of the
assailant that fitted the appellant’s description. The
complainant was unable to give any description of the person who she
said was with the appellant who is a person she observed exactly
under the same circumstances as the appellant. She stated that
it was
dark and it shows that she was not in a position to make a reliable
identification. The complainant, comparing her evidence
and the
content of her police statement, a statement made soon after the
incident, is confusing the roles of the two assailants
rendering her
identifying evidence unreliable.
[27]
The regional magistrate failed, in my view, to approach the evidence
correctly, in particular,
in putting weight to the evidence of
constable Mthimthulu, and in failing to take into consideration the
unsatisfactory features
in the evidence of the complainant. In
S v
Mthetwa
1972 (3) SA 766(A)
at 768A-C the court held: ‘
Because of the fallibility of human observation, evidence of
identification is approached by
the Courts with some caution. It is
not enough for the identifying witness to be honest: the reliability
of his observation must
be tested. This depends on various factors,
such as lighting, visibility, and eyesight; the proximity of the
witness ; his opportunity
for observation, both as to time and
situation; the extent of his prior knowledge of the accused; the
mobility of the scene; corroboration;
suggestibility; the accused’s
face, voice, build, gait, and dress; the results of identification
parades, if any, of course
evidence by or on behalf of the accused.’
[28]
There is no difference in the identification of the assailant in the
case of rape and in the
case of robbery with aggravating
circumstances. The appellant instructed his legal representative to
apply for leave to appeal
in respect of the charge of robbery with
aggravating circumstances more than three (3) years ago, which was
not done. The appeal
court has inherent jurisdiction, where injustice
would result, to correct irregularities on the proceedings of the
lower court.
Once the appeal court has found that identification
evidence was not sufficient to sustain a conviction of the appellant
for rape,
it would result in injustice to allow the conviction of
robbery with aggravating circumstances to stand. In the exercise of
its
inherent power the court sets aside the conviction of the
appellant on the charge of robbery with aggravating circumstances.
[29]
It follows that the state failed to prove the guilt of the appellant
beyond a reasonable doubt.
[30]
I propose the following order.
1. The appeal against
conviction is upheld
2. The conviction and
sentence is set aside.
3. The verdict of the
Regional Magistrate is replaced with the following verdict: ‘
Not
Guilty and Discharged on both charges.
’
Mngadi J
I
agree.
Mathenjwa
AJ
APPEARANCES
Case
Number
: AR 267/18
For
the Appellant
: Bongani Mbatha
Instructed
by
: Legal Aid South Africa
DURBAN
For
the respondent
: M. Chamane
Instructed
by
: Deputy Director of Public Prosecutions
PIETERMARITZBURG
Heard
on
: 17 March 2023
Judgment
delivered on
: 24 March 2023