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[2023] ZAKZPHC 125
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M.C.M v S (AR45/2022) [2023] ZAKZPHC 125 (3 November 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
number:
AR45/2022
In
the matter between:
M[...]
C[...] M[...]
APPELLANT
and
THE
STATE
RESPONDENT
Coram
:
Mossop J and Nicholson AJ
Heard
:
27 October 2023
Delivered
:
3 November 2023
ORDER
On
appeal from:
Pinetown Regional Court (sitting as the court of
first instance):
1.
The appeal against convictions and sentences is dismissed.
JUDGMENT
Mossop
J (Nicholson AJ concurring)
:
[1]
The issues in this appeal are narrow. Two
young girls, who did not know each other, were raped a year apart.
Both claim that the
appellant is their rapist. The issue is whether
they are correct. If they are, the only other issue is whether the
appellant received
a just and appropriate sentence.
[2]
The appellant faced two counts of rape in
the Pinetown Regional Court, was convicted on each of those two
counts and was sentenced
to life imprisonment on each count, with the
sentences imposed to run concurrently with each other. By virtue of
the sentences
imposed upon him, he enjoys an automatic right of
appeal in terms of section 309 of the Criminal Procedure Act 51 of
1977 (the
Act).
[3]
That the two complainants, both of whom
were under the age of 16, were raped is not controversial and is not
contested by the appellant.
The first rape occurred on 4 January 2017
and the second one occurred on 16 January 2018. The complainant in
count one was 11 years
old and the complainant in count two was 14
years old when they were raped. Because of their ages, and the fact
that the complainant
in count one was raped twice, the provisions of
section 51(1)
of the
Criminal Law Amendment Act 105 of 1997
, as read
with the provisions of
Part I
of Schedule 1 of that Act, were
applicable. Neither of the complainants knew the appellant prior to
their respective ordeals. Despite
the fact that they were raped a
year apart, the version each narrated on how they came to be raped
contained remarkably similar
facts, as shall shortly become apparent.
[4]
At his trial, the appellant pleaded not
guilty to both counts of rape and elected not to disclose the basis
of his defence. During
the trial, no version at all was put to any of
the complainants on behalf of the appellant other than to deny the
fact that he
was their tormentor. The appellant, significantly, also
elected not to testify in his defence and called no witnesses.
[5]
It
is so that where identification is an issue, as in this case, the
evidence adduced should be considered cautiously. As Holmes
JA said
in
S
v Mthetwa
:
[1]
‘
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 also 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 result of identification
parades, if any; and, of course, the evidence by
or on behalf of the
accused. The list is not exhaustive. These factors, or such of them
as are applicable in a particular case, are
not individually
decisive, but must be weighed one against the other, in the light of
the totality of the evidence, and the probabilities…’
[6]
Both rapes occurred during daylight hours
and each complainant was in the company of the rapist for a
substantial period of time
within which each could make her
observations of him. No identification parade was, however, held, and
each complainant merely
identified the appellant as her rapist by
effecting a dock identification of him at the trial in the court a
quo.
[7]
Evidence of identification elicited in this
fashion must be cautiously assessed. It has its own inherent dangers.
There is a danger
that a lay person on seeing an accused person in
the dock:
‘…
feels
reassured that he is correct in his identification, even though this
may not have been the position were they not there’.
In addition to that,
‘
[t]o
any member of the public ... the fact that an accused is standing in
the dock must naturally be suggestive of him being one
of the parties
involved in the crime, and no witness can be blamed for making such
an assumption, even though it is incorrect’.
[2]
[8]
While evidence of a dock identification is
admissible:
‘…
generally,
unless it is shown to be sourced in an independent preceding
identification, it carries little weight’.
[3]
(Footnotes omitted.)
I
remain mindful of that. But there was other evidential material that
was discovered which was relevant to the identity of the
rapist of
each of the complainants. This was evidence in the form of
deoxyribonucleic
acid (DNA): the rapist of the complainants ejaculated into each of
them, and that ejaculate was later collected
from each of them and
was subjected to scientific analysis by the State.
[9]
While
evidence of DNA profiling may be of great significance in a matter,
the Supreme Court of Appeal has also cautioned that it
must in each
case be viewed in its proper perspective.
[4]
As
Van der Merwe AJA noted in
SB
,
DNA evidence is circumstantial evidence, and the weight that attaches
thereto is dependent on:
‘
(i) The
establishment of the chain evidence, i.e. that the respective samples
were properly taken and safeguarded
until they were tested in the
laboratory.
(ii) The
proper functioning of the machines and equipment used to produce the
electropherograms.
(iii) The
acceptability of the interpretation of the electropherograms.
(iv) The
probability of such a match or inclusion in the particular
circumstances.
(v) The
other evidence in the case.
’
[5]
[10]
None of the first four factors mentioned by
Van der Merwe AJA were in dispute at the trial. They, however,
appeared to be in dispute
in this appeal because counsel for the
appellant submitted in his heads of argument that:
‘…
the
DNA evidence was not properly admitted and as such [sic]
inadmissible.’
That, however, is the sum
of the submission on that issue. The heads of argument do not
elaborate further on the proposition. Counsel
for the appellant, Mr
Nyandu, was invited to add muscle and flesh to this skeleton of a
submission. He commenced by indicating
that he had not drawn the
heads of argument. He almost immediately thereafter finished by
stating that having considered that specific
submission, he was not
inclined to persist with it as he could find no basis for it in the
transcript of proceedings. I think that
was a proper concession to
make for the reasons that now follow.
[11]
At no stage did the defence deny, either
before or during the trial, any aspect of the evidence relating to
the DNA sample harvested
from each of the complainants. The record
reveals this to be the case. Prior to the trial commencing, a
pre-trial conference was
convened. The proceedings at that pre-trial
conference were digitally recorded and transcribed and formed part of
the record submitted
on appeal to this court. At that conference, the
court a quo asked the legal representative for the appellant what the
basis of
the defence offered by the appellant would be. The response
received to this question was the following:
‘
MR
PILLAY
Your Worship, the accused
accepts the evidence, Your Worship, however he says he has no
knowledge of the incident. He doesn’t
want to dispute the chain
however he is exercising his right to remain silent and put the State
to the proof thereof.
COURT
I didn’t hear you about the chain evidence …
[intervention]
MR
PILLAY
We are not disputing
the DNA or the chain … [intervention]
COURT
You’re not disputing the DNA?
MR
PILLAY
The chain, Your Worship.
COURT
As well as the finding of the forensic official?
MR
PILLAY
Correct Your
Worship, I’ve discussed it with the client and I’ve
advised him of his rights, Your Worship. The client
intends to plead
not guilty and has no admissions at this stage that is what he had
informed the Court, there are no 220 admissions
at this stage however
that may change.
COURT
All right. So the trial will be a short one?
MR
PILLAY
Yes, Your Worship.’
[12]
This
demonstrates the approach that the defence intended to take at the
trial insofar as the DNA evidence was concerned. In my view,
that
approach was not deviated from at the trial. I appreciate that no
formal admissions were made by the defence at any time but
what was
stated at a pre-trial conference carries some weight and cannot
simply be ignored. In
Director
of Public Prosecutions, KwaZulu-Natal v Pillay,
[6]
Goosen
JA said the following:
‘
The
High Court concluded that the respondent's right was not explained to
him. Before this court, counsel for the respondent contended
that
whatever had occurred at the pre-trial remand proceedings was
irrelevant, since it was the trial magistrate who was obliged
to
explain and act in accordance with the section. The argument is
without substance. The purpose of the pre-trial conference is
to
ensure that the enrolled case is ready to proceed to trial. Such
pre-trial proceedings are not to be ignored.’
[13]
Consistent with the approach that the
defence intended to adopt as explained at the pre-trial conference is
the following exchange
that subsequently occurred at the trial. The
State gave notice to the court and the defence that it intended to
hand up documentation
that dealt with the DNA evidence. The following
interaction then occurred:
‘
PROSECUTOR
Thank you Your Worship. The State intends leading evidence of DNA in
respect of count 1 and
in respect of count 2. The State is in receipt
of the chain statement from count 1 however before I proceed leading
such chain
statement on record may the defence confirm whether this
is handed in by consent?
COURT
Mr Pillay?
MR
PILLAY
Thank you, Your
Worship. I am canvassing with my client and with the defence and my
instructions are not to dispute.
COURT
Accused do you confirm what your attorney has
stated?
ACCUSED
No objection Your Worship.’
[14]
While the exchanges referred to above make
it plain that the DNA evidence was admitted by the defence, it is
still nonetheless necessary
for this court to determine whether that
admission was correctly made. It cannot be in the interests of
justice to permit a conviction
to stand based upon the admission of
facts that did not establish the proposition admitted. A civilised
and sophisticated legal
system such as ours would not tolerate a
conviction to stand on false evidence.
[15]
Before considering the DNA evidence, it is
necessary to mention that count one had a South African Police
Services (SAPS) CAS number
of 65/01/2017 and count two had a SAPS CAS
number of 392/01/2018. These CAS numbers are frequently referred to
in the documentation
which will presently be considered. It is also
necessary to note that the appellant’s full names are M[...]
C[...] M[...].
[16]
With regard to count one, the prosecutor
presented six documents in the State’s possession that
established the chain of evidence
regarding the specimen collected
from the complainant in that count. These documents comprised of:
(a)
A medical report from Dr K Singh (Dr
Singh), who examined the complainant after she been raped and who
extracted the specimen of
semen from her. He recorded the seal number
that he applied to the extracted specimen as being 14D7AC0738 and
also recorded that
the CAS number was 65/01/2017 and stated that he
had handed it over to a Detective Warrant Officer Ntuli, who is the
investigating
officer on that count;
(b)
An affidavit from the chief clerk of SAPS
Pinetown, one Clemmy Reddy, who confirmed that he had received a
sexual evidence kit from
Detective Warrant Officer Ntuli that bore
SAPS CAS number 65/01/2017 that had not been tampered with and which
bore seal number
PA4002433616 and who handed it to one Sergeant B G
Ndlovu;
(c)
An affidavit from Sergeant B G Ndlovu who
received a sexual evidence kit in a matter with SAPS CAS number
65/01/2017 bearing seal
number PA4002433616 and who conveyed it to
the Forensic Science Laboratory (FSL) in Amanzimtoti;
(d)
An affidavit from the investigating officer
in the matter, the previously mentioned Detective Warrant Officer
Ntuli, which bore
a reference to SAPS CAS number 65/01/2017,
explaining how he came to arrest the appellant;
(e)
An
affidavit deposed to in terms of the provisions of section 212 of the
Act by Ms Haajira Kaldine (Ms Kaldine), who is a forensic
analyst
attached to the Forensic Database Management Section of the Forensic
Services, who verified the outcome of a comparative
search on the
Forensic DNA Database and who compiled a Forensic DNA Investigative
Lead Report. She confirmed that the forensic
DNA profile derived from
SAPS CAS number 648/08/2018
[7]
was the same as the forensic DNA profile in matters with Pinetown
SAPS CAS numbers 65/01/2017
[8]
and 392/01/2018
[9]
; and
(f)
An affidavit deposed to by Ms Jeannie Van
Dyk (Ms Van Dyk), a forensic analyst and reporting officer at the FSL
who received the
case files and DNA results of matters bearing the
Pinetown SAPS CAS numbers 65/01/2017, 392/01/2018 and 648/08/2018 and
who stated
that:
‘
From
the results in Table 1, I can make the following findings:
4.1
The DNA result from the following exhibits
matches the DNA result from the reference sample “M[...]
M[...]” (17DBDD5019) (PA4003499081)
[PINETOWN
CAS 65/01/2017]
, reference sample “MC
M[...]” (16DBBX5553) (PA4002032434)
[PINETOWN
CAS 648/08/2018]
and reference sample
“M[...] MC” (17DBAC3873) (PA4003529045)
[PINETOWN
CAS 648/08/2018]
:
4.1.1
“CERVICAL” swab “A. M[….]”
(14D7AC0738) (PA4002433616)
[PINETOWN
CAS 65/01/2017]
and;
4.1.2
“VAGINA” swab “Z[….] T”
(15D1AA0273) (PA4002611132)
[PINETOWN
CAS 392/01/2018]
.
4.2
The most conservative occurrence for the DNA result from the exhibits
mentioned in paragraph 4.1.1
and paragraph 4.1.2 is 1 in 1.3 million
trillion people.’
[17]
The seal number applied by Dr Singh to the
specimen he drew from the complainant in count one is reflected in
sub-paragraph 4.1.1
of Ms Van Dyk’s report.
[18]
Each one of these six documents, save for
the first, was, correctly, read into the record so that there could
be no confusion as
to what each related to and what the significance
of each document in the total picture being presented by the State
was. The first
document was not read into the record because Dr Singh
gave oral evidence at the trial.
[19]
A similar exercise was performed with
regard to count two. The prosecutor identified four further documents
in the State’s
possession, namely:
(a)
A medical report from Doctor T Mayise (Dr
Mayise), who examined the complainant in this count and who extracted
the specimen from
her. He recorded the CAS number as being
392/01/2018, to which was applied two seals, namely 15D1AA0273 and
PA4002611132 and stated
that he had handed the sealed specimen over
to a Warrant Officer Xulu;
(b)
An affidavit from Sergeant Mathonsi Monica
Nobuhle who received a rape collection kit in matter bearing SAPS CAS
number 392/01/2018
from Warrant Officer Xulu, bearing serial number
15D1AA0273 and handed it to Constable S M Majola;
(c)
An affidavit from Constable S M Majola who
took receipt of a rape kit bearing seal number PA4002611132 from
Sergeant Nobuhle and
conveyed it to the FSL in Pretoria; and
(d)
An affidavit from the investigating
officer, Detective Warrant Officer Ntuli, explaining how he came to
arrest the appellant.
[20]
The State also relied on the affidavit of
Ms Kaldine and Ms Van Dyk on count two. The analysis that each
performed included the
samples in both the first and second count and
was, obviously, only conducted once. The seal numbers applied by Dr
Mayise to the
specimen that he extracted are reflected in paragraph
4.1.2 of Ms Van Dyk’s report.
[21]
The documents relating to count 2 were also
read into the record, save for the medical report prepared by Dr
Mayise, because he,
like Dr Singh, gave oral evidence at the trial.
[22]
The chain of evidence on both counts
remained intact and unbroken.
[23]
The documents relating to the DNA evidence
on both counts were handed in and received by the court, as exhibits.
Before this occurred,
however, the court interacted with the
appellant’s legal representative as follows:
‘
COURT
Mr Pillay?
MR
PILLAY
No objection Your
Worship
COURT
You confirm that?
MR
PILLAY
I confirm that Your
Worship.’
[24]
After handing in these documents, the State
closed its case. Notwithstanding the potentially damaging evidence
contained in the
DNA evidence, which palpably called for an
explanation, the appellant elected not to go into the witness box and
also closed his
case.
[25]
I mentioned earlier in this judgment that
both complainants told versions that included remarkably similar
facts. The complainant
on count one stated that she was near some
shops in Pinetown on the day that she was raped, when a stranger
approached her and
asked her to accompany him to a shop where he was
going to purchase a school uniform for a child who allegedly had the
same body
build as herself. She did so but was taken away from the
shops by the man and was ultimately raped twice by him. The
complainant
on count two said that she was in Pinetown to purchase
school uniforms and asked a man for directions to a particular store
that
apparently sold them. The man that she asked accompanied her to
the store where she made a purchase. He then asked her to accompany
him to his parental home because he claimed to have a school uniform
there that resembled the uniform that the complainant had
purchased,
which he promised to give her. He also promised to purchase her
further school uniforms. She accompanied him away from
the shops and
was also raped.
[26]
After considering the weight to be attached
to a dock identification and after scrutinising the DNA evidence
presented by the State,
I am satisfied that the identity of the
person who raped the two young girls was established beyond
reasonable doubt. That person
was the appellant and the regional
magistrate accordingly correctly convicted him on the two counts of
rape. There was simply no
explanation, other than that offered by the
State, for the presence of the appellant’s semen in each
complainant. The appeal
against conviction must thus fail.
[27]
On
the issue of sentence, it is trite that sentence is a matter that is
the prerogative of the trial court.
[10]
In
S
v Malgas,
[11]
the
court held that:
'A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it. To do
so
would be to usurp the sentencing discretion of the trial court. Where
material misdirection by the trial court vitiates its
exercise of
that discretion, an appellate court is of course entitled to consider
the question of sentence afresh. …However,
even in the absence
of material misdirection, an appellate court may yet be justified in
interfering with the sentence imposed
by the trial court. It may do
so when the disparity between the sentence of the trial court and the
sentence which the appellate
Court would have imposed had it been the
trial court is so marked that it can properly be described as
shocking, startling or disturbingly
inappropriate.'
[28]
This
approach was reaffirmed in
Hewitt
,
[12]
where Maya DP stated that:
‘
An
appellate court may not interfere with this discretion merely because
it would have imposed a different sentence. In other words,
it is not
enough to conclude that its own choice of penalty would have been an
appropriate penalty. Something more is required;
it must conclude
that its own choice of penalty is the appropriate penalty and that
the penalty chosen by the trial court is not.
Thus, the appellate
court must be satisfied that the trial court committed a misdirection
of such a nature, degree and seriousness
that shows that it did not
exercise its sentencing discretion at all or exercised it improperly
or unreasonably when imposing it.
So, interference is justified only
where there exists a ''striking'' or ''startling'' or ''disturbing''
disparity between the trial
court's sentence and that which
the appellate court would have imposed. And in such instances
the trial court's discretion
is regarded as having been unreasonably
exercised.'
[29]
After his conviction, the accused admitted
his previous convictions. They make for shocking reading. They appear
to include several
convictions for rape which chronologically
happened after the two rapes in this matter but in respect of which
he was convicted
and sentenced before his convictions in this matter.
From his SAP 69s received by the court after his conviction, it is
apparent
that one of those rape convictions was under SAPS CAS number
648/9/2018, referred to in the FSL documents prepared by Ms Kaldine
and Ms Van Dyk. The sentences imposed on him for these counts of rape
was life imprisonment.
[30]
In the appellant’s heads of argument,
it is submitted that the court did not attach sufficient weight to
the fact that the
accused is an unmarried man who is 46 years old and
is the father of seven children. It was also submitted that he was a
first
offender insofar as minimum sentence legislation is concerned.
That latter submission need not be considered with any degree of
seriousness and is clearly merely a makeweight. The minimum sentence
legislation of life imprisonment applies equally to first
offenders
provided the offence meets the threshold defined by the legislature.
The offences for which the appellant has been convicted
are so
serious that his personal circumstances must necessarily constitute a
secondary consideration in the search for an appropriate
sentence for
his conduct.
[31]
The appellant is clearly a predator who
preys on women, including young girls. His list of convictions
demonstrates that he shows
no respect for women or their right to
bodily integrity. Our new society prides itself on its hard won
freedoms. When those freedoms
are violated by people like the
appellant, it is grotesque. The appellant is the type of person who
cannot be permitted to enjoy
the freedoms that he denies to others.
He cannot be allowed to live amongst us, for if he does, no woman
will be safe from him.
Life is all about making choices. The
appellant has made his choices and in doing so, he has demonstrated
that he will not obey
the laws that bind all right-thinking members
of society. He must now suffer the consequences.
[32]
I am unable to discern any misdirection
committed by the regional magistrate on the issue of sentence, nor do
I find the sentences
imposed upon the appellant to be repugnant. On
the contrary, the sentences received by the appellant were just and
appropriate
and entirely deserved. The appeal against sentence must
consequently also fail.
[33]
I would accordingly propose the following
order:
1.
The appeal against convictions and
sentences is dismissed.
MOSSOP
J
I
agree
NICHOLSON
AJ
APPEARANCES
Counsel
for the appellant
Mr S
Nyandu
Instructed
by:
Legal
Aid South Africa
Durban
Counsel
for the respondent
Mr M
Gula
Instructed
by
Director
of Public Prosecutions
Pietermaritzburg
Date
of argument:
27
October 2023
Date
of Judgment:
3
November 2023
[1]
S v
Mthetwa
1972 (3) SA 766
(A) at 768A-C.
[2]
S v
Maradu
1994
(2) SACR 410
(W) at 413G-H, cited with approval in
S
v Daba
1996
(1) SACR 243
(E) at 248D-H.
[3]
S v
Tandwa and others
[2007] ZASCA 34
;
2008 (1) SACR 613
(SCA) para 129.
[4]
S
v SB
[2013]
ZASCA 115
;
2014 (1) SACR 66
(SCA) para 17.
[5]
Ibid
para 18.
[6]
Director
of Public Prosecutions, KwaZulu-Natal v Pillay
[2023]
ZASCA 105
;
2023 (2) SACR 254
(SCA) para 39.
[7]
A
SAPS CAS number unrelated to the two counts in this matter but which
is mentioned in the appellant’s SAP 69 form, later
admitted by
him.
[8]
The
first count.
[9]
The
second count.
[10]
S
v Hewitt
2017
(1) SACR 309
(SCA).
[11]
S
v Malgas
2001
(1) SACR 469
(SCA)
para 12.
[12]
S
v Hewitt
2017
(1) SACR 309
(SCA)
para 8;
S
v Rabie
1975
(4) SA 855
(A) 860H-861A.