About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2010
>>
[2010] ZASCA 125
|
|
Vilakazi v S (284/2010) [2010] ZASCA 125 (30 September 2010)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 284/2010
No Precedential Significance
MBUTINI ISAAC VILAKAZI
.................................................
Appellant
and
THE STATE
................................................................................
Respondent
Neutral
citation:
Vilakazi
v The State
(284/10)
[2010] ZASCA 125
(30 September 2010)
Coram:
NUGENT and
HEHER JJA and K PILLAY AJA
Heard:
13
September
2010
Delivered:
30 September 2010
Summary:
Rape
─ whether conviction justified by the evidence – whether
sentence of ten years’ imprisonment excessive.
___________________________________________________________
ORDER
On appeal
from:
North
Gauteng High Court (Pretoria) (Basson J and Makhafola AJ sitting as
court of appeal):
The appeal against conviction and
sentence is dismissed.
__________________________________________________________
JUDGMENT
K PILLAY AJA
(Nugent and Heher JJA concurring)
[1] The appellant was charged, in
the Regional Court of Mpumalanga, with rape. The appellant, who was
represented at the trial,
pleaded not guilty and elected not to
disclose the basis of his defence. He was convicted and sentenced to
10 years’ imprisonment.
On appeal to the North Gauteng High
Court, the conviction and sentence were confirmed. This appeal, which
is with leave of the
court below, is directed at both conviction and
sentence.
[2] The complainant is the
appellant’s maternal aunt. At the time of the incident she was
44 years old and he was 30. According
to the complainant on 1 January
2004, at 3:30 am, she was at the appellant’s parental home. A
quarrel ensued between the
complainant and the appellant’s
mother, Ms Tomnina Ester Pakati, which caused the complainant to
leave. She met the appellant
outside and asked him to accompany her
to her friend Elizabeth’s home. On the way, the appellant
decided to show the complainant
his home at Extension 22.
[3] Upon arrival at Extension 22,
the appellant grabbed the complainant by her throat, led her to his
room where he forcibly had
sexual intercourse with her. He instructed
her not to scream and placed a knife next to her on the pillow. The
complainant eventually
persuaded him to leave so that she could go to
her other sister Gogo’s home. This was about 5:30 in the
morning. The appellant
accompanied her. On the way there, they parted
company and she proceeded to her friend Elizabeth Ngwenya’s
home.
[4] She reported the rape to
Elizabeth, who observed that her neck was swollen. Elizabeth gave her
money and advised her to report
the incident to the appellant’s
parents, which she did. They advised her to report the incident to
the police and took her
to the police station, whereafter she was
taken to a medical doctor at a hospital.
[5] As disclosed in
cross-examination the appellant’s version was an alibi defence
to the effect that he left his parental
home at 2:00 am with his
girlfriend and spent the rest of the early hours of that morning with
his girlfriend at Extension 22.
However, the complainant insisted
that the girlfriend was never present at the appellant’s
parental home.
[6] It was not disputed that
later that day the complainant came across the appellant in hospital
where, so he said, he had gone
for treatment for a foot injury. The
appellant was arrested there.
[7] Elizabeth Ngwenya testified
on the complainant’s behalf and confirmed that the latter had
reported the rape to her on
the morning of 1 January 2004. She said
that she saw ‘black marks’ on the complainant’s
neck.
[8] The doctor who examined the
complainant on 1 January 2004 tabulated his findings on a J88 form,
the contents of which were formally
admitted by consent. There were
bruises on both sides of the complainant’s upper chest. No
other injuries were noted. The
J88 form was admitted together with a
document, bearing the reference 02DIAF3447XX. The document was titled
‘Sexual Assault
Kit’ and recorded that swabs were taken
from the complainant.
[9] Sergeant Makwena, a forensic
analyst at the Forensic Science Laboratory, analysed genital swabs A
and B of specimen 02DIAF3447XX
‘L.A. Phalathi’ and found
that the genital swabs tested positive for semen.
[10] A DNA expert, Sergeant
Mphepu, also testified. His evidence, was that he did a comparative
analysis of a control blood sample,
marked with reference number
02DIAE6202XX ‘I.M.V.’ with genital swabs A and B with
reference ‘02DIAF3447XX LA
Phalati’, which revealed a
99.99 percent match.
[11] In the
process of delivering judgment, the trial magistrate appears to have
realised that formal evidence was lacking that
the blood sample used
for comparative analysis was that of the appellant. It seems that
such an admission might have been made
but had not been formally
recorded. He accordingly posed the following question to counsel for
the appellant:
‘
However
the Court does not have any notes for the formal admission that was
made that the blood sample that was used for comparison
purposes was
in fact the blood sample of the accused, is that in contention or can
the Court record that as a formal admission?’
The record reflects the following
exchange thereafter:
‘
DEFENCE
:
(Inaudible)
COURT
:
Can the court then record it as a formal admission?
DEFENCE
:
(Inaudible).’
And further:
‘
Sergeant
Mogute testified that when he received the said samples at the
laboratory together with a blood sample, which is referred
as to a
control blood sample and which was formally admitted to be that of
the accused’s, he tested the vaginal swabs that
were taken from
the complainant and found them to react positively, in other words
that there was DNA present.’
[12] In his
testimony, the appellant denied that he had any sexual intercourse
with the complainant. He confirmed that he was at
his parental home
until 2:00 am on 1 January 2004, when he left with his girlfriend for
his home at Extension 22.
[13] The appellant’s mother
testified on behalf of the appellant. She said that the appellant had
left her house with his
girlfriend at 2:00 am. The complainant
remained with her until 4:00 am and then returned at 11:00 am to
report that the appellant
had raped her. The appellant’s
girlfriend confirmed his version so far as it related to her.
[14] The trial
court found that the cumulative weight of the DNA evidence, which
positively linked the appellant to the commission
of the crime,
together with the credible evidence of the state witnesses
established the appellant’s guilt beyond reasonable
doubt.
[15] I have
pointed out that in the course of his judgment the magistrate asked
whether it was formally admitted that the blood
sample that was
tested against the specimen of semen had emanated from the appellant.
Notwithstanding the inaudible replies from
counsel it is clear from
the fact that the magistrate proceeded with this questioning, that
such an admission was formally made,
and that was not disputed by
counsel before us. It was submitted on the appellant’s behalf
that the extraction of that admission
was irregular and that it had
not been made on the instruction of the appellant. In those
circumstances, so it was submitted, the
admission falls to be
ignored, with the result that the prosecution had not proved that the
blood sample emanated from the appellant.
[16] I do not
think the magistrate can be said to have acted irregularly in asking
whether a formal admission was being made. He
was entitled to admit
evidence at any stage in the proceedings, which concluded only when
the verdict was delivered (provided,
of course, that it did not cause
prejudice the appellant). In view of the fact that the admission was
indeed made it is clear that
no prejudice was caused merely on
account of the fact that the admission was admitted only while he was
delivering his judgment.
Moreover, it seems that, that was not the
first time that the admission was made. As I said earlier, it seems
that the admission
had indeed been made before that, but had not been
recorded by the magistrate at the time.
[17] It is
well established that an accused is bound by the admissions made on
his behalf by a legal representative unless such
legal representative
has not been properly instructed or the admission was made as a
result of a bona fide mistake.
1
Section 220
of
the
Criminal Procedure Act 51 of 1977
permits a legal adviser to make
any admission on his or her client’s behalf. The aforesaid
section provides:
‘
An
accused or his or her legal adviser or the prosecutor may in criminal
proceedings admit any fact placed in issue at such proceedings
and
any such admission shall be sufficient proof of such fact.’
The contention that the admission
was not made on the instructions of the appellant was no more than an
allegation made from the
bar without any evidence before us that that
was so.
[18] But even without the
admission the evidence was sufficient to establish, by inference,
that the blood sample that was tested
had indeed emanated from the
appellant. It was not disputed that a blood sample had indeed been
taken from the appellant and sent
to the laboratory for analysis. The
possibility that the laboratory then inadvertently tested the semen
sample against some other
blood sample that happened to be there, and
that it coincidentally correlated with the semen sample, which is the
logical conclusion
that follows from the submission, is so remote
that it can safely be rejected.
[19] It was
also submitted that the evidence fell short of establishing that the
equipment used to perform the DNA analysis functioned
correctly for
the performance of the task. In my view the submission has no merit.
The evidence established that the relevant technician
calibrated the
equipment against standard samples, in accordance with ordinary
practices. In the absence of any evidentiary basis
for suggesting the
equipment might have been defective for the task that it was to
perform there was no basis for finding that
that might possibly have
been so.
[20] The
evidence of the complainant that she was raped was not placed in
issue in the course of the trial (nor in argument before
us). The
only matter in dispute was whether the appellant was the perpetrator.
The complainant implicated the appellant shortly
after the rape, both
to her friend and to the police. The trial court found her to be a
credible witness. This finding, on perusal
of the record cannot be
assailed. Her evidence, which in itself might have justified a
conviction, was corroborated by the DNA
evidence. I have no doubt
that the appellant was properly convicted and his appeal in that
respect must be dismissed.
[21] The
offence fell within the ambit of
Part III
of Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
, which carries a minimum
sentence of ten years’ imprisonment. Both the trial court and
the court below were unable to find
that there were any substantial
factors proved that would compel a reduction in sentence.
[22] The appellant’s
transgression must be viewed against the fact that the complainant is
his aunt who is much older than
he is. In asking him to accompany her
in the early part of the morning to her friend’s residence, she
actually sought his
protection. Instead he opportunistically
subjected her to the degradation of rape. She was also assaulted
during the rape and sustained
bruises to her upper chest. There were
no gynaecological injuries noted which is not unusual in women of her
age who have borne
children, as she had. Apart from the violence that
is inherent in the act of rape, this case was aggravated by the
deliberate positioning
of the knife alongside the complaint before
the assault was committed, which was clearly intended to intimidate
her.
[23] The only factors placed
before the trial court in mitigation by the appellant, at the time of
sentencing, were that he was
32 years old, he had two minor children,
and had been employed as a truck attendant. He had a previous
conviction for theft and
was serving a 30 month sentence for assault.
Both the trial court and the court below were unable to find that
these factors were
sufficiently weighty to constitute substantial and
compelling factors, and I agree. I might add that in my view the
sentence that
was imposed was in any event an appropriate sentence,
even had there been no minimum sentence.
[24] In the circumstances the
appeal against conviction and sentence is dismissed.
___________________
K Pillay
Acting Judge of Appeal
APPEARANCES:
APPELLANT: (Ms) L Augustyn
Instructed by Legal Aid Board,
Pretoria
Legal Aid Board, Bloemfontein
RESPONDENT: JJ Kotze
Instructed by The Director of
Public Prosecutions, Pretoria
The Director of Public
Prosecutions, Bloemfontein
1
Dlamini
v Minister of Law and Order & another
1986
(4) SA 342
(D);
S v
Mbelo
2003 (1) SACR
84
(NCD).