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[2011] ZASCA 195
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Magadla v S (80/2011) [2011] ZASCA 195 (16 November 2011)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 80/2011
In the matter between
MCEBISI MAGADLA
…..................................................................
Appellant
and
THE STATE
…................................................................................
Respondent
Neutral citation:
Magadla
v The State
(80/2011)
[2011] ZASCA 195
(16 November 2011)
Coram:
MTHIYANE, MHLANTLA,
BOSIELO, SERITI JJA and MEER AJA
Heard:
15 August 2011
Delivered:
16 November
2011
Summary:
Criminal Law ─
Rape ─ appeal against conviction ─ appellant raising
alibi defence ─ truthfulness of which
was cast in doubt on
appeal ─ appellant correctly identified as perpetrator ─
conviction confirmed.
___________________________________________________________
ORDER
__________________________________________________________
On appeal from:
Eastern
Cape High Court, Mthatha (Griffiths AJ and Petse ADJP sitting as
court of appeal):
The appeal against conviction is
dismissed.
__________________________________________________________
JUDGMENT
___________________________________________________________
MHLANTLA JA (MTHIYANE JA and
MEER AJA concurring):
[1] The appellant was convicted
of rape in the Willowvale regional court and sentenced to ten years'
imprisonment. An appeal against
his conviction was dismissed by the
full bench of the Eastern Cape High Court, Mthatha (Griffiths AJ,
Petse ADJP concurring). The
court below refused leave to appeal. The
appellant now appeals to this court with special leave granted by
this court.
[2] Before us, the appellant does
not dispute that the complainant was raped. The sole issue for
determination in this appeal is
the adequacy or otherwise of the
evidence of identification. The appellant maintained that he is not
the person who raped the appellant.
[3] At the trial the appellant
tendered a plea of not guilty and elected not to disclose the basis
of his defence. Two witnesses
testified on behalf of the State. They
were the complainant and her friend Ms Thobeka Ngobe. The appellant
testified in his defence
and called his cousin Mr Sibongile Mnqetha
as his witness.
[4] The complainant told the
court that on Friday, 15 October 2004, at about 22h00 she went to a
hiking spot not far from Willowvale
after having an argument with her
boyfriend. A man, whom she identified in court as the appellant,
offered her a lift. He was driving
a red vehicle with tinted windows.
The appellant asked her what had happened as she had been crying. She
told him that she had
had an argument with her boyfriend. On the way
the appellant requested that they stop at a tavern where he wanted to
buy beers
for himself. She agreed. On his return from the tavern he
was accompanied by a male person whom he later dropped off. The
complainant
testified that she became concerned when the appellant
drove in the opposite direction. When she enquired from him as to
what was
going on, the appellant ignored her and just kept on
drinking his beer. He drove to a homestead in the district of
Willowvale.
[5] He parked the vehicle and
ordered her to get out of the vehicle but she refused. The appellant
then pointed a firearm at her
and forced her out of the vehicle. He
ordered her to enter a certain room after instructing a person who
had been inside to sleep
in another room. The room was illuminated by
an electric light. He ordered the complainant to sleep with him, she
refused after
which he pulled her. A struggle ensued between them as
she tried to prevent him from removing her clothes. He overpowered
her and
forcibly removed her clothes. As a result, her trousers were
torn. He picked up some condoms and grabbed her. She tried to push
him away but he overpowered her and then raped her. She later saw him
discarding the original condom and replacing it with a new
one
whereupon he raped her again.
[6] The appellant kept her in the
room until the next morning. In the early hours of the morning he
stated that she would have to
leave before the other people in the
homestead awoke. They left at about 05h00. He dropped her at a
certain spot on the way to
the Taleni locality and gave her an amount
of R20 and said 'you can decide what to do'.
[7] The complainant boarded a
taxi and went to the home of her friend Thobeka in Dutywa. Thobeka
provided her with a place to sleep.
She reported her experience to
Thobeka. She awoke during the day and washed herself. Thobeka
accompanied her to town ─ to
a shop called Just on Cosmetics.
[8] The complainant told the
court that it was upon returning to Thobeka's home that she saw a red
vehicle and recognised the driver
as the man that had raped her. She
pointed out the vehicle to Thobeka and told her what had happened to
her. According to the complainant,
Thobeka requested her brother to
take her home. On their arrival, she asked Thobeka to inform her
grandmother about her ordeal.
[9] The incident was reported to
the police at Dutywa police station where the complainant made a
statement. She was unable to provide
the police with particulars of
the perpetrator as she had met him for the first time that night. The
police requested her to notify
them if she ever saw the person in the
neighbourhood again. She was later examined by a doctor. A few days
later she saw the vehicle
that had been driven by the person that had
raped her. It was parked at a Total garage in Dutywa. She immediately
reported this
to the police. This led to the arrest of the appellant
─ the owner of the vehicle.
[10] During her evidence-in-chief
the complainant was asked by the prosecutor if she had the
opportunity to observe the appellant.
She responded in the
affirmative. She was asked further how she observed him. Her reply
was that the light was on in the room where
she had been taken by the
appellant. She further elaborated that the light in question was an
'electric light'. During cross-examination,
the complainant averred
that she had ample opportunity to observe the appellant as they were
together in the vehicle. The lights
of the vehicle were on at the
time. Whilst in the vehicle, she had noticed that he had a firearm in
his possession. She once again
emphasised that the room where the
incident took place was illuminated by an electric light. The
appellant was in the same room
with her until about 05h00 whereafter
he dropped her off. It bears mentioning that she would have been in
the company of the appellant
from about 22h00 to 05h00 the next
morning.
[11] Coming back to the occasion
when the complainant saw the appellant’s vehicle, she testified
that Thobeka was with her
when she saw the vehicle for the first time
after the incident. It was driven by the appellant near the taxi rank
in Dutywa. She
was able to identify the vehicle by its colour and
make. According to the complainant, the vehicle was a red van with a
canopy
and tinted windows. I must mention here that the appellant and
his witness also confirmed that his vehicle was red and had tinted
windows. She saw the vehicle again, three days after the incident,
parked at the Total garage and notified the police. She was
adamant
that the appellant was in fact the person that had offered her a lift
and later raped her. She denied the allegation that
she had falsely
implicated him.
[12] Thobeka Ngobe testified that
on Saturday 16 October 2004, the complainant arrived at her home and
sought a place to sleep.
The complainant woke up at about 11h00 and
had a wash. She requested Thobeka and another friend Thandokazi to
accompany her to
a certain shop. According to Thobeka, the
complainant was very quiet along the way and her demeanour was
different from what it
normally was. Thobeka and Thandokazi enquired
what was bothering the complainant but she did not respond. The
complainant attended
to her business and they returned home.
[13] At about 15h00 they went to
town again because the complainant wanted to use the public phones.
They were returning home when
they saw a twin cab with tinted
windows. The side windows were dark whilst the windscreen was
partially tinted. Thobeka testified
that she had mentioned to the
complainant that the sight of the vehicle reminded her of one
Mshefan, who was a student at J S Kanjana
School. She said she knew
the driver of that vehicle as she used to see him at the
above-mentioned school when he came to fetch
Mshefan. Mshefan used to
say the driver was his father. Thobeka noticed that the complainant
appeared to be uncomfortable and looked
down when she spoke about
this man.
[14] Thobeka testified that the
complainant was traumatised but did not disclose the cause thereof to
anyone. Thobeka and her family
were concerned about the complainant's
state of mind and decided to take her home. They hoped that she would
disclose her problem
to her family. She broke down and cried along
the way. On arrival, the complainant initially did not report to her
family that
she had been raped, but eventually told her grandmother.
Her grandmother later related the story to Thobeka. In essence, the
grandmother
told her that the complainant had reported that she had
been raped by the owner of the motor vehicle they had seen in town.
Thobeka
thereafter narrated to the court what the complainant's
grandmother had told her.
[15] During cross-examination
Thobeka was adamant that she knew the man she had seen in town on
that Saturday afternoon, driving
the red vehicle which had been
converted into a van. She identified the appellant as the driver of
the said vehicle. The appellant's
alibi defence was for the first
time put to the witness ─ that he had attended a funeral during
that weekend. Thobeka denied
the allegation. She was adamant that on
that Saturday between 15h00 and 16h00, she had seen the appellant
driving his vehicle,
in town, as she and the complainant left the
public phones. She denied the allegation that the appellant’s
vehicle was not
operational. According to her, he was driving the
said vehicle when she saw him and it had been sent to the Total
garage for repairs
on a different date.
[16] The appellant testified that
he resides in Bende location, Taleni locality. He raised an alibi
defence. He denied the allegations
against him and stated that he had
attended a funeral on 16 October 2004, at Fort Malan locality,
Willowvale district. He had spent
the Friday afternoon and evening at
the family homestead assisting with funeral arrangements together
with his cousin Mr Sibongile
Mnqetha. He admitted to being an owner
of a red vehicle that had been converted into a van and which had
tinted windows. However,
it had not been operational during the
weekend of 15 October. On Saturday 23 October, he and his cousin
towed the vehicle to the
Total garage in Dutywa for repairs. He
thereafter went to Mncwe Village to attend a funeral. He returned to
the garage later that
afternoon to collect his vehicle. He was
advised that the police had confiscated the keys as they were looking
for him. He thereafter
proceeded to the police station where he was
arrested.
[17] The appellant’s cousin
Mr Sibongile Mnqetha supported his version regarding their attendance
at the funeral. His testimony
mirrored the appellant’s version.
According to Mnqetha, the funeral was held on Saturday, 16 October
2004, and they had been
busy from the Friday afternoon. He further
testified that none of the appellant’s children ever attended
school in Dutywa
and he did not have a child with the name of
Mshefan.
[18] The regional magistrate
placed considerable emphasis on the fact that the appellant had not
disclosed the particulars of his
alibi defence to the State
witnesses. The magistrate rejected the appellant's version as false.
He found the complainant’s
evidence credible and accepted the
evidence adduced on behalf of the State. He therefore convicted the
appellant of rape.
[19] The court below, correctly
in my view, held that the magistrate had misdirected himself when he
laid significant emphasis on
the appellant's failure to disclose the
alibi defence to the State witnesses, as certain details had at least
been put to Thobeka
albeit not to the complainant. The court below
therefore considered the evidence afresh. Regarding the alibi
defence, the court
held that the appellant had to be mistaken about
the date on which he attended the funeral in view of the totality of
the evidence
and the probabilities. It accepted the evidence tendered
on behalf of the State. The court below dismissed the appeal as well
as
an application to enable the appellant to pursue his appeal
further. As indicated earlier, special leave to appeal was granted by
this court.
[20] In this court, counsel for
the appellant levelled a number of criticisms against the manner in
which the trial court as well
as the court below assessed the
evidence. First, he submitted that the case was decided on
probabilities. Second, that the complainant
was not a credible
witness and that her evidence could not be accepted in the absence of
corroborating evidence implicating the
appellant. Third, he argued
that the issue of identification was dealt with in a perfunctory
manner and that the State witnesses
contradicted each other with
regard to the issue of the first report. Finally, he contended that
no clear finding was made by the
court below that the appellant’s
version was false.
[21] Regarding
the probabilities, it is so that the court below tested the evidence
against the inherent probabilities. There is
nothing wrong with this
approach. This issue was considered in
S
v
Chabalala
,
1
where Heher
AJA held
that:
'The correct
approach is to weigh up all the elements which point towards the
guilt of the accused against all those which are indicative
of his
innocence, taking proper account of inherent strengths and
weaknesses, probabilities and improbabilities on both sides and,
having done so, to decide whether the balance weighs so heavily in
favour of the State as to exclude any reasonable doubt about
the
accused's guilt.'
[22] In the present case, there
are certain indiciae in the evidence that lend credence to the
complainant’s version and cast
doubt on the appellant’s
alibi defence. Take for example the unlikely coincidences inherent in
the appellant’s version.
According to his version he would have
been some 110 kilometres away from the place where the rape happened.
By some coincidence
the person who raped the complainant has a red
car with tinted windows – the same as his. The rapist's red car
is modified
and the appellant too, has a modified vehicle. The rapist
was carrying a firearm and he, too has a firearm. One may ask
rhetorically
as to what the probabilities are of having such matching
features where people live more than 100 kilometres apart. In my view
these factors are quite significant in testing the truthfulness or
otherwise of the alibi defence, which was in any event not put
to the
complainant in cross-examination. In my view it was permissible for
the trial court to have regard to these probabilities.
[23] It is
trite that the State has to prove its case against an accused beyond
reasonable doubt and the evidence of a single identifying
witness
must be clear and satisfactory in all material respects. But it must
not be forgotten that the court must have regard to
all the evidence
including that of an accused. I have already alluded to the fact that
the acceptance of his alibi depends amongst
other things upon the
acceptance of the three unlikely coincidences referred to above. On
the question of having regard to all
the evidence Nugent J remarked
as follows in
S
v Van der Meyden
:
2
'The proper test is
that an accused is bound to be convicted if the evidence establishes
his guilt beyond reasonable doubt, and
the logical corollary is that
he must be acquitted if it is reasonably possible that he might be
innocent. The process of reasoning
which is appropriate to the
application of that test in any particular case will depend on the
nature of the evidence which the
court has before it. What must be
borne in mind, however, is that the conclusion which is reached . . .
must account for all the
evidence.'
[24] The
correct approach to the evaluation of an alibi defence was set out by
Holmes AJA in
R
v Hlongwane
:
3
'The
legal position with regard to an alibi is that there is no
onus
on
an accused to establish it, and if it might reasonably be true he
must be acquitted.
R
v Biya
1952
(4) SA 514
(AD). But it is important to point out that in applying
this test, the alibi does not have to be considered in isolation. I
do
not consider that in
R
v Masemang
1950
(2) SA 488
(AD) Van den Heever, JA had this in mind when he said at
pp 494 and 495 that the trial Court had not rejected the accused's
alibi
evidence "independently". In my view he merely
intended to point out that it is wrong for a trial Court to reason
thus:
"I believe the Crown witnesses.
Ergo
,
the alibi must be rejected." See also
R
v Tusini and Another
,
1953 (4) SA 406
(AD) at p 414.
The
correct approach is to consider the alibi in the light of the
totality of the evidence in the case, and the Court's impressions
of
the witnesses.'
[25] The
identification of the appellant as the rapist is based on the
evidence of a single witness.
Section 208
of the
Criminal Procedure
Act 51 of 1977
provides that an accused may be convicted of any
offence on the single evidence of any competent witness. There is no
magic formula
to apply when it comes to the consideration of the
credibility of a single witness. The trial court should weigh the
evidence of
the single witness and consider its merits and demerits
and having done so, should decide whether it is satisfied that the
truth
has been told despite the shortcomings or defects in the
evidence.
4
[26] Our
courts have repeatedly stated that evidence of identification must be
approached with caution. In
S
v Mthetwa
5
Holmes JA made
the following observation with regard to the approach to be adopted
when considering the evidence of identification:
'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 . . . .'
I will return
to the dictum of Holmes JA in
Mthetwa
and try to
show how the facts of that case are distinguishable from the facts of
this case in so far as they bear on the question
of identification.
[27] I turn briefly to the
evidence of the first report. In this respect the complainant
testified that she made a report to Thobeka
when she saw the vehicle
in town. On the other hand, Thobeka testified that the complainant
did not make any report to her but
to her grandmother. Counsel for
the appellant made much of the apparent contradictions regarding the
first report. He contended
that not much reliance could be placed on
the evidence of these witnesses.
[28] It is so
that the complainant and Thobeka contradicted each other as described
above. The court, however, has to determine
the nature and impact of
such contradictions based upon the entire evidence of these
witnesses. Another factor that has to be borne
in mind is that the
complaint
per
se
cannot be used
to prove the truth of its contents nor is it corroboration of the
complainant’s evidence. Its purpose is to
show lack of consent
and consistency.
6
In so far as
the contradictions are concerned, these, in my view, are not material
in nature and do not render the veracity of the
evidence suspect.
Contradictions
per
se
do
not lead to the rejection of a witness’ evidence. They may
simply be indicative of an error. Not every error made by a
witness
affects his or her credibility; in each case a trier of fact has to
make an evaluation, taking into account such matters
as the nature of
the contradictions, their number and importance and their bearing on
other parts of the witness’ evidence.
7
[29] Regarding the attack on the
approach adopted by the courts during the assessment of the evidence,
it is important to note that
the appellant made his attendance at a
funeral on the day of the alleged incident a major challenge to the
complainant's credibility.
However, if the evidence of the
complainant were to be accepted and the appellant’s alibi
rejected, it would follow ineluctably
that on 15 October 2004, at a
time when the appellant testified that he was at Fort Malan, busy
attending to funeral arrangements,
not only was he at Taleni locality
with the complainant but that he also raped her.
[30] It must
be accepted that the dictum of Holmes JA in
Mthetwa
remains
good law. However, the distinguishing feature between this case and
the
Mthetwa
case is that
the complainant’s identification of the appellant was not based
solely on a so-called 'dock identification' or
on a fleeting
encounter in adverse lighting conditions. She was in the company of
the perpetrator from about 22h00 to 05h00. There
were no adverse
circumstances when she accepted a lift from him and thereafter
travelled with him in his vehicle. The appellant
had not threatened
her in any manner whatsoever as she went along with the promise he
had made to take her to her destination.
They were in close proximity
to each other in the vehicle and as I have said at that stage there
was no reason for her to be frightened.
She was clearly at ease in
his company and even related her argument with her boyfriend. They
drove together to the tavern where
he bought some alcohol and came
out with a male companion. The circumstances changed when he
threatened her with a firearm and
took her to the homestead. There
she was taken to a room that was illuminated with an electric light.
This was not a mobile scene.
They spent several hours in that room.
They were once more close to each other as he had sexual intercourse
with her. In fact she
was able to observe the perpetrator when he
discarded the original condom and replaced it with a new one. The
perpetrator left
with her the next morning at about 05h00. This, in
my view, tends to suggest that she had ample opportunity to see the
perpetrator
and observe what he was doing. The submission that she
did not have enough opportunity to identify the perpetrator has no
merit
and is accordingly rejected.
[31] The identification not only
rested on the opportunity she had during that night but also on the
identification of the appellant
as the owner of a red vehicle which
had been converted. She again saw this vehicle on two occasions after
the incident. She saw
it when she was in the company of Thobeka and
again a few days later at the garage. She notified the police and
this led to the
arrest of the appellant. At the risk of repetition,
the question to be asked is whether it was a sheer co-incidence that
the complainant
would state that the man that had raped her drove a
red vehicle with tinted windows and that this vehicle had been
converted into
a van ─ a feature that made the vehicle unique.
Furthermore, is it a co-incidence that the appellant happened to own
a red
vehicle, a sedan that had been converted into a van and which
had tinted windows as described by the complainant? I think not. In
my view it would be a remarkable co-incidence if the complainant were
mistaken about the identity of the appellant.
[32] In my judgment, the
complainant had ample opportunity to make a proper and reliable
observation of the appellant. The fact
that she failed to provide a
description of the appellant does not assist him. She was neither
asked in her evidence-in-chief nor
during cross-examination to give a
fuller description than she did, of the appellant. We do not know
what her response would have
been had she been asked. It had been
suggested during the cross-examination of the complainant that she
had falsely implicated
the appellant. No reasons were advanced as to
why she would do that. In my view that possibility is not
sustainable. The evidence
of the complainant contained no material
contradictions save the issue relating to the first report referred
to in paras 26 and
27 above. In my view, the complainant has not been
shown to be an untruthful witness and her testimony was correctly
accepted as
credible.
[33] Thobeka’s testimony
with regard to the events of Saturday, 16 October 2004, cannot be
disregarded. She was adamant that
she had seen the appellant on that
Saturday afternoon driving his vehicle at a time when the appellant
ought to have been at Fort
Malan attending a funeral and also driving
a vehicle that was supposed to have been out of order. In my view,
this evidence serves
as corroboration of the complainant’s
version with regard to the sighting of the appellant on the said
Saturday afternoon.
This would make the appellant's version about his
movements as well as the condition of his vehicle on that Saturday, a
lie.
[34] Regarding the alibi, the
only reasonable inference that can be drawn is that the appellant and
his witness had conspired to
deliberately mislead the court by
concocting false evidence in order to discredit the complainant. The
appellant had lied deliberately
in his evidence about the date of the
funeral. He may have attended a funeral but on a different date. He
was not content therewith
and procured the false evidence of his
cousin to support him in these lies. The court below properly
considered the defence. It
is apparent from its judgment that it
rejected the appellant’s alibi defence. The failure to make a
finding in that regard
does not fundamentally impact on the outcome.
Even though the alibi defence was disclosed before the close of the
State's case,
it is not clear why this defence was not put to the
complainant and emerged for the first time after an adjournment of
about three
months during the cross-examination of the State witness,
Thobeka. The appellant’s defence is accordingly rejected as
false.
[35] The conclusion reached is
not simply on the basis of the finding that the appellant gave false
evidence but also in view of
the totality of the evidence and the
probabilities discussed above. The complainant's evidence pertaining
to the identification
of the appellant is sufficiently strong to
prove beyond reasonable doubt that the appellant was the perpetrator
of the offence
and to render the rejection of the alibi defence. In
the result the appellant's evidence was correctly rejected as not
reasonably
possibly true. There is accordingly no basis to disturb
the trial court’s finding.
[36] For all the reasons set out
above the appeal against conviction is dismissed.
_______________
N
Z MHLANTLA
JUDGE
OF APPEAL
BOSIELO AND SERITI JJA
(dissenting):
[37] We have had the benefit of
reading the judgment of our colleague Mhlantla JA. We are,
regrettably, unable to agree with her
reasoning and conclusion. What
follows are the reasons for our dissent.
[38] As the facts of this case
have been extensively dealt with in the main judgment, we do not deem
it necessary to repeat them.
We shall only refer to those salient
facts which may have been inadvertently omitted and which we feel
will serve to explain our
dissension.
[39] At the heart of this appeal
is the question whether the court below was correct in finding that
the identity of the appellant,
as the person who raped the
complainant on the night of 15 October 2004, has been proved beyond
reasonable doubt. This becomes
even more critical as such
identification was based on the evidence of a single witness which
has to be evaluated against the defence
of an alibi raised by the
appellant.
[40] Our courts have accepted
many years ago that due to the inherent fallibility of human
observation and memory, the evidence
of identification should be
approached with caution as it is dangerously unreliable. It is not so
much the question of whether
the identifying witness is sincere,
honest or even confident about the identity of the person he or she
identified. A court has
to be satisfied that the evidence is reliable
and further that every possibility of an honest but mistaken identity
has been eliminated.
[41] As pointed out in the main
judgment it is correct that the complainant must have had sufficient
opportunity to observe her
assailant. First, on her evidence, she
travelled together with her assailant in his motor vehicle from where
she was offered a
lift to the place where she was allegedly raped.
Second, her assailant was with her in the room which was illuminated
by an electric
light. Third, he drove with her in his motor vehicle
during the early hours of the next morning when he took her away.
[42] Notwithstanding the fact
that this matter revolved around identity compounded by the fact that
the appellant also relied on
an alibi, not enough was done to
properly explore and investigate the contentious evidence of
identification. Regrettably, both
the State and defence dealt with
this all-important aspect in a rather perfunctory fashion. Some
excerpts from the recorded evidence
will demonstrate this amply. This
became evident during the evidence-in-chief of the complainant:
‘
Now,
Ma’am, tell me, did you know the accused before the day in
question? ― No.
It was your first
time to see the accused?…It was the first time, yes.
As this thing took
place at night, did you have an opportunity to observe him?…Yes,
I managed to.
Can you tell this
court how did you observe him?…At the room where he had taken
me to there was a light on.
What source of light
was that?…It was an electrical globe.
Yes. Do you know how
the accused was arrested?…Yes, I do.
Can you tell the
court how he was arrested?…Yes.
Proceed?…The
police said if we managed to see him we must go and notify the police
or any other policeman.
Did you eventually
see him?…Yes, we saw the motor vehicle but he was not in the
vehicle.
Yes?…The
motor vehicle was at the Total Garage. I then notified the police.’
[43] As against Thobeka’s
version aforestated the complainant testified as follows:
‘
Yes?…
I then washed myself. After washing we then went to town.
Yes?… On our
return from town I then saw this motor vehicle and he was also inside
the vehicle. I then pointed it out to
Thobeka.
Yes?… I told
her what happened.
You mean Thobeka?…
Yes. Thobeka.’
[44] It should be patently clear
that the evidence of Thobeka contradicts that of the complainant on a
very material aspect of the
case ie the identification of the
appellant as the assailant. In this context it is important to recall
that it is common cause
that soon after the alleged rape the
complainant went to Thobeka’s home for succour. It is clear
that she is her friend.
Importantly, Thobeka testified that from the
time the complainant arrived at her home that morning until the time
they took her
to her grandmother’s place that afternoon, she
never said anything about the red vehicle or any rape for that
matter. This
is notwithstanding the fact that they had repeatedly
been asking her what was bothering her as she did not appear to be
her usual
self. She tendered no explanation for this rather bizarre
behaviour, considering particularly that Thobeka is her friend.
Surprisingly,
Thobeka heard about the rape episode for the first time
from the complainant’s grandmother later that afternoon
apparently
after some serious cajoling and shouting by her
grandmother.
[45] It is common cause that the
complainant did not give any description either of the appellant’s
physical appearance or
his clothes to the police. Furthermore, there
was no identification parade held to afford the complainant an
opportunity to identify
her assailant. The complainant only
identified the appellant after she was brought to the police station
where he was detained
and she was asked to identify him.
Self-evidently this is akin to dock identification with no or very
little probative value. Even
during her evidence in court, the
complainant did not mention any special, remarkable or peculiar
features or marks with which
she identified the appellant as her
assailant.
[46] The appellant was arrested
solely on the basis of the identification of his motor vehicle which
he had taken to Total Garage
in Dutywa for some repairs. It is this
motor vehicle which the complainant pointed out to the police as the
one driven by her assailant
on the fateful night. This is the only
evidence on which she relied for her identification. It is remarkable
that neither Thobeka
nor the complainant recorded the registration
numbers of this vehicle when they allegedly saw it in town, a day
after the alleged
rape. They could only rely on its red colour and
the tinted windows for its identification. This vehicle is said to be
a red double-cab
which had been converted and which had dark tinted
windows.
[47] As against the above
version, the appellant pleaded an alibi. He testified that on the
night in question he was never in Willowvale
as he was busy at a
night vigil, of a late relative called Silulani Magadla at Fort Malan
attending to the funeral arrangements
for the funeral that was due to
take place the next day on 16 October 2004. Furthermore, he testified
that he could not have used
his vehicle on this night as it had
broken down. Suffice to state this alibi was corroborated by his
cousin, one Mr Sibongile Mnqetha
in all material respects.
[48] Regarding the vehicle, the
appellant admitted that he owned a red double-cab vehicle which had
tinted windows. He testified
however that during that period his
vehicle had broken down and that he could not have used it. As a
result he had it towed to
the Total Garage in Dutywa for repairs.
Incidentally, this is the place where the complainant and her friend
Thobeka identified
the vehicle two weeks after the alleged rape.
[49] In accepting the
complainant’s version, the court below held that because she
was kept in a room which was illuminated
by an electric light, for
the better part of the evening and was only released in the early
hours of the next morning, she had
sufficient opportunity to observe
the appellant to the extent that she subsequently identified him as
her assailant. This is notwithstanding
the fact that she was unable
to give a single physical attribute or mark or item of clothing of
the appellant with which she identified
him. This is compounded
further by the fact that she was unable to describe her assailant to
the police. Contrary to what is stated
in
R v Shekelele
1953
(1) SA 636
(T) at 638, no questions were put to her by either the
State or defence, not even the court itself, regarding any peculiar
features,
marks, height, build, complexion, clothing or any other
indications with which she identified the appellant as her assailant.
The
complainant was content with the bald and unsubstantiated
allegation that she had seen the appellant. Evidently the court did
not
have any independently verifiable and objective evidence to
determine the reliability of her evidence of identification.
[50] It is common cause that the
appellant was identified and arrested through his motor vehicle which
was found at the Total Garage
at Dutywa. The court below appears to
have accepted her version that when she saw this vehicle on the day
after the rape, she readily
pointed it out to her friend Thobeka
after which Thobeka informed her that she knew the owner. However,
Thobeka contradicts the
complainant directly on this crucial aspect.
Thobeka testified that she is the one who saw the red vehicle when
she was with the
complainant and Thandokazi. She then remarked that
it reminded her of one Mshefan who was a student at the J.S. Kanjana
School.
Thobeka identified this red vehicle to be the one she used to
see at the school, when it came to fetch Mshefan. Thobeka testified
that when she said this, the complainant looked down and never
uttered a word. She did not tell Thobeka and Thandokazi at this
crucial moment that the driver of that vehicle had raped her the
previous night. Nor did she tell them thereafter despite their
repeated questions and exhortations for her to tell them what was
wrong with her. The court below appears to have attached insufficient
weight to this material contradiction on the crucial part of her case
and the complainant’s unexplained and bizarre behaviour.
[51] Whilst evaluating the
contradictory evidence of both the complainant and Thobeka regarding
the red motor vehicle, which is
central to the identification of the
appellant, it is important to bear in mind the evidence of the
appellant to the effect that
he does not have a son called Mshefan.
Furthermore the appellant denied pertinently that he was ever at the
school referred to
by Thobeka.
[52] The correct approach to
identificatory evidence was adumbrated as follows in
S v Mehlape
1963 (2) SA 29
(A) at 32A-F:
‘
It
has been stressed more than once that in a case involving the
identification of a particular person in relation to a certain
happening, a court should be satisfied not only that the identifying
witness is honest, but also that his evidence is reliable
in the
sense that he had a proper opportunity in the circumstances of the
case to carry out such observation as would be reasonably
required to
ensure a correct identification; see for example the remarks of
Ramsbottom, AJP, in
R
v Mokoena,
1958
(2) SA 212
(T) at p 215. The nature of the opportunity of observation
which may be required to confer on an identification in any
particular
case the stamp of reliability, depends upon a great
variety of factors or combination of factors; for instance the period
of observation,
or the proximity of the persons, or the visibility or
the state of the light, or the angle of the observation, or prior
opportunity
or opportunities of observation or the details of any
such prior observation or the absence or the presence of noticeable
physical
or facial features, marks or peculiarities, or the clothing
or other articles such as glasses, crutches or bags, etc, connected
with the person observed, and so on, may have to be investigated in
order to satisfy a court in any particular case that an
identification
is reliable and trustworthy as distinct from being
merely
bona
fide
and
honest. The necessity for a court to be properly satisfied in a
criminal case on both these aspects of identification should
now, it
may be thought, not really require to be stressed; it appears from
such a considerable number of prior decisions; see example
the
apprehension expressed by Van den Heever JA, in
Rex
v Masemang
1950
(2) SA 488
(AD), after reference to the cases of wrongly convicted
persons cited in Wills
Principles
of Circumstantial Evidence,
7
th
ed
p 193. The often patent honesty, sincerity and conviction of an
identifying witness remains, however, ever a snare to the judicial
officer who does not constantly remind himself of the necessity of
dissipating any danger of error in such evidence.’
See also
S
v Mthetwa
1972 (3) SA 766
(A) at
768A-C;
R v Dladla and others,
1962
(1) SA 307
(AD) at p 310C.
[53] Although
it may be true that the complainant had ample time to observe her
assailant in a room where there was light, she failed
to indicate, as
is required by both
Shekelele
and
Mthetwa
any peculiar features or indications evident on
the appellant, to satisfy the court that her identification of the
appellant is
not only honest and sincere but is trustworthy and
reliable. This is of even greater significance as the appellant was
not known
to the complainant before. I think this is the classic case
which Williamson JA had in mind when he said in
Mehlape
at 34A-B:
‘
In
the result it seems to me that the appellant in this case was
convicted on the evidence of a single witness whose testimony as
to
identification, though found to be honest, stood untested in regard
to at least two necessarily vital factors and uncorroborated
by any
other proved fact. In the absence of some other material and proper
consideration which could be said to have removed a
reasonably
possible error in the witness’ selection of the appellant as
one of the robbers, it seems to me that the court
should, apart from
other possible considerations, have entertained a reasonable doubt as
to the latter’s guilt.’
[54] We are firmly of the view
that the evidence of identification by the complainant did not pass
the threshold. The bald and unsubstantiated
assertion by the
complainant is not a sufficient safeguard against a possible mistaken
identification albeit honest mistake. This
is particularly so as she
is a single witness. Although
s 208
of the
Criminal Procedure Act 51
of 1977 allows for a conviction of an accused on the evidence of a
single witness, such evidence must be clear and satisfactory
in every
material respect. The evidence of the complainant failed this test.
She has been directly contradicted by Thobeka, her
witness on a
crucial aspect of her case ie the identification of the red vehicle
and the appellant as her assailant. Given these
glaring
contradictions, we are of the view that it cannot be said that it has
been proved beyond reasonable doubt that the appellant
was properly
identified as the person who raped the complainant.
[55] Our
colleague Mhlantla JA seems to have accepted that the complainant’s
apparent confidence and firm belief that the
appellant is her
assailant, as a sufficient basis for the acceptance of her evidence
of identification. Is this apparent confidence
and firm belief by the
complainant a sufficient safeguard to exclude the possibility of an
honest but mistaken identity, particularly
as the appellant raised an
alibi which was never proved to be false beyond reasonable doubt? We
are of the firm view that it is
not. Such an approach is contrary to
the correct legal approach which was clearly set out in
S
v Mlati
[1984] ZASCA 88
;
1984 (4) SA 629
(A) at
632F-633C as follows:
‘
Die
Verhoorhof het bevind dat die klaagster 'n besondere eerlike en
bilike getuie was. Daar is geen rede hoegenaamd om van hierdie
hoë
aanslag van die klaagster as 'n getuie te verskil nie. Inteendeel
spreek die oorkonde duidelik van 'n indrukwekkende eerlikheid
en van
'n opregte poging tot objektiwiteit en billikheid van die kant van
die klaagster in die aflegging van haar getuienis. Daarby
was die
klaagster baie beslis en seker van die korrektheid van haar
uitkenning van die appellant as een van die persone wat haar
aangerand en verkrag het. Juis die klaagster se ooglopende eerlikheid
en haar eie vaste oortuiging van die korrektheid van haar
uitkenning
maan 'n mens egter tot groot versigtigheid by oorweging van die vraag
of haar uitkenning met veiligheid as betroubaar
aanvaar kan word,
want in 'n saak soos die huidige mag die klaagster se eerlikheid en
eie oortuiging nooit toegelaat word om die
afsonderlike ondersoek na
die betroubaarheid van haar uitkenning te vertroebel nie. Waar die
Staat se saak teen 'n beskuldigde
in sy kern uitsluitlik berus op die
uitkenning deur 'n enkele getuie van die beskuldigde as die
misdadiger, lê die gevaar
van 'n verkeerde skuldigbevinding
juis opgesluit in die altoos aanwesige moontlikheid dat die getuie 'n
eerlike fout begaan in
die identifikasie van die beskuldigde as die
misdadiger. Hierdie gevaar, in die samehang van die teenstelling
tussen eerlikheid
en betroubaar-heid is al telkemale in die regspraak
uitgewys, maar die omstandighede van die huidige saak verg dat dit
weer eens
beklemtoon moet word. Om dié rede haal ek by wyse
van voorbeeld uittreksels aan uit twee beslissings van hierdie Hof.
In
die eerste,
R
v Masemang
1950 (2)
SA 488
(A) op 493 het Van den Heever AR gesê:
"The
positive assurance with which an honest witness will sometimes swear
to the identity of an accused person is in itself
no guarantee of the
correctness of that evidence... In Wills on
Principles
of Circumstantial Evidence
7th ed at 193, the learned
author cites a number of cases in which persons have been wrongly
convicted (and even executed) on this
type of evidence, which fills
one with apprehension."
In die
ander saak,
R v T
1958
(2) SA 676
(A) op 681, het Ogilvie Thompson Wn AR gesê:
"Again, undue
weight cannot be attached to the circumstance that complainant
readily picked out appellant at the identification
parade. Her
honesty is undoubted: the vital question is whether the firm belief
of this young girl can be implicitly relied upon."'
Suffice to state that the dicta
quoted above have withstood the test of time.
[56]
Furthermore, it is crucial that the entire evidence be weighed
against the alibi raised by the appellant. It is trite that
there is
no onus on an accused to prove his alibi.
The
correct approach is set out in
S v
Khumalo & andere
[1991] ZASCA 70
;
1991 (4) SA 310
(A) at 327G-I as follows:
‘
Waar
`n beskuldigde `n alibi opper, rus die bewyslas op die Staat. Bestaan
daar gevolglik `n redelike moontlikheid dat die alibi's
van die
beskuldigdes onder bespreking waar kan wees, sal die Staat hom nie
van sy bewyslas gekwyt het nie (
R
v Biya
1952
(4) SA 514
(A) at 512D-E). Die korrekte benadering in dié
verband is om elke alibi aan die hand van die totaliteit van die
getuienis
met betrekking daartoe, en die Hof se indrukke van die
getuies te oorweeg (
R
v Hlongwane
1959
(3) SA 337
(A) at 341 A).’
This is the
test against which the appellant’s alibi has to be evaluated.
See
S v Tandwa
2008
(1) SACR 613
(SCA) para 132.
[57] The appellant may well be
criticised that his alibi was only raised with the second state
witness Thobeka and not with the
complainant. However, as the State
had not closed its case, the State still had an opportunity, if it so
wished, to investigate
and verify the appellant’s alibi. Our
colleague drew, as the only reasonable inference to be drawn from the
totality of the
evidence, the inference that the appellant and his
witness had conspired to deliberately mislead the court by concocting
false
evidence in order to discredit the complainant. With respect,
we disagree as there is no factual basis for such an inference. To
our minds this remains pure speculation. On the contrary it is not
the appellant who tried to discredit the complainant. The complainant
and her friend, Thobeka have discredited themselves on this crucial
aspect ie how the appellant was identified. At the risk of
repetition, the complainant testified that ‘on our return from
town I then saw this vehicle and he was also inside the vehicle.
I
then pointed it out to Thobeka…’. On the other hand,
Thobeka testified that she is actually the one who saw this
vehicle
and told the complainant that it actually reminded her of a person
called Mshefan. The complainant did not respond. This
glaring and
unexplained contradiction should have raised serious doubts about the
reliability of the identification of the appellant
as the assailant.
[58] Reverting to the alibi, if
the prosecutor had doubts about the appellant’s alibi,
appropriate measures should have been
taken to investigate and verify
it as he or she still had ample opportunity as the State had not
closed its case. Given the nature
of the evidence available to the
State, the State had an obligation and ample opportunity to
investigate the appellant’s
alibi. Amongst others, the State
could and should have gone to Total Garage, Dutywa where the mystery
vehicle was found, to verify
when it was brought there for repairs.
Furthermore the State could and should have gone to the home where
the appellant testified
that he was assisting with funeral
arrangements of a family member to verify if it is true or false.
Even a visit by the Investigating
Officer to the funeral parlour
which was responsible for the funeral would have enabled the police
to verify from the records if
there was such a funeral during that
weekend. It is not proper to reject an alibi that has not been proved
to be false on the basis
of some speculative hypotheses not supported
by the evidence. For as long as the alibi remains reasonably possibly
true, the court
cannot reject it. The appellant cannot be faulted for
the unexplained failure by the State, with all the resources
available, to
follow up on his alibi and investigate it properly.
[59] As the
appellant’s alibi had not been proved to be false beyond
reasonable doubt it should not have been rejected. The
correct
approach to this problem was succinctly set out by Jafta JA
in
S v Liebenberg
2005 (2) SACR 355
(SCA) para 14 as follows:
‘
The
approach adopted by the trial court to the alibi evidence was
completely wrong. Once the trial court accepted that the alibi
evidence could not be rejected as false, it was not entitled to
reject it on the basis that the prosecution had placed before it
strong evidence linking the appellant to the offences. The acceptance
of the prosecution's evidence could not, by itself alone,
be a
sufficient basis for rejecting the alibi evidence. Something more was
required. The evidence must have been, when considered
in its
totality, of the nature that proved the alibi evidence to be false.’
[60] In the light of the above we
are not satisfied that the guilt of the appellant had been proved
beyond reasonable doubt. We
would therefore have upheld the appeal
and set the conviction and sentence aside.
_________________
L O BOSIELO
JUDGE OF APPEAL
_________________
W SERITI
JUDGE OF APPEAL
APPEARANCES:
For Appellant : M Tshiki
Instructed by Tshiki & Sons
Incorporated, Mthatha
Mthembu & Van Vuuren,
Bloemfontein
For Respondent : J M K Joubert
Instructed by Director of Public
Prosecutions, Mthatha
1
S
v Chabalala
2003 (1) SACR 134
(SCA) para 15. See also
S v
Shackell
2001 (2) SACR 185
(SCA) at 194G-I.
2
S
v Van der Meyden
1999 (2) SA 79
(W) at 82C-D.
3
R
v Hlongwane
1959 (3) SA 337
(A) at 340H-341B.
4
S
v Sauls
1981 (3) SA 172
(A) at 180E-G.
5
S
v Mthetwa
1972 (3) SA 766
(A) at 768A-C.
6
See
S v Hammond
2004 (2) SACR 303
(SCA) para 12.
7
S
v Mkohle
1990 (1) SACR 95
(A) at 98F-G.