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[2021] ZALMPPHC 44
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Motlafi v State (A09/2020) [2021] ZALMPPHC 44 (13 August 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
INTHE
HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION-POLOKWANE
CASE
NUMBER: A09/2020
POLLYCARPOUS
MORITHI MOTLAFI
APPELLANT
AND
THE
STATE
RESPONDENT
JUDGEMENT
AML
PHATUDI J
Introduction
[1]
One count of housebreaking with intent to commit an offence
[1]
and one of rape as defined in the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007
[2]
,
were preferred against the appellant at Groblersdal Regional Court-
per Mr G Mogotlane.(Trial court)
[2]
The trial court found the appellant guilty as charged. The sentences
of 5 and 15 years’ imprisonment followed the guilty
verdict on
housebreaking and rape respectively. Two years of 5 years’
imprisonment was ordered to run concurrently with the
sentence
imposed for rape. The appellant was effectively imprisoned to 18
years.
[3]
The appellant’s leave to appeal against both the convictions
and sentences were shown off the hand by the trial court.
Saddened by
the refusal for leave to appeal, the appellant petitioned the Judge
President of this division. The High Court (MG
Phatudi and Kganyago
JJ) granted the appellant leave to appeal against both convictions
and sentences imposed by the trial court.
[4]
This is thus an appeal against both convictions and sentences. The
appellant adumbrated the trial court’s errors and
misdirection(s) in the notice to appeal.
Grounds
of appeal
[5]
The appellant’s grounds of appeal are, in short, (i) that the
trial court failed to consider the state’s failure
to lead
evidence on how the appellant’s saliva was obtained, by whom,
when and where, in finding the appellant guilty and
(ii) that the
trial court erred in accepting the state’s evidence that the
fingerprints uplifted on the crime scene are that
of the appellant.
[6]
The grounds of appeal in respect of the sentences imposed were
abandoned by counsel from the bar, as instructed. The appeal
is thus,
only against convictions.
Factual
background:
[7]
The state, in its quest to proof the guilt of the appellant beyond
reasonable doubt, led the evidence through the testimonies
of several
witnesses. Their evidence demonstrates that, in the middle of the
darkest night of 10 February 2013, an assailant broke
into the house
in which the 66-year-old M[...] M[...] N[...] was in and, wherein
after, a sexual offence was perpetrated on her.
[8]
The assailant and perpetrator left some pointers at the crime scene
which were uplifted and collected. The first pointer is
the
fingerprint uplifted from inside the bathroom window which does not
open. The fingerprint was facing downward. There were no
other prints
uplifted at the scene. The second pointer is the discharge found in
the complainant’s vaginal vault which was
collected by the
doctor. The doctor collected some swabs, packaged and sealed them
before they were handed to the police in charge.
The swabs were taken
to Forensic Scientific Laboratory for further investigation.
[9]
The investigations conducted on both pointers alluded to above,
positively matched those of the appellant.
[10]
The appellant denies that the fingerprint uplifted from the inside
window of the property that was broken into, is his. He
further
denies having ever perpetrated a sexual offence on the complainant.
[11]
The question to be determined is whether the state proved its case
beyond reasonable doubt the guilt of the appellant.
The
Law and legal principles applicable
[12]
As a point of departure, the principle set in
R
v Dlhumayo and Another
[3]
is that
‘
A court of appeal
must bear in mind that a trial court saw the witnesses in person and
could assess their demeanour. If there was
no misdirection of facts
by the trial court, the point of departure is that its conclusion was
correct. The court of appeal will
only reject a trial courts
assessment of evidence if it is convinced that the assessment is
wrong. If the court is in doubt, the
trial court’s judgement
must remain in place. The court of appeal does not zealously look for
points upon which to contradict
the trial courts conclusions, and the
fact that something has not been mentioned does not in itself mean
that it has been overlooked.’
[4]
[13]
It is trite law that an appeal court decides the appeal on the facts
before it as contained within the four corners of the
record of
appeal. The appeal court is thus duty bound to establish from the
record, if the trial court has either misdirected itself
on facts or
has applied the law erroneously to the facts. The appellant bears the
onus to satisfy this appeal court that the trial
court misdirected
itself and/or erred when assessing the evidence based on the facts
and the law before it
[5]
.
Evaluation:
Ad conviction: Housebreaking
[14]
I find it apposite to first deal with the conviction relating to the
housebreaking count, more specifically, the evidence in
respect of
the fingerprints uplifted at the crime scene.
[15]
Henry Micheal Makhoba, a police officer of 27 years’ service in
the South African Police Service, attached to the Criminal
Records
Centre, who specialise in investigating fingerprints and forensic
investigations, testified on how he uplifted the fingerprint
from the
inside of a window of a property in which it is alleged the offence
was perpetrated. He kept the exhibits under lock and
key in a safe.
He later scanned the uplifted fingerprints to the fingerprint scan
system. He discovered that the fingerprints were
positive and they
identified a person. He informed the investigating officer of the
identity of the suspect. The investigating
officer informed him that
the identified person was arrested. He then proceeded to prepare the
court chart.
[16]
The charts he prepared for the court are: (i) The fingerprint of the
middle finger uplifted from the window at the scene marked
exhibit
G
.
(ii) The fingerprints chart, commonly referred to as SAP192, with the
fingerprint of the appellant taken on 14 March 2016, marked
exhibit
H
. (iii) Exhibit
J
, being the fingers and palm
print taken from the appellant for comparison purposes, was as well
handed in as evidence. (iv)The
last fingerprint was taken from the
appellant on 3 April 2018 during trial and before court. The exhibit
was handed in and marked
K
.
[17]
Makhoba testified with reference to all seven points alluded to in
the charts prepared for the court. He, after handing in
exhibit
K
,
demonstrated on how the seven points he found on the fingerprint
uplifted from the window matches that of the appellant. He opined
in
his conclusion that the appellant is linked to the commission of the
housebreaking offence based on the uplifted fingerprints
from the
window which he compared with that of the appellant. For ease of
reference, this is how it was captured on record
[6]
:
‘
Court:
Right. You may proceed-
Makhoba
: Yes, your
worship, I was just reading the points which I did marked from point
1 to 3- all those points were marked as bifurcations
on the court
chart. Point 4 from photo 1 and 2 were a beginning or ending. Point 5
photo 1 and 2 also it is bifurcation. Point
6 on photo 1 and 2 –
it is a beginning or ending. Photo 1 and 2 are marked point 7, which
is bifurcation.
Court
: Is that
all?
Makhoba
:
That is all the points which I did marked on the court chart
Court
: Okay
Prosecutor
: Yes
Makhoba
: No person
Your Worship that can have the same fingerprint or footprint. That is
why I have no doubt that it proves this one I
did hand it in are
belonging to the person which is in front of court.
[18]
Counsel for the appellant submits, with emphasis to one of the
grounds for the appeal, that the trial court erred by accepting
the
expert’s evidence as the expert failed to point out the place
where the fingerprint were uplifted. He further submits
that there is
no evidence on record to show that the fingerprints were taken in
court in the presence of the presiding officer.
[19]
I am unable to comprehend why the appellant submits that Makhoba
“failed to point out the place where the fingerprints
were
uplifted” whereas the evidence is overwhelming. It is evident
from the record that the appellant questioned Makhoba
about the place
where the fingerprints were uplifted during cross examination. This
is how it unfolded:
Mr Mokai
: was the
window opened or unopened –
[Makhoba]
: Now
Your Worship, if I can request, maybe to look on photo 6, to just
check the window. I mentioned to the [indistinct] that where
I lifted
the fingerprint, the window is not a window that you can open, it was
intact. The further part, the fingerprint was inside
the window. Not
from outside. It was inside… the print was facing down.’
[20]
The trial court assessed and evaluated the evidence led. This is what
the trial court said:
‘
the
testimony of the police officer (referring to Makhoba) is also clear.
He says that he has an experiments in the fingerprint.
He took the
photos as well as the fingerprints…
he says that he found
the fingerprint on the inside of the window
, but his expertise
was never also put into dispute by the Defence, as he informed the
court that he is a specialist in fingerprints.
[21]
It is common cause that the fingerprint was uplifted at the scene and
from the appellant. Comparison of the fingerprint uplifted
at the
scene and that of the appellant, including those taken from the
appellant in court, was made. The prints uplifted from the
scene
positively matched those of the appellant as demonstrated through the
evidence of Makhoba. The trial court, in my view, correctly
assessed
the evidence before it and this appeal court cannot “zealously
look for points upon which to contradict the trial
courts
conclusions”.
[7]
The fact
that something has not been mentioned, does not in itself mean that
the trial court overlooked such fact. It must be borne
in mind that a
trial court saw the witnesses in person and could assess their
demeanour. As indicated in Dlhumayo
[8]
,
“if there was no misdirection of facts by the trial court, the
point of departure is that its conclusion was correct.”
The
appellant’s ground has no basis. I am unable to find any error
or misdirection on the part of the trial court. The conviction
on
this count should stand.
Evaluation:
Ad Rape conviction
:
[22]
The appellant challenges the conviction on this count on the bases
that the state failed to adduce evidence as to when and
who took the
buccal sample from the appellant and whether the person was
authorised. He further stands on a ground that there is
no evidence
that the buccal sample, which was analysed and compared to the
cervical OSCE swab, is that of the appellant. He, on
that basis,
submits that the trial court erred in accepting the analysis report
of Captain Mashegoana in convicting the appellant.
[23]
It is common cause that the complainant was alone in the house when a
person broke in and perpetrated a sexual offence on her.
The evidence
demonstrates that the perpetrator did not use a condom. The evidence
shows that the doctor who medically examined
the complainant, found
and collected “the discharge” from her virginal vault.
Immediately thereafter the doctor collected
some swabs, packaged,
sealed and sent them to the police in charge. The chain of evidence
from collection of the swabs up to the
evaluation at the forensic
laboratory including the comparison, is not disputed. The question is
when and who took the buccal samples
from the appellant.
[24]
Matukudu Samuel Mashegoana, a police officer attached to Forensic
Science Laboratory in Pretoria, testified on how they analyse
the
samples that are subjected to DNA analysis. He displayed his
expertise with distinction. He schooled the trial court on what
the
DNA is and how the DNA analysis process requires competence or skill
in biology, which he has.
[25]
He testified that they, at the Laboratory, “compare the results
coming from the exhibits
[9]
with
the results coming from the reference
[10]
”.
He explained a full profile and a mixture result. For ease of
reference, “a full profile is when there is a single
donor to a
genetic material” and a “mixture result is when there is
more than one contributor”. He explains further
that for a
positive result to be realised, the DNA of the reference (the donor)
is also found in the mixture.
[26]
He testified that the person who donated the genetic material that
was found on the cervical swab of the complainant was a
male. He
further said that when he says the result are a match, they simply
mean that all the areas from the exhibit sample are
exactly the same
as all areas from reference sample.
[27]
The issue to be determined is when and from whom was the reference
sample taken that matched the complainant’s exhibit
sample. I
find it necessary to track this issue from the record. The
determination of the issue was raised during cross-examination
of
Mashegoana which proceeded smoothly until when counsel for the
appellant requested information pertaining to the exhibits and
references. This is how it came to the fore:
Mr Mokai
: Okay can
you provide the evidence regarding the actual testing?
Court
: What do you
mean evidence of the… what type of evidence do you want?...
Actual evidence of testing
of the samples.
Which samples?
Mr Mokai
: Samples.
The one,
the cervical swab
and the, the one of the
reference
sample.
(Emphasis added)
[28]
The trial court engaged appellant’s counsel from thereon.
Counsel placed on record that the defence disputes certain
evidence.
It is not clear as to what the defence disputed. The trial court
adjourned for production of certain documentation, among
others,
Electropherogram.
[29]
The proceedings continued a month later. It appears from the record
that the trial court was left discombobulated by the submissions
made
by both counsel for the state and the appellant’s, before
counsel for the appellant could proceed with cross examination
pertaining to what led to the previous postponement. I find it
inevitable to indicate how it transpired.
Prosecutor
: No, he
said he is not proceeding with it your worship. He saw the results.
Court
: What?
Prosecutor
: May
the defence address the court. He is not going to proceed with it. I
think he is satisfied.
…
Court
: Okay,
right, the Defence may proceed
Makhaya
: As it is
pleases the court your worship… after the request was made in
respect of the electropherograms, we then received
same and, we had
an independent consultation with the doctor which we had an opinion
your worship…And then after the consultation
with the client
and the doctor your worship, we will then not proceed in respect of
the electropherograms results at this stage.
[30]
In any event, counsel proceeded with his cross examination. It
transpired that comparison was made using the exhibits and references
submitted to the laboratory. A linen found on the complainant’s
bed was among those references. Mashegoana was then asked
during
cross examination if the tests were done on the linen. This is what
he said.
Okay two types of
analysis were carried out on the linen. Firstly, we did what we call
preliminary analysis. That is just to test
if there is a possible
genetic material on the exhibit. Then the result was positive. I
tested positive for presumable semen. Then
we subsequently analysed
the DNA…we had the same DNA result as the DNA that was
obtained on the swab that I mentioned on
my table.
[31]
It transpired from the questions and answers that the samples D5S818
showed that there is another contributor besides the reference
samples they had.
[32]
There is no evidence from the record to show that the state did lead
any evidence as to when and who collected the buccal reference
sample
(16DBAC628) from the appellant like they did with cervical
swabs(09D1AB4676XX) collected by the doctor from the complainant.
In
the absence of such evidence on record, the State can be said to have
failed to prove its case beyond reasonable doubt.
[33]
In any event, the appellant freely and voluntarily supplemented the
state’s case when leading his evidence in chief.
This is how
the appellant brought the evidence to the fore:
Makhanya
:
Okay now you have listened to the complaint. The complainant said
that the person who raped her did not use any condom,
am I right? She
went to the doctor, they took the vaginal swab, and then they say
that that’ swab matches yours. Is there
also an error there?
Accused
: That one
is unknown to me. I only know about the blood extraction or a swab
which were taken from me, but I do not know about
the complainant’s
swab.
[34]
The appellant testified further that on 29 November 2016, ‘Mr
Segala came with a [indistinct] that contained certain
things. He
took out those things and put them inside my mouth. He started me, he
took out those things from my mouth and then he
started writing them
in a statement where he was saying I must sign. I was signing’.
[35]
The appellant provided the answers to the question he raised in his
notice to appeal. Mr Segala, a police officer in the employ
of the
South African Police Services, is the one who collected the buccal
swabs from the appellant on 29 November 2016. This provides
answers
to the questions- when and who.
[36]
The said buccal swab (reference) is the one used in comparison with
the exhibits swabs. They tested positive in relation to
the
appellant.
[37]
The appellant seemed not to have had a problem with the evidence on
buccal samples collected from the appellant even during
Mashegoana’s
testimony. The appellant “agreed”, after having been
provided with “documentation” used
to compare the
exhibits with the references, with the results from the Laboratory.
This is demonstrated by the appellant,
who, after having been
provided with the “documentation” he required, consulted
with his own expert who advised him
promptly. He accepted
Mashegoana’s evidence. The evidence from the forensic
laboratory places the appellant’s “references”
of
which, as evidently collected from his saliva by Segala and semen
uplifted from the black linen, matched those found on the
complainant’s cervical OSCE swabs notwithstanding the mixed
profile. If the appellant’s self-incriminating evidence
is
admissible, then the appellant’s appeal falls to be dismissed.
[38]
Even if I may be wrong for having assessed the evidence holistically
in accepting the State to have proven its case beyond
reasonable
doubt, an inference can still be drawn that the appellant is the
assailant and perpetrator. The evidence placed on record
is that the
appellant’s fingerprint is found on the inside of the window of
the house (scene of the offence) where the complainant
was in on the
day the sexual offence was perpetrated.
[39]
In
R v
Blom
[11]
,
Watermeyer JA settled the principle relating to circumstantial
evidence- He penned that “in reasoning by inference in a
criminal case there are two cardinal rules of logic which cannot be
ignored. The first rule is that the inference sought to be
drawn must
be consistent will all the proved facts: if it is not, the inference
cannot be drawn. The second rule is that the proved
facts should be
such that they exclude every reasonable inference from the proved
facts save the one sought to be drawn: if these
proved facts do not
exclude all other reasonable inferences, then there must be a doubt
whether the inference sought to be drawn
is correct
(see
Sesetse
1981 (3) SA 353
(A) at 369–370)
.
[40]
In
S
v Essack
[12]
the
Appellate Division developed the principle further by distinguishing
between conjecture or speculation from positive proved
facts from
which the inference can be drawn. The court stated that ‘[i]nferences
must be carefully distinguished from conjecture
or speculation. There
can be no inference unless there are objective facts from which to
infer the other facts which is sought
to be established. In some
cases other facts can be inferred, which as much practical certainly
as if they had had been actually
observed. In other cases the
inference does not go beyond reasonable probability. But if there are
no positive proved facts from
which the inference can be made, the
method of inference fails and what is left is mere speculation as
conjecture.’
[41]
Rubbing it in, the court in
S
v Reddy and others
[13]
added that the circumstantial evidence needs to be considered in
totality. The court stated that “in assessing circumstantial
evidence one needs to be careful not to approach such evidence upon a
piece-meal basis and to subject each individual piece of
evidence to
a consideration whether it excludes the reasonable possibility that
the explanation given by an accused is true”.
Conclusion
[42]
The evidence led by the state demonstrate that there was no other
perpetrator other than the appellant on the day and time
when the
offences were perpetrated. There can be no inference unless there are
objective facts from which to infer the other facts
which is sought
to be established. In the absence of any other evidence consistent
with all the proved facts upon which an inference
can be drawn, it
can safely be inferred that the appellant is the person who
perpetrated the offences. The conviction of the appellant
in respect
of rape count should as well stand.
[43]
The appellant abandoned his appeal against sentences. I loath to deal
with the trial court’s sentences. The sentences
imposed by the
trial court should as well stand.
[44]
I, in the result, would make the following order:
ORDER
44.1 The
appellant’s appeal against convictions and sentences is
dismissed.
AML PHATUDI
JUDGE OF THE HIGH
COURT
I agree and it is so
ordered
MV SEMENYA
DEPUTY JUDGE PRESIDENT
LIMPOPO DIVISION OF
THE HIGH COURT
APPEARANCES
FOR
THE APPELLANT
Mr.
N.C. Malumbete
INSTRUCTED
BY:
Malumbete
and Makhubele Attorneys-
C/O
Director Makhafola Inc
POLOKWANE
malumbete@telkomsa.net
FOR
THE RESPONDENT
Adv
T. Mavundza
INSTRUCTED
BY
DPP.
Polokwane
Tmavudza@npa.gov.za
REGISTRAR-POLOKWANE:
Vukati
Khosa
APPEALS,
CRIMINAL
vkhosa@judiciary.org.za
HEARD
04
June 2021
JUDGEMENT
13
August 2021
Judgement delivered on:
Delivered: This judgment
was handed down electronically by circulation to the parties’
representatives by email and release
to SAFLII. The date and time for
hand-down is deemed to be 10h00 on 13 August 2021.
[1]
In
that the accused(s) is/are guilty of the offence of
HOUSE
BREAKING WITH INTENT TO COMMIT AN OFFENCE
,
read with
sections 95(12)
,
256
,
257
,
262
&
263
of the Criminal
procedure ACT, Act 51/1977 as amended.
In that the accuse(s),
upon 10 February 2013 and at or near Tafelkop, In the
*
District
of
ELIAS MOTSOALEDI
*
REGIONAL DIVISION of
LIMPOPO
, did unlawfully and intentionally break and enter the
House of M[...] N[...] with the intent to COMMIT AN OFFENCE.
[2]
That
the accused is/are guilty of the crime of contravening the
provisions of
Section 3
read with
sections 1
,
2
,
50
,
56
(1),
57
,
58
,
59
,
60
and
61
of the Criminal Law (Sexual offences and related
matters) Amendment Act 32 of 2007 as amended. Further read with
sections 94,
256 and 261 of the Criminal Procedure Act 51 of 177.
Further read with section 51(1) and Schedule 2 of the
Criminal Law
Amendment Act 105 of 1997
as amended. Further read with
Section 120
of the Children’s Act,38 of 2005.
In that on or about the
10 February 2017
and at or near Tafelkop, in the Regional
Division of Limpopo the said accused did unlawfully and
intentionally commit an act
of sexual penetration with the
complainant to wit,
M[...] M[...] N[...] 67 years
by
inserting his penis into her vagina
.
[3]
1948 (2) SA 678 (A)
[4]
See: S v Robbinson
1968 (1) SA 666
(A) @675 H; S v Hadebe and Others
1997 (2) SACR 641
(SCA) @ 645; S v Mononyane and Others
2008 (1)
SACR 543
(SCA) [15]
[5]
See: Pillay v Krishner and Another
1946 SA 946
(A) page 941- G-h
[6]
Quoted verbatim (word for word).
[7]
R v Dlhumayo 1948 (2) SA 678 (A)
[8]
Op cit
[9]
Swabs collected from the complainant
[10]
Buccal collected from the suspect(s) or donor.
[11]
1939 AD 188
@ page 202 -203
[12]
1996
(2) SACR 1
(A) @ page 8 C-D see as well Sv Geasa. 1400/2016
(2017)
ZASCA 92
(9 June 2017)
[13]
1974
(1) SA 1
(A)