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[2021] ZAGPPHC 319
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Mothate v S (A965/2014) [2021] ZAGPPHC 319 (18 May 2021)
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IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO: A965
/
2014
REPORTABLE:NO
OF INTERST TO OTHER
JUDGES:NO
REVISED.
DATE:18/05/21
In the matter between:
ELIAS
MOTHATE
Appellant
and
THE
STATE
Respondent
JUDGMENT
THIS JUDGMENT HAS BEEN
HANDED DOWN REMOTELY AND SHALL BE CIRCULATED TO THE PARTIES BY WAY OF
EMAIL. ITS DATE AND TIME OF HAND DOWN
SHALL BE DEEMED TO BE 18 MAY
2021 AT 12H00.
PICK D, AJ
Introduction:
1
This is an Appeal from the Pretoria North Regional Court, Gauteng.
Leave
to appeal was refused by the trial Court. The Appellant is before
this Court by virtue of his right to automatic appeal. The
appeal is
on both conviction and
sentence. The Appellant
was not legally represented during the trial, but was legally
represented by Legal Aid at the time of sentencing.
2
On 23 April 2013 the Appellant was convicted and sentenced as
set out
on the following charges: Robbery with aggravating circumstances - 20
years imprisonment; theft - 1 year imprisonment;
rape – Life
imprisonment, kidnapping - 5 years imprisonment; attempted murder -
10 years imprisonment.
3
On sentencing the Magistrate also imposed the following terms:
-the Appellant was not
allowed to apply for parole within the first 25 years of his
imprisonment (Section 276(b)(1) of Act 52 of
1977);
-the Appellant was
declared unfit to possess a firearm (Section 103(1) of Act 60 of
2000)
-the Appellant’s
name was entered into the name of the Register of
Sexual
Offenders (Section 50(1)(a1) of Act 32 of 2007).
Evidence before Court:
It
is the State’s case that:
4
The Appellant gained entry to the house of the complainant in
the
early morning hours of 24 July 2010. He switched on the light in the
room where she and her son (aged [...]) were sleeping
at the time and
demanded money. The complainant was robbed of her cell phone, bank
cards and later her motor vehicle, all of which
was later recovered.
The Appellant robbed the complainant’s son of an amount of R
30, 00 which he tendered to the Appellant
when the Appellant demanded
money from the complainant.
5
The Appellant severely assaulted the complainant by repeatedly
stabbing
and beating her with a garden fork during the incident which
lasted two and a half to three hours. She was raped by the Appellant.
The rape lasted about 20 minutes. As a result, the Appellant suffered
serious bodily injuries for which she had to received medical
treatment. The complainant spent three to four weeks in hospital as a
result of the injuries she sustained during the assault.
Photos of
the injuries and the J 88 were handed in as evidence.
6
After the rape, the Appellant told the complainant to get dressed and
forced her into her motor vehicle with the apparent intent of
withdrawing further cash from her bank accounts. The complainant
escaped from the Appellant by jumping from her moving vehicle on the
Mabopane highway at about 06h00 in the morning. In the process
she
sustained more injuries. The Appellant then caught up with her and
started assaulting her again whist she was lying on the
ground. One
Mrs N[...] came to her rescue when, on hearing the commotion behind
her house shouted that she would phone the police.
The Appellant then
fled. Mrs N[...] solicited the assistance of a security company
called ADT. The police and paramedics arrived
shortly thereafter.
7
During the month of August 2010, the Appellant’s sister-in-law
was found in possession of the complainant’s phone. She told
the police that she received the phone from the Appellant on
25 July
2010, two days after the incident.
The Appellant was arrested on 08
October 2010.
8
On 18 Octobe_r 2010 the complainant identified the Appellant on an
identification parade as the perpetrator. She identified the
Appellant by his physical built, his dark skin, his eyes and a mark
on his forehead. The complainant’s 7-year-old son did not
identify anybody at the identification parade. Neither did he testify
at the trial.
9
The State called the complainant and twelve other witnesses to
prove
its case. Amongst these witnesses were Mrs N[...] who found the
complainant, the Appellant’s sister-in-law, the investigating
officers, the police officer who arranged- and presided over the
identification parade, the medical professionals who treated the
complainant, and a fraud specialist from Vodacom.
10
The specialist from Vodacom testified that the complainant’s
phone was last used on the day of the incident, being 23 July 2010
and again switched on 25 July 2010, two days after the incident.
It
is the evidence of the Appellant that:
11
He was not involved in the incident at all and bears no knowledge
thereof. He does not know the complainant. He pleaded not guilty to
all the charges. Before his arrest he was permanently employed.
He
testified that he therefor could not have been at the scene of the
crime on the morning in question, as he slept at home when
he was
working.
12
He bought the cell phone from an unknown man at Mabopane train
station
closer to the end of July (near payday) and gave it to his
sister-in-law as she needed a phone. She testified that it was given
to her as a birthday gift.
13
He places the integrity of the identification parade in
question as
he was not legally represented at the time thereof. He requested
legal aid assistance on the 11th of October 2010 and
the parade took
place on the 18th of October 2010, when he was still legally
unrepresented. He also says that the description the
complainant gave
of the person who robbed-, assaulted- and raped her is that of the
man from whom he bought the phone.
14
The Appellant called no witnesses. Apart from contesting
the evidence
of the complainant, the arresting officer and the legitimacy of the
identification parade the Appellant did not cross-examine
any other
witnesses. This concluded the case for the Appellant.
Issues to be decided by
this Court
15
On Appeal the Appellant places the complainant's evidence as a
single
witness
in dispute and avers that proper corroboration for her
evidence was not made out by the State’s case.
16
The Pretoria Justice Centre on behalf of the Appellant
circles out
two
issues
to be decided by this Court, namely:
-the
identity of the
perpetrator
who robbed the complainant;
-the
reliability
of the identification parade
17
The Appellant avers that he did not have a fair trial
and the State
did not
proof its case beyond
reasonable doubt as his version could reasonably possibly
be
true. It is argued that there is an
unfair
duplication
in the charge of
attempted
murder,
therein that the Appellant had no
intention to kill the complainant.
It is said
that he kept her alive to drive him to the bank to
withdraw
more money and that the injuries induced
“
were directed
at
forcing her to give him money and subdue her to the rape.”
18
The Appellant further avers that the Court a quo did not
exercise its
sentencing discretion
properly. The provisions of the Criminal
Law Amendment Act, Act 105 of 1997 were not mentioned to the
Appellant when the charges
were put to him and he was not informed of
the consequences in the event that he was found guilty on the
charges.
19
The Appellant’s legal representative argues that
the Appellant
was in custody for a period of 2 years and 6 months awaiting trial
and that this together with his personal circumstances
constituted
substantial and compelling circumstances,
warranting a
deviation from the prescribed minimum sentence which circumstances w
re not considered by the Court a quo.
20
The Appellant further held that the seriousness of the
offences and
the interest of society were
over-emphasised,
whilst his
personal circumstances were
under-emphasised
during sentencing
and therefor the sentence was “shockingly harsh and induces a
sense of shock”.
The Law
21
First and foremost and as held in
S v Francis
[1991] 2 All SA 9
(C);
1991 SACR 198
(A)
it must be borne in mind that there is a
presumption that the trial court’s evaluation of the evidence
is correct and it will
only be disregarded if it is clearly wrong. In
S v Pieters
1987 (3) SA 717
(A) at, 14-16
the Appeal Court
held that it will not interfere with the sentence of the trial·
Court unless it is patently clear that the
court a quo exercised its
sentence discretion improperly and unreasonably.
On
the Single Witness & the Cautionary Rule:
22
Section 208 of the Criminal Procedure Act, Act 51 of
1977
states
“
An accused may
be convicted on the single evidence qt any competent witness."
This
section of the Act deals with the Cautionary Rule which is applicable
to- and should be observed in the consideration of certain
classes of
evidence which are placed before a court from time to time.
23
In
S v Stevens 2005 (1) SACR (SCA),
(417/03) [2004] ZASCA 70,
[2005] 1 ALL SA (1)
SCA at 17,
the Supreme Court of Appeal
confirmed the application of the Cautionary Rule as set out in
S
v Sauls and Others 1981 (3)
SA 172 (A) at
180E-G.
The Court quoted:
“
There
is no rule of thumb test or formula to apply when it comes to
consideration of the credibility of a single witness (see the
remarks
of Rumpff JA
in
S v Webber
1971
(3) SA 754
(A)
at
758).
The trial Judge will weigh his evidence, will consider its merits and
demerits and, having done
so,
will
decide whether it is trustworthy and whether, despite the fact that
there are short
comings or
defects or contradictions in the testimony, he is satisfied that the
truth
has
been told. The Cautionary
rule referred
to by De
Villiers
JP
in 1932
[in
R v Mokoena
1932
OPD
79
at 80] may
be
a
guide
to
a
right decision
but it does not
mean “that the appeal must succeed if any criticism, however
slender, of the
witness'
evidence were well-founded” (per Schreiner JA in R v Nhlapho
(AD
10
November
1952) quoted in R
v
Bellingham
1955 (2) SA 566
(A) at 569). It has been said more than once that the
exercise of caution must not be allowed to displace the exercise of
common
sense.
"
On the Identification
Parade
24
It is trite that evidence of identification should be
treated with
caution.
In
S
v Mthethwa 1972(3)
SA 766 (A) at 768A
the
Court said the following: “
Because of
the ability 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 observations
must also be tested. This depends on various
factors, such as the
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 ..”
25
In
S v Thapedi
2002 1 SACR 598
(T)
it was held that the
absence of a legal representative for the accused at an
identification parade does not per se amount to the
denial_ of the
right to legal representation-.
On
Attempted
Murder:
26
Shongwe JA in
S v Makgatho
2013 (2) SACR 13
(SCA) at 9
held
that:
“
A person acts with
intention, in the form of dolus eventualis, if the commission of the
unlawful act or the: causing of the unlawful
result is not his main
aim, but he subjectively foresees the possibility that in striving
towards his main aim, the unlawful act
may be committed or the
unlawful result may ensue, and he reconciles himself to this
possibility..”
27
In
S v Masita
2005 (1) SACR 272
(C) at 277a-b
it was held that
failure to explain a competent verdict to an unrepresented accused is
not in itself a fatal irregularity. The main
consideration is whether
the accused had a fair trial.
On
Evaluation of Evidence & Proof beyond a Reasonabie
Doubt:
28
Nugent J in
S.v Van der Meyden
1999 (1) SACR 447
(W) at 450b
held
the following:
“
..
The
proper test is that an accused is bound to be convicted if the
evidence establishes his guilt beyond a 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 (whether it be to convict
or to acquit)
must account for all the evidence. Some of the evidence might be
found to be false; some of it might be found to
be
unreliable; and
some of it might be found to be only possibly false or unreliable;
but none of it may simply be ignored.”
On
Sentencing:
29
It was held in
S
v Zinn
[1969] 3 All SA 57
(A) 61;
1969 (2)
SA
537
(A)
at 540 G-H
that in imposing sentence the
Court must consider the triad consisting of the crime, the offender
and the interest of society.
30
In
S v Malgas
2001 (1) SACR 469
(SCA) at 478 d-h
the general
approach in imposing minimum sentences in terms of the
Criminal
Procedure Amendment Act 105 of 1997
was considered. Same was endorsed
in
S v Vilakazi
[2008] ZASCA 87
;
(2008) 4 All SA
396
SCA;
(2008) JOL
22360
(SCA);
2012 (6) SA
353
(SCA);
2009 (1)
SACR 552
(SCA).
The court held the following
at 15:
“
..
.If a court
is indeed
satisfied
that
a
lessor
sentence
is called
for in a
particular
case, thus
justifying
a
departure
from the prescribed sentence, then it hardly
needs saying that the
court is bound to impose that les or sentence.”
At
16
the Court
says; “...
What is said (in
Malgas)
is that
the court must
approach the matter “conscious [of the
fact] that the
Legislature has ordained
[the
prescribed sentence] as
the sentence that should ordinarily
and in the absence of weighty justification be imposed for the listed
crimes in the specified
circumstances . . ... any
circumstances
that would render the prescribed
sentence disproportioned to the offence would constitute the
requisite
“
weighty
justification” for the imposition of
a
lessor
sentence.”
At 20
the
Court held that “ ...
Whether
a
sentence is proportionate cannot be determined
in the abstract, but only upon
a
consideration of all material circumstance of
the particular case, through bearing in mind what the legislature
has ordained and the other strictures referred to in
Malgas.”
Application
of the Law to the facts
31
At the risk of compartmentalising the evidence and viewing
it in
isolation against the issues to be decided by this Court, one has to
evaluate the evidence piece by piece in the light of
the
technicalities raised by the Appellant and then put the puzzle back
together, in order to come to a reasoned conclusion wherein
sanity
prevails, and justice is served.
32
Indeed the complainant was a single witness. The Court
a quo however
observed the necessary caution when evaluating her evidence.
Throughout the record it is clear that the complainant,
notwithstanding the trauma she suffered, was able to give a coherent,
clear recollection of the incident. On the J88 completed
a day after
the incident it is recorded that the complainant was “
very
emotional, can give good report of what happened.”
Adjudant
Officer van Dyk testifies on the complainant’s reaction at the
identification parade: "…
sy was baie bang gewees, maar
sy was seker van haar saak gewees.”
(She was very scared,
but certain of her case - my translation)
33
When evaluating the evidence in respect of the identification
parade,
the complainant’s evidence was scrutinised carefully by the
Court a quo. Attention was given to the necessary detail
and evidence
in how the parade was constructed and what transpired on the day was
lead at length. The Court a quo again observed
the cautionary rule.
The tests crystallised in our law were applied during judgement. The
court a quo quoted the tests at length.
On entering the complainant’s
room, the Appellant switched on the light. The complainant saw his
uncovered face in the light.
The complainant identified the Appellant
within 30 seconds at the identification parade as the man who
assaulted her for
two and a half to three hours and raped her for
almost 20 minutes. Being in such close proximity to the Appellant,
the complainant
was bound to notice his physical built, his
complexion, his eyes, his nose and facial features, such as marks by
which she identified
him. This Court is satisfied with how the trial
court handled the issue on the day. This ground of Appeal must not
succeed.
34
The Appellant was made aware of the
fact that he was entitled to
legal representation. He chose to conduct his own defence. Throughout
the trial he
was
assisted and guided by the Court as to his rights at the various
stages of trial. The Appellant was informed of the identification
parade a week before the time. He indicated during this appearance
that he wanted legal aid representation. On the day of the parade
however, legal aid was not present.
This however does not
discredit the evidentiary value of the identification parade
per
se.
Notwithstanding legal aid’s absence
he proceeded with the parade.
His
rights
were
explained
to
him
at the parade, _He chose his
position in the line-up himself.
35
The fact that he had no legal representation did
not change the way
in which the parade took place. He was not prejudiced, as ,.it is
only the complainant who identified him. The
question to be answered
is whether the presence of a legal representative would have changed
anything in the procedure of the parade
on the day? The answer is a
clear no. It would not take the parade anywhere else. The Appellant
was not prejudiced by the absence
of a legal representative in the
circumstances as a legal representative would not have played any
active role in the outcome of
the identification parade. This ground
of Appeal must also not succeed.
36
The State called a fraud specialist from Vodacom with
9 years’
experience. She testified that the complainant’s cell phone was
last used on the day of the incident and then
again on the day that
he gave it to his sister-in-law. The Appellant gave the investigating
officers three different versions as
to where he got the phone -
first on his way to Lethlabile, then in Soshanguve and then at the
Mabopane station. He could not remember
what he paid for the phone
and later said R 200, 00 when questioned during trial. The Appellant
said he gave the phone to her as
she needed a phone. She testified
that he gave it to her as a birthday present.
37
The evidence is that the complainant’s cell phone
was found in
possession of Appellant’s sister-in-law, after he gave the
phone to her - a mere two days after the incident.
He could not give
a satisfying explanation as to where he found it and how much he
bought it for. This in itself is, based on the
doctrine of recent
possession, together with the positive identification of the
Appellant enough to corroborate the complainant’s
testimony as
a single witness and satisfactorily connect the Appellant to the
incident on the day. This ground of Appeal is dismissed.
38
The Appellant should have foreseen that he could have
killed the
complainant in repeatedly assaulting- and stabbing her with the
garden fork. In his repeatedly and continuously doing
so over a
period of two and a half to three hours, he reconciled himself with
the consequences of his action. The robbery in itself
was no ordinary
robbery and has to be qualified as aggravated, therein that a
dangerous weapon with sharp points was used to inflict
serious wounds
in the commissioning of the crime. The complainant was stabbed and
hit in the face, the forehead, the cranium, the
back of her bead, the
neck and in the upper leg. These are sensitive areas of the human
body. It is common knowledge that wound
inflicted in these areas of
the body could lead to the death of the person so attacked. It is
stated on the J88 that severe force
was used in the attack on the
complainant. The Appellant’s argument that he did not intend to
kill the complainant, as she
was kept alive to drive him to the bank
and the injuries were directed at getting her to subdue to the
robbery does not go
up and is, to say the least devoid of all
logical- and legal argument. This ground of Appeal must not succeed.
39
It is clear from the record that the seriousness of the
charges and
the consequences of being found guilty thereof was explained to the
Appellant. The Magistrate refers to same in her
judgement at pages
218 and 219 of the record. Same is also clear from the record of the
proceedings on 25 May 2011.
This ground of Appeal bears no weight
either.
40
During sentencing the Court a quo paid attention to the
effect of the
trauma suffered by the complainant and her minor son. Consideration
was given to the violent nature of the crimes.
Consideration was
given to the interest of society. At the same time the personal
circumstances. of the Appellant as well as the
pre-sentencing report
were duly considered by the Court a quo at length in the sentencing
procedure. The Appellant’s previous
convictions were
considered. The Malgas-decision was cited by the Court a quo in so
far as minimum sentencing was concerned. The
sentence invoked by the
Court a quo was well considered in the circumstances and this Court
has to align itself therewith.
41
After all is said and done, the evidence has got to be
pieced back
together. It is clear that the Appellant went to the complainant’s
house on the day of the incident to deprive
her of possession of her
property. In doing so, he inflicted her with serious and
life-threatening bodily injuries. These injuries
were directed at
having her subdue to the crimes of robbery and rape. He thereafter
forced her into her vehicle. She jumped from
the moving vehicle to
escape the Appellant. Even after she escaped from him, he caught up
with her and
continued
to assault
her whilst she was lying
helpless
on the ground.
In inflictingthese
serious injuries he should’ve foreseen that she could have
died. He reconciled himself with this possibility
as he continued
inflicting these injuries
over a period of two
and a half to three hours.
42
In the words of the learned
Curlewis JA in
Rex v Hepworth
1928 AD
265
(at 277)
it is concluded
that:
“
A criminal
trial is not a game where one side is entitled to claim the benefit
of any omission or mistake made by the other
side, and a judge’s
position in a criminal
trial is not
merely
that
of an umpire
to
see
that
the
rules
of the game is observed
by both sides.
A judge is an
administrator
of
justice,
he
is not merely a figurehead, he has not only to direct and control
proceedings according to
recognised
rules of
procedure but to see
that justice is
done.”
43
The evidence in this matter was weighed cautiously as the
complainant was a single witness and the only person who did a
positive
identification on the identification parade. It has been
said more than once that the exercise of caution must not be allowed
to
displace the exercise of common sense.
Conclusion
44
The Court finds that the court a quo did not misdirect itself
in both conviction and sentence.
Order
45
I would order that the Appeal against both conviction and
sentence be dismissed.
PICK
AJ
ACTING
JUDGE OF THE HIGH COURT
I
agree. It is so ordered
MALI
J
JUDGE
OF THE HIGH COURT
For
the
Appellant:
S.Moeng
Pretoria Justice
Centre
4
th
Floor
Locarno Building
317 Francis Baard Street
Pretoria.
For
the
State:
Adv
C. Pruis
Office of the Director of
Public Prosecutions Church Square
Pretoria.
Heard
on 03 March 2021.
Delivered on 18 May
2021.