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[2017] ZASCA 27
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Kotze v S (776/2016) [2017] ZASCA 27 (27 March 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 776/2016
In
the matter between:
GERT
PETRUS JACOBUS GROBBELAAR KOTZE
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Kotze
v The State
(776/16)
[2017]
ZASCA 27
(27 March 2017)
Coram:
Shongwe, Majiedt,
Van der Merwe and Mocumie JJA and Schippers AJA
Heard
:
16 February
2017
Delivered:
27
March 2017
Summary:
Criminal
Law ─ conviction on housebreaking with intent to commit
indecent assault and indecent assault ─ whether the
State
proved the identity of the appellant and all the elements of
housebreaking with intent to commit indecent assault and indecent
assault beyond reasonable doubt.
ORDER
On
appeal from: North Gauteng Division of the High Court, Pretoria
(Bertelsman, Raulinga
et
Phatuli, JJ sitting as court of
appeal):
The
appeal is dismissed.
JUDGMENT
Mocumie
JA (Shongwe, Majiedt and Van der Merwe JJA and Schippers AJA
concurring):
[1]
The issues in this appeal are twofold, namely whether the appellant
was properly identified by the complainant as the perpetrator,
and,
whether he was correctly convicted on a charge of housebreaking with
intent to commit indecent assault and indecent assault,
ie whether
the alleged offences were proved beyond reasonable doubt.
[2]
The appellant, Mr Gert Petrus Jacobus Grobbelaar Kotze,
was
charged in the Klerksdorp Regional Court, with housebreaking with
intent to commit indecent assault and indecent assault. The
State
alleged that the appellant broke into and entered the home of the
complainant, a 13 year old girl, with the intent to indecently
assault her and that he indecently assaulted her. He was convicted as
charged and sentenced to five years’ imprisonment,
of which
half was suspended conditionally for five years. His appeal to the
court a quo, with leave of the trial court, was dismissed
and leave
to appeal was refused. The present appeal is with special leave of
this court.
The
evidence before the trial court
[3]
The
State presented the evidence of the complainant, her […] and
Mr Morne Crause (Morne), a friend of the appellant. The
complainant
testified that on the night of 9 March 2001 she was at home in
Wilkoppies, Klerksdorp. She was with […]. Their
parents and
their brother were out of town. The complainant lived with her
parents and brother in the main house while […]
occupied a
flatlet in the backyard on the premises.
[4]
The complainant testified that earlier that night, she was watching
television in the main house when the appellant arrived
with a
friend, Quintin. The appellant was in a romantic relationship with
[…]. She knew him from prior occasions when he
and […]
fetched her from where she was visiting with his car and, also when
he spent a night at her home when their parents
were away. Upon his
arrival that evening, she took him through the house to the flatlet
where […] was. She went back to
watch television but fell
asleep on the couch. […] subsequently put […] to bed in
her bedroom, where she slept with
her clothes on. She was wearing a
t-shirt and shorts. Later that night, as the complainant was
sleeping, the appellant came into
her bedroom and switched on the
light which was connected to the fan in the middle of the bedroom.
She was surprised by his presence
in her bedroom. She opened her eyes
and looked at him. He switched the lights off and left the room.
[5]
Shortly afterwards she noticed a silhouette in her bedroom which she
made out to be the appellant. She described him as tall
and chubby.
The complainant switched on her bedside lamp but the appellant
reached out and switched it off. He then sat next to
her on the bed.
He put his hand under the duvet cover and touched her upper thigh.
She jumped up from her bed and tried to get
to the door. The
appellant grabbed her from behind and pinned her down onto the
carpet. She was on her knees. Without taking her
shorts off, the
appellant started to rub her private parts and fondled her breasts by
putting his hand under her t-shirt. She again
tried to escape but
could not. She screamed but no one heard her because the appellant
had his hand over her mouth. His hand smelled
of liquor. He continued
to rub her private parts. She asked him to stop, but he continued. In
evidence she said that it made her
feel uncomfortable and bad. After
a few minutes, he fell backwards and she managed to run away. She ran
through the kitchen door
which was open, into the garden. The outside
light at the kitchen was on. She hid behind a wall next to the
swimming pool. Shortly
thereafter she walked towards the garden near
to her bedroom window, from where she saw the appellant leave the
house through the
kitchen door. He was tripping over his feet but did
not fall. He went into the flatlet and sat on a bench next to the
sliding door.
[6]
A short while later, as she was hiding in the garden, she heard […]
her name. She did not answer the first time as she
was scared. When
[…] called her the second time, she answered. […] to
fetch her where she was hiding and brought
her back into the house.
She told […] that the appellant had touched her
inappropriately. […] left her in the house
and went to
confront the appellant and chased him away. The police were called. A
charge of indecent assault was opened against
the appellant. She
subsequently received medical treatment.
[7]
[…] testified that, at around 20h30 that night, the appellant
visited her with his friend Quintin who was drunk. Later
Morne joined
them and all four sat and enjoyed drinks together. It was common
cause during the trial that the complainant had opened
the remote
controlled gate […] friends and had walked them through the
main house to […] flatlet. The party later
decided to visit a
local pub. Quintin, who was asleep at this point, was left behind in
the flatlet. Just before leaving home,
[…] went to check
whether the complainant was still asleep. She told the complainant
that she was going out for a while.
Thereafter she closed all the
doors and windows of the main house. As she did this, Morne and the
appellant followed her and walked
with her through the main house.
She said that they were standing behind her when she locked the back
door (kitchen door). The
key was kept under a cloth covering a
birdcage which stood on the dishwasher next to the kitchen door.
However, the kitchen window
did not close properly. The catch could
be lifted and the window opened from outside. Once opened, anyone who
put his or her hand
through the window and could reach the birdcage
to remove the key, would be able to gain access to the house through
the kitchen
door. […] testified that she had done this before.
She said that she had opened a bag of dog food with a knife earlier
that
day, that she left it on the table outside the house, and that
the knife could be used to open the window. After closing the doors
and windows of the main house, she did the same in the flatlet,
except for one door which she did not lock in case Quintin woke
up
and wanted to leave.
[8]
The appellant, […] and Morne left her house at around
23h00, and went to a pub known as ‘Good Fellas’,
where
[…] said that the appellant constantly picked fights
with her over insignificant issues. There, they decided
to go to Exit
club. She had been driving the appellant’s car as he was under
the influence of alcohol. Morne followed them
in his own car. Upon
arrival at Exit club, the appellant again picked a fight with her and
then grabbed the car keys from her.
He moved to the driver’s
seat and drove away at a high speed. He did not tell her or Morne
where he was going. This happened
at around 01h00. She and Morne went
into the club, sat on the first level and spoke about the appellant’s
behaviour. The
appellant never returned to the club to fetch her. She
had to ask for a lift home from a patron whom she knew at the club,
as Morne
had also left by this time. The patron agreed to give her a
lift and dropped her off at her home in the early hours of that
morning.
When she opened the front door and walked into the main
house, she was surprised to find the kitchen door open because she
knew
that she had closed and locked it when she left earlier on. She
went into the complainant’s bedroom but could not find her.
She
panicked and called out her sister’s name several times until
she responded from outside the main house in the garden.
She went
outside and found her sister crying. The complaint told her that the
appellant had touched her inappropriately. She brought
her back to
the main house into their parents’ bedroom and locked her
inside. The appellant and Quintin were asleep in the
flatlet. She
confronted the appellant and chased him off the premises, and then
called the police. When the police arrived, she
took them to the
appellant’s home in Orkney where he was found sleeping. He was
arrested on the basis of the complainant’s
allegations.
[9]
Morne confirmed that he was with […] and the appellant on the
night in question. The complainant opened the door for
him and took
him through the main house to the flatlet. He, […] and the
appellant decided to go to a pub and left Quintin
behind as he was
drunk. He said that when […] had closed and locked the doors
and windows of the main house prior to their
departure, he walked
with her, but said that the appellant was not present. The appellant
went straight to his car. He also contradicted
[…] evidence
that when the appellant left Exit club, he was angry with her and
drove off without telling them where he was
going. Instead he said
that the appellant took the car keys in order to park the car
properly, far from the pavement where […]
parked it. He said
that the three of them went into the club once the appellant came
back after parking the car ─ and that
the appellant never left
his company until late. At some point, he could not find the
appellant or […]. He then left the
club on his own.
[10]
The appellant testified in his own defence. He denied the charges. He
confirmed that he was at the complainant’s home
on the night in
question at the invitation of […] He denied that he was
present when […] closed the windows and locked
the doors of
the house ─ he said that he went directly from the flatlet to
his car. He said that he did not know where the
key to the back door
was kept, or that the mechanism of the kitchen window was defective.
Apart from confirming that he, […]
and Morne left the premises
to visit a pub and later a club, he said that when they arrived at
Exit club, they went straight to
the bar to place their drinks
orders. For most of the time, he was with Morne and […] was
with her friends and he even reprimanded
her for this. At some stage
[…] disappeared and he went to look for her all over the club,
without success. Morne also disappeared.
Now worried, he then left
the club to look for […] at her home. He thought she might
have gone home. At her home, he climbed
over the wall and went to the
flatlet but she was not there. He only found Quintin who was still
sleeping. All the doors to the
main house were closed. He climbed
over the wall again, and returned to the club.
[11]
On his way back to the club, he had a tyre puncture. He stopped to
fix it. Thereafter, he went back to the club to look for
[…]
again, but did not find her. Assuming that somebody had taken her
home, he went back to the flatlet, climbed over the
wall again but,
again, found only Quintin sleeping there. The doors of the main house
were in the same condition as the previous
time when he came to the
property. He thought that […] was already home or nearby and
went to sleep on the bench in the
flatlet. Later, he was woken up by
[…], […] hitting him with a shoe, but he could not
understand what she was saying.
He asked her what the matter was.
Quintin suggested that they leave the premises and they did. They
went to sleep at his home in
Orkney. They were later woken up by the
police who informed him of the complainant’s allegations. He
maintained that he never
went inside the main house that night after
he had been taken through to the flatlet by the complainant; that he
was not at any
stage in the complainant’s bedroom whilst […]
was not home; that he was unaware of a knife lying on the table
outside
the kitchen window; that he did not use it to open the window
to get the key to gain entry to the main house; and that he did not
indecently assault the complainant.
The
findings by the trial court and the full court
[12]
On the evidence presented, the trial court found that the
complainant, despite being a child of 13 years at the time, was an
honest and impressive witness and had no reason to falsely implicate
the appellant. It found that the complainant and […]
corroborated each other on material aspects including the fact
that the appellant, as a result of having visited their home
prior to
the night in question, knew where the key to the main house was
hidden, and thus gained entry into the main house with
intent to
indecently assault the complainant. The trial court further found
that although the appellant was not a poor witness
and stuck to his
version, there were numerous improbabilities in his version and that
of his friend, Morne, which led to its rejection
of his version as
false.
[13]
The full court confirmed the findings of the trial court, in
particular that the complainant was an honest witness in her
identification of the appellant as her assailant inside the main
house on the night in question. It also found that when the appellant
did not find […] in the main house, in his drunken state, he
indecently assaulted the complainant. I will revert later to
this
finding, which I believe the full court made erroneously.
The
appellant’s submissions
[14]
In this court, it was submitted that the trial court misdirected
itself materially by finding that the State had proved the
offence of
housebreaking with intent to commit indecent assault and indecent
assault. It was argued that the trial court was not
justified to draw
the inference from the evidence presented that the appellant had the
intent to commit indecent assault when he
entered the main house. On
the issue of the identity of the appellant, it was submitted that
there was limited lighting during
the assault for the complainant to
positively identify the appellant. Further that there were
contradictions between the evidence
of the complainant and […]
on the lighting inside the main house at the time of the incident. It
was argued that there was
no reason why the trial court rejected the
evidence of Morne who corroborated the appellant's version that he,
Morne, was with
the appellant at all material times and that the
appellant never left him […] at Exit club as she testified.
And the appellant
could not have seen where the key to the main house
was hidden by […].
Discussion
[15]
The correct approach in assessing evidence in a criminal case is ‘t
o
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.’
[1]
[16]
The process which should be applied in evaluating the evidence
against which it must be determined whether an accused’s
version is reasonably possibly true ─ which would entitle the
accused to an acquittal was stated by this court in
S
v Trainor
[2]
as follows:
‘
A
conspectus of all the evidence is required. Evidence that is reliable
should be weighed alongside such evidence as may be found
to be
false. Independently verifiable evidence, if any, should be weighed
to see if it supports any of the evidence tendered. In
considering
whether evidence is reliable, the quality of that evidence must of
necessity be evaluated, as must corroborative evidence,
if any.
Evidence, of course, must be evaluated against the onus on any
particular issue or in respect of the case in its entirety.
The
compartmentalised and fragmented approach of the magistrate is
illogical and wrong.’
[17]
Where a trial court is faced with two mutually destructive accounts,
logic dictates that ‘both cannot be true. Only one
can be true.
Consequently the other must be false. However the dictates of logic
do not displace the standard of proof required
either in a civil or
criminal matter. In order to determine the objective truth of the one
version and the falsity of the other,
it is important to consider not
only the credibility of the witnesses, but also the reliability of
such witnesses. Evidence that
is reliable should be weighed against
the evidence that is found to be false and in the process measured
against the probabilities.
In the final analysis the court must
determine whether the State has mustered the requisite threshold
proof beyond reasonable doubt.’
[3]
[18]
As regards the evidence concerning the identification of the
appellant, the following needs to be said. Authorities dealing
with
the dangers of incorrect identification are legion. The
locus
classicus
is
S
v Mthetwa
[4]
where this court warned that ‘because of the fallibility of
human observation, evidence of identification is approached by
the
Courts with some caution.’ In
R
v Dladla
[5]
this court, affirmed the following:
‘
One
of the factors which in our view is of the greatest importance in a
case of identification is the witness’ previous knowledge
of
the person sought to be identified. If the witness knows the person
well or has seen him frequently before, the probability
that his
identification will be accurate is substantially increased.
Even
in the case when a witness has some difficulty in the witness-box in
giving an accurate description of the facial characteristics
and
clothes of the person whom he has identified, the very fact that he
knows him provides him with a picture of the person in
the round
which is a summary of all his observations of the person’s
physiognomy, physique and gait, and this fact will greatly
heighten
the probability of an accurate identification. . . .
In
a case where the witness has known the person previously, questions
of identification marks, of facial characteristics, and of
clothing
are in our view of much less importance than in cases where there was
no previous acquaintance with the person sought
to be identified
.
What is important is to test the degree of previous knowledge and the
opportunity for a correct identification, having regard
to the
circumstances in which it was made.’ (My emphasis.)
[19]
In the present case, the unrefuted evidence is that the complainant
knew the appellant prior to the incident as alluded in
para 4 above.
The appellant also confirmed this. And the unchallenged evidence is
that of all […] friends who visited her
at home, particularly
on the evening in question, the complainant knew only the appellant.
She said ‘
[e]k
het net vir Gerhard geken, dit is al’.
[6]
[20]
At the time of the assault, the appellant was able to identify the
appellant on three separate occasions. First, she recognised
him
immediately when she saw him inside her bedroom the very first time.
He had switched on the light and she looked at him, before
he
switched off the light and left the room. Second, when he came back
into the room to indecently assault her, apart from calling
him by
his name, Gerhard, she said she saw his silhouette and correctly
described him by his physique, ‘tall and chubby’.
The
hand he put over her mouth to stop her from screaming any further she
said smelled of liquor. It is common cause that the appellant
was
intoxicated that night. The complainant could not have known this
unless her evidence is true. And third, when she was hiding
in the
garden after she had fled from the appellant, she saw him leave the
main house through the kitchen door. He was unsteady
on his feet,
walked to the flatlet and went to sit on a bench next to the sliding
door. The light at the back door was on and so
was the light at the
door of the flatlet. And it is on this bench where […] later
found the appellant sleeping. Now the
complainant could never have
known that the appellant went to sit on the bench unless she had seen
him. Mr Erasmus, who appeared
for the appellant, fairly and
unreservedly conceded this. So, the complainant’s
identification of the appellant as the person
who assaulted her was
undoubtedly both honest and reliable.
[21]
I am therefore satisfied that the trial court was correct in finding
that the State had proved beyond reasonable doubt, the
identity of
the appellant, as the person who indecently assaulted the complainant
on the night in question.
[22]
I turn now to the second issue raised by the appellant ie whether the
State succeeded in proving that the appellant had the
necessary
intention to commit indecent assault at the time he broke into the
main house.
[23]
Housebreaking with intent to commit a crime consists in unlawfully
breaking into and entering premises with intent to commit
a crime.
[7]
Crucially, the intention to commit an offence must be present when
both the breaking and entering are effected.
[8]
The purpose of the crime of housebreaking is to preserve the sanctity
of the home against intrusions that involve danger or harm
to the
inhabitants. And because the crime is committed only by those who
break and enter with intent to commit a crime, what the
crime does,
in effect, is to provide that a person who, intending to commit a
crime enters the premises for this purpose can be
punished even
though he has proceeded no further than to force entry into the
premises.
[9]
[24]
In criminal law, mere thoughts are not punishable. In other words,
what a criminal thinks before (s)he puts those thoughts
in action is
always only known to the criminal. On that basis, across the world it
is accepted that (s)he cannot be convicted for
his or her (criminal)
thoughts. In general, intent as the most critical element of an
offence is very difficult to prove. Despite
this difficulty, the
State is bound to prove not only that the accused person acted
unlawfully but that (s)he also had the necessary
intent to do so. In
the absence of direct evidence, and in the absence of presumptions in
some cases, from time immemorial, the
State has had to rely on
circumstantial evidence to prove this elusive yet critical element.
The courts have had to consider all
the facts and circumstances of
the case placed before them and, by use of inferential reasoning, if
such circumstances point to
such guilty intent, convict such a person
as charged.
[10]
[25]
In this case, the facts are that the appellant broke into the house
and shortly thereafter, entered the complainant’s
bedroom and
indecently assaulted her. The appellant falsely denied both. He
therefore gave no explanation why he broke into the
house. He should
not be given the benefit of speculative possibilities as to his
presence in the house, which he did not raise.
In the result, I am
satisfied that the conviction of housebreaking with intent to commit
indecent assault was justified. The appeal
against conviction
therefore stands to be dismissed.
[26]
In the result, the following order is made:
The
appeal is dismissed.
_________________
BC Mocumie
Judge of Appeal
Appearances
For Appellant:
J C Erasmus
Instructed by:
Johan Horn Attorneys
Symington & De Kock Attorneys,
Bloemfontein
For
Respondent:
D W M Broughton
Instructed by:
The Director of Public Prosecutions,
Pretoria
The Director of
Public Prosecutions, Bloemfontein
[1]
S v Chabalala
2003
(1) SACR 134
(SCA) para 15.
[2]
S v Trainor
2003
(1) SACR 35
(SCA) para 9.
[3]
S v Janse Van
Rensburg & another
2009 (2) SACR 216
(C) para 8.
[4]
S v Mthetwa
1972
(3) SA 766
(A) at 768A.
[5]
R v Dladla & others
1962 (1) SA 307
(A) at 310C-E. See
also
Arendse v S
[2015] ZASCA 131
; 2015 JDR 2054 (SCA).
[6]
I only knew
Gerhard, that is all. (Own translation.)
[7]
JRL Milton
South
African Law and Procedure Vol II Common-law Crimes
3 ed (1996) at 792.
[8]
JRL Milton above at 806, with cases
cited therein.
[9]
JRL Milton above at 792.
[10]
Director of
Public Prosecutions, Gauteng v Pistorius
[2015] ZASCA 204
;
2016 (1) SACR 431
(SCA) para 34.