Tsamaisi v S (CA&R 35/2020) [2021] ZANCHC 19 (16 April 2021)

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[2021] ZANCHC 19
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Tsamaisi v S (CA&R 35/2020) [2021] ZANCHC 19 (16 April 2021)

IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
CASE NO.: CA&R
35/2020
Date heard:
02-11-2020
Date delivered:
16-04-2021
In
the matter between:
KAGISHO
GODFREY TSAMAISI
Appellant
and
THE
STATE
Respondent
Coram:
Williams J et Mofokeng AJ
JUDGMENT ON
APPEAL
Mofokeng
AJ
INTRODUCTION:
1.
This appeal comes before us pursuant to a
successful petition granted on 30 June 2020 against the appellant’s
conviction. He was
convicted by Magistrate MS KGOPA in the Regional
Court, held at Galeshewe, on one count of contravening Section 3 of
the Sexual Offences
Act 32 of 2007, read with the provisions of
Section 51
(2) of the
Criminal Law Amendment Act 105 of 1997
, and
sentenced to a term of 15 years imprisonment.
2.
What has been placed in issue is whether
the trial court erred in accepting the evidence of the Complainant in
relation to the identity
of the perpetrator; and whether the trial
court erred in rejecting the evidence of the appellant.
The
Facts
3.
The Complaint was raped at the age of 67 on
18 June 2017 at her home. At the time of the incident she resided
with three minor children
aged 4, 1 and a baby. She shared a double
bed with them. On the night of the incident she slept at around 12
midnight only to be
woken up by cold and a heavy weight on top of her
holding her tightly and painfully. It dawned on her that she was
being raped when
she felt the intruder’s penis inside her vagina.
Her bedroom lights were not switched on, the bathroom light and
streetlight illuminated
her bedroom. The intruder stood in the middle
of the bedroom door to dress up after the attack.
4.
The Complainant identified the intruder as
the Appellant when he looked at her as he was dressing up. The
Appellant ran off and using
the front door after he was identified.
In pain and unable to move, the Complainant laid in for a while. She
woke up one of the children
named Shawn to check the front door, he
found it open. Shawn assisted her to sit up. She was bleeding with
her womb hanging in between
her legs. Her daughter Lorraine Mabina
passed by on her way to work, the Complainant informed that the
Appellant raped her.
5.
With the baby on her back she walked to the
police station to report the crime, she was uncomfortable to take a
taxi in her condition.
She left the other two children in the care of
her neighbour Nellie Douland (“Nellie”). She received medical
care and was referred
to Kimberley hospital where she was admitted
for 3 days; thereafter she was referred to a hospital in Bloemfontein
and was admitted
for 7 days.
6.
Medical evidence is consistent with the
rape, it was not challenged by the Appellant either. Lorraine Mabina
and Nellie in their evidence
confirmed the Complainant related the
rape incident to them and identified the Appellant as the rapist.
7.
An inspection
in
loco
was held at the residence of the
Complainant at the behest of the prosecutor to ascertain the extent
of illumination in the house
from the streetlight and bathroom light.
It was held at 19:00 on 6 June 2019. Present was the presiding
officer, the investigating
officer, the interpreter, the prosecutor,
the complainant, the Appellant and his legal representative.
8.
The streetlight was not operational on
arrival; the inspection proceeded with just the bathroom light on
with the rest of house lights
switched off. The factual findings as
reported by the presiding officer and confirmed by both the legal
representatives in the matter,
were that the distance where the
Complainant was lying on the double bed was one pace, literally one
step from the bed to the doorframe.
The distance from where the
perpetrator was standing when the identification was made is 40
centimetres from the doorframe. The bathroom
light with the door open
reflected into the adjacent door, which is the bedroom, and it
reflected almost halfway through the living
room. The Appellant stood
where the perpetrator stood when he was identified.
9.
The Appellant’s legal representative
conceded, “
the light from the bathroom
illuminates clearly the side of the face as you are standing on the
door. So you can see clearly on the
left hand side of the face, it is
illuminated. You can see clearly that the whole face is illuminated.
Part of it is clearly illuminated
by the light. As you are looking at
the person standing there, you can clearly see the face, the part of
the face that is illuminated
by the light, it is on the left of that
person”.
Further note was that the
Complainant was wearing spectacles during the inspection.
10.
The Appellant did not dispute the rape
incident; he denied his identification as the rapist. He raised the
defence of an
alibi
;
who is his wife. His evidence was that he went to bed at 22h00 as he
normally does on the night of the incident. He left for work
at 4h00.
Oblivious of the rape incident the night before, he was shocked to be
accosted by the complainant standing at her burglar
door as he passed
her home. She accused him of rape. He waived his hand backward at her
and proceeded to walk to work. On arrival
at work he requested leave
to report the matter at the South African Police and to request an
escort to the Complainant’s home
to address the accusation. He was
granted leave at 15h00 He went to the police station and was escorted
as per his request. The Complainant
was not home. He then went to his
house and placed his bag inside, thereafter he stood outside the
tuck-shop at his home to smoke.
11.
Nellie walked passed his house and he
approached her and walked along with her. He asked her what was
happening with the Complainant.
Nellie told him the Complainant is
injured and she does not want to get involved. On the same Monday he
visited his brother, on his
return his wife told him a detective came
looking for him. He was instructed to report at the police station
the following day, he
instead went on Wednesday. On arrival he was
arrested.
12.
The Appellant’s wife, Estelle Nonceba
Tsamaisi was called as his
alibi
.
She testified that the Appellant was sleeping in the same bed with
her. He woke up at 3h30 in the morning to get ready for
work. He left
at 4h00 and told her to lock the door as he lost his key to the door.
On her way to work a young child informed her
that the Appellant
raped someone. The Appellant confirmed the rape accusation when he
returned from work. On Tuesday she and the
Appellant attended
Thlokomelang. A detective came looking for the Appellant and left
instructions that he must report at the police
station the Wednesday.
He was arrested on Wednesday. She denied the Appellant could have
raped the Complainant.
13.
The trial court found that the State proved
the rape and the identity of the Appellant as the rapist, beyond
reasonable doubt.
Grounds
Of Appeal
14.
The
Appellant contends that there cannot be certainty beyond a reasonable
doubt that the Complainant’s evidence is reliable. As
both a single
and identifying witness her evidence ought to be treated with
caution. Cognizant of the fact that an accused person
can be
convicted of any offence on the single evidence of any competent
witness in terms of
section 208
of the
Criminal Procedure Act 51 of
1977
, he correctly submits that such evidence must be substantially
satisfactory in every material respect, or if there is corroboration,
as held in S v Mahlangu And Another
2011 (2) SACR 164
(SCA). Further
requirement is that the evidence must be honest and reliable if it
pertains to identification of the perpetrator
[1]
.
15.
Following the reliability test or
guidelines set out in S V Mthetwa
1972 (3) SA 766
(A), the Appellant
challenges the reliability of the complainant’s evidence on the
basis of the complainant’s eyesight in that
she was not wearing her
spectacles at the time of the incident. The Appellant contends there
was poor lighting and visibility given
that the incident took place
at night and only the bathroom light illuminated a part of the
complainant’s bedroom. He points out
that the trial court noted
during the findings of the inspection
in
loco
that only the left part of a
person’s face is illuminated by the light when standing where the
perpetrator was standing. The complainant’s
opportunity for
observation is also questioned for the contradictory versions in her
police statements. A point is taken that she
was only able to
identify the Appellant when he looked at her for the second time and
she saw his face without describing any specific
identifying feature.
The pain the Complainant suffered, the Appellant submits hindered her
senses.
16.
It is trite law that an appeal
court will not lightly interfere with the findings of the trial court
especially as the latter was
steeped in the atmosphere of the trial
and had the benefit of observing witnesses. The trial court is in the
best position to make
credibility and reliability findings of
witnesses.
17.
Following
the fundamental rule and principles as set out in S v Leve 2011 (1)
SACR 87
[2]
we now turn to
consider the grounds of appeal against the evidence and to determine
if there is any irregularity or misdirection
committed by the trial
court.
18.
Despite the inspection
in
loco
, and the concessions made by his
legal representative, the Appellant contends the complainant’s
identification evidence is not
reliable.  We defer to the
findings and report of the inspection
in
loco
in this regard.  The trial
court had an advantage of reliving the experience of the Complainant.
The common observations of the
trial court and legal representatives
are of such a nature that we cannot, under the circumstances,
interfere with the findings of
the trial court in respect of the
identification evidence.
19.
Noting that the inspection
in
loco
was held with only the bathroom
light on, it is not unreasonable to infer that coupled with the
streetlight, the lighting and visibility
were optimal for
identification around the time of the rape.
20.
On the issue of the spectacles, a case was
not made out that the Complainant had prescribed eyeglasses. She was
consistent that the
glasses were reading glasses. Her daughter
confirmed that the Complainant used the glasses for reading small
letters. During court
she used them to read her Bible.
21.
In respect of the contradictory police
statements, it cannot be ignored that they were taken in Afrikaans
and written in English.
They were not read back to the Complainant
and she disputed a number of entries therein. What is consistent in
all the statements
and in her evidence is the identification of the
Appellant as the rapist. Even with the discrepancies of various
statements, the
trial court found the Complainant to be satisfactory
as a single witness. The trial court also considered the
inconsistencies in
her evidence and found that they are not material.
22.
There is accordingly no misdirection
committed by the trial court that warrants the interference by the
appeal court. No legal basis
exists to disturb the credibility
finding of the Complainant by the trial court, she was found to be a
good witness.  The trial
court observed that she was quite
certain as to the identification she made of the Appellant, who was
someone known to her prior
to the incident. Her evidence was
consistent and corroborated by the medical evidence. It is reliable
considered against the report
of the inspection
in
loco
, concessions made by the
Appellant’s legal representative, and the totality of the evidence
before court.
23.
The Appellant’s second ground of appeal
is that the trial court erred in rejecting his evidence; he contends
his wife, his alibi,
corroborated his evidence. The trial court
rejected the testimony of his alibi in so far it is in conflict with
the State’s version.
The trial court noted that:
When
she (Appellant’s wife”) testified, one initially got the
impression that what she testified, she observed, only to find that
there were certain things that the Accused reported to her as to
which he testified.  Her testimony is shaky in that regard.
One can understand since her husband is charged with a very serious
offence and she has to corroborate him.  She was observed
giving
details, only to adjust her testimony when the Prosecution tells her
what her husband said.  What also comes out of her
testimony is
that the Accused was around and awake within the short period of time
and from the time this offence had occurred.
24.
We
share the same sentiment with the trial court in respect of the
Appellant’s wife’s evidence, and we uphold her observations,
which are apparent from the record
[3]
.
For instance she gave more than four contradictory versions relating
to her house keys. She initially testified that when the Appellant
left for work at 04h00 she woke up to lock the door because the
Appellant lost the house key. Under cross-examination she repeated
the lost key evidence, but she changed her version when she was asked
how the Appellant gained entry to the house in her absence.
Her
response was that she was at home when he came back from the police
station. She was then reminded that she testified that she
locked the
door when he left for work. Her answer was that she could not recall
if she opened the door or not. Confronted with the
testimony of the
Appellant in respect of the time he arrived home, that she was not at
home and the bag he placed inside the house,
her response was “ he
is the person who said that and that was the correct version of what
he said”. She then repeated what the
Appellant told her which is
consistent with his evidence. This prompted the prosecutor to extract
a concession from her that it meant
the Appellant had his own set of
house keys, and there was no reason for her to lock the door when he
left.
25.
Overall,
the evidence of the Appellant’s wife is riddled with numerous
contradictions and inconsistencies. She was not honest in
many
respects. She went to extreme lengths to corroborate the Appellant’s
evidence. She miserably failed to give evidence consistent
with what
the Appellant ascribed to her and directly contradicted it. In the
result her evidence was of no assistance to the Appellant.
[4]
.
26.
The desperate attempt to protect her
husband complicates the defence conundrum further. She has cast doubt
to the Appellant’s version.
If her initial testimony is accepted,
that the Appellant lost his house key and when he returned she was
home, it would rule out
the possibility of the timing of his
encounter with Nellie in the afternoon. It would confirm Nellies
evidence that her discussion
with the Appellant was in the morning.
The evidence of Nellie would then be preferred and accepted over that
of the Appellant. This
time factor extends to improbability of the
Complainant standing at the burglar door at 04h00 as per the
Appellant’s version.
27.
The trial court therefore rejected the
evidence of the Appellant and his
alibi
for valid reasons, the totality of the evidence justifies the finding
that the State proved beyond reasonable doubt that the Appellant
raped the complainant. There is no misdirection that requires the
intervention of the Appeal Court.
In
the result the following order is made
:
The appeal against
the conviction of the Appellant is dismissed.
__________________
A
MOFOKENG AJ
NORTHERN
CAPE DIVISION
I
agree
__________________
C
WILLIAMS
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
Appearances:
On
behalf of the Appellant
:
Mr A Van Tonder
(Legal
Aid SA)
On
behalf of the State
:
Adv J Rosenberg
(DPP)
[1]
S
v Charzen And Another
2006 (2) SACR 143
(SCA) at paragraph 10-11:
“
[10]
What is more, as the magistrate pointed out in his judgement, and
the High Court emphasised on appeal, the complainant
was a good
witness: clear, coherent, specific and verbally expressive.
[11]
But, as our courts have emphasised again and again, in matter of
identification, honesty and sincerity and subjective
assurance are
simply not enough.  There must in addition be certainty beyond
reasonable doubt that the identification is reliable,
and it is
generally recognised in this regard that evidence of identification
based upon a witness’s recollection of a person’s
appearance can
be ‘dangerously unreliable’, and must be approached with
caution.”
[2]
8
.
“The fundamental rule to be applied by an appeal court is that it
is not at liberty to depart
from the trial court’s findings of
fact and credibility unless they are vitiated by irregularity, or an
examination of the evidence
reveals that those findings are patently
wrong. The trial court’s findings of fact and credibility are
presumed to be correct
because that court has had the advantage of
seeing and hearing the witnesses and is in the best position to
determine where the
truth lies.
These
principles are no less applicable in cases involving the application
of the cautionary rule. If the trial court does not misdirect
itself
on the facts or the law in relation to the application of the
cautionary rule, but, instead, demonstrably subjects the evidence
to
careful scrutiny, a court of appeal will not readily depart from
that court’s conclusions.”
[3]
The
alibi evidence stands to be rejected on consideration of the
entirety of the evidence before court, following the appoach
stipulated
in R v Hlongwane
1959 (3) SA 337
at 340H-341B:
‘
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.’
[4]
On
application of the the dicta at paragraph 30 in the matter S V
Schackell
2001 (4) SA 1
(SCA)
“
It
is a trite principle that in criminal proceedings the prosecution
must prove its case beyond reasonable doubt and that a mere
preponderance of probabilities is not enough.  Equally trite is
the observation that, in view of this standard of proof in
a
criminal case, a court does not have to be convinced that every
detail of an accused’s version is true.  If the accused’s
version is reasonably possibly true in substance, the court must
decide the matter on the acceptance of that version.  Of
course
it is permissible to test the accused’s version against inherent
probabilities.  But it cannot be rejected merely
because it is
improbable; it can only be rejected on the basis of inherent
probabilities if it can be said to be so improbable
that it cannot
reasonably possibly be true.