About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2021
>>
[2021] ZAKZPHC 8
|
|
Luthuli v S (AR106/2020) [2021] ZAKZPHC 8 (29 January 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION,
PIETERMARITZBURG
Case
No: AR106/2020
In
the matter between:
LUTHULI APPELLANT
vs
THE
STATE RESPONDENT
ORDER
The
following order is granted:
1. The
appeal is allowed and the conviction and sentence on both counts is
set aside.
JUDGMENT
Mossop
AJ (D. Pillay J concurring)
Introduction
[1] The
appellant stood trial before the Ixopo Regional Court on charges of
housebreaking with the intent to rape
and rape. He pleaded not guilty
but he was convicted as charged. On the charge of housebreaking with
intent to rape, he was sentenced
to 3 years imprisonment and on the
charge of rape he was sentenced to life imprisonment by virtue of the
fact that the victim of
the rape was raped more than once. Both
sentences were ordered to run concurrently with each other.
Leave
to appeal
[2] By
virtue of the sentence imposed on the count of rape, the appellant
has an automatic right of appeal on that
count in terms of the
provisions of
section 309B
of the
Criminal Procedure Act 51 of 1977
.
[3]
On
2 August 2019, the appellant applied for leave to appeal against his
conviction and sentence on the count of housebreaking with
intent to
rape, which application was granted by the court a quo.
[4]
This
appeal is accordingly before us in respect of conviction and sentence
on both counts.
The
appellant’s defence
[5] The
appellant was legally represented and when he pleaded his legal
representative indicated that while the
appellant elected not to
disclose his defence, he was prepared to state that the defence would
be challenging the DNA evidence
that the State proposed to lead. The
prosecutor enquired from the defence about precisely what aspects of
the DNA evidence would
be challenged in order that he might arrange
to call the necessary witnesses. In response, the appellants’
legal representative
made the following statement:
‘
Your
Worship everything, the chain in fact no swabs were taken from the
accused and the accused is contending that basically that
match or
the samples that were taken were not his DNA it was basically matched
with that of the complainant.
So
he’s challenging everything from the so-called obtaining of the
swab from him, nothing in fact links him that’s his
contention
that nothing links him in this particular matter.
So
we are challenging each and every single thing of the DNA. In fact
the point is nothing was taken, no blood samples was taken
from him,
no semen was found on the complainant. Whatever was - whatever match
there is a match with someone else, not with him
at all.’
The
State was accordingly fully apprised of the defence’s
contentions.
The
evidence of the offence
[6] The
evidence adduced by the State was that the complainant lived at
Ophepheni and was 53 years. On an undisclosed
night, (which according
to the charge sheet was 6 September 2015) she was asleep when she was
awoken by a noise. She switched on
her cell phone light to see what
had disturbed her. The dwelling was otherwise in total darkness. She
heard the door to her dwelling
being struck and it then opened. A
person entered the room. The complainant got off her bed but was
grabbed, assaulted, then thrown
onto her bed, and slapped. Her
assailant then inserted his penis into her vagina and raped her.
[7] When
her assailant was finished, the complainant managed to get up and
tried to flee. As she ran towards the
kitchen (which appears to have
been in a separate structure apart from her sleeping area), she was
pursued by her assailant who
caught her outside, threw her to the
ground and attempted to strangle her. She was then raped outside on
the ground for a second
time.
[8] The
complainant confirmed that her assailant had ejaculated whilst raping
her, but it is not clear whether
this occurred as a consequence of
the first act of rape or the second, or both.
[9] The
complainant was unable to identify the person that had violated her.
She explained that it was simply too
dark. Strangely, however, she
testified that:
‘
I
was not able to see the person, but when the person was throttling me
in my neck I was saying that leave me alone Thabani, leave
me alone
Thabani saying that repeatedly.’
[10] The
appellant’s first name is Thabani.
[11] The
complainant was ultimately removed to hospital where she was attended
to and examined by a Dr. Mjali,
who noted that she had tears to her
posterior fourchette. There was no bleeding from her vagina but the
doctor noted a whitish
discharge emanating from it. The doctor took a
DNA sample from the complainant to which I shall revert later in this
judgment.
[12] It
was not in issue that the complainant had been assaulted. The medical
examination that she underwent revealed
that she suffered physical
injuries to her face, which was cut swollen and bruised, her chest,
which had a large bruise on it and
her right hand which had an
abrasion on it and was swollen. The medical examination also did not
exclude that she had been raped.
[13] The
complainant was a good witness who was fair in her evidence. Had she
been mendacious, she could easily
have said that it was the appellant
that had raped her but she refrained from doing so.
[14] There
is no reason to disbelieve the complainant when she states that she
was raped. It was not actively disputed
by the defence that she had
suffered this grave indignity. The essential issue was the identity
of the person who raped her.
No
direct evidence implicating the appellant
[15] There
was thus no direct evidence implicating the appellant in this
offence. The State proceeded against him
solely on the basis of DNA
evidence that it acquired.
[16] Given
the challenge referred to earlier by the defence regarding that DNA
evidence
and given that it is the only evidence that allegedly links the
appellant to the offence, it is accordingly necessary to
carefully
scrutinize that evidence in fine detail.
[17] Two
DNA samples were obtained by the South African Police Services: the
sample from the complainant extracted
by Dr. Mjali and the
comparative sample extracted from the appellant some 17 days after
the complainant was attacked and violated.
[18] No
evidence was led as to why a sample was sought from the appellant
other than the complainant testifying
that she had called out the
name ‘Thabani’ during her ordeal.
[19] In
my view, it will be helpful to deal with each of those samples
separately in order to avoid confusion
The
DNA sample taken from the complainant
[20] As
stated, a sample was taken from the complainant by Dr Mjali after the
attack on her.
[21] Dr.
Mjali testified that she received a sealed DNA sample kit with the
outside seal having the number 14D1AC2334JJ.
The doctor stated in her
evidence that this seal number was recorded at the top of the J88
form that she completed.
[22] A
perusal of the J88 form, received by the court a quo as exhibit ‘A’,
reflects that the serial
number of the seal that she received
actually had the number 14D1AC2334. The last two letters of the
sequence to which Dr. Mjali
testified, namely ’
JJ
’,
did not form part of the serial number that she recorded on the J88
form. Each subsequent witness that testified regarding
this sample
confirmed the seal number without the letters ‘
JJ
’.
It appears that the doctor was mistaken in her evidence, particularly
in view of the fact that she completed the J88 form
contemporaneously
with her examination of the complainant.
[23] Dr.
Mjali testified that after obtaining the DNA sample, she resealed the
kit with a new seal which had the
number PAD001307586. She handed
that sealed kit to Sergeant B. P. Edwards.
[24] Sergeant
Edwards was never called to testify. Yet her sworn statement appears
in the record, marked as exhibit
‘D’. There is no record
of it ever being handed in as an exhibit. The exhibit ‘D’
to which reference is
made in the record is a receipt from the
Forensic Science Laboratory. This failure was never addressed at any
stage and remains
unexplained.
[25] Constable
G. Magubane testified that he received the exhibit from Sergeant
Edwards and was requested by
her to take it to the Forensic
Science Laboratory at Amanzimtoti. He stated that the external seal
had the number PA300062554.
This was not the same seal number
referred to by Dr. Mjali. Inside the bag (which was transparent) with
that seal number were bags
bearing seal numbers PAD001307586 and
14D1AC2334. These accord with the numbers referred to by Dr. Mjali.
How the seal number PA300062554
came to be applied is unexplained by
the State.
[26] Constable
Magubane handed the bag in at the Forensic Science Laboratory.
Warrant Officer Samantha Joan van
der Bijl, who is employed at the
Forensic Science Laboratory testified that she received a bag with
seal number PA3000625554, within
which was an inner bag with seal
number PAD001307586 and kit number 14D1AC2334. She later interpreted
the results of the tests
run on the samples taken from the
complainant and the appellant.
The
DNA sample taken from the appellant
[27] Doctor
Nancy Martinez Curbelo who works at the Thuthuzela Care Centre at the
Port Shepstone Hospital was requested
to take a buccal swab from the
appellant on 23 September 2015.
[28] Dr.
Curbelo testified that the kit that she received had two seal
numbers. The first was 13DBAB4661. The second
seal number was
PA5002254909. Her
section 212
statement was received by the court as
exhibit ‘C’. This was the second exhibit ‘C’
received by the court:
the first was a statement by Constable Gigaba.
The court a quo appears to have lost track of the numbering of the
exhibits that
it received. On exhibit ‘C’, Dr. Curbelo
recorded that the DNA kit had the seal number 13DBAB4661 and that
after taking
the sample she sealed the kit with seal number
PA5002254909.
[29] The
seal number PA5002254909 is never mentioned again by any of the
State’s witnesses. What became of
the bag with that seal number
is accordingly a mystery. The State made absolutely no attempt to
clarify this aspect and the court
itself asked no questions in this
regard. Indeed, it seems to have gone completely unnoticed.
[30] Dr.
Curbelo stated that she handed over the sealed bag to Constable
Gigaba. Constable Gigaba testified that
he received the exhibit from
Dr. Curbelo and that the seal number on it was 13DBAB4661. He made no
reference whatsoever to the
seal number PA5002254909. He was not
asked any questions in this respect by the State to clarify the
position. He took the exhibit
back to his office and placed it in a
steel filing cabinet that he locked. When he was to send the sample
through to the Forensic
Science Laboratory, he packed it in another
bag with seal number PA5000262423G.
[31] A
number of statements were received by the court a quo from Constable
Gigaba. One related to the receipt
by him of the sample from Dr.
Curbelo. The statement makes no reference to the seal number
PA5002254909. It only references seal
number 13DBAB4661.
[32] Constable
Gigaba handed the sample to Sergeant Pillay for conveyance to the
Forensic Science Laboratory. Sergeant
Pillay testified that he had
taken a bag with evidence seal number PA5000262423G to the Forensic
Science Laboratory for which he
received a receipt. The receipt was
received as an exhibit by the court a quo as exhibit ‘D’.
[33] The
receipt recorded that what was received by the Forensic Science
Laboratory bore evidence seal number PA5000262423G.
[34] Warrant
Officer van der Bijl testified that she received an evidence bag with
seal number PA5000262423G with
kit number 13DBAB4661. The results of
the analysis of the sample in this bag were compared with results of
the analysis of the
sample taken from the complainant.
The
findings of warrant Officer van der Bijl
[35] Warrant
Officer van der Bijl found that the two samples matched and that the
most conservative occurrence
of such a match was 1 in 21 million
trillion people.
[36] The
essential questions, however, are:
(a)
firstly,
whether the sample taken from the complainant was in fact the same
sample that was tested;
(b)
secondly, whether the sample taken from the
appellant was in fact the same sample that was tested; and
(c)
thirdly, and only if the answer to both questions
is ‘yes’, whether on comparing both samples
the only
reasonable inference to be drawn is that the sample taken from the
complainant was that of the appellant.
The
evidence of the appellant
[37] The
appellant testified in his defence. He indicated that the complainant
was his neighbour and that she had
previously incorrectly blamed him
for the loss of an electric cable. Her unfounded allegations in this
regard had caused their
relationship to deteriorate. He could not
recall specifically where he was on 6 September 2015, being the date
of the attack on
the complainant. He explained that he had gone to
the complainant’s home on numerous occasions but that the last
time that
he had been there was in 2013.
[38] The
appellant was asked by his legal representative why the complainant
would charge him with rape. The appellant
thought that it was because
of the incident over the missing electrical cable.
[39] It
is important to note that the complainant at no stage accused him of
rape. As previously stated, how the
appellant came to be charged was
never disclosed. However that happened, the complainant at no stage
testified that he was the
rapist.
[40] A
desultory attempt at cross-examining the appellant was embarked upon
by the prosecutor: his cross-examination
consists of little more than
a page of the record.
Evaluation
[41] The
conviction of the appellant on both counts rested solely on the
acceptability of the DNA evidence. That
evidence either placed him at
the scene or it did not. It was that very evidence that was
specifically challenged by the defence.
In such circumstances, it is
reasonable to anticipate that the State would have ensured that its
evidence in this regard was properly
presented in the court below and
was beyond reproach. In my view, the evidence led was not beyond
reproach.
[42] During
the course of her judgment, the Learned Regional Magistrate made
passing reference to the matter of
S
v Sandile Bokolo
.
The matter is in fact
Bokolo
v
S
[1]
.
In that matter, the Supreme Court of Appeal, per van der Merwe AJA,
held that DNA evidence is circumstantial evidence the weight
of which
depends on a number of factors. Those factors include:
‘
(i)
the establishment of the chain evidence, i.e. that
the respective samples were properly taken and safeguarded
until they
were tested in the laboratory;
(ii)
the proper functioning of the machines and
equipment used to produce the electropherograms;
(iii)
the acceptability of the interpretation of the
electropherograms;
(iv)
the probability of such a match or inclusion in the
particular circumstances;
(v)
the other evidence in the case.’
[2]
[43] The
significance of the
Bokolo
judgment
is that the collection, preservation and handling of the DNA material
is very important. The probative value of DNA
profiling in any
particular case will depend on a number of different factors which
must be assessed in the context of the facts
of that case. Firstly,
an important factor will be whether the samples were properly taken
so that they were not contaminated or
otherwise compromised. Also,
the samples must be shown not to have been tampered with before they
were tested in the laboratory.
[3]
[44] I
am not satisfied that the evidence adduced passes muster.
[45] Considering
the sample taken from the complainant, the evidence of Sergeant
Edwards was not led yet her statement
forms part of the record whilst
there is no record of it being accepted during the trial as an
exhibit. It ought not have been
considered. This accordingly results
in a break in the chain of evidence.
[46] The
break in the chain of evidence is not an insignificant break. Whilst
the sample was in Sergeant Edwards’
possession, the seal number
changed. How and why this occurred was not explained. There may well
be an innocent explanation for
this but there must, at the very
least, be an explanation. None was offered by the State.
[47] As
regards the sample taken from the appellant, Dr. Curbelo testified
that the seal that she applied was PA50002254909.
This seal number
was not referred to by any other witness. Dr. Curbelo took the sample
on 23 September 2015 and deposed to her
statement in terms of
section
212(4)
of the
Criminal Procedure Act on
the same day. It is
inconceivable that in such circumstances she recorded the incorrect
seal number. What became of it? No explanation
was advanced by the
State.
[48] In
my view, the State did not establish that the chain of evidence was
intact and could be relied upon with
any degree of confidence.
Conclusion
[49] The
State ought to have properly considered the evidence that it intended
leading and ought to have ensured
that the chain of evidence was
consistent and complete. It failed to do so. It appears that there
was a general lack of attention
to detail all round in the
presentation of its evidence against the appellant. The appellant was
barely cross-examined.
[50] The
answer to the first two questions posed above is ‘No’.
Without reliable evidence that the
samples purportedly taken from the
complainant and appellant were in fact taken from them, the results
of comparing the samples
is equally unreliable. Consequently, the
answer to the third question is that without reliable evidence of the
source whence the
samples tested were obtained, the State failed to
meet the test for the reliability of circumstantial evidence, namely,
that the
inference to be drawn from such evidence is the only
reasonable inference. Accordingly, I find that the State failed prove
beyond
a reasonable doubt that the DNA sample taken from the
complainant was the appellant’s.
[51] In
the circumstances, it would be unsafe to allow the appellant’s
conviction and sentence on both counts
to stand.
[52] I
would accordingly propose that the appeal be allowed and that the
conviction and sentence on both counts
be set aside.
Mossop
AJ
Acting
Judge of the High Court of KwaZulu-Natal
I
agree and it is so ordered.
D.
Pillay J
Judge
of the High Court of KwaZulu-Natal
APPEARANCES
NB:
The country is in lockdown level 3 due to Covid-19.
With
the consent of the parties, the matter was dealt with on the papers
and judgment was handed down electronically and emailed
the parties.
Counsel
for the appellant: Advocate
A Hulley
Instructed
by Legal-Aid
South Africa
AmandaH@legal.co.za
Counsel
for the respondent: Advocate
Xaba
Instructed
by DPP
Pietermaritzburg
RXaba@npa.gov.za
Date
of Hearing: 29
January 2021
Date
of Judgment:
[1]
2014
(1) SACR 66 (SCA).
[2]
At
paragraph 18.
[3]
Nkwanyana
v
S
(AR108/16) [2016] ZAKZPHC 82 (27 September 2016) at para 22.