About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2019
>>
[2019] ZAFSHC 87
|
|
Mokhothu v S (A206/2018) [2019] ZAFSHC 87 (6 June 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No. : A206/2018
In
the matter between:-
THEMBA
GEORGE
MOKHOTHU
Appellant
and
THE
STATE
Respondent
CORAM:
MATHEBULA, J
et
MOLITSOANE, J
HEARD:
25 MARCH 2019
JUDGMENT
BY:
MOLITSOANE, J
DELIVERED:
6 JUNE 2019
[1]
The Appellant was convicted in the Regional Court: Bloemfontein on a
charge of rape read with the provisions of s51 (1)of the
Criminal Law
Amendment Act 105 of 1997
. He was sentenced to life imprisonment. He
has an automatic right of appeal and this appeal is against both
conviction and sentence.
[2]
The facts of this case are briefly as follows: The complainant was at
a tavern known as the Jazz Bar. Her boyfriend worked at
that tavern.
She arrived at the said tavern around 19h00 to 20h00 when she
started to drink. She drank until the early hours
of the morning.
Just after 5h00 the following morning she went to the toilets at the
taxi rank. Before she could arrive at the
toilets she was accosted by
three men. They dragged her to the male toilets where they took turns
to rape her. Each of the assailants
raped her once. She recognised
the appellant as one of her assailants. She knew him as the family of
the son in law of her friend
M. After they had raped her they
walked away. She dressed up and immediately went to the nearby police
station known as Thabure
and laid charges. She related her story to
Warrant Officer Moroeng who took down her statement.
[3]
She was taken to National Hospital where she was examined by Dr Krige
who also completed the medico legal report which was formally
admitted into evidence. About two weeks later she was again at the
Jazz Bar. She saw the appellant and immediately went to summon
the
police. She again met W/O Moroeng and the latter and another
policeman accompanied her to the tavern where she pointed the
appellant in the company of five other male persons. The appellant
was then arrested.
[4]
The following are the grounds of appeal in a nutshell on the
conviction:
1.
The court a quo erred in finding that the state
proved its case against the appellant beyond a reasonable doubt;
2.
The court a quo erred in accepting the evidence
of a single witness and failed to approach such evidence with the
necessary caution;
3.
The court
a quo
erred did not attach any weight to the evidence of the DNA results;
4.
The court
a quo
erred in finding that the appellant was positively identified by the
complainant.
[5]
The evidence of the state is based on the evidence of a single
witness. A conviction may follow on the evidence of a single
and
competent witness which is both credible and reliable. It is settled
that the evidence of a single witness must be approached
with
caution. In
S
v Stevens
[1]
the court said:
“
It is, however, a
well-established judicial practice that the evidence of a single
witness should be approached with caution, his
or her merits as a
witness being weighed against factors which militate against his or
her credibility.”
[6]
It is the version of the complainant that she went to the tavern at
about 19h00 and continued to drink until the early hours
of the
morning. She admits that she was drunk. It is her evidence that when
the appellant and the two other male persons approached
her at the
taxi rank she could not remember how lightening was on the scene. She
further testified that she could not recognise
the appellant
immediately when the three male persons approached her before being
dragged to the male toilets.. She only recognised
the appellant after
the first assailant had already raped her and when she was about to
dress and the appellant slapped her. It
is unfortunate that although
the appellant denied being on the scene of this rape, the question of
visibility inside the male toilets
which ultimately would have laid
to rest the issue of identification, was not explored. It is not
enough for the court to accept
the
ipse
dixit
of the complainant that she saw the appellant at the scene. Her
evidence as to the identity of the appellant should have been
approached with the necessary caution. Much more than her
ipse
dixit
is required in order to satisfy the court that the identification was
both credible and reliable. In
S
v
Mthetwa
[2]
the court said the following:
“
Because of the fallibility 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 observation must also be
tested. This depends on various
factors, such as 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.”
[7]
The complainant was a single witness as to the events of the day and
the identification of the appellant. It is her version
that she could
not remember how visibility was where she was accosted by the three
male persons. It is her case that she could
not remember how the
appellant was dressed.
[8]
Of further importance it is the version of the complainant that she
came to know the appellant through her friend M. According
to the
complainant the appellant was the brother in law of M. It is the case
for the state that at the time of this incident,
to
wit
, 10 June 2006 the complainant was already
a friend of M and as such he knew the appellant. M, however,
testified that she came
to know the complainant from 2013, some six
years after this incident. It is clear from the testimony of M,
contrary to the assertion
of the complainant, that the complainant
could not have known at the time of the incident that the appellant
was the brother in
law of M let alone his names.
[9]
It is the evidence of Warrant Officer Moroeng that when the
complainant laid the charges she indicated that she did not know
her
attacker and she further said that ‘
she
will be able to him out
. We now know that it
is the evidence of the complainant that she knew the appellant as the
brother in law of M at the time of this
incident. This begs the
question why she said to W/O Moroeng that she was raped by an unknown
attacker but she could point out
that person.
[10]
Warrant Officer Moroeng also testified that the complainant told him
that she was raped by one person. It is indeed so that
during an
examination by the doctor she said that she was raped by three
persons of which one was known to her. This, however,
does not
detract from the fact that at her earliest opportunity she said that
she was raped by one unknown attacker who she could
point out. The
trial court correctly referred to the decision of S v Kruger
[3]
in which the court said the following about the rationale of
the so called evidence of the ‘first report’:
“
That fact
that the complainant informed the sister of what had happened
immediately after the incident is not only admissible under
s 58
of
the
Criminal Law (Sexual Offences and Related Matters) Amendment Act
32 of 2007
but shows consistency of the part with regard to the
complainant, a factor that serves to rebut any suspicion that she may
have
fabricated in her allegations.”
[11]
It is clear that the complainant was inconsistent in her narration of
the events to W/O Moroeng. The complainant further in
her testimony
testified that when she took the police to the tavern two weeks later
she pointed the appellant amongst five other
people. Days later it
apparently dawned to her that at the time when she pointed the
appellant to the police, the third person
who allegedly raped her was
sitting with the appellant. Not only did she not inform the police
about this other person at the time
of the arrest of the appellant
but she also failed to inform the police at any stage thereafter. She
could not give a reason for
such failure. It is inconceivable how a
person would fail to also point another person who raped her at the
earliest opportunity.
[12]
The overall testimony of the complainant
was inconsistent and unreliable. It is my considered view that the
trial court erred in
finding that the evidence of the complainant was
credible and reliable. I accordingly find that the state failed to
prove its case
beyond a reasonable doubt. The conviction in this
regard cannot stand. In view of my finding aforesaid the sentence
also falls.
I make the following order:
ORDER
1.
The appeal against the conviction and sentence is
upheld.
2.
The conviction and the sentence are hereby set
aside.
____________________
P.E.
MOLITSOANE, J
I
agree.
_______________
M.A.
MATHEBULA
On
behalf of the Appellant: Mr ML Tshabalala
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of the Respondent: Adv. R Hoffman
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
[1]
2005(1) All SA 1 (SCA) at par [15]
[2]
1972(3) SA 766(AD) 768a-c
[3]
2014(1) SACR 647 (SCA) at page 650 par[9]