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[2019] ZAKZPHC 53
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Khumalo v S (AR 398/2017) [2019] ZAKZPHC 53 (29 July 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CRIMINAL
APPEAL NO: AR 398/2017
In
the matter between:
LINDOKUHLE
KHUMALO
Appellant
And
THE
STATE
Respondent
Coram:
KOEN, VAHED JJ et BARNARD AJ
Heard:
17 MAY 2019
Delivered:
29 JULY 2019
ORDER
On appeal
from
the Regional Court, sitting at lnkanyezi.
1.
The
appeal against conviction is dismissed and the conviction by the
court a
quo
is
confirmed.
2.
The
appeal against sentence succeeds. The sentence of life imprisonment
imposed by the court a
quo
is
set aside and substituted with a sentence of twenty (20) years
imprisonment, antedated to 25 August 2015.
JUDGMENT
Koen J (Barnard AJ concurring)
[1]
The appellant was convicted in the court
a
quo
of
the rape of an 8 year old boy,
[1]
hereafter refer to as 'S', and sentenced to life imprisonment. The
present appeal arises from the application of s 10 of the Judicial
Matters Amendment Act 42 of 2013 which provides the appellant with a
right of appeal against his conviction and sentence without
requiring
the leave of the court a
quo.
[2]
[2]
The trial court was faced with two
mutually contradictory and conflicting versions:
(a)
The
State's version was that on Friday, 3 May 2013 and at the home of the
appellant, the appellant penetrated the anus of the complainant
with
his penis;
(b)
The
appellant denied any such incident. His version was that he saw S
come
past his (the appellant's) room on that day and
saw him going to the main door of the Khumalo residence where he, the
appellant,
resides. The appellant then went to the main residence and
locked the door, as S allegedly had previously stolen an adaptor
and
charger from that home and he wanted to prevent any similar incident.
[3]
It is not in dispute that the appellant
is known to S and that he knew him by name prior to the day in
question.
[4]
S testified that although he was at the
time a grade 2 pupil, he did not attend school on that day, but that
he had remained at
home. He was suffering from a stomach ache and his
mother was going to give him glucose. His stomach was painful and
itching. Another
thing that would happen was that when he went to the
toilet, he would not be able to 'pass ... stool'. When he felt better
at around
14h00 he decided to go and visit his friend, Sibonelo, a
younger brother of the appellant, at the Khumalo's homestead. He came
across Nkosinathi near the gate, greeted him and then they parted
ways. Thereafter the appellant called him as he was entering the
area
near the appellant's homestead. S thought that the appellant wanted
to send him on an errand; he thought that he would have
to get
cigarettes, as he knew the appellant as a smoker. At that stage he
had not yet found Sibonelo.
[5]
S asked the appellant whether Sibonelo
was present. The appellant told him that Sibonelo was not yet back.
The appellant then asked
him to enter the house and after he had
entered the house the appellant closed the door and told him to climb
on top of the bed.
The appellant covered S with a duvet or a
comforter. The appellant smeared Vaseline on S's buttocks and then
some more Vaseline
onto his penis and thereafter penetrated S anally.
S described that he cried. The appellant told him that he should go
out of his
room but that he should not report the incident to anyone.
S hurried home to report the incident to his mother.
[6]
S said that he found his mother inside
the house and she was busy 'putting some polish'. He reported to her
that the appellant had
raped him. They both then went to another
house and called out for a granny, who turned out not to be present.
One Thandeka was
however present. They thereafter proceeded to the
home of the Khumalos (that is the appellant's home) where they found
the appellant,
Sibonelo and one Nosipho. At that stage, at the
direction of his mother, S was required to repeat what he had
reported earlier
to her in the presence of the appellant. He did so.
The appellant denied the accusation of rape.
[7]
Thereafter the matter was reported to
the police and S was taken to a hospital where he was examined by a
doctor (who turned out
to be Dr Buthelezi whose J88 was made
available to the defence). Present at the hospital were S, his mother
and the appellant's
mother, Siphiwe Khumalo.
[8]
S's mother testified before he did. Her
evidence of what was reported to her by S was consistent in all
material respects with S's
subsequent testimony. She had been at her
home with S earlier that morning. When S came to report the rape she
was seated at the
Xulu homestead, neighbouring her homestead. Her
evidence as to how S presented himself to her is significant. She
described that
'his penis was actually hanging outside... and he came
shouting, mother, mother!' S then went on to say that the appellant
had
raped him. He appeared to her 'to be very frightened'. She
'grabbed him by his hand and exited the Xulu homestead with him.' On
inspection she noticed that his penis appeared to be 'swollen and
also a bit wet'. From a glance 'it appeared to [her] like it
was
being stroked up and downwards.' She formed the impression from S's
dishevelled state that he had been 'dressing himself up
as he was
travelling'.
[9]
S's mother knows the appellant as he
grew up 'in front' of her. S explained to her that he had gone to
look for his friend. At the
Khumalo home he was called by the
appellant who asked him to enter the house. The appellant then pulled
him inside the house, and
having done so, threw him on top of a bed
and covered him with a blanket. Some Vaseline was thereafter smeared
on his (it seems
the appellant's) penis. The appellant then inserted
his penis into S's anus. After having violated him the appellant told
him that
'if you tell people I am going to slaughter you'. S then
made his escape.
[10]
S's mother took him to a homestead above hers where she called out
for a granny who lives there,
but one Thandeke emerged. She and S's
mother examined S's anus during which they also noticed some faeces
(Dr Buthelezi who subsequently
examined S also found some faeces on
his scrotum). S's mother also noticed 'tears on his anus... they
looked more like cuts'. She,
S and the appellant's mother
subsequently went to the Eshowe hospital where S was examined in
their presence by a doctor. She testified
that she had no problems
with the appellant before the incident and said she treated him like
her own child.
[11]
During cross-examination S's mother
confirmed that S did not go to school on 3 May 2012 because 'he had
stomach ache' and that she
prepared and offered him glucose to drink.
She further confirmed that when reporting to her, S talked like he
was scared and very
shocked. She expressed surprise at the accusation
that S had allegedly previously stolen an adapter and charger,
expressing her
disbelief that he would do so because of his young
age. Significantly it was put to her that a neighbour of the
appellant, Mrs
Luthuli was in her garden busy cleaning up when S was
at the Khumalo residence. S's mother had no knowledge of that.
[12]
Five months after S's mother had
testified initially, when the trial resumed, she was recalled because
of new information which
had come to light, allegedly on 26 May 2014
{that is some two and half months after she had testified) from the
brother of the
appellant, Sibonelo. This information was that on
Wednesday, 1 May 2013, that is two days before the incident, S had
been on his
way home in the company of Sizwe Mpungose, Thabane
Mpungose, Olethu Xulu, Njabulo Ngema and Sibonelo Khumalo at about
14h30. On
their way home they passed some guava trees and picked and
ate a few green guavas. They then went home, changed and returned and
ate some more green guavas. S's mother had no knowledge thereof. It
was suggested that the green guavas made S constipated. She
replied
that 'he was not constipated, he had a runny tummy'. On 2 May 2013,
the next day, S was alleged to have told these companions
who were
with him the previous day that he wanted to show them something. He
took them to his homestead and showed them faeces
and a stick next to
the toilet, the faeces having traces of blood on them. He
demonstrated that he took a short stick, plus minus
12 inches long,
and had pushed it up his anus to relieve the pressure. S's mother
replied that she had no knowledge thereof. In
response to a question
by the court she said that S had never told her that he was
constipated before the incident or that he asked
her for anything to
assist with constipation.
[13]
The same information was put to S. He
denied eating any of the green guavas and showing any people faeces
and a stick next to the
toilet. He denied that he ever told anyone
that he pushed a stick up his anus in order to relieve the pressure
of alleged constipation.
When probed as to why his stomach was
aching, he said that he had 'been eating beef.' It was suggested that
S did not want to disclose
to his mother that he was constipated as
he did not want her to administer an enema. He said that he would
tell his mother if he
was constipated. S for the first time mentioned
during cross examination that the appellant had also touched his,
S's, penis.
[14]
Certain alleged 'contradictions' between
S's evidence and what was recorded in a statement he made to the
police, were also referred
to. That statement was however not read
back to him at the time it was recorded. It was only read to him on
the day he testified.
There were certain differences but it must be
remembered that at the time of testifying he was only 9 years of age.
[15]
Dr Buthelezi testified with reference to
the J88 which he completed, that he examined Sat 19h30 on 3 May 2013.
He found tears at
6 and 3 o'clock on the anus, with a haematoma under
the tear at 6 o'clock indicating an injury secondary to penetration.
He concluded
that in his professional opinion something actually did
penetrate his anus. Judging from the injuries, it did not seem to him
to
be a sharp object because that would have caused lacerations and
damage. In his
view
it
might have been a blunt object that caused the penetration. He
disputed that it could be a finger because of reflex dilatation
and
the presence of the tears. Asked whether it could have been a twig,
branch or stick that caused the injuries he said that a
stick
'probably would have caused more damage in relation to the actual
injuries'. Specifically, he was asked whether it was possible
that
the tears in the anus at 3 o'clock and 6 o'clock could have been
caused by inserting a stick up the anus to relieve pressure
caused by
constipation. His response was that 'the tears, it's possible that
may have happened, but the reflex dilatation and the
funnelling is
not possible'.
[16]
Dr Buthelezi explained that positive
reflex dilatation happens 'when you let the muscles surrounding the
abdomen and the sphincter
relax. Most of the time it is a sympathetic
response, when you put the person in a relaxed position, which is
usually all fours,
then you look into the rim of the anus. If there
has been previous penetration, or anything that might have happened,
it actually
dilates and the muscles relax, and the anus, the anal ...
[indistinct] opens up into the rectum'.
[17]
Asked whether that indicates penetration
or previous penetration Dr Buthelezi answered in the affirmative. The
learned magistrate
also asked him to clarify what he meant by
'funnelling' and he responded as follows:
'funnelling
means from the external sphincter to the internal sphincter. The
external sphincter will dilate and the internal sphincter
will
actually be much lesser in terms of the diameter and in terms of the
dilation compared to the external sphincter, or into
the anal ring'.
[18]
Asked what that would be indicative of
he said that it is 'an indication of also penetration as well'. An
internal examination of
S's anus could not be done as it was too
painful.
[19]
Dr Buthelezi was also asked to comment
on the faeces with blood on the stick allegedly pointed out on 2 May
2013. He responded that
.
'you cannot see traces of blood if it has been an hour or even longer
because the blood actually changes its colour, it doesn't
remain red
for a couple of - if it is exposed in the open air, it actually
changes from being red to dark brown, then eventually
it ends up
being dark. So you cannot come back two hours later and say that was
blood, so it is not possible to identify blood
from there if it is
exposed, sitting outside with ...'
[20]
According to the J88, samples were taken
by Dr Buthelezi and handed to Constable Mpungose. No details were
provided during the evidence
of Dr Buthelezi as to the location on
S's anatomy from which these samples were sourced. The samples were
only referred to in passing
when the learned magistrate at the
conclusion of Dr Buthelezi's evidence asked 'What happened to the
DNA?' No evidence had been
adduced by the State of any DNA evaluation
having been performed. The prosecutor responded that 'it didn't come
back from 'Toti'
and then conveyed that the samples had been
forwarded to the Amanzimtoti laboratory of the police for
examination, that the prosecution
had traced 'it', but that 'they
[the police] said they are still handling it and eventually didn't
respond'.
[21]
The appellant testified that he was in
grade 8 and 21 years old. He denied having interfered with S in any
way. He confirmed that
S and his mother came to his home at a time
when he was sleeping, that S's mother then inquired why he raped her
child, that he
said he did not rape S, and that S then did not
respond but cried. S and his mother then left. He also left with
amongst others
Nkosinathi to visit a friend. He denied that he uses
Vaseline.
[22]
The appellant's mother testified that
S's mother and others arrived at their home accusing the appellant of
having raped S. She
later accompanied S and his mother to the
hospital. She denied that her family used Vaseline. According to her
the appellant did
not go to school on 3 May 2013. On 1 May 2013 she
did not go to school to work in her temporary job, because the
children were
not at school. 1 May is of course a public holiday
annually when Workers' Day is celebrated.
[23]
Nkosinathi Khumalo testified that on 3
May 2013 he was at home with the appellant. It had been raining that
morning. When it was
'about to be daytime' friends came to visit and
they sat together with these friends and 'were playing music...'.
This contrasts
with the appellant's evidence that only Nkosinathi was
with him on 3 May 2013. They subsequently left to attend a
traditional function
at a certain Xulu homestead and at the gate to
the Khumalo homestead came across S who asked them whether Sibonelo
was at home.
They left S there and proceeded on their way.
[24]
Sibonelo Khumalo, the younger brother of the appellant testified that
on 1 May 2013 he was walking
home alone from school. He attended
school on that day as the whole of his grade 7 class had been called
to go to school. S and
other learners had not attended school because
it was a public holiday. He came across Sizwe . Mpungose, Olethu
Xulu, Thabane Mpungose,
Njabulo Ngema and S on his way home. They
accompanied him home where he changed out of his uniform and they
then left together
to go and eat some guavas which were not ready for
harvesting yet. They all ate those guavas. They all went to school
the next
day. After school they went straight home and then decided
to go and play with wire cars. S asked them to accompany him to
collect
his wire car and he then told them that there was 'a certain
vicinity where he decided to go and pass some stools there' which he
pointed out to them. Sibonelo continued that '... what we witnessed
there, we saw were faeces, as well as a stick and some blood.'
S told
them that he had been constipated and 'used the stick to release the
pressure from his stomach as he did not want an enema
to be
administered on him by his mother, therefore he didn't tell his
mother'.
[25]
On 3 May 2013 Sibonelo went to S's home to collect him on his way to
school but was told that
he had a running stomach and therefore was
not going to school. He denied that they used Vaseline at his home.
He also denied that
the appellant smokes. From his cross-examination
it emerged that in 2013 Siswe Mpungose was doing grade 4, Orleto Xulu
grade 1,
Thabani Mpungose grade 2, Njabulo Ngema grade 3 and S grade
2. He, Sibonelo, was in grade 7. Asked to describe the blood on the
faeces, he said it was 'starting to change its colour'. What he saw
'looked like, if one would look at the tube of a red pen, when
you
are looking at the tube of the red pen, it looked exactly like that.'
He confirmed that it was 'blood red' and there was a
stick. The stool
had hardened but it was mixed with guavas. He confirmed from past
personal experience that stool left exposed
would on the subsequent
day be dry and the colour would have changed. He then said that what
S pointed to as his faeces, had changed
and hardened but that one
could still see that it was blood although it 'had started to change,
it was becoming black.'
[26]
Sibonelo continued that on 3 May 2013
when the accusation was made against his brother, the appellant, he
did not say anything about
what S had pointed out to them the day
before. They were called to S's house on the Saturday and according
to him he wanted 'to
speak' there, but S's mother chased them from
their home. When the investigator arrived home he also wanted 'to
speak' at that
stage but the investigator chased them. Right after
the investigator had left their premises, he however told his
'people' without
identifying any names. He however denied discussing
his evidence with the appellant.
[27]
The defence also called Constable Mnyaka
regarding the statement he recorded in respect of S. His evidence did
not take the matter
any further. The defence also adduced the
evidence of the appellant's girlfriend, Sabatheni Zulu. She had
visited the appellant
on 1 May 2013 but left on the Thursday morning,
2 May 2013. She did not see anybody from the appellant's homestead
attending school
on the public holiday, 1 May.
[28]
The defence also called Constable Mandia
Mpungose who took a statement from S's mother in which she mentioned
the appellant as the
perpetrator of the rape on her son, on the day
of the incident. Constable Mpungose also received the samples
collected from S's
body by Dr Buthelezi and registered them in the
SAP 13 register under reference number 414/2013. These samples were
thereafter
placed in a safe. She did not see the samples again
thereafter. No report with the results of any tests carried out on
the samples
had however been forthcoming at the time the trial
commenced.
[29]
It appears that it was only after the
defence case had been concluded and when the defence counsel
requested the results of any
testing of the samples, that the
prosecutor in turn requested any results from the investigating
officer. The . investigating officer
obtained the results and
produced them after she returned from maternity leave. The issue of
the results of the tests conducted
on the samples was formally raised
when the closing arguments were to be addressed to the court, on 23
March 2015.
[30]
The prosecutor confirmed that all the
evidence had been adduced without any results in respect of the
testing thereof being available
or known. She explained that: 'The
kit was sent to Pretoria, and when the defence requested last time we
were in court your worship,
I got from the investigating officer the
report, if I may read to court? But it doesn't take the case any
further'.
The court then inquired whether there was 'a
result' to which the prosecutor responded that "It's a
preliminary examination
if I may correct that' i.e. whether there was
a result.
[31]
The learned magistrate remarked that
'... the issue is always that there is an
indication that a sexual assault kit was taken, that the DNA should
be - if it is of no
use to the State, then it should be obviously be
made available to the defence so that they can use it, because the
result is always
of use to either the State or defence. So I think
that is the issue here.'
[32]
The learned magistrate then enquired
whether there was a 'conclusion' and was told by the prosecutor that
the report recorded 'we
received the samples' but that 'no further
DNA had been done', and that 'there is no DNA result'.
[33]
The court entertained an application to
re-open the defence case. A relevant consideration in deciding
whether to grant leave to
re-open a case to adduce further evidence,
rightly identified as such by the learned magistrate, is the
materiality and relevance
of any such further evidence to be received
if the case was re-opened. In that regard, the learned magistrate
remarked:
'The
degree of the materiality of the evidence - I am not, or I have not
been appraised and I did not ask for it, what the results
are, or
what is contained in the letter, but I have been told that there is a
conclusion, However, either conclusion, or a conclusion
will either
assist the State or the defence. Or if it's inconclusive it might
not, it will only be a neutral factor.'
The
application to re-open the case was thereafter granted.
[34]
A Ms Jadu, employed by the Forensic
Services Laboratories at Amanzimtoti, who holds a Bio-technology
diploma, majoring in micro-biology
from the Durban Institute of
Technology and has been attached to the biology section of the
Forensic Science Laboratory since 3
January 2013 then testified. She
received the samples on 24 June 2013 and tested them the following
day. These samples were marked
10D7AA6598XX and included 4 swabs
namely, a rectal swab, a perianal swab, a perineum swab and an oral
swab. The rectal and perianal
swabs revealed that no possible semen
was detected. The oral swab was not tested. In respect of the
perineum swab her examination
revealed
'possible
semen detected' (my emphasis). After
testing the samples the docket was sent back to the administrative
section of the forensic
sciences laboratory. Ms Jadu thereafter
introduced a report contained in the docket in her possession, as
exhibit 'E'. It is a
report from the 'Head: Forensic Science
Laboratory' in Pretoria dated 28 February 2014, some eight months
after Ms Jadu had tested
the perineum swab and detected what might
possibly be semen. This report records:
'RAPE:
ESHOWE CAS 57/05/13
1.
The
samples with respect to the above mentioned case had been received
and analysed by the laboratory.
2.
No
male DNA was obtained from the exhibits (10D7AA6598XX).
3.
No
further DNA analysis will be carried out in the above mentioned case.
4.
You
are welcome to contact the undersigned should you have any questions
in this regard, by quoting the above mentioned lab number.'
[35]
Ms Jadu was aware of the conclusions
recorded in this report, but cautioned that the correctness of the
evaluation expressed, '...
is out of my scope, it is done at a
separate unit other than to the preliminary testing unit that I work
in.' She confirmed however
that the contents of the report meant that
although she
'came
to the conclusion that there is possible semen on the perineum on one
of the swabs, the other person who did the other testing
could not
get DNA or could not get male DNA from that sample'.
[36]
When asked what that would mean she
stated that
'[l]t could mean that the sample was maybe
taken some days after the incident; it could also mean that the
culprit has a low sperm
count or a condition of some sort that would
not allow enough to be extracted. It could mean a lot.'
Specifically further, it did not exclude a
particular person from the scene.
[37]
Where there is a conflict of fact
between the versions of the State and the defence it has been held
that the '... proper approach
... is for the court to apply its mind
not only to the merits and demerits of the State and the defence
witnesses but also to the
probabilities of the case. It is only after
so applying its mind that a court would be justified in reaching a
conclusion as to
whether the guilt of an accused has been established
beyond all reasonable doubt.'
[3]
[38]
The onus is on the State to prove the
guilt of the appellant beyond a reasonable doubt. There is no onus on
the appellant to prove
his innocence. Further the verdict of the
court must account for all the evidence. If the version of the
appellant is reasonably
possibly true, then he must get the benefit
of any doubt. The State is however also not required to negate every
conceivable defence.
Furthermore, the complainant in this matter was
a single child witness in a sexual crime. His evidence therefore had
to be approached
with much caution. A court must always be aware of
the dangers of possible suggestion by others when it comes to
evaluating the
evidence of children. All of the above are trite
principles of our law.
The trial court was alive to all these
considerations.
[39]
S gave his evidence in a clear manner
without hesitation, particularly having regard to the fact that he
was only 9 years old at
the time. There were certain differences
between his evidence and his statement to the police, which had only
been read to him
on the morning that he testified, and not when it
was recorded. These are not surprising having regard to the fact that
he was
only nine years of age at the time of testifying. There were
also other contradictions between S's evidence and the evidence of
his mother. These relate for example to his recollection that he was
wearing red pants on that day, whereas his mother said that
they were
blue, that S had testified that he reported what had happened to him
to his mother at their home, whereas she said she
had been at the
Xaba homestead. These discrepancies are on peripheral and
non-material matters. Having regard to S and his mother's
evidence in
their totality, S's evidence as to being raped by the appellant was
clear and satisfactory in every material respect.
He was traumatised
by the event as evidenced by the description of his appearance
provided by his mother. He rushed to her and
reported his experience
at the first available opportunity. She was the person one would
expect him to report to.
[40]
Her evidence confirmed what he said he
had told her, in every material respect. That is of course not
corroboration for his version,
but successfully rebuts any notion
that his version is a subsequent fabrication.
[41]
As against that evidence, is the bare
denial of the appellant. The evidence of witnesses, like Mrs Luthuli
who was working in the
neighbouring garden, was not adduced by the
defence. Nkululeko's evidence did not take the matter any further.
Sibonelo had a clear
interest in wanting to see his brother
exonerated. Accordingly, his evidence too had to be approached with
caution.
[42]
The physical examination of S by Dr
Buthelezi revealed findings consistent with the allegations made by
the complainant. His examination
confirmed and pointed to some recent
penetration of S's anus. His opinion was that such penetration was
with a blunt instrument,
rather than a stick which he considered to
be unlikely. That S was raped was established. The appellant could
not dispute that
S was penetrated anally.
[43]
The appellant is well known to S.
Accordingly there is no possibility that he would mistake the
appellant for someone else. If the
appellant was not the perpetrator
then S must have lied and falsely implicated the appellant when he
stated that it was the appellant
who did this to him. There is
however no known reason disclosed that any of the witnesses were
aware of, why S would do so. Indeed
the contrary is the case. S and
his family and the appellant and his family have all lived in the
same area without any past acrimony.
[44]
One might be critical of the doctor's
reasons for concluding that the injuries were not caused by a stick.
He referred to the concept
of positive reflex dilation and
funnelling. He had however qualified in 2003 and by 3 May 2013, in
his own words, had examined
rape victims amongst his patients. The
aforesaid reasons informing his conclusion were at a factual level
found by the learned
magistrate to be persuasive, at the very least
insofar as not being inconsistent with S's version. There is no basis
for this court
on appeal to interfere with that finding. Dr Buthelezi
was of the view that the penetration had not been with a stick.
[45]
The version that S had inflicted the
injuries found by the doctor on himself is so improbable that it
cannot be reasonably possibly
true. On this version S invited a whole
group of his friends to show them where he had relieved his
constipation allegedly by pushing
a stick up his anus and he pointed
to the stick. The stick still had faeces and blood, red like in a red
pen, on it. None of these
friends was however called to independently
verify this tale. The faeces would have been exposed to the elements
for some time
(at least the duration of a school day and probably
longer). Sibonelo even described the faeces as dry. Yet the blood on
the stick
still showed up red according to him, contrary to human
experience and the scientific fact confirmed by Dr Buthelezi that
blood
exposed for a short while would become dark in colour (Sibonelo
only changed his evidence later while testifying to state that the
blood was darker).
[46]
S testified that if he was constipated he would tell his mother.
Indeed she knew he had a sore stomach
and she had administered
glucose and he had remained at home on the Friday. The J88 would have
been available to the defence from
the outset of the trial, or at the
very least there is nothing to suggest that it was not available. S's
mother testified on 13
March 2014 that he had a sore tummy.
Surprisingly, the event regarding the stick is only raised with her
in cross examination
some months later after this information
had apparently only come to light on 26 May 2014, some two and a half
months after she
had testified.
[47]
If this version is to be accorded any
credibility, then S penetrated himself with the stick before the
close of school on the Thursday.
He then stayed at home on the
morning of the Friday, 3 May 2013, and when his stomach felt better
he proceeded to the appellant's
home to look for his friend Sibonelo.
When unsuccessful in meeting up with Sibonelo he then rushed from
there, self-created a dishevelled
appearance, exposed his penis
outside his shorts, and feigned an anxious mental state, whilst
rushing to where his mother was,
to relate a fabricated story that he
had been raped by the appellant, a person known to him and with whom
he had no quarrel, for
no apparent reason, after also having indulged
in some form of conduct to cause his penis to appear swollen and wet.
That version
is so utterly improbable that it renders the appellant's
version not remotely possibly true.
[48]
Sibonelo clearly had a motive to be
untruthful, as his older brother's liberty is at stake. His
protestations to the contrary notwithstanding,
it is highly
improbable where the appellant had been confronted with the
accusation by Son 3 May 2013 (of which Sibonelo became
aware on that
day) and the appellant's mother having accompanied S and his brother
to the hospital and hence becoming aware of
the injury to S, that
Sibonelo would not earlier have alerted all to the knowledge he had
of S, allegedly having confessed to having
penetrated his own anus
with a stick.
[49]
On the aforesaid assessment of the
evidence, the case against the appellant was overwhelming and the
conviction therefore sound.
[50]
Regarding the absence of the 'DNA
evidence' or result until just before the end of the trial, it is of
course always desirable that
where samples are taken from a
complainant and sent for analysis, that the results of the analysis,
like any other real evidence
which might impact on the issues in the
trial, should be known before the commencement of the trial. The
relevance and materiality
of the results can then be assessed
properly by the respective parties before an accused is even required
to plead. That is part
of proper preparation which is particularly
important in a rape case. The following words of Nugent JA in
S
v Vilakazi
[4]
are particularly apposite when he
said:
'[21]
The prosecution of rape presents peculiar difficulties that always
call for the greatest care to be taken, and even more so
where the
complainant is young. From prosecutors it calls for thoughtful
preparation, patient and sensitive presentation of all
the available
evidence, and meticulous attention to detail. From judicial officers
who try such cases it calls for accurate understanding
and careful
analysis of all the evidence. For it is in the nature of such cases
that the available evidence is often scant and
many prosecutions fail
for that reason alone ...
[22] The case that is before us is
characterised by superficiality from beginning to end with the result
that it exhibits several
disturbing features. Nothing was done to
enquire into material matters before the trial commenced. The
complainant's evidence was
presented with little care for
completeness and accuracy. The evidence was subjected to little
analysis.'
· In this matter, both the prosecution
and the defence were at fault in not insisting that the results of
any examination
of the samples taken were not available before the
trial commenced.
[51]
Often laboratory test results are not
available at the commencement of a trial, seemingly due to large
volumes of samples being
submitted for analysis or the laboratories
not coping with the volumes required to be analysed, or the results
simply being lost,
or not filed in the case dockets, or misfiled.
That is unsatisfactory.
[52]
One can only imagine the result in an
appeal of this nature if a swab taken from a complainant tested
positive for semen, if DNA
could be detected in that sample and if it
matched, within acceptable statistical parameters, the DNA from a
sample obtained from
the appellant. The guilt of the person
implicated by such evidence would then probably be established beyond
all doubt, rather
than just a reasonable doubt. A plea of guilty
would probably also be more likely to be proffered, which would save
a complainant
the secondary trauma which comes from having to testify
and relive the experience. If no DNA can be found and/or no DNA
comparison
is possible, then it does not mean that the accused might
not be implicated beyond a reasonable doubt by other evidence.
Conversely
if the results from any DNA analysis excludes the accused.
But all of the above presupposes a DNA evaluation being possible and
producing a result.
[53]
In the present matter the failure to
have had the 'DNA evidence' available from the outset and during the
trial has had no material
effect on the outcome of the trial.
According to the only source of such evidence, being the Forensic
Laboratory, no DNA evaluation
was possible as 'no male DNA was
obtained'. Inconclusive results from samples sent for DNA analysis
and comparison, are not uncommon.
[54]
In
S v
SB
[5]
it was remarked as follows:
'Evidence of DNA profiling may be of great
significance in a given case. It is important, however, that evidence
of DNA profiling
be viewed in proper perspective in each case.'
It however remains circumstantial evidence. The
weight thereof depends on a number of factors including
inter alia
as set out in para 18 the 'probability of such a match or
inclusion in the particular circumstances' and 'other evidence in the
case'.
[55]
It was held further
[6]
that
'If the STR profile of an accused person in
fact differs from the profile retrieved from the sample taken at the
scene, even in
respect of only one allele, the accused person must be
excluded as a source of the crime- scene DNA. However, the converse
is not
true. Because only a limited number of STR loci are analysed,
an STR profile cannot identify a person. Therefore the weight to be
attached to evidence of an STR profile match or inclusion in the
first place depends on the probability of such a match or inclusion
occurring in a particular population. Without such evidence the STR
profile match or inclusion means no more than that the accused
person
cannot be excluded as a source of the crime-scene DNA.' (references
omitted)
The essential component of DNA evidence is
usually presented in the form of statistical analysis of a population
data base.
[7]
The important point is that the results of these calculations are not
absolute.
[56]
In
S v
SB
the learned judge of appeal
continued:
'[23] This brings into play the other evidence
in a case. I cannot conceive of a criminal case where there is
absolutely no other
relevant evidence or evidentiary material. This
may range, from direct eyewitness evidence implicating the accused,
to circumstantial
evidence as mundane as the proximity of the home of
the accused to the scene of the crime. This may of course also
include evidence
pointing to the innocence of the accused. In the
final analysis this evidence determines whether the guilt of the
accused has been
proved beyond reasonable doubt or not.'
[57]
There could be a variety of reasons why
DNA is not found in a particular sample. As was said in
S
v SB
para 27:
'A
more enriched sample in this context simply means that it contains a
greater quantity of the DNA than the less enriched sample.'
Every sample that gets to a laboratory gets
subjected to a presumptive test. However that will depend on the
swabs presented. The
only confirmation to be employed is an
extraction protocol for the particular body fluid. The results that
it will yield thereafter
will be confirmation that indeed that
particular body fluid has been . extracted. In a case where the swabs
are bloody, the main
aim is to extract the DNA from the semen as it
is a sexual assault kit and the target is to get DNA from the sperm
cells. Those
swabs will not be subjected to preliminary testing, but
to a method that isolates DNA from sperm cells. It has been remarked
that
the highest concentration of DNA is not found in semen but in
blood.
[58]
It was for example concluded in
S
v Saunders
[8]
that 'it therefore depends on the
amount of sperm cells found in the semen to get a DNA - for example,
one might have a couple of
sperm cells but not yield a DNA result.'
[59]
DNA is subject to degradation and may
degrade within a very short time.
[60]
Merely because the
actus
reus
of a particular offence might
have involved some friction or contact between the bodies of the
complainant and an accused, does
not irrefutably mean that DNA will
definitely present itself in a particular sample taken from the body
of one and remain preserved
and in a sufficiently enriched form up to
the time of analysis.
[9]
The absence of DNA in a sample subjected to comparison might be
explained on a variety of grounds, on which one can probably only
speculate. These might include that the sample was not taken
properly, or that the DNA had degraded due to the time that had
elapsed
from when it was taken until it was examined, or whatever. It
might be an interesting curiosity why in a particular matter no male
DNA can be detected, but even the scientist analysing the sample will
probably not be able to conclude conclusively why no DNA
is found in
what he/she analysed. What is however decisive in the professional
opinion of such analyst is the
de
facto
scientific finding that no DNA
of any sort is detected.
[61] In this case the
contents of the report dated 28 February 2014 afforded no basis to
have ordered the
reopening of the defence case. If the learned had
been told, as I believe she should, that the report recorded that 'no
male DNA
was obtained from the exhibits (10D7AA6598XX)' I doubt
whether the application to reopen the case would have been granted.
Having
been told that there was a result, the learned magistrate
however allowed the case to be reopened, whether rightly or wrongly,
probably more
ex abudante cautela,
and the defendant had the
opportunity to lead further evidence.
[62]
Any possible prejudice to the appellant
due to the results of the DNA examination only becoming available
late, could accordingly
be avoided by the defence adducing whatever
further evidence was considered necessary. The defence called Ms Jadu
to testify. Her
evidence did not take the matter any further. She
could not even confirm that the perineum swab definitely contained
semen. At
best it possibly contained semen. The official position
from the docket in her possession was that the Forensic Science
Laboratory
had concluded that 'no male DNA was obtained from the
exhibits' and that 'no further DNA analysis will be carried out in
the abovementioned
case'. If the defence was not happy with the
evidence as it stood and wanted to interrogate any aspect further and
satisfy whatever
curiosity it may have in the belief that it might
yield some result beneficial to the appellant (as difficult as it is
to envisage
what that may be where 'no male DNA was obtained from the
exhibits') then it was their prerogative to lead further evidence of
the author of the report, or even to recall Dr Buthelezi.
[63]
It has been suggested that the appellant
did not have a fair trial because the report recording that no male
DNA was obtained from
the exhibits had not been made available from
the outset. I repeat that it is desirable that all reports should be
available to
all parties at the outset of a trial. The opportunity
was however presented to call whatever further evidence the defence
might
have considered necessary. The defence did not do so. It also
appears that the defence would have been no different, even if the
report was in the possession of the defence from the outset - and
that is not speculation. If the defence would have been different
and/or certain other avenues of questioning explored with witnesses
for example Dr Buthelezi, then I would have expected the appellant
to
have pointed to these during argument. No such possible lines of
questioning were pointed to. The high water mark of the criticism
appears to be that Dr Buthelezi might then have been asked how it is
possible that a perineum swab taken after anal intercourse
in the
area of the perineum would not leave some samples which would reveal
DNA. There might however be various possible answers,
including the
size of the sample, in the case of semen (if indeed there was semen
present), a low sperm count from the donor, DNA
degradation and the
like. Speculating on these possible reasons might be interesting, but
in the final analysis, a court had to
decide a matter on what
evidence is available, and what is relevant and material. No DNA
evidence exists. Accordingly, the appellant
cannot complain that he
was denied a constitutionally fair trial.
[64]
The appeal against conviction
accordingly falls to be dismissed.
[65]
As regards sentence, although the
prescribed minimum sentence pursuant to the provisions of Act 105 of
1997 is one of life imprisonment
unless there are substantial and
compelling circumstances present, it is as well to recall the words
of Nugent JA in S
v Vilakazi (supra)
para 54. The learned judge referred
to the 'recurrent theme in [S
v
Ma/gas
2001 (2) SA 1222
(SCA);
2001
(1) SACR 469
(SCA)] that of the factors traditionally taken into
account in sentencing "none is excluded at the outset from
consideration
in the sentencing process"'. In deciding whether
the prescribed sentence of life imprisonment would indeed be
proportionate
in that case, regard was had
inter
alia
to the fact that there was no
extraneous violence and no physical injury caused other than the
physical injury inherent in the offence.
There was also very little
upon which to measure the emotional impact of the offence upon the
complainant, although it is undoubtedly
so that the range of
emotional responses that rape might evoke would be considerable.
Emotional distress and damage that accompanies
rape might be
extensive even if not manifested
overtly.
Similar considerations apply in this
appeal.
[66]
Regard must also be had to the personal
circumstances of the appellant, namely that he was relatively young,
being 20 years old
at the time of the commission of the offence. He
was also a first offender. The learned magistrate . indeed recorded
that he would
accept that the appellant had 'prospects of reformation
and correction' and that he had been employed, this being indicative
of
a stable personality and showing that he can be rehabilitated and
reformed.
[67]
As in
S
v Vilakazi (supra),
[10]
a substantial sentence but not the
maximum sentence of life imprisonment seems to me appropriate as it
will bring home to the appellant
'the gravity of his offence and to
exact sufficient retribution for his crime... [but that to] ... make
him pay for it with the
remainder of his life would
seem
to me to be grossly
disproportionate'. The prescribed minimum sentence of life
imprisonment is not proportionate in each case, and
certainly not in
the present.
[68]
A sentence of twenty (20) years
imprisonment antedated to the date of sentencing, namely 25 August
2015 would be appropriate.
[69]
The following order
is
granted:
1.
The appeal against conviction is
dismissed and the conviction by the court a
quo
is confirmed.
2.
The appeal against sentence succeeds.
The sentence of life imprisonment imposed by the court a
quo
is set aside and substituted with a
sentence of twenty (20) years imprisonment, antedated to 25
August 2015.
KOEN J
BARNARD AJ
Vahed J (dissenting)
[70]
I have read the carefully crafted and
ably-reasoned judgment prepared by my colleague,
Koen
J, and in which my colleague,
Barnard
AJ,
concurs. Regrettably, I am unable to agree with the conclusion that
the conviction must stand. To my mind the case, viewed holistically,
throws up sufficient doubt so as to render the conviction unsafe.
That doubt, as we have been cautioned from time immemorial, must
redound to the appellant's benefit, entitling him to an acquittal.
[72]
As this is a minority judgment, I will endeavour to be brief in
setting out my reasons for my
dissent, but if I am unsuccessful in
that regard, beg the reader's forgiveness. The subject matter is not
easy.
[73]
The facts have been set out in my colleague's judgment and, in large
part, I will content myself
to work with them as set out there. Where
however I see the facts differently, or interpret them differently, I
will deal with
those facts in this judgment.
[74] By way of
introduction I wish to make a few observations in general.
[75]
Firstly, I regard the conduct of the
prosecutor in the court a
quo
to
have been unacceptable and falling below the standard expected of
her. I say this in regard to her treatment of the DNA evidence
(which
I will deal with in some detail later). Knowing full well that
samples had been taken for testing and had been submitted
to the
forensic laboratory she chose to commence the trial without knowing
the result of that process of analysis. In that regard
she completely
ignored the dictates of the Code of Conduct for Members of the
National Prosecuting Authority. Conduct rule 01 (d)
& (g)
required her to "... perform [her] duties fairly, consistently
and expeditiously and... In the institution of criminal
proceedings,
proceed when a case is well founded upon evidence reasonably believed
to be · reliable and admissible,
and
not continue in the absence of such evidence
...
[and]... as soon as reasonably possible,
disclose
to the accused person relevant prejudicial and beneficial
information,
in accordance with the
law and the requirements of a fair trial...". (my emphasis).
Whatever the outcome, to allow the DNA
evidence to feature in this
case in the manner that it did (and it almost never featured) was
wholly unacceptable.
[76]
In my view it is high time we insisted
on scrupulous adherence to the standard expected of prosecutors. Far
too often is the bar
lowered because the outcome is justified by
other means. It is unacceptable for conduct that is in conflict with
the prosecutorial
code of conduct, and which falls short of the
accepted standard, to be excused by observations of what is always
desirable, or
what is preferable, made in passing when accepting such
lesser conduct. The bar, once set, must be maintained for to lose
sight
of it places the conduct of criminal trials on a slippery
slope. Once we find ourselves at a position far down that slope, it
might
be difficult to ascend once more to stable ground.
[77]
Having said that of the prosecution in
the court below, I am also critical of the quality of the defence
mounted by the appellant's
legal representatives both in the court
below and even more so on appeal before us. In that regard, the less
said the better. In
the court below it is not clear when the
appellant's attorney became aware of the fact that certain specimens
had been sent off
for DNA analysis. One must assume that the defence,
from the outset, was in possession of the J88 form completed by the
doctor
who examined the complainant, but to conclude from an
examination of that form that specimens had indeed been sent off
would have
been difficult, although a cautious defence lawyer would
have interrogated the information on the form. However, it seems
clear
from the record that when he testified during the State case
the doctor confirmed that specimens had indeed been taken and handed
to a police official during the course of the complainant's
examination by him. Why the issue was only left to be explored until
after until all the evidence had been led and the court below was
about to receive closing argument is not adequately explained
on the
record. In my view adequate defence representation would have ensured
that the moment the possibility of a report concerning
DNA analysis
existed that report ought to have been resolutely pursued, even if
that meant a pause in the proceedings at that stage.
As I said
earlier, the less I say about representation, the better.
[78]
It is clear from my colleague's
treatment of the facts that the trial commenced with evidence being
led first from the complainant's
mother, Mrs Z Makhoba, who can
conveniently be called the source of the first report. I have certain
issues with her evidence.
[79]
It is clear that there are discrepancies
between her evidence in chief and during cross examination, and
between her evidence as
a whole and her statement made to the police
at the time of the alleged offence. I am acutely mindful of the
criticisms often made
about the quality of police statements. I share
those criticisms but there are occasions when discrepancies cannot be
wished away
as being irrelevant purely on the grounds of inefficient
statement taking and/or poor witnesses recall.
[80]
Mrs Makhoba's description of the
complainant as he came running towards her after the alleged rape
was, in my view, a significant
detail. His clothing was in disarray
and his penis was "hanging out". In paragraph 8 of his
judgment my colleague also
regards this aspect of her evidence as
significant. However, this aspect is not contained in her police
statement.
[81]
Mrs Makhoba's and Ms Thandeka Mnguni's
examination of the complainant's penis and anus (and the presence of
faeces) is also significant.
All of this too is absent from her
statement.
[82]
During her evidence in chief Mrs Makhoba
did not mention that she confronted the appellant at all. This only
emerged during her
cross-examination when the defence attorney was
taking her through her police statement.
[83]
In paragraph 12 of his judgment my
colleague records that a period of approximately five months elapsed
between Mrs Makhoba's initial
evidence and her being recalled. In the
same paragraph he refers to the "new information" that came
to light "...
allegedly on 26 May 2014 (that is some two and
half months after she had testified) from the... " appellant's
brother. Later
in his judgment my colleague rejects the "new
information" and the brother's evidence. It is however,
convenient to deal
with one aspect of this now. I have no doubt that
my colleague intended to lay no blame for that delay with the
appellant or the
defence attorney. However, the manner in which the
matter is dealt with in paragraph 12 is unfortunate because the
subliminal message
conveyed is that the delay and the "concoction"
of the evidence (which are then carried through as a theme) are all
wrapped
up together.
[84]
The facts that emerge from a consideration of the record as a whole
place matters in proper perspective.
Mrs Makhoba testified initially
on 13 March 2014. When she finished it was discovered that the
intermediary, through whom the complainant's
evidence was to be led,
was not present. Although there is some suggestion that it was too
late for further evidence to be taken,
it seems that that view was
changed because the matter stood down to see if the doctor was
available to testify. He was not. On
that basis the matter was then
adjourned to 26 May 2014. During discussion on record (and from the
magistrate's trial notes) on
13 March 2014 it is clear that it was
not possible to convene any sooner than 26 May 2014.
[85]
The magistrate's trial notes indicate that on 26 May 2014 the
prosecutor was late because she
had been involved in a motor
collision and, more importantly, the intermediary was involved in a
case in another court and had
been excused. The matter was then
postponed to 14 July 2014, on which day it was postponed again
because the prosecutor was in
hospital. The matter was postponed to
13 August 2014, when the trial resumed with the application to recall
Mrs Makhoba.
[86]
The date, 26 May 2014, is very
significant. From the record it seems that everyone (except the
prosecutor and the intermediary)
was present at court. It is on that
date that the record reveals that the "new information"
came to light. This is what
the defence attorney said to the court on
13 August 2014:
"Your Worship, on the last occasion I
completed what I thought was the cross examination of Mrs Zama
Makhoba. On 26 May
2014, certain new information came to light, which
compels me to bring an application to the Honourable Court to recall
the witness
Zama Makhoba. I will have to put the new facts to her
just for the record, so that the State cannot, at a later stage, say
that
these facts were not put to the witness."
[87]
After hearing an ill-founded and
irrelevant objection from the prosecutor the learned magistrate
enquired of the defence attorney
as to "... why the new facts
only came to light at this stage?". The response was as follows:
"Yes, Your Worship. I consulted with the
brother of the accused. I didn't think that I would have to call him
as a witness,
but due to the facts that he gave me, I will have to
call him as a witness. And it is based on those facts that had only
come to
light on 26 May this year that I will have to recall Mrs Zama
Makhoba, just merely to put the facts to her. That's all I want to
do."
[88]
That was how, some five months after she
initially testified, Mrs Makhoba came to be recalled.
[89]
I will deal with the import of all of
this later.
[90]
My next issue concerns the failure to
call Ms Thandeke Mnguni as a witness. She would have been of
significant relevance and assistance
to the State case. She was
pertinently mentioned in Mrs Makhoba's statement, yet she was not
called as a witness. There was no
indication or suggestion that she
was not available to testify.
[91]
I turn now to deal with the DNA issue. I
have already expressed my dissatisfaction with the manner in which
the DNA issue surfaced
and was dealt with in the court below. I do
not need to repeat myself but in order to place my assessment of the
DNA issue in proper
context I need to state that, as my point of
departure, I regard the contents of the letter from the head of the
forensic science
laboratory in Pretoria, dated 28 February 2014, as
highly significant, controversial, and unacceptable at face value.
Having said
that, proper pre-trial treatment of the DNA issue would
have given the lawyers a better opportunity for preparation and,
consequently,
could have made a significant difference during the
cross-examination of the doctor who examined the complainant.
[92]
In
Bokolo
v S
2014 (1) SACR 66
(SCA) the
Supreme Court of Appeal recorded the valuable assistance derived from
the work
DNA in the Courtroom:
Principles and Practice
by Prof
Lirieka Meintjies-Van der Walt (Juta, 2010). On the subject of
pre-trial disclosure, at page 28, the learned author says
the
following:
"Traditional arguments in favour of
prosecution disclosure acquire even greater importance in the field
of DNA expert evidence.
They include:
•
Achievement
of equal preparedness; contribution to facilities available to
defence preparation; awareness of potential witnesses
required to
meet the prosecution's case; potential of miscarriages of justice in
the absence of disclosure; assistance in the search
for truth by
allowing defence scrutiny of the investigative process.
•
Identification
of discrepancies that appear in contemporaneous notes, but not in the
final laboratory report. Discovery of these
documents could also
serve as a quality control measure, as experts are likely to be more
careful when they have to document what
they do and when they know
other experts are likely to review their findings. If the scientific
reports were more comprehensive,
incorporating much of the material
in the bench notes, there would be no need to seek for the discovery
of the work notes."
[93]
Later, at page 34, she endorses portions
of a checklist of items to be disclosed by prosecutors referred to by
Michaelis et al in
A Litigator's
Guide to DNA: From the Laboratory to the Courtroom
(2008).
These include "... All documents related to the portion of
evidence that was actually used in the analysis, information
on
procedures actually used to minimise the contamination, the raw data
from the fragment analyser, ... the analyst's complete
case file
which includes ... other reports of the performance of standard
quality controls and any bench notes made during the
processing of
the evidence, ... all records on the accreditation of the laboratory
and its personnel, all documents that certify
the validity of the
reference samples used in the analysis, ... a list of samples that
were tested just before and after the sample
in question, and,
internal audit documents".
[94]
My colleague has dealt with the evidence
received from the analyst, Ms Jadu, employed at the Forensic Services
Laboratories at Amanzimtoti.
Her qualifications and expertise need to
be placed in proper perspective. Whilst it is correct that she
recorded that she had a
Diploma
in
Biotechnology, majoring in microbiology, is unclear what that
qualification really means. None of that was tested in court below.
It is all very well to say that the "... abovementioned course
is molecular and cellular biology, which is relevant to DNA",
but what that qualified her to do was unclear. I say this because she
said that she had been with the Forensic Science Laboratory
since 3
January 2013 and that she had undergone"... in-house training
within the Forensic Science Laboratory with reference
to the opening
of parcels containing biological evidential material, the preliminary
testing of body fluids thereof, and DNA technology".
I pause to
observe that while her evidence was that she had been with the
laboratory since 3 January 2013, the affidavit that she
purported to
read from, i.e. the affidavit deposed to by her in terms of
section
212
of the
Criminal Procedure Act, 1977
, indicates, in the very
paragraph she was reading from, that she had been with the laboratory
since 3 January 2012. It is thus
unclear whether, at the time she
subjected the samples to preliminary testing (i.e. 25 June 2013), she
had less than 6 months'
work experience with the laboratory or less
than 18 months' work experience with the laboratory. Whichever period
of work experience
with the laboratory one chooses to accept, either
period included the in house training she referred to, the
duration of which
remains unspecified. None of this was properly
explored at the trial and is highly unsatisfactory. One thing however
seems abundantly
clear. It is this. She was trained in, and subjected
the sample to,
preliminary testing
(my emphasis).
[95]
Another aspect which emerges from Ms
Jadu's evidence is that, whether she was employed at the Forensic
Science Laboratory for a
period of approximately 18 months or a
period of approximately 6 months aside, she went on to state in her
evidence that she had
"... 11 years of experience in the
biological sciences". That statement, whatever it meant, was
also not explored. What
is clear, however, is that the 11 years of
experience (whatever they mean and whether they include her ·
diploma studies
or not) in significant proportion pre-date her
employment with the laboratory and pre-date her in-house training
"... with
reference to the opening of parcels containing
biological evidential material, the preliminary testing of body
fluids thereof,
and DNA technology", whatever that might have
meant.
[96]
I deal with Ms Jadu thus, not to demean
her or to undermine the importance of her work, but crucially, to
place it in proper context.
As she said herself, she is
involved
only in preliminary testing, samples
thereafter being sent higher up the chain of command, complexity and
refinement, so to speak.
Reading her evidence as a whole and in
context makes it abundantly clear that once, at a preliminary
level,
she detected the presence of semen
(possibly) on a sample it was sent to another department (which she
refers to in evidence as
"the DNA section") for more
refined testing. She
very
clearly
said that the DNA section "... [had] their own procedures and
their own operating manners (sic) that they work with,
so I am only
au fait
with
my scope of testing and my study. I can only refer to what
I've
worked with". She was in no way
in a position to proffer an opinion on what was done outside of her
scope and notwithstanding
the prosecutor indicating that she was
not"... trying to collar [Ms Jadu] to
give
an opinion... " she persisted
in doing . precisely that. Ms Jadu's
views
on what the letter of 28 February
2014 meant are irrelevant and were, in any event,
views
she was not qualified to offer.
[97]
The upshot of all of that, for this
case, means that after the preliminary testing is done at the local
laboratory, the specimen
is then sent to the laboratory in Pretoria
for further and more refined testing. What was done during that
further and more refined
testing remains an unknown in this case. All
we have is a letter from the head of the Forensic Science Laboratory
in Pretoria reporting
as my colleague has reflected in paragraph 34
of his judgment.
[98]
We do not know:
a.
when
the sample analysed on a preliminary basis in Amanzimtoti reached
Pretoria, and in what state;
b.
when
that sample was analysed in Pretoria;
c.
precisely
what analysis was conducted on that sample;
d.
the
identity of and the qualifications held by the person who subjected
that sample to analysis;
e.
if
the correct sample was analysed competently, and the proper outcome
of "no male DNA" obtained, why the preliminary
testing
rendered a false positive;
f.
the
other relevant information referred to in paragraph 23 above.
[99] Now here
lies the importance of adequate and proper pre-trial disclosure. Had
this been done
a proper opportunity would have been available to the
defence to explore the invitation extended in paragraph 4 of the
letter in
question.
[100]
It is not appropriate for me to
speculate in fine detail how all of this information, if made
available at the proper time, could
have impacted on the appellant's
trial. One probability is this: a proper challenge and request for an
explanation as to the false
positive could have a different result.
[101]
Having said all of that I must also
conclude this aspect with the · observation that the letter
from the Forensic Science
Laboratory in Pretoria is, in its own
terms, problematical and misleading. Paragraph 2 of the letter says
that "[no] male
DNA was obtained from the exhibits... ".
One must assume that by the use of the word "exhibits" (in
the plural form)
reference was being made to all 4 swabs referred to
by Ms Jadu. Although the oral swab was not tested locally there is
nothing
to suggest that it was not subjected to proper testing at the
central laboratory in Pretoria. How that oral swab could have
produced
a negative result for male DNA · cried out for
further investigation, given that it was taken from a male person.
[102]
All in all, my view is that the manner
in which the DNA testing was treated in the court below was highly
unsatisfactory and prejudicial
to the appellant
[103]
I turn now to deal with the rejection of
the defence's theory of the case. Wrapped up in that rejection is the
rejection of the
evidence proffered by the appellant's brother and
his recount of the manner in which the complainant had dealt with his
(i.e. the
complainant's) constipation a day or two before the alleged
rape.
[104]
In rejecting the evidence of the
appellant's brother my colleague, in his analysis finds that he had a
motive to be untruthful.
He finds the version of the complainant
using the stick and penetrating himself as to be so improbable that
that version could
not reasonably possibly be true and that therefore
the appellant's brother, untruthful.
[105]
My colleague, in paragraph 45 of his
judgment, also highlights the evidence relating to the chemical
changes that faeces and blood
undergoes when exposed to the elements.
The appellant's brother was not a perfect witness Oust as the
complainant and his mother
were not perfect witnesses). However, to
be fair to him, he did describe (perhaps belatedly) how faeces
changes colour and how
the blood that he saw had turned black.
[106]
To reject the appellant's brother is to
credit him with remarkable foresight and with clairvoyant skills. As
my colleague correctly
points out, the suggestion that the
complainant had used the stick in the manner described arose for the
first time when Mrs Makhoba
had been recalled for further
cross-examination. At that point the defence case casts its version
in stone with the suggestion
that the complainant had suffered from
constipation. It is important to realise that up until that point
there was nothing to suggest,
either in the evidence that had come
before then or in the documents, that the complainant had suffered
from constipation. All
anyone knew up until that point was that,
according to Mrs Makhoba, the complainant had had a stomach ache and
that she "...
had prepared glucose for him...". That single
bit of information as to why complainant stayed home from school that
day was
obtained in passing during the first session of cross
examination. To suggest that that was sufficient for the appellant's
brother
to concoct the version that the complainant had been
constipated and thus had to use the stick upon himself is, in my
book, a bridge
too far. Of course, we know that the complainant did
indeed suffer from constipation because that is what he said himself
during
his evidence. The theory that he did not tell his mother
because he feared that she would give him an enema rings true, but he
had to tell her something about his tummy ache. Thus, she thought
that he had diarrhoea. It then makes perfect sense when she says
that
she was going to administer a home remedy of glucose: a perfectly
natural reaction to diarrhoea as an electrolyte substitution
to
prevent dehydration. But the truth of the matter is that he was
constipated, a fact known at the time to his friends, the appellant's
brother amongst them.
[107]
Once it is accepted that there is a
perfectly reasonable basis for the version offered up by the
appellant's brother than all else
falls into place. It must be
remembered that the evidence tendered by the appellant's brother
became known in a perfectly reasonable
manner. As I have set out
earlier, everyone was at court on the day when the trial was expected
to be continued, but for reasons
unconnected with the appellant or
the defence, it was not. Expecting not to have to lead his evidence
the defence attorney consults
with the appellant's brother but then
discovers facts which compel him, not only to lead his evidence, but
also to have complainant's
mother recalled.
[108]
Seen in that context, the doctor's
evidence is also understandable. Here we have no forensic giant, but
a simple general practitioner
who, somehow, becomes elevated to
proffer opinions of a forensic nature out of the blue. Properly
examined, he does not categorically
exclude any method by which the
injuries on the complainant could have been sustained. Obviously, he
chooses to hold the line which
he prefers.
[109]
There are valid criticisms that are made
against both sides of the case, but to reject one side completely,
and out of hand, in
preference for the other does not conveniently
fit the facts of this case.
[110]
In my view serious and valid doubts
arise and these must redound to the appellant's benefit.
[111]
For those reasons I would hold that the
conviction is unsafe and would accordingly have upheld the appeal and
directed that the
finding of the court below be replaced with one of
a not guilty finding.
VAHED
J
Appearances
For
the Appellant
NC GASARATI
Instructed
by:
CHRIS G ATTORNEYS
Ref.: CG82/16
Tel.: 035 772 2028
For
the Respondent:
M MTHEMBU
Instructed
by:
DIRECTOR OF PUBLIC PROSECUTIONS
PIETERMARITZBURG
Ref.: M MTHEMBU
Tel.: 033 8454400
[1]
The evidence of his mother revealed that he was born on 7 December
2004. The rape was alleged to have occurred on 3 May 2013.
[2]
Sees 309 of the
Criminal Procedure Act 51 of 1977
.
[3]
S
v
Singh 1975 (1) 155 (N) at 158.
[4]
S v Vilakazi
2012 (6) SA 353 (SCA).
[5]
S v SB
2014 (1) SACR 66
(SCA) para 17.
[6]
S v SB
2014 (1) SACR 66
(SCA) para 20.
[7]
S v SB
2014 (1) SACR 66
(SCA) para 21. The more
loci
included in the profile, the less chance there is of another
person adventitiously fitting the profile. Secondly, statistical
calculations of this nature generally make use of the product rule.
This rule postulates that the probability of several things
occurring together is the product of their separate probabilities.
It calculates the numerical probability that a particular
profile
may occur in a population or, in its alternative form, the numerical
probability that a person randomly chosen from that
population will
possess the same genetic profile.
[8]
S
v Saunders
[2018] ZAWCAC 147 para 71.
[9]
The appellant's criticism in this regard seems to stem from an
assumption that if there has been friction between two human bodies
that it is 'within the realm of ordinary human experience that one
would find DNA present.' There is however no evidence before
this
court of any such scientific act. Indeed our case law has suggested
various reasons why DNA might not necessarily be present.
[10]
S v Vilikazi
2012 (6) SA 353
(SCA) para 59