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[2018] ZAGPPHC 344
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Madlophe v S (A848/16) [2018] ZAGPPHC 344 (2 March 2018)
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
REPUBLIC OF SOUTH AFRICA
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO OTHER JUDGES
(3)
REVISED
CASE NO: A848/16
2/3/2018
In
the matter between:
SAMSON
JABULANE
MADLOPHE
APPELLANT
and
THE STATE
RESPONDENT
JUDGMENT
CHESIWE
AJ:
[1] The
appellant was convicted in the Regional Court Nelspruit on the
following
counts - count 1 - Housebreaking with intent to Rape and
Rape, count 2 - Assault with intent to do grievous bodily harm. The
appellant
was sentenced to 10 years direct imprisonment on count 1
and acquitted on count 2.
[2] Leave
to Appeal against the conviction.
CONVICTION
[3] It is
common cause that on the 12 February 2010, complainants' house was
broken
into and sexual intercourse took place without her consent.
[4] The
crisp issue in this appeal is the identity of the appellant.
Pertinently
that the State's case rested on circumstantial evidence
that the appellant was identified by the complainant by his voice.
[5] The
complainant testified that she was asleep in her shack on the night
of the
incident when she heard the appellant calling her. She knew
him as her sisters' grandson and testified that appellant grew up in
front of her. The shack was locked with a chain and padlock. She did
not reply to the appellants calling. The appellant left and
said he
will return.
[6] The
appellant later returned and broke down the shack door. The
complainant attempted
to hide under a mosquito net in the corner of
the shack. But the appellant found her and assaulted her all over her
body. The complainant
was wearing a panty when the appellant started
to rape her whilst strangling her.
[7] Although
there was no light, the complainant was able to identify the
appellant
because of the moonlight, as the appellant was well known
to her. After the incident the complainant went to her sister to tell
her what happened to her.
[8] According
to the complainant she sustained body injuries, but these injuries
are not reflected on the J88. The J88 only reflects the small 10cm
superficial tear at nine o'clock in the wall of the vagina.
[9] It is
trite that evidence on identification must be approached with
caution.
The dangers of incorrect identification are well-known. The
pointing out of a wrong person by a witness who acts in good faith
has led to cases of injustice. The evidence of identifying an accused
person because of the ever-present possibility of an honest
mistake
being made by a complainant or a witness. The evidence of
identification has to be approached with caution. In
S v
Mthethwa 1972(3) SA 766(A), at 768A-C, Holmes JA stated that:
"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; 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; boils
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,
built, gait and dress, the result of identification parades, if any,·
and, of course, the evidence
by or on behalf of the accused.
The list is not exhaustive. These factors, or such of
them as are applicable in particular case, are not individually
decisive,
but must be weighed one against the other, in the light of
the totality of the evidence, and the probabilities.”
[10] In
Magadla v S (80/2011) 2011
it was stated that:
"The fact that a witness failed to provide a
description of the accused does not always assist him or her in the
event where
the witness was at a situation where he or she had ample
opportunity to make a proper and reliable observation of the
perpetrator,
especially where the witness did not have any reason to
falsely implicate the perpetrator."
[11] The complainant
was consistent throughout her testimony. She was constant in that she
known
the appellant as the grandson to her sister. She was able to
identify the appellant by his voice as the appellant called her.
“
Vusi's mother, Vusi's mother, Vusi's
mother”-.. page 25 line 1 of the records.
The complainant was immediately able to identify the
appellant as her sister's grandson. She further gave a description of
the clothes
the appellant was wearing as she saw the appellant
wearing the clothes earlier in the day.
“
Khakhi trousers and boot shoes from his
employment.”
- Line 16 page 28 of the record.
" I saw him wearing those boots shoes that day
earlier."
- Line 20 page 28 of the record.
And
" What was he wearing earlier except the boots?"
" He was wearing the same shirt.....
"
- Line 26 page 28 as indicated before court record? (Line 24 page 28
of the record). The witness had earlier testified that
the appellant
wore long sleeve check-red shirt.
[12] The
complainant's evidence as to being raped was further corroborated
with the J88 that
was handed up by consent, that the doctor's finding
supported the evidence of the complainant and further more
corroborated by
the complainants sister.
[13] Therefore the
issue of identification of the appellant was settled at the trial
Court. The
trial court was satisfied with the evidence of the
complainant. Nor did the trial court misdirect itself.
[14] The appellant
elected not to testify, despite the unsuccessful application for
discharge
in terms of Section 174 of the Criminal Procedure Act. The
appellant choose not to testify in view of being accused of such a
serious
offence draws the inference that the appellant could not
answer to the allegations against him.
[15] In
S v
Chabalala 2003(1) SACR 134 SCA paragraph 2 1, Heher AJA said
"The appellant was faced with direct and
apparently credible evidence which made him the prime mover in the
offence. He was
also called upon to answer evidence of a similar
nature relating to the parade. Both attacks were those of a single
witness and
capable of being neutralised by an honest rebuttal. There
can be no acceptable explanation for him not rising to the challenge.
To have remained silent in the face of the evidence was damning. He
thereby left the prima facie case to speak for itself One is
bound to
conclude that the totality of the evidence taken in conjunction with
his silence excluded any reasonable doubt about his
guilt. "
[16] This dilemma is
entirely consistent with the Constitutional position which was
elucidate
in
Osman and Another v Attorney
-
General
Transvaal 1998(2) SACR 493(CC) at para 22 and S v Boesak 2001(1) SACR
(CC) at para [24]
The Court said:
"
The right to remain silent has application at
different stages of criminal prosecution...
It arises again at the trial stage when accused has
the right to remain silent and not testify during the proceeding".
[17] The appellant to
have remained silent in the face of the evidence was damning. He
thereby
left the
prima facie
case to speak for itself. One is
bound to conclude that the evidence taken in conjunction his silence
excluded any reasonable doubt
about his guilt (see
State v
Chabalala 2003(1) SACR 134 (SCA) para21).
[18] An Appeal Court
will only temper with the Trial Court's factual finding made by the
trial
court were clearly wrong. It has not been submitted that the
trial court committed any misdirection. Furthermore when
consideration
is laid to all consistencies; improbabilities, and
contradictions there is no reason to doubt correctness of the
credibility findings
made by the trial court.
[19] I am satisfied
that the State at the trial court proved its case beyond reasonable
doubt.
In my view the Trial Court correctly convicted the appellant
and there is no reason to temper with the Trial Courts finding on the
conviction.
[20] In the result
the following order is made:
1.
The
appeal against conviction is dismissed.
2.
The
conviction of the Trial Court is confirmed.
S
CHESIWE
Acting
Judge of the Gauteng High Court, Pretoria
I agree.
N
P MNGQIBISA-THUSI
Judge of
the Gauteng High Court, Pretoria
Appearances
For
Appellant:
Mr AJ Masiye
Instructed
by:
Masiye Attorneys
For
Respondent:
Adv MJ Van
Vuuren
Instructed
by:
Director of Public Prosecutions, Pretoria