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
>>
2018
>>
[2018] ZAFSHC 128
|
|
Makhetha v S (A81/2018) [2018] ZAFSHC 128 (16 August 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: A81/2018
In
the matter between:
FRANS
MONGADI
MAKHETHA
APPELLANT
and
THE
STATE
RESPONDENT
CORAM:
NAIDOO,
J
et
MOLITSOANE
J
JUDGMENT BY:
NAIDOO J
HEARD ON:
13
AUGUST 2018
DELIVERED ON:
16 AUGUST 2018
INTRODUCTION
[1]
The appellant was convicted on one count of Rape in the Regional
Court, Welkom. He pleaded not guilty to the charge, but was
convicted
thereon and sentenced to sixteen (16) years’ imprisonment The
court a quo refused leave to appeal and the appellant
comes before
us, having successfully petitioned the Judge President for leave to
appeal against his conviction and sentence. Mr
LM Tshabalala
represented the appellant in this court and Mr E Van Rensburg
represented the respondent, being the state.
BACKGROUND
[2]
Ten year old M X (M) and her 7 year old friend, N N (N), were sent by
N’s mother to go and look for N’s sister at
the local
stadium. On the way there they met a man that neither of them knew
and he asked them to look for a boy called “Seun”,
and
offered to give them one Rand each should they find him. They then
went in search of Seun and a few minutes later they met
the same man
at a street corner. He then asked them to walk along with him and
took them to a shack in the area, where he asked
both of them if they
knew how to play house – house game. M said no she did not know
how to play. The man then said that
she will be the mother he will be
the father and N will be the child. He then sent N to one bedroom in
the house and took M to
the other bedroom. There he asked her to
undress and when she was reluctant, he threatened to shoot her. She
then undressed and
he made her lay on her stomach and proceeded to
have sexual intercourse with her from the rear. She testified that he
had penetrated
her anally but it later turned out, upon being
examined by the doctor at the hospital, that she was in fact
vaginally penetrated.
I will deal with this aspect later. M’s
evidence is that he repeated this process about 4 times, after he
kept going into
the other room where N was. Thereafter he asked her
to get dressed, as the owner of the house was going to arrive. He
then walked
with them a distance until they reached a tarred road,
and then they parted company. Apart from N, M told no-one of this
incident
[3]
M testified that her mother asked her about three weeks later what
had happened. She refused to tell her mother about the incident
as
she was afraid that her mother would give her a hiding. Her mother
then called the neighbour to whom M revealed what had happened.
The
matter was reported to the police and she was taken to the hospital.
[4]
N confirmed M’s evidence that they were sent to look for her
sister at the stadium. She said that M pushed a wheelbarrow
for a
woman and in that process they met the strange man on the street who
asked them to accompany him to a shack. They were taken
to a shack by
this man and were asked if they knew how to play the house –
house game. However M remained in the kitchen
with this man while she
was sent to 1 of the bedrooms. She testified further that at some
stage she peeped into the kitchen where
M was with this man and saw
him raping her. It was not clear where exactly M was in the kitchen,
but she said that M was lying
down and demonstrated, by using the
anatomically correct dolls, that the man was on top of M from the
rear. She also demonstrated
what she saw, by inserting the genital
organ of the male doll into the female doll.
[5]
The state closed its case after N delivered her evidence. The defence
applied for the discharge of the appellant in terms of
section 174 of
the Criminal Procedure Act 51 of 1977 (CPA). There is no indication
in the record that the application was refused,
but the magistrate
indicated in his judgment that the application was refused. Prior to
the trial court delivering judgment (presumably)
in respect of that
application, the court indicated that it wished to call the forensic
nurse as it needed further information
in order to make a proper
finding. The court invoked the provisions of Section 186 of the CPA
and called Mabel Qathatsi, who testified
that she examined M and
confirmed that her findings were recorded on the medical form
commonly referred to as the J88. She also
confirmed that M was
penetrated vaginally as opposed to anally, as she was unable to find
any injuries in the anal area, whereas
she found a number of healing
injuries in the vaginal area. The court allowed cross examination of
this witness by the prosecution
and the defence, and also allowed
them to call any further evidence as a result of this witness’
evidence. There is no record
of any formal application by the state
to reopen its case, but the allowance by the magistrate to call
further witnesses caused
the state to reopen its case. Acting upon
the invitation of the magistrate, therefore, the state called the
evidence of M’s
mother, M X (Mrs X).
[6]
Mrs X testified that when M complained of stomach ache and feeling
ill, her mother wanted to administer what appears to be an
enema to
her, she discovered that the child was injured in the genital area.
She asked M how she received those injuries and M
refused to tell
her. The mother then enlisted the assistance of the neighbour who
then ascertained from M what had happened. She
confirmed that the
incident had happened approximately three weeks prior to M being
questioned by the neighbour. The matter
was then reported to
the police, whereafter M’s mother asked her to point out the
shack where the man could be found. The
mother took M with her and
went to the shack where they found a bearded man. M then informed her
mother that this is not the man
who raped her. They then returned to
their home. A little later it appears that the mother went back to
the shack to make enquiries
about the owner/occupants of the shack
and there they found the bearded man as well as the appellant.
[7]
Due to a break in the recording, the rest of this witness’s
evidence in chief was not transcribed. However, under
cross-examination,
it emerged that after making enquiries about the
occupants of the shack, the police arrived. Mrs X and M went back to
that shack
where they encountered the bearded man again, together
with another male person. It seems that the police asked the two men
to
stand together and then asked M to point out the man who raped
her. She pointed out the appellant.
M
was then taken to the local hospital for a medical examination. Mabel
Qathatsi, a forensic nurse examined in M and recorded her
injuries on
the J88, as indicated above.
[8]
The appellant’s version is that M and her mother arrived with
the police, at the shack where he was visiting. He had never
seen M
or her mother before that day. He was very surprised that she pointed
him out, as he worked most days. He, however, could
not remember
where he was at the time M alleges he raped her. His further evidence
was that the shack belonged to a friend of his,
called Papie. There
were others that would also visit the shack, some of them being the
same build and height as he is. The appellant
denied raping M.
[9]
It is trite that the state bears the
onus to prove the guilt of an accused beyond reasonable doubt and
that the accused person bears
no onus to prove his innocence. In this
matter the appellant assails the judgment of the trial court on a
number of grounds, the
most important of these being that the court
failed to undertake a proper analysis and evaluation of the evidence,
and erred in
finding that the evidence of the state witnesses as to
the appellant’s identity was sufficient. The appellant also
alleges
that the court erred in not finding that the evidence of the
appellant is reasonably possibly true and in rejecting his evidence.
[10] It is well settled
in our law that evidence relating to identity, especially where
identity is in dispute, must be approached
with the necessary
caution, and the court must be satisfied that the witness is not only
honest but his/her evidence is reliable
and trustworthy. It goes
without saying that where the identifying witness is a child, extra
caution must be exercised by the court.
Guiding principles for
assessing such evidence have been set out in a number of cases:
In
S v Mthethwa 1972(3)
SA 766 (AD) at 768
,
the court said
“
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, gate, 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
applicable in a 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..”
A
similar view was expressed by the Supreme Court of Appeal in
S
v Charzen 2006(2) SACR 143 (SCA)
,
where the only evidence called by the state about a robbery was that
of a single witness. The court said at para 11 on p147:
“……
In
matters of identification, honesty and sincerity and subjective
assurance are simply not enough. There must in addition be certainty
beyond reasonable doubt that the identification is reliable, and it
is generally recognised in this regard that evidence of
identification
based upon a witness’s recollection of a
person’s appearance can be ‘dangerously unreliable’,
and must
be approached with caution.”
The
court continued in para 19 on p149:
“…
.
There was no physical evidence: not a fingerprint, not a recovered
cellphone, no wallet, no purse, no baby seat, nothing to connect
the
accused to the crime and thus provide a measure of objective
assurance against the pitfalls of subjective identification. The
greatest assurance of guilt must lie in such evidence, rather than in
identification on its own, which, as this case shows, can
be beset by
error and misdescription and doubt, in which case, possibly and even
presumably, guilty persons must walk free.”
[11]
Similarly, in the present matter, there is nothing apart from the
identification by M, a 10 year old child, some three weeks
after the
incident is said to have occurred, to link the appellant to the
offence. The trial court correctly warned itself of the
dangers of
uncritically accepting the evidence of a child witness, and in doing
so, referred to the case of
S
v Diara 2010(1) SACR 29 (EC)
.
The court
a quo
referred to contradictions in the complainant’s testimony
whereas the J88 reflected that she was vaginally penetrated. I
am in
agreement with the court’s assessment of how this could have
occurred, and that the medical evidence can be accepted.
What the
trial court did not refer to is the contradictions between N’s
evidence and that of the complainant, M.
[12]
In her narrative of how they met the man that raped her, M made no
mention at all that she pushed a wheelbarrow for a woman,
and that
she and N ran away and only then met the man who took them to the
shack. N made no mention that the man wanted them to
look for a boy
called Seun or that the man offered them R1.00 each. M also said that
she was raped in the one bedroom while N was
in the other bedroom.
She made no mention of either of them being in the kitchen.
Furthermore, M’s evidence was that it was
about to become dark
as they entered the shack in which she was raped. There is no
evidence about the state of lighting inside
the shack. From N’s
evidence that after M was raped, they told the man that they have to
leave as it was late, it can be
inferred that it was now dark. There
was absolutely no evidence as to the lighting in the shack even at
that stage. M’s evidence
that the man raped her four times and
all four times, she was made to lie on her stomach, indicates that
she did not have much
opportunity to observe his face during the
rapes.
[13]
To my mind, one cannot ignore the fact that M did not report the
incident to her mother because she was afraid her mother would
give
her a hiding. When it was revealed three weeks later, it was evident
(and understandable) that the mother was upset and made
a concerted
effort to find the perpetrator. The manner in which the appellant was
identified is unsatisfactory, to say the least.
M was made to choose
one of the two men in the room, one of which she had earlier
indicated was not the man that raped her. In
my view, the reliability
of her identification of the appellant in this manner must be viewed
in the light of the factors I have
mentioned in paragraph [11].
Added to this, is M’s evidence that she does not know the man
who raped her, whereas the
J88 reflects that the perpetrator is a
known male. To my mind it is very unusual for the child to have been
bleeding three weeks
after the incident, but no evidence was
forthcoming as to why this was, which leaves a sense of unease about
what really happened.
Having said that, however, I point out that
there is no dispute, nor is there any doubt in my mind that M was
raped approximately
three weeks prior, in the manner in which she
described.
[14]
I have no doubt that both M and N were honest in the account they
tendered in court, in respect of the incident. However, I
am of the
view that the trial court ought to have interrogated the reliability
of such evidence in the light of the factors I have
mentioned, namely
that the perpetrator was unknown to both children, the lighting may
well have been inadequate for a proper observation
of the
perpetrator’s face, and although they may have spent
considerable time in the perpetrator’s company (as suggested
by
the trial court), the opportunity for observation of his face was
limited. While M may have immediately pointed out the perpetrator,
one cannot lose sight of the circumstances under which this was done,
and the state of mind that M may have been in at the time
– a
scared and traumatised child who had to choose one of two people as
the perpetrator. I am not satisfied that the trial
court gave
sufficient weight or consideration to all the prevailing
circumstances, which bear significantly on the issue of
identification.
To my mind sufficient doubt exists regarding the
reliability of M’s identification of the appellant to give him
the benefit
of that doubt. I do not deem it necessary to deal with
the issue of sentence, as the sentence falls to be set aside and
cannot,
therefore, be sustained.
[15]
In the circumstances, the following order is made:
15.1
The appeal against the conviction and
sentence is upheld.
15.2 The conviction and
sentence in this matter are, hereby, set aside.
____________________
S.
NAIDOO, J
I
Concur
_____________________
P
MOLITSOANE J
On
behalf of Appellant: Adv. LM Tshabalala
Instructed
by: The Justice Centre
Bloemfontein
On
behalf of Respondent: Adv. E Van Rensburg
Instructed
by: The State