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[2018] ZAFSHC 175
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Morobe v S (A253/2018) [2018] ZAFSHC 175 (26 November 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No:
A253/2018
In
the matter between:
MOJALEFA
JOEL
MOROBE
APPELLANT
and
THE
STATE
RESPONDENT
CORAM:
NAIDOO, J
et
MOLITSOANE J
JUDGMENT BY:
NAIDOO, J
HEARD
ON
:
26 NOVEMBER 2018
DELIVERED ON:
26 NOVEMBER 2018
INTRODUCTION
[1]
The appellant was charged with one count of Housebreaking with Intent
to Rape and Rape (count1), one count of Rape (count 2)
and one count
of Robbery with Aggravating Circumstances (count 3) in the Regional
Court, Virginia. He pleaded not guilty to all
three counts but, on 29
March 2017, was convicted on counts 1 and 2, after the trial
proceeded. He was sentenced on the same day
to Ten (10) years’
imprisonment each on counts 1 and 2, and the court ordered the
sentences to run concurrently. The court
made no order in terms of
section 103(1) of the Firarms Control Act 60 of 2000. The appellant
applied to the court
a
quo
for leave to appeal against
the convictions and sentences and such leave was refused. He comes
before us, having successfully petitioned
the Judge President for
leave to appeal against the convictions. Mr PL Van Der Merwe
represented the appellant in this court and
Mr DW Bontes represented
the state.
BACKGROUND
[2]
The complainant in count 1 was asleep in her bedroom at her home, and
her two children were sleeping in the same room. She was
awakened at
about 23h00 by the presence of a man in her bedroom. He wore a
balaclava and she was unable to identify him. This man
raped her at
knifepoint, in the presence of her children. It subsequently turned
out that the appellant was related to the complainant,
and had
visited the complainant and her family on many occasions at her
house. He referred to the complainant’s husband as
his brother,
and became aware, after the incident, that her husband was working
away from home at the time she was raped. The appellant
indicated
that he was arrested after the complainant consulted a traditional
healer who had informed her that the appellant was
the person who had
raped her.
[3]
The complainant in count 2 was 16 years old at the time that she was
raped. Her evidence was that she was returning home at
approximately
18h00, after visiting her friend. She was accosted by two men, who
dragged her to a toilet and raped her. She was
then forcibly dragged
to another place where she was raped again by one of the men. The
complainant was able to remember the face
of the first man who had
raped her and was unsure of the identity of the second man. She was
not able to positively identify the
appellant as one of her rapists,
although she indicated that he looked familiar. This
complainant offered no evidence regarding
count 3. The state handed
up, as exhibits, the relevant medical examination forms, referred to
as the J88 forms pertaining to both
complainants, records of the
evidence collection kits prepared by the medical professionals who
examined both complainants, a J88
form relating to the appellant,
when blood was drawn from him to serve as a reference sample for DNA
analysis, as well as a DNA
analysis report. The state also called the
evidence of the forensic analyst, who was responsible for compiling
the DNA report.
[4]
The appellant was legally represented at the trial and tendered a
version that amounts to a bare denial. With regard to the
DNA
evidence, he said that the documents were correct, but that the
forensic analyst was lying. With regard to count 2, he testified
that
he had never been to Bethlehem, so it could not have been he who
raped the complainant. His objection against the evidence
of the
forensic expert was dealt with by the court a quo, which correctly
placed no reliance on the assertions of the appellant
as it was
apparent that he did not understand the processes involved in DNA
profiling. This is to be expected from a lay person,
who cannot be
criticised for his lack of knowledge of such a specialised field of
science.
[5]
In listing the grounds of appeal in respect of the convictions, the
appellant contends that the court erred in making the following
findings:
5.1 that the state proved
the guilt of the accused beyond reasonable doubt;
5.2 that there are no
improbabilities in the state’s version;
5.3 that the state
witnesses gave evidence in a satisfactory manner;
5.4 that the evidence of
the state witnesses can be criticised on matters of detail only
whereas the evidence was contradictory
in material respects;
The appellant also
contends that:
5.5 the court failed to
properly analyse the evidence of the state witnesses;
5.6 the court did not
properly consider the improbabilities inherent in the state version.
[6]
All the exhibits handed up by the state, as evidence, were done so
with the consent of the defence. The court correctly found
that
although the complainants in counts 1 and 2 were unable to identify
the persons that raped them, the evidence of the forensic
analyst
with regard to the DNA profiling was of importance in linking the
appellant to the offences with which he was charged.
The court also
correctly accepted that the state’s case was based on
circumstantial evidence, and in its analysis of the
evidence tendered
by both the state and the defence, essentially found that evidence of
the forensic analyst was satisfactory and
reliable, especially with
regard to the processes involved in obtaining the results of the DNA
profiling.
[7]
An internal cervical swab which was obtained from the complainant in
count 1 and the underwear of the complainant in count 2
were tested
and compared with results yielded by the system in respect of the
reference sample of blood taken from the appellant.
The results
relating to the samples in respect of both complainants matched the
DNA profile in respect of the appellant. The forensic
analyst
explained that when the analysis was undertaken in respect of the
sample from the complainant in count 1, the older system
using a
ten-point analysis was used. The newer sixteen-point analysis was
used by the time the analysis in respect of count 2 was
done. The
accuracy of both tests is plain to see from the DNA analysis report.
The acceptance by the court
a quo
of the DNA report, and the
rejection of the appellant’s version as not being reasonably
possibly true, cannot, therefore,
be faulted.
[8]
As indicated, the trial court recognised that the state’s case
was based on circumstantial evidence, and correctly applied
the
principles set out in the celebrated case of
S v Blom
1939 AD 188
, which sets out the “cardinal rules of logic”
to be followed when dealing with circumstantial evidence. In essence,
Blom’s case states that the inference sought to be drawn must
be consistent with all the proven facts, which must be such
that they
exclude all other reasonable inferences, save the one sought to be
drawn. If the proven facts do not exclude all other
reasonable
inferences there must be doubt as to the correctness of the inference
sought to be drawn. The trial court’s
analysis of the
evidence and conclusions based thereon indicate that the only
inference to be drawn from the circumstantial evidence
presented by
the state is that the appellant was the person who raped the
complainants in counts 1 and 2
[9]
When dealing with circumstantial evidence, a court is implored not to
deal with such evidence on a piecemeal basis but to examine
the
evidence in its totality. It is also necessary for the court to
distinguish between inference and conjecture. [See
S v Reddy
1996(2) SACR 1 (A);
S v Cooper
1996(2) SA
875 (T)].
In
the present matter, I am of the view that the trial court discharged
the duty placed on it to properly and thoroughly weigh up
the
evidence in its totality in order to make the findings that it did in
respect of the guilt of the appellant.
[10]
Mr Van Der Merwe, in his heads of argument, as well as his oral
address in court, candidly and correctly conceded that the
trial
court did consider the evidence in its totality, that its finding
that the forensic analyst was a credible witness cannot
be faulted,
and that the court committed no misdirection in coming to the
conclusion that the appellant was correctly linked to
the offences by
the DNA evidence. Mr Bontes stood by the submissions made in his
Heads of Argument
[11]
In the circumstances, the following order is made:
11.1 The appeal against
the convictions herein is dismissed.
11.2 The convictions and
sentences imposed on the appellant are confirmed.
______________________
NAIDOO
J
I
concur
_____________________
MOLITSOANE J
On
behalf of Appellant: Adv. PL Van Der Merwe
Instructed
by: The Justice Centre
Bloemfontein
On
behalf of Respondent: Adv. DW Bontes
Instructed
by: The State