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[2018] ZALMPPHC 21
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Nkuna v S (A18/2016) [2018] ZALMPPHC 21 (11 May 2018)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE
NO: A18/2016
In
the matter between:
KENNETH
BANKUNA
NKUNA
APPELLANT
And
THE
STATE
RESPONDENT
JUDGMENT
MOKGOHLOA
DJP
1.
Arising out of an
incident that occurred on 26 November 1999 at Phalaborwa police
station, the appellant was arraigned on charges
of rape and defeating
the ends of justice before the regional court sitting in Phalaborwa.
2.
The appellant who was
legally represented pleaded not guilty to the charges and denied all
allegations levelled against him. At
the conclusion of all the
evidence, the appellant was convicted as charged and sentenced to
twelve (12) years’ imprisonment
on 22 November 2002. He now
appeals against both his conviction and sentence with leave of the
trial court.
3.
The appeal was initially
served in the Gauteng High Court Pretoria on 5 August 2004 and it was
struck off the roll. It appears that
when the appeal was heard in the
Pretoria High Court in 2004, the appellant was on bail. For 12 years
the appellant never reinstated
the appeal. It is only after a warrant
of his arrest was issued and he was arrested for purpose of him
having to start his sentence,
did the appellant place the matter on
the roll for 2 September 2016. The appeal was heard by Kgomo J who
struck it off the roll
due to appellant’s failure to prosecute
his appeal timeously.
4.
Before us, the appellant
did not bring an application for condonation for the late prosecution
of the appeal. We adjourned the matter
to enable the appellant’s
counsel to consider the application for condonation, no such
application was brought. Instead,
the appellant’s counsel made
an application for condonation from the bar. We decided to grant
condonation and deal with the
appeal in the interest of justice.
5.
The facts upon which the
appellant’s conviction is based can be summarized as follows:
During
November 1999 the complainant, an adult female was detained in the
Phalaborwa police cells. She was detained in cell number
7. On 26
November 1999 she made a request earlier in the day to be allowed to
phone her home. Later that evening, the appellant,
who was a police
officer at Phalaborwa police station and on duty came to her cell and
took her to the telephone booth for her
to make a call. Thereafter he
took her back to her cell.
6.
Later that evening, the
appellant returned to her cell and invited her to come with him to
the visitor’s place. The complainant
who was already asleep,
woke up and accompanied the appellant to the visitor’s place.
She was walking in front. The appellant
grabbed her on her shoulders
and told her that he wanted to have sexual intercourse with her. The
complainant refused but the appellant
pushed her to the floor
undressed her and raped her. Thereafter the complainant returned to
her cell crying but did not report
the rape incident to her cell
mate. The following day in the morning she made a report to one of
the police officer Mashaba. She
was then taken to the hospital for
examination. Swaps were taken from her and put in the crime kit.
7.
The next day which was a
Sunday, she was taken to the telephone booth to attend a call that
came through for her. She was seated
in the community service centre
(charge office) when a certain young man came in and reported that he
came to pay for her bail.
The complainant informed the police officer
in charge that she cannot accept money from strangers. In fact the
complainant testified
that there was no bail granted to her because
she was serving her sentence.
[1]
8.
The young man the
complainant referred to was Mr Sipho Mnisi who testified that on 28
November 1999 he proceeded to Phalaborwa post
office to make a
telephone call. He met the appellant who introduced himself to him as
Mashele. The appellant requested Mnisi to
go to the police station to
pay bail for his relative, M. (the complainant). He gave Mnisi
R1 000.00. Indeed Mnisi proceeded
to the police station to pay
bail but was advised that the money was not sufficient. He returned
to the appellant who withdrew
another money from the ATM and handed
to Mnisi. Mnisi returned to the police station where he made payment
and the appellant thanked
him by giving him R20.00.
9.
On 3 December 1999 an
identification parade was held and the complainant who was moved from
Phalaborwa police cells to Tzaneen police
cells was able to identify
the appellant as her rapist. Mnisi as well identified the appellant
as the person who introduced to
him as Mashele. It was only after the
appellant was positively identified at the identification parade that
he was arrested. The
appellant was then taken to hospital where Dr
Khoza extracted blood and sperms from him.
10.
Evidence of the DNA test
result was led which proved positive in that the profile of the
appellant was read into the sample found
in the complainant.
11.
The appellant testified
in his own defence. Although he admitted that there was a time when
he fetched the complainant from her
cell and escorted her back from
her cell, he denied that he raped her. His version was that he was
doing nightshift on 26 November
1999 and was a leader of the
nightshift group. At about 22:30 he went out of the community service
centre where he met a man who
claimed to be the complainant’s
husband. This man requested to see the complainant concerning their
sick child. Although
it was late at night, he fetched the complainant
from her cell to meet her husband. At some stage he noticed that the
complainant
and this man were kissing each other and this man
appeared to be drunk. He then decided to intervene and chased the man
away and
escorted the complainant back to her cell. The complainant
was very angry and told the appellant that she ‘will see him’.
Regarding the evidence of Mnisi, the appellant denied that he was
ever at the post office at that day. He denied ever meeting and
sending Mnisi to pay bail for appellant. According to him he first
saw Mnisi at the identification parade.
12.
The appellant stated
that both Sergeant Malatji, who made entries in the cell book
regarding visits to the cells on the night of
the incident, and
Captain Lumbe the investigating officer in this case, influenced the
complainant to falsely implicate him of
rape as there was bad blood
between him and them.
13.
In evaluating all the
evidence, the trial court made positive findings regarding the
complainant’s and Mnisi’s credibility
and the reliability
of their evidence.
“
It was
never taken up with the witness and this only came out at the time
when the accused testified. All what was raised was that
Malatji
absented himself from duty and he told the court that he absented
himself from duty when he had to attend the funeral of
his brother’s
wife and that he came back and explained the situation and the matter
was resolved amicably. There is therefore
nothing to suggest that M.
M. and Sergeant Malatji connived to make a case against the accused.
One can take it from there that
Sergeant Malatji therefore had no
grudge against the accused.
Same applies to
Captain Lumbe. Though she admitted having had grudges with people in
the past, but she never told the court that
she had any specific
grudge against the accused. And I do not think that by merely
refusing to enter the CAS number into a computer
can result in one
deciding to embark on making a case against the accused of this
serious nature. I therefore hold that there is
no basis to suggest
that Captain Lumbe fabricated a case against the accused or club with
Sergeant Malatji and the complainant
to make a case against the
accused. The court therefore rejects any notion that Captain Lumbe,
Sergeant Malatji and complainant
connived to make a case against the
accused.
14.
As regards the identity
parade, the trial court held:
As far as the
identification parade is concerned, there is nothing to suggest that
the complainant M. M., made a mistake in pointing
out the accused or
that she first made some mistake in pointing out the accused. Though
the accused was wearing a uniform and had
his name tag placed on his
police uniform, there is no basis to suggest that M. pointed out the
accused by reading on his name
tag. This is because there is no
evidence at that stage, M. knew who the accused was. Safe to know him
facially. So I take it that
M. pointed out the accused by mere
looking at him and not by reading from the name tag.
There is also no
evidence to suggest that the accused name was revealed to M. before
the identification parade was conducted. Captain
Lumbe, even though
she was present at the identification parade, there is no evidence to
suggest that she influenced M. in pointing
out the accused. She was
not even part of the people who organised the identification parade.
If she played any role in the ID
parade, that role was only limited
to her interpreting for the person who was conducting the ID parade.
In the whole, the court
could not find any irregularity in the
conducting of the ID parade.
Mnisi came in as
an outsider and he had nothing to do with this case. He told the
court that on Sunday 28 November 1999, he left
his place of
employment and proceeded to the post office to go and phone his home
at Bushbuckridge. There he met a person who introduced
himself as
Mashele. And that person asked him to go and pay bail for a person
whom he only knew as M., without even knowing her
surname. He
proceeded to the police station and made some attempts to pay bail
for M..”
15.
Before us, the
appellant’s counsel unleashed a three-pronged attack against
the judgment of the trial court. First, he submitted
that the trial
court erred in relying on the evidence of the DNA test results which
was incomplete in that the chain evidence was
broken.
16.
Second, it was argued
that the trial court erred in relying on the identification parade
evidence when the parade was not properly
conducted.
17.
Thirdly, that the trial
court erred in not finding that the appellant established sufficient
grounds for suspecting that the state
witnesses had motive to falsely
implicate him particularly taking into consideration that: Captain
Lumbe attended the identification
parade with Mnisi and acted as an
interpreter for Mnisi as well as the person in charge of the parade.
18.
It is trite that as a
court of appeal we have to show deference to the factual and
credibility findings made by the trial court.
This is so as the trial
court has had the advantage which an appeal court never had of
hearing and observing the witnesses as they
testify and under
cross-examination. As stated in
R
v Dhlumayo & Another
[2]
‘the trial court is steeped in the atmosphere of the trial’.
A court of appeal may only interfere where it is satisfied
that the
trial court misdirected itself or where it is convinced that the
trial court was wrong.
[3]
19.
Confronted with a
similar argument, the SCA in
S
v Hadebe & Others
[4]
with reference to Moshesi & Others v R
(1980-1984) LAC 57
,
enunciated the correct approach to resolving such a problem as
follows:
“
The
question for determination is whether, in the light of all the
evidence adduced at the trial, the guilt of the appellants was
established beyond reasonable doubt. The breaking down of a body of
evidence into its component parts is obviously a useful aid
to a
proper understanding and evaluation of it. But, in doing so, one must
guard against a tendency to focus too intently upon
the separate and
individual part of what is, after all, a mosaic of proof. Doubts
about one aspect of the evidence led in a trial
may arise when that
aspect is viewed in isolation. Those doubts may be set at rest when
it is evaluated again together with all
the other available evidence.
That is not to say that a broad and indulgent approach is appropriate
when evaluating evidence. Far
from it. There is no substitute for a
detailed and critical examination of each and every component in a
body of evidence. But,
once that has been done, it is necessary to
step back a pace and consider the mosaic as a whole. If that is not
done, one may fail
to see the wood for the trees.”
20.
It should be clear from
the above cases that the powers of this Court sitting as a court of
appeal are clearly circumscribed. It
does not have carte blanche to
interfere with the factual and credibility findings properly made by
the trial court.
21.
It is indeed correct, as
the appellant’s counsel pointed out that there are aspects of
the DNA evidence which are unsatisfactory.
It is further correct that
the person who received the package at the forensic laboratory did
not mention sufficiently how the
package was marked. It appears from
the record of the proceedings that the Cas number on some of the
exhibits appeared to have
been tampered with or made as a late entry
on the crime kit.
22.
Be that as it may, it
has to be noted that the DNA evidence on its own may not be
sufficient to establish the guilt of the appellant;
it has to be
weighed against the totality of the evidence presented before the
court.
23.
In order to avoid
falling into a trap of failing to see the wood for trees as per the
warning expressed in Hadebe
supra
,
I propose to take a step back and consider the entire evidence as a
mosaic, consider the strength and weaknesses in the evidence
and
consider the merits, demerits and probabilities.
[5]
24.
I am alive to the fact
that the state bore the onus to prove the guilt of the appellant
beyond a reasonable doubt and that there
is no onus on the appellant
to proof the truthfulness of any explanation which he gives not to
convince the court that he is innocent.
Any reasonable doubt
regarding his guilt must redound to the appellant’s benefit.
[6]
25.
However, as it was
stated in
S v Phallo
& Others
[7]
“
On the
basis of this evidence it was argued that the State had, at best,
proved its case on a balance of probabilities but not beyond
reasonable doubt. Where does one draw a line between proof beyond
reasonable doubt and proof on a balance of probabilities? In
our law,
the classic decision is that of Malan JA in R v Mlambo
1957 (4) SA
727
(A). The learned Judge deals, at 737F-H, with an argument
(popular at the Bar then) that proof beyond reasonable doubt requires
the prosecution to eliminate every hypothesis which is inconsistent
with the accused’s guilt or which, as it is also expressed,
is
consistent with his innocence. Malan JA rejected this approach,
preferring to adhere to the approach which ‘at one time
found
almost universal favour and which has served the purpose so
successfully for generation’ (at 738A). This approach was
then
formulated by the learned Judge as follows (at 738A-C)
‘
In my
opinion, there is no obligation upon the Crown to close every avenue
of escape which may be said to be open to an accused.
It is
sufficient for the Crown to produce evidence by means of which such a
high degree of probability is raised that the ordinary
reasonable
man, after mature consideration, comes to the conclusion that there
exists no reasonable doubt that an accused has committed
the crime
charged. He must, in other words, be morally certain of the guilt of
the accused.
An accused’s
claim to the benefit of a doubt when it may be said to exist must not
be derived from speculation but must rest
upon a reasonable and solid
foundation created either by positive evidence or gathered from
reasonable inferences which are not
in conflict with, or outweighed
by, the proved facts of the case’
(See also S v
Sauls and Others 1981 (3) SA 172 (A) at 182G-H; S v Rama
1966
(2) SA 395
(A) at 401; S v Ntsele
1998 (2) SACR 178
(SCA) at 182b-h.)
The approach of
our law as represented by R v Mlambo, supra, corresponds with that of
the English Court. In Miller v Minister of
Pensions
[1947] 2 All ER
372
(King’s Bench) it was said at 373H by Denning J:
‘
The
evidence must reach the same degree of cogency as is required in a
criminal case before an accused person is found guilty. That
degree
is well settled. It need not reach certainty, but it must carry a
high degree of probability. Proof beyond reasonable doubt
does not
mean proof beyond the shadow of a doubt. The law would fail to
protect the community if it admitted fanciful possibilities
to
deflect the cause of justice. If the evidence is so strong against a
man as to leave only a remote possibility in his favour,
which can be
dismissed with the sentence “of course it is possible, but not
in the least probable”, the case is proved
beyond reasonable
doubt, but nothing short of that will suffice.’
26.
The trial court was
aware that the complainant and Mnisi were single witnesses and that
their evidence has to be treated with caution.
However it found
corroboration of the complainant’s evidence in the evidence of
the appellant that on the night of the incident,
he escorted the
complainant from her cell to the community services centre and back
to her cell. Furthermore, the trial court found
that this evidence
proved that there was contact between the appellant and the
complainant on that evening. I may add that it is
highly improbable
if not impossible for a police officer to allow a detainee to have
visitors late at night (22:30).
27.
In the same breath, the
trial court, referring to the evidence of Mnisi, stated:
“
The court
can therefore safely say that Sipho Mnisi identified the accused
because he knew him as the person who send him to go
and pay the bail
for M.. One other interesting aspect of Sipho Mnisi’s evidence
is that he paid money at the police station
for Mabis Mahlatji, the
person he did not know, the person he is and to whom he had no
interest whatsoever. And one can therefore
as a question of what
interest did Sipho Mnisi have in M. Mahlatji to extend that he went
to pay bail for her. Paying such a lot
of money for someone he did
not know. I take it therefore that his evidence, that he was send by
the accused to go and pay the
bail for M., should be accepted as the
truth.
So if one looks at
the evidence as it stands, the evidence of M. Mahlatji regarding the
rape and the subsequent pointing out of
the accused at the
identification parade, and the evidence of Mnisi regarding the
mandate he had to carry to go and pay the bail
for M., and the
pointing out, the court can safely say therefore that the evidence of
both M. Mahlatji and Sipho Mnisi can be accepted
as reliable and
credible in all material respect”.
28.
I am mindful of the
salutary warning expressed in
S
v Snyman
[8]
that even when dealing with the evidence of a single witness, courts
should never allow the exercise of caution to displace the
exercise
of common sense. Equally important is what the SCA stated in
S
v Sauls
[9]
that:
“
Section
256 has now been replaced by
s 208
of the
Criminal Procedure Act 51
of 1977
. This section no longer refers to “ the single evidence
of any competent and credible witness”; it provides merely that
“an accused may be convicted on the single evidence of any
competent witness”. The absence of the word “credible”
is of no significance; the single witness must still be credible, but
there are, as Wigmore points out, “indefinite”
degrees in
this character we call credibility”. (Wigmore on Evidence vol
III para 2034 at 262). There is no rule of thumb
test or formula to
apply when it comes to a consideration of the credibility of the
single witness (See the remarks of RUMPFF JA
in S v Webber
1971 (3)
SA 754
(A) at 758). The trial Judge will weigh his evidence, will
consider its merits and demerit and, having so, will decide whether
it is trustworthy and whether, despite the fact that there are
shortcomings or defects or contradictions in the testimony, he is
satisfied that the truth has been told. The cautionary rule referred
to by DE VILLIERS JP in 1932 may be a guide to a right decision
but
it does not mean that the appeal must succeed if any critism, however
slender, of the witnesses’ evidence we well founded
(per SCHREINER JA
in R v Hlapo (AD 10 November 1952) quoted in R v Bellingham
1955 (2)
SA 566
(A) at 569). It has been said more than once that the exercise
of caution must not be allowed to displace the exercise of common
sense.
The question then
is not whether there were flaws in Lennox’s evidence – it
would be remarkable if there were not in
a witness of this kind. The
question is what weight, if any, must be given to the many criticisms
that were voiced by counsel in
arguments”.
29.
This is how the trial
court approached and assessed the complainant and Mnisi’s
evidence. Based on this, I am unable to say
that the trial court
erred in its acceptance of their evidence as truthful and reliable
more so that the complainant’s evidence
was corroborated to a
certain extent by the appellant’s evidence. I am therefore
satisfied that their evidence established
the guilt of the appellant
beyond reasonable doubt. Accordingly, I can find no fault with his
conviction on the two counts i.e
rape and defeating the ends of
justice. It follows that this court sitting as a court of appeal
cannot interfere with the findings
of the trial court.
Sentence
30.
It is equally trite law
that the issue of sentencing is one which vests a discretion in the
trial court. The trial court considers
what a fair and appropriate
sentence should be. The circumstances entitling a court of appeal to
interfere in a sentence imposed
by a trial court were revisited in
S
v Malgas
[10]
where Marais JA held:
“
The mental
process in which courts engage when considering questions of sentence
depends upon the task at hand. Subject of course
to any limitations
imposed by legislation or binding judicial precedent, a trial court
will consider the particular circumstances
of the case in the light
of the well-known triad of factors relevant to sentence and impose
what it considers to be a just and
appropriate sentence. A court
exercising appellant jurisdiction cannot, in the absence of material
misdirection by the trial court,
approach the question of sentence as
if it were the trial court and then substitute the sentence arrived
at by it simply because
it prefers it. To do so would be to usurp the
sentencing discretion of the trial court. Where material misdirection
by the trial
court vitiates its exercise of that discretion, an
appellate Court is of course entitled to consider the question of
sentence afresh.
In doing so it assesses sentence as if it were a
court of first instance and the sentence imposed by the trial court
has no relevance.
As it is said, an appellate Court is at large.
However, even in the absence of material misdirection, an appellate
court may yet
be justified in interfering with the sentence imposed
by the trail court. It may do so when the disparity between the
sentence
of the trial court and the sentence which the appellate
court would have imposed had it been the trial court is so marked
that
it can properly be described as ‘shocking’,
‘startling’ or ‘disturbingly inappropriate’.
It
must be emphasised that in the latter situation the appellate
court is not at large in the sense in which it is a large in the
former. In the latter situation it may not substitute the sentence
which it thinks appropriate merely because it does not accord
with
the sentence imposed by the trial court or because it prefers it to
that sentence. It may do so only where the difference
is so
substantial that it attracts epithets of the kind I have mentioned.
No such limitation exists in the former situation.
31.
The starting point in
sentencing in respect of rape is in the
Criminal
Law Amendment Act
[11]
.
This Act prescribes a sentence of 10 years’ imprisonment in
these circumstances. A court can only deviate from the prescribed
sentence if it finds that there exist substantial and compelling
circumstances that justify the imposition of a lesser sentence.
32.
Counsel for the
appellant submitted that the trial court misdirected itself in
failing to consider the appellant’s personal
circumstances as
substantial and compelling circumstances that would have justified
the deviation from the prescribed sentence
of 10 years. I do not
agree. The trial court was alive to the personal circumstances when
it held:
“
The fact
that he is a married person and has children and he is a caring
father and a responsible father for that matter. This in
my
understanding and my understanding is that it is expected of each and
every father to be responsible towards his family, his
wife and
children in particular. This to me does not clearly illustrate
compelling and substantial circumstances which may cause
the court to
deviate from the minimum sentence.
The
offence the accused has committed is very serious taking into account
the position he held at the time when the offence was
committed. This
is a clear illustration of a case where a person in a high position
abused his powers”.
(My
emphasis)
33.
In S v PB
[12]
“
Not having
found substantial or compelling circumstances to be present, the
trial court found no justification to depart from the
prescribed
minimum sentence. Clearly there are none. To find otherwise would be
to fall into trap of doing so for ‘flimsy
reasons’ and
‘(s)peculative hypotheses favourable to the offender’, as
was cautioned against in Malgas. This
the trial judge did not do, and
consequently did not err in that regard. It follows that the appeal
must fail”.
34.
I am in total agreement
with the judge in S v PB above. In my view, the trial court was
correct in finding that the personal circumstances
of the appellant
are far outweighed by the aggravating circumstance. I am therefore
satisfied that the sentence imposed by the
trial court in respect of
rape is not excessive and disproportionate. I find the sentence
imposed to be just and fair and
there is therefore no need for us to
interfere.
35.
In conclusion, the
question is: did the trial court misdirect itself in failing to order
the sentences to run concurrently?
Section 280
(2) of the
Criminal
Procedure Act
[13]
permits
a sentencing court to order one or more sentences to run
concurrently, either in whole or in part. An order that sentences
should run concurrently is called for where the evidence shows that
the relevant offences are ‘inextricably linked in terms
of
locality, time, protagonists and, importantly, the fact that they
were committed with one common intent’
.
[14]
36.
In
casu,
there was indeed inextricable link between the offences in terms of
the locality and the protagonist. This justified an order of
concurrence in the sentences.
In
the circumstances, the following order shall issue:
1.
The appeal against both
convictions is dismissed.
2.
The appeal against
sentence is upheld to the extent that:
The
sentence imposed by the trial court is retained, but it is ordered
that the sentence imposed on Count 2 shall run concurrently
with the
sentence imposed on Count1
MOKGOHLOA
DJP
I
concur
MG
PHATUDI J
REPRESENTATIONS
1.
Counsel
for the Appellant
: Mr. M.E Kgatle
Instructed
by
: Polokwane Justice Centre
2.
Counsel
for the Respondent : Adv.
JJ Jacobs
Instructed
by
: Director of Public Prosecutions Polokwane
3.
Date
of hearing
: 16 March 2018
4.
Date
handed down
: 11 May 2018
[1]
Sentence of R15 000 or 10 months imprisonment
[2]
1948 (2) SA 677
(A) at 705
[3]
R v Dhlumayo supre, S v Artman & Another 1968 (3) 339 (A) at 341
G-H
[4]
S v Hadebe & Others
1998 (1) SACR 426
F-G
[5]
S v Chabalala
2003 (1) SACR 134
at [15]
[6]
S v V
2000 (1) SACR 453
(SCA)
[7]
1999 (2) SACR 558 (SCA) [10] – [11]
[8]
1968 (2) SA 582
(A) at 585 G
[9]
1981 (3) SA 172
(A) at 180 C-H
[10]
2001 (1) SACR 469
(SCA [12]
[11]
105 of 1997
[12]
2011 (1) SACR 448
(SCA) at [21]
[13]
51 of 1977
[14]
S v Mokela
2012 (1) SACR 431
(SCA) at [11]