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[2016] ZAFSHC 148
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Chabalala and Another v S (A126/2016) [2016] ZAFSHC 148 (25 August 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A126/2016
In
the matter between:
JOHANNES
BONGANI CHABALALA
1st
Appellant
MMETE
IKE
LETSHOHA
2nd
Appellant
and
THE
STATE
Respondent
CORAM:
REINDERS,
J
et
MATHEBULA,
AJ
HEARD
ON:
15
AUGUST 2016
JUDGMENT
BY:
MATHEBULA,
AJ
DELIVERED
ON:
25
AUGUST 2016
[1]
The appellants were arraigned in the Regional Court, Odendaalsrus on
a charge of rape. They were convicted of contravention
of
Section
3 read with
section 1
,
56
(1),
57
,
58
,
59
and
60
of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007
.
They were sentenced to life imprisonment and in terms of
Section 103
of Act 60 of 2000 were both declared unfit to possess a firearm.
This appeal lies against both conviction and sentence.
[2]
The version of the state was narrated by M. G. (complainant) and
Moses Gaurali. On the 10
th
April 2011 at about 3H00am the complainant left Jabu’s Tavern
alone for her rented room situated at Blok [...], K., O..
She
had been rendering food services at a function that was hosted
there. She was accosted by two men who were approaching
from
the front. They both produced knives and commanded her to walk
with them to a secluded place near Mshongoville.
As they were
walking there both her assailants were flanking her on the left and
right hand side.
[3]
They both took her to an open veld and on their arrival there, she
was instructed to undress. They took turns to have
sexual
intercourse with her. The first one to rape her was the one
eyed assailant. After he had ejaculated, he then
instructed her
to wipe her private parts with a tissue paper. He did not use
any condom. The second assailant took
his turn and after
ejaculating, he too barked out the same instructions as the first
assailant that she must wipe herself.
[4]
Then the one eyed assailant took his turn again to have sexual
intercourse with her. They were temporarily disturbed by
the
headlights of a police mini bus. They left that spot and went
deeper into the veld. On their arrival at the second
spot, she
was instructed to undress. The two assailants continued to have
sexual intercourse with her and every time after
ejaculating
instructing her to wipe herself with a tissue paper. After they
had finished they instructed her to leave the
area and walk without
looking back, which she did.
[5]
On the main road she met Moses and relayed her ordeal to him.
She was advised to wait until the break
of
dawn
before
they can report the matter to the police. He confirmed that
when he met her she was crying and later accompanied her
to the
police station. According to Moses there were many patrons at
the tavern and on that day he had not seen any of the
appellants
among them. The complainant had told him that she was raped by
two (2) persons and one of them had one eye.
She did not
mention them by name.
[6]
The 1
st
appellant took to the stand to deny any involvement in the rape with
the 2
nd
appellant or any other person on the aforementioned day. He
testified that he was at home sleeping with his girlfriend though
she
had slept in another room. Then he called his mother in his
defence that he was indeed at home when the complainant was
attacked. Her testimony revealed that the 1
st
and 2
nd
Appellants were at her residence the day prior to the 10
th
April 2011. The 2
nd
Appellant exercised his right to remain silent and closed his case
without testifying or calling any witnesses.
[7]
It was submitted by Mrs Smit appearing on behalf of the 1
st
Appellant that the evidence of identification by the complainant did
not pass the threshold as laid down. In essence that
the
complainant made a serious of bold and unsubstantiated assertions.
These had to be approached with caution as they may
be tainted with
an element of mistake. Though the state resisted the appeal and
supported the conviction, the submission
was that the matter is left
in the hands of the court.
[8]
Evidence of identification is problematic in nature and must be
approached with caution especially in cases where there is a
single
witness. In addressing its unreliability, the position was
espoused as follows in
R
v Dladla and Others
1962 (1) SA 307
(A) at 310 C-E:
'One
of the factors which in our view is of the greatest importance in a
case of identification, is the witness' previous knowledge
of the
person sought to be identified. If the witness knows the person well
or has seen him frequently before, the probability
that his
identification will be accurate is substantially increased. Even in
the case when a witness has some difficulty in the
witness-box in
giving an accurate description of the facial characteristics and
clothes of the person whom he has identified, the
very fact that he
knows him provides him with a picture of the person in the round
which is a summary of all his observations of
the person's
physiognomy, physique and gait, and this fact will greatly heighten
the probability of an accurate identification.
In a case where
the witness has known the person previously, questions of
identification marks, of facial characteristics, and
of clothing are
in our view of much less importance than in cases where there was no
previous acquaintance with the person sought
to be identified. What
is important is to test the degree of previous knowledge and the
opportunity for a correct identification,
having regard to the
circumstances in which it was made.'
[9]
In the leading case of
S
v Mthetwa
1972 (3) SA 766
(A) at 768A-C per Holmes JA, the court said the
following:
“
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, build, 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 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; see cases such
as
R.
v Masemang
,
1950 (2) SA 488
(AD);
R.
v Dladla and Others
,
1962 (1) SA 307
(AD) at p. 310C;
S.
v Mehlape
,
1963 (2) SA 29
(AD).”
[10]
The following appears from the record on
page
5
from
line
1 to 24
of
volume 1
:
“”
Goed.
Nou vertel vir die hof die mense wat julle daar gesien het kan jy
hulle uitwys. Sê hulle name – sonder
om hulle name
te noem kan jy hulle uitwy (sic) en sê dis die person.
Ja.
5
Ja wys hulle. ... Ek verwys na die twee beskuldigdes. Hoekom sê
u dit was die twee beskuldigdes
wat saam met u ontmoet het daardie
dag? ... Die een het ek – het hulle – uitken met
die oog want hy het net een
oog – herken met die oog wat uit is
en die ander een kan ek ken met die gesig.
10
Goed. Kom ons kom nou. Wie het – wie is die een wat
jy met een oog uitgeken en wie is die een wat
hom met sy gesig
uitgeken?
HOF
Jy moet harder
praat die prokureur hoor haar glad nie. ... Beskuldigde nommer
1 het ek geken met die gesig en
15
nommer 2 met die oog wat uit is.
AANKLAER
Hoe
het u nou beskuldigde 1 met sy gesig geken mevrou? Met die heel
voorkoms van sy gesig of hoe? Was spesifieke dinge
wat u hom
met sy gesig geken het?
HOF
Sy moenie na 1 kyk
nie. ... Ek het die gesig gesien want
20
hy’s die een wat baie gepraat het.
AANKLAER
As ek u mooi
verstaan u het nie ‘n sekere kenmerk van hom nie, met die hele
voorkoms van sy gesig geken, nie ‘n spesifieke
ding van sy
gesig nie. ... Net die voorkoms.”;
and
on page 6 from
line
1 - 2
of
volume 1
the following is recorded:
“
En
u sê beskuldigde nommer 2 het u hom geken met sy oog – hy
het nie een oog nie, die een oog is uit. ... Ja.”
This
manner of identification of the 1
st
appellant was neither tested nor scrutinised.
[11]
The 1
st
Appellant was described as tall and light in complexion. The
basis for this was not laid and I am left to speculate as to
whether
he was indeed tall and light in complexion. On page 27 from
line
17 to 21 of volume 1
of the transcript the following is recorded:
“
And
I put it to you that both this accused before this court their colour
complexion is the same there’s no one who is lighter
than the
other unless the one has burnt or something.
20
… According to me they are not the same, the other one
is lighter than the other
one.”
On
page 29 from line
9
to 17 of volume 3
of the transcript the following appears:
“
U
Edelagbare, beskuldigde nommer 1, as ek dit
10
nie mis net nie, het die klaagster gesê dat hy ligter, of sy
ken hom uit aan sy gesig en sy kleredrag, Agbare.
En sy sê
ook dat hy ligter as die tweede beskuldigde. Ek weet nie, hy
lyk vir my half donkerder as beskuldigde nommer
2. Maar kan sy
‘n fout maak? Ja. Of as sy ‘n fout kan maak,
dan moet daar
15
seer sekerlik twyfel by die Agbare Hof bestaan en derhalwe versoek ek
die Agbare Hof op grond van die identifikasie,
beskuldigde nommer 1
onskuldig bevind.”
The
illustration above casts more doubt as to whether the complainant was
not mistaken in this regard.
[12]
The entire incident occurred under extremely trying circumstances for
the complainant. She was totally overpowered and
beaten into
submission by her assailants. She was threatened and humiliated
by them. She could not even notice who
raped her first the
second time. She could not testify as to how long her ordeal
permeated in the circumstances. It
is on this basis that though
confident in testifying, she may be making an honest mistake.
[13]
She testified that the 1
st
appellant was the one who was talking the whole time.
Unfortunately this matter was not probed beyond the mere assertion
by
her. There was nothing that was put before the court as to what
he said or what was distinct about his voice.
[14]
The complainant was attacked on the 10 April 2011 and gave evidence
in court on the 20
th
March 2012. It is few days short of a year. The
complainant emphasized that the 1
st
appellant was wearing the same clothes as on the day of the
incident. There was no basis laid that indeed it was so.
This was a typical dock identification. The fact that the 1
st
appellant was sitting in the dock would have been suggestive to the
witness to identify him as her assailant. See
S
v Maradu
1994 (2) SACR 410
(W) at 413 G-J. The complainant was attacked
at a place where lighting though provided by a floodlight, was of
poor quality.
[15]
The reliability of the witness must be tested. The court has
repeatedly held that the list is not exhaustive. The
confidence
and sincerity of the witness in identifying a person is not enough.
The evidence of a single witness has to be
clear and satisfactory in
every material respect.
[16]
In this regard, I am of the view that the court
a
quo
took an incorrect approach in dealing with the evidence in totality.
The court
a
quo
accepted the confidence and firm belief of the complainant without
the sufficient basis being laid. As a result, I am of
the view
that the appeal (as far as the 1
st
appellant is concerned) ought to succeed.
[17]
The 2
nd
Appellant elected not to testify or call witnesses. He was
positively linked through his DNA as the person who had sexual
intercourse with the complainant profile. Furthermore he was
identified as the one eyed assailant on the day of the incident.
Mrs Smit conceded that the 2
nd
appellant
was correctly convicted in this matter and that the appeal on that
aspect has no merit. This appeal cannot succeed.
[18]
It is common cause that the complainant was raped more than once and
by two people at different spots in the veld. The
prescribed
sentence in the absence of substantial and compelling circumstances
is life imprisonment. The court
a
quo
found that there were no substantial and compelling circumstances and
proceeded to impose life imprisonment.
[19]
It was submitted on behalf of the 2
nd
appellant
that the sentence imposed was shockingly inappropriate. The
court of appeal should not lightly interfere with sentence
imposed by
the court
a
quo
.
The court may interfere in certain limited circumstances. See
S
v Fazzie and Others
1964 (4) SA 673
A at 684 B-C,
S
v Pillay
1977 (4) SA 531
(A) at 535 E-F,
S
v M
1982 (1) SA 589
(A) at 592 G-H.
[20]
It was submitted that there are substantial and compelling
circumstances on behalf of the 2
nd
appellant. The 2
nd
appellant was still a youth and had completed Grade 9 at school.
He was unemployed and still living with his parents.
It was
also submitted that the sentence can be interfered with because the
Victim Impact Report was not made available to the court
a
quo
and that according to the Medical Report (J88) there were no visible
genital injuries. In essence, the cumulative effect
of these
factors warranted interference with the sentence imposed by the court
a
quo
.
[21]
In aggravation, it was submitted on behalf of the state that the
complainant was raped multiple times at different spots in
the veld.
She was at all times threatened with violence and made to undress
twice in front of strange men. These men
had sexual intercourse
with her without a condom. They dehumanised her in every
possible manner in the dark of the night
without any mercy.
[22]
It is indeed so that there was no Victim Impact Report placed before
the court
a
quo
.
The complainant testified that this incident had an impact that she
is now fearful of men. The fact that there were
no psychical
injuries is not enough to exculpate the assailant. See
S
v Maile
case number
A169/2012
at paragraph
20
.
Therefore I am of the view that the court
a
quo
did not misdirect itself on this aspect.
[23]
I am therefore satisfied that the court
a
quo
did not err on this aspect. This appeal ought to fail.
ORDER
[24]
I make the following order
Appellant Number 1
1.
The
appeal is upheld.
2.
The
conviction and sentence are set aside.
Appellant Number 2
1.
The
appeal against both conviction and sentence is dismissed.
_______________
MATHEBULA,
AJ
I
concur
______________
C.
REINDERS, J
On
behalf of appellant:
Mrs L Smit
Instructed
by:
Legal Aid
Bloemfontein
On
behalf of respondent: Adv. AM
Ferreira
Instructed
by:
Department of Public Prosecutions
Bloemfontein