Steward v S (CA&R83/15) [2016] ZANCHC 18; 2017 (1) SACR 156 (NCK) (9 September 2016)

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[2016] ZANCHC 18
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Steward v S (CA&R83/15) [2016] ZANCHC 18; 2017 (1) SACR 156 (NCK) (9 September 2016)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
HIGH
COURT OF SOUTH AFRICA
[NORTHERN
CAPE HIGH COURT, KIMBERLEY]
Case
No:
CA&R
83/15
Heard:
15-06-2016
Delivered:
09-09-2016
In
the matter between:
TEBOGO VERNON
STEWARD

Appellant
v
THE
STATE

Respondent
Coram:
Kgomo JP; Olivier J et Phatshoane J
FULL
BENCH APPEAL – JUDGMENT
Kgomo JP et
Phatshoane J
ORDER:
The
appeal is upheld.  The conviction and sentence are set aside.
INTRODUCTION.
1.
This
appeal was heard by Olivier and Phatshoane JJ on 14 March 2016 and
were unable to agree on the outcome and other crucial aspects.

The Judge President has in terms of s 14(3) of the Superior Court
Act, No 10 of 2013, therefore constituted this full bench to
re-hear
the appeal.  We (Kgomo JP and Phatshoane J) have read the
judgment of Olivier J and are concerned that he is unjustifiably

hypercritical of the evidence of the complainant and her mother, when
the problem lies elsewhere.  There are also a number
of
investigative, prosecutorial and adjudicative lapses that require
remedial action lest the administration of justice degenerate
into
disrepute.  As for the outcome we are now all agreed that the
appeal must be upheld for the reasons that follow.
2.
The
Regional Magistrate, Mr Clarke, sitting in Kimberley, convicted the
appellant, a 47 year old man, on two counts of rape and
acquitted him
on the kidnapping charge on 21 August 2015.  He was found to
have had penetrative sexual intercourse vaginally
and anally with Ms
J, a 16 year old girl, without her consent.  He was sentenced to
15 years imprisonment on each count which
he was ordered to serve
concurrently.  The appeal to this Court on both the conviction
and sentence is with leave of the court
a quo.  Only the
conviction merits our attention in that the appeal on sentence has
been abandoned, sensibly so.
THE WANTON DELAY.
3.
Before
embarking on the merits of the case a deeply troubling issue must be
addressed.  It concerns the wanton delay to finalise
the trial.
Section 35(3)(d) of the Constitution of the Republic of South Africa
Act, 108 of 1996, enjoins that an accused
person’s trial be
commenced with and concluded without undue delay.
4.
The
charges arose from an incident that occurred on 06 April 2012.
It took a series of postponements before any evidence,
that of the
complainant and her mother, was eventually adduced on 08 May 2013,
almost a year later.  Between the latter date
and 24 April 2015,
some two years later, followed at least 13 postponements.  On
this last-mentioned date only the evidence
of Dr Ignase Chika, who
examined the complainant on 07 April 2012, was adduced.  At that
stage a fourth prosecutor, Ms Faniyo,
had taken over the prosecution
and unexpectedly or even inexplicably closed the state case at that
point.  This precipitous
step, as will emerge later, caused
immeasurable complications.
5.
The
defence, not to be outdone by the state, meanwhile employed three
legal representatives consecutively with the initial attorney,
Mr
Ishmail, resuming the last stretch.   Several postponements
(from 24 April 2015) were once more squeezed out mainly
by the
defence.  The appellant and one of his witnesses, Mr Oduetse
Thomas Ntsie, testified on 09 July 2015 and the last defence
witness,
Mr Kagisho Desmond Sereo, did so on 05 August 2015.  Judgment
was delivered on 21 August 2015.
6.
Some
of the postponements were totally unjustified and amounted to
delaying tactics and an abuse of the process of court.
Going
into the reasons or lack thereof for these shenanigans would be
unhelpful and encumber the judgment needlessly.  However,
the
presiding officer should have directed the proceedings before him
with a firmer, but fair, hand.  Such an approach would
obviate
uncalled for applications for permanent stays of prosecution.
See
Bothma
v Els
2010 (2) SA 622
(CC); and
Sanderson
v Attorney-General, Eastern Cape
1998 (2) SA 38
(CC).  Needless enquiries in terms of s 342A of
the Criminal Procedure Act (CPA), 51 of 1977, into inordinate delays
into
disposing of or completing cases would also be avoided.
See
S
v Thenga
2012 (2) SACR 628
(NCK) and cases cited therein particularly
S
v Maredi
2000
(1) SACR 611
(T) and
S
v Jackson & Others
2008 (2) SACR 274
(C).  What happened in this case is strongly
deprecated and should not be repeated.  Those who are culpable
should account
to the bodies to which they belong.
THE
PLEA-EXPLANATION.
7.
In
light thereof that we differ, with respect, with the assessment and
approach of Olivier J it has become necessary to underpin
our stand
liberally with quotations from the recorded evidence; starting with
the plea-explanation, which went as follows:
7.1
On
06 April 2012 the appellant was in the company of his two friends Tom
Ntsie and Kagisho Sereo at his home, [...] N. A., G., Kimberley,
from
09h00 in the morning to 22h00 in the evening when they moved to
Park’s Tavern where they remained drinking liquor until
around
01h00, the morning of 07 April 2012.
7.2
At
01h00 that morning (of 07 April 2012) he left in the company of a
ladyfriend, whose name he could not recall, with whom he had
also
been drinking.  This lady hitched a ride from him.  He was
on his way to drop her off at her residence when the
police stopped
him and informed him that he was a suspect in a case of rape.
7.3
Coming
to the description that the complainant would have supplied to her
parents and the police that led to the appellant’s
apprehension
Mr Ishmail, his counsel, plea-explained further as follows:
“
Yes
[the accused has] a mole and wears specs but [he says he is] not the
only person wearing a mole or having a mole, wearing specs
[and]
driving a red Golf in G..”
The
mole is on
the
“right hand side on his face - nose on his cheek, on the right
cheek”
.
The red Golf “has tinted windows.”
7.4
“
Court:
So according to this explanation there is [another] person with a
mole and who is wearing spectacles and who was driving
a red Golf”
in G.?
Mr
Ishmail then confirmed: “Indeed so.”
7.5
The
defence therefore pleaded that this was a case of mistaken identity
and that, in any event, the appellant’s alibi is that
when the
rapes are alleged to have been perpetrated between 19h00 on 06 April
2012 and 01h00 the following day he was in the company
of the
mentioned people and could not have been involved.
7.6
This
plea-explanation in essence also encompasses what the appellant’s
grounds of appeal would subsequently entail.
THE
COMPLAINANT’S EVIDENCE
.
8.
The
complainant testified that her mother sent her around 19h00 to a
certain Mazwaks home, within walking distance, to borrow some
money.
She had walked for about 10 minutes when a red Golf car with
dark-tinted windows pulled up next to her.  The
driver alighted
and shouted “
hey
jy!”
at her.  She fled, tripped over a stone and fell.  Whilst
she was still sprawled the man grabbed hold of her, held a
knife
against her neck and threatened to stab her should she scream.
9.
The
assailant forced her into the backseat of the car, closed the door
and drove off to the Kimberley Municipal Dumping side, which
is
located outside the city along the Griekwastad road.  The trip
took about 15 minutes.  Along the way much as she attempted
to
open the door and escape she failed.  She screamed in the
process but the driver was unconcerned, apparently secure in
the
knowledge that she was locked in.  The sense that we gathered
from the evidence is that the vehicle was equipped with
a child-lock
which was engaged.  The appellant, through his legal
representative, admitted as much but denied that the child-lock
was
engaged during the evening in question.
10.
At
the dumping site the abductor moved to a secluded spot.  He
first raped the complainant vaginally on the backseat and thereafter

dumped her to the ground (“
op
die grond gegooi
”)
and raped her anally.  He left her on the scene and drove in the
Griekwastad direction, away from Kimberley.
She dressed up,
walked back to Kimberley and did not notice the vehicle overtaking
her back to Kimberley.  She reached home
around 01h00 on 07
April 2012 and made her initial report to her mother, who opened the
locked gate and door for her, that she
was raped.
11.
To
the extent that the defence suggested or implied that the fact that
the complainant did not observe the vehicle’s return
was
indicative that the driver’s final destination must have been
Griekwastad is, in our view, conjecture not borne out by
the facts.
Mr Nel, for the appellant, also ascribed something sinister to
the fact that the complainant only reached home
around 01h00 on 07
April 2012, almost at the time of the appellant’s arrest in the
company of his ladyfriend.
12.
If
the complainant was abducted around 19h10 and the abductor took 15
minutes to reach the dumping site, raped her inside and outside
the
vehicle then the whole episode ought to have been over by around
20h00, conservatively reckoned.  It is therefore wrong
to
suggest that the assailant was arrested shortly after the rape
ordeal.  The complainant testified (elucidation sought by
the
Court):
“
Nou
het u die kar dopgehou hoe lank hy in daardie pad ry? ---Nee meneer.
Het u nie dopgehou nie? --- Ja
meneer.
Is dit korrek om nou tot in Soul
City weer te kom moes u hele ent kom stap tot by die kruising weer?
--- Ja meneer.
Het u daardie pad gekom af stap?
--- Ja meneer.
Tot by die kruising? --- Ja
meneer.
Nou terwyl u gestap het, het u
gesien of die kar terugkom? --- Nee meneer.
En u het toe op gestap Soul City
toe u moes nou met die Barkley Pad [Barkley Road] ook op stap? --- Ja
meneer.
Terwyl
u op die Barkley Pad stap enigsins hierdie voertuig weer gesien? ---
Nee meneer.”
13.
Apparent
from the aforegoing is that the vehicle may have turned back
unnoticed.  Evident from the evidence is that the dumping
site
was notoriously within the knowledge of the Regional Magistrate, the
defence and state counsel.  There are a labyrinth
of ways,
by-ways and paths that the attacker had the option to resort to
return to the city or its suburbs or outskirts.
Kimberley is
not a one-horse or one-street town.
14.
If
the appellant was the attacker then from around 20h00 there was
certainly ample time to have been where he professed he was at
22h00
(at Park’s Tavern) or at 01h00 when arrested the following
morning.  In any event these juxtaposed times (from
22h00) are
not crucial in the matrix of this case.  The farfetched
conjecture by counsel on why it took the complainant about
five hours
from the rape scene (the dumping site) to reach her parental home
can, in our view, be responded to in short:
she was never
asked.
15.
On
the pivotal aspect of what the complainant conveyed to her mother
and/or her father and/or the police concerning the identity
of her
assailant the recorded evidence goes as follows:
“
Prosecutor
:
Ja? --- My ma het dadelik die polisie gebel.
Ja? --- Terwyl my ma die polisie
gebel het, het my pa gesê ek moet vir hom beskryf hoe lyk die
man en met watse voertuig hy
gery het.
Did
you describe him? --- Ja ek het die man beskryf, ek het my pa gesê
hy het nie hare op die kop nie en hy dra brille en
…
(unaudible)
[It
should read: “interruption”].
Hof:
Net stadiger
asseblief.
Prosecutor
:
Ja? --- En hy het `n moesie gehad aan die regterkant van sy wang
onder die bril.
Ja? --- My pa het my gevra hoe
lyk die voertuig.
Hof
:
Hoe lyk, sê u, pa vra hoe lyk die voertuig? --- Ja meneer.
Goed. --- En ek sê dit is
`n rooi Golf met donker ruite.  Hy het my gevra of ek die
registrasie van die kar gesien het.
Prosecutor
:
Ja? --- En ek het hom gesê nee.
Okay.
--- Die polisie het gekom.  Hulle het my weer gevra ek moet
beskryf hoe lyk die man.  Ek het gesê hy het nie
hare of
die kop nie.  Hy dra `n bril met `n moesie op sy wang aan die
regterkant.  Hulle het gesê ek moet die kar
se beskrywing
ook gee.  Ek het hulle gesê dit is `n rooi Golf met donker
ruite
.”
(Emphasis
added).
16.
This
description was transmitted via police-radio to the police who were
on patrol duty to look out for a suspect and a car of the

descriptions given.  As the police who received the report at
complainant’s home drove along, with the complaint and
her
mother as passengers, a message was relayed to them that a suspect
who fit that description and driving a similar vehicle had
been
stopped.  When they reached the place the complainant identified
him as her rapist.  The suspect was placed under
arrest and
taken to the local police station.  As already stated it was
then around 01h00 on 07 April 2012.
17.
The
criticism by appellant’s counsel with which Olivier J agrees is
that the complainant’s father to whom the description
of the
vehicle and the suspect was given did not testify and sought an
adverse inference against the state.  Olivier J’s

articulation of the criticism is partly quoted for proper
comprehension:
“
76.
The complainant’s evidence was that she had given the
description of her assailant to her father, while her
mother was busy
telephoning the police.
77.    The
complainant’s father was, however, not called as a witness.
Instead her mother was called.
She testified that the
complainant had actually described these features of her attacker to
her.  Her evidence therefore contradicted
that of the
complainant to the extent that she testified that the complainant had
actually given the description of the vehicle
and of the attacker to
her.
78.    ---.
79.
This contradiction casts some doubt over the question of what
features the complainant had actually mentioned
when she arrived home
and what features she may have only observed when the appellant was
displayed to her.”
18.
This
criticism is unjustified. The complainant’s mother’s
evidence has not and cannot be controverted that her daughter
also
described the features of the assailant and his vehicle to her.
The record also shows that the complainant described
her attacker’s
features and the vehicle more than once before the appellant’s
arrest.  Sight should not be lost
of the fact that the
complainant reported to her mother on two occasions that she was
raped before her mother summoned the police:
the first report which
was made whilst the complainant was outside the house must,
conceivably, have been perfunctory.  The
content of the second
report was not elicited by any party.  The complainant’s
mother was present when the description
was repeated to the police.
There is consequently no contradiction; even Mr Nel, the
appellant’s counsel,
relented by stating that he cannot press
the issue.  We advert to the complainant’s mother’s
evidence on this
issue as quoted at 26 below.
19.
Be
that as it may, while it may have been prudent to call the
complainant’s father, it is doubtful that the state had
something
to hide or that the complainant’s father’s
evidence would have advanced the state case or that any benefit would
have
redounded to the defence.  This view is informed by what
transpired at the close of the state case on 24 April 2015:
“
Prosecutor
:
Your Worship, the State on the last appearance also informed the
Court that we are intending to call the father of this
child, however
the state is no longer going to call the father of the child.
We are going to make that witness available
to the defence, hence
Your Worship, this will be the State’s case.
STATE CASE
Court:
State’s
case mister?
Mnr
Ishmail
:
Edele, ek sal graag wil met die pa van die kind gesels.  So as
die Hof vir my `n geleentheid kan
gee.  Ek sal vra vir `n
uitstel op hierdie stadium.”
The
Court duly granted the defence the indulgence sought.
20.
The
defence was furnished with the complainant’s father’s
statement, consulted with him on 04 June 2015 at court and
decided
not to call him as a witness.  In
S
v Van der Westhuizen
2011 (2) SACR 26
(SCA) part of the headnote at 26i - 27b captures
succinctly the remarks set out in paras 9-14 of the judgment:
“
The
concept of impartiality in the South African and international codes
and guidelines of prosecutorial conduct is not used in
the sense of
not acting adversarially, but in the sense of acting even-handedly,
ie avoiding discrimination.  The duty to
act impartially is
therefore part of the more general duty to act without fear, favour
or prejudice.  In an adversarial system
the prosecutor’s
function is essentially to discredit defence’s evidence for the
very purpose of obtaining a conviction.
Where an accused is
represented, it is not the function of a prosecutor to call evidence
which is destructive of the State’s
case, or which advances the
case of the accused.
The
duty of a prosecutor, to see that all available legal proof of the
facts is presented, is discharged by making the evidence
available to
the accused’s legal representatives; the prosecutor’s
obligation is not to put the information before
the court.
There is therefore no substance in the argument that the appellant
did not receive a fair trial because the State
called some witnesses,
and not others.”
(Emphasis
added).
21.
A
further attack on the prosecution case is that the police did not
obtain a statement from the appellant’s ladyfriend to
whom he
gave a lift home, nor did the state call her as a witness.  Even
though the appellant testified that he did not recall
or know her
name he knew where she stayed and so did Sereo and/or Ntsie.
Tracing her should not have been a problem.
The question is,
though, how relevant or material would this mysterious woman’s
evidence have been.  She, on the appellant’s
own version,
only came into the picture at 22h00 on 06 April 2016 when the
appellant shared drinks with her at Park’s Tavern
until 01h00
on 07 April 2016, when he was arrested.  There is hardly any
worthwhile dispute concerning what transpired during
those latter
timeframes.  The complainant was abducted and raped between
19h10 – 20h00.  This aspect, on the quoted
authority,
therefore need not detain us any further.
THE CONTRAST OF THE
COMPLAINANT’S DISCRIPTION WITH THE IPSISSIMA VERBA OF THE
APPELLANT.
22.
This
is a summary of the description that the complainant furnished to her
parents and to the police:
22.1
The
attacker had “no hair on his head”/ close-cropped her;
“
not
platgeskeer
”
(not completely shaven);
22.2
The
attacker wore spectacles;
22.3
He
had a wart (mole) on the right side of his cheek below the
spectacles;
22.4
He
drove a red Golf car with dark tinted windows;
22.5
The
car had a childlock which must have been engaged;
22.6
He
is light-complexioned (or “bright-coloured like me” she
said);
22.7
His
breath smelled of liquor, which the appellant acknowledged.
We
will deal separately with the T-shirt, the pair of pants that
appellant wore and the moustache that he sported or did not have.
23.
The
cross-examination of the appellant elicited the following responses,
broadly, on the features listed in para 22 (above):
“
Okay.
You also confirm that you were driving a red Golf that day? --- Yes.
You also confirm that it was
tinted, the windows were tinted black? --- Yes.
Also confirm you were wearing
tracksuit pants? Black tracksuit pants? --- Yes.
Can you still remember the brand
the tracksuit pants was? --- Pardon?
The brand? --- It was a Puma.
You also confirm that you had
spectacles on that day? --- Yes I do.
And your hair was also shaven, as
the way they are today? --- There was a bit – it was a brush
cut that day, it was not totally
shaven.
I can’t see clearly, is
your hair bald now or what? --- Now it is bald, but that day it was a
brush cut.  It was not
totally shaven.
But if someone sees you from far,
a person will think it is a bald  head? --- Most probably, I am
not sure.
Do you also confirm that you have
a mole in your face?  --- Yes.
Also confirm you were wearing a
t-shirt that day? --- Yes, not a       t-shirt,
it was a golf shirt.
Golf shirt? – Golf shirt.
Short or long sleeve? --- Short
sleeve.
What colour was it? --- It was
maroon and dark blue.
Now Mr
Steward, is there any other person in G. who drives a red Golf with
tinted windows?  That you know?  -- Not that
I know, not
that I know but as you can go around G. you will come across many red
Golfs with tinted windows because it is not only
mine.”
24.
The
cross-examination later continues:
“
You
also heard her testifying that she could identify you because you
were face to face with her.  Any comment? --- I heard
her saying
that, that is what she testified
.
Any comment on that? --- It is
not me, the person who she said it was.
And further heard her testimony,
she testified that she went home and told her parents and the parents
phoned the Police and within
a matter of a few hours, they found you
driving a Golf – red Golf and fitted the description that she
gave to the Police
and she also identified you as the person who
raped her. --- I heard her saying that.
Any comment about that? --- It
was not me.
Now sir, out of all the people at
G., she identifies you as the person with bald hair [“bald
head” it should be], spectacles,
having a mole, wearing
tracksuit pants, however she made a mistake to the Court to say that
it was a Nike tracksuit pants that
you were wearing.  And the
same person that she described to the Court - she gave the
description, don’t you find that
highly unlikely that it
wouldn’t be you? --- It was not me.  Even if - even if she
described that person as being me
who did that to her.
Now [is there a] person in G. who
has a bald [head], spectacles and a mole? --- It can probably be.
Because there are so many
of them in the location.
Have you ever seen such a person
at the location who fitted your description or who fits your
description? --- I have never seen
somebody like that, but with the
car there are many of them.
Yes sir, I
don’t have a problem.  There are a lot of people in G.
with red Golfs and tinted windows, but not a person
with a red Golf
with tinted windows who fits your description.  Have you ever
seen such a person other than yourself in G.?
--- No. ”
THE COMPLAINANT’S
MOTHER’S EVIDENCE.
25.
It
is convenient at this stage to deal with the complainant’s
mother’s evidence.  Undisputed or incontrovertible
aspects
testified to by complainant involving her mother will not be
revisited.  Complainant’s mother testified that
when her
daughter had not returned at about 20h00 from the errand that she had
asked her to run she went to Mzwaks place to find
out what could have
held her up. She established that her daughter never arrived at that
place.   At around 23h00 she
retired to bed.  It was
still on 06 April 2012.
26.
It
was only at around 01h00 on 07 April 2012 when her daughter turned
up.  She takes up the episode from there:
“
Ja? ---
Toe ek my kind sien wat sy aankom wat ek haar sien toe weet ek nie of
ek staan of ek val of wat maak ek nie want toe bars
ek in trane uit.
Hoekom het u so gemaak? ---
Mevrou [sy] was asvaal, asvaal.  Haar klere se kleur kon jy nie
eers sien nie so asvaal was sy
tot haar hare.
Ja? --- Toe begin sy te huil en
sy skreeu en sy huil  en ek huil en die kind, die
kleinsustertjie, huil ook.  Toe praat
sy toe sê sy  vir
my mamma ek is gerape.  Toe sê ek vir haar sit daar my
kind dat ek eers, dat jy eers afkoel
dat ek eers hoor jy kan die
woorde vir my mooi uitspreek dat ek kan mooi hoor wat het jy te sê.
Hoekom het u gesê dat sy
hierdie woorde mooi moet uitspreek? --- Mevrou sy was bewerig wat sy
by die huis kom want sy sê
toe sy aangekom het, het sy maar so
geloop en `n bietjie gesit, geloop en weer `n bietjie gesit want sy
was lam.
Ja? --- En toe het ek maar
opgestaan en vir haar `n bietjie suikerwater aangemaak en haar gegee
dat sy kan nou vir my mos nou sê
wat gaan aan.
Ja? --- So begin sy vir my sê
maar sy is gerape van `n man.
Kan ek so sê waar was u
eie man op daardie stadium? – My man was teenwoordig mevrou.
Wat sê sy  vir u?
--- Toe sê sy die man wat haar gerape het toe beskryf sy nou
vir my die man het `n moesie en
die man is lig van kleur en die man
het nie hare of sy kop gehad nie.  Dit is al wat sy in die
donker kon gesien het sê
sy en nou die klere wat die man
angehad het.
Kan u onthou wat sy toe gesê
het van die klere? --- Sy het vir my gesê dat die man `n Puma
broek aangehad het met `n
wit T-shirt.
Ja? --- En die kar het sy vir
my die kar beskryf.  Sy het gesê dit is `n rooi Golf met
swart vensters. So het ek my foon
gevat en so het ek nou die polisie
gekontak en dit was nie lank daarna wat ek gebel het toe kom die
polisie daar aan, [ek het nie]
die presiese tyd nie.
Ja? –
En so het die polisie die beskrywing en alles het hulle nou verder
aan met die kind nou gepraat en so het hulle nou
die man vasgetrek
.”
(
Emphasis
added).
27.
As
quoted above, the complainant’s mother testified unequivocally
that she only phoned the police after her daughter had recounted
her
ordeal and had described the distinctive features of her assailant.
The mother also partly supplied the answer why it
took her daughter
an eternity to reach home.  She observed that her daughter was
“
lam”
(she was “
lame”
,
meaning weak).  The reason why the evidence of complainant’s
father was dispensed with is therefore, somewhat, excusable.
In
addition, where is the alleged contradiction in the evidence of
mother and daughter? None whatsoever.
28.
The
complainant’s mother was more observant than the police.
She says further in her evidence-in-chief.
“
Ja?
--- So het ek maar net so `n oog oor die kar gegooi, toe sien ek dat
die kar is asvaal net soos [my dogter] asvaal is.
Watse
kar is dit nou? – Die rooi kar, die rooi Golf.”
29.
Under
cross-examination she went on to explain:
“
U
sê nou u het gesien die kar was vaal en die kind was vaal nou
verduidelik dit vir ons asseblief? --- Die, die tiep nê
was
stowwerig nê daardie selfde stof was op die kind se klere
gewees het wat op die kind se hare gewees het, orals op die
kind was
daardie stof gewees.
Ja? --- So daardie stof was op
daardie kar gewees daardie dag wat ons die man daar kry en dit was in
die môre.
Orals op die kar? --- Orals of
the kar tot op sy rims ook.
Het die beskuldigde verduidelik
dat daar was geen tiep stowwe op sy voertuig nie?  --- Nee dan
weet ek nie wat het geword van
dit nie dan het dit  geverdwyn.
Want daar was foto’s geneem
terwyl die voertuig daar in die (tussenbeide) --- Na dit, na, na
daardie kar skoongemaak is, nadat
daardie kar skoongemaak is , ja.
Ek gaan hierdie foto’s vir
u handig daarso en ek sal vir u wys op die foto’s wat in die
staat se … (tussenbeide)
--- Ek het daardie foto’s al
gesien meneer.
Hof
:
Mnr Ishmail is daar enige getuies wat, die staat gaan nie getuienis
lewer dat daar toetse gedoen is op hierdie stof wat
op die kar
moointlik was met die stof wat op die kind is nie.
Aanklaer
:
Edelagbare daar is nooit toetse gedoen nie.
Mnr
Ishmail:  Soos die hof behaag.  Dan het ek geen verdere
vrae nie.”
30.
The
Magistrate’s intervention was untimely, unnecessary and
unfortunate.  The complainant’s mother, who gave her

evidence on 08 May 2013, did not testify as an expert but what she
observed.  The Magistrate may have put off appellant’s

counsel but he certainly did not prevent him from pursuing that line
of cross-examination. What is noteworthy about the ash or

soil-material (“tiep stowwe”) that adhered to the
complainant’s clothes is that it moved Dr Chika to take a
sample thereof with a view to having it forensically analysed.
Mr Ishmail elicited the evidence on this aspect as follows
on 24
April 2015 (two years after complaint’s mother testified):
30.1
“
Doctor, the evidence from the Complainant is that she was
thrown down on the ground, near the dumping site.  Now you
examined
her that evening? --- Ja.
Did you see any dust particles on
the clothing or not? --- I did collect some sample of the –
soil samples and the grass.
There were some – I think if
I remember this case, there was some dirt on her – on her
panties an on her buttocks,
which [was] scraped into the white paper
that we are using, collecting samples or the foreign body.  If I
remember there were
some grass, some soil samples and I think some
dirt also which I collected and I sent that for forensics.”
30.2  The significance of what
the doctor would have achieved is illustrated in
S v Phallo
1999 (2) SACR 558
(SCA)
564a-f (paras 16-18) whereat Olivier
JA held:
“
[16]
The State called Mr Dixon, a registered professional natural
scientist, to testify as regards the soil he found on the clothes
of
the deceased and on the soil found at the scene where the deceased
was alleged to have collapsed. He found that:
'The condition of the deceased's
clothing indicates that the deceased repeatedly made contact with
soil that consists of a fine
red sand and that some of the sand was
wet enough to adhere as mud to some part of the clothing, especially
the jersey. The knees
were stained with red soil as if the deceased
was repeatedly in the kneeling position on the red soil. The shirt
front of the deceased
was heavily stained with red soil and the stain
marks indicate that the shirt front was repeatedly grasp(ed) as
though the deceased
was pulled about.'
[17] Dixon was adamant that the
soil on the clothing of the deceased could not possibly have come
from the spot where the appellants
say he had collapsed. He was also
adamant that had the incident occurred as averred by the appellants,
traces of soil from that
scene would have been found on the
deceased's clothing. In fact, no such traces were found on the
clothing or in the kombi - on
the contrary, soil samples collected
from the floor of the kombi in which the deceased was transported by
the appellants are similar
to the red soil samples collected from the
deceased's clothing.
[18] The
implication of this evidence, which was not disputed by the
appellants, is clear: either red soil on the floor of the kombi
was
transferred to the clothes of the deceased when he was placed on the
floor and transported to where Colonel Segone found the
appellants
and the body, or the red soil which clung to the clothes of the
deceased from some place, was transferred to the floor
of the kombi
when his body was placed there and transported. In either event, the
appellants' version is false.”
31.
The
complainant states that her rapist wore a white T-shirt and black
tracksuit pants.  However, when arrested the appellant
“
het
`n streep skipper aangehad met dieselfde broek.”
To her and her mother “
dieselfde
broek
”
were a pair of tracksuit pants of the Puma brand.  In her
statement to the police a day after the appellant’s
arrest (on
08/04/2012)  the complainant declared:
“
This
unknown man was wearing a white shirt sleeve T-shirt [should be
‘short sleeve -T-shirt’] and black Nike trousers.”
32.
On
elucidatory questions on this aspect by the Court the complainant
testified as follows:
“
Wat het
u seker gemaak dit was `n Nike teken, u sê mos u het vir die
polisie gesê dit is `n Nike teken? --- Ja meneer.
Ja goed.  Wat het u seker
gemaak dit was `n Nike teken? --- Die reguit merkie meneer.
Die reguit merk? – Ja
meneer.
U wys nou so `n regmerk? --- Ja
meneer.
Hof
:
Ja die kenteken is mos so `n regmerk.
Aanklaer
:
Ja dit is korrek edelagbare.
Hof
:
En is dit daardie regmerk kyk gewoonlik as die onderwyser onse boeke
merk  `n kruisie is verkeerd en dan die
regmerk dit is daardie
merk wat u gesien het? --- Ja meneer.
Kan u onthou, u kan sê as u
nie kan onthou nie, kan u onthou watter kleur kyk dit was `n swart
broek is dit reg so? --- Ja
meneer.
Watter kleur was hierdie merk wat
u gesien het? --- Wit meneer.
Nou by die
Puma waar kom u nou aan dat u nou vir die hof vandag sê dit is
`n Puma? --- Dit is soos ek vir meneer voorheen
gesê het dit
was net my verbeelding.”
[maybe
“
verwarring”,
a confusion].
33.
The
Magistrate found that the complainant must be believed that the
appellant got rid of his white T-shirt because it must have
got
soiled by the peculiar dump-soil or dump-ash
(“tiep
stowwe”)
on the complainant’s clothes.  Added to that is that the
complainant kicked her rapist.  If the appellant was the
rapist
then it would have been extremely dumb of him to go to a tavern with
soiled clothes.  To suggest that a person driving
a car from the
Municipal Dumping Site cannot reach, for example [...] N. A., G.,
Kimberley, (the appellant’s residence) from
around 20h00 –
22h00 or 01h00 (the following morning) amounts to an appellate court
anxiously seeking to “
discover
reasons adverse to the conclusions of the trial Judge”
or
presiding officer.  See
R
v Dhlumayo and Another
1948 (2) SA 677
(A) at 706 para 12.
34.
We
are satisfied, in fact it is undisputed, that the complainant
correctly described the Nike brand logo which, in South Africa
at
least, is so commonplace or notorious as to be judicially recognised.
Based on the aforegoing evidence we are prepared
to accept that
the complainant’s attacker wore a Nike brand pair of pants at
the dumping site and that she confused herself
and therefore
contradicted herself when she had sight of the Puma pair of trousers
upon the appellant’s arrest.    In
her evidence
she made it plain that the appellant “
het
die skipper gechange
.”
The importance of taking a photograph of a suspect to depict his/her
appearance (for injuries or lack thereof as
well) cannot be
overemphasized.
35.
As
far as the appellant’s moustache is concerned this aspect was
elicited by the defence in this fashion:
“
Nou
hierdie beskuldigde verduidelik dat hy hierdie snor vir jare al dra
sy baard om sy lip, boonste lip.  Die persoon wat vir
u
verkrag het daardie aand het hy `n baard gehad of nie? – Hy het
baard gehad.
Het hy `n snorbaard gehad soos
hierdie beskuldigde s’n? --- Ja meneer.
Het u dit vir die aanklaer gesê
of die polisie toe hulle vir jou gevra het? --- Nee.
Hof:  Maar is sy gevra
meneer?  U moet seker maar eers dit vasstel.
Mnr Ishmail:  Was u gevra
wat was kenmerkend van hierdie assailant of hierdie persoon wat
hierdie dinge aan u gedoen het?
Hof:  Het die polisie u
gevra wat het u gesien, waaraan kan u hom uitken? --- Ja meneer.
En wat het u, en dit is al wat u
gesê het? --- Ja meneer.
Enige iemand vir u op daardie
stadium gevra of hy `n snor gehad het?  --- Nee meneer.”
Counsel
for appellant argued that the confirmation of the moustache was given
by the complainant with the wisdom of hindsight.
Once more, an
upon-arrest photograph would have been decisive of this issue.
THE
DEFENCE CASE:  THE ALIBI.
36.
The
appellant regurgitated his plea-explanation and generally what was
put to the state-witnesses when he testified.  He says
that he
and his two friends, the alibi witnesses (Ntsie and Sereo) were in
each other’s company at his home from 09h00 to
22h00 on 06
April 2016.  They had breakfast consisting of bread, bacon and
eggs.  They also had lunch together.
All the while they
played music and drank Castle Lite beers.
37.
Ntsie
and Sereo arrived in the same vehicle, a Ford Bantam, driven by
Ntsie, says the appellant.  In all that time Sereo left
around
19h00 to visit his girlfriend and returned only about an hour later
(make it 20h00).  At 22h00 they left for Park’s
Tavern.
The rest of his version is known, with material portions thereof,
more particularly his cross-examination, being
encapsulated in paras
23 and 24 (above).  What is immediately stark is that Sereo
would not have known where the appellant
was at 19h10, when the
complainant was abducted, because he was with his girlfriend.
MR
NTSIE’S EVIDENCE
.
38.
Mr
Ntsie says that he remembers very well that 06 April 2012 was a Good
Friday.  He says in his evidence-in-chief he arrived
at
appellant’s home “
around
09h00 or 10h00
”
“
driving
my own vehicle” “a Mercedes Benz C180.
”
During cross-examination this version emerged.
38.1
“
Sir,
you informed the Court that you remember clearly as to what happened
that day right?  --- Yes, I informed the Court I
remember
precisely where I was during that day.
You further remember precisely
what kind of a car you were driving that day going to Mr Steward’s
house? --- Yes.
You informed the Court it was a
Mercedes? --- Yes.
Now
sir what is strange for the State is Mr Steward testified that you
arrived at his place driving a Ford Bantam. ---  It
can also be
possible because I also own a Ford Bantam.”
38.2
“
Okay,
now which one is it, were you driving a Ford Bantam or a Mercedes
Benz? --- Because it has been a while, a long time after
the
incident, it is also possible that I was driving a Ford Bantam
bakkie.
In other words, you don’t
remember what vehicle you were driving to Mr Steward’s place?
--- That is correct.
With whom did you arrive at Mr
Steward’s place with? --- I arrived there alone.
Sir, do you know Mr Kagisho
Sereo? --- Yes.
Is it your friend? --- Yes.
Is Mr Steward your friend also?
-- -Yes.
So all three of you are friends?
--- Yes.
Now Mr Steward testified before
the Court that you came with Mr Kagisho Sereo at his place in the
morning. --- As I said it has
been a while ago that is why I said
things that I can’t remember, if I found him there or did we
come together.
So
you can’t remember if you arrived there at Mr Steward’s
place with him or not? --- I do not – most of the time
I go
fetch him and most of the time I find him at Mr Stewards place.”
38.3
The
appellant gave the impression that throughout the day he whiled away
time with Ntsie and Sereo only and that the three of them
left for
Park’s Tavern at 22h00.  Friends are mentioned for the
first time in these terms by him (the appellant):
“
And
there were some friends that we joined to have some drinks
”.
On the other hand Ntsie is speaking of friends who were coming and
going.  He even says:  “
I
still remember I was with one of the other friends inside my motor
vehicle”,
when they left at 22h00 for Oupa’s Tavern (apparently another
name for Park’s Tavern).  The trend with the latter
quoted
statement is that Ntsie still adheres to the Mercedes Benz story as
opposed to the Ford Bantam bakkie mode of transport.
38.4
According
to the appellant only Castle Lite was consumed but Ntsie starts with
Whiskey being consumed, as well as Castle Lite.
38.5
The
cross-examination of Ntsie continued:
“
You
informed the Court  that Mr – is it Kagisho Sereo arrived
late at Mr Steward’s place, do you still remember?
--- Yes, I
think so, he arrived late.
Okay then it means he could not
have come with you in the morning, am I right?  --- It is
possible because on the same street
Kagisho is having [his]
girlfriend there.  Sometimes Kagisho will say just drop me here
at my girlfriend’s place, I
am going to come.  Maybe it is
possible.
What time is late?  When you
say he came late? --- Around 14:00.
So he came around 14:00 around
22:00 at night you all drive to Park’s Tavern? --- As I said it
is correct. Kagisho will sit
with us and go out to [his] girlfriend
and come back again to sit with us.  Just like that.
You mean in general?  I am
talking about that day. --- Yes.  During that time Kagisho was
still together with that lady.
Where now? --- I mean that he was
still dating that lady.
Oh okay. Mr Ntsie, just
understand me, you informed the Court- you must just correct me if I
am wrong.  You informed the Court
that Kagisho Sereo came at
about 14:00 am I right?
In
the afternoon? ---  I estimated around there, I am not precise.”
38.6
Because
the gulf between the evidence of Ntsie and the appellant was gaping
more and more the prosecutor aptly summarised her cross-examination

in this manner:
“
Because
you can’t remember the exact car you were driving.  You
can’t remember if you arrived with Mr Kagisho Sereo
on the
morning.  You also cannot remember when did he leave.
--- That is correct Your Worship,
and also what is more dramatic, it  is about this one.
How
Mr Steward was accused or alleged in something actually where we were
during that time.
What did you eat at Mr Steward’s
house? --- I ate food, but I can’t remember what we ate.
Normally when we are
visiting his place, he cooks for us.
You
can’t remember what he cooked? --- No I can’t remember.”
38.7
“
Can
you remember what clothes [the appellant] was wearing that day? --- I
can’t remember.”
38.8
Because
of the dichotomous versions of the appellant and Ntsie the prosecutor
suggested that Ntsie spoke of a different day than
the date of the
incident (06/04/2012).
In
our view, it does appear so.
The
above extracts and analysis are clearly demonstrative that Ntsie is
an out and out liar.  He cannot remember anything;
and
contradicted himself and the appellant in just about everything he
said.  We are therefore, with respect, puzzled that
our brother,
Olivier J, could still find some corn within the chaff that Ntsie
brought to the barn.  He could not have been
with the appellant
and Sereo from 09h00 to 22h00.  The Magistrate correctly
rejected his evidence.
MR
SEREO’S EVIDENCE.
39.
Mr
Sereo essentially aligned himself with the appellant’s
evidence.  He arrived with Ntsie in the latter’s Ford

Bantam, driven by Ntsie, he says.  No, he did not arrive at
14h00, as testified to by Ntsie, but at about 09h00.  Well,
the
appellant may not have mentioned that there was whiskey but according
to Sereo one or more of them partook thereof.  Yes,
Ntsie may
have stated that there were people who came and went.  However,
he (Sereo) did not know them because they were appellant’s

friends.
40.
Strangely,
in respect of two of the people that Ntsie mentioned who visited the
appellant’s house Sereo responded as follows
under
cross-examination:
“
Do you
know a guy by the name of Magic? --- Yes, I know him.
Was he there? --- No I didn’t
see him.
Sizwe Mbi, do you know Sizwe Mbi?
--- Yes, I know him.
Did you also see him that day at
Mr Steward’s place --- No I didn’t see him there.”
It therefore
seems that names were just bandied about by Ntsie to obfuscate what
may or may not have transpired.
ASSESSMENT OF THE ALIBI
EVIDENCE AND THE DECIDED CASES.
41.
In
the assessment of the defence case, particularly the evidence of
Ntsie and Sereo, the following must be taken into account:
41.1
Upon
his arrest the appellant phoned his alibi witnesses, related to them
what happened and summoned them to the police station.
They
obliged.  They therefore knew all along that they were potential
witnesses, for the defence or the state.  It is
therefore not as
if, to their knowledge, nothing eventful happened during the night of
06/07 April 2012.
41.2
On
09 July 2015 when the appellant completed his evidence his counsel
applied for a postponement to adduce Ntsie’s evidence.

Ntsie was then present at court.  The prosecutor objected and
pointed out that there was ample time.  The Magistrate
agreed.
Ntsie testified and, as we have noted, was exposed as a liar.
41.3
On
09 July 2015, after Ntsie’s evidence, the case was postponed to
04 August 2015 for the evidence of Sereo.  On the
latter date
the case was postponed by attorney Mr Williams because Mr Ishmail was
reported to be sick, but was well enough to complete
the case the
following day (05/08/2015).  The contention by the state is that
Sereo opted to align his evidence with the appellant’s
because
the latter’s freedom was at stake.  What for us is
questionable is that the appellant, Ntsie and Sereo profess
to have
been in each other’s company for about 16 hours (09h00 on
06/04/2012 – 01h00 on 07/04/2012).  If the appellant’s

version is reasonably possible true, so must Sereo’s evidence
be despite some discrepancies.  Similarly, if appellant’s

evidence was fabricated Sereo’s would also stand discredited.
Where the evidence of the appellant and Sereo deserve
the strongest
criticism is that they vouch for the fact that they were in Ntsie’s
company from 09h00 to 22h00 at the appellant’s
home.  On
this crucial respect they lied.  There is no discrepancy in
their evidence where they allege that they were
together at Park’s
Tavern from around 22h00 onwards.  That part of the evidence is
unimportant because the complainant
had already been abducted and
raped between 19h10 and 20h00.
42.
The
problem in this case is that the state was derelict in its duty.
It appears that the police neglected to obtain the statements
of
Ntsie and Sereo as witnesses who could either vouch for the appellant
or disavow such extended time in his company.  The
police have
an obligation to investigate an alibi raised by a suspect.  The
earlier that is done the better, for reasons that
suggest
themselves.  See
S
v Mlati
[1984] ZASCA 88
;
1984 (4) SA 629
(A) at 632 A-D; and 640E-I.
43.
The
further problem is that the investigating officer should have been
called to explain whether the alibi was investigated, if
not why
not.  If the alibi was indeed investigated he/she had to explain
to the Court what the result thereof was.  In
S
v Nkosinathi Piyela and Others
,
Case No K/S44/1998, Kimberley, delivered on 02 November 1999
(Unreported), Kgomo J (as he then was) remarked as follows:
“
In
conclusion, I wish to make this general observation.  This is
the third case in a space of over a year in which at the end
of the
trial I have been left wondering whether alibis raised in court by
accused were known and investigated by the police and
if so why the
State did not adduce evidence accordingly.  If alibis are
properly investigated and evidence thereon presented
this could
obviate protracted and unseemly cross-examination of accused and
their witnesses and in fact discourage accused from
calling such
witnesses who sometimes perjure themselves with impunity and encumber
the record unduly.  Alternatively, the
prosecution of suspects
whose alibis are confirmed by police investigations could be
avoided.”
44.
For
purposes of this judgment we cannot emphasise enough that starting
with the police, followed by the prosecution authority
and
culminating with presiding officers (in the present scenario the
Magistracy), the need to familiarise themselves thoroughly
with the
seminal Constitutional Court judgment in
S
v Thebus and Another
[2003] ZACC 12
;
2003 (2) SACR 319
(CC) from 349c-354b (paras 59-78) concerning alibi
defences.  At paras 76-78 the Court held:
“
[76]
After his arrest, the first appellant was confronted by the police
with the allegation that he had been present at the scene
of the
shooting. After having been warned of his rights he was asked by the
police, prior to his arrest, what he had to say about
these
allegations. He chose to proffer an explanation, albeit a truncated
one. His response that the family was in Hanover Park
is hardly
consistent with the alibi subsequently asserted. The only explanation
he could give was that he was referring to his
family and not to
himself. This disingenuous explanation for the failure to disclose
the alibi when confronted with the evidence
against him can
legitimately be taken into account in the evaluation of the evidence.
Having regard to the fact that a late disclosure
of an alibi carries
less weight than one disclosed timeously, the cogency of Kiel's
evidence and the unsatisfactory nature of the
first appellant's
evidence, the trial Court was entitled to reject the evidence of the
alibi, and to convict the first appellant.
[77] The trial
Court properly convicted the first appellant on a consideration of
the totality of the evidence. The appellant's
explanation of why he
chose to remain silent, the lateness of the disclosure of his alibi
defence, the unacceptable evidence which
was tendered by two of his
witnesses and the cogency of the evidence tendered by Kiel taken
together, entitled the trial Court
to return a verdict of guilt
against the first appellant.
[78.] Such is
the adversarial nature of our criminal process. Once the prosecution
had produced sufficient evidence which established
a prima facie
case, the first appellant had no duty to testify. However, once he
had chosen to testify it was quite proper to ask
him questions about
his alibi defence, including his explanation on his election to
remain silent. When his evidence was found
not to be reasonably
possibly true, as did the trial Court, he ran the risk of a
conviction. Thus, absent a credible version from
the first appellant,
the version advanced by the prosecution, if found credible, was
likely to be accepted. In S v Dlamini and
Others
[1999] ZACC 8
;
[1999 (2) SACR 51
(CC)] Kriegler J emphasised the importance of freedom of choice in a
democracy. However, liberty to make choices brings with it
a
corresponding responsibility and 'often such choices are hard'.”
45.
In
the circumstances, and notwithstanding the state’s dereliction,
we find the alibi defence of the appellant to be false
beyond a
reasonable doubt.  An approach of a court, if an alibi is
rejected, is that it should treat such accused’s
evidence as if
he or she had never testified.  See
S
v Shabalala
1986 (4) SA 734
(A) at 736C-D where it was held:
“
It
was proved beyond any reasonable doubt that the appellant's alibi was
false. The effect of the falseness of an alibi on an accused's
case
is to place him in a position as if he had never testified at all.”
See
also
Thebus
and Another
(supra) at paras 76-78.
46.
The
dismissal or rejection of an alibi or any defence is, however, not
the end of the matter.  An accused person, it is trite,
has no
onus to prove his/her innocence.  It is sufficient if his
version of the events is reasonably possibly true.
In either
case the state bears the onus to prove the accused’s guilt
beyond a reasonable doubt.  The appellant’s
counsel, for
understandable and sound reasons, leaned heavily on
S
v Charzen and Another
2006 (2) SACR 143
(SCA) at 149g-h para 9 on pronouncements to this
effect:
“
[19]
This is inevitable, mainly because the only evidence the State called
about the robbery was the single testimony of the complainant.
There
was no physical evidence: not a fingerprint, not a recovered
cellphone, nor wallet, nor purse, nor 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.”
47.
Let
us now examine the aspects that have caused us to agonize long and
hard why, notwithstanding the complainant being such a good
and
honest witness, there still remains genuine lingering (and not
fanciful) doubts which say to us:  What if the wrong person
has
been convicted?  The Magistrate found that it was “too
much [of a] coincidence that [there was] another person that
fits the
exact description as given by the complainant.”
Indeed the appellant himself just about acknowledged
that “
his
identical twin”
,
who he is unaware of, was described by the complainant’s
parents and the police. Flowing from this conspectus of facts and

circumstances we suggested to appellant’s counsel, a stoical
debater who is not easily cowed, that it seems to us (at least
two of
us) that unless there was a conspiracy between the police, the
complainant and her mother to mislead the court by concocting
an
ex
post facto
description of the appellant then the appellant ought to be the
rapist. Surely, if they wished to conspire to implicate the appellant

falsely the complainant would not only have described the facial
features of the appellant that she is alleged to have copied but
she
would not have omitted to furnish the registration numbers
(particulars) that were staring at her where the appellant was
arrested.  Counsel conceded that there are no pointers to a
conspiracy.
WHERE
THE PROSECUTION IS FOUND WANTING OR THE MAGISTRATE’S
INTERVENTION WAS REQUIRED
.
48.
IN
THE FIRST PLACE:
the
complainant acknowledged, frankly, that she was short-sighted and
that she did not wear spectacles that evening because her
parents
could not afford them.  However, when she testified a year after
her ordeal she wore spectacles.   See
S
v Mthetwa
1972 (3) SA 766
(A) at 768A-C Holmes JA state:
“
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).”
49.
IN
THE SECOND PLACE:
the
complainant was attacked at 19h10 on 06 April 2012.  She says it
was dark where she was first accosted.  There was
evidently no
artificial light like street lights nor did she, to her credit as an
honest witness, suggest that the headlights of
the appellant’s
vehicle were of any assistance to her or enhanced her
identification.  The complainant goes on to say
it was also dark
inside the car and her assailant never looked back during the entire
drive to the City Dumping Site.
50.
IN
THE THIRD PLACE:
she
only managed to have a 3-second glimpse of her rapist, after he had
raped her vaginally inside the car when he dumped her to
the ground.
At one stage he lay on top of her and they were “
face-to
face
”.
The only assistive illumination was a half-moon or a waning moon.
On paras 49 and 50 (above) see
S
v Mthetwa
(
supra
).
51.
IN
THE FOUTH PLACE
:
the state failed to call one of the police witnesses to whom the
description of the assailant and his car were given at
the
complainant’s home.  The importance of this evidence lies
in the fact that, unlike the complainant and her mother,
unless it
was a public announcement over the police vehicle radio, only the
reported-to police officer would have been privy to
what the
arresting police officer conveyed to him or her.  Besides, it
was vital to call the police officer to complete the
chain of
communication and investigation.
52.
IN
THE FIFTH PLACE:
the
arresting officer or officers should no doubt have been called.
This became even more important because the complainant
was taken to
the appellant where she pointed him out as her rapist.  The
arresting officer(s) would have given an account
of the basis or
information on which the appellant was arrested.  Such evidence
would have eliminated the suspicion or suggestion
that the
complainant’s description of him was made
ex
post facto
when she gave her statement on 08 April 2012, a day after appellant’s
arrest.  We should not be over-fastidious and
take up the
attitude of an “
armchair
critic who is wise after the event and cloistered in an ivory tower”
by
placing obstacles in the paths of the police.  However, to avoid
a possible wrongful arrest and malicious prosecution suit
useful
guidance may be sought on how to go about in
Duncan
v Minister of Law and Order v Sekhoto
1986 (2) SA 805
(A) at 818G-H,
Minister
of Safety and Security
2011
(5) SA 367
(SCA) at 372H-373E and generally
Minister
of Justice and Constitutional Development v X
2015 (1) SA 25
(SCA).
53.
In
the sixth place
:
The vehicle
itself was part of the crime scene and therefore an exhibit.  It
was therefore correct that one of the police officers
drove it to the
police station and locked it.  What was impermissible and highly
irregular has been described by the ever
alert complainant’s
mother as follows:
53.1
“
Ja?
--- So is ons in die stasie, soos ons binne-in die aanklagkantoor is
toe arrive van die beskuldigde se familie.  Ek ken
hulle nie
maar soos hulle nou daar gepraat het, het ek maar net uitgefigure is
van die familie want die ander een het die sleutel
gevra en hy is toe
die sleutel gegee en hy is na die kar toe.  Ek kon nie sy gesig
sien nie want hy het `n kombers om gehad.”
The
“
hy”
should read “
sy”
because it is a reference to a woman.
54.2     The
car-keys were given by an unnamed police officer to the said lady
before the investigating officer
arrived but were handed to the
officer by the “
old lady”.
The complainant’s
mother was asked:
“
Hoe
lank sal u sê was dit vandat hierdie persoon die sleutel
ontvang het tot die sleutel weer teruggegee is? --- Ek sal sê

dit is min of meer as ek nou moet net skat rofweg dit is meer as `n
uur en `n half so, ja se tyd wat sy daar besig gewees het by
die
kar.  Ja `n uur en `n half.”
It was an awfully
long time for scavenging, unsupervised.
54.3
It need to be pointed out that Mr Ishmael, for the appellant, put to
the complainant’s mother
that the appellant did not know the
person or people who had access to the vehicle.  Asked by the
Court whether those are
the appellant’s instructions to that
effect, Mr Ishmael  intimated that it was not.  He refused
to take instructions
on the point but persisted in that line of
conduct.  This was clearly unethical behaviour.  No
unauthorised person should
have been allowed to contaminate the crime
scene by having access to the car.
54.
IN
THE SEVENTH PLACE
:
The complainant stated that she was raped at knife-point.  The
“
old
lady
”
and/or the appellant’s acolytes (Ntsie and Sereo whom appellant
summoned to the police station) could have removed
the knife or any
incriminating item such as a condom.
55.
IN
THE EIGHTH PLACE
:
The appellant was allowed to retain his cellphone with which he
summoned the people mentioned in para 54 (above).
The cellphone
should have been confiscated as an exhibit and examined by scrolling
through its data and to have the appellant’s
movements mapped
out.  This would also have indicated where he was at a
particular time.  See for example what was brought
to light in
S
v Oliphant
,
Case No K/S 38/2010, Delivered 03/05/2011 (Kimberley), Unreported,
Kgomo JP observed at paras 159 and 160 thereof as follows:
“
159.
At 09h19 the accused phones Rehana again to ascertain progress and
her whereabouts.  This is roughly
the time that Rehanna’s
mother sees her leave.  At 09h52, in other words 33 minutes
later, Rehanna phones the accused.
At 09h19 accused’s
reception station (base station) from which he makes the call, is
recorded as Kimberley West 3 (It is
in G.).  At 08h52 when
Rehanna phones the accused the call is transmitted from the same base
station (Kimberley West 3).
Incidentally, where the accused’s
wife phoned the accused in G. the call was transmitted from the same
base station (Kimberley
West 3).  This is merely to illustrate
that none of these calls were made from town [Kimberley, where he
claimed to have been].
160.
What is stated hereinbefore demonstrates that between 09h19 and 09h52
the accused and Rehanna were
in fairly close proximity to each
other.
”
56.
IN
THE NINTH PLACE
:
The police officer who handed over the car-keys to the “old
lady” should have been called to testify who she
gave the keys
to (the name) and what explanation this person gave for seeking the
keys and how long she was in possession of the
keys.  The
complainant’s mother’s evidence satisfies us that the
“
scavenger
”
and those in her company were closely connected to the appellant.
57.
IN
THE 10
TH
PLACE
:
It was put to the complainant and/or her mother and also in address
that no fingerprints were dusted for nor were any identifiable
ones
uplifted.  The “old lady” may have wiped them off or
even wiped the car clean.  These were contentious
issues during
the trial.  It was for the state to clear them up.
58.
IN
THE 11
TH
PLACE
:
The complainant was quite emphatic and positive that the appellant
raped her and that he “
changed
his shirt
.”
This should immediately have alerted the police that an urgent search
of his house for the items of clothing was
necessary.  Who
knows, they may even have come up with a pair Nike pants with “
tiep
stowwe
”
adhered to it.
59.
IN
THE 12
TH
PLACE
:
As pointed out in para 30.2 (above) the state failed to dispatch the
“tiep stowwe” material found on complainant
by Dr Chika
and observed by complainant’s mother on appellant’s
vehicle for forensic analysis.
THE MAGISTRATE’S
INVOLVEMENT.
60.
IN
THE 13
TH
PLACE:
The
Regional Magistrate did not help matters by over-indulging the
accused and the state with postponements, by curtailing the defence’s

cross-examination that was relevant and in respect of which fertile
ground was explored.  We must hasten to add, though, that
this
factor standing alone would not have vitiated the proceedings.
See:
Bernert
v ABSA Bank
2011 (3) SA 92
(CC) at para 35; and
S
v Rall
1982 (1) SA 828
(A).
61.
IN
THE 14
TH
PLACE
:
In light of a combination of the aforegoing factors the Magistrate
should, in the interest of justice, have exercised his
discretion in
terms of s186 or 167 of the CPA to call the investigating officer, at
the very least, to clear up those matters that
screamed for his
intervention including whether the officer investigated the alibi.
The evidence may have persuaded the Magistrate
to acquit the
appellant or have strengthened the trial court’s hand in
convicting him.  See:
R
v Hepworth
1928 AD 265
at 277.
62.
In
the end we are persuaded, very reluctantly, that it is too risky to
uphold the appellant’s conviction with so many unanswered

questions.  We agree with Olivier J, but based on our assessment
of the merits, where he states that “
had
the prosecution been conducted more effectively the eventual outcome
may have been different.
”
In
S
Kubeka
1982(1) SA 534 (W) at 538G-539B Slomowitz AJ, in a seminal judgment
that resonates with us even more currently, enunciated:
“
The
rule that the State is required to prove guilt beyond a reasonable
doubt has on occasion been criticised as being anomalous.
On the
other hand, the vast majority of lawyers (myself included) subscribe
to the view that in the search for truth it is better
that guilty men
should go  free than that an innocent man should be punished.
More especially is this so in [serious] cases.
It should be borne in
mind, however, that a Court seeks to do justice not merely to the
accused but to society as a whole. If then
the police do not fully
and properly investigate crimes, especially of the type with which I
am here concerned, as a result of
which insufficient evidence is made
available to the prosecution and in consequence put before the Court,
guilty men will go free,
not because of the existence of the rule to
which I have referred, but simply because cases have been
inadequately investigated.
The consequence will be that the
administration of justice will fall into disrepute. Wrongdoers will
be encouraged to carry on
their nefarious activities because of the
high probability that they are likely to be acquitted in an ensuing
trial (even if perchance
they should be arrested, which today seems
more unlikely than not), and the victims or their families will be
encouraged to take
the law into their own hands.”
63.
The
police and the state have failed the complainant, Ms J, her mother
who was on the verge of collapsing, her little sister who
cried
bitterly at the cadaveric (ghostly) sight of her ravaged sibling, the
father who must have been silently devastated and society
at large
that is running out of patience at such abject incompetence.
The truth is that the case was not investigated at
all nor was it
property prosecuted due to complacency, indifference and indolence.
May we never see those responsible for
this shoddy work in higher
office without accounting for their dereliction of duty.
ORDER:
1.
The
appeal succeeds.  The conviction and sentence are set aside.
2.
A
copy of this judgment must be furnished to:
2.1
The
Director of Public Prosecutions (DPP) (Northern Cape);
2.2
Provincial
Commissioner of Police;
2.3
The
President of the Regional Court (Northern Cape); and
2.4
The
Chief Magistrate (District Court), Kimberley.
__________________

__________________
F DIALE
KGOMO

V M PHATSHOANE
JUDGE
PRESIDENT

JUDGE
Northern
Cape High Court, Kimberley
Northern Cape High
Court, Kimberley
Olivier
J:
64.
As
is apparent from the majority judgment I had made a draft of my
judgment in this matter available to Kgomo JP and Phatshoane
J before
receiving their judgment.  I do not intend commenting on any of
the remarks and comments made by my colleagues in
their evaluation of
the evidence and in their findings.
65.
Subject
to the following qualifications I agree with their summary of the
evidence:
65.1
Insofar
as paragraphs 12 and 13 of the majority judgment are concerned, and
although it is in my view not by any means decisive
(as will be
explained below), I should point out that the passage of evidence
quoted in paragraph 12 of that judgment is preceded
by the following
questions and answers
[1]
:
“
Het
u opgelet hoe ver hy ry, het u gekyk waarnatoe hy ry, het u die ligte
sien wegraak of as u nie gekyk het nie u kan maar net
vir my ook sê
u het gesien hy ry Griekwastad se kant toe? == Ja meneer.
Hy
het nie omgedraai en teruggekom nie? == Nee meneer.
”
65.2
As
regards paragraph 16 of the majority judgment:
65.2.1
There
was no evidence by any police official regarding what information had
in fact been conveyed to the police official/s who eventually
stopped
the appellant’s vehicle, and more specifically whether that
information included the description of the suspect (as
opposed to a
description of only the vehicle).  In fact, the evidence of the
complainant suggested that the police official/s
that stopped the
vehicle had only been given a description of the vehicle
[2]
.
The police official/s who attended at the complainant’s home
(and who would have relayed the information to their
colleagues who
eventually stopped the vehicle) were also not called to testify on
whether the complainant had described to them
not only the vehicle,
but also the attacker himself (which is of importance when regard is
had to what follows concerning the complainant’s
initial
statement to the police).
65.2.2
That
the complainant had identified the appellant at the scene of his
arrest was not a coincidence and certainly not spontaneous.
She
had been taken there by the police, after being told that her
attacker had indeed been apprehended.  Her mother’s

evidence was that the complainant had in fact at the scene of the
arrest been taken to the appellant himself.  There she was
asked
whether the appellant was the attacker.
65.2.3
Lastly
I would add that not only the appellant was at the police station
that night after his arrest.  The complainant was
there too, and
statements were taken (presumably including the initial statement of
the complainant, to which I will revert below).
66.
The
appellant, in explanation of his pleas of not guilty to these counts,
explained that he had been driving a red Golf vehicle
with tinted
windows that night, but he denied having raped, or even encountered,
the complainant that night.
67.
The
appellant essentially raised an alibi defence.  He explained
that he had been at his residence with his friends, Mr O T
Ntsie and
Mr K D Sereo, until approximately 22:00 that night, when they all
left for a tavern. They, together with other friends,
including a
female friend of the appellant (Who later appeared to have been the
lady who was with the appellant when he was stopped
by the police),
spent the rest of the evening at the tavern.  At about 01:00 the
next morning the appellant decided to go
home.  His female
friend requested a lift home and the appellant agreed.  The two
of them left and he was about to turn
into the street where she
lived, when the police stopped his vehicle.
68.
As
far as the issue of identity is concerned, the prosecutor presented
only the evidence of the complainant and her mother. The
appellant
testified in his defence, and the evidence of Mr Ntsie and Mr Sereo
was presented on his behalf.
69.
The
Regional Magistrate found that the complainant had, in the report
made by her when she got home, described not only the vehicle,
but
had also mentioned that her attacker had no hair, that he was light
in complexion, that he had a mole on his right cheek, that
he had
spectacles on, that he smelled of alcohol and that he had worn a
white short sleeved T-shirt and black tracksuit pants.
70.
When
the appellant was arrested, he was found to have all these
characteristics, with the exception of the fact that he was wearing
a
striped shirt at that stage.
71.
The
Regional Magistrate found that this was too much of a coincidence,
that it had been shown that the appellant was the attacker
and that
accordingly the alibi defence had to be false.
72.
It
was also held that the appellant and his two witnesses had “
conspired
to deliberately mislead the Court by concocting false evidence
”.
This conclusion was based on findings:
72.1
that they could not remember things which the Regional Magistrate
would have expected to
have been “
imprinted
in their memories
”;
and
72.2
that the fact that Mr Sereo testified about which of Mr Ntsie’s
vehicles was used
by him that day, without having pertinently been
asked about that, was indicative of a conspiracy in this regard.
73.
At
first blush, and when approaching the matter on the basis that the
complainant had indeed mentioned all the detail concerning
the
personal features of her attacker after arriving back home, and
before having seen the appellant at the scene of his arrest,
there
would appear not to be any reason to interfere with the convictions.
74.
I
do, however, have a number of concerns.  The first one pertains
to precisely this question, namely what detail the complainant

tendered in her report.
75.
The
fact that the appellant was found to be driving a vehicle similar to
the one described by the complainant in her report, would
not in
itself have been significant enough to justify the inference, as the
only possible reasonable inference, that the appellant
had been her
attacker.  It is also clear from the judgment that it was the
presence of the other personal features which the
complainant had
according to her mentioned in her report that persuaded the Regional
Magistrate that it was not reasonably possible
that the police had
stopped the wrong person. It is necessary therefore to consider the
evidence in this regard carefully.
76.
The
complainant’s evidence was that she had given the description
of her assailant to her father, while her mother was busy
telephoning
the police.
77.
The
complainant’s father was, however, not called as a witness.
Instead her mother was called. She testified that the
complainant had
actually described these features of her attacker to her. Her
evidence therefore contradicted that of the complainant
to the extent
that she testified that the complainant had actually given the
description of the vehicle and of the attacker to
her.
78.
This
is a clear contradiction.  The fact that the complainant’s
mother testified that her husband had been present when
the report
was made, does not assist the respondent.  On the complainant’s
version her parents were not both present,
in the sense of listening
to her giving the description, since her mother was busy telephoning
the police when she gave the description
to her father.  It was
not the evidence of the mother that she had heard the description
while calling the police, and when
the description was actually given
to her husband.  That all three of them may at that stage have
been in the same house would
not remove this contradiction. The fact
remains that it was the complainant’s clear evidence that her
furnishing of the description
was directed to her father, and not to
her mother.
79.
This
contradiction casts some doubt over the question of what features the
complainant had actually mentioned when she arrived home
and what
features she may have only observed when the appellant was displayed
to her.
80.
The
presence of this contradiction is exacerbated by other factors. When
the complainant made a statement that same night, shortly
after the
arrest of the appellant, she quite clearly made no mention at all of
any distinguishing personal features of the attacker.
That must
be why, two days later, she made a supplementary statement in which
she dealt exclusively with this.  It does not
appear what
circumstances had led to the making of the second statement and,
importantly, at whose instance it happened.
81.
It
is so that the complainant testified that she had also described the
attacker to the police officials who arrived at her home
that night.
No police official was however called to corroborate this evidence of
the complainant.  Against the background
of the contradiction
between the complainant and her mother, as well as the apparent
absence of any description of the attacker
in the complainant’s
initial statement, the failure to present the evidence of the
particular police official/s is of some
importance.
82.
Even
in her supplementary affidavit the complainant said nothing about her
attacker having had a moustache.  On her own version
she also
never mentioned this to her father, or thereafter to the police.
When her attention was during cross-examination
drawn to the fact
that the appellant had a moustache, she insisted that her attacker
also had a moustache.  If so, why did
she not make any mention
of it when allegedly describing the personal features of her
attacker?  It would surely have been
a prominent feature.
It unfortunately raises the question whether her attacker had a
moustache at all.
83.
The
Regional Magistrate attempted to dispose of this issue by eliciting
from the complainant the response that she had never pertinently
been
asked, during examination in chief, about the presence or absence of
a moustache.  The fact remains, however, that the
complainant
had been asked by what features she had identified her attacker, and
that she had then failed to mention a moustache.
In fact, she had on
two occasions before being referred to the moustache pertinently been
asked whether there had been any other
personal feature of her
attacker by which she had identified him
[3]
.
84.
Also
she testified, in cross-examination, that as far as the face of her
attacker was concerned, she had been able to discern only
the mole
and the spectacles.
85.
This
is perhaps not surprising, given the circumstances under which the
complainant had to observe her attacker
[4]
.
Her initial evidence was that it had been dark and that there had
been no lighting, and that she had observed the attacker’s
face
for only about 3 seconds when he was lying on top of her, and after
she had wiped away her tears.
86.
It
was only when the Regional Magistrate, during the cross-examination
of the complainant, pertinently raised the possibility of
the moon as
a source of light, that the complainant for the first time testified
that there had been a waning moon.
87.
The
complainant contradicted herself and her statement about whether the
tracksuit pants of her attacker had been of the Puma or
of the Nike
brand.  What is perplexing is how the complainant would have
been able to see the logo on the trousers in the
circumstances
described by her.  Her evidence was that she had observed the
logo when the attacker threw her on the ground,
in other words after
having raped her in the back of the vehicle.  Did she manage to
observe this in the darkness of the rape
scene, by the light provided
by only a waning moon, in the moment when she was dragged from the
back seat and before being pinned
down on the ground?
88.
As
far as the issue of the brand name on the trousers is concerned it is
also interesting that the complainant’s mother, in
her version
of the description which the complainant had given, testified that
the complainant had said they were Puma trousers.
This would of
course be inconsistent with the complainant’s eventual version,
and her supplementary affidavit, that her attacker
had worn Nike
trousers. It must be kept in mind that the police had displayed the
appellant also to the complainant’s mother.
She would there
have seen that the name on the trousers was Puma, which would have
made it very easy for her to testify that the
complainant had
mentioned the name Puma when she described her attacker. Why would
the complainant, if she had indeed on the day
of the incident
remembered and mentioned the name Puma, two days later depose to an
affidavit saying that her attacker had worn
Nike trousers, and then
in her evidence eventually confirm  this?
89.
The
contradiction regarding the logo on the trousers of the attacker must
also be considered with the evidence about the shirt of
the attacker,
as compared to the shirt worn by the appellant at the time of his
arrest.
90.
The
shirt which the appellant was arrested in was completely different
from the one which her attacker had worn according to the

complainant.
91.
The
Regional Magistrate suggested that the appellant may have in the
meantime changed shirts because the white one may have become
dirty
in the struggle with the complainant.  This is blatant and
unfounded conjecture.  The possibility that the different
shirt
may indicate that the appellant was not the man described by the
complainant
[5]
was not sufficiently considered.
92.
In
any event, if the appellant’s clothes had become dirty in the
struggle, why would he not also have changed his pants?
93.
When
the appellant’s attorney wanted the complainant to comment on
the fact that the appellant had been arrested in a striped
shirt and
Puma tracksuit trousers, as opposed to the white shirt and Nike
tracksuit trousers which her attacker had according to
her worn, the
Regional Magistrate intervened, stopped this line of questioning and
said that the attorney could deal with this
in argument.
94.
It
must also be remembered that the complainant had last seen her
attacker driving off in the direction of Griekwastad.  He
was
alone at that stage and he was wearing a white short sleeved
T-shirt.  In all the time that she walked back to Kimberley
and
to her home, the vehicle never drove back past her again.
95.
Shortly
thereafter the appellant was arrested.  He was not alone.
He was accompanied by a lady friend.  That much
is common cause.
96.
Moreover
the appellant was wearing a striped shirt, or in any event a shirt
different from the one allegedly described by the complainant,
and
the appellant’s evidence that he was wearing Puma tracksuit
pants was never discredited.
97.
On
the complainant’s version there would be no apparent
explanation for this.  On the appellant’s version, on the

other hand, there is.  According to him that lady left the
tavern with him, shortly before his vehicle was stopped.
This
was corroborated in all material respects by Mr Ntsie and Mr Sereo.
98.
Although
the name of the lady was not mentioned in evidence, it appeared that
she was a neighbour of Mr Sereo.  The police
would also in all
probability have established her identity the night of the
appellant’s arrest.  Yet no attempt was
made by the
prosecution to present her evidence, and the Regional Magistrate
apparently also did not consider this possibility.
99.
If
the appellant, Mr Ntsie and Mr Sereo had concocted the story of how
they had been together that day and night up until 01:00
the
following morning, this witness would surely have been able to say
so.
100.
That
the appellant was giving the lady a lift home when his vehicle was
stopped, was never disputed.  If that is so, where
did the two
of them come from before he was stopped?
101.
The
complainant’s version offers no explanation for this.  On
her version, and for the attacker to have been the appellant,
he
would at some stage along the Griekwastad road have had to have
turned around his vehicle and he would have had to have driven
back
to Kimberley, where he then at some unknown stage changed clothes, or
at the very least trousers, and ended up in the company
of the lady,
all this at that time of night. Clearly the complainant’s
evidence did not rule out the possibility of her attacker
having at
some stage along the road to Griekwastad turned his vehicle around
and driven back to Kimberley, but this is not the
issue. The issue is
how he had then, in what on the complainant’s version could not
have been a very long time, ended up
not only in different clothing
but also in the company of another lady, whom he was on the
undisputed evidence at that stage taking
home.
102.
Then
there is also the fact that the complainant had, during
cross-examination, conceded that she may have been mistaken about the

identity of her attacker.  It was put to her that she could,
just as she had made a mistake with the brand of the trousers,
be
making a mistake with the identity of her attacker.  This was
then followed up with a simple question: “
Is
dit so dat u ‘n fout kan maak van hierdie persoon
”,
to which the complainant answered: “
Ja
meneer”
103.
When
the Regional Magistrate then for some reason intervened, the
complainant pretended not to have understood the question.
Then
follows these questions by the Regional Magistrate and answers by the
complainant:
“
Mnr.
Ishmael sê u maak ‘n fout, dit is moontlik dat u ‘n
fout maak dat dit nooit hierdie persoon is wat u daar
verkrag het by
die dumps nie, wat sê u daarvan? -- Ek weet nie seker nie.
Wat
sê u? -- Ek is nie seker nie.
Van
wat is u nie seker nie, of dit die persoon is of is u nie seker of u
‘n fout maak nie? -- Nee.
Maar
is u nie seker of u ‘n fout maak nie? -- Ja meneer.
So
sê u, u kan moontlik ‘n fout maak? -- Ja meneer.”
104.
The
Regional Magistrate, for some strange reason still not satisfied,
went on to suggest that the question in cross-examination
had not
been clear and eventually, and in fact in response to further and
quite leading questions by the Regional Magistrate, the
complainant
confirmed that she had not made a mistake.
105.
To
my mind this was a clear concession by the complainant, and a clear
indication of doubt on her part, and the Regional Magistrate
was
wrong to regard the complainant’s answers as the result of a
misunderstanding.
106.
The
complainant’s evidence was that she had suffered from poor
vision and that she had no spectacles at the time of the incident,

because they could not afford it. Against the background of this
evidence the following question and answer followed:
“
En
u sê nou vir die hof vandag dat u hierdie persoon uitgeken het
in die donkerte met swak oë daardie dag is dit wat
u vir die hof
sê? – Nee meneer.
”
107.
This
answer was in my view already a clear indication that the complainant
realised that the circumstances had not been conducive
to a reliable
identification and she was, at the very least, clearly hesitant to
persist in her identification of the appellant
given those
circumstances. This preceded her clear concession.
108.
Moreover,
it is very significant that the complainant’s concession
followed immediately upon having been confronted with the
fact that
the arrested person’s clothing had differed from those
described by her and the fact that the complainant had never
made any
mention of her attacker having had a moustache.
109.
What
is also significant is how the complainant eventually explained that
she was indeed sure that she was not making a mistake
in saying that
it was the appellant who had attacked and raped her. The Regional
Magistrate asked her why she was at that stage
saying that she was
sure that she was not making a mistake and the following appears from
the record in this regard
[6]
:
“
HOF
: … nou u sê mos nou u maak nie ‘n fout nie u is
seker hoekom sê u, u is seker? – Daar wat ons hom
gekry
het meneer daar wat die polisie gesê het hulle het die rooi
Golf gekry ons het aan die regterkant van die pad gestaan
hulle het
aan die linkerkant van die pad gestaan van die pad.
Ja?
– Toe het ek voor my, agter my ma gestaan toe staan hy so in
die lig in en die vrou toe kom die vrou om na hom toe, toe
staan hy
met die vrou toe sien ek hom.
Toe
sien u hom? – Ja meneer.
Dat
dit hy is? – Ja meneer.
”
110.
This
is a perfect example of why it is so undesirable that a suspect is
displayed like this to a witness who may later be requested
to make
an identification and to describe features. The complainant’s
answers  revealed that she was in actual fact
being influenced
by the observations she had made when she was deliberately given the
opportunity to view the appellant, with the
vehicle which fitted the
description of the vehicle of her attacker, and asked to confirm that
he was the attacker.
111.
Mr
Nel posed the rhetorical (and in my opinion valid) question why the
police had followed this procedure, which they would surely
have
realised could seriously compromise evidence of identification, if
the appellant had so clearly fitted a detailed description
which the
complainant had by then already given to them.  One possible
answer which of course presents itself is that the
police had at that
stage only been given a description of the vehicle, and not yet of
the suspect.  This would fit in with
the fact that, when the
complainant’s initial statement was taken shortly after that,
no description of the attacker himself
was apparently included in
that statement.
112.
The
way in which the prosecution was conducted left much to be desired:
112.1
Why was the evidence of the police official to whom the complainant
allegedly described her attacker
not presented, especially in view of
the contradiction regarding who the description of the assailant had
been given to?
112.2
Why was the evidence of the complainant’s father not presented,
not only because of the said
contradiction but also because he had
after all according to the complainant been
the
[7]
person to whom she had described the assailant? The fact that her
father was made available to the defence as a witness is irrelevant.

The defence bore no onus of proof. Could it be that his evidence
would have been inconsistent with that of the complainant and/or
her
mother? One does not know and to speculate about this would be
irresponsible.
112.3
Why was the evidence of the lady in the appellant’s vehicle not
presented?
112.4
In the appellant’s plea explanation it was stated that the
appellant’s attorney had advised
him that the DNA results were
“
negative
”.
What would this have meant?  Had no foreign DNA been found in
the complainant’s sample, or had the foreign
DNA that was found
not matched that of the appellant?  At a later stage,
however
[8]
,
the appellant’s attorney wanted to know whether the prosecution
had received the DNA report and requested that it be handed
in. The
prosecutor replied that the “
results
”
(presumably referring to the report) had not yet been received (which
would at the very least suggest that DNA samples had
indeed been
submitted) and the Regional Magistrate adopted the attitude that he
could not tell the prosecutor how to do her work.
In his address the
appellant’s attorney stated that “
There
was no DNA tests done
”
[9]
.
Whether or not DNA tests had in fact been done and, if so, what the
results were, was therefore not clarified. The appellant and
his
attorney had no duty to clarify this. The fact that what was said in
the plea-explanation regarding DNA may have differed from
what his
attorney said in later addressing the court on the merits can never
be seen as a contradiction on the part of the appellant.
His
plea-explanation was clearly to the effect that what he stated is
what he had been advised by his attorney.
112.5
Similarly the statement in the plea-explanation that “
no
fingerprints of the complainant was (sic) found
”
would in all probability have been based on information supplied to
the appellant by his attorney, who would have been privy
to the
contents of the docket. Insofar as this may have suggested that a
fingerprint examination of the vehicle had indeed been
conducted and
that identifiable prints had been found, it would on the face of it
be inconsistent with the attorney’s statement,
in addressing
the court, that “
no
fingerprints was (sic) lifted
”,
but the fact of the matter is that the plea-explanation did not state
that fingerprints had indeed been found. The appellant’s
own
evidence in this regard was that no fingerprints were lifted from his
vehicle
in
his presence
[10]
;
his evidence was not that no fingerprints were lifted from his
vehicle. This could easily have been clarified by the prosecutor.
If
fingerprints had indeed been found, but they did not belong to the
complainant, it may have raised the question why her attempts
to get
out of the vehicle would not have left a single fingerprint in the
vehicle.
112.6
The evidence of the complainant’s mother that when the
appellant’s vehicle was stopped
it was covered in dust, just
like the complainant was, and that the place where the rapes occurred
was also dusty, was a clear
attempt to incriminate the appellant.
When it was put to the witness in cross-examination  that the
appellant denied that
there had been “
tiep
stowwe
”
[11]
on his vehicle, the witness responded that the dust on the vehicle
must have disappeared; whatever this may have meant. When the

appellant’s attorney wanted the witness to look at photographs
taken of the vehicle, she said that she had already seen them
but
that they had been taken after the vehicle had been cleaned. It can
safely be assumed that the photographs referred to had
been taken by
the police while the vehicle was in their possession and custody. Why
would the police have washed the vehicle, or
have allowed it to be
washed? The prosecutor presented no evidence to clear this up and for
some unknown reason the photographs
were apparently not handed
in
[12]
.
Once again the Regional Magistrate intervened, this time by
suggesting that in the circumstances where there was no evidence
that
dust on the vehicle and dust on the complainant had been analysed,
the issue of dust on the appellant’s vehicle was
irrelevant, or
at least not worth pursuing, and the appellant’s attorney then
stopped questioning the complainant’s
mother in this regard. In
my view it would in the circumstances be unfair to have regard to
this part of the evidence of the complainant’s
mother.
112.7
The evidence of the investigating officer was never presented.
He or she would have been able
to explain why the appellant had been
exhibited to the complainant in this manner, as well as the
circumstances which necessitated
a supplementary affidavit by the
complainant, specifically to deal with the personal features of the
person who had attacked her.
113.
Against
this background I am of the view that the evidence presented by the
prosecution was not of such a nature and quality that
it could in
itself have justified the conclusion that the alibi defence was
false.
114.
The
appellant’s evidence in this regard was substantially
corroborated by that of Mr Ntsie and Mr Sereo.  What vehicle
Mr
Ntsie and Mr Sereo had arrived in at the residence of the appellant
during the course of that day
[13]
and whether they had arrived together, is completely immaterial.
115.
The
fact that there may have been minor and immaterial contradictions
between the evidence of the appellant and his two witnesses,
would
militate against the possibility of a rehearsed and concocted story.
Insofar as they pertained to the activities and
whereabouts of the
witnesses before the time of the incident they would also not really
be relevant.
116.
The
Regional Magistrate placed great emphasis on the fact that Mr Sereo
had, after an adjournment and after Mr Ntsie had already
contradicted
the appellant in regard to what vehicle of Mr Ntsie had been used,
and in response to a question:
“
Meneer,
hoe het jy gegaan na Mnr Steward se huis toe
”
responded
by saying:
“
We
were driving a black Bantam, along with Tom
(Ntsie)”
117.
The
Regional Magistrate drew the inference that the contradiction must
have been discussed during the adjournment and that because
of that
the witness had then, without pertinently being asked the question,
volunteered that they had gone there in Mr Ntsie’s
Bantam
vehicle.
118.
Again,
what vehicle of Mr Ntsie was used, is completely irrelevant.
119.
In
any event, I do not find the answer a strange response to the
question of how they went there, in other words by what means.

To have responded as the Regional Magistrate suggests he should have
done, namely that he went there with Mr Ntsie, would not have

explained how they went to the appellant’s residence and would
strictly speaking not have answered the question.
120.
In
my view the evidence of the appellant, Mr Ntsie and Mr Sereo should
not have been rejected on the basis done by the Regional
Magistrate.
121.
There
is also no basis for finding that the appellant had not disclosed his
alibi defence before his plea-explanation.  Both
Mr Ntsie and Mr
Sereo attended the police station the night that the appellant was
arrested. They were called by the appellant
and requested to go
there. Whether or not statements were taken from them does
unfortunately not appear.
122.
As
early as 13 January 2015, long before the charges were put to the
appellant, Mr Ntsie was warned by the Magistrate to attend
Court as a
defence witness on the remand date.
123.
In
his affidavit in support of his bail application, long before
pleading to the charges, the appellant stated that he had “
an
alibi to prove where (he) was at the time of the alleged rape
”
[14]
.
Whether or not he also disclosed this in a warning statement and, if
so, in what detail, is also not evident from the record.
What is,
however, clear is that the prosecutor, in addressing the Regional
Magistrate on conviction, never claimed to have been
taken by
surprise by the alibi defence, neither was this argued by the
respondent’s counsel at the hearing of this appeal.
124.
It
was also not the finding of the Regional Magistrate that the
appellant had not disclosed this defence timeously.
125.
In
cross-examination of the complainant the appellant’s attorney
put it to her that there were other vehicles similar to the
vehicle
of the appellant in the particular area, in other words red Golf
vehicles with tinted windows, and that in the street in
which the
appellant lived there were at least two red Golfs
[15]
.
Counsel for the respondent suggested that the appellant contradicted
these statements under cross-examination. The relevant questions
and
answers read as follows
[16]
:
“
Now
Mr Steward, is there any
other
person
in G. who drives a red Golf with tinted windows?
That
you know
?
–--
Not
that I know, not that I know
but as you can go around G. you will come across many red Golfs with
tinted windows because it is not only mine.
Especially
at your street, there is also another Golf with tinted windows? –--
Yes.
Which
is red? –-- Yes.
”
(Emphasis
supplied)
126.
It
is quite clear that these answers in no way contradicted the
statements. What the appellant said is that he did not know the

persons who owned or drove the many similar vehicles in G., not that
he did not know of similar vehicles in G. or in his street.
127.
In
furnishing a plea-explanation on behalf of the appellant his attorney
stated that the appellant had not been the only person
in G. with a
mole and spectacles and who drove a red Golf with tinted windows. The
appellant at the time confirmed what his attorney
had said. In his
evidence, under cross-examination, the appellant conceded that he had
never seen such a person himself. Whether
not having personally seen
such a person can be equated to not actually knowing of such a person
is possibly debateable and the
appellant was never asked to explain
what had been placed on record in this regard earlier. Even if it is,
therefore, assumed that
this amounted to a contradiction between the
plea-explanation and the appellant’s evidence, it would be
going too far to
say that the appellant had in cross-examination
“
conceded
that his claim of an identical man was false
”.
128.
I
realise that a court of appeal should not readily interfere with the
factual findings of a trial court
[17]
.
However, it will, and in fact should, be done where such findings are
clearly wrong
[18]
;
all the more so where such findings are premised on the recorded
evidence, rather than on demeanour
[19]
.
129.
One
cannot help but feel that, had the prosecution been conducted more
effectively, the eventual outcome may have been different,
but “
it
is better for ten guilty accused to go free than to have one accused
wrongly convicted
”
[20]
.
130.
In
my view the appeal against the convictions should succeed.
_________________
C
J OLIVIER
JUDGE
Northern Cape High Court, Kimberley
Counsel:
For
the Applicant:
Adv I.J Nel
Instructed
by:

Rick Ishmail Attorneys
For
the  Respondents:
Adv M. Makhaga
Instructed
by:

Director Public Prosecutions
[1]
Record: p75/8-13
[2]
Record: pp33/19-22; 55/17-19; 88/9-23
[3]
Record : p43/4 – 44/3; 51/24 – 52/10
[4]
Compare
Sv Matshivha
2014 (1) SACR 29
(SCA) para [23];
S v
Mehlape
1963 (2) SA 29
(A) at 32 A-B
[5]
If it is for the moment assumed that she did
indeed describe her attacker before the arrest of the appellant.
[6]
Record : p 61/25 – 62/11
[7]
As opposed to just another and additional person
who could testify about this.
[8]
Record : p 125
[9]
Record : p 232/14
[10]
Record : p 188/15 - 18
[11]
An apparent reference to the dust at the
municipal dump site.
[12]
Because they do not form part of the record.
[13]
Incidentally the incident occurred during the
evening and late night, and not during the day.
[14]
Record : p329
[15]
Record : p 63/9 - 15
[16]
Record : p 194/13 - 20
[17]
Compare
Kebana v S
[2010] 1 All SA 310
(SCA) para [12]
[18]
Compare
S v M
2006 (1) SACR 135
(SCA) para [40]
[19]
Compare
S v
Crossberg
[2008] ZASCA 13
;
2008 (2) SACR 317
(SCA) para
[149]
[20]
Ferreira v Levin NO and Others; Vryenhoek and
Others v Powell NO and Others
1996 (1)
SA 984
(CC) para [113]; See also
S v
Kubeka
1982 (1) SA 534
(W) at 538H and
S v Lesala
2009 JDR 0930 (NCK) para [26]