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[2016] ZAKZPHC 67
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Mpontshane v S (AR531/14) [2016] ZAKZPHC 67; [2016] 4 All SA 145 (KZP) (1 August 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION,
PIETERMARITZBURG
CASE
NO: AR531/14
DATE:
01 AUGUST 2016
In
the matter between:
BONGANI
THULANI
MPONTSHANE
.........................................................................
APPELLANT
V
THE
STATE
....................................................................................................................
RESPONDENT
ORDER
The
following order is granted:
1.
The appeal against conviction and sentence to life imprisonment on
counts one and two of rape is upheld.
2.
The order of the trial court on these counts is substituted as
follows:
‘
The
accused is acquitted of the charges in counts one and two.’
JUDGMENT
D.
Pillay J (A.N Jappie JP et T.S.I Mthembu AJ concurring)
1.
The appellant was convicted on two counts
of rape and one count of theft in the Regional Court. He was
sentenced to life imprisonment
on each count of rape and to a term of
four years imprisonment for housebreaking with intention to steal and
theft. This appeal
against the convictions and sentences on the rape
counts proceeds with the leave of the trial court.
2.
The state’s case was that in the
early hours of 13 October 2001 the appellant broke into the home of
the complainants. He
raped the first complainant who when she was
testifying almost three years later was thirteen years and in grade
eight, and the
second complainant who was eleven years and in grade
six. The appeal against conviction proceeds on three grounds.
3.
Firstly, the trial court did not ascertain
that the child complainants understood the difference between truth
and falsehood; it
did not administer the oath and warn the
complainants properly. What did the trial court actually do?
4.
In respect of both children the magistrate
enquired whether they knew and understood the importance of taking
the oath. He ascertained
that they understood the difference between
truth and lies. They said that they would get into trouble or be
punished if they lied.
In the case of the first complainant she
understood the nature and importance of the oath. The second
complainant understood the
nature and importance of the oath. He then
administered the oath to the first complainant and admonished the
second complainant.
5.
In
the circumstances I find that the trial court satisfied itself that
the complainants were able to distinguish between truth and
falsehood. Accordingly it found both complainants to be competent
witnesses. The approach that the trial court adopted in testing
the
competency of the child witnesses is unassailable.
[1]
This ground of appeal must fail.
6.
Secondly, the appellant contended that the
trial court failed to warn itself sufficiently or at all to exercise
caution when dealing
with the evidence of young children especially
when identification was at issue. The appellant challenged the
complainants’
identification of him as the perpetrator.
7.
The state’s case was that the
complainants were able to identify the appellant when the electric
light was switched on albeit
briefly, and in the light of a candle.
There was also light from the street. The state witnesses knew the
appellant.
8.
The first complainant testified in chief
that she knew that the appellant lived a kilometre away from her
home. She had a long opportunity
to look at him before he attacked
her. She tried to recall who he was. She recognised him by his
bloodshot eyes and big cheeks.
The top of his head pointed up. She
was adamant that the appellant was her assailant. She did not shout
out his name whilst he
was attacking her because she was afraid that
he would realise that she recognised him and would stab her. When she
reported the
rape to her mother the latter enquired whether that
‘
Bongani’ was the appellant and
she replied ‘yes.’
9.
Under cross-examination she conceded that
she did not inform the police who her assailant was. She merely
described his facial features
and what he was wearing. Although she
alleged that she knew the identity of her assailant she did not
disclose this to the police
apparently because they did not ask her.
Later she said that she forgot to tell the police and remembered only
on her way back
from the police station. She recalled his name later
when she returned home. Further into the cross-examination she said
that she
did not know her assailant but it was not the first time
that she had seen him. She also recognised him by his voice. When she
telephoned her mother who was still in Johannesburg that morning she
informed her that she did not know the person who had raped
her. It
was only after her mother who had returned from Johannesburg had
asked her whether it was ‘Bongani’ that she
named the
appellant as her assailant. It took all of two days for her to recall
that it was the appellant.
10.
She knew the appellant for about five
years. She also knew his other name which was Thulani. It emerged for
the first time towards
the end of her cross-examination that she had
suggested to the second complainant that it was Thulani but the
latter had insisted
that it was Bongani. Eventually she conceded that
she did not know her assailant and that she was certain that it was
the appellant
only after the t-shirt was recovered from him.
11.
The second complainant did not identify her
assailant to the police because she alleged they did not ask her to
do so. She repeated
this evidence thrice under cross-examination.
When she was confronted with an extract from her statement to the
police that she
‘
did not see that
person because he was wearing a Khopha hat and it was dark’ she
conceded that she had not seen him. She conceded
that she told the
police that she did not know her assailant and could not identify
him. It emerged under further cross-examination
that it was her
mother who had asked her whether it was not the appellant and she
replied that it may be him. She also conceded
that the only reason
she implicated the appellant was because one of the boys had said
that he thought that he had recognised the
appellant’s voice.
In a further statement she made six months later she still referred
to her assailant as
‘
the suspect’
implying that she did not know his identity.
12.
Mr H a relative of the complainants was
also uncertain of the identity of the assailant even though he saw
him briefly when he switched
on the electric light. Hence he did not
tell the police that it was the appellant. It was much later that he
realised that it was
the appellant.
13.
According to the statement of Inspector
Mngomezulu Mr H had informed him early in the morning following the
incident that they had
been attacked by an
‘
unknown
male’, that he would be able to identify the suspect if he saw
him again but that he had seen the suspect for the
first time.
14.
According to Inspector Mngomezulu’s
statement the first complainant made the following statement to him:
‘an unknown
male went back to my sister. I can see that man if
I came across him, he covered his face with a woollen hat.’
15.
The first complainant also contradicted the
evidence of Inspector Mngomezulu who testified that he arrived at the
home of the complainant
to deliver Mrs K’s goods. Mr H had
informed him that the complainants had been raped. The first
complainant denied any knowledge
of Inspector Mngomezulu arriving at
their home. Her evidence was that she met the police on the way to
the police station.
16.
Inspector Mngomezulu was conscientious and
attentive to the needs of the complainants having escorted them to
the police station
and to the hospital and by securing them with
their neighbour until their mother, Mrs K returned. He was a
policeman of 16 years’
experience. He was unlikely to have
taken their statements incorrectly or haphazardly, especially as
regards the identity of the
assailant.
17.
Against this evidence I find that the
evidence of the complainants of the identification of the appellant
is fraught with contradictions
and inconsistencies. On its own it
cannot be relied on. Does the appellant’s admission in terms of
s 220
of the
Criminal Procedure Act, 1977
that the t-shirt was found
in his possession bolster the state case?
18.
The third ground of appeal was that the
state failed to prove recent possession by the appellant of the
t-shirt and radio belonging
to the complainants. The state failed to
prove when the complainants last had the t-shirt. The appellant
contended that he had
received it from V M, his cousin.
19.
V M who testified for the state could also
not say when he received the radio from the appellant. As for the
t-shirt he denied giving
it to the appellant. He saw the accused
wearing it on a date he could not recall but it was when the police
arrived in search of
the appellant at a family function. The
appellant went to the toilet when the police arrived. When he
returned from the toilet
he informed Mr M that he was scared that the
police would recognise the t-shirt. Mr M evidence also does not
support the trial
court’s finding of recent possession.
20.
The investigating officer Inspector Shandu
set out to arrest the appellant on the same day that the incident
occurred. It was then
that he recovered the t-shirt from the
appellant and the radio from Mr Mpontshane. However, the charge
sheet erroneously
reflects the appellant’s date of arrest as 10
October 2001 when the offence was committed on 13 October 2001. His
first appearance
is recorded as 3 October 2002 almost a year later.
Seemingly he was arrested a year later. It is not clear therefore
when the police
arrested the appellant and retrieved the
complainants’ property. More significantly, the state failed to
prove beyond a reasonable
doubt when and how the appellant came to be
in possession of the complainants’ property.
21.
If this finding implicates his conviction
on the third count of housebreaking with intent to steal and theft it
cannot be dealt
with in this judgment because that conviction is not
before us on appeal. Nor did the appellant petition against the
refusal of
leave to appeal on that count.
22.
The appellant was not a credible witness.
For instance, he instructed his counsel to challenge the police
witness’s evidence
that he was hiding under the bed when they
found him. His counsel put to the police witness that he was behind
the door. The prosecutor
did not clarify in cross-examination what he
was doing behind the door. But the appellant contradicted himself
later. He testified
that his back was under the bed when the police
found him. He had forgotten that he had put to the police witness
about a year
before when the trial commenced that the police found
him behind the door and not under the bed.
23.
This supports the state’s evidence
per Mr Mpontshane and Inspector Shandu that the appellant was hiding
from the police. However
the fact that the appellant behaved
suspiciously by avoiding the police is not an indication on its own
that he had a guilty mind
because he raped the complainants. The fact
that the complainant’s t-shirt was found in his possession also
does not go to
proving his guilt on the rape counts because the state
failed to prove when and how he came to possess it.
24.
Although the appellant was not a credible
witness, he bore no onus of proving his innocence. The state failed
to discharge its burden
of proving the identity of the assailant
beyond reasonable doubt. The appellant’s admission that he had
the t-shirt also
did not assist the state in discharging its onus.
Conflating the appellant’s possession of the t-shirt and the
radio as confirmation
of his identity was a misdirection. So was the
failure to apply the cautionary rule in assessing the evidence of the
children.
However, these findings do not go so far as to say that the
appellant did not rape the complainants; it merely concludes that the
state failed to discharge its onus beyond a reasonable doubt.
25.
It was undisputed that the child
complainants had been raped. Hence two issues raise concerns.
Firstly, the child complainants testified
without the assistance of
intermediaries. There is no explanation why they were not so
assisted
.
In
DPP Transvaal
v
Minister
of
Justice CC
Case
CCT 36/08
[2009] ZACC 8
para 86-
. The CC
held:
‘
‘
[98]
Section 170A(1)
must therefore be construed so as to give effect to
its object to protect child complainants from exposure to undue
mental stress
or suffering when they give evidence in court. This
objective is consistent with the objective of
section 28(2)
as
understood in the light of Article 3 of the CRC to ensure that a
child’s best interests are of paramount importance in
all
matters concerning the child. In particular, it conforms to the
Guidelines which proclaim the right of child complainants to
be
protected from hardship and trauma that may result from their
participation in the criminal justice system.96 As these Guidelines
make clear, the protection of child complainants includes modified
court environments, making them child-friendly, allowing the
child
complainant to testify out of sight of the alleged perpetrator and
testifying with the assistance of a professional, such
as an
intermediary..’
It
explained
at length the rights of children
as being paramount. Therefore when children testify they should be
afforded the assistance of intermediaries.
26.
Secondly, the state failed to explain why
the forensic DNA evidence was not produced. Inspector Mngomezulu had
taken the two complainants
to the hospital where J88 medical report
forms were completed for each of them after they were examined.
Specimens on swabs had
been obtained from the complainants.
27.
In
circumstances in which the prosecution rests on the evidence of
children the state must obtain DNA evidence when samples are
taken
from these complainants. At the very least the state must account to
the complainants and the court whether samples were
tested and what
the results were. Fifteen years have passed since the samples were
taken from the complainants. Assuming that the
forensic laboratory
was unable to produce the results of its tests timeously to the trial
court sitting more than two years later
it should have applied to
lead fresh evidence to produce the results to this court,
irrespective of whether they were conclusive.
[2]
In
S
v Ndweni and others
1999 (2) SACR 230
at 230b-c Grosskopf JA held:
‘
The
dictates of fairness require that all relevant information bearing on
the applicants’ guilt or innocence should be before
the trial
Court to enable it to determine the true facts, lest there be an
injustice either to the applicants or the State.’
28.
S
v N
1988
(3) SA 450
AD at 458J-459B; 463C-464A was an appeal to reopen a rape
trial
de
novo
.
At the trial the prosecutor had the results of a forensic test of the
swabs and slides taken from the complainant. However he
had not
tendered it in evidence nor did he inform the defence attorney of its
existence and contents. On appeal his explanation
on affidavit was
that the report contained a negative result in that it was not only
inconclusive but neutral as to whether ejaculation
had taken place.
Corbett JA regarded the prosecutor’s failure to place the
affidavit before the court or at the very least
to inform the defence
of it as ‘an error of judgment and breach of his general duty
to disclose information favourable to
the accused… It was for
the Court, not the prosecutor, to evaluate the cogency of the
evidence.’
[3]
29.
Turning
to the merits of the application the Appellate Division pointed out
that the case law over the previous forty years showed
that in the
vast majority of cases applications to reopen a case had been
refused. When relief was granted it was usually when
the evidence
sought to be lead ‘related to a single critical issue.’
[4]
However
in that case the court considered the application for a fresh trial
de
novo.
But on the facts it refused the application
[5]
and dismissed the appeal.
[6]
30.
Would the production of DNA evidence
improve prosecutorial and adjudication services? Undoubtedly. As
objective scientific evidence
it would go a long way to assist
decision makers in determining vital questions of fact, especially in
sexual offences in which
complainants and accused are likely to give
unreliable versions either because they deliberately choose to
mislead or because of
a loss of memory and powers of recollection
fail. Institutionally, efficiencies in the criminal justice system
would improve remarkably.
Decision-making by prosecutors about
whether to prosecute or not, and the courts in assessing the
credibility of complainants and
accused would be more certain,
reliable and acceptable to the litigants and the community at large.
Producing DNA evidence could
corroborate either the version of the
defence or the state. It could ensure that an innocent person is not
sentenced to life imprisonment
and a guilty person is not set free.
An innocent accused would not have to face the trauma of a protracted
trial. A guilty accused
would be more inclined to reconsider his plea
thus sparing the complainant the trauma of reliving her ordeal.
Bearing in
mind that a huge proportion of the court rolls are
filled with rape and murder cases the savings gained from these
efficiencies
for court services would be great. These savings could
go to bolstering the medical and forensic services.
31.
On the authority of
S
v N
and possibly a constitutional right
to information it seems to me that an accused may insist on knowing
whether the state obtained
a forensic report on DNA evidence and what
the contents of the report are. Insistence by an accused in
appropriate cases on such
tests being conducted and on receiving such
reports could favour his credibility. A converse inference
unfavourable to the accused
may not be drawn as it would infringe his
right to silence. It must be remembered that DNA evidence is
circumstancial and may or
may not be conclusive proof that an accused
raped the complainant. These remarks are made in passing and with a
view to promoting
and encouraging efficiencies, justice and fairness
for complainants and accused alike.
32.
The appeal against sentence is well
founded. The charge sheet informed the appellant that he was being
prosecuted in terms of Schedule
2 of Part III of Act 105 of 1997.
Consequently if convicted of rape he could be sentenced as a first
offender to a term of fifteen
years imprisonment, as a second
offender to a term of twenty years imprisonment and as a third
offender to a term of twenty-five
years imprisonment. Section 51
(2)(b)(ii) prescribes a term of twenty not twenty-five years
imprisonment for a third or subsequent
offender. The appellant was
not informed that he faced a term of life imprisonment as prescribed
in Schedule 2 Part 1(c)(i) read
with s 51(1). To impose a term of
life imprisonment in these circumstances amounts to an irregularity
that must be set aside.
The
order I propose is the following:
1.
The appeal against conviction and sentence to life imprisonment on
counts one and two of rape is upheld.
2.
The order of the trial court on these counts is substituted as
follows:
‘
The
accused is acquitted of the charges in counts one and two.’
D.
Pillay J
I
agree
A.N
Jappie JP
T.S.I
Mthembu AJ
APPEARANCES
Counsel for the
Appellant : Advocate S.B Mngadi
Instructed by :
Durban Justice Centre
Tel:
(031) 304 0100
Ref:
P. Mkumbuzi-x558827115
Counsel for the
Respondent : Advocate Buthelezi
Instructed by :
The Deputy Director Public Prosecutions
Tel: (033) 336
9000
Ref:
Advocate Maphalala
Date
of Hearing : 25 July 2016
Date
of Judgment : 01 August 2016
[1]
Du
Toit The
Criminal Procedure Act Service
46
,
2011 23-24, 23-25;
ss 192
and
193
of
The
Criminal Procedure Act 51 of 1977
.
[2]
Section
19(b)
of the
Superior Courts Act 10 of 2013
empowers an appeal court
to receive further evidence. Subsection (c) empowers the court to
remit the case to the court of first
instance for further hearing,
with instructions regarding the taking of further evidence.
See The role, function, powers
and duties of the prosecution in Du
Toit et al
Commentary
on the
Criminal Procedure Act
service 54, 2015 22-3 to 22-10B.
[3]
S
v
N
at 463 E
[4]
S
v
N
at
458 J
[5]
S
v
N
at 465 C
[6]
S
v
N
at
459 E