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2016
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[2016] ZAGPPHC 952
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Mokolone v S (A867/2015) [2016] ZAGPPHC 952 (17 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
REPUBLIC
OF SOUTH AFRICA
17/11/16
CASE NO: A 867/2015
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
THATO
THABANG MOKOLONE
Appellant
and
THE
STATE
Respondent
JUDGMENT
JANSE
VAN NIEUWENHUIZEN J
[1]
The appellant was convicted on one count of rape and one count of
robbery with aggravating circumstances. He was sentenced to
20 years
imprisonment on the rape charge and to 15 years imprisonment on the
robbery charge.
[2]
This appeal is, with leave of the court a
quo,
only against
conviction.
[3]
The complainant, a 36 year old female, was hiking from Daveyton to
her boyfriend in Delmas on 3 November 2013. It was early
evening and
on her way she accosted the appellant and his co-accused, who
suggested that they travel together. Along the way, the
complainant
was forced into a veldt and raped by both men. Her jewellery, cash,
cards and cellphone were also stolen.
[4]
The appellant pleaded not guilty to the charges and relied on an
alibi, to wit he was with his wife at their home on the evening
in
question.
[5]
It is common cause that the complainant was raped on the evening of
the 3rd of November 2013. It is furthermore common cause
that the DNA
results confirm that the appellant's co-accused was one of the
perpetrators.
[6]
The issue in dispute is the identity of the appellant. In this regard
the State relied on the evidence of the complainant, an
identity
parade and DNA results.
[7]
The DNA results indicated that the appellant's DNA appears in the
mixture of DNA in a 1 to 20 000 ratio. This is not conclusive
but,
indicates that the appellant is not excluded as a perpetrator.
[8]
The complainant's evidence in respect of the identity of the
appellant established that she had enough time to identify the
appellant and that the light, although not perfect, was sufficient to
make a reliable identification. Mr van As, counsel for the
appellant,
pointed to several instances from which it appears that there was not
enough light to facilitate a credible identification.
The
complainant's evidence should, however, not be seen in isolation and
it should be borne in mind that she, in the same circumstances,
was
able to positively identify the appellant's co-accused.
[9]
As alluded to
supra
the State also relied on an identification
parade. It is common cause that the appellant's co-accused was
positively identified
at the identification parade. According to the
evidence of the complainant she also identified the appellant at the
identity parade.
This is denied by the appellant.
[10]
Warrant officer Mbata conducted the identification parade and
testified that the complainant identified the appellant at the
parade. I have no reason to reject his evidence in this regard and
accept that he was pointed out as testified by the complainant.
[11]
Mr van As, argued in the
alternative
and in the event that the
court finds that the appellant was pointed out, which he still
denies, that no reliance can be placed
on the pointing out because
several irregularities occurred during the parade, to wit:
i. the appellant and his
co-accused appeared in the same parade whereas their general
appearance is not similar;
ii. the appellant was the
only person with a distinctly light complexion;
iii. no photographs were
taken at the parade;
iv. the persons at the
parade's numbers were not in sequence, leaving doubt as to which
person was identified.
[12]
The last
"irregularity"
is easily disposed of. When
the complainant pointed at the appellant, warrant officer Mbata
looked at the name of the person as
reflected on the pro forma and
confirmed that it was the appellant.
[13]
The other three irregularities relied upon emanates from the South
African Police Service's
"National Instruction 1 of
2007
on Identification Parades."
In each instance the
procedure followed at the parade deviates from the prescribed rules.
[14]
In view of the aforesaid irregularities, Mr van As, submitted that
the irregularities that occurred at the identification parade
is of
such a nature and extent that it affects the fairness of the
identification and greatly increases the opportunity for a wrong
identification.
[15]
Mr Jacobs, counsel for the State, submitted that the rules are not an
absolute standard, but rather a guideline to ensure fairness
and
reliability in the identification process. I agree. A court should
have regard to the totality of the evidence to determine
whether the
accused had a fair trial.
[16]
Should the State only rely on the evidence at an identification
parade, stricter compliance with the rules would naturally
follow. In
this instance, the State relies on other evidence as well, which
evidence is merely corroborated by the identification
parade
evidence.
[17]
It is common cause that the appellant and his co-accused knew each
other well and were in each other's company until late afternoon
on
the day in question. As indicated earlier, the State proved beyond
reasonable doubt that the appellant's co-accused was one
of the
perpetrators.
[18]
In order to escape the inevitable conclusion that the appellant was
the other perpetrator, the appellant relied on an alibi.
According to
his evidence his wife was not in the country at the time of the trail
and could not testify to corroborate his version.
[19]
It is trite law that there is no burden of proof on an accused in
respect of an alibi defence. The reliability of the alibi
defence
will be determined by the evidence viewed in its totality and the
State must at the end of the trail still prove the guilt
of an
accused beyond reasonable doubt.
[20]
The court a
quo
carefully examined all the evidence and
concluded that the State had proved the guilt of the appellant beyond
reasonable doubt.
I could not find any instance of misdirection in
the judgment of the court a
quo
and am of the view that the
appeal cannot succeed.
ORDER
In
the premises, I propose the following order:
The appeal against
conviction is dismissed.
__________________________
N
JANSE VAN NIEUWENHUIZEN
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
I agree.
__________________________
N
DAVIS
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
It is so ordered.
APPEARANCES
Counsel
for the Appellant: Advocate F Van As
Instructed
by: Legal Aid South Africa
Counsel
for the State: Advocate Jacobs
Instructed
by: The State