About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 32
|
|
Msibi v S (A909/2013) [2015] ZAGPPHC 32 (2 February 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA (GAUTENG DIVISION: PRETORIA)
CASE NUMBER:
A909/2013
DATE: 2 FEBRUARY
2015
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
In the matter
between:
JABULANI
SAMUEL
MSIBI
.....................................................................................
Appellant
and
THE
STATE
..............................................................................................................
Respondent
JUDGMENT
JANSE VAN
NIEUWENHUIZEN J
[1] The appellant
was convicted on a count of kidnapping and a count of rape in the
Secunda Regional Court (Mpumalanga Division)
and sentenced to an
effective 18 years imprisonment.
[3]
The court
a quo
granted
leave to the appellant to appeal against the convictions.
GROUNDS OF APPEAL
[4]
During argument, Mr Moeng, counsel for the appellant, attacked the
finding of the court a
quo
in
respect of the identity of the appellant. According to Mr Moeng, the
evidence did not proof beyond a reasonable doubt that the
appellant
was the perpetrator of the crimes he was charged with. In this
respect, Mr Moeng contended the court a
quo
erred
and as a result the appeal should be upheld.
FACTS
[5] I propose to
deal only with the evidence pertaining to the identification of the
appellant.
[5]According to the
complainant, a girl aged 13 year at the time, the appellant kidnapped
her on 9 June 2011 and raped her on 1
September 2011.
[6] On the first
occasion, the appellant was from school and in the company of a
friend of hers. Two children approached the complainant
and informed
her that her mother is calling her and that she should proceed to the
tar road. On her way to the tar road, a male
person endeavoured to
convince her that her mother has sent him and that she must accompany
him.
[7]
The complainant refused and was thereupon grabbed by the male person.
She testified that she
“
just
went black”.
When
she regained consciousness she was seated on a chair in a certain
room and was naked from the waist down. The complainant saw
her
attacker before she managed to escape.
[8] During
cross-examination and when asked whether she observed the area where
her first ordeal occurred, the complainant answered
as follows:
“
When
I
was
escaping from the
house the first time, leaving this house, I could look at the house
and see in which area is it and then when
he took me back there I
could see it
was
the same house. ”
[9] The complainant
described her attacker as a tall dark man with a scar on his
forehead.
[10] On 1 September
2011, the unknown male, once again accosted the complainant while she
was on her way home from a shop. On this
occasion, the male person
used a knife to overcome the complainant’s resistance and took
her to the same house. He raped
her.
[11] On this
occasion the appellant was conscious and spend approximately 30
minutes in the presence of her attacker. The complainant
therefore
had a good opportunity to observe her attacker. Both incidents
occurred during the day and visibility was good.
[12] Shortly after
the second incident, the complainant informed her mother of the
attacks on her and her mother took her to the
police station to lay a
charge against her attacker.
[13] The complainant
was able to take the police to the house where the incidents occurred
and upon arrival she pointed out the
room where she was raped.
The occupant of the
room was not at home and upon further questioning, the occupant’s
sister took the police to a certain
tavern. On arrival the occupant
was pointed out by the sister and identified by the complainant as
the appellant.
[14] In view of the
aforesaid facts, Mr Moeng was requested to explain why the
complainant would specifically point out the appellant’s
house,
if the appellant, according to his version has never seen the
complainant prio to the pointing out.
[15] Mr Moeng, quite
correctly, conceded that it is highly improbable that the complainant
would know exactly where the appellant
resides, if she was not taken
to his abode during the attacks on her.
[16] I pause to
mention, that the house had several rooms and that the complainant
without hesitation, immediately pointed the room
of the appellant
out.
IDENTIFICATION
[17]
The court
a quo
carefully
and cautiously examined the aforesaid evidence and found that the
identity of the appellant was established beyond reasonable
doubt. I
agree.
ORDER
In the premises, I
propose the following order:
The appeal is
dismissed.
N JANSE VAN
NIEUWENHUIZEN
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
I agree,
T P MUDAU
ACTING JUDGE OF
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
ADVOCATE FOR THE
APPELLANT
ADVOCATE S. MOENG
ADVOCATE FOR THE
STATE
ADVOCATE MENIGO
DATE HEARD: 30
January 2015
DATE OF JUDGMENT: 02
FEBRUARY 2015