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[2015] ZAGPPHC 99
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Marutla v S (A410/14) [2015] ZAGPPHC 99 (2 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, (PRETORIA)
CASE NO: A410/14
DATE: 2 MARCH 2015
NO REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
In the matter
between
MARUTLA,
SAMUEL
..........................................................................................
APPELLANT
And
THE
STATE
.......................................................................................................
RESPONDENT
JUDGMENT
MUDAU AJ:
[1] The appellant,
Mr Samuel Marutla, appeared before the regional court magistrate,
Pretoria, on a number of charges that include
robbery with
aggravating circumstances, rape and kidnapping. After a trial that
lasted a few days, he was convicted only in respect
of the rape and
kidnapping charges. Consequently, he was sentenced to eight (8) and
two (2) years respective terms of imprisonment.
The trial court
however, ordered that both sentences be served concurrently. The
effective sentence is therefore 8 years imprisonment.
In addition,
the appellant was declared unfit to possess a firearm. The appeal is
against conviction only with leave of the court
below.
[2] The sole issue
for determination by this court is whether the identity of the
appellant as the perpetrator of the crimes he
was charged with was
properly evaluated by the trial court. The fact that the crimes were
committed has not been disputed or seriously
challenged and can
therefore be accepted as common cause. The State in essence relied on
the version by the complainant and her
boyfriend, which is the only
evidence implicating the accused in the commission of the crimes. The
accused denied knowledge of
or having committed any of the crimes and
raised an alibi to which I shall revert in due course.
[3] The salient
facts of this matter, which are not in dispute, are the following. On
26 July 2009, the appellant, N M, and at about
18H30 was walking down
a street in Mamelodi with her boyfriend. The latter was accompanying
her home. Two men approached them and
forced the complainant into a
car parked nearby. She only knew one of them before the incident.
When the boyfriend tried to intervene
on behalf of the complainant,
he was threatened and told to keep away. The complainant was driven
away by the two men and taken
inside a room at the Mamelodi hostel.
Inside the room was another man on a separate bed who was then
excused. Only a candle provided
lighting inside the room. Of the 2
men who forcibly took her against her will, the driver of the car in
which they travelled, also
left the room. The driver was the man she
knew as Ntebe. She remained with the man armed with a gun. At
gunpoint, she was forced
to take off her sweater, whereas the man
took off her pants and underwear. She was made to put her hands on
top of the bed as the
man penetrated her vagina from behind with his
penis after putting a condom on. The rape was painful and took
approximately 30
minutes.
[3] Ntebe later
returned and took her together with his other friend, at the request
of the latter, to Denneboom to buy electricity.
As Ntebe's friend was
buying electricity, she had remained inside the car with Ntebe. It
was at that point that metro police officers
arrived in a vehicle and
asked Ntebe why he had parked his vehicle the way he did. She took
that opportunity to get out of the
car in which she was and went to
the Metro police to report the incident. Ntebe fled the scene and
left his car. She was taken
to the police station where the matter
was formally reported. Police went with her to the scene where the
rape took place. However,
the rapist escaped from the room through
the window .There, a firearm with 2 rounds of ammunition was seized
underneath the pillow
of the bed where the complainant was raped. It
is common cause that, the next day police also seized a further 39
rounds of ammunition.
[4] It is common
cause that no identification parade was held regarding this matter
before the trial was conducted. Before court,
the complainant
identified the appellant as one of the 2 man who forced her into the
car on the day of the incident. A crowd had
gathered by the time she
was being taken away, but this did not stop the two men. It is her
evidence that the appellant was the
man who raped her. Further that a
firearm was produced and used to threaten her boyfriend not to
interfere .She was aided in her
identification of the appellant by
moonlight during the initial stages of the incident. Inside the car
that was used to drive her
away, she was forced to sit at the back
seat with the appellant. It was at that stage that she got to know
the appellant by his
nickname, Mashabane, as the 2 men addressed each
other by their names. According to her, the candlelight inside the
room where
the rape occurred was sufficient for her to make a
positive identification of the appellant. During cross-examination,
she maintained
this version.
[5]
In her statement to the police, the complainant had described the
rapist as “dark
and
short’.
It
was suggested to her during cross-examination that the appellant’s
complexion is lighter than that of prosecutor, which
she confirmed.
She maintained however, that she was not mistaken about the identity
of the appellant. She further explained regarding
her statement that
the police officer, who took it down, was not conversant in her
language, which is Xhosa. She was under the
circumstances requested
to make her statement, in English which explains some of the
discrepancies in the said statement.
[6] The
complainant's boyfriend. Mr Samuel Tloubatla, testified and
essentially confirmed her evidence with regard to how the events
unfolded. He confirmed that the appellant, whom he knew before as
Mashabane. was one of the two men who forcibly took the complainant
away. He also knew the second man. Ntebe. as a local taxi driver, who
uses the same car involved in the incident as a taxi. The
appellant's
well-known in the area by his nickname, Mashabane. It is further his
version that not only did the two men push the
complainant but they
slapped her as well. This is consistent with the J 88 report wherein
it is noted that she had bruises on her
face.
[7] Mr Tloubatla
further testified that although he heard reference to a firearm,
contrary to what the complainant testified, he
was not pointed with
one. He however, and for that reason, believed that they had a
firearm although he never saw it.
[8] This body of
evidence was met by a bare denial by the appellant. Not only did the
appellant denied that he was at the scene,
he denied that he knew the
state witnesses, or for that matter, Ntebe. It is the appellant's
version that he stays at an address
in phase 1, Waterkloof, contrary
to an address reflected on the J 15 as number 13 Mamelodi hostel. He
was asked whether it is a
coincident that the complainant was raped
at the hostel and the address given is the same he responded:
"I
do not deny that
fact but the person who brought the police to the hostel is not the
complainant. He is the person whom I am staying
with at face (sic) 1.
He is the one or pointed out the police to me”.
This statement on
its own, suggests that the appellant was at the said hostel at some
point in time. He however, did not expand
his version in this regard.
He admitted that he was also known as Mashabane, the name that both
state witnesses also knew him by.
[9]
The alibi raised by the accused must be considered, not in isolation,
but in the context of the totality of the facts of this
matter. S
v
Trainor
2003
(1) SACR 35
(SCA)
para [8]-[9];
Crossberg
v S
[
2008]
ZASCA
13
.
[
[2008] ZASCA 13
;
2008]
3 ALL SA 329
(SCA)
para [121]). In
Sithole
v S
(868/11)
[
2011]
ZASCA
85
(31
May 2012), the Supreme Court of Appeal held:
"A court
does not look at the evidence implicating the accused in isolation to
determine whether there is proof beyond reasonable
doubt nor does it
look at the exculpatory evidence in isolation to determine whether it
is reasonably possible that it might be
true."
The
correct approach is set out in the following passage from
Mosephi
and others v R
LAC
<1980-19841
57
at
59 F-H:
“
The
question for determination is whether, in the light of all the
evidence dduced at the trial, the guilt of the appellants
was
established beyond
reasonable doubt. The breaking down of a body of evidence into its
component parts is obviously a useful guide
to a proper understanding
and evaluation of it. But, in doing so, one must guard against a
tendency to focus too intently upon
the separate and individual part
of what is, after all, a mosaic of proof. Doubts about one aspect of
the evidence led in a trial
may arise when that aspect is viewed in
isolation. Those doubts may be set at rest when it is evaluated again
together with all
the other available evidence. That is not to say
that
a
broad and
indulgent approach is appropriate when evaluating evidence. Far from
it. There is no substitute for a detailed and critical
examination of
each and every component in a body of evidence. But, once that has
been done, it is necessary to step back a pace
and consider the
mosaic as a whole. If that is not done, one may fail to see the wood
for the trees (Quoted with approval in S
v Hadebe & others
1998 (1) SACR
422
(SCA
)
at
426f - h; see also
S v Mbuli
2003
(1)
SACR 97
ÍSCA)
para
57).
"
[10]
A little over 60 years ago, in R v Biya
1952
(4) SA 514
(A)
at 521C-D Greenberg JA said:
“
If
there is evidence of an accused person's presence at a place and at a
time which makes it impossible for him to have committed
the crime
charged, then if on all the evidence there is a reasonable
possibility that this alibi evidence is true it means that
there is
the same possibility that he has not committed the crime'.’’
[11]
In this matter, the court a
quo
was
alive to the fact that with regard to the actual rape, the
complainant remains a single witness whose evidence of necessity
had
to be treated with the necessary caution. However, the court found
that the probabilities were in favour of the complainant
with regard
to the question of identification that although it was getting dark,
she sat in close proximity inside the car with
the appellant. In
addition, not only was she aided by moonlight, the candlelight was
sufficient inside the room where the rape
occurred. It is clear that
the trial court took into account the cautionary approach with regard
to the question of identification
as alluded to by Holmes JA in S v
Mthetwa
1972 (3)
SA 766
(A)
at
768A-C. (S v Ngcamu
2011
(1i
SACR
1
(SCA)
para
10 and Mohammed v State
(605/10)
r20111
ZASCA
98 (31 May 2011)
para
5).
[12] The court a quo
also found that the evidence of the complainant was materially
corroborated by the evidence of her boyfriend
who placed the
appellant at the
scene of crime regarding the kidnapping charge. It is inherently
improbable that the lead characters would have
exchanged hands under
the circumstances. The probabilities are that the same men who
kidnapped the complainant were with her until
the police came into
the picture. The contradictions alluded to in the version by the
witnesses when the events unfolded are with
regard to detail and not
central to the material issues regarding the incident. This is borne
out by the fact that the complainant
never mentioned in her testimony
that she was slapped, yet her boyfriend did, as supported by the
medical report. She saw that
the appellant had pointed her boyfriend
with a firearm and yet he only heard reference to a firearm being
made. This cannot constitute
a material contradiction regard being
had to the fact that a firearm was later found by the police on a bed
on which the complainant
was raped.
[13]The
appellant’s alibi lacks detail. Neither is the alibi supported
by any objective facts. The only inference that can
be drawn from the
appellant’s failure to advise the police, at the earliest
available opportunity and also during his bail
proceedings is that
the alibi had no truth in it at all (Thebus and Another v S
(CCT36/02)
[2003] ZACC 12:
2003 (6) SA 505
(CC):
2003 (10)
BCLR
1100
(CC) (28 August 2003)
.
As against the good qualities of the state's case, the accused's bare
denial cannot stand and it was in my respectful view, correctly
rejected as false by the trial court.
[14] In the
premises, I propose the following order:
1. The appeal
against conviction is dismissed.
MUDAU TP
ACTING JUDGE OF THE
HIGH COURT