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[2015] ZAGPPHC 236
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Dick v S (A508/14) [2015] ZAGPPHC 236 (24 April 2015)
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Certain
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IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC
OF SOUTH AFRICA]
CASE NUMBER: A508
/ 14
DATE: 24 APRIL
2015
REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
GOODWIN
DICK
..........................................................................................................................
APPELLANT
AND
THE
STATE
................................................................................................................................
RESPONDENT
JUDGMENT
MAVUNDLA J,
[1]
The appellant an adult male 24 years of age at the time, now 28 years
of age, together with his co-accused 1 and 3, was convicted
by the
Regional Court in Klersdorp on count 1,
rape
(section
1, 56(1), 57, 58, 59, 60 and 61 of the Sexual Offences Act 32 of 2007
) read with read with s51
Criminal Law Amendment Act, 105 OF 1997
,
and count 2
robbery
with
aggravating circumstances and was sentenced respectively to life and
5 (five ) years imprisonment.
[2]
The appellant approached this court with the leave of the trial court
on appeal, against both conviction and sentence. The grounds
of
appeal are essentially premised on two legs, firstly, that the trial
court erred in finding that the State acquitted itself
in discharging
the
onus
resting
on it, to prove beyond reasonable doubt the identity of the appellant
as one of the complainant's assailants; secondly,
the trial court
misdirected itself in finding that the reason why the appellant's DNA
was excluded as the donor of sperms was because
complainant testified
that the appellant used a condom at the time of the commission of the
rape. The trial court erred in finding
that the State had proven the
guilt of the appellant beyond reasonable doubt.
[3] The appellant
was duly represented through the trial. He pleaded not guilty to both
counts and did not disclose his defence
but exercised his right of
silence. Needless to state that, he was forewarned of the
applicability of minimum sentences in respect
of both counts.
[4]
The State's case was premised on the evidence of the complainant Ms.
S[...] A[...] V[...], Mr. Gilbert Mothibedi; constable
Tebogo Justin
Kwate; and exhibit "C" which is the
s212
of the CPA
affidavit of Captain Matukudu Samuel Mashegoane who is attached to
the Biology Unit of the Forensic Science Laboratory
as a Senior
Forensic Analyst and a Reporting Officer holding a B.Sc. degree
specializing in Microbiology and Biochemistry and who
conducted the
DNA
an
analyses of the sperms uplifted with a swab from the womanhood of the
complainant and concluded that the DNA test results show
that the
semen of accused 1 and 3 were recovered from the private parts of the
complainant, and that the appellant was excluded
as a donor of the
semen found on the complainant. The Exhibit "C" was handed
in by consent.
[5] The facts of
this case, tersely put, are that on the 11 April 2010 at about 20:45
the complainant was returning from her friend's
place where she spent
the evening relaxing and drinking. According to her, although she
consumed five "dumpies" of Sarita,
she was not drunk. She
was walking alone, on her way home, when she was accosted in a
passage by three men who wrapped a towel
around her head and robbed
her at knife point of her money in an amount of R260, Nokia cell
phone, Adidas canvas shoes, earring
and a wig. She sustained cut
injuries on her palm and fingers. The three men blindfolded her with
the towel and carried her to
a shack which is used as a church. The
three men all took turns in raping her repeatedly, each one twice.
She first had a glimpse
to see that the men were three when they
tried to tie her with the towel. A distance away there was an Apollo
light which illuminated
the area up to the church which was about 300
meters away. The men removed the towel from her when they entered the
church. The
door to the church was open towards the Apollo light. Its
rays lit inside the church through the open door. She was undressed
and
the three men took turn in raping her. They had their trousers
pulled down to their knees and kneeled as they raped her. The
appellant
had dreadlocks and Chinese eyes. Accused 1 had a cap and
was dark in complexion Accused 3 had a camouflage top and was the
first
to rape her and did not use a condom. He was followed by the
appellant who did not wear a condom. After the appellant had sexual
intercourse with her, accused 1 then raped her without using a
condom. Thereafter accused 3 again raped her followed by accused
1
and last by the appellant. After finishing raping her, accused 3 took
her black and white, with white stripes Adidas shoes, earrings
and a
wig, and the three left. She walked out of the church and walked
towards her place, as she was crying. Along the way she
met Gilbert
to whom she reported her ordeal. He walked her halfway to her place
and left. She later saw Mr. Gilbert Mothibedi coming
with police. She
further testified that she was stabbed with a knife on her hand,
sustained injury on her mouth.
The complainant was
injured on her mouth, hand and on her foot and was walking with a
limp.
[6] Under cross
examination she said, inter alia, that the only source of light was
the Apollo light. When she was covered with
the towel she could not
see anything. However she unexpectedly pulled the towel up and turned
and the men moved around and came
in front of her and she then
managed to see them. The appellant searched her and took her Nokia
cell phone. When she tried to scream
accused 3 hit her with a fist
while accused 1 was holding a towel. She tried to scream and they
tied her with a towel. Accused
1 had white cap, white shorts and a
Dark T-shirt. The appellant was wearing a two piece of Dickey.
Accused 3 had dark brown camouflage.
The door was open. There was a
reflection of light going through the open door. She did not give to
the police the description
of the clothes the men were wearing, save
that they had a towel and took her tekkies.
[7] The evidence of
Mr. Gilbert Mothibedi was that on the date in question he was
residing at T Extension 6 in Khuma location. At
about 11 in the
evening he was at Cansas place watching TV with friends. He went
outside to remove laundry from the line when he
heard someone
screaming. He went outside in the direction from where the scream
came. In the street he met the complainant who
informed him that she
had just been raped by three people. The complainant appeared
frightened and was shaking. He noticed that
she the complainant was
limping. She gave a description of her assailants. Along the way they
met a police vehicle and they (presumably
he was with his friends)
took them to where the complainant was.
[8] Under cross
examination he said that the complainant explained to him that the
incident happened at the church premises. There
are flood lights
referred to as Apollo in that vicinity, illuminating with a yellow
light which was not very bright. The Apollo
light does not bring any
form of light in the church vicinity. Illumination in the vicinity of
the church is from the lights from
the houses around the area.
Although the complainant smelt of liquor, she appeared sober to him.
She informed him that she was
robbed of a towel, cell phone and cash.
She did not give any description of what her assailants were wearing.
He cannot recall
what the complainant was wearing. He recalls that
she told him that her assailants pressed a knife on her.
[9] Constable Kwate
who was patrolling with his colleague, went to look for the
complainant. On finding her along the way, she reported
to him that
she was raped by three men who took her items already mentioned
herein above, as well as the fact that the men had
also a towel.
Kwate left the complainant at the police station where she was
eventually taken to Dr. Rawat who examined her and
completed his
medical report which was handed in and accepted as J88. Kwate went to
a tavern which is not far away from the police
station, where he saw
three men sitting outside. On seeing him, one of the three men went
inside the tavern. Kwate found the two
men in possession of a towel
and the complainant's shoes, cell phone and, earrings. He arrested
these two who were accused 1 and
accused 3 and locked them up in his
police vehicle. He then entered the tavern and inquired about the man
he had just seen entering.
He was directed to an outside toilet next
to which he found the appellant in a squatting position and hiding.
He arrested the appellant
and took him together with accused 1 and 3
to the police station, where on seeing them entering, the complainant
pointed the arrested
trio as the men who had raped her. It is common
cause that there was no formal identification parade held.
[10] The defence of
the appellant was that on the day on the 10 April 2010 he went to
Jabulani tavern to play juke box. He proceeded
to one of the rooms
where there is a snooker table and found two men playing snooker. At
that moment he became pressed and went
outside to a place demarcated
for urinating, where he relieved himself. While he was urinating, he
heard a sound of a gun being
cocked behind him by a police officer
who asked him what he was doing. He responded by asking whether the
officer could not see
what he was doing. The officer pulled him up,
he (the appellant) then fell against a corrugated iron sheet. Another
police officer
came to the scene. The appellant was "roughed"
up and kicked. The police officers handcuffed him and took him to the
police van where he found the other two coaccused who were unknown to
him.
Under cross
examination he said that at the police station he was shown an
elderly lady after he was assaulted. He did not see the
complainant
at the police station but saw her for the first time in court. He
said that he did not see his co-accused at the tavern.
He denied that
the police officer who arrested him found him kneeling. He said that
he would not comment to the officer's evidence
that on his entry at
the tavern the appellant m oved from where he was seated and entered
inside the tavern. He conceded that the
officer arrested him at the
back of the tavern. The appellant did not call any witness and closed
his case after his testimony.
[11] The trial court
accepted the evidence of the State and rejected that of the defence
and convicted the appellant as charged.
[12]
It is
trite
that
the State bears the
onus
to
prove the guilt of an accused beyond reasonable doubt. The accused
bears no
onus
to
prove his innocence. It suffices if he gives an explanation, even if
the court does not believe him, if it is reasonable possible
true,
then he is entitled to an acquittal;
vide
S v Charzen and Another
2006
(2) SACR 143
(SCA), S
v
Mafiri
2003
(2) SACR 121
(SCA) at 125c-d. In the matter of 5
v
Van DerMeyden
1999
(2) SA 79
(WLD) at 80H-81C it was held that:
"The
onus
of
proof in a criminal case is discharged by the State if the evidence
establishes the guilt of the accused beyond reasonable doubt.
The
corollary is that he is entitled to be acquitted if it is reasonably
possible that he might be innocent (see, for example,
R
v Difford
1937
AD 370
especially at 373, 383). These are not separate and
independent tests, but the expression of the same test when viewed
from opposite
perspectives. In order to convict, the evidence must
establish the guilt of the accused beyond reasonable doubt, which
will be
so only if there is at the same time no reasonable
possibility that an innocent explanation which has been put forward
might be
true. The two are inseparable, each being the logical
corollary of the other. In whichever form the test is expressed, it
must
be satisfied upon a consideration of all the evidence. The court
does not look at the evidence implicating the accused in isolation
in
order to determine whether there is proof beyond reasonable doubt,
and so too does it not look at the exculpatory evidence in
isolation
in order to determine whether it is reasonably possible that it might
be true. In
R v
Hlongwane
1959
(3) SA 337
(A), after pointing out that an accused must be acquitted
if an alibi might reasonably be true, Holmes AJA said the following
at
340H--341B, which applies equally to any other defence which might
present itself:
'But
it is important to bear in mind that in applying this test, the
alibi
does
not have to be considered in isolation____The correct approach is to
consider the alibi in the light of the totality of the
evidence in
the case, and the Court’s impressions of the witnesses.
"
[13]
In
S v Shackell
2001
(2) SACR 185
(5CA) at 194g-i. the Supreme Court of Appeal cautioned
against the rejection of an accused person's version solely on the
ground
that his version is improbable and stated that:
"It is trite
that in criminal proceedings the prosecution must prove its case
beyond reasonable doubt and that the mere preponderance
of
probabilities is not enough. Equally trite is the observation that,
in view of this standard of proof in a criminal case, a
court does
not have to be convinced that every detail of an accused's version is
true. If the accused's version is reasonably possibly
true in
substance the court must decide the matter on the acceptance of that
version. Of course it is permissible to test the accused's
version
against the inherent probabilities. It cannot be rejected merely
because it is improbable; it can only be rejected on the
basis of
inherent probabilities if it can be said to be so improbable that it
cannot reasonably possibly be true."
[14]
The issue to be determined
in
casu,
is
whether the State has acquitted itself of the
onus
resting
on it to prove the guilt of the appellant beyond reasonable doubt.
The trial court in assessing the evidence before it must
look
holistically at the evidence of the State and that of the accused,
without compartmentalizing it; lest a distorted conclusion
is arrived
at.
[15]
It is trite that the evidence of a complainant in sexual related
cases, of a single witness, of identification witness, as
well as of
an accomplice, must be approached with a measure of caution. The
court may convict on the strength of the evidence of
a single
witness, who is satisfactory in all material respect or is
corroborated by something else outside the evidence; vide
R
v Mokoena
1956
(3) SA 81
(A) at 85—6; 5
v
Lesedi
1963
(2) SA 471
(A) at 473F; S
v
Sauls and Others
1981
(3) SA 172
at 180E-G.
[16]
A complainant in a sexual complaint case, with whatever shortcomings
on her part, her evidence can be corroborated by the scientific
DNA
analysis
report.
In casu,
it
is common cause that the appellant was excluded as the donor of
sperms collected on the womanhood of the complainant by Dr. Rawat.
The learned magistrate attributed this exclusion to, as he put it:
"And I still maintain the complainant informed us at the
time
when accused 2 was raping her he used a condom. That is why the DNA
could not detect his sperms." The learned magistrate
further
stated that: "Court: Accused 2 did not have a condom that is
what she said."
[17]
It is prudent to first deal with the issue of the
DNA.
The
trial court in its judgment said the following:
"The
evidence before me is overwhelming that all the accused were involved
in this rape. And I still maintain the complainant
informed us at the
time when accused 2 was raping her he used a condom. That is why the
DNA
could
not detect his sperms.
”
1
The
magistrate proceeded to convict the appellant and his co-accused.
[18] It is
appropriate to chronicle in detail the following recorded evidence,
which is in my view, crucial:
"
PROSECUTOR:
Alright.
You say accused 2 had dreadlock at the time—Yes
Yes—The other
one had a pet (sic) on, a cap that is accused 1. Could you see his
face with that cap? — He was dark in,
in complexion.
Do you remember
anything about accused 3?—Accused 3 had a camouflage top that
is worn by people from the Army.
Yes what, what
happened now? What happened after they pulled down their pants down
their knees? What happened then? -.....The accused
had sexual
intercourse (intervene)
COURT
:
Simultaneously— One after another taking turns.
Ja now you show us
who started, — Accused 3 started.
PROSECUTOR
:
Did he use a condom? —No.
Yes and then?—Then
accused 2 came.
Did he use a condom?
—No. Accused 2 did not wear a condom. Then came accused 1.
Did he use a condom?
— No.
COURT
:
Mmm.
PROSECUTOR: Yes
after— Accused 3 came again he repeated the sexual intercourse.
Yes—Accused 1
came again repeated the sexual activity.
Yes— The last
person to repeat was Accused 2.
Yes—When
they finished the shoes that I was having on they took the Adidas
shoes."
2
[19] The record
further reveals that there was some confusion on the part of the
magistrate around this issue of the use or lack
thereof by the
appellant and a dispute with counsel for the appellant on this issue.
The following is recorded during the address
stage:
"
COURT
:
Accused 2 did not have a condom that is what she said.
3
MR.
MYBURG
:
He did not have a condom yes Your Worship, but that is exactly my
point Your Worship. If they had a condom then of course Your
Worship
there would have been no
DNA
because
the
DNA
would
have been in the Condom....
4
COURT
:
Accused 2 the second with a condom do you see it?
MR.
MYBURG
:
But at least on the first occasion (intervene).
Court:
Said
accused 2 is the second to rape her with a condom (intervene)
MR.
MYBURG
:
No Your Worship that is not what my notes say.
COUR
t:
That is what is here.
MR.
MYBURG
:
Your Worship all the, all the notes of the defence attorneys says no
condom Your Worship. My notes especially say that, because
it was a
very important point for the defence of accused 2.
COURT:
I
wrote it here accused 2 is the second to rape her with a condom,
accused 3 repeated and accused 1 and also accused 2
5
.
(It would seem that the magistrate here was relying on his notes)."
[20]
It is trite that the Court of appeal does not rely on the submissions
made in the Court
a
quo
,
but rather on the recorded evidence. Where there is some missing
evidence, it is permissible for the trial court to reconstruct
the
missing evidence from his notes. However, such reconstruction must be
ratified by the accused through an affidavit confirming
that, to his
best recollection the reconstruction is correct. Of course where the
accused is legally represented, the reconstruction
must also be
presented to his legal representative as well, for his comments.
Vide
S v Zenzile
2009
(2) SACR 407
(WCC) at paragraph [7].
[21]
In casu
we
are not dealing with missing evidence. We are dealing with a
situation where, on record, it is clear that the insistence on the
part of the magistrate that the complainant said the appellant used a
condom, is demonstrably wrong. The magistrate initially said
that
according to the complainant the appellant did not use a condom, but
shortly thereafter contradicting this accession. It is
only in
exceptional circumstances, such as
in
casu,
that
the Court of appeal would look at the submissions made at the court
a
quo,
to
seek clarity. But of course the Court of appeal cannot ignore the
recorded evidence.
[22]The
complainant said that the appellant did not use a condom. In my view,
from the recorded evidence, it is demonstrably clear
that the
magistrate misdirected himself in his conclusion that the reason why
the appellant was excluded by the
DNA
is
because he had used a condom. In the matter of 5
v
Hadebe and others
1997
(2) SACR 641
(SCA) at 645E-F it was held that:
"...in
the absence of demonstrable and material misdirection by the trial
Court, its finding of fact are presumed to be correct
and will only
be disregarded if the recorded evidence shows them to be clearly
wrong"
Vide
also
R v Dhlumayo and
another
1948
(2) SA 677
(A).
[23]
There is also another possibility why the
DNA
excluded
the appellant, which might be that the complainant wrongly identified
the appellant as one of her assailants. Constable
Kwate took the
complainant to the police station, and shortly thereafter he arrested
the appellant. There is no evidence that the
complainant had made
mention to him that one of her assailants had dreadlocks. Neither did
Mr Mothibedi make mention of having
been informed by the complainant
that one of her assailants had dreadlocks. Constable Kwate brought
the appellant at the police
station without ensuring that he was not
seen by the complainant, and later arrange a proper identification
parade. The complainant
might have concluded that because the three
suspects, including the appellant, have been arrested by Kwate
therefore all of them
were her assailants. The circumstances under
which the appellant was identified, does not, in my view, pass muster
to hold that
the identification was satisfactory and sufficient
enough to warrant the acceptance of the complainant's evidence of
identification
as reliable;
vide
S v Sithoie and Others
1999
(1) SA 585
at 591e-f.
[24]
The evidence of the complainant as a single witness, as well as a
complainant in a sexual related offence, and an identifying
witness,
must be approached with caution. Her evidence must be corroborated by
something more, outside the ordinary, for it to
be safely accepted as
reliable. The
DNA
is
empirical reliable evidence which would have corroborated the
complainant, and placed beyond any shadow of doubt the involvement
of
the appellant in the commission of the rape case. I am therefore
inclined to follow the matter of
S
v Masango
2014
JDR 0990 (GNP) and conclude that that the complainant was a single
witness and the DNA that excluded the appellant as a donor
of the
semen casted enough doubt on the correctness of the conviction on the
rape count.
[25] The fact that
the appellant is excluded in the rape case through the DNA result,
taken together with the conclusion reached
by this court on
identification, coupled with the fact that there is no evidence that
any of the complainant's robbed items were
found with the appellant,
his conviction on the robbery count can therefore not stand. In the
result I conclude that the appeal
against conviction and sentence on
both count 1 and count 2 must be upheld and the conviction and
sentences should be set aside.
[26] In the result,
the following order is made:
(i) That the appeal
against conviction and sentence on the rape count and robbery count
is upheld.
(ii) That the
conviction and sentence on both the rape count and robbery counts are
hereby set aside.
N.M. MAVUNDLA
JUDGE OF THE HIGH
COURT
I AGREE
H.J. DEVOS
JUDGE OF THE HIGH
COURT
DATE OF HEARING : 18
NOVEMBER 2014
DATE OF JUDGMENT: 24
APRIL 2015 APPICANT'S ATT : PRETORIA JUSTICE CENTRE.
APPLICANT'S ADV :
MR. L. AUGUSTYN
RESPONDENTS' ATT :
DIRECTOR OF PUBLIC PROSECUTIONS PRETORIA
RESONDENT'S
ATT : ADV M.J. MAKGWATHA
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