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[2015] ZAFSHC 180
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Finger v S (A93/15) [2015] ZAFSHC 180 (4 September 2015)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal No.: A93/15
In
the appeal between:
RALOBISI
FINGER
Appellant
and
THE
STATE
Respondent
CORAM:
MOCUMIE,
J
et
FISCHER,
AJ
HEARD
ON:
17
AUGUST 2015
DELIVERED
ON:
4
SEPTEMBER 2015
MOCUMIE,
J
[1]
This
appeal turns on the reliability of identification evidence.
On the night of January
2014, the complainant was home with her four year old daughter,
sleeping, when two unknown men broke into
her house, raped her and
robbed her of a cell phone, earrings and R200 cash. The two men only
left after both had raped and robbed
her. She waited until dawn to
report the incident to her mother not far from her house. The matter
was reported to the police.
The appellant’s erstwhile
co-perpetrator known as Sello was arrested first. He pleaded guilty
and was convicted as charged
on both counts and sentenced
accordingly. The appellant was initially arrested but released
because, according to him, the police
did not have a case against
him. The investigating officer was not called to put the
circumstances under which the appellant was
arrested on record.
[2]
On 30 August 2012, the appellant was convicted of housebreaking with
intent to rape and rape read with
s51
(1) (a) of the
Criminal Law
Amendment Act 105 of 1997
as amended (the
Criminal Law Amendment Act)
and
robbery with aggravating circumstances as read with
s1
of the
Criminal Procedure Act 51 of 1977 (the CPA) by the regional court,
Virginia.
There
were only two State witnesses: the complainant, and her husband.
The appellant pleaded not guilty and offered an alibi
in his plea
explanation in that at the time of the commission of these offences
he was at his home sleeping. He thereafter testified
in his own
defence and denied any involvement in the commission of the two
offences. The regional magistrate (Mr Ludidi) convicted
him on both
counts. Applying the minimum sentence provisions of the
Criminal
Law Amendment Act,
he
sentenced the appellant to
25
years imprisonment, instead of life imprisonment as the Act
prescribed in these circumstances, i.e rape by more than one person.
He was sentenced to 6 years imprisonment on robbery with aggravating
circumstances. The trial court made no order that the two
sentences
run concurrently.
[3]
The complainant was the sole witness to both offences. She testified
that she was asleep in her house with her four year old
daughter.
Sometime around midnight she heard the kitchen window pane breaking
and went to investigate. Her husband was not home.
As she
entered the kitchen, she saw an unknown man standing inside the
kitchen next to the kitchen table. One - whom she identified
as the
appellant - ordered her to keep quiet and moved closer to her
brandishing a knife. He reached her and put the knife on her
neck
threating to stab her if she made any noise. While appellant was
holding her the second man whom she identified as Sello-
came into
the house through the door. The complainant asked them to take
anything they wanted but the appellant told her they wanted
nothing
but ‘the vagina’ meaning to have sexual intercourse with
her.
[4]
The appellant pushed her towards the bedroom and onto the bed in
which her daughter was sleeping. She pleaded with him not to
do
anything to her in front of her daughter. He pushed her back to the
kitchen where he ordered her to lie down on the floor. He
took out
his private parts but realised that the complainant was menstruating.
He sent his cohort to go out and fetch condoms.
The cohort left the
house and immediately came back with condoms and gave him one. He put
it on and penetrated her. Once the appellant
was done, he climbed off
the complainant and went towards the stove demanding food. The second
man instructed her to kneel down
so that he could penetrate her from
behind but he could not. He turned her around and penetrated her
while she was on her back
on the kitchen floor. The appellant was
then eating meat from the pot. The complainant’s daughter came
into the kitchen crying
and asked them what they were doing to her
mother. The second man threatened to rape her as well. But the
appellant intervened,
picked the child up and continued to eat from
the pot.
[5]
The appellant came to stand between the complainant’s thighs
and demanded jewellery from her. She told him she did not
have any.
He there and then removed the earrings from her ears and removed the
pillow under which he found R200 cash and a cellphone.
He took them
and handed the cellphone over to his cohort and instructed the
complainant to show him how the cellphone was switched
on and off.
She did that. Both then left taking with them the earrings, R200 cash
and the cellphone.
[6]
T
he
complainant testified that s
he
had ample opportunity to identify the two men who broke into her
house and raped and robbed her. The complainant testified that
she
saw the appellant at close range several times, and had considerable
time to look at him and was assisted by the light of the
street light
which shone into the house through the window and the curtain which
was not so thick.
[7]
The complainant was emphatic on her identification. During
cross-examination she stated that not only did she have time
to
look at them thoroughly, assisted by the light that shone into the
house through the kitchen window but she had physical, verbal
and eye
contact with them. As she put it ‘I
will
never forget his face. Even if I had to die and come back I will
never forget his face…
’
What
is more, as the regional magistrate pointed out in his judgment, the
complainant was a good witness: clear, coherent, specific
and
verbally expressive.
[8]
The only issue which the trial court had to determine was whether the
appellant was the person who raped the complainant together
with
Sello, the person who had already pleaded guilty. This is the same
issue this court must determine.
THE
LAW
[9]
In
S v
Mthetwa
[1]
,
the Appeal court stated:
‘
Because of the fallibility of
human observation, evidence of identification is approached by the
Courts with some caution. It is
not enough for the identifying
witness to be honest: the reliability of his observation must also be
tested. This depends on various
factors, such as lighting,
visibility, and eyesight; the proximity of the witness; his
opportunity for observation, both
as to time and situation; the
extent of his prior knowledge of the accused; the mobility of
the scene; corroboration;
suggestibility; the
accused’s face, voice, build, gait, and dress; the result
of identification parades, if any;
and, of course, the evidence
by or on behalf of the accused. The list is not exhaustive. These
factors, or such of them as are
applicable in a particular case, are
not individually decisive, but must be weighed one against the other,
in the light of the
totality of the evidence, and the probabilities;
see cases such as
R.
v.
Masemang
,
1950 (2) S.A. 488
(A.D.);
R.
v.
Dladla
and
Others
,
1962 (1) S.A. 307
(A.D.) at p. 310C;
S.
v.
Mehlape
,
1963 (2) S.A. 29
(A.D.)’
[10]
In
S v
Charzen
[2]
Cameron JA, writing for the majority stated the test as follows:
‘
[11] But, as
our courts have emphasised again and again, in matters of
identification, honesty and sincerity and subjective assurance
are
simply not enough.
There
must in addition be certainty beyond reasonable doubt that the
identification is reliable
,
and it is generally recognised in this regard that evidence of
identification based upon a witness's recollection of a person's
appearance can be 'dangerously unreliable', and must be approached
with caution.’
(My
own emphasis)
[11]
In this court, before us, with reference to case law
[3]
,
Mr Makhene submitted that visibility was not so clear; although the
complainant may in all probability be sincere and honest on
who she
believed she saw in her house that night, without more there was no
guarantee of the correctness of that evidence. This
is so when one
considered that she was woken up in the middle of the night only to
find strangers in her house, she was conscious
of the attackers’
threat to rape her four year old daughter and was raped by two people
who she did not know prior to the
incident. The allegation that she
knew the appellant prior to the incident was contradicted by the fact
that she did not tell the
police that she knew the appellant prior to
the incident or that she had seen him in the township in a section
called Caprivi as
she later testified in response to a question
during cross examination. Mr Makhene submitted that the introduction
of this evidence
only when she was cross examined pointed to an
attempt on the part of the complainant to strengthen her case. He
implored us to
disregard that part of her evidence.
[12]
Mr Makhene’s submissions were based entirely on the possibility
of misidentification and the danger of a wrong conviction.
He
contended that had the State called Sello as a witness as he had
already admitted guilt on the same incident, the State’s
case
would have been strengthened. He contended that without more, the
evidence of the complainant as a single witness did not
satisfy the
requirements set out in s208 of the CPA
[4]
.
The complainant even failed to inform the police or her husband of
the identity of the appellant on the same night of the incident
or
shortly after the incident had happened and was still fresh in her
mind.
[13]
In coming to the conclusion he came to, the regional magistrate was
alive to the possibility of misidentification and drew
much from
precedents including
S
v Mthetwa
[5]
.
[14]
The transcribed record indicate at least ten instances in which the
complainant was in
physical,
verbal and even eye contact with the appellant. Those are (a) When
the appellant walked t
owards
her brandishing a knife. (b) When appellant came next to her and put
a knife on her neck ordering her to keep quite. (c)
When appellant
pushed the complainant into her bedroom onto the bed. As she lay on
the bed, it must be assumed, it was on her back,
as there is no other
evidence indicating how she landed on the bed. (d) When the
complainant asked the accused not to rape her
in front of her four
year old daughter, which he obliged not to do. (e) When the appellant
took her to the kitchen where he instructed
her to lie on the floor,
which she did. (f) When the appellant instructed her to lie on the
kitchen floor. (g) When the appellant
sent his cohort to go and fetch
a condom(s) and remained behind with the complainant. (h) When the
appellant put on the condom.
(h) When the appellant raped her on the
kitchen floor. (i) when the appellant stood between her thighs and
removed earrings from
her ears and took her cell phone and R200 from
underneath the pillow (j) When the appellant handed cover the
cellphone to his cohort
for her to show his cohort how the cellphone
switched on and off.
[15]
It is correct that
Mthetwa
and
Charzen
emphasise the importance
of ensuring that wrong people are not convicted. That more is
expected of an identifying witness than sincerity.
I am however
certain that the Supreme Court of Appeal has not laid down hard
and fast rules that should be adhered to even
when such adherence
dispels common sense.
[16]
In this case the complainant had more than ample time to identify her
rapists in the plus minus forty five minutes they were
inside her
house. It is common knowledge that an RDP house is not so big as to
have allowed these two men to wander off at some
point or another
into other parts of the house where she would not have been in direct
contact with them. Both the appellant and
his cohort did not even
introduce such a possibility during the trial. Neither did Mr Makhene
argue that. But the point is this,
there was no such possibility. The
fact that the complainant could not give an exact description of the
clothing of the rapists
or their exact facial features does not mean
she could not identify both and more so the appellant. As she
testified he was the
first person she found in the kitchen. He was
the one who constantly gave her instructions on what to do. He was
the first one
to rape her. He was the one who stood between her legs
with her daughter in his arms and removed the earrings from her ears
.He
held the daughter in his arms in a sadistic manner thereby
prevented his cohort from carrying out his threat of raping her. In
the complainant’s own words she said ‘
Even
if I had to die and come back, I will never forget his face.’
That is more telling than
any formulation of guidelines. The requirements of
Charzen
cannot discard this
reality and overwhelming evidence.
[17]
I want to believe that
Charzen
and
cases that followed thereafter set out guidelines to follow in the
evaluation of evidence of identification especially by a
single
witness. The same cases do not suggest that such guidelines should be
applied in each and every case strictly; regardless
of its own
circumstances, as hard and fast rules; to the extent that if one of
them is found not to exist, without more, the evidence
of
identification should be discarded.
[18]
Courts are not to follow a tick box method to determine whether the
state has proved the identity of an accused beyond reasonable
doubt.
Otherwise the process becomes very technical and devoid of the common
logic that the complainant indeed had ample
opportunity to identify
her assailants; just from listening to her attentively as the trial
court clearly did in this case; despite
it not noting the individual
instances she had to do so as this court has done in para 14 of this
judgment.
[19]
Mr Makhene’s argument that the failure to call Sello as a state
witness weakened the State’s case should be considered
in the
context of this case. In this case one suspect was arrested before
the other and he pleaded guilty. The case was disposed
of by the time
the appellant was arrested. Ordinarily, the State can use such
convicted person to testify against the other. But
this will depend
mainly on whether the State had such an agreement with him and struck
a deal of some sort based on such agreement,
alternatively the
convicted person, out of his own, offered to testify against his
cohort. In this instance there is no indication
that the State
had such arrangements in place. The defence cannot be heard to throw
aspersions on why the State failed to do so,
including that there was
likelihood that the erstwhile cohort would not have corroborated the
State’s case. However, by the
same token, immediately upon the
defence’s realisation that the State was not going to call
Sello, surely it was open to
the defence to have called him as a
witness, particularly because the appellant’s defence was a
bare denial without any story
to tell and because he and Sello were
well known to each other; they played soccer together. Sello could
have come to court and
told the court that he was not with the
appellant on the night he raped the complainant. In other words
although the onus rested
on the State to prove its case beyond
reasonable doubt, there was no obligation on the State to close every
avenue possible in
order to do so. It did not mean that any onus was
placed on the appellant to prove his case. But logic dictated that if
he was
not with Sello, he should have called Sello as a defence
witness to say so. The defence had the same responsibility to put all
the evidence before the trial court to enable it to come to a just
decision and not convict a wrong person.
[20]
Was the trial court correct to convict the appellant on armed robbery
when, according to Mr Makhene, the evidence did not show
that the
complainant was still under threat of a knife when she was robbed of
her cellphone, R200 and earrings? Mr Makhene submitted
that at the
time the robbery was allegedly committed, the complainant was no
longer under any threaten. If anything the perpetrators
should have
been convicted of theft. Robbery consists of theft of property by
unlawfully and intentionally using violence to take
the property from
somebody else or threats of violence to induce the possessor of the
property to submit to the taking of the property.
Robbery read with
section 1
of the
Criminal Procedure Act 51 of 1977
reads:
‘
(1) In
this Act, unless the context otherwise indicates
"
aggravating
circumstances",
in
relation to
(a
)
. . . . . .
(
b
)
robbery or attempted robbery, means
(i) the wielding
of a firearm
or
any other dangerous weapon;
(ii) the
infliction of grievous bodily harm; or
(iii) a threat
to inflict grievous bodily harm,
by the offender
or an accomplice on the occasion when the offence is committed,
whether
before
or during or after the commission of the offence
.(My
own emphasis)
[21]
The section is clear and self-explanatory. It was unrefuted that the
appellant brandished a knife from the moment he broke
into the
complainant’s home; that at all times even during the rape he
had the knife literally next to her. In my view, the
wielding of such
a dangerous weapon subdued the complainant to do whatever the
appellant demanded from her, including when the
complainant was
dispossessed of her earrings, R200 cash and a cellphone. Authorities
abound on this approach. The trial court did
not err on this at all.
The conviction ought to be confirmed.
[22]
Having said that, there is no reason to interfere with the factual
findings of the trial court. There is no doubt that the
trial court
was correct in its approach and in accepting the State’s case
as proved beyond reasonable doubt and rejecting
the appellant’s
version. The convictions ought to be confirmed.
[23]
On the sentences, Mr Makhene, could not make any submission that the
trial court erred in considering appropriate sentences
or that it
erred by overemphasizing any of the basic sentencing factors :the
seriousness of the offences ,the personal circumstances
of the
accused and the interests of society. Suffice to submit that, the
trial court was at large to have ordered the sentences
to run
concurrently. Mr Strauss, on behalf of the State, conceded that this
was a case in which the trial should have ordered the
sentences of
one count to run concurrently with the other. This court is at large
to reconsider sentence afresh to that extent
only.
[24]
The appellant was a first offender .He is unmarried and has no
children. Although he displayed no remorse during the trial
and
neither was any suggestion made to that effect before us, when a
court imposes sentences, it is duty bound to temper the sentence
with
mercy. Such tempering will ultimately lead to a just sentence that
fits the crime, the accused and the society. The way of
doing that,
is
inter
alia
through
ordering the concurrent running of the sentences. This case is a
typical one in which such order should have been made.
The two
offences were committed during the same incident. To that extent the
appeal ought to succeed partially.
[25]
In the circumstances, the following order is granted.
ORDER
1.
The
appeal against the conviction in respect of count 1 and count 2 is
dismissed.
2.
The
appeal against the sentence in respect of count 1 and count 2 is
upheld, partially and substituted with the following :
‘
1. Count 1 the accused is
sentenced to 25 (twenty five) years imprisonment.
2. Count 2 the accused is
sentenced to 6 (six) years imprisonment.
3.
In
terms of
s280
(2) of the
Criminal Procedure Act 51 of 1977
it is
ordered that the sentence imposed in count 2 runs concurrently with
the sentence imposed in count 1.
4.
In
terms of
s282
of the
Criminal Procedure Act 51 of 1977
it is ordered
that the sentence imposed is ante dated to …’
__________________
B.
C. MOCUMIE, J
I
concur,
______________
P.
FISCHER, AJ
On
behalf of the appellant:
Adv. O Makhene
Instructed
by:
Legal Aid Free State
BLOEMFONTEIN
On
behalf of the respondent:
Adv.AS Chalale
Instructed
by:
Director of Public Prosecutions, Free State
BLOEMFONTEIN
[1]
S v Mthetwa
1972
(3) SA 766 (A).
[2]
S v Charzen and Another
2006(2) SACR 143 (SCA).
[3]
S v Mthetwa
1972
(3) SA 766
(A),
S v Charzen
and Another
2006(2) SACR
143 (SCA),
R v Mokoena
1956 (3) SA 81 (A).
[4]
Section 208
of the
Criminal Procedure
Act 51 of 1977
provides that an accused may be convicted on the
evidence of a single witness whose evidence is satisfactory in all
material
respects.
[5]
Footnote 1 and 2 above.