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[2015] ZAFSHC 175
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Mantsoe v S (A194/2013) [2015] ZAFSHC 175 (10 September 2015)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF
SOUTH AFRICA
Appeal
Number : A194/2013
In
the appeal between:-
MPHIKELEDI
JAMES
MANTSOE
Appellant
and
THE
STATE
Respondent
CORAM:
VAN
ZYL, J
et
DAFFUE, J
JUDGMENT
BY:
VAN
ZYL, J
DELIVERED
ON:
10
SEPTEMBER 2015
[1]
The appellant was accused 3 in the Court
a
quo
.
The appellant and the other two accused were charged with two
charges, namely, charge 1, robbery with aggravating circumstances
and
charge 2, rape. It was alleged that on 17 February 2006 and at
or near Ficksburg the appellant and the other two accused
robbed the
first complainant, David Motsoabodi, of a cell phone to the value of
R599.00. In charge 2 it was alleged that
the appellant and the
other two accused raped the second complainant, N. E. M. on the same
date as mentioned in charge 1.
[2]
The appellant and the other two accused enjoyed legal representation
during the proceedings in the Court
a
quo
.
They all pleaded not guilty to the aforesaid charges and gave no plea
explanation. They were however all three convicted
on the said
charges and sentenced as follows:
2.1
Charge 1, 10 years imprisonment; and
2.2
Charge 2, 18 years imprisonment.
The
Court
a
quo
ordered that the said sentences were to be served concurrently.
[3]
The appellant successfully applied to the Court
a
quo
for leave to appeal against his convictions only.
[4]
The complainant in charge 1, Mr Motsoabodi, testified that the night
of the incident at about 24h00 he and the complainant in
the second
charge, Me M., were walking together from the hall after a school
bash. They saw four men approaching them, one
of whom walked in
front of the others. The man in front passed them, but the
other three approached Mr Motsoabodi.
One of them pointed a
firearm at him and one of the three men took his cell phone and an
amount of money from him. In the
process they assaulted him by
kicking him with booted feet and hitting him with their fists, whilst
the one with the firearm was
poking him with it and banging it
against his head. In the meantime the man who had been walking
in front, held Me M..
After that the four men left, taking Me
M. with them.
[5]
According to Mr Motsoabodi the incident happened in the street at a
T-junction where the immediate area was well lit to the
extent that
he was able to see what was happening. At the time of the
incident he identified accused 2, known as Doctor,
to have been the
person who walked in front and who held Me M.. Doctor was
well-known to him as they were related and they
also attended primary
school together. Due to the chaotic situation and because he
was scared, Mr Motsoabodi was however
not able to identify the other
assailants. He was also not able to say which assailant held
the gun and which one took his
cell phone.
[6]
After their assailants left with Me M., Mr Motsoabodi went to his
parental home and his brother accompanied him to the tavern
in the
vicinity from where the assailants appeared earlier. At the
tavern they enquired who accompanied Doctor to the tavern
earlier and
the names of three people were mentioned, namely Tswimpi, Mothalo and
another whom he could not remember. According
to Mr Motsoabodi,
Tswimpi is accused 1. They then went back to their parental
home. The following morning Mr Motsoabodi
went to Me M.’s
parental home where he was informed that she had not yet returned
home. He went back home. Later
the police arrived at his
home, together with Me M..
[7]
The complainant in charge 2, Me M., testified that Mr Motsoabodi was
her boyfriend at the time. She gave a similar description
to
that of Mr Motsoabodi as to how their assailants initially approached
and attacked them, also confirming that one of the assailants
had a
firearm and that he pointed it at Mr Motsoabodi. She further
confirmed the robbery of the cell phone. She however
testified
that Mr Motsoabodi was only assaulted with open hands. The four
men then took her to the stadium. On
their way they
assaulted her, threatening her not to lay charges against them.
At the stadium one of them told her to undress.
When she
refused, he hit her with an open hand. She then took her jeans
off and the same man undressed her panty and forced
her to lie on her
back. The four men put on condoms and each one of them raped
her by having sexual intercourse with her
without her permission.
When they had finished, she got dressed and they told her to leave.
She indeed left.
[8]
On her way she met an unknown man who enquired from her why she was
crying. She told him that she had been raped by unknown
men.
He then carried her on his back till next to the hall, where he
phoned the police. The police came and took her to the
police station
and afterwards to hospital.
[9]
According to Me M., it was dark where they met with the four
assailants and it remained dark up to the point where they raped
her. She did not know her assailants and she was also not able
to identify any of them.
[10]
The State also called Mr Maroke as a witness, who is the aforesaid
person who assisted Me M.. His evidence corroborated
that of Me
M.’s. Of importance is his evidence that she told him
that she had been raped by four men who are unknown
to her. He
further testified that he phoned both the police and the ambulance
services, but neither had vehicles available.
Whilst they were
still standing at the public phone, a police vehicle incidentally
passed the scene and he attracted the attention
of the police
officers. He then explained to the said police officers that Me
M. had been raped, whereafter they took her
with them in the police
vehicle.
[11]
Mr Maroke then left heading home. Whilst on his way, he met
four men, whom he identified in Court to be the three accused
and one
other person, who has since passed away. He knew them quite
well. The appellant he knew as a friend of accused
2. An
apollo light was providing light in the area where he met them and he
could see them clearly. When he had already
passed them,
accused 2 (whom he also referred to as ‘Doctor’) called
him and enquired what happened to cause the police
to have been with
him. He responded by explaining that he assisted a woman who
had allegedly been raped. Mr Maroke
then continued walking on,
but when he looked back, he saw that the four men were running after
him. He became suspicious
that the four men could be the
persons that had raped Me M. and he therefore ran away. He
testified that the place where
he met the four men was about 250
metres from the stadium and that it was at about 23h00 or before
24h00.
[12]
Sergeant Mosese testified that she is the investigating officer and
because Me M. said that her assailants had used condoms,
she went to
the alleged rape scene at the stadium to look for condoms. She
found three used condoms at the scene. She
also testified about
the chain evidence pertaining to the forensic analysis of the
condoms, as well as regarding a crime kit pertaining
to Me M. which
she received from Inspector Ntholi. After the arrest of the
three accused and a suspect who has since passed
away, their blood
samples were taken and also sent for DNA analysis.
[13]
She also testified that accused 2, Doctor, was arrested as a result
of a witness who had identified him as one of the assailants.
She then enquired from an informant in whose company Doctor was that
evening, as a result of which the other two accused and the
deceased
suspect were arrested.
[14]
Captain Mashegoana, attached to the biology unit of the Forensic
Science Laboratory as a Senior Forensic Analyst and a Reporting
Officer, was also called as a witness. The crux of his evidence
was that according to the DNA analysis, the STR profile of
the DNA
obtained from the blood sample of accused 1 is the same as the STR
profile of the DNA obtained from the anorectal swabs
taken from Me
M.. The question was posed to him that considering that it is
being alleged that the three accused as well
as the deceased suspect
all raped Me M., whether the DNA results mean that she had in fact
not been raped by the other persons
as well. He responded as
follows:
“
There
are some other factors that normally contribute and to us getting
this kind of results…. Number one; it might
be that yes,
they did not contribute at all. Or else they did participate
but used condoms. Or they did participate
but they did not
ejaculate. Or they participated, they ejaculated, but outside
the vagina of the victim. Or sometimes
there are instances
where the person has got a condition that is called aspermic, he does
not produce sperm. And you
know, that kind of situation
normally happens to those people who do vasectomy. They are
aspermic. They do not produce
sperm anymore.” (sic)
[15]
In view of the fact that the identity of the perpetrators is in
issue, it is necessary to have regard to the version of all
of the
accused and not only that of the appellant. According to
accused 1, he went to Shoprite in town on the day of the
incident.
He was sent there by his mother to buy groceries and he also used to
assist people at Shoprite with loading their
groceries into their
cars. There he met accused 2 and the appellant at about 12h00
the afternoon. The three of them
left town at about 16h00 and
went to Sun-Cell at the border post. There they had drinks
together. At about 18h10 he
accompanied the appellant to where
he boarded a taxi heading to zone 8. Accused 1 thereafter also
boarded a taxi to zone
3. Accused 2 remained behind.
Accused 1 reached home at about 18h30 and he spent the rest of the
evening and night
at home. He was unable to give an explanation
regarding the seemingly positive DNA results. Accused 2 is his
friend.
According to accused 1, he knew the appellant from
Shoprite, but they were not friends, only acquaintances. He
confirmed
that he knew Mr Motsoabodi as their mothers were friends.
The two of them also attended school together in the same class.
He denied any knowledge of or involvement in the incident.
[16]
Accused 2 testified that on the day of the incident he met accused 1
and the appellant at Shoprite. At about 16h00 they
went to
Sun-Cell at the border post where they had drinks together.
Accused 1 and the appellant left the place together,
but he remained
there until they closed, whereafter he left together with a girl
named Meme. According to accused 2, accused
1 and him are not
friends. They just know one another because he accompanied his
mother when she went to visit the mother
of accused 1. He did
not know the appellant, as they met for the first time at Shoprite on
the day of the alleged incident.
[17]
Although he knows the first complainant as they are related, they had
a bad relationship as a result of a dispute regarding
cattle.
He confirmed that he knows Mr Maroke, as he was a police informant.
There has never been any bad incident between
Mr Maroke and himself.
[18]
The appellant testified that he is from Ekangela outside Pretoria and
he was only visiting in Ficksburg. He arrived in
town on the
day of the alleged incident in the company of Butsho, who is his
sister’s neighbour. Butsho at the time
also assisted with
the parking of vehicles at Shoprite. Whilst they were there,
Butsho unexpectedly left with people who
were looking for employees
to perform odd jobs. When he left, he told the appellant to ask
accused 1 to take him to Sun-Cell.
When accused 1 arrived, the
appellant posed the request to him, but accused 1 initially refused,
although he then eventually agreed.
The appellant had to wait
for accused 1 whilst he was still busy assisting with the parking of
vehicles. Whilst waiting,
accused 2, who was not known to him,
arrived and assisted accused 1. At about 16h00 accused 1 said
that he will quickly take
the appellant to Sun-Cell and accused 2
then said that he was going to accompany them. At Sun-Cell they
bought two black
labels. After they drank about one and half
thereof, the appellant developed a headache. He then requested
accused
1 to take him halfway to show him the taxis at the bridge.
It was about 18h00 when he boarded a taxi to his sister’s
place
at zone 8. When he arrived there at approximately 19h00 his
sister gave him food, he drank pills for his headache and
then went
to sleep. He slept through the night.
[19]
According to the appellant Mr Motsoabodi is unknown to him and he saw
him in Court for the first time. He does not know
MeM. either.
Mr Maroke is also unknown to him.
[20]
Mrs Smit, appearing on behalf of the appellant, pointed out that it
was only Mr Maroke who identified the appellant, as none
of the other
witnesses were able to do so. Mr Motsoabodi was only able to
identify accused 2 (Doctor). Mr Maroke is
therefore a single
witness regarding identity. Mrs Smit also submitted that even
if it was to be found that the appellant
was indeed on the scene
together with the other accused and the deceased suspect as testified
by Mr Maroke, it is not the only
reasonable inference that the
appellant was indeed one of the assailants. In this regard Mrs
Smit referred to the evidence
of Mr Maroke on p. 30, lines 22 to 23
of the record, where he testified that after he made the phone call
to the police, they “stood
there for a longer time”
before a police vehicle incidentally came towards them. Mrs
Smith therefore contended that
it appears that there had been a lapse
of time between the attack and the rape incident and the time when Mr
Maroke came across
the appellant and the other three men. She
therefore submitted that it is not the only reasonable inference that
because
the appellant was by then in the company of Doctor (accused
2), he was also one of the assailants and rapists. It was her
contention that the mere fact that the appellant is attempting not to
place himself on the scene as part of the group whom Mr Maroke
came
across, does not by necessity mean that he was one of the assailants
and rapists.
[21]
Mr Roothman, on behalf of the State, submitted that the evidence
should be considered in totality. In this regard, there
were
four assailants and rapists, which included Doctor, and shortly after
the incident Mr Maroke came across four men, including
Doctor, in the
very same area as where the incidents took place. During this meeting
the four men acted in a very strange manner
after hearing why the
police had been on the scene. Mr Roothman therefore contended
that the Court
a
quo
correctly concluded that it was the appellant, the two other accused
(and the deceased suspect) who committed the said crimes.
[22] The Court
a quo
dealt with the discrepancies between the evidence of Mr Motsoabodi
and Me M. regarding the visibility at the time they met the
four
assailants and as to how Mr Motsoabodi was assaulted. Regarding
the question of visibility the Court
a quo
found as follows in
his judgment as reflected on p. 117, lines 2 to 11 of the record:
“
There
must, however, clearly have been some light for
N.:
-
To
have seen that there were four people;
-
To
have seen that one was walking in front carrying his shoes in his
hands;
-
To
have seen that three were walking behind that one; and
-
That
one of them had a firearm;
-
And
also to have seen that Motsamai was robbed of his cell phone.”
[23]
As to the discrepancies in the evidence as to how Mr Motsoabodi had
been assaulted, the Court
a
quo
made the following findings, reflected on p. 117, lines 12 to 23 of
the record:
“
On
how Motsamai was assaulted, the Court accepts the evidence of
Motsamai. That while three people were, as he says, all over
him the fourth went to N. and held her. N. also agrees that the
people took her away. According to the evidence of
Motsamai, N.
would not have been able to concentrate on what was happening to
Motsamai whilst somebody was holding her.
There
are things, therefore, that might have been done to Motsamai that N.
did not see because she was concentrating on the person
that was
holding her. The Court, therefore, finds that it cannot really
be said that there are any serious contradictions
between their
statements.”
[24]
In my view both of the above findings by the Court
a
quo
are properly substantiated and cannot be faulted.
[25]
The Court
a
quo
gave accused 1 the benefit of the doubt regarding the DNA results,
considering the contradictions in the evidence of Sergeant Mosese
regarding the crime kit numbers allocated to the control blood
samples of the respective accused; moreover so in view of
the
further contradictory information in the affidavit of one Inspector
Mabaju in this regard, which was put to her during cross-examination
on behalf of accused 2. There was no cross-appeal by the State
regarding this finding of the Court
a
quo
and therefore the appeal is dealt with without taking the DNA results
into consideration.
[26]
Both accused and the appellant confirmed in their evidence that they
had spent time together earlier that day. They then
however
alleged that after they had drinks together at Sun-Cell, they split
up and never met with one another that night.
[27]
Although Mr Motsoabodi knows accused 1 by the name Tswimpi, he was
unable to identify as him of his assailants. Mr Maroke
however
knew accused 1 as a person who usually assisted people with their
groceries at Spar and he therefore knew him from sight
and usually
greeted him when they passed one another. The Court
a
quo
correctly pointed out that this was never disputed and that there was
no suggestion of a possible motive for Mr Maroke to falsely
implicate
accused 1.
[28]
Both Mr Motsoabodi and Mr Maroke knew accused 2 well and both knew
him by the name “Doctor”. Mr Motsoabodi
and accused
2 are related and they attended primary school together. This
was confirmed by accused 2, although he testified
that they had a bad
relationship as a result of a dispute over cattle. Accused 2
also confirmed that he knew Mr Maroke as
he was a police informant
and there have been problems between them. It should be noted
that it was the evidence of Mr Maroke
that there was an apollo light
in the area where he met up with the four men and he was able to see
them clearly. Mr Motsoabodi
and Mr Maroke therefore
corroborated each other’s evidence regarding accused 2’s
presence in the vicinity of the attack
at the approximate time of and
shortly after the attack. This is in direct contrast to the version
of accused 2 that he remained
at Sun-Cell until its closure late
night and then went home.
[29]
Mr Maroke was the only one who could identify the appellant. He
testified that he knew him well as a friend of accused
2 and that the
appellant and accused 2 used to be in each other’s company.
This evidence was not disputed and it was
never put to Mr Maroke that
the appellant was only a visitor and met accused 2 for the first time
that day. As again correctly
pointed out by the Court
a
quo,
there
was also no suggestion of any possible motive for Mr Maroke to
falsely implicate the appellant.
[30]
The Court
a
quo
dealt with the fact that Mr Maroke was a single witness regarding the
identification of the appellant (and accused 1), but found
that he
gave his evidence clearly and unambiguously and that his evidence
passed the single-witness test. In my view there
is no basis
upon which this finding can be faulted.
[31]
The vicinity where Mr Maroke met the two accused, the appellant and
the deceased suspect was according to him about 250 metres
from the
stadium. It was about 23h00 or before 24h00, which time roughly
corresponds with the estimates of the other witnesses.
Their
presence was therefore, both in time and in space, very close to
where the two crimes had been committed. In addition
to the
aforesaid, the reaction of accused 2 and the other three men,
including the appellant, after having heard why the police
had been
on the scene, was very suspicious.
[32]
In the totality of the circumstances and especially in the absence of
an explanation by the appellant for his presence when
they met with
Mr Maroke, necessitates as only reasonable conclusion that the
appellant, together with the two other accused and
the deceased
suspect, were the assailants of Mr Motsoabodi and rapists of Me M..
[33]
The appeal against the convictions of the appellant is therefore
dismissed.
______________
C.
VAN ZYL, J
I
concur:
_____________
J.P.
DAFFUE, J
On
behalf of the Appellant:
Adv L Smit
On
instructions of:
Legal
Aid Board
BLOEMFONTEIN
On behalf of the
Respondent: Adv JW Roothman
On
Instructions of:
Office
of the Director of
Public
Prosecutions
BLOEMFONTEIN