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[2014] ZAGPPHC 77
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H.T.M v S (A393/2013) [2014] ZAGPPHC 77 (20 February 2014)
SAFLII
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IN THE HIGH COURT
OF SOUTH AFRICA
(NORTH GAUTENG
HIGH COURT)
Case
Number: A393/2013
DATE:
20 FEBRUARY 2014
In the matter
between:
H T
M
...............................................................
APPELLANT
VS
THE
STATE
................................................
RESPONDENT
Coram: TLHAPI J
AND MALINDI A3
JUDGMENT
MALINDI AJ
1. The appellant, H
T M, was convicted by the regional Magistrate's Court of Tabamoopo.
2. In the judgment
and in the reasons for judgment furnished by the Magistrate on 28
February 2013 he relied on the complainant's
identification of the
appellant. In particular he pointed out that the victim and the
appellant had known each other for a long
time as neighbours in the
same village; had spoken to each other a day before the incident; she
had made use of the light emanating
from her cellular telephone to
identify her assailant; the identification was at close range while
the attacker was pinning her
down; and that she had observed him
through the window after he had jumped out of the window and was
dressing outside and when
he walked out of her yard.
3. The complainant
gave evidence and the appellant and his friend, E M gave evidence in
his defence.
4. The question in
this case is whether the identification of the appellant is reliable
and whether his alibi is reasonably possibly
true.
5. It is common
cause that on the morning of 29 September 2008 the complainant met
the appellant while he was on his way to court
and she asked him to
fend her his broom. He gave her the key to his house and asked her to
give it to his aunt so that he could
let himself into the house when
he returned later.
6. Upon his return
about 19h00 he went to his aunt's house but the complainant had not
delivered the key. He then went to the victim's
house but she was not
in.
7. The appellant
testified that he decided to visit M where he decided at about 20h00
to go to sleep at M's house. He left M and
another friend outside
while they listened to music on the radio.
8. He testified that
M and M later joined him and they all slept in the same bedroom and
on the same bed. They all woke up about
07h00 the next morning and he
and M walked together to collect the key to his house from the
victim. However, they did not reach
her house because on the way they
came across women who told him that the police were looking for him
as it is alleged that he
raped a woman. He decided to go to his house
instead and wait there for the police.
9. M testified and
corroborated the appellant's evidence.
10. The
complainant's evidence is that while asleep with her 3 year old child
she woke up to discover that a man had slipped into
her bed. The man
was brandishing a knife and shown a torch into her face. Whilst he
was struggling to pin her down she grabbed
her cell phone and
switched it on. It gave her enough light to see the attacker. She
says that it was the appellant.
11. She testified
further that she could see that it was him again when she looked
through the window after he had jumped through
it and while he was
putting his clothes on outside and when he walked out of the yard.
12. This matter
revolved around the question whether the identification of the
appellant is reliable.
13. In S v Mthethwa
1972 (2) SA 766
(A) it was stated that the reliability of
identification evidence must be tested against factors such as
lighting, visibility,
eye sight, proximity of the witness,
opportunity for observation and the extent of prior knowledge of the
accused, the mobility
of the scene, corroboration, suggestibility of
the accused's face, voice, built, gait and dress.
14. Of these factors
only lighting, visibility, proximity and the extent of prior
knowledge were canvassed in evidence.
15. The complainant
was surprised by the attack and had a torch light shown into her
face. It is common knowledge that torch light
does not illuminate
light on the person holding the torch. The torch light cannot be
relied upon for lighting in this case. The
attack took place at about
3h00 and there is no evidence of greater visibility other than the
light that the complainant switched
on in the kitchen after the
attacker had left. Regarding the cell phone light that she used while
being attacked it is not clear
for how long she managed to keep the
light on the attacker's face. There was no further identification
evidence to support the
factor of prior knowledge of the appellant
such as voice, built, gait or special facial features.
16. In the light of
the above, and weighing that against the appellant's evidence, the
evidence of the identification is unsatisfactory.
17. It is trite that
if the evidence of the accused is reasonably possibly true he/she is
entitled to an acquittal. S v Liebenberg
2005 (2) SACR 355
(A) at 359
C-E.
18. The Appellant's
alibi is corroborated by M. Both were not shown to be lying about the
appellant spending the whole night at
M's house.
19. In light of the
totality of the evidence and the probabilities it cannot be said that
the complainants identification of her
assailant is reliable.
20. In S v Charzen
and Another
2006 (2) SACR 143
( ) it was stated that in addition to
the factors stated in S v Mthethwa, objective evidence would put
identification beyond doubt.
Unfortunately in this case although the
complainant testified that the rapist ejaculated into her and she
immediately was examined,
there was no DNA evidence presented. Nor
was any fingerprint evidence presented although the evidence is that
the rapist must have
broken in through the window. The court is left
to only speculate whether the absence of this evidence is as a result
of police
incompetence or whether such evidence could not be
obtained.
21. In the
circumstances, the state has failed to furnish proof beyond
reasonable doubt on the issue of identity (See S v Ngcina
2007 (1)
SACR 19
(SCA) [19]).
22. In the
circumstances, the appellant's appeal stands to be upheld and the
trial judgment set aside.
23. Accordingly the
following order is made.
1. The appeal is
upheld.
2. The judgment and
order of the Magistrate is substituted as follows:
2.1. The accused is
acquitted.
MALINDl Ju
Acting Judge of
the High Court I agree
TLHAPI 3
Judge of the High
Court