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[2014] ZAGPPHC 1064
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Mosethla and Others v The State (A805/2012) [2014] ZAGPPHC 1064 (11 June 2014)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO:
A805/2012
DATE:
11/6/2014
(1)
REPORTABLE: YES / NO
(2)
OF INTEREST TO OTHER JUDGES: YES / NO
(3)
REVISED.
________________
__________________
DATE
JUDGE: AC BASSON
In
the matter between:
CLAAS
SUNNYBOY MOSETHLA
1
st
Appellant
GLADSTONE
MANDLA
MEYA
2
nd
Appellant
CHARLES
VUYANE
QHALANE
3
rd
Appellant
and
THE
STATE
Respondent
JUDGMENT
BASSON,
J
[1]
The three appellants were convicted and sentenced
on the following charges:
(i)
Count 1: Robbery with aggravating circumstances
as defined in section 1 of Act 51 of 1977;
(ii)
Count 2: Rape read with the provisions of section
51(1) of Act 105 of 1997;
(iii)
Count 3: Assault with intention to do grievous
bodily harm.
[2]
All three appellants were legally represented
during the trail and all three pleaded not guilty to all counts. They
were sentenced
as follows:
(i) Count 1 –
fifteen years imprisonment to all three appellants;
(ii) Count 2 – life
imprisonment to all three appellants;
(iii) Count 3 –
three years imprisonment to appellant no 1 only.
All
sentences were ordered to run concurrently.
[3]
Appellant no 1 and 2 were granted leave to appeal
against sentence only and appellant no 3 was granted leave to appeal
against conviction
and sentence.
[4]
In brief it was the case before this court that
on 4 June 2006 the complainant in counts 1 and 2 was walking together
with her boyfriend
Mr B.P. and one Mr Sipho Masilela (the complainant
in count 3) when they met a group of men sitting at a fire. Appellant
no 1 assaulted
Sipho Masilela with a stick causing serious injuries.
The complainant in counts 1 and 2 ran away and was chased by three
men. She
was caught and was forced at gunpoint into a nearby veld.
She was then raped repeatedly by three men. She was also robbed of
her
property. According to her she was robbed by appellant no 3 of
her cell phone and R100.00.
[5]
Because the conviction of appellant 1 and 2 is
not before us, I will firstly briefly deal with the conviction and
sentence of appellant
no 3.
Appellant
no 3
[6]
In respect of appellant no 3, the complainant
testified that although she did not see him at the fire where a group
of men sat when
she and two others passed them, he was one of the
three that raped her and that he was the one that searched her and
took her cell
phone and her money.
[7]
Appellant no 3 disputes that he was involved in
the crimes although he does place himself in the vicinity of the fire
where the
group of men was sitting. Appellant no 3 was not arrested
immediately after the incident but was only arrested one year later.
[8]
Appellant no 3 was identified by Sipho Masilela
at a second identity parade. The complainant was, however, not able
to identify
appellant no 3 at the identity parade.
[9]
Genetic material was found from the three condoms
found at the scene in the field where the complainant was raped
linking appellant
1 and 2 to the rape. The third condom found on the
scene was broken. No DNA material was found linking appellant no 3 to
the rape.
[10]
Despite the fact that no genetic material could
be found at the scene of the rape linking appellant no 3 with the
rape, the Court
a quo
nonetheless found that the complainant had sufficient
opportunity to observe accused nr 3 from the time they forced her out
of the toilet to the time appellant no 3 penetrated her sexually. The
Court
a quo
also took
into account that Sipho Masilela saw appellant no 3 during the
assault.
[11]
From the
record it appears that the complainant only identified appellant no 3
in Court. Although it is accepted that a so-called
dock
identification has very little probative value, a dock identification
is not
per
se
inadmissible. See In
R
v Rassool
[1]
where the following was said:
"Therefore it seems
to me that the evidence of previous identification should be regarded
as
relevant
for the purpose of showing from the very start
that the person who is giving evidence in court identifying the
prisoner in the
dock is not identifying the prisoner for the first
time but has identified him on some previous occasion in
circumstances such
as to give real weight to his identification."
See
also
: S
v Bailey:
[2]
“
[25] Furthermore,
there is of course ample authority for the proposition that a dock
identification by itself, without more, has
limited (if any)
evidential value
(see, for example,
S
v Daba (supra
);
S v Moti
1998 (2) SACR 245
(SCA) at 257h; Du Toit et al Commentary
on
the Criminal Procedure Act
at 3-4B (Service 24) and cases referred to therein). It is completely
unnecessary, in my respectful view, to go one step further
by ruling
a dock identification inadmissible 'save in certain special
circumstances'. For these reasons I respectfully decline
to follow
the approach suggested in
Marudu
's
case with regard to a 'dock identification'.”
In
arriving at this conclusion, the Court in
Bailey
referred with
approval to the following academic authority:
“
[27] In a useful
article by Prof Steph E van der Merwe titled 'Parade-uitkennings,
hofuitkennings en die reg op regsverteenwoordiging:
Enkele
rondwetlike perspektiewe' (1998) 9
Stell LR
129 the learned author deals with this issue (at 137 - 41). His
conclusion, after referring to American and Canadian authorities
on
the topic, is summed up as follows (at 141):
'Soos
hierbo aangetoon is, is daar goeie redes om op grond van art 35(5)
van die Grondwet 'n parade-uitkenning uit te sluit waar
'n
beskuldigde sy grondwetlike reg op regsverteenwoordiging by die
parade ontsê is. Beteken dit egter dat die daaropvolgende
hofuitkenning noodwendig ook uitgesluit behoort te word? Hierdie
vraag - so word aan die hand gedoen - sal telkens beantwoord moet
word in die lig van die bewese feite van elke saak. As die Staat die
hof kan oortuig dat die gewraakte hofuitkenning gebaseer is
op
waarnemings wat onafhanklik staan van die waarnemingsgeleentheid wat
die onreëlmatige parade gebied het, kan die hofuitkenning
toegelaat word omdat dit nie nou gaan om getuienis wat bekom is op 'n
wyse wat 'n reg in die Handves skend nie. Die hofuitkenning
staan los
van die parade-uitkenning. In hierdie verband kan aansluiting gevind
word by die volgende passasie uit die meerderheidsbeslissing
van die
Hooggeregshof van die VSA in
United States v Wade
[1967] USSC 181
;
(388 US 218
(1967)):
''We
come now to the question whether the denial of Wade's motion to
strike the courtroom identification by . . . the witnesses
at trial
because of the absence of his counsel at the line-up required, as the
Court of Appeals held, the grant of a new trial
at which such
evidence is to be excluded. We do not think this disposition can be
justified without first giving the Government
the opportunity to
establish by clear and convincing evidence that the in-court
identifications were based upon observations of
the suspect other
than the line-up identification. Where, as here, the evidence of the
line-up identification itself is not involved,
a
per se
rule
of exclusion of courtroom identification would be unjustified.''
“
Wat
moet egter gebeur as die hof sou bevind dat die hofuitkenning geen
''independent origin'' het nie en bloot berus op die
parade-uitkenning
wat ingevolge art 35(5) uitgesluit moet word? In
hierdie geval het 'n mens te doen met 'n uitkenningsproses wat -
alhoewel dit
tegnies steeds uit 'n parade- en hofuitkenning bestaan -
nie splytbaar is vir doeleindes van art 35(5) nie: As die
parade-uitkenning
uitgesluit word, moet die hofuitkenning noodwendig
ook ontoelaatbaar wees. Die Staat kan tog nie toegelaat word om die
hofuitkenning
- wat op die parade-uitkenning berus en dus eintlik
maar 'n vermomde parade-uitkenning is - by die agterdeur in te bring
in die
hoop dat dit nie uitgeken sal word as 'n herhaling van die
parade-uitkenning nie. Die hof sal konsekwent moet wees. Die
uitsluiting
van sowel die parade-uitkenning as die hofuitkenning is
'n ongelukkige resultaat. Maar dit is ook 'n onvermydelike
resultaat.”
See finally:
S
v Tandwa and Others:
[3]
“
[129] This brings
us to the question whether the accused's conviction can stand in the
light of the exclusion of the real evidence
against him. The
principal remaining evidence against him is Dlamini's dock
identification, which - in contrast to the same witness's
identification of accused 2 - was not reinforced by any preceding
description of traits specific to the accused. Dock identification,
as our previous allusions to it in this judgment indicate, may be
relevant evidence, but generally, unless it is shown to be sourced
in
an independent preceding identification, it carries little weight:
'taken on its own it is suspect'. The reason is apparent:
“
(T)here is clearly
a danger that a person might make an identification in court because
simply by seeing the offender in the dock,
he had become convinced
that he was the offender.”
[130] In ordinary
circumstances, a witness should be interrogated to ensure that the
identification is not in error. Questions include
-
what features, marks or
indications they identify the person whom they claim to recognise.
Questions relating to his height, build,
complexion, what clothing he
was wearing and so on should be put. Bald statement that the accused
is the person who committed the
crime is not enough. Such a statement
unexplored, untested and uninvestigated, leaves the door wide open
for the possibility of
mistake.
[131] Where the State
relies solely on a dock identification, however, these questions
carry little weight. This is because the
witness can look at the
accused in the court - as happened in the present case, to the
indignant objection of the accused and their
counsel. Under these
circumstances, dock identification is similar to a leading question.
As a result, in certain circumstances
it could carry no weight at
all.”
[12]
From the record it appears that, but for the dock
identification, nothing else links appellant no 3 to the scene of the
rape and
the rape itself: Although appellant no 3 is placed at the
scene where the group of men initially sat next to the fire, no
independent
evidence links his presense at the rape: (i) Although the
complainant testified that it was appellant no 3 that searched her
and
robbed her of her cell phone and her money, Captain Letsoalo
testified that he found parts of a cell phone and the cover of the
cell phone that belonged to the complainant at the house of appellant
no 2. Appellant no 3 can therefore not be linked to the robbery
despite the evidence of the complainant. (ii) The complainant was not
able to identify appellant no 3 at the identity parade. (iii)
The
complainant in her own statement to the police immediately after the
incident stated that she was only able to identify one
of her
assailants. In her statement she gave no identification of any
features of appellant no 3. (iv) Despite the fact that three
condoms
were found on the scene and despite the fact that DNA tests were done
which positively linked the first two appellants
to the rape, no
traces of appellant no 3’s DNA could be found at the rape
scene.
[13]
In these circumstances I am of the view that the
State has not discharged the onus of proof in respect of appellant no
3. His conviction
on all three charges is therefore set aside.
Sentence
in respect of appellants no 1 and 2
[14]
In respect
of sentence it is trite that a Court of Appeal will not lightly
interfere with a sentence and will only do so if it is
persuaded that
the court
a
quo
materially misdirected itself or committed a serious irregularity in
evaluating the factors relevant to the exercising of a discretion
in
respect of sentence.
[4]
[15]
In the
present case the appellants were charged with rape as contemplated in
Schedule 2 of Part 1(a)(ii) of the Criminal Law Amendment
Act
[5]
which imposes a mandatory life sentence.
[6]
The Court is therefore obliged to impose the prescribed minimum
sentence unless there are substantial and compelling circumstances
which justify the imposition of a lesser sanction. I am of the view
that no such circumstances are present. More in particular,
the Court
cannot disregard the seriousness of the offence. The complainant in
this case was repeatedly raped and robbed of her
possessions at gun
point. This is a reprehensible crime and one that robs the victim of
her dignity. In this regard I am in full
agreement with the
sentiments expressed by the Supreme Court of Appeals in
S
v Chapman
where
the Court had the following to say about this horrendous crime that
mars our society:
[7]
“
Rape
is a very serious offence, constituting as it does a humiliating,
degrading and brutal invasion of the privacy, the dignity
and the
person of the victim. The rights to dignity, to privacy and
the
integrity
of every person are basic to the ethos of the Constitution
*
and to any defensible civilisation. Women in this country are
entitled to the protection of these rights. They have a legitimate
claim to walk peacefully on the streets, to enjoy their shopping and
their entertainment, to go and come from work, and to enjoy
the peace
and tranquillity of their homes without the fear, the apprehension
and the insecurity which constantly diminishes the
quality and
enjoyment of their lives.”
[16]
Although
the sentence imposed by the Court is undoubtedly a severe sentence, I
am of the view that it is warranted in the circumstances.
I am not
persuaded
that the Court
a
quo
misdirect himself in any relevant respect in imposing that sentence.
Moreover, I am
also in agreement with the sentiments expressed in
S
v Chapman
[8]
“
The
Courts are under a duty to send a clear message to the accused, to
other potential rapists and to the community: We are determined
to
protect the equality, dignity and freedom of all women, and we shall
show no mercy to those who seek to invade those rights.”
[17]
In the event the appeal against the sentence
imposed on appellant no 1 and no 2 is dismissed.
_______________________
AC
BASSON
JUDGE
OF THE HIGH COURT
I
agree
______________________
M
MVUNDLA
JUDGE
OF THE HIGH COURT
I
agree
_______________________
N
JANSE VAN NIEUWENHUIZEN
JUDGE
OF THE HIGH COURT
[1]
1932 NPD 112
118 (emphasis added).
[2]
2007 (2) SACR 1 (C)
[3]
2008 (1) SACR 613 (SCA).
[4]
S
v Rabie
1975 (4) SA 855
(A) at 857D – E and
S
v Pillay
1977 (4) SA 531x
(A) at 535E – F.
[5]
105 of 1997.
[6]
Section 51(1)
of the
Criminal Law Amendment Act 105 of 1997
.
[7]
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA) at 354C – D.
[8]
Ibid at 345C – D.