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[2014] ZAGPPHC 520
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Mosethla v S (A805/2012) [2014] ZAGPPHC 520 (13 June 2014)
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO: A805/2012
DATE: 13 JUNE 2014
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
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) Court 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 S[...] M[...] (the complainant in count 3) when
they met a group of men sitting at a fire.
Appellant no 1 assaulted
S[...] M[...] 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 S[...] M[...] 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 S[...] M[...] 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
257/7; 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
waamemings 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 gevaí 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:54
'taken on its own it is suspect'.55 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. ”
56
[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.
57
[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.
58
”
[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.”
[1] 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, and it is
so ordered I agree
M MAVUNDLA
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 an
dSv
Piilay
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
at
345C - D.