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[2014] ZAFSHC 8
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Senokoane v S (A215/2012) [2014] ZAFSHC 8 (3 February 2014)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A215/2012
In
the matter between:
TSHEPO
VINCENT
SENOKOANE
Appellant
and
THE
STATE
Respondent
CORAM:
LEKALE,
J
et
NAIDOO,
J
HEARD
ON:
3
FEBRUARY 2014
JUDGMENT
BY:
LEKALE,
J
DELIVERED
ON:
6
FEBRUARY 2014
[1]
On the 11
th
April 2011 the appellant, who was legally
represented, was convicted on one count of attempted rape as charge
number 2 and one
count of rape as charge number 3 by the Regional
Court at Bloemfontein. He was, eventually, sentenced on the
30
th
May 2011 to three years for attempted rape and
fifteen years for rape on the basis that he was a repeat rape
offender. The
sentences were not directed to run concurrently.
He felt aggrieved by both the conviction and sentence on the rape
charge
and, eventually, secured leave from the trial court to appeal
the same. He accordingly now approaches us on appeal.
[2]
On returning the guilty verdict the court below accepted the evidence
of the complainant, who was a single witness, and effectively
rejected the appellant’s version that he did not rape the
complainant as not being reasonably possibly true. The court
a
quo
further found that although the area where the rape was committed was
dark, the complainant was able to identify the appellant
as the
rapist because he knew him, he also knew his voice and he had the
opportunity to see him because the appellant was very
close to him
when he demanded sexual intercourse.
[3]
The appellant’s notice of appeal is not part of the record and
as such his grounds of appeal are not apparent
ex facie
the
same. Mr Reyneke, who appeared for the appellant on Legal Aid
South Africa brief, requested that the appeal be finalised
in the
absence thereof in the light of numerous previous postponements
granted for the purpose of reconstructing the record.
The heads
of argument filed for and on behalf of the appellant provides
sufficient exposition of the sources of the appellant’s
grief
and we are, thus, able to deal effectively and properly with the
matter.
[4]
In the heads of argument the appellant’s tilt at the conviction
is effectively directed at his identification as the offender
and the
fact that the complainant was a single witness whose version lacked
corroboration and is further, according to him, not
reliable.
The State, on its part, does not support the conviction and is silent
on the sentence in the heads of argument
with Mr Zweni volunteering
that the issue of identity was never dealt with extensively during
the complainant’s testimony
and conceding that there exists
doubt as to whether proper identification had been made. He,
further, castigates the prosecutor
for not disputing the appellant’s
version in cross-examination.
[5]
In matters of identification, as Mr Reyneke correctly submits,
honesty, sincerity and subjective assurance do not suffice.
The
identification must be reliable beyond reasonable doubt and such
evidence must be approached with caution.
See:
State v Charzen and Another
2006 (2) SACR 143
(SCA) at
par [11].
[6]
The conviction is based on the evidence of the complainant who
testified,
inter alia
, to the effect that he was […]
and he knew the appellant, as at the date of the rape, from the
dumping site where they both
worked. That on the fateful night
around 2 am he was in the company of a female friend on their way
home from a tavern where
they had left the appellant. The
female friend was leading him and when she turned the corner he was
grabbed from behind
by the appellant. The appellant tripped him
up and he fell down. He screamed but the appellant muzzled him
with his
hand and, when he removed it and screamed, the appellant
throttled him. The appellant, thereafter, undressed him by
removing
his pants. The appellant, thereupon, inserted his
penis into his anus. After raping him, the appellant left
him
on the ground and ran away. Although it was dark he saw the
appellant’s face when the latter throttled him. He,
further, recognised the appellant’s voice when the latter
warned him that if he did not want to allow him sexual favours
he was
going to kill him. He was drunk but he was conscious of what
was happening around him. He had earlier been enjoying
alcoholic beverages with the appellant and others at the tavern.
He never had a love relationship with the appellant.
[7]
The question in this appeal is whether or not there is certainty
beyond reasonable doubt that the complainant’s identification
of the appellant as the rapist is reliable. It is clear from
undisputed evidence that the appellant and the complainant knew
each
other and that they were together shortly before the incident.
It is, further, indisputable that when a person throttles
another
they get to be in close proximity to each other. It was further
not in dispute that the complainant knew the appellant’s
voice. It is, furthermore, implicit from the complainant’s
evidence that, although the area was not lit, people could
still walk
and were, as such, able to see their way through the darkness.
The complainant’s evidence to the effect
that, although he was
drunk, he was alive to his surroundings was not disputed.
[8]
The fact that the scene of the crime was dark increases the risk of a
mistaken identification in the light of the appellant’s
defence
that he did not rape the complainant. The fact that the
complainant knew the appellant reduces such a risk and so
does the
fact that the complainant was
au fait
with and could recognise
the appellant’s voice. Although the complainant’s
inebriety at the relevant time further increases
the risk of wrong
identification, the fact that the complainant was, undisputedly,
conscious of his surroundings, in my view, neutralises
such a risk in
the absence of any evidence to the contrary.
See:
R v Dladla and Others
1962 (1) SA 307
(AD) at 310 paras
C – E on the role played by prior knowledge of the offender in
identification.
[9]
The question is whether or not there is a reasonable doubt that the
complainant was correct in his identification of the appellant
as the
rapist. In my view the issue in the instant matter turns around
the opportunity the complainant had to make a positive
identification
regard being had to the darkness in the area as well as his state of
inebriety. This aspect of the complainant’s
evidence was
not tested at all. Although he testified that he saw the
appellant’s face when the latter strangled him,
it was not
established and it is, as such, not apparent
ex facie
the
record how long he held the appellant’s face under observation
in order to recognise and identify him.
[10]
It is, thus, in my view not certain beyond reasonable doubt that the
complainant had ample time and opportunity to identify
the appellant
as the offender. We are, thus, in respectful agreement with
counsel on both sides that the trial court erred
when she found that
the complainant had the opportunity to identify the appellant as the
rapist at the time the demand for sex
was made. For the court below
to conclude and be satisfied beyond reasonable doubt that the
complainant, in fact, had such an opportunity
it was imperative, in
my judgment, for the State to adduce evidence on the duration of the
complainant’s observation of the
appellant’s face. Absent
such evidence it cannot be said, in the circumstances of the instant
matter, that the State proved
its case against the appellant beyond
reasonable doubt. The conviction and sentence on the attempted
rape charge can, however,
not be faulted.
ORDER
[11]
The appeal succeeds and both the conviction and sentence on charge 3,
namely rape, are set aside.
[12]
The conviction and sentence on charge 2 are confirmed.
[13]
The order relating to section 103 of Act 60 of 2000 remains in place.
______________
L.
J. LEKALE, J
I concur.
____________
S. NAIDOO, J
On behalf of
appellant: Adv
J.D. Reyneke
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of respondent: Adv L.
Zweni
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
/spieterse