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[2014] ZAFSHC 121
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M v S (A229/2013) [2014] ZAFSHC 121 (8 August 2014)
SAFLII
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FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Appeal No.:
A229/2013
In
the appeal between:-
E[…]
M[…] M[…]
….................................................................................................................
Appellant
and
THE
STATE
…........................................................................................................................
Respondent
CORAM:
MOLEMELA, J
et
WRIGHT, AJ
HEARD
ON:
4 AUGUST 2014
DELIVERED
ON:
8 AUGUST 2014
APPEAL
MOLEMELA,
J
[1]
This is an appeal against conviction and sentence. On 14
December 2011 the appellant was convicted by the Regional Court
sitting in Bloemfontein on a charge of housebreaking with intent to
rape and rape.
[2]
The grounds of appeal directed at the appellant’s conviction
are that the court
a quo
erred by finding that the State proved its case beyond reasonable
doubt and specifically insofar as it found
(i) that the
identification of the rapist by the complainant was reliable, and
(ii)
that the DNA evidence served as objective evidence corroborating the
complainant’s version despite the fact that the
official who
had drawn the appellant’s blood sample was not called as a
witness.
[3]
The salient facts giving rise to the appellant’s prosecution
and subsequent conviction are set out hereunder. The complainant,
who
was 14 years old at the time of the incident, testified that the
appellant was well-known to her as he had a love relationship
with
her sister L[…] and fathered her child. On 30 October 2009 the
appellant arrived at the complainant’s home and
found her with
her friends, including D[…]. He asked for her sister.
On learning that she was not there, he
asked for a jersey belonging
to his and L[…]’s son. When the appellant arrived,
the complainant and her friends
were outside the house. The
main door of the house was locked and when the complainant tried to
unlock it, she could not
succeed. The appellant suggested that
someone enter the house through the window of the pantry so that they
could open the
door from the inside. As L[…]’s
boyfriend, the appellant knew that the window of the pantry did not
close properly
due to a latch that did not lock. The appellant
helped a certain boy to jump into the pantry through the window so as
to
open the door from the inside. The door was opened and the
complainant gained access and handed the appellant the jersey he
was
looking for and the appellant then left.
[4]
In the evening the complainant locked the house and went to sleep.
In the early hours of the morning she was awoken and
discovered that
somebody was on top of her. This person was also touching
her vagina. She initially thought that
it was her brother but
later realised that it was not him. The person in question
raped her. There was no lighting
in the room and she could not
see the assailant’s face. She threw her assailant off
her. She could also
feel the piercing when the assailant
was pressing down on her. When she touched him, she realised he
had short hair.
When the person was pressing down on her, she
could feel that he had a piercing on his chin. She could smell
the distinct
smell of the appellant’s perfume. It then
dawned on her that the person raping her was the appellant. She
decided not
to make him aware that she had recognised him, for fear
of being harmed.
[5]
After raping her, the appellant tried to cover her with a mattress
but she resisted, as a result of which she sustained injuries
to her
arm. She ran to the kitchen with the intention of stabbing her
assailant with a knife. She managed to get to the kitchen,
but
her assailant overpowered her before she could get a knife. He
then dragged her to the kitchen and bundled her into the
wardrobe.
He then fled.
[6]
The complainant ran to D[…]’s house, where she reported
that the appellant had raped her. D[…]’s
grandmother then summoned the appellant’s mother, who in turn
summoned the appellant. When the appellant arrived, the
complainant repeated her accusation and alluded to the smell of the
appellant’s perfume, which she picked up from his t-shirt.
The appellant was arrested.
[7]
Back at the house the police’s preliminary investigation at the
complainant’s house confirmed that the house was
still securely
locked. The window of the pantry was wide open and there was a
drum placed near the window. It was deduced
that the assailant
gained entry through the pantry window.
[8]
D[…] testified and corroborated the complainant’s
version. The appellant’s mother was called as a witness
and she confirmed that after her arrival at D[…]’s home
in the early hours of the morning, the complainant was adamant
that
the person that had raped her, was the appellant.
[9]
Dr Adri Krieger testified that the complainant testified that the
complainant reported to her that she was raped by her sister’s
boyfriend. She further testified that the complainant had
injuries to her private parts, which was consistent with forced
penetration. She furthermore removed a swab from the vulva of
the complainant and placed it into the evidence collection
kit, which
was thereafter handed over to constable Snyer.
[10]
Warrant Officer Shane Lesley Whelan, a member of the South African
Police Services assigned to the biology unit and forensic
laboratory
in Pretoria, testified that as an analyst, he received a case file
marked Boshof CAS 51/10/09. He found that the
DNA results,
which was from the evidence collection kit marked 07D1AC9374XX Marumo
P, matched the DNA sample that was sent to them
marked IOD4AA5599EB M
Modise. He also testified that positive and negative controls
are run throughout the whole process
to ensure that the profile
obtained is the correct profile and this eliminated the possibility
of a wrong result.
[11]
The appellant testified and admitted having gone to the complainant’s
house to fetch his son’s jersey earlier that
day, but denied
having gone there again later. He denied raping the
complainant. He testified that at the alleged time
of the rape
he was at his home, sleeping.
[12]
The appellant called his sister L[…] M[…] as a witness
and she confirmed that the appellant was at home at the
time of the
alleged rape, having arrived at his home between 10 pm and 11 pm.
The appellant’s mother was also called
as a witness.
[13]
It is trite that the State bears the onus of proving an accused
person’s guilt beyond reasonable doubt. In
S
v Shackell
[1]
Brand AJA (as he then was) made the following comment:
“
It
is a trite principle that in criminal proceedings the prosecution
must prove it’s case beyond reasonable doubt and that
a mere
preponderance of probabilities is not enough. Equally trite is
the observation that, in view of this standard of proof
in a criminal
case, a court does not have to be convinced that every detail of an
accused version is true. If the accused
version is reasonably
possibly true in substance the court must decide the matter on the
acceptance of that version. Of course
it is permissible to test
the accused version against the inherent probabilities. But it
cannot be rejected merely because
it is improbable; it can only be
rejected on the basis of inherent probabilities if it can be said to
be so improbable that it
cannot reasonably possibly be true.”
[14]
Because of the fallibility of human observation, evidence of
identification is approached by the courts with some caution.
The
Appeal Court in
S
v Mthetwa
[2]
per Holmes JA decided as follows regarding identification:
“
It
is not enough for the identifying witness to be honest: the
reliability of his observation must also be tested. This
depends
on various factors, such as lighting, visibility, and
eyesight; the proximity of the witness; his opportunity of
observation, both
as time and situation; the extent of his prior
knowledge of the accused; the mobility of the scene; corroboration;
suggestibility;
the accused’s face, voice, built, gait, and
dress; the result of identification parades, if any; and, of course,
the evidence
by or on behalf of the accused. The list is not
exhaustive. These factors, or such of them as are applicable in
a particular
case, are not individually decisive, but must be weighed
one against the other, in the light of the totality of the evidence,
and
the probabilities;”
[15]
In
S
v Charzen and Another
[3]
the Supreme Court of Appeal remarked as follows regarding pitfalls of
subjective identification:
“
There
was, in addition, no physical evidence, such as fingerprints or
recovered stolen property that could provide a measure of
objective
assurance against the pitfalls or subjective identification.
The greatest assurance of guilt lay in such evidence,
rather than in
an identification on its own, which could be beset by error and
misdescription.”
(Paragraphs
[16] – [19] at 149b- h.)
[16]
The court
a quo
was satisfied with the complainant’s evidence and was alive to
the fact that her evidence needed to be approached with caution
as
she was a single witness. The court
a
quo
was satisfied that the appellant
had been reliably identified through his short hair, pierced chin and
the scent of his perfume
and accepted the DNA evidence to be
objective evidence that served as assurance against a mistaken
identification. The court
a quo
was satisfied that the DNA evidence was properly admitted into
evidence.
[17]
I turn now to the prosecution’s failure to call the official
who drew the appellant’s blood sample as a witness.
In the case
of
S
v TEIXEIRA
[4]
the
court stated the following: “I think I am stating the obvious
in saying that, in evaluating the evidence of a single
witness, a
final evaluation can rarely, if ever, be made without considering
whether such evidence is consistent with the probabilities.”
[18]
While the prosecution should be criticised for not calling the
official who drew the appellant’s blood sample as a witness
so
as to complete the chain evidence in the face of a denial of all
allegations, it must be taken into account and is of utmost
significance to note that when warrant officer Whelan testified to
having been handed a blood sample bearing the appellant’s
initial and surname, this was not disputed in any way by the
appellant’s legal representative. His evidence of his
laboratory’s rigorous procedures that eliminate a wrong result
was also not disputed. Furthermore, it needs to be taken into
account
that the appellant was adamant that he requested that his blood be
drawn for analysis and testified that his blood sample
was indeed
taken. Another consideration is that from the outset the complaint
fingered only the appellant as the perpetrator of
the rape and only
the appellant was arrested in connection with the complainant’s
rape. Considering that the DNA of the appellant
was found on the
vulva swab, it is safe to accept that the appellant’s DNA could
only have been deposited onto the complainant’s
private parts
through penetration by way of sexual intercourse, an activity that
the appellant vehemently denied having engaged
in with the
complainant. Considering the evidence in totality, it is simply
farfetched that the police could have known the
real rapist, drawn
his blood and then put the name and initial of the appellant on the
blood sample. Under the circumstances,
the ineluctable
inference is that the blood sample was not tampered with and no
adverse inference can be drawn from the state’s
failure to
adduce the evidence of the official who drew the blood.
[19]
I am of the view that the circumstances of this case are such that
the identification of the appellant as the person who raped
the
complainant was proven beyond reasonable doubt. There was no
bad blood between the complainant and the appellant and
they had been
cordial to each other on the very day of the rape when the appellant
went to fetch his son’s jersey.
The appellant knew
beforehand that the window latch of the pantry at the complainant’s
home did not lock properly.
He was able to confirm this state
of affairs when he suggested and facilitated access by a child
through the same window.
[20]
The complainant’s evidence is such that the clear impression is
that the appellant’s general appearance matched
that of the
assailant. It is not many people who have short hair and a
piercing on the chin and use the same perfume as the
one the
appellant used. The DNA evidence was the proverbial nail on the
coffin in as far as the state case was concerned.
[21]
Having considered all the circumstances of the case, I am satisfied
that the State discharged the onus of proving the case
beyond
reasonable doubt. The appeal against conviction therefore falls
to be dismissed.
[22]
The charge sheet read with its annexure is not a model of good
draftsmanship. Despite its inept phraseology, it is however
clear from the charge sheet, read with its annexures, as well as the
discussions that occurred before the appellant pleaded, that
the
charge that was put to him was one charge, namely housebreaking with
intent to rape and rape. In sentencing the accused
the court
a
quo
misdirected itself by imposing two
separate sentences, five years for housebreaking and 25 years for
rape instead of one sentence.
This misdirection warrants the
setting aside of the sentence imposed by the court
a
quo
and a fresh consideration of the
appropriate sentences.
[23]
Rape was correctly described as degrading in the case of
S
v Chapman
[5]
and as repulsive in the case of
S
v Vilakazi
[6]
In
S
v C
1
996(2)
SACR 181C at 186D the court aptly stated as follows:-
“
Rape
is regarded by society as one of the most heinous of crimes, and
rightly so. A rapist does not murder his victim – he
murders
her self-respect and destroys her feeling of physical and mental
integrity and security. His monstrous deeds thereafter
after haunts
his victim and subjects her to mental torment for the rest of her
life – a fate often worse than loss of life”.
[24]
The rape of a child is an abhorrent act. It is truly
unfortunate that such reprehensible deeds are so rampant in our
country. The prevalence of this scourge places a duty on all
courts to impose heavy sentences on those who where she was
expected
to be safe, is another significant aggravating factor.
[25]
Any civilised society views any form of abuse to its children in a
very serious light. The moral blameworthiness of rapists
that
target children must weigh heavily on the minds of the sentencing
courts. See
S
v Swartz and Another
[7]
I am satisfied that the only appropriate sentence for the appellant
is a lengthy custodial sentence. The 13 month period
he spent
in custody awaiting trial is also a factor that this court has taken
into account.
[26]
With regards to sentence, the court
a quo
concluded, correctly
in my view, that there were substantial and compelling circumstances
warranting a departure from imposition
of the minimum sentence.
It considered mitigating and aggravating factors and that the
appellant spent 13 months in custody
awaiting trial. The
mitigating factors taken into consideration are the following:
that
he was 24 years old at the time of the commission of the offence;
that he passed Grade 12; that he was gainfully employed and
responsible for the maintenance of his two minor children.
[27]
The court
a quo
also took the following aggravating factors into account: that the
appellant abused the trust relationship that existed between
the
complainant and the appellant; that the complainant was only 14 years
old at the time of the rape and lost her virginity in
a degrading
manner at the hands of the appellant; that the complainant suffered
psychological trauma; that the appellant did not
show any remorse for
his actions.
[28]
In considering the appropriate sentence, consideration has been paid
to sentences imposed in similar cases. See
S
v Mahomotsa
[8]
;
S
v Bopape
[9]
;
S
v Ngada
[10]
;
Director
of Public Prosecutions, North Gauteng v Thabethe
[11]
;
S
v MV
[12]
.
It remains a trite principle that every case must be judged on its
own facts.
[29]
Having considered all the circumstances of the case, I am of the view
that the appropriate sentence is 22 years imprisonment.
[30]
The following order is made:
1.
The appeal against conviction is dismissed.
2.
The appeal against sentence is upheld.
3.
The sentence imposed by the court
a
quo
is set aside and replaced with the
following: 22 years’ imprisonment.
4.
The sentence mentioned in paragraph 3 above
is antedated to the 12
th
January 2012.
_________________
M.B.
MOLEMELA, J
I
concur.
_________________
G.J.M.
WRIGHT, AJ
On
behalf of appellant: Mr K. Pretorius
Instructed
by:
Justice
Centre
BLOEMFONTEIN
On
behalf of respondent: Adv M. Lencoe
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
[1]
2001
(2) SACR 185 (SCA)
[2]
1972
(3) SA 766
(A) at 768 A – C
[3]
2006
(2) SACR 143
[4]
1980
(3) SA 755
at 761
[5]
1997
(2) SACR 3 (SCA)
[6]
2009
(1) SACR 552 (SCA).
[7]
1999
(2) SACR 380
(C) at 387 h-j.
[8]
2002
(2) SACR 435 (SCA)
[9]
2003
JDR 0156 (W)
[10]
2009
JDR 216 (EC)
[11]
2011
(2) SACR 567 (SCA
[12]
2012
JDR 1094 GNF