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[2013] ZAGPPHC 62
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Mwale v S (A841/2011) [2013] ZAGPPHC 62 (21 February 2013)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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IN THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
Case
Number: A841/2011
DATE:21/02/2013
In
the matter between:
JAPASI
FANUEL
MWALE
...........................................................
APPELLANT
VS
THE
STATE
....................................................................................
RESPONDENT
Coram:
PRETORIUS J et HUGHES AJ
JUDGMENT
Delivered
on: 21 February 2013
Heard
on: 07 February 2013
HUGHES
AJ
1.
The appellant, Japasi Fanuel Mwale, was charged with rape and murder
in terms of s 51(2) of the Criminal Law Amendment Act 105
of 1997
("the Act"). On 27 May 2009 he was convicted on both
charges in the Kriel Magistrates Court. On 05 June 2009
he was
sentenced to ten (10) years imprisonment for the rape and life
imprisonment for the murder. The 10 years imprisonment for
the rape
was ordered to run concurrently with the life sentence for the
murder. Leave to appeal on both conviction and sentence
was granted
by the court a quo.
The
appellant's bail was extended pending the appeal.
2.
At the commencement of the trial the appellant, who was legally
represented, pleaded not guilty and exercised his constitutional
right to remain silent. At the conclusion of the state case he opted
not to take the stand in his defence. He was in the end convicted
of
the rape and murder of the deceased, SCN, in Matla Coal Village, on
22 November 2003.
3.
On the day in question the appellant met the deceased in the company
of Happy Sibiya ("Happy") and Tom Kamang ("Tom")
at a tavern known as "House 66" in Malta Coal Village.
Happy and Tom testified that they were in the company of the deceased
prior to all three going to House 66 where they met the appellant who
joined them. After a while Happy left for Witbank. The others
continued drinking at the tavern.
4.
Later all three proceeded to the appellant's home where he prepared a
meal. Whilst doing so, Tom and the deceased fell asleep.
When Tom
woke up the deceased was not around. The appellant informed Tom that
the deceased had left. Tom and the appellant returned
to House 66 and
continued drinking. At 05:30 in the afternoon of 23 November 2003 the
body of the deceased was discovered on a
vacant property that was
close to House 66.
5.
The appellant was arrested at his home. A blue pair of trousers and
a blue and white shirt were found hidden on top of a wardrobe.
The
appellant stayed on these premises with his father and Mandla Sokho.
Incidentally, Sokho, was a witness that was not called
by the state.
The trousers were soiled by some red sand, similar to that found at
the scene where the deceased was discovered.
The striped shirt was
stained with what resembled a blood stain.
6.
Inspector Kolobe, the investigating officer, found the clothing
items. He testified that he was in the presence of Inspector
Zulu
when he retrieved those items. Zulu on the other hand testified that
he was not present in the room when the items were recovered.
He was
in fact in the sitting room.
7.
Forensic analysis was conducted on the shirt, trousers and a blanket.
The blanket was found on the alleged crime scene. Blood
samples were
taken from both the appellant and the deceased for DNA analysis. The
clothing items and the "crime kit"
containing the DNA
specimen of the deceased were marked with serial no. 02D1AB018000XX.
The blood and DNA specimen from the appellant
was sealed in a
forensic bag with serial no. HK36873ZZ by Inspector Kolobe. These
items were handed over to Captain Van der Merwe,
who personally on 14
January 2004, handed them to the Forensic laboratory, in Pretoria.
8.
It has transpired that when the blood sample and DNA specimen were
taken from the appellant the attending doctor failed to make
the
relevant note on the appellant's J88 form. A further, complication is
that the specimens from the deceased were not taken in
the presence
of Inspector Kolobe. He was in fact called four days after the post
mortem was conducted to uplift the specimen kit.
Things seem to get
even worse for the state when it transpired that Sergeant Taylor, who
at that stage was attached to the forensic
unit from 2000, recorded
that the crime kit she received for analysis purpose in this case,
had the serial no.
02D1AB0180XX.
This was evident from "EXHIBIT I" which the state handed
into court in terms of section 212 of the Act.
It must be noted that
neither the state nor the magistrate sought an admission of such
evidence from the defence, for what it would
have been worth.
9.
In the judgment of the court a quo the magistrate has stated the
following concerning the different serial numbers:
"Nou
op die oog af wil dit voorkom of hier na twee verskillende
seelnommers verwys word en dat die betrokke poiisiebeamptes
by die
misdaadtoneel verwys na seelnommer 1800XX terwyle die betrokke getuie
verwys na seelnommer 180XX. Indien egter eerstens
die MAS-nommer in
aanmerking geneem word asook die betrokke bewysstukke vervat in die
betrokke sogenaamde 'crime kit'r dan is dit
duidelik dat hierdie
dieselfde pakkle was en dat dit 'n blote fout was en dat die een nul
weggelaat was deur die betrokke getui."
10.
From the outset it must be pointed out that there was no direct
evidence linking the appellant to the charges. The court a quo's
conviction was based on circumstantial evidence given by Happy and
Tom, as to what had transpired before and after the incident,
as well
as the forensic evidence. The magistrate placed a lot of emphasis on
the forensic evidence. It is evident from the judgment
that the
appellant's guilt stems from the evidence obtained from the forensic
analysis conducted by Sergeant Taylor. To this end
I refer to a
passage in the judgment:
"Die
getuienis wat deur die staat aangebied is by wyse van 212 verkla
rings,, was prim a facie getuienis van wat daar in vervat
is. Dit het
die verdediging vrygestaan uiteraard om weersprekende of opponerende
getuienis aan te bied."
11.
In S v Boesak
[2000] ZACC 25
;
2001 (1) SACR 1
(CC) at para 24 the Constitutional
Court per Langa DP held:
"[24]
The right to remain silent has application at different stages of a
criminal prosecution. An arrested person is entitled
to remain silent
and may not be compelled to make any confession, or admission that
could be used in evidence against that person.
It arises again at the
trial stage when an accused has the right to be presumed innocent, to
remain silent; and not to testify
during the proceedings. The fact
that an accused person is under no obligation to testify does not
mean that there are no consequences
attaching to a decision to remain
silent during the trial. If there is evidence calling for an answer;
and an accused person chooses
to remain silent in the face of such
evidence, a court may well be entitled to conclude that the evidence
is sufficient in the
absence of an explanation to prove the guilt of
the accused. Whether such a conclusion is justified will depend on
the weight of
the evidence. What is stated above is consistent with
the remarks of Madala J, writing for the Court; in Osman and Another
v Attorney-
General, Transvaalwhen he said the following:
'Our
legal system is an adversarial one. Once the prosecution has produced
evidence sufficient to establish a prima facie case,
an accused who
fails to produce evidence to rebut that case is at risk. The failure
to testify does not relieve the prosecution
of its duty to prove
guilt beyond reasonable doubt. An accused, however, always runs the
risk that, absent any rebuttal, the prosecution’s
case may be
sufficient to prove the elements of the offence. The fact that an
accused has to make such an election is not a breach
of the right to
silence. If the right to silence were to be so interpreted/ it would
destroy the fundamental nature of our adversarial
system of criminal
justice..
12.
The forensic evidence that the magistrate relies on would have had
credence only if the chain of custody of this forensic evidence
was
not broken. The chain of custody evidence, which illustrates what
happened to the exhibits from its dispatch, receipt, and
examination
must be proven if the accused or defence does not admit it.
13.
Counsel for the appellant argued that, amongst others, the fact that
the numbering differed on the evidence bag submitted for
forensic
examination, to that which was uplifted by Captain Van der Merwe, was
a misdirection under the circumstances for the magistrate
to have
admitted this evidence as being prima facie proof. I must agree with
these concerns because the possibility is not too
remote that the
forensic examination could have been conducted on other specimens,
which did not even belong to the appellant and/
or the deceased.
14.
In my view nothing of assistance to the state really turns on the
evidence of Happy and Tom, as they do not provide direct evidence
that the appellant was the perpetrator of the crimes committed. The
fact that Tom gave a description of the clothes that the appellant
had on, on the day in question, and that these clothing items were
found hidden in the house where the appellant lived with his
father
and Mandla Sokho, raises suspicion but not cogent evidence. In light
of all these factors put together I am of the view
that there is no
direct evidence or circumstantial evidence from which the proved
facts eliminate all other reasonable inferences
except the one sought
to be drawn. See S v Reddy
1996 (2) SACR 1
(A) at 8c - 9e.
15.
This case was poorly investigated and not particularly well
presented. It is a travesty of justice to allow guilty people to
go
free but it is an even greater injustice to convict an innocent
person. There are strong suspicions that the appellant may have
been
in improper contact with the deceased. However, suspicion cannot be a
substitute for facts.
16.
For the reasons set out above the appeal succeeds and the following
order is made:
16.1
The appeal is upheld.
16.2
The order of the court a quo is set aside.
16.3
The convictions and sentences are set aside.
W.
Hughes
Acting
Judge of the High Court I Agree;
C.
Pritorius
Judge
of the High Court
Delivered
on: 21 February 2013
Heard
on: 07 February 2013
Attorney
for the Appellant:
ELS,
LOUW & RASOOL ING
c/O
SERFONTEIN VIUOEN & SWART
165
Alexander Street
Brooklyn
Pretoria
Attorney
for the Respondent:
DIRECTOR
OF PUBLIC PROCECUTIONS
28
Church Square
Pretoria
Tel:
012 351 6700
Ref:
MA 99/2011 (7/2/CP)