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[2013] ZAKZPHC 22
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Mbotho v S (AR 96/2012) [2013] ZAKZPHC 22 (31 May 2013)
1
Not Reportable
IN THE
KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
CASE NO. AR 96/2012
In the matter
between:
ZUKO MBOTHO
......................................................................................
Appellant
and
STATE
.....................................................................................................
Respondent
________________________________________________________________
JUDGMENT
________________________________________________________________
GORVEN J:
The appellant faced
14 indictments before van der Reyden J sitting in the Ramsgate
Circuit High Court. He pleaded not guilty to
all 14 counts and
elected not to disclose the basis of his defence in terms of s 115
of the Criminal Procedure Act 51 of 1997
(the Act). Count 6 related
to rape. It was alleged that on 3 February 2008 he had raped the
complainant by inserting his penis
into her vagina without her
consent. Count 10 related to the rape of a different complainant and
was alleged to have been committed
on 5 March 2008. He was convicted
as charged on these two counts and acquitted on the balance of the
counts. He was sentenced
to 10 years’ imprisonment on each of
the two counts and it was ordered that 5 years of the sentence
imposed on count 10
should run concurrently with that imposed in
respect of count 6. He applied for leave to appeal against both of
the convictions
and both sentences. The court a quo dismissed the
application in respect of the conviction and sentence on count 10.
It is with
the leave of the court a quo that this appeal is brought
in respect of the conviction and sentence on count 6.
There is no doubt
that the complainant was raped on the day in question. The attack on
the conviction relates to whether or not
the appellant was correctly
identified as the person who had raped the complainant as she
claimed. In this respect, the complainant
was a single witness.
There was therefore a two fold reason to exercise caution when
evaluating whether or not to convict the
appellant. The first was
because the conviction relied on the evidence of a single witness.
The second was because that evidence
related to identification in
circumstances where the complainant had never before seen her
assailant.
As
regards a single witness, the law is clear. The dictum of De
Villiers JP in
R v Mokoena
1
was to the effect that the evidence of a single witness
must be “clear and satisfactory in every material respect”.
This has been somewhat corrected in
S v Sauls
and Others
2
where
Diemont JA said the
following:
‘
There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness (see
the
remarks of Rumpff JA in
S
v Webber
1971 (3) SA 754
(A) at 758). The trial Judge will weigh his evidence,
will consider its merits and demerits and, having done so, will
decide whether
it is trustworthy and whether, despite the fact that
there are shortcomings or defects or contradictions in the testimony,
he is
satisfied that the truth has been told. The cautionary rule
referred to by De Villiers JP in 1932 may be a guide to a right
decision
but it does not mean "that the appeal must succeed if
any criticism, however slender, of the witnesses’ evidence were
well founded" … It has been said more than once that the
exercise of caution must not be allowed to displace the exercise
of
common sense.’
As
regards identification, the cases are legion. The leading exposition
of the approach to be taken is found in
S v
Mthetwa
3
where Holmes JA said:
‘
Because
of the fallibility of human observation, evidence of identification
is approached by the Courts with some caution. 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 for observation, both as to
time and
situation; the extent of his prior knowledge of the accused; the
mobility of the scene; corroboration; suggestibility;
the accused's
face, voice, build, 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….’
The evidence of the
complainant was simple. She had gone to a place to say goodbye to
her boyfriend and was returning home along
a road at about 3pm when
she noticed a young man or boy following her from behind. He grabbed
her neck and held her mouth while
dragging her, struggling, into and
area of bush until they were out of sight of passers by. It was
because of his youth that
she had been taken by surprise when he
grabbed her and forced her into the bush. There he threatened her
and removed her skirt.
He instructed her to take off her T-shirt and
to lie down, then removed her bra and raped her by placing his penis
into her vagina
whilst lying on top of her. She was a virgin at the
time. When done with her he told her to crouch with her back to a
tree, took
her T-shirt and put it over her head and around her neck.
He told her to open her mouth and put the bra in her mouth, tying
her
head to the tree with it. He tied her hands behind her back with
his shoelaces. He tore her skirt, tied her body to the tree with
it
and left her there, telling her that he was going to retrieve her
cellphone which had fallen when he grabbed her and dragged
her into
the bush. He then walked out of the bush in the direction from which
they had approached.
After a while, she
realised that he was not returning and managed to free herself. With
her hands still tied behind her back,
she grabbed her skirt and set
off for help, coming to a shop whilst still naked. There she was
assisted and the police and her
parents were called. At about 4.30pm
the police took her in their marked vehicle to look for her
assailant. Whilst travelling
along the road, she saw the appellant
who was about 15 to 20 metres ahead. He was dressed as before and
his takkies had no laces.
The police vehicle began to stop. He
turned around, saw the vehicle and ran from in front of the vehicle
to behind it, disappearing
into the bushes. A warning shot was fired
and the police pursued him but he escaped. They then spoke to the
appellant’s
parent who undertook to contact the police when he
returned. She then went to the police station and was taken to a
doctor who
found bruising of the labia minora, a fresh tear,
swelling and bruising on her hymen, as well as a laceration on her
left leg
and an abrasion on her right wrist consistent with the
wrists having been tied. The doctor concluded that rape and assault
was
probable.
After this they
returned to the police station where a message was received from the
parents of the appellant that he was at home.
She, her mother and
the police then went to his home. They were shown two young boys and
she pointed out the appellant as being
her assailant. He had changed
his clothing by then and appeared frightened saying ‘Where did
I see you?’ His parents
said that his name was Zuko Mbotho.
She had about 15
minutes to observe him during the incident and did so closely. She
could see his face at the time he was instructing
her what to do,
whilst he was raping her and was face to face with her, whilst he
was tying her up and preparing to do so and
when he said he was
going to fetch her cellphone and walked away. She described his
clothing as being light blue shorts, a T-shirt
which was whitish and
a shirt which was Scots brown with cross-hatching stripes. She did
not notice the colour of his takkies
from which he removed the laces
in order to tie her hands behind her back. It was daylight and he
did not in any way cover his
face or head. Her view of him was
unimpeded. She described him as having a well built body but a young
face and she estimated
that he was about 14 years old.
When she saw him on
the road whilst in the police vehicle, she claimed to have
identified him by his face. It was no more than
1 ½ hours
later. She also said that his clothing was unchanged. Significantly,
she noticed that the laces were missing
from his takkies. It was
still daylight and she had an unimpeded view of him. She again
identified him at his house as the person
who had raped her and the
person who had run away from the police earlier that afternoon. She
strenuously denied that she had
mistakenly identified the appellant
as her assailant.
Her evidence as to
what happened immediately after the rape was corroborated in every
material respect by the shopkeeper and the
police. Most
significantly, Constable Zulu identified the appellant as the person
who the complainant pointed out along the road.
When he began to
stop the vehicle and to call to the appellant, the latter ran away
into the bush and escaped. He had good opportunity
to observe him
because the appellant turned towards the vehicle and passed the
vehicle about 4 or 5 paces away when he ran towards
the back of the
vehicle. He was wearing blue shorts but Constable Zulu could not
remember the other clothes he was wearing. When
they returned to the
van after the chase, the appellant’s grandmother emerged from
her nearby property and told Constable
Zulu that it was her son who
had run away. She undertook to contact the police when he returned.
He saw the appellant soon after
that day when conveying him from the
juvenile centre to court. It was the same person who had run away on
the day in question.
The version of the
appellant is that he was herding goats that day in the company of
three friends. He denied ever raping or coming
across the
complainant. He denied running away from the police. He denied
having clothing of the type described by the complainant
and
Constable Zulu. He was fifteen at the time of the offence and
seventeen when he testified.
The trial court
found the complainant to be a good witness and was satisfied with
her opportunity to identify the appellant and
that she had done so
accurately. It rejected the evidence of the appellant. The judgment
was in extremely spare language and
did not go into a great deal of
detail. I am satisfied, however, that there were solid grounds for
arriving at that conclusion
and that the double need for caution was
satisfied by the evidence for at least the reasons that follow.
First, the
complainant had ample opportunity to observe the appellant and
expressed herself surprised that a young person would
accost and
rape her. Secondly, the complainant described his clothing to the
police before searching for her assailant, including
the missing
laces. Thirdly, the pair of shorts described by her was noticed by
Constable Zulu when the complainant pointed out
the appellant as her
assailant. Fourthly, Constable Zulu corroborated her version that it
was indeed the appellant who ran away
when the police vehicle
approached and as soon as the appellant saw it. Fifthly, the
appellant’s grandmother identified
him as the person who had
run away from the police and this latter aspect was not challenged
or dealt with at all in the evidence
of the appellant. Nor did he
challenge the fact that when he had arrived home, his grandmother
phoned the police as promised.
Sixthly, the appellant was a young
person who was fifteen years old at the time of the offence.
Seventhly, Constable Zulu corroborates
her version that the person
who was arrested pursuant to the phone call from the grandmother was
in fact the appellant. There
is therefore no basis to set aside the
conviction on appeal.
It is
trite that an appeal court is only entitled to uphold an appeal
against a sentence in limited circumstances.
4
One of these is where the trial court has misdirected
itself or where the sentence is so startlingly disproportionate that
it
induces a sense of shock. The trial court took into account the
relevant factors and accorded them due weight. The only submission
made in respect of sentence was that this court would be entitled to
ameliorate the sentence on count 10 if the conviction on
count 6 was
set aside. I am of the respectful view that there are no
misdirections warranting interference on appeal. Neither
is the
sentence at all disproportionate. There is therefore also no basis
to interfere with the sentence on appeal.
In the result the
appeal against the conviction and sentence imposed on count 6 is
dismissed.
_________________________
GORVEN J
_________________________
GYANDA J
_________________________
MOODLEY J
Date of Hearing: 31
May 2013
Date of Judgment: 31
May 2013
For the Appellant: Z
Anastasiou instructed by the Pietermaritzburg Justice Centre
For the Respondent:
J du Toit instructed by the Director of Public Prosecutions.
1
1932
OPD 79
at 80
2
1981
(3) SA 172
at 180E-G
3
1972
(3) SA 766
(A) 768A-C.
4
S
v Rabie
1975 (4) SA 855
at 857D-F.