About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2012
>>
[2012] ZAGPPHC 228
|
|
Sithole v S (A1051/11) [2012] ZAGPPHC 228; 2013 (1) SACR 298 (GNP) (8 October 2012)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPORTABLE
IN
THE HIGH COURT OF THE REPUBLIC OF
SOUTH
AFRICA NORTH GAUTENG, PRETORIA
Case
Number: A1051/11
DATE:08/10/2012
In
the matter between
JIMMY
MAFEMANE
SITHOLE
................................................
Appellant
and
THE
STATE
...............................................................................
Respondent
JUDGMENT
BAM
AJ
1.
The Appellant was convicted in the regional court on a charge of rape
in contravention of the provisions of
section 3
of the
Criminal Law
(Sexual Offences and Related Matters)
Amendment Act, No 32 of
2007
, of a girl of 14 years. He was sentence to 18 year's
imprisonment of which a period 4 years was conditionally suspended.
Leave
to appeal against the conviction and sentence was granted by
the trial court.
2.
The State alleged in the charge sheet that the crime was committed
during the year 2009. The appellant, who was legally represented
by
an attorney, pleaded not guilty. The defence was a denial of the
alleged sexual intercourse.
3.
The State proceeded with the trial and applied for leave to adduce
expert evidence in the form of an affidavit in terms of the
provisions of
section 212
of the
Criminal Procedure Act, 51 of 1977
[the"Act"). This affidavit purported to contain evidence in
accordance with the terms of subsections 212(4Ka) and 8(a)
of the
Act, in respect of the result of forensic DNA analysis pertaining to
paternity tests.
4.
When appellant's legal representative, an attorney, raised an
objection against the admissibility of the statement, the learned
regional court magistrate requested him to explain why he objected.
The attorney responded and stated that he wanted to have the
DNA
results independently examined. The magistrate then insisted to be
informed what the legal basis of the objection was. The
magistrate
even went further and asked the attorney whether he was aware what
section 212
statements were all about. The result of the learned
magistrate's conduct was that the attorney summarily withdrew the
objection.
5.
The State was entitled to adduce evidence of this nature by way of a
section 212
statement, to prove prima facie what it contained, even
in the face of an objection. In raising the objection the defence
recorded
that it contemplated to investigate the situation regarding
the forensic evidence with the intention to rebut the prima facie
proof
thereof. Accordingly, in my view, the learned magistrate should
merely have noted the objection at that stage. I will return later
in
this judgment to the issue of prima facie evidence
6.
The trial nevertheless proceeded and the prosecutor read the contents
of the
section 212
statement into the record. The learned magistrate
then remarked as follows: 'Thank you Mr Mbambala (the appellant's
attorney) the
court will come to your assistance. If you have
allegations in respect of the process that was used and with regards
to the analysis
the results obtained, you must lay that basis and
then the court will have consideration to that, considering whether I
will accept
or not accept the
Section 212
of Act 51 of 1977
statement"
The
attorney replied and stated that, according to his instructions, the
process had been tampered with, especially regarding the
samples. He
stated further that the docket indicated that the rape allegedly
occurred in August 2009 but that the child was born
on 21 December
2009. He further added that there was a rumor that the stepfather of
the complainant impregnated her. The attorney
repeated that an
independent DNA test should be conducted.
7.
The learned magistrate thereafter commented as follows:
"Now
what has been submitted and whether that was tampered with, that
evidence must still come. This does not say that all
of that is in
order. So maybe just rethink your basis of your objection because
this does not say that all the other aspects are
important. You can
still cross-examine witnesses and lay the basis of your case that was
said is not what was drawn or the conditions
or circumstances under
which it was drawn or taken, those things. That is a completely
different matter to what this person has
done and analyzed."
The
attorney then capitulated and conceded that the section 212 statement
could be allowed as evidence.
8.
In my opinion it is clear that the forensic evidence adduced by the
State's by way of the section 212 statement, primarily the
so-called
chain evidence linking the blood samples obtained for the purpose of
the forensic DNA analysis, including the marking
and safekeeping
thereof during the time before it reached the forensic laboratory,
was challenged and disputed. In view of the
learned magistrate's
remarks referred to above, the learned magistrate was, without doubt,
acutely aware that this was what the
appellant's defence pertaining
to the forensic evidence actually entailed.
9.
The admission of forensic evidence in the form of a section 212 is
subject to the provisions and prerequisites of sub-sections
212(4)(a)
and 212(8)(a) of the Act.
10.
The relevant part of the subsection 212(4)(a) reads as follows:
"Whenever
any fact established by any examination or process requiring any
skill -(i) In biology, chemistry, physics, geography
or geology; is
or may become relevant to the issue at criminal proceedings, a
document purporting to be an affidavit made by a
person who in that
affidavit alleges that he or she is in the service of the State...,
and that he or she has established such
fact by means of such
examination or process, shall, upon its mere production at such
proceedings be prima facie proof of such
fact:"
The
applicable provisions of subsection 212(8)(a) provide as follows:
"In
criminal proceedings in which the receipt, custody, packing, marking
delivery or despatch of any fingerprint or palm-print,
article of
clothing, specimen, specimen (as defined in section 1 of the
Anatomical Donations and Post-Mortem Examinations Act,
1970 (Act 24
of 1970), or any object of whatever nature is relevant to the issue,
a document purporting to be an affidavit made
by a person who in that
affidavit alleges —
(i)
That he is in the service of the State or is in the service of or is
attached to the South African Institute for Medical Research,
any
university in the Republic or anybody designated by the Minister
under subsection (4);
(ii)
That he in the performance of his duties -
(aa)
received from any person, institute, State department or body
specified in the affidavit, a fingerprint or palm-print, article
of
clothing, specimen, tissue or object described in the affidavit,
which was packed or marked or, as the case may be, which he
packed
and marked in the manner described in the affidavit;
(bb)
delivered or despatched to any person, institute, State department or
body specified in the affidavit, a fingerprint or palm-print,
article
of clothing, specimen, tissue or object described in the affidavit,
which was packed or marked or, as the case may be,
which he packed or
marked in the manner described in the affidavit-fee) during a period
specified in the affidavit, had a fingerprint
or palm-print, article
of clothing, specimen, tissue or object described in the affidavit in
his custody, which was packed or marked
in the manner described in
the affidavit, Shall upon the mere production thereof at such
proceedings, be prima facie proof of the
matter so alleged:"
11.
It is of specific importance for the purposes of this judgment, to
keep in mind that:
(a)The
terms of sub-section 212(4)(a)(ii) deal specifically with the
"analysis", of the DNA exhibits.
(b)The
terms of sub-section 212 (8)(a)(ii)(aa) deal with the receipt of the
exhibits by the deponent to the statement.
(c)Sub-section
212(8)(a)(ii)(bb) deal with the delivery or dispatch of the exhibits
by the deponent.
(d)Custody
of the exhibits by the deponent to the statement is dealt with in
sub-section 212(8)(a)(ii)(cc).
12.
In this matter the relevant contents of the particular section 212
statement, drafted "in accordance with Section 212
subsection
(4)(a) and (8)(a)", and deposed to by captain
M S Mashegoana,
read as follows.
"I..
.am Captain in the South African Police Service, attached to the
Biology Unit of the Forensic Science Laboratory as a
Senior Forensic
Analyst and a Reporting Officer, and
I
am in the service of the State"
"3.1
During the course of my official duties on 2010-08-10,1 received the
case file and thereafter interpreted the DNA results
of the crime
scene and reference sample pertaining to SASELAMANI CAS 31/09/09 (LAB
No 178134/09 [2009110485]) by process requiring
competency in
Biology.
3.2
The following finding(s) can be made from the DNA analyses on the
exhibits;
3.2.1
Paternity cannot be excluded as the alleles present within the DNA
profile of the alleged father "SITHOLEJ. S. (09D4AA4761XX)
occur
within the DNA profile of the child "SHIBAMBO G.
"(09D4AA4778XX).
3.2.2
The Data for the Black population group has been used as the alleged
father "SITHOLE J S" (09D4AA47761XX) presumably
belongs to
this population group.
3.2.3
Given the DNA results, the probability of paternity is 99.99%. (Refer
to table 1.)
3.2.4
Given the DNA results, the alleged father "SITHOLE IS."
(09D4AA46761XX) has a
2
800 000 times bigger chance of being the biological father of the
child "SHIBAMBO G" (09D4AA4778XX), than any other
randomly
chosen individual within the specific population group. (Refer to
table 1)."
"4.The
case file and its contents were in my safekeeping for the duration of
the investigation, from date of receipt until
completion." (Own
emphasis.)
13.
In considering the contents of this particular section 212 affidavit,
it appears that it indeed complied with the requirements
of
sub-sections 212(8)(a)(ii)(aa) and(cc), as far
as, respectively,
the receiving and custody of the samples by the deponent of the
statement, at the laboratory, is concerned. It
also complies with the
requirements in terms of section 212(4)(a) pertaining to the actual
forensic analysis. Accordingly only
the receipt and custody of the
blood samples at the laboratory, and the analysis thereof were prima
facie proved.
14.Regarding
the receipt of the exhibits at the laboratory, the statement lacks
any reference from whom the samples were received.
Section
212(8)(a)(ii)(aa) clearly requires that the "person, institute,
State department or body" from whom the exhibits
were received,
has to be specified. The mere reference to a "case file"
and "SASELAMANI CAS 3109/09", although
it has the
appearance of a police docket reference, is in my view insufficient
proof of the identity of the entity or person who
packed, marked or
despatched the exhibits to the laboratory. The statement, in my view,
does therefore not comply with the requirements
of the said
sub-section and does accordingly not constitute prima facie proof in
that regard.
15.This,
however, does not seem to be the only problem. The section 212
statement makes no reference to any delivering or dispatching
of the
exhibits provided for and required by section 212(8)(a)(ii)(bb). It
goes without saying that the exhibits were either delivered
at or
despatched to the laboratory by somebody or entity.
16.Apart
from the above problems in the State's case, it should also be noted
that section 212 makes no reference to the gathering
of evidence for
purposes of forensic analysis, or to the safekeeping and marking
thereof, immediately after the obtaining thereof
and before it was
delivered at, or despatched to the laboratory. In my opinion these
facts can therefore not be proved by way of
a section 212 statement.
Accordingly the State will be obliged to adduce evidence in that
regard unless it is formally admitted
by the accused in terms of
section 220 of the Act.
17.No
evidence was adduced by the State in respect of the delivering or
despatching and custody of the exhibits before same were
received at
the laboratory, neither was any evidence adduced pertaining to the
gathering and the marking and custody thereof, immediately
thereafter.
18.In
addition to the above issues, it has to be kept in mind that the
defence specifically challenged and disputed the prima facie
proof of
the evidence contained in the section 212 statement, regarding the
chain evidence subsequent to the eventual forensic
analysis of the
blood samples in question. The challenging of the forensic evidence
clearly included the challenge of the actual
receipt of the exhibits
in an uncontaminated condition. This again surely affected the issue
of whether the correct blood samples
were analyzed. Accordingly, even
if I am wrong in finding that the exhibits were not proved to have
been received from a specified
"person, institute, State
department or body" in terms of section 212(8)(a)(ii)(aa), the
question remains whether prima
facie proof thereof became conclusive
in the circumstances where the chain evidence was specifically
challenged.
19.1
do not deem it expedient to deal with what exactly prima facie proof
entails. In my view it is sufficient, for the purposes
of this
judgment, to consider the question in what
circumstances prima
facie evidence will be elevated to conclusive proof.
In S v
Veldhuizen 1982(3) SA 413 AD the Court considered the meaning of
prima facie proof in section 212 of the Act. The following
was held
at 416G-H:
"The words "prima facie evidence" cannot
be brushed aside or minimized. As used in this section they mean that
the
judicial officer will accept the evidence as prima facie proof
of
the issue and, in the absence of other credible evidence, that prima
facie proof will become conclusive proof “
20.
Although the State is required to prove its case beyond reasonable
doubt, an accused facing prima facie evidence allowed in
terms of
section 212, is obliged to rebut such evidence. However, the standard
problem arising in matters of this kind, is what
an accused is called
upon to do to obtain and adduce "other credible evidence"
in rebuttal of prima facie proof.
21.
In Veldhuizen the following was stated at 416E-F:
"In
so far as the facts contained in the certificate may be peculiarly
within the knowledge of the State, so that it may be
difficult for an
accused to impugn such facts, it must be remembered that in terms of
section 212(12) of the Act the court may
cause the person who made
the certificate to be subpoenaed to give oral evidence/'
22.
This dictum In Veldhuizen, however, in my respectful view, does not
remedy the problem faced by an accused regarding the collecting,
marking, and custody of exhibits
before delivery or despatching
thereof to the laboratory. The person who deposed to the section 212
statement regarding the receipt
of the exhibits and the analysis
thereof,
is usually not the person who obtained or collected the
exhibits. This situation is borne out by the contents of the section
212
statement in hand. Section 212 (12), in any event,
specifically
refers to the person who deposed to the section 212 statement. The
sub-section reads as follows:
"(12)
The court before which an affidavit or certificate is under any of
the preceding provisions of this section produced
as prima facie
proof of the relevant contents thereof may in its discretion cause
the person who made the affidavit or issued the
certificate to be
subpoenaed to give oral evidence in the proceedings in question, or
may cause written interrogatories to be submitted
to such person for
reply, and such interrogatories and any reply thereto purporting to
be a reply from such person, shall likewise
be admissible."
23.
The provisions of section 212(12) are indeed applicable to the
evidence contained in the section 212 statement in respect of
the
receipt of the exhibits at the laboratory and the
analysis
thereof. However, in view of the other problems pertaining to the
forensic evidence, I find it unnecessary to consider
what impact
implementing of the provisions this sub-section could have had on
this case. The point is that it was in any event
apparently not
considered and not implemented.
24.
In S v Van der Sandt 1997(2) SACR 116, at 135f, the following is
stated:
"As
the intention with the enactment of
section 212
of the
Criminal
Procedure Act was
to avoid undue wastage of mainly official manpower
by court attendances for the purpose of frequently undisputed
evidence on matters
nearly always incontrovertible, there is no
reason to read into
s 212(4)
a component that relieves the State of
the duty to prove by documentary means that which it would otherwise
do by viva voce evidence."
This
dictum, with which I respectfully agree, in my opinion confirms that
the State is also required to prove the relevant chain
evidence in
respect of any forensic analysis.
25.
In accordance with the dictum in Veldhuizen, the presumption of prima
facie proof provided for in
section 212
, in my view, casts a so
called reverse onus on an accused. It was nevertheless found to be
constitutional in Van der Sandt. Cf
S v Manamela (Director-General of
Justice Intervening) 2000(3) SA1CC. The constitutionality of
section
212
is however not an issue before this Court. The problems in this
matter mainly turn upon questions of procedure and adequacy of
evidence relative to the issue of a fair trial.
26.
In our law it is every person's constitutional right to challenge
evidence against him or her in a court of law. Section 35(3)(i)
of
the Constitution, Act 108 of 1996, reads as follows:
"Every
accused person has a right to a fair trial, which includes the right
-(i) to adduce and challenge evidence."
This
issue was discussed in S v Zuma and Others 1995(2) SA 642 (CC), at
par 16, where
the
following is stated:
"The
right to a fair conferred by that provision (substantive fairness) is
broader than the list of specific rights set out
in paras (a) to (j)
of the subsection. It embraces a concept of substantive fairness
which is not to equated with what might have
passed muster in our
criminal courts before the Constitution came into force."
27.
In practice an accused faced with prima facie proof in terms of
section 212, will usually find himself in the invidious position
that
he will not be able to adduce evidence to rebut the presumption due
to the fact that all relevant facts pertaining to the
chain evidence,
relating to the gathering of exhibits as well as the marking and
safekeeping thereof, are exclusively in possession
or control of the
State.
28.
In my opinion it is obvious that an accused will be severely
prejudiced if he is virtually precluded from contesting and rebutting
prima facie proof in terms of section 212, if the State does not
adduce such evidence. What is accordingly of importance is to
determine in what circumstances, if any, the State will be obliged to
adduce evidence substantiating prima facie proof contained
in a
section 212 statement.
29.
It was ruled by the then Appellate Division in Veldhuizen and R v
Chizah 1960(1) SA 435 AD (at 442 C-G), that the mere challenging
of
such evidence will not be sufficient to affect the evidential value
of prima facie proof. Accordingly it stands to reason that
an accused
challenging prima facie proof will be obliged to lay a basis for
contesting such evidence before the State can be required
or
compelled to adduce the evidence in question, or, at least to make
all necessary information available to afford the accused
the means
and opportunity to rebut the prima facie proof. It should, however,
in my view, not be required from an accused to state
in detail what
the basis for the challenging of such evidence is. It should suffice
if the defence states, for example, like in
this case, that it is
suspected that the blood samples had been tampered with.
30.
Subject to the evidential value of any possible concessions or
admissions that may be made during cross-examination by the accused,
if any, or other proof emanating from
the evidence so adduced by
the State in favour of the accused, an accused still has to adduce
evidence to rebut the prima facie
proof. If anything emanating from
evidence
adduced by the State favours the accused to the extent
that it amounts to credible evidence rebutting the prima facie proof
contained
in the section 212 statement, then cadit quaestio. If no
such favourable credible evidence emanated, the accused will still
have
to rebut the prima facie evidence by adducing other credible
evidence in that regard.
31.
In HIEMSTRA'S CRIMINAL PROCEDURE, at 24-31, where the learned
authors discuss the provisions of subsection 212(8), the following
is
stated:
"Chain—So-called
"chain" evidence explains what happened to the exhibit from
the time it was despatched to
the time the report was received. It is
important that the chain be properly proved if it is not admitted by
the accused."
Subject
to what has been alluded to above pertaining to the challenging of
such evidence, I am in respectful agreement with this
statement in
view of the fact that section 212 provides for nothing more than
prima facie proof. The onus remains on the State
to prove its case
beyond reasonable doubt.
32.
In this case the State did not adduce any evidence, extraneous to the
section 212 statement, regarding the challenged chain
evidence.
Accordingly the appellant was effectively precluded from rebutting
the prima facie evidence contained in the section
212 statement. I
will return later to the question whether the appellant experienced a
fair trial as Constitutionally provided
for.
33.
Pertaining to the chain evidence regarding the gathering of the
samples and the marking and safekeeping thereof before it was
despatched to the laboratory whilst not dealt with in the section 212
statement, it follows that the chain evidence regarding those
issues
was not proved. Accordingly, in view of the lacking of the said
linking chain evidence, the section 212 statement in any
event became
irrelevant and inadmissible evidence. It should therefore have been
disregarded by the trial court.
now
turn to the evidence on the merits. The complainant, T S, a female
person aged 16 at the time the trial commenced on 9 February
2011,
testified that she knew the appellant, he was her neighbour. On a
specific day she was invited to sleep over at the home
of a family
member, named P, (the second witness, P M). P was the appellant's
lover. At about midnight, the appellant arrived
and was admitted to
the house by P. The appellant had sexual intercourse with P and
thereafter with the complainant. The complainant
said the appellant
undressed her and then raped her. She failed in pushing him away. P
observed what happened but did nothing.
The appellant remained in
the house until the next morning and then left.
It
was the complainant's first sexual experience. She did not report the
incident to anybody. She told the court that the appellant
threatened
to kill her should she tell anyone. After some time, not specified by
the complainant, she discovered that she was pregnant.
The child was
born on 21 December 2009. According to the complainant blood samples
were apparently taken from herself, the child
and the appellant.
35.
During cross-examination of the complainant, it appeared that the
appellant, after having been admitted to the house, fell asleep.
The
complainant stated that the incident
occurred after the month of
June 2006. When confronted with the statement she made to the police,
the complainant conceded that
she initially said to the police that
the incident occurred in July that year. The complainant was also
asked whether she recalled
an occurrence when she went to hospital
with a broken hand and that she was then "implanted" with
semen. The complainant
responded that she fell on a Sunday. The
remaining part of the question about the "implanted" semen,
became of no consequence
in that it was not pursued or cleared up by
the defence, the prosecutor or the learned magistrate. The
complainant was however
adamant that the appellant had intercourse
with her and stated that she was a virgin at the time. She further
stated that she was
pregnant for a period of 9 months. It was put to
the complainant that from the month July 2006, when the incident
allegedly occurred,
according to her version to the police, until
December 2006, when the child was born, a period of nine months does
not fit in.
The complainant failed to give any explanation in that
regard.
36.
The second witness, P, after having been sworn in, was on the
receiving end of a stern warning by the learned magistrate not
to
deviate from the statement she made to
the police, otherwise, said
the magistrate, she would be charged by the prosecutor and be
declared a hostile witness. What prompted
the learned magistrate to
issue this
warning does not appear from the record at all. It
appears to have been uncalled for.
What, strangely as it might
seem, coincided with the learned magistrate's admonishment, is that
soon thereafter, during the witness'
evidence in chief, the
prosecutor informed the court that the witness indeed deviated from
her statement. The learned magistrate's
foresight in this regard was,
to say the least, remarkable.
37.
Petu testified about an incident when she and the complainant were
asleep and the appellant, her ex-husband, came into the house.
The
complainant kept on sleeping. The
next morning the appellant left.
It was at this point that the prosecutor informed the court that the
witness deviated from her
statement to the police. The prosecutor,
however, without more, carried on questioning P. The latter then
confirmed that the appellant
had intercourse with her that night. She
also confirmed that the appellant had
sexual intercourse with the
complainant.
38.
In cross-examination, the appellant's attorney endeavored to question
P about the contents of a statement she made to the police.
P stated
that the statement was not read back to her. An application for a
trial within a trial was subsequently granted by the
court to afford
the defence to attempt to have P's statement admitted as evidential
material for purposes of further cross-examination.
In the
trial-within-a-trial, Inspector Chabalala, called by the defense,
testified that he took P's statement down in writing and
that it was
read back to her. The prosecutor did not contest this evidence. The
learned magistrate however questioned the witness
about his
evidence-in-chief where he said that nothing happened after the
statement was read back to the witness. The learned magistrate
was
clearly not impressed with the evidence of inspector Chabalala. The
witness was nevertheless adamant that the contents of the
statement
were confirmed by P. The State did not refute the evidence of
inspector Chabalala and closed its case. The statement
of P was
eventually ruled admissible by the learned magistrate.
39.
The trial then proceeded and the cross-examination of P continued. P
denied that the incident occurred in August as stated in
her
statement and said that it in fact happened in June. She further
testified that she was asleep when the appellant had intercourse
with
the complainant and that she was forced to say that she saw what
happened and that that version was a lie. She also stated
that she
knew nothing about the complainant's pregnancy. The learned
magistrate then proceeded to put a few questions to the witness
in
order to find out why she contradicted herself. The questions
eventually counted more than thirty.
40.
The appellant elected to testify. He denied that he had intercourse
with the complainant. Regarding the DNA evidence the appellant
admitted that a blood sample had been taken from him but contended
that the evidence, apparently the blood samples, was in some
way
manipulated and tampered with. The learned magistrate then questioned
the appellant. Firstly the magistrate enquired from the
appellant
whether he would concede that it is possible that the complainant
could make a mistake about the period of her pregnancy.
After the
fifth question was put to him in this regard by the learned
magistrate, the appellant conceded the point. These questions,
to my
mind, amounted to cross-examination and were not justified. It
creates the impression that the learned magistrate descended
into the
arena.
41.
After the appellant's case was closed on 9 February 2011, the
question about the DNA evidence again arose. The appellant's attorney
then applied for a postponement to enable the defence to secure
independent evidence in that respect. The application was opposed
by
the State.
42.
The learned magistrate then enquired from the defence what had been
done about the issue since October 2010, the day the trial
commenced.
The attorney responded that no arrangements had been made, due to
several reasons, including financial problems. The
learned magistrate
further enquired what basis had been laid for the application. The
attorney submitted that the facts stated
by the complainant, namely
that the rape was committed in July and that the child was born on 21
December, prove that the child
must have been conceived long before
July. The learned magistrate then required that the attorney should
orgue on the law. The
defence attorney, however, did not take the
matter any further and the application was refused by the trial
court.
43.
In his judgment the learned regional court magistrate expressed his
concerns about the appellant's legal representative's competence
and
behaviour as a legal practitioner. It seems that the learned
magistrate was of the opinion that the attorney did not conduct
the
appellant's case properly because of lack of experience. Whether this
remark of the learned magistrate was fair and justified,
is a
debatable issue and actually of no consequence as far as this
judgment is concerned.
44.
In evaluating the evidence, the trial court found that the
complainant and P corroborated each other in all material respects.
In this regard it is clear that the learned magistrate totally
disregarded P's contradicting evidence during cross-examination
when
she stated that she did not see that the appellant had sexual
intercourse with the
complainant.
The
learned magistrate failed to record the reasons for disregarding P's
evidence given during cross examination, save to say that
P was
influenced by the appellant to change her version. This finding is
not borne out by the facts, and in my view constitutes
a material
misdirection.
45.
Regarding the complainant's intellectual capacity, the learned
magistrate referred to the "underdeveloped state of her
brain".
This remark by the trial magistrate is apparently based on the fact
that the complainant, at the age of 16, was still
in grade 6 whilst
her friends of the same age group were already in grade 11. The issue
about the complainant's apparent problems
at school was not properly
investigated. To arrive at any conclusion without evidence in that
regard will amount to speculation.
46.
The learned magistrate apparently did not form an opinion of the
complainant's mental capacity based on her evidence and demeanour
in
court. Unfortunately the impression is created that the learned
magistrate was looking for justification to find that the complainant
could have made a mistake pertaining to the date of the alleged rape.
This reasoning by the learned magistrate's seems to be consistent
with the questions put to the appellant by the court to which I have
referred to above.
47.
In evaluating the evidence on the merits, the following issues are of
importance.
The
complainant was a single witness. In view of the contradictions in
the evidence of P M, the latter's evidence cannot be regarded
as
corroboration for the complainant's version that she was raped. P
admitted that she lied in court and her evidence should accordingly
be disregarded pertaining to the question whether the appellant
indeed had sexual intercourse with the complainant.
48.
A further matter of concern is, taking into consideration the
evidence of the complainant and the date of birth of the child
as
well as the State's allegation that the crime was committed during
the year 2009, when the rape actually occurred. In my view
this date
had to be proved by the State to enable the accused to prepare his
defence. It takes but simple arithmetic to determine
that the
complainant, on all probabilities, could not have conceived the child
after March 2010. Why the dates in June, July and
August were
mentioned by the complainant (and P for that matter), as the day the
rape was committed, is very difficult to comprehend.
In my opinion
the learned magistrate's finding that the complainant could have made
a mistake in that regard is questionable, especially
in view of the
fact that the State apparently also wanted to rely on the evidence of
P who, in her witness statement, mentioned
4
th
August as
the date of the incident. This issue is, in my view, further
complicated by the allegation in the charge sheet that the
rape was
committed during 2009.
49.Another
bothering aspect is the complainant's failure to complain about or to
inform anybody that the appellant had raped her.
How it came about
that paternity tests had eventually been done is not clear at all.
This is not a matter falling under the provisions
of section 59 of
the Criminal Law Amendment Act (Sexual Offences and Related Matters)
Act No 32 of 2007 where the complainant's
report of the rape was
delayed for some or other reason. No evidence was adduced proving
that the complainant reported the alleged
rape at all. (Section 59 of
Act 32 of 2007 provides that no inference can be drawn against a
complainant for the delay in reporting
a sexual crime.)
50.In
conclusion, pertaining to the merits, I wish to remark as follows.
When the evidence is considered in totality, it appears
that the
evidence of the complainant as a single witness does not pass muster.
Her evidence was not clear and satisfactory at all,
and, in my view,
the complainant was not truthful and reliable. It follows that the
complainant's evidence needed corroboration
in some or other form. In
view of the fact that the section 212 statement became inadmissible
evidence and the "corroborating"
witness, P, admitted that
she lied to the court, there was no corroboration whatsoever for the
complainant's version that she was
raped by the appellant..
51.
Therefore, in my opinion, the State failed to prove its case beyond
reasonable doubt. In applying the guidelines stated in inter
alia S v
Trainor 2003(1) SACR 35 SCA, the appellant's denial of having had
sexual intercourse with the complainant should have
been held to be
reasonably possibly true.
52.
Returning to the question whether the appellant experienced a fair
trial, I have already referred to the dictum in Zuma and
Others par
[16] in par 26 above. In my view it suffices to remark that the right
to a fair trial clearly also embraces substantial
fairness. See
Sanderson v Attorney General, Eastern Cape 1998(2) SA 38 (CC) par 22.
51.
In the matter at hand the following aspects seem to be relevant.
(i)
The trial court's refusal of the appellant's application for
postponement to have the issue of the forensic evidence investigated,
apparently because of the fact that no legal basis had been laid; and
(ii)
Failure of the State to adduce the chain evidence alluded to above,
resulting in the trial court finding that the prima facie
evidence
contained in the section 212 statement becoming conclusive.
53.
Pertaining to the first aspect: The trial magistrate's criticism
that the issue of possible changed blood samples was not taken
up
during cross-examination of the complainant
is unfounded. The
issue was raised on at least three occasions during the trial. The
complainant, in any event, would clearly not
have been able to
respond to any questions in that regard.
In
my view the learned magistrate should have appreciated, after having
considered the totality of the evidence, that it was reasonably
possible that a problem pertaining to the forensic evidence existed.
The learned magistrate's reasoning that the admissibility
of the
forensic evidence was not properly challenged by the defence
attorney, lost sight of the fact that the issue was repeatedly
raised
by the defense.
54.
Regarding the issue that the State failed to adduce the relevant
chain evidence, whilst specifically challenged and after a
basis had
been laid substantiating the challenge, it is
clear that it
resulted in the appellant being prejudiced in being effectively
prohibited to challenge and rebut the prima facie
evidence.
It
goes without saying that the challenging of evidence in any event
includes the right to cross-examination.
55.
Accordingly, in my opinion, the aspects alluded to above constituted
irregularities that were substantially unfair to the appellant^)
the
extent that it vitiated the proceedings.
Consequently it cannot be
said that the appellant experienced a fair trial. This was conceded
by Mr Mashuga, appearing for the State.
56.1
therefore propose that the appeal against the conviction and sentence
should succeed and the following order be made.
ORDER
The
appeal against the conviction and sentence succeeds and the
conviction and sentence are set aside.
A
J BAM
ACTING
JUDGE OF THE HIGH COURT
21
September 2012
I
agree. The above order was made on 30 August 2012.
HJ
FABRICIUS
JUDGE
OF THE HIGH COURT
For
Appellant: Adv R T Ntshwane;
Instructed
by Mokgobi Attorneys, Roodepoor
For
Respondent: Adv MM Mashuga;
Director
of Public Prosecutions, Pretoria.