About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2012
>>
[2012] ZAFSHC 54
|
|
Mbatha v S (A180/09) [2012] ZAFSHC 54 (22 March 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A180/09
In the appeal between:-
STEPHEN PHINDA
MBATHA
….............................................
Appellant
and
THE STATE
….....................................................................
Respondent
_____________________________________________________
CORAM:
RAMPAI, AJP
et
NAIDOO, AJ
_____________________________________________________
HEARD
ON:
12 MARCH 2012
_____________________________________________________
JUDGMENT
BY:
RAMPAI, J
_____________________________________________________
DELIVERED
ON:
22 MARCH 2012
_____________________________________________________
[1] The matter came to us
by way of an appeal. The appellant was convicted by the regional
court on 19 October 2006 in respect of
the first and the third
charges, in other words, rape and robbery with aggravating
circumstances respectively, but acquitted in
respect of the second
charge, in other words, the second count of rape.
[2] On the same day he
was sentenced to 15 (fifteen) years imprisonment for rape and 4
(four) years imprisonment for robbery with
aggravating circumstances.
[3] The appellant was
aggrieved. On 3 April 2007 he unsuccessfully applied for leave to
appeal against his conviction and sentence.
He was again aggrieved.
He challenged, by way of a petition, the regional court magistrate’s
refusal to grant him leave to
appeal. He now comes to us on appeal
with the leave of this court granted on 4 June 2009 by Kruger J
et
C.J. Musi J.
[4] The respondent
alleged in the charge sheet that the appellant raped and robbed the
victim, Ms Selloane Loama Mokhatla at Zamdela,
Sasolburg on Saturday,
11 September 2004. Notwithstanding his plea of not guilty, the
appellant was found guilty and sentenced
as I have earlier indicated.
[5] The version of the
state was narrated by one witness only, the victim herself. In
addition to her oral evidence, a medical report
by Dr. M.S. Baloyi
was, by agreement, handed in as documentary evidence in support of
the victim’s version –
vide
exhibit ‘A’.
[6] The version of the
defence was also narrated by one witness only, namely Mr. Steven
Phinda Mbatha, the appellant himself. He
was also known as Fifi.
[7]
The strict cautionary rule relating to female victims of sexual
offences was abolished in
S v JACKSON
1998 (1)
SACR 470
(S
CA). However, the rule as modified
still residually applies to cases where something more can be found
in a case than the mere status
of a victim, as a single witness.
Where the rape complainant is a single witness and some unusual
feature(s) emerges in the testimony
which loudly cries out for its
application to the peculiar facts of the specific case, then the
residual invocation of the rule
is permissible.
[8]
Where a charge against an accused is one of a sexual nature, a trial
court is not at liberty to indiscriminately or recklessly
convict. In
a rape case with an unusual feature(s), the criminal courts have to
exercise extreme caution and critically evaluate
such a complainant
as an uncorroborated witness and thoroughly analyse such witness’
evidence. The severe gravity of the
prescribed minimum sentence
ordained for the crime of rape, makes it particularly imperative to
the dispensers of justice to be
constantly alert and alive to any
deviation from the behavioural norm -
S v VAN DER ROSS
2002 (2) SACR 362
(C)
.
[9]
The rule must be meaningfully applied and not cosmetically cited. It
should appear from the way the evidence was assessed that
the trial
court indeed pragmatically invoked and applied the rule -
S
v JONES
2004 (1) SACR 420
(C). Any
misapplication of the rule will undoubtedly produce skewed outcome.
[10]
In
S v GENTLE
2005
(1) SACR 420
(SCA) the court held that the natural sympathy which a
court may be inclined to have for the woman who averred she had been
raped,
should not be allowed to blind a trial court in determining
whether or not the ultimate onus required in a criminal trial, had
been satisfied. So much about the law pertaining to the victims in
sexual offences.
[11]
In
R v SHEKELELE AND ANOTHER
1953 (1) SA 636
(T)
at 638 f – g the court remarked that honest
but mistaken identification frequently caused gross injustices. To
avoid such
injustices the court remarked that, in all cases that turn
on identification of an alleged offender by a witness, the greatest
care should be taken to test the evidence. A bald statement that the
accused was the person who committed the crime, was not enough.
Answers to relevant questions about the alleged culprit’s
physique, complexion, peculiar features and wearing apparels, if
not
properly interrogated, just like untested and unexplored bold
statement which has not been inquisitively investigated, can
leave
the door wide open for the reasonable possibility of a big mistake.
[12]
In
S v
MEHLAPE
1963 (2) SA 29
(A) the court held that the witness
must not only be honest, but that an identifying witness must also be
trustworthy regarding
the identification of the person identified as
the culprit.
[13]
In the often quoted decision of
S v MTHE
TWA
1972 (3) SA 766
(A) at 768 A – C Holmes JA
eloquently elucidated the cautionary rule of identification. He
enumerated guidelines that could
be used to test the reliability of a
witness’ observation.
[14]
The inherent pitfalls of a witness’ subjective identification
were highlighted as follows in
S v CHARZEN AND ANOTHER
2006 (2) SACR 143
(SCA) at 149 g – l par. [19] Cameron JA hit
the nail on the head.
Where there is a measure of
perceptible doubt about a single witness’ identification of a
culprit, physical evidence may provide
a measure of objective
assurance against the dangerous pitfalls of subjective
identification. For instance an article such as a
ring stolen from a
victim during robbery and subsequently recovered from a suspect
shortly afterwards tends to connect such a suspect
to the crime.
The case-law I have cited
adequately encapsulates the general law relating to identification.
[15]
In
R v DIFFORD
1937
AD 370
on 373 the court quoted, with unanimous approval, the
observation by the trial court, Greenburg J, that firstly no onus
rested
on the accused to convince the court about the truth of any
explanation he gave. Secondly, that if he gave an explanation even if
that explanation was improbable, the court was not entitled to
convict unless it was satisfied, not only that the explanation was
improbable but that beyond any reasonable doubt, it was false and
thirdly, that if there was any reasonable possibility of his
explanation being true, then he was entitled to his acquittal.
[16]
It is sufficient for the accused to be acquitted if the trial court
reckons that there is a reasonable possibility that the
accused’s
explanation may be substantially true –
R
v M
1946 AD 1023
at 1027 per Davies
AJA.
[17]
It is incumbent upon the prosecution to establish the guilt of the
accused beyond a reasonable doubt. It is permissible to
test the
version of the accused against the inherent probabilities. However,
his version can only be rejected on the strength of
the inherent
improbabilities if it can be said that that such version was so
improbable that no reasonable possibility whatsoever
existed, that it
may be substantially true –
S v SHACKELL
2001 (2) SACR 185
(SCA) per Brand AJA, as he then was.
[18]
Where the prosecution case consists of the version of the victim
only, the trial court is called upon to critically analyse
the
evidence of the victim as a single witness and to warn itself against
the inherent danger of uncritical acceptance of such
evidence -
S
v HESLOP
2007 (1) SACR 461
(SCA).
[19] In
S v
MAVININI
2009 (1) SACR
523
(SCA) the court
held that a trial court must not only take moral responsibility on
evidence and inference for convicting an accused,
but that he or she
must also vouch for the integrity of a system producing the ultimate
conviction. The court stressed that the
trial court’s own
subjective satisfaction of the guilt of an accused, was not enough to
secure proper conviction, but that
subjective satisfaction has to be
attained through proper application of the rules of the system.
[20] Enough has been said
about the generalities of the law relating to evidence on onus of
proof. I now turn to the specifics of
this particular matter. The
victim testified that shortly before midnight on Saturday, 11
September 2004, she was on her way from
a stokvel to her place of
residence at Zamdela. She was walking on foot with two male
companions, namely Mojalefa and Lefa. They
were walking on a tarred
street. In the vicinity of a container, a group of boys emerged. The
group split into two. Some confronted
Mojalefa while others
confronted Lefa. She was isolated and frightened. The thought of
running back whence she came, crossed her
mind, but she did not act
on it.
[21] Suddenly the tide
turned against her. Two members of the group rushed to her,
sandwiched her, grabbed her and pulled her towards
a pawnshop at
Chris Hani. The appellant undressed her. Initially he ordered her to
kneel down. He then knelt down behind her, rested
on top of her back
and vaginally penetrated her from the back. Later on he changed the
position. He ordered her to lie down on
her back. He then knelt down
between her legs, rested on top of her and again vaginally penetrated
her.
[22] The members of the
group warned him, after a while, that his time was up. He ignored
them and carried on. Then they physically
removed him from her. As
the second member of the group was preparing himself to rape her, a
certain Morena appeared on the scene.
The show was over. The
appellant and his companions took to flight and vanished under cover
of the night.
[23] The court
a
quo
, however, accepted the testimony of the
victim as a logical and clear version. The court
a
quo
correctly recognised that the victim was
a single witness; that her main complaint against the appellant was
of a sexual nature;
that her evidence had to be treated with caution
and that she was also an identifying witness whose evidence similarly
had to be
treated with caution. It found that her evidence was not
blemished by any contradictions, inconsistencies, evasive aspects or
unreliable
features. It then convicted the appellant.
[24] During her direct
evidence the prosecutor asked the following question and the victim
answered in the following manner:
“
Do you know
the accused before court? --- Yes, I know him.
How do you know the accused? --- I
know the accused from the 12
th
of the 9
th
month
2004. I was from my place ... (intervenes)”
The victim’s answer
was obviously evasive.
[25] During her indirect
evidence the following exchange between Ms Leoto, attorney for the
defence, and Ms Mokhatla, the complainant
was recorded:
“
The name
Steven Mbatha where did you get it, at the time you want (sic) to
press charges? --- The first time we came here to court
they were
looking for Steven Mbatha and we told them that he is not present
because he is incarcerated.”
The answer was clearly
evasive. The complainant evaded saying from whom she had learned that
the appellant’s name was Steven
Mbatha.
[26] Still during her
indirect evidence, the following exchange between the lawyer and the
complainant was also recorded:
“
ME LEOTO:
And didn’t you on the day of the incident tell Morena that you
don’t know and you are not able to can identify the
people who
raped you? --- No, I did not tell Morena he could realise as we went
to the hospital with a detective that is where
he came to know that I
was raped.”
The crux of the point
pursued here was whether she could identify her eventual rapist on
the day of the incident, Saturday 11 September
2009.
[27] There were only
three reasonable possibilities where she would have had the
opportunity to do so. The first was on the main
street in the
vicinity of the container where she was attacked. The second was in
the vicinity of the pawnshop where she was raped.
The third was
somewhere between the container and the pawnshop where she was
pulled. The complainant evaded the question in a manner
which
suggested that she did not really see how her assailant was dressed
at the time of the incident.
[28] I have extracted
only three passages from the complainant’s evidence to
demonstrate just how evasive a witness she really
was.
“
The witness
was not evasive.”
So found the regional
magistrate. In my respectful view, the finding was not borne out by
the evidence of the witness. Contrary
to the finding of the court
a
quo
it is my respectful view that the witness
was very evasive.
[29] The court
a
quo
found that the complainant had ample
opportunity to observe the accused. It found that she had ten minutes
to make a proper observation
while the accused and his friend were
pulling her away from the main street to the scene of the raping
behind the shop. It was
estimated that she was pulled over a distance
of 45 metres. Her initial answer was that she could not estimate for
how long the
two members of the gang pulled her over such a distance.
Her subsequent answer, which came out when she was pressured, was ten
minutes. The court
a quo
accepted
this as a reasonable estimate.
[30] In my view the
answer was a wild guess. A distance of 45 metres was a very short
distance, hardly half the length of a soccer
field. The victim’s
forced movement from the container to the shop was no stroll in the
park. The assailants were undoubted
in a hurry. Certainly they did
not want to be seen. They could not afford to stroll for 10 long
minutes to cover such a short distance.
Because they wanted to
accomplish their mission quickly, the pulling probably endured for a
whole lot shorter time than the alleged
ten minutes.
[31] The scene was mobile
and not static. There were two assailants pulling her from a spot on
the main street, which was reasonably
illuminated to a secluded and
dark sport behind a shop, which was not. Her attention was
accordingly divided. She could not have
exclusively focussed on only
one of the two. Although she was very close to the two assailants
while they were in transit, she
apparently did not have ample
opportunity to make proper observation. In saying so I am fortified
by the victim’s own averment.
During cross-examination she was
asked as to how she knew that the person who penetrated her from
behind was the accused, now the
appellant. She answered:
“
I saw him
clearly as they were running away.”
[32] I have difficulties
with that answer. At that stage the culprit’s back was turned
towards the victim. He was facing away
from her. The distance between
the two was not narrowing but widening. The culprit was probably
running away from and not towards
the street lamp to take advantage
of the poorly lit section of the neighbourhood. Common sense
logically suggests that the time
the group was in flight, would have
been the most difficult stage for the witness to make a proper
observation of the rapist.
[33] The aforegoing
answer implicitly meant two important things: Firstly, that the
complainant did not clearly see the rapist,
despite the proximity
between their faces, while she was lying on her back and while he was
lying on top of her. That, however,
did not surprise me because
visibility behind the shop was rather comparatively poor. Secondly,
her answer tacitly meant or suggested
that during the course of the
pulling, which preceded the rape, she did not clearly see those who
were pulling her to the scene
where one of them raped her. Again that
did not come as a surprise to me. She was moderately intoxicated. Her
mental faculties
to make a good observation were slightly impaired.
She was frightened. She could not properly concentrate on one
assailant, because
there were two. The scene was mobile. In the end
the good lighting that there was in the vicinity of the container did
not seemingly
help her very much to make proper observation of those
that were attacking and pulling her.
[34] During intense
cross-examination pressure the complainant frankly admitted that she
was able to identify the appellant as her
rapist at the local police
station the next day, Sunday 12 September 2004. Even such
post ex
facto
identification was not done in accordance with the rules of
fair play. It was unclean pointing out. Before the complainant went
to the police station to lay charges against her robbers and rapists,
she was taken to the appellant’s parental home in the
same
neighbourhood by three gentlemen.
[35] They found the
appellant home. The complainant apparently had a glimpse of the
appellant there. They demanded the goods of
which she was robbed the
previous night from the appellant but recovered none. The fact
remained, though, that her visit was not
fruitless. By going there
she gained an unfair advantage concerning the peculiar identificative
features of the appellant, on account
of such unprocedural
identification pointing out.
[36] The complainant,
after a long struggle and persistent questioning by Ms Leoto,
relented and admitted that she went to the police
station to lay
criminal charges against the appellant on the strength of the
information she obtained from Morena, the man who
surprised the
members of the group on the scene. From her admission it became clear
and obvious that her friend, Morena, knew the
appellant; that he
probably told the complainant that the appellant was among the
members of the group; that he pointed out the
appellant’s home
and perhaps the appellant himself to the complainant before she went
to the police station. All these strengthened
the contention that,
but for Morema, the complainant would not have been able to
independently identify the appellant or to give
the police any
constructive information about the identity of her rapist.
[37] When it was put to
her that she did not personally know who her rapist was and that
Morena was the person who actually told
her that the person who had
raped her was the appellant, also known as Fifi, she denied the
suggestion. But she was apparently
so stunned by the suggestions that
she became speechless. The court had to commandatively call upon her
to speak up:
“
Talk, we are
listening.”
So
said the court.
Her response was that she
independently knew her rapist was Steven Mbatha. Now, that was untrue
and inconsistent, with her direct
evidence. It will be recalled that
her earlier evidence was that she did not know the appellant before
the encounter.
[38] She wanted the court
a quo
to believe that
she also identified the appellant, among other features, through a
horizontal scar on the hairline of his forehead,
yet she could not
answer the question as to how she managed to see such a scar on the
dark scene of the crime behind the shop.
From the witness box she
could not see the scar, but she was reluctant to admit that the scar
was difficult to see even during
daytime. She had to be afforded an
opportunity by the court to approach the dock in order to take a
closer look of the face of
the appellant.
[39] She admitted that
she had previously seen the appellant several times at court. It was
therefore improbable that the scar was
a distinctive feature through
which she identified her rapist on the scene. She admitted that
shortly before she gave evidence,
she and the prosecutor discussed
the appellant. Ms Leoto insinuated and Mr. Marabo, the prosecutor,
did not object that the prosecutor
assisted her to identify the
appellant who was paraded as accused number 2 in the dock. Although
the complainant denied the insinuation
that she was so assisted, she
admitted the discussion, but averred that she merely described to the
prosecutor how the appellant
was clad.
[40] If the complainant
was certain about the identity of her rapist, it would not have been
necessary at all for her to unorthodoxically
give his description or
to point him out to the prosecutor before the trial commenced. Soon
after that discussion the prosecutor
asked the complainant to
identify her rapist. He leadingly asked her:
“
Before you
proceed any further madam, is the one that you say he undressed you
present in this court today? --- Yes, he is.”
A fair question should
have been: “Who undressed you?”
[41] The complainant,
unfairly assisted by the prosecutor, then fingered the appellant. In
my view the whole exercise was highly
irregular. This case is a
classic example of how dock identification can be manipulated. The
complainant would not have needed
anyone’s help if she was
certain about the identity of the real rapist.
[42] The complainant’s
evidence was at variance with her police statement as regards her
description of the appellant. I deem
it unnecessary to even go into
the finer details of the dissimilarities. The finding of the court
a
quo
that the complainant’s testimony was consistent with
her previous statement, did not accord with the proven facts. The
complainant
herself frankly acknowledged that her two statements were
inconsistent. The inconsistency concerned a very crucial aspect in
the
case, the identity of her rapist.
[43] There were unusual
features in this case. The plaintiff did not tell Morena, the first
person she met after the incident, that
one member of the group had
raped her. She hardly gave him any description of her rapist. Soon
after the incident she called her
brothers, Mojalefa and Lefa from
her parental home, in connection with the incident, and discussed her
robbery only but not her
rape as well. The next morning a jacket of
one of her brothers, stolen during the incident, was recovered from a
man she regarded
as a friend to the appellant. There was neither any
indication that such a suspect was ever arrested and charged nor an
explanation
why that was the case.
[44] The complainant was
taken to the appellant’s home before the rape was reported to
the police. There was no physical evidence
of any incriminating goods
stolen from the victim but found in the appellant’s possession.
Hours after the rape incident
and the visit, the complainant again
saw the appellant at the police station. She identified him then and
there presumably to some
police officer. However, it would seem that
the appellant was not arrested then and there. Instead he was only
arrested on 30 December
2004, approximately 15 weeks later. The
appellant’s brother, whose name was never disclosed, tried to
offer the complainant
a reward if she dropped the charges. So alleged
the complainant.
[45] In the light of all
this it can be seen, therefore, that there were at least five
possible witnesses who could have testified
in support of the
complainant, namely Lefa, Mojalefa, Morena, the appellant’s
brother and the other suspect from whom the
stolen jacket was
recovered. Yet none of them was called either by the prosecutor or
the trial magistrate. These then were some
of the peculiar features
of the case which justified that the principle in
S v JACKSON
be residually applied to the complainant in this case. The residual
rule was cosmetically cited and not pragmatically applied –
S
v JONES
,
supra
.
[46] What emerges from
the aforegoing appellate critique is that the evidence of the victim
was characterised by a number of unreliable
features concerning the
observation of the culprit. The victim as a single witness in a rape
case was, with respect, not critically
evaluated. Extreme caution was
not exercised to scrutinise and to explore the weak and unreliable
blind spots in the case –
S v VAN DER ROSS
,
supra
. The natural sympathy for a reasonably credible victim
seemed to have clouded the open mind of the court
a quo
to
such an extent that the highly unreliable features, coupled with some
peculiarities and procedural irregularities, were overlooked
–
S v GENTLE
,
supra
.
[47] The victim’s
subjective identification was plagued by misdescription, peculiar
aspects and unreliable features. Worst
still, there was lack of
physical evidence to provide a strong objective redeeming measure for
the weak subjective identification.
The pitfalls thereof still loomed
large on the horizon when the court
a quo
reached its verdict
on 19 October 2006 –
S v CHARZEN
,
supra
.
[48] In my view, the
observation made by the victim failed the objective test of
reliability. Unless we exercise appellate intervention
in favour of
the appellant we too shall have misapplied the law. The integrity of
the rules of the system have to underpin the
subjective human
conviction of a trial court that the accepted evidence, as critically
scrutinised and fairly explored, established
the guilt of the accused
beyond a reasonable doubt –
S v MAVININI
,
supra
.
In the present matter gross injustice was done approximately five and
a half years ago.
[49] In the circumstances
I have reached the conclusion that the court
a quo
materially
erred in concluding that the uncorroborated evidence of the victim,
with all its peculiarities and irregularities was
reliable to secure
proper conviction of the appellant. However, I have painstakingly
endeavoured to show, and I hope I succeeded,
that, on the facts, such
conclusion was unsustainable.
[50] I am persuaded by
Mr. Pretorius’ submission that there exists a reasonable
possibility that the version of the appellant,
notwithstanding its
questionable aspects, was substantially true –
S v M
,
supra
. Ms Bester admirably conceded that the guilt of the
appellant was not established beyond a reasonable doubt. I would,
therefore,
interfere with both convictions.
[51] It follows, as a
matter of logic, that if the convictions fall away, the sentences
cannot remain standing in a vacuum.
[52] Accordingly I make
the following order:
The appeal succeeds
in
toto
.
The convictions in
respect of the first and third charges are set aside.
The sentences in
respect of the first and the third convictions are also set aside.
________________
M.H. RAMPAI, AJP
I concur and it is so
ordered.
_____________
S. NAIDOO, AJ
On behalf of appellant:
Adv. K. Pretorius Instructed by:
Bloemfontein Justice
Centre
BLOEMFONTEIN
On behalf of respondent:
Ms A. Bester
Instructed by:
Director Public
Prosecutions
BLOEMFONTEIN
/sp