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[2012] ZAFSHC 240
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Moticoe and Another v S (A299/2011) [2012] ZAFSHC 240 (14 December 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No: A299/2011
In the matter between:-
ITUMELENG FORTUNATE
MOTICOE
....................................
1
st
Appellant
KAGISHO SIDWELL
CHOEU
.................................................
2
nd
Appellant
and
THE STATE
...............................................................................
Respondent
_________________________________________________________
CORAM:
MOLEMELA, J
et
THAMAGE, AJ
JUDGMENT BY:
THAMAGE, AJ
_________________________________________________________
HEARD ON:
15 OCTOBER 2012
_________________________________________________________
DELIVERED ON:
14 DECEMBER 2012
_________________________________________________________
[1] This is an appeal
from the Regional Court, Bloemfontein against conviction only.
[2] Both appellants were
convicted of rape and sentenced on the 26 October 2010 by the
Regional Court magistrate of Bloemfontein.
They were each sentenced
to 17 years imprisonment.
[3] Briefly, the grounds
of appeal are that the court
a quo
misdirected itself by
concluding that there was a duty upon the appellants to disclose
their alibi, that he prescribed as to how
the legal representative
should handle his cross-examination hence the legal representative
was hampered to test the reliability
of the state witnesses.
[4] Further grounds are
that the court
a quo
erred in finding that the identification
of the applicants by the complainant is reliable. That the court
erred in cross-examining
the appellants instead of asking questions
to clarify issues and that the court erred in finding that the
evidence of the appellants
was not credible.
[5] Although the
respondent’s heads of argument were documents opposing the
appeal but during the hearing seemed to be conceding
to some of the
arguments from the appellants’ counsel. I will return later to
this aspect.
[6] Briefly, the facts of
the matter are as follows:
6.1. Complainant
testified that the incident happened when she was going home after
visiting a neighbour. It was dark. After entering
the yard, she saw
two males jumping the fence and then the two attacked her. They
pushed her onto the ground and appellant 1 closed
her mouth so that
she could not scream. Appellant 1 undressed her of her underwear and
he then raped her. After appellant 1 had
finished raping her,
appellant 2 also raped her. Complainant further testified that she
knew both appellants since 1970 and that
she knew their names namely,
Itumeleng and Shima.
6.2. Complainant stated
that she identified the two appellants by their voices and also
stated that she saw their faces because
there was a dim light. The
rape happened outside her house. Complainant also testified that on
the day in question she never drank
any liquor.
6.3. After the incident,
appellants ran away and she made a report to her daughter and told
her daughter the names of her assailants.
6.4. The complainant went
to the hospital and thereafter accompanied the police and showed them
the two appellants. They were then
arrested, although not from their
homes.
6.5. Appellants’
version put to the complainant under cross-examination was to the
effect that complainant was at Sehloho’s
tavern and that since
the appellants left Sehloho’s tavern around 03H30 and they
could not have raped her. The complainant
vehemently denied that she
had visited that tavern that night or that she had taken any liquor.
After the evidence of the third
state witness, namely the police
officer, the state conceded that the complainant was at Sehloho’s
tavern and that the appellants
need not call witnesses to testify
about that:
[7] The evidence of the
complainant’s daughter is that complainant informed her that
she was raped by two males, namely Shima
(appellant 2) and his
friend. Under corss-examination she testified that the complainant
was “moderately drunk”.
[8] Appellants’
version is briefly as follows:
8.1. Appellant 1 stated
that on the day in question he was with appellant 2 and they went to
Mollies tavern and later went to Sehloho’s
tavern. After they
drank liquor, they left around 23H00 to appellant 2’s house and
he then went to spent the night with an
unknown lady (whom they met
for the first time) at the tavern. Under cross-examination, he denied
having seen the complainant at
the tavern of Sehloho.
8.2. Appellant 1’s
witness, namely the lady who spent the night with appellant 1,
testified that she was with appellant 1
from Sehloho’s tavern
until the following day. That appellant 1 spent the night in question
at her place. She testified that
the reason she came to testify was
on request of appellant 1’s brother who came and informed her
of the arrest of appellant
1.
8.3. Appellant 2
testified that he was in the company of appellant 1 and appellant 1’s
witness. He saw complainant that night
at the time when he was at the
counter at Sehloho’s tavern buying beer.
[9] It is trite the
appeal court can only interfere with the decision of the trial court
when there is a material misdirection.
S v FRANCIS
1991
(2) SACR 198
(A) at 204i – e:
“
This
Court's powers to interfere on appeal with the findings of fact of a
trial Court are limited (
R
v Dhlumayo and Another
1948 (2) SA 677
(A)). Accused No 5's complaint is that the trial
Court failed to evaluate D's evidence properly. It is not suggested
that the Court
misdirected itself in any respect. In the absence of
any misdirection the trial Court's conclusion, including its
acceptance of
D's evidence, is presumed to be correct. In order to
succeed on appeal accused No 5 must therefore convince us on adequate
grounds
that the trial Court was wrong in accepting D's evidence - a
reasonable doubt will not suffice to justify interference with its
findings (
R
v Dhlumayo (supra
);
Taljaard
v Sentrale Raad vir Koöperatiewe Assuransie Bpk
1974 (2) SA 450
(A) at 452A-B). Bearing in mind the advantage which a
trial Court has of seeing, hearing and appraising a witness, it is
only in
exceptional cases that this Court will be entitled to
interfere with a trial Court's evaluation of oral testimony.”
[10] In the present case,
the evidence to the effect that the complainant was raped is not in
dispute or contradicted. The question
which was to be resolved by the
trial court was who raped the complainant and, in particular, whether
it is the two appellants
who raped the complainant.
[11] Evidence of the
state in so far as the actual rape is concerned is based on evidence
of a single witness, namely the complainant
herself.
Section 208
of
the
Criminal Procedure Act, No 51 of 1977
is to the effect that an
accused person may be convicted of any offence on the single evidence
of any competent witness.
[12] The complainant on
her evidence stated that she never took any liquor on that day and
was never with the two appellants at
the tavern. The evidence of her
daughter is to the effect that she indeed took liquor. Also the
evidence of the investigating officer
is to the effect that “…en
sy het toe verder vir my meegedeel dat sy saam met hierdie mense die
vorige aand by ‘n
drinkplek gesit het.”
[13] Futhermore, she
testified that she told her daughter the names of her assailants
whilst her daughter said that she told her
that she was raped by
Shima “and his friend”. She did not identify this friend.
Other discrepancies on the evidence
of the complainant is that she
initially said she was from the house across the road later in her
evidence said she was from a
family member down the road. There was
also inconsistency with regards to the lighting at the scene.
[14] During
examination-in-chief the complainant
inter
alia testified as
follows:
State:
“Mevrou, het u hierdie twee persone se gesigte gesien of hoe
het u hulle geïdentifiseer?”
Complainant:
“Ek het gehoor met hulle se stemme nadat Itumeleng vir my op
die grond neergegooi het en Shima ook daar aangekom het.”
During cross-examination
her evidence was as follows:
Question:
“You said it was dark, am I correct?”
Answer:
“Yes it was dark next to the garage.”
Question:
“And then will I be correct if I said you identified the
accused by their voices?”
Answer:
“One of them I identified by his voice, I identified Itemeleng
by his voice at the time when he grabbed me.”
[15] It must be noted
that after the complainant had said that she identified the two
appellants by their voices, she then said
she saw their faces. “Was
u in staat om hulle gesigte te sien ---- Ja ek het dit gesien.”
[16] The inconsistency is
to the effect that she initially identified the two with their voices
but later changed that she only
identified Itumeleng by his voice.
Furthermore she also said that she had seen the two appellants
through a dim light. I will later
on in my judgment touch on the
evidence concerning identification of the two appellants, which
accordingly is a vital factor in
determination of the guilt or
otherwise of the two appellants.
[17] It is trite law that
the evidence of a single witness should be approached with caution -
R v MOKOENA
1956 (3) SA 81
(A). The exercise of caution
should however not overrule the exercise of common sense. See
S
v AARDMAN EN ANDERE
1968 (2) SA 33
(A).
[20] The court
a quo
in its judgment came to the following conclusion: “Ek bevind
gevoglik dat beskuldigdes 1 en 2 wat die hele dag in mekaar
se
teenwoordigheid was en die aand ook in mekaar se teenwoordigheid was
toe die klaagster die taverne verlaat het, haar agtervolg
het en nie
baie ver van die taverne nie, haar by haar eie huis in die tuin
verkrag het.”
[21] I find it difficult
to see how the court
a quo
came to this conclusion. It is not
clear whether this is an inference that it drew. There is no evidence
on record regarding the
time at which the incident happened. There is
also no evidence on record to the effect that the two appellants saw
the complainant
leaving the tavern or followed the complainant from
the tavern. To the extent that the court
a
quo may have drawn
an inference on this aspect, the test is that the inference sought to
be drawn should be consistent with the
proven facts and should be the
only reasonable inference that can be drawn under the circumstances,
See
R v BLOM
1939 AD. Even if it were to be accepted
that the complainant and the appellants were at the tavern, the
reasonable inference drawn
by the court
a quo
is not the only
inference that can reasonably be drawn under the circumstances.
[22] I now turn to the
issue of identification of the two appellants. Complainant stated in
her evidence that she has been knowing
the two appellants since 1970.
She also testified that she identified the two appellants by their
voices. Later when she was asked
whether she saw their faces she
answered in the affirmative, saying there was a dim light and one can
see a person when he is close.
It is also her evidence that the rape
lasted for a minute per each appellant. Her initial evidence was that
it was dark. The version
of her identifying the two appellants by
their voices was repeated during cross-examination where she said it
was dark next to
the garage and she could identify Itumeleng by his
voice at the time he grabbed her. There has been no evidence as to
how frequently
does she speak to the appellants. Hers is the only
evidence tendered by the state relating to the scene of rape.
[23] It is trite law that
evidence of identification should be approached with caution because
of the fallibility of human observation.
See
S v MTHETHWA
1972 (3) SA 766A.
The confidence and sincerity of a witness are not
enough,
S v MEHLAPE
1963 (2) SA 29
A.
[24] Various factors to
be considered are mentioned in
S v MTHETWA
supra
e.g. lighting, visibility, eyesight, proximity, opportunity for
observation, prior knowledge of the accused, accused’s gait,
built etc.
[25] From the evidence
during cross-examination she said only Itumeleng spoke, meaning
appellant 1. How would she then have identified
appellant 2?
[26] As I mentioned
earlier, the complainant later on said she saw them by a “dim
light”. There has been no evidence
as to the source of that dim
light, whether electrical or otherwise and where the light was from,
whether from the street light,
light at the house etc.. What one also
can point out is that she was accosted next to the garage inside her
yard and that during
cross-examination she said it was dark next to
the garage. One finds it difficult to reconcile evidence of dim light
and darkness
next to the garage.
See
S v SITHOLE AN
OTHERS
1999 (1) SASV 585 (W) at 591:
“
Where
a conviction depends on that (identification) evidence alone, a court
must quite obviously be satisfied that the witness is
truthful. What
is perhaps more important though, is that there must be no reasonable
doubt that the witness is not mistaken. In
our view that will
generally require something more than the mere assertion by the
witness that he has correctly identified the
culprit, if the inherent
risk of error is to be guarded against.”
[27] I turn now to the
complainant’s opportunity of observation specifically as
regards to time. There is no evidence regarding
how long the
complainant observed the appellants. What is on record is that each
rape lasted for a minute. The impression that
one gets is that the
complainant only became aware of her assailant’s presence when
she was grabbed and thrown to the ground.
I am of the view that this
duration is not enough for a reliable identification, given that
visibility at the scene was not good,
the complainant’s mental
state of being frightened or shocked.
[28] A bald statement
that the accused is the person who committed the crime is not enough.
That statement should be explained,
tested and investigated. See
R
v SHEKELELE
1953 (1) SA 636
(T) at 638 and also
R v
MPUTING
1960 (1) SA 785
(T).
[29] The state did not
ask questions to ventilate the issue of identity. The court
a quo
also did not do so. It ought to have probed more with regards to
visibility at the scene so as to determine the truth. See
GUNILE
v S
[2003] JOL 10843
(SCA) unreported. The complainant’s
evidence with regards to identification was not corroborated. In view
of the poor quality
of her evidence as already outlined above, I find
that her evidence of identification is not reliable. It does not pass
muster
against the principle laid down in the case of
S v
CHARZEN
2006(2) SACR 143 (SCA).
[30] I am mindful of the
fact that the evidence should not be evaluated in components, that
is, the evidence should be evaluated
in its totality. See
R v
KHUMALO AND ANDERE
1991 (4) SA 310A.
[31] The appellant’s
version was that of an alibi. There have been improbabilities
correctly pointed out by the court
a quo.
For example
appellant 1 stating that he spent the night at the house of one
female but could not give the court the name of that
female. This did
not relieve the state of the burden of discharging the onus upon it,
i.e. of proving the guilt of the appellants
beyond reasonable doubt.
The correct approach is to consider the alibi in the light of
totality of evidence. Even when a defence
of alibi has been raised
the state still has the onus of proving its case beyond reasonable
doubt. The rejection of an ability
does not, in itself, prove the
guilt of the accused, see
S v THEBUS
[2003] ZACC 12
;
2003 (2) SACR 319
(CC).
[32] I am of the view
that having considered the cautionary rule in respect of the evidence
of a single witness as well as identification
of the two appellants,
the evidence of the complainant is not satisfactory in all material
respects especially relating to the
identification of the appellants
as the perpetrators of the rape. The prosecution accordingly failed
to prove the guilt of the
two appellants beyond reasonable doubt.
[33] The following order
is made:
1. Appeal by 1
st
appellant and 2
nd
appellant against their conviction is
upheld.
2. The conviction and
sentence imposed on both appellants by the court
a quo
is set
aside.
_________________
S. J. THAMAGE, AJ
I concur.
___________________
M. B. MOLEMELA, J
On behalf of applicants:
J D Reyneke
Instructed by:
Justice Centre
BLOEMFONTEIN
On behalf of respondent:
Adv. S. Mthethwa
Instructed by:
Director: Public
Prosecutions
BLOEMFONTEIN
/eb