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1986
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[1986] ZASCA 90
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S v Mfeka (4/86) [1986] ZASCA 90 (12 September 1986)
MICHAEL MFEKA vs THE STATE
Case No. 4/86 mp
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE
DIVISION)
In the matter between:
MICHAEL MFEKA
Appellant
and
THE STATE
Respondent
CORAM: VILJOEN, HOEXTER et GROSSKOPF J JA
HEARD:
22 August 1986
DELIVERED: 12 September 1986
JUDGMENT
HOEXTER, JA
2.
HOEXTER
, JA,
In the Durban and Coast Local Division the
appellant, a man aged
twenty-eight years, was charged with the crimes of murder (count 1) and rape
(counts 2 and 3). His trial was
heard by a Court consisting of BROOME, J and two
assessors. The appellant was defended
pro Deo
by counsel. He pleaded not
guilty and in terms of
sec 115
of the
Criminal Procedure Act, 51 of 1977
, he
confirmed the correctness of a written statement prepared by his counsel to
indicate the basis of his defence. The effect thereof
was to disclaim any
knowledge on the part of the appellant of the crimes set forth in the
indictment. At the conclusion of the State
case the appellant closed his case
without testifying himself or calling any witnesses on his own behalf- However,
after having been
found guilty as charged the appellant did testify in regard to
the issue of possible extenuation affecting his conviction
for
3
for murder on count 1. In his evidence in extenuation the appellant,
while persisting in his denial of guilt, explained his movements
and described
what intoxicating liquor he had consumed on the date of the alleged offences
mentioned in the indictment. The trial
Court found that there were no
extenuating circumstances and on count 1 the appellant was sentenced to death.
On each of counts 2
and 3 the appellant was sentenced to six years imprisonment,
the trial Judge ordering that four years of the period of imprisonment
imposed
on count 3 should run concurrently with the sentence on count 2. With leave of
the trial Judge the appellant appeals (a)
against his convictions on all three
counts and (b) against the finding of no extenuating circumstances on count 1
and the sentence
of death consequent thereon.
The deceased on count 1 was an adult male who
was stabbed to death at
about 6 pm on Sunday 7 October 1984.
The
4.
The complainant on counts 2 and 3 was a young woman
aged
twenty-two years who was the mother of two children. The
scene of the
alleged crimes was a stretch of gravel road
in the Tongaat district on the
farm of a Mr Bob Rodgers-
The stretch of road in question is flanked by
cane-fields
and is roughly 3 kms long. It begins at a point some
500m west
of the compound on the farm of Rodgers and ends
just beyond the road-side barracks (also referred to in
the evidence as
"the security compound") which houses security
guards employed by the
Tongaat/Hulett Group.
The substance of so much of the evidence as is material to the appeal against
the convictions may be shortly stated. The complainant
was the chief witness at
the trial and she was also the sole eye-witness in regard to the commission of
all three crimes. Her version
of the events was the following. Shortly before
dusk on the evening in question the deceased and the complainant were
walking
5
walking together on the road described above. There came upon them a man
who was a stranger to the complainant and to whom I shall
refer as "the
assailant". The assailant wore a white T-shirt under a two-piece green overall.
There was a woollen cap on his head
and a towel around his neck. His footwear
consisted of home-made sandals fashioned from motor-car tyres. In addition he
was wearing
sun-glasses, but as he approached he took them off and put them in a
pocket of his overalls. The assailant carried a home-made dagger
or knife.
Without saying a word either to the deceased or to the complainant the assailant
proceeded to stab the deceased somewhere
on his body with the dagger and the
deceased then fell to the ground. The complainant tried to run away but she was
prevented from
doing so by the assailant who grabbed her and stabbed her on the
left shoulder-blade. The assailant then walked away from where the
deceased lay
in the road, at the same time forcing the complainant to accompany him by
tugging at her blouse.
In
6.
In this fashion they proceeded for some
considerable distance along the road until they reached a clearing in a
cane-field. Here the
assailant, having threatened the complainant with the
knife, forced her to have sexual intercourse with him against her will.
Thereafter
the assailant dragged the complainant further along the road. He told
her that he was taking her to a place called Emona. When they
reached a spot
next to a cemetery the assailant again forced the complainant to have sexual
intercourse with him against her will.
During both acts of intercourse the
complainant was hysterical and she wept. She detected no smell of liquor on the
breath of the
assailant and noticed no other indication that he had consumed
liquor. After the second act of intercourse the complainant managed
to get away
from the assailant. She ran to the nearby barracks where she encountered
security guards. To them she reported what had
befallen her. She told them that
the assailant was "tallish" and dark and she described to them what the
assailant
7.
assailant was wearing and that he was in possession of a dagger. A
number of the security guards took the complainant in a light delivery
van and
they proceeded in search of the assailant. They travelled first in the direction
of the compound on the farm of Rodgers and,
finding no trace of the assailant,
turned back and drove in the opposite direction. After some distance the
complainant spotted the
appellant whom she pointed out as her assailant
whereupon he was arrested by the security guards. The complainant testified that
the assailant was the appellant.
In regard to the events subsequent to the
complainant's escape from the assailant, the search for the latter, and the
appellant's arrest shortly thereafter two security guards
from the barracks
aforementioned testified for the prosecution. These were Victor Mzimela and
Dumisani Mthiyane Mzimela told the
trial Court that when the complainant
reported to him that she had been raped and stabbed her clothes were covered in
dust; her face
was
tear-stained;
8.
tear-stained; and that there was an open wound and also blood
on her back. As they drove along in search of the assailant the complainant
described him as being "fair but not very tall" and she detailed the clothes
worn by him. These were described as a white T-shirt,
an overall and a woollen
hat. The complainant did not mention his footwear According to Mzimela the
search for the assailant lasted
some twenty minutes. It proved abortive in the
direction in which they had initially set off and they then turned back and
proceeded
in the opposite direction.. Some thirty paces from their barracks they
came upon the appellant in the road, whereupon the complainant
said "that is the
person who raped me." At this particular spot there is a cane-field on one side
of the road and the Iwewe river
runs next to the cane-field. The appellant
crossed the road and entered the cane-field where Mzimela arrested him. At the
time of
his arrest the appellant was wearing a white
T-shirt,
9.
T-shirt, a greenish overall, and sandals made out of tyres. He
had a towel about his neck and he carried a balaclava in his hand.
By running
his hands over the appellant Mzimela satisfied himself that the appellant was
not armed with a weapon. There was, so testified
Mzimela, a perceptible but not
very strong smell of liquor on the appellant.
Mthiyane said that when the complainant made her report to the security
guards her clothes were bloodstained and she was crying. She
told them that the
assailant was dressed in a two-piece green overall and a white T-shirt; and that
he had a towel around his neck.
She further described him as being "a bit on the
tallish side" and "brownish" in complexion. According to Mthiyane a search for
the
assailant as far as the poultry farm proved fruitless and they then turned
back. After they had travelled past the barracks they
saw a male person whom
the
complainant
10.
complainant identified as her assailant. Mzimela was driving the
vehicle, and he (Mthiyane) had already approached the person so indicated
by the
complainant while Mzimela was still alighting from the vehicle. The person held
an object in one of his hands and he walked
briskly across the road. Before he
could be arrested he threw the object into the river. The object was heavy
enough to cause a splash
and a few drops of water landed on Mthiyane. Mzimela
ran his hands over the person's body but found no weapon. The description of
the
assailant earlier given by the complainant fitted this person. The person held a
balaclava in his hands There was a slight smell
of liquor on the breath of this
person, but according to Mthiyane his speech and gait were normal. Although in
his evidence Mthiyane
did not identify the appellant as the person so arrested
on the evening in question nothing turns on this.
On the morning of Monday 8 October 1984
det const Sikhumba, who was the investigating officer in
the
11.
the matter, found the corpse of the deceased next to the road
in question some 800 metres from the compound on the farm of Rogers.
Post-mortem
rigidity had already set in and Sikhuma formed the impression that the body "had
spent the night in the veld" . A post-mortem
examination on the body established
that death had been due to an incised wound of the chest which pierced the left
lung and penetrated
the heart. The correctness of the findings reflected in the
report of the district-surgeon who conducted the post-mortem examination
was
admitted on behalf of the appellant. The spot at which the body was found was
also pointed out to Sikhumba by the complainant
as the place at which she and
the deceased had been stabbed by the assailant. Two kilometres further on, in
the direction of the
barracks, the complainant pointed out the place at which
the first act of intercourse had taken place; and 200 metres further on
she
pointed out the place where the second act of intercourse had taken place. The
place at which the
assailant
12.
assailant was arrested was pointed out to Sikhumba by
Mzimela. This was just past the barracks and one kilometre further on from the
place where the second act of intercourse had taken place. The locality and the
places abovementioned are depicted in a rough sketch-plan,
and a key thereto,
prepared by Sikhumba and handed in at the trial.
Also on the morning of 8 October 1984 the complainant was examined by a
district-surgeon. The latter testified that he found a 1 cm
incised wound on the
complainant's left shoulder-blade. Mention has already been made of the fact
that the complainant had given
birth to two children. No evidence of serious
injury to the vagina was found by the district-surgeon but a slide of a vaginal
smear
taken by him and submitted for biological examination produced a test
result which was positive for spermatozoa.
The
13.
The trial Court rightly concluded that the deceased had been
murdered and that the complainant had twice been raped, and it properly
limited
the inquiry to the issue whether or not it had been established beyond
reasonable doubt that the appellant was the man who
had committed these three
crimes. The appeal against the convictions raises the same single issue.
At the trial the appellant's counsel during his
cross-examination of the complainant explored with her the possibility that
she might be mistaken in her identification of the appellant
as the assailant.
When asked whether she had noticed any distinctive facial features of the
assailant the complainant replied in
the negative. The appellant's counsel then
pointed out to the complainant that the appellant bore a facial scar, 90 cm in
length,
running from below his left eyebrow across his left cheek. To this the
complainant responded by saying that she did not recall the
scar;
14
scar; and she added the following explanation
-
"Firstly its almost the same colour as that of his complexion and secondly I
did not have sufficient time to observe his features
because he was pulling me
or dragging me along. I wasn't concentrating on his face."
When the complainant was asked whether she had observed the assailant's face
while he was having intercourse with her she replied
-
"No, I wouldn't say I was looking at him. I was crying and hysterical when
the accused was raping me, M'Lord."
At the trial it further emerged that the appellant has his left front tooth
missing. The complainant said that she had noticed the
absence of this tooth
only after the arrest of the appellant. The complainant was adamant, however,
that she was not mistaken in
identifying the appellant as the assailant.
The
15.
The appellant's facial scar was examined at close quarters by
the trial Court and the appellant's counsel agreed with the impression
recorded
by the learned Judge that upon a face-to-face confrontation with the appellant
the scar in question -
"....would not be visible from straight on." In its judgment the trial Court
proceeded to describe the said scar as -
" not very distinctive or obvious or
prominent. Certainly in the light of this Court it was not so."
On the other hand the judgment of the Court below refers to the appellant's
missing front tooth as "a prominent and distinctive feature".
Dealing with the
complainant's admission that she had not observed the missing tooth until after
the appellant's arrest the learned
Judge remarked -
"Now
16.
"Now this, we felt, was perhaps an indication
of honesty
on her part "
In regard to the aforementioned two facial peculiarities the trial Court made
the following finding -.
"We do not consider that her failure to observe the scar or the missing tooth
detracts from her performance and qualities as a witness."
In argument before the trial Court it was urged that the State evidence
affecting the complainant's description to the security guards
of the
assailant's height and complexion tended to show that the complainant's
identification of the appellant as her assailant was
untrustworthy. This
argument was dealt with by the learned Judge in the following way -
"The complainant said she had told these people that her assailant was
tallish and dark. Mzimela said that what the complainant gave
up was that her
assailant was fair and not very tall. Later in his evidence he changed this
slightly. He said that you may call it
'Msundu', which is
not
17.
not very dark and not very fair and he gave a lot of other
words. Mthiyane said that the complainant had described her assailant as
being
on the tallish side and brownish. Now it is notoriously difficult in these cases
to get exact description of colours. The difference
between tallish, not very
tall and on the tallish side we have no regard to, but we do have regard to
Mzimela's evidence which did
vacillate about the complexion."
In the estimation of the trial Court Mthiyane was an excellent witness; and
Mzimela was rated as almost his equal. The trial Court
found that the
complainant, despite her lack of sophistication, was "an honest and reliable
witness." In concluding that the State
had established the appellant's guilt
beyond reasonable doubt the learned Judge expressed the view that at the close
of the State
case the appellant had a strong case to meet; and he drew an
inference adverse to the appellant from his failure to testify.
In his argument before us Mr
Cassim
, to whom
the Court is indebted
for his assistance, relied strongly on
the
18.
the admitted fact that at the time of the rapes the complainant had not
noticed on the face of her assailant two peculiarities (the
scar and the missing
front tooth) exhibited by the appellant. Having regard to the observations
recorded by the trial Court it seems
to me that the scar on the face of the
appellant was a minor and inconspicuous disfigurement. Different considerations,
however,
apply to the missing front tooth, which represented a more obvious and
distinctive peculiarity. The complainant's concession that
she noticed the
absence of this tooth only after the appellant's arrest no doubt - as the
learned Judge pointed out - proclaimed
the honesty of the witness. But, as is
widely recognised, the very fact that an identifying witness is patently honest
may represent
a snare to the court which must allow for the notorious
fallibility of identification evidence; and which must satisfy itself as
to the
reliability of such evidence as a factor independent of the probity of the
witness giving it.
However,
19.
However, while the complainant's aforesaid
concession to some extent reflects adversely upon the dependableness of her
identification
of the appellant as her assailant, it seems to me that in all the
circumstances of the present case there are several factors which
operate to
exclude any reasonable possibility of mistaken identifi= cation and which serve
significantly to reduce the risk that
the appellant was wrongly convicted. The
first factor is that the events following shortly upon her escape from the
clutches of her
assailant provide a useful test of, and a testimonial to, the
complainant's powers of observation. Her description to the security
guards of
the somewhat singular combination of garments worn by her assailant was a
detailed one; and it corresponded closely with
the garb of the man arrested near
the scene of the crimes some twenty minutes after the commission of the last of
the crimes (the
second rape). The second factor is to be found in the
testimony
20.
testimony of Mthiyane, unchallenged on this point, that
immediately before his arrest the appellant got rid of an object in his
possession
by throwing it into the river. The appellant was tracked down by
security guards and it is likely that he appreciated at the time
that his arrest
was imminent. A very ready inference is that what the appellant threw into the
river was an object which, if discovered
on his person, would incriminate him.
The third factor is that the appellant did not himself give evidence to gainsay
the direct
testimony of the complainant that he was the man who stabbed the
deceased and twice raped the complainant. There was, of course,
no obligation
upon the appellant so to testify. But in shrinking from taking the witness-stand
the appellant exposed himself to a
risk. I have already mentioned that in the
assessment of the trial Court the appellant at the close of the State case had a
strong
case to meet. I agree with that view of the strength of the case for the
prosecution; and in my opinion the appellant's
silence
21.
silence at the close of the State case is hardly explicable
on any hypothesis unrelated to his guilt of the crimes with which he was
charged. In my view no valid grounds exist for disturbing the convictions and
the appeal on the merits must fail.
While not abandoning the appeal directed against the finding of the trial
Court that there were no extenuating circumstances attendant
upon the murder of
the deceased, the only matter relied upon by Mr
Cassim
in this connection
was the evidence given by the appellant subsequent to his conviction that during
the day in question he and some
twelve companions shared a dozen cartons of
African beer. The appellant's own testimony was that in consequence of the drink
he had
taken he was under the influence of liquor "to a certain extent" but that
he was "not very drunk." This evidence by the appellant
must be viewed in
association with the State evidence in regard to this issue. It will
be
22.
be remembered that the complainant herself noticed no
sign
that her assailant was in any way affected by liquor. At
the time of his arrest Mzimela and Mthiyane detected a smell
of liquor about the appellant, but Mthiyane testified that
the appellant walked and talked normally. In regard to the
matter of extenuation the appellant bore the burden of proof
The trial Court considered that the probabilities did not
point to the conclusion "that it was intoxication which
influenced him to do what he did." In my view that
conclusion is not open to criticism.
The appeal is dismissed.
G G HOEXTER, JA
VILJOEN, JA ) GROSSKOPF, JA )
Concur