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[2024] ZALMPPHC 111
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Koka v S (A35/2022) [2024] ZALMPPHC 111 (17 September 2024)
SAFLII
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Certain
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO: A35/2022
REPORTABLE:
YES/NO
OF INTEREST
TO THE JUDGES: YES/NO
REVISED.
DATE:
SIGNATURE:
In
the matter between:
THATO
MOKETE
KOKA
APPELLANT
And
THE
STATE
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The appellant was arraigned in the regional court of Mokerong on one
count of rape
read with the provisions of section 51(1) and Schedule
2 of the Criminal Law Amendment Act 32 of 2007 (CLAA). He appeared
before
regional court magistrate Motubatse MJ. He pleaded not guilty
to the charge and denied all the allegations levelled against him.
However, despite his not guilty plea, he was convicted as charged and
sentenced to life imprisonment. Since the appellant has been
sentenced to life imprisonment by the regional court, he is having
automatic right of appeal. The appellant is appealing against
both
conviction and sentence.
[2]
The facts of the case are briefly as follows. The State first witness
was Mapitso
Victoria Ramohlale. She testified that she is working at
Mokopane Hospital in Thuthuzela section as a forensic nurse. On 6
th
October 2019 she examined the complainant and thereafter completed a
J88 for her. The condition of the complainant’s clothes
was
that they looked dirty and torn. Her clinical findings were that a 78
years female gave a history that she was fast asleep
on 5
th
October 2019 at plus minus 21h00 when an unknown person knocked at
her door and told her that her grandson was dead at the butchery.
The
old lady woke up, only to find that he knows the suspect, and she
asked the suspect about the whereabouts of her grandson’s
brothers. The suspect told the complainant that the grandson’s
brothers have sent him to come and call her, only to find
that he
wanted to rape her and money from her. On arrival at the butchery
there was nothing. The suspect started to fight the old
lady, beat
her and allegedly raped her without using a condom several times. The
suspect accompanied the old lady to her homestead
where on arrival
the old lady screamed for help and the suspect ran away.
[3]
The old lady was swollen on the upper lip, back of the head and left
ankle. A plaster
of paris was applied to support the old lady’s
leg. There was no bleeding, no tears, no discharge and no erosion. No
injuries
seen did not exclude vaginal penetration. Specimen was taken
from the complainant, sealed and handed over to constable Madinisa
in
an evidence bag. There were no injuries seen to conclude that there
was anal penetration. The witness was cross-examined and
nothing new
came out.
[4]
The State called D[…] M[…] as its second witness. He
testified that
the complainant is his wife. On the date of the
incident he and the complainant were sleeping together in the room.
As they were
sleeping, a boy knocked at the door calling the
complainant’s name. That boy told the complainant that her
grandson E[...]
was lying there. The complainant woke up and left
with that boy to go where her grandson was lying. The complainant
took some time
to come back home, and arrived in the early hours of
the morning.
[5]
On arrival the complainant entered into the house and screamed for
help. After screaming
the complainant opened the window of their
room. The complainant’s clothes were torn. When the complainant
was screaming
for help, this boy was outside the house telling the
complainant that they must go to the back of their house. When the
community
members arrived, the complainant explained to the community
members what had happened to her. The witness was present when the
complainant explained to the community members about the incident.
The community members decided to go and look for this boy. The
complainant told the witness that the boy was lying to her when he
told her that her grandson was lying there, and that this boy
had
lured her in order to rape her. The witness stated that he did not
see the boy whom the complainant was talking about.
[6]
The witness was cross-examined and he stated that he could not
accompany the complainant
when called by the boy as he had just
removed the plaster of paris from his leg. The witness stated that
the complainant had told
him that this boy had raped her at the
butchery.
[7]
The State called the complainant as its third witness. She testified
that the second
State witness is her husband. On the date of the
incident it was on Saturday and they have come back from attending a
funeral.
On arrival at home she and the second State witness went to
sleep. As they were sleeping, she heard a knock at the door. The
person
who was knocking was saying “old lady wake-up your
grandson is lying at the butchery”. The butchery is where they
sell
alcohol. That person further told the complainant that her
grandson was with his brothers J[...] and M[...].
[8]
As the complainant was scared, she woke up and left without the
second State witness.
The second State witness could not walk as he
was having problems with his legs, and also could not see properly.
She walked to
the butchery with this boy called Mokete Koka and he is
the boy who had knocked at the door of their house. The witness
stated
that Mokete is her neighbour. When asked by the prosecution
where Mokete was that day (date of trial), she responded by stating
that she did not know and she asked whether Mokete was not available.
When asked further by the prosecution whether she was seeing
Mokete
in court, she stated that she did not know if ever Mokete was in the
courtroom, and that she did not know. When asked whether
she could be
able to identify him when she sees him, she said yes. It was only
when the prosecution told the complainant to stand
up and look at
each one of them inside the court, and also to go nearer to where she
was looking, that the complainant pointed
to the appellant in the
accused box as Mokete Koka. She denied having eye problems, but
stated that it was winter and that if she
gets to a place where the
lights are on, it becomes darker.
[9]
The complainant stated that when she gets out of the house, she found
the appellant
waiting at the door, and that even though it was dark
outside there were lights illuminating. However, as she was scared
when she
left her homestead, she did not check whether her outside
lights were on. She only realised when she came back that her outside
lights were smashed. She was able identify the appellant when they
arrive at the butchery, and she also saw that the appellant
was
holding a beer bottle. At the butchery electricity lights were on,
and the appellant pointed at a certain spot as the place
where
complainant’s grandson was allegedly lying, but he was no
longer there. The complainant used her cell phone torch light
to
check where it was dark, but there was no one. The complainant told
the appellant that she was going back home, and the appellant
volunteered to accompany her back home.
[10]
The complainant told the appellant that they must use the main road
to walk back home, but the
appellant suggested that they use the
other road as he was afraid that he will be arrested as he was in
possession of a beer bottle.
They used the road as suggested by the
appellant. When they arrive at a place where the houses were
scattered, the appellant started
walking behind the complainant. The
appellant grabbed the soil from the ground and told the complainant
to check around as there
were thugs around the area. As the
complainant was trying to look back, the appellant poured the
complainant with that soil into
the complainant’s eyes.
[11]
When the complainant asks what was happening, the appellant grabbed
the complainant from behind
and started throttling her with the cord
of the phone. The appellant told the complainant that he was lying to
her, and that her
grandson was asleep at his homestead, and that what
he wanted from her was her vagina and money. They started fighting
and both
of them fell to the ground, but the appellant overpowered
her. The appellant dragged the complainant with her left hand towards
the maize field. On arrival at the maize field, the appellant ordered
the complainant to stand up. By then the appellant was still
holding
a beer bottle.
[12]
The complainant stood up, and the appellant lifted the complainant’s
clothes and covered
her on her face with them. Thereafter the
appellant took off the complainant’s panty, made her to lie on
the ground and put
his penis into her vagina, and had sexual
intercourse with her. Later the appellant ordered the complainant to
stand up, and position
herself like a dog. The appellant pushed the
complainant’s clothes to the front and penetrated her vagina
from the back with
his penis. After the appellant had finished having
sexual intercourse with the complainant, he asked her whether she was
having
money, and the complainant told him that the money was at her
homestead. The appellant told the complainant that they should go
to
her homestead.
[13]
As they were walking on the street, the appellant was holding the
complainant by her torn dress.
When they reach the butchery, the
appellant made the complainant to lie on the street, lifted her
clothes, and by then she did
not put on her panty as they left it at
the place where the first incident took place. The appellant took out
his penis and put
it into the complainant’s vagina and had
sexual intercourse with her. Thereafter they left, and on the way the
appellant
suggested that they should go to a certain shack and they
complainant refused. By then the sun was about to rise, and the
complainant
asked the appellant how she was going to give him the
money. The appellant asked the complainant whether she was sure about
what
she was saying, and when the complainant confirmed that, and
they continued walking.
[14]
When they arrive at the complainant’s homestead, the appellant
was still holding the complainant
by her clothes. The appellant
suggested that they go at the back of the complainant’s
homestead and the complainant refused.
The complainant asked the
appellant to allow her to enter her homestead so that she can be able
to give him money. At that moment
the complainant and the second
State witness opened the door of the house at the same time. On
entering the house, the complainant
locked the door, opened the
window and screamed for help. Some neighbours came, and when they
arrive the appellant was no longer
there. The complainant had
sustained some injuries on her neck, upper lip, leg was painful and
swollen. She was taken to hospital
where a plaster of paris was
placed on her.
[15]
The complainant was cross-examined, and when asked whether she had
asked the person who was knocking
at her door his name, the
complainant stated that at first that person said he was John, later
that person said he must not be
asked questions because the person
was injured. The complainant stated that she knew the appellant as he
was her neighbour and
that they were staying in the same block, and
further that the appellant grew in front of her.
[16]
The complainant stated that during her evidence in chief she was not
able to immediately identify
the appellant as she was seated, but
that when she stood up she was able to do so. She disputed that she
was having eyes problems.
The complainant denied that the neighbours
had searched for the appellant after she had screamed for help. When
it was put to the
complainant that if indeed she had informed the
neighbours that the person who had attacked her was the appellant,
they would have
gone to search for him and deal with him accordingly.
Her response was that had she told the community members, they would
have
followed the appellant and attacked him, which means she was
going to have a problem when it comes to the issue of proof. That
concluded the evidence of the State and it closed its case.
[17]
The appellant took the witness stand and testified under oath. He
testified that he knows the
complainant. He denied all the
allegations levelled against him. He stated that on the date of the
incident in the morning he was
attending his uncle’s funeral.
Around 12h00 he went to Shell Filling Station to buy electricity. At
Shell he met with his
friends, and he stayed with them until 19h00.
From Shell he got a lift which dropped him at Mashupye Primary
School. From Mashupye
he walked to his homestead which is a long
distance. On the way to his homestead he stopped at Busy Corner to
buy a bunny chow.
He waited for the bunny chow for about an hour and
had left Busy Corner around past 21h00.
[18]
On arrival at his homestead, he started vomiting and decided not to
leave his homestead, but
rather to go and sleep. As he was sleeping,
he heard people knocking at his door and describing a person who is
like him, and there
was no one of his similar complexion in his
homestead. Those people were saying a person of light complexion and
who is short had
robbed an old woman. When he heard them talking like
that he got angry as he had his own money and did not utter nice
words towards
them. Those people were forcing the appellant had
robbed an old woman. The appellant told them that if he had done that
they can
go and lay charges against him. Those people were four in
number, and they walked out of the appellant’s homestead.
[19]
After those people have left, the appellant went to his friend’s
homestead, which is not
far from his homestead. As he was at the
friend’s place, the appellant saw the police vehicle going to
his homestead, and
they talked to his uncle and left. The police
officers came back after 20 minutes and arrested the appellant.
[20]
The appellant was cross examined and he conceded that he had known
the complainant for a very
long time. However, the appellant stated
that the complainant started knowing his name after the incident when
the complainant
came to her homestead, and she heard his grandmother
calling him by his name. The appellant conceded that he is not
residing far
from the complainant’s homestead. The appellant
stated that the butchery is not far from his homestead, and that the
butchery
is a drinking place. The appellant conceded that before his
arrest he used to frequent the butchery. The appellant conceded that
at the butchery there are lights from the premises and also street
lights, and that visibility is clear to the extend that it is
like
during the day. The appellant stated that the person whom the
complainant had seen was not him, he was at his homestead asleep
and
that on that day he did not go to the tavern. That concluded the
evidence of the appellant and he closed his case.
[21]
On 25
th
August 2023 this court granted the appellant an
order in terms of section 19(b) of Act 10 of 2013 that further
evidence be led
in respect of DNA results. The matter was remitted
back to the court
a quo
for hearing of further evidence
regarding the manner on how the DNA samples was obtained, dispatched
and the establishment of the
chain evidence.
[22]
Further evidence was led in the court
a quo
in compliance with
the court order of the 25
th
August 2023. Before the
evidence was led, the prosecution brought it to the attention of the
court that they have commenced and
finalised the trial against the
appellant before they received the outcome of the DNA results, and
that they have received the
results after the matter has been
finalised. Chelilo Mashudu Rambau the forensic analyst who did the
DNA analysis in the appellant’s
case was called to testify
about his report. His finding was that the DNA of the semen which was
from the vaginal swabs obtained
from the complainant’s vagina
did not include the appellant, which means that the DNA did not
belong to the appellant. The
witness was asked by the prosecution
whether it was possible to encounter some difficulties in finding the
DNA of the suspect even
in the instance where the suspect had
vaginally penetrated the complainant. His answer was that it was
possible if the suspect
has got a low sperm count cell, or abnormal
sperm count, or the suspect used a condom, or if the suspect has
penetrated the victim
but he did not ejaculate into the victim’s
vagina. The defence did not cross-examine the witness.
[23]
The presiding regional court magistrate in remitting the matter back
to the high court has also
written a memo. In his memo he still
stands by his conviction of the appellant and has stated that he
finds that according to the
analyst and reporter warrant officer
Rambau, the possibilities still exist that the appellant committed
the offence. Further that
there is direct evidence by the complainant
implicating the appellant, and there is no mistaken identity.
[24]
The appellant is appealing against both conviction and sentence. It
is trite that the powers
of the appeal court to interfere with the
findings of fact of a trial court are limited. In the absence of any
misdirection the
trial court’s conclusion, including its
acceptance of a witness’ evidence, is presumed to be correct.
In order to succeed
on appeal, the appellant must therefore convince
the court of appeal on adequate grounds that the trial court was
wrong in accepting
the witnesses’ evidence. A reasonable doubt
will not suffice to justify interference with its findings. Bearing
in mind the
advantage which a trial court has of seeing, hearing and
appraising a witness, it is only in exceptional cases that the court
of
appeal will be entitled to interfere with a trial court’s
evaluation of oral testimony. (See
S
v Francis
[1]
).
[25]
In
S v
Chabalala
[2]
Heher AJA said:
“
The correct
approach to evaluating evidence is to weigh up all the elements which
point towards the guilt of the accused against
all those which are
indicative of his innocence, taking proper account of inherent
strengths and weaknesses, probabilities and
improbabilities on both
sides and, having done so, to decide whether the balance weighs so
heavily in favour of the State as to
exclude any reasonable doubt
about the accused guilt. The result may prove that one scrap of
evidence or one defect in the case
for either party (such as failure
to call a material witness concerning an identity parade) was
decisive but that can only be an
ex post facto
determination
and a trial court (and counsel) should avoid the temptation to latch
on to one (apparently) obvious aspect without
assessing it in the
context of the full picture presented in evidence”.
[26]
The alleged rape which led to the appellant been arrested occurred on
05
th
October 2019, and the appellant was arrested on the
same date. The complainant was examined at the hospital by the first
State
witness. During the examination of the complainant, the first
State witness did some vaginal swabs and also completed the J88. The
vaginal swabs were put into an adult sexual assault evidence
collection kit and handed over to constable Malendisa Olga of the
SAPS on 6
th
October 2019. The said kit was taken to
Forensic Science Laboratory (FSL) for DNA analysis on 18
th
October 2019 free from any contamination.
[27]
The appellant’s matter was transferred from the district court
to the regional court on
28
th
November 2019. The appellant
made his first appearance in the regional court on 21
st
January 2020. A pre-trial conference in the regional court to
determine whether the matter was ripe for trial was held on 18
th
February 2020. The matter was declared trial ready and the proposed
date for the trial was the 22
nd
May 2020. However, on the
minutes of the pre-trial, it has not been recorded that the results
of the DNA were still outstanding,
and why they were rushing to
finalize the matter without those results whilst the investigating
officer had delivered the evidence
kit at FSL on 18
th
October 2019. The trial of the appellant started on 22
nd
May 2020 and was finalised without the DNA results. The DNA tests
results was received by the prosecution during 2022 long after
the
appellant’s trial has been finalized, hence an application by
the appellant to lead further evidence.
[28]
In terms of section 35(3) of the Constitution, an accused person is
guaranteed a right to fair
trial, which right includes the right to
be informed of the charge with sufficient details to enable him to
answer to it. Sufficient
details in my view, includes all details
that are favourable and unfavourable to the accused. That would
enable the accused to
make an informed decision of how he/she is
going to prepare for his/her case. The duty of the prosecution is not
just to secure
a conviction of the accused at all costs. If there is
any evidence that is beneficial to the accused and might exonerate
him or
her, it is the duty of the prosecution to bring that to the
attention of the court to enable the court to make proper analysis of
all the evidence before it. Matters should be properly investigated
before they are declared trial ready. It is not desirable for
the
trial to start whilst there is still outstanding evidence which is
vital for the determination of the matter for the sake statistics
of
finalizing matters speedily.
[29]
It is not clear from the minutes of the pre-trial why the prosecution
as the custodian of the
docket has failed to bring it to the
attention of the court
a quo
that DNA test results were still
outstanding. The evidence kit was not long that it has been sent to
FSL for analysis where it
could have been held that the matter was
unnecessarily been delayed. The DNA result was vital in this case
since the complainant
was a single witness regarding the actual rape
and the appellant was disputing having had sexual intercourse with
the complainant.
It was also surprising during the trial that when
the first State witness testified that she had taken the specimen
from the complainant
sealed it and handed it to the police officer,
the court
a quo
did not find out what kind of specimen was
taken and what had happened to them. Even during the argument of the
appeal before this
court, the respondent was unable to explain why
the prosecution did not take the issue of the specimen further,
except to submit
that the State case was not solely based on the DNA
results but direct evidence. The direct evidence was that of a single
witness
in relation to penetration, which had to be clear and
satisfactory. The DNA test results was going to either strengthen the
State
case or exonerate the appellant, and there should have been
plausible reasons why the trial was proceedings whilst the DNA tests
results were still outstanding, of which none has been presented.
[30]
In
Key v
Attorney-General, Cape Provincial Division, and Another
[3]
Kriegler J said:
“
A criminal trial
court will of course always have to be mindful of the fundamental
rights entrenched in chapter 3. It will in particular
ensure that the
accused enjoys the benefit of the right to fair trial guaranteed by
the general introductory words in s 25(3) of
the Constitution. In
doing so, due regard will be had to the dictum of Kentridge AJ
(speaking on behalf of this Court in its first
reported judgment) in
S v Zuma and Others:
‘
The right to a
fair trial conferred by that provision 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 be equated
with what might have passed muster in
our criminal courts before the
Constitution came into force. In State v Rudman and Another; S v
Mthwana
1992 (1) SA 343
(A), the Appellate Division, while not
decrying the importance of fairness in criminal proceedings, held
that the function of a
Court of criminal appeal in South Africa was
to enquire
“
whether
there has been an irregularity or illegality, that is a departure
from the formalities, rules and principles of procedure
according to
which our law requires a criminal trial to be initiated or
conducted”.
A court of appeal, it was
said (377),
“
does not
enquire whether the trial was fair in accordance with the ‘notions
of basic fairness and justice’, or with
the ‘ideas
underlying … the concept of justice which are the basis of all
civilised systems of criminal administration’”.
That was an authoritative
statement of the law before 27
th
April 1994. Since that
date s 25(3) has required criminal trials to be conducted in
accordance with just those “notions of
the basic fairness and
justice”. It is now for all courts hearing criminal trials or
appeals to give content to those notions’”.
[31]
Section 25(3) referred in the Key matter refers to the Interim
Constitution. That section has
been retained as section 35(3) in the
final Constitution which still guarantees an accused person a right
to a fair trial. The
manner in which the appellant’s case was
finalised without the DNA test results was prejudicial to the
appellant. If FSL
was taking time to finalise the analysis of the
samples, the remedy for the prosecution was to provisionally withdrew
the charges
against the appellant, and reinstate them on receipt of
the results. What had happened in the appellant’s case is clear
example
of the danger of been more interested in the statistics of
finalising matters speedily and at same time trampling the accused
rights
to a fair trial.
[32]
Warrant Officer Rambau the forensic analyst has testified that the
DNA which was obtained from
the semen found on the vaginal swabs of
the complainant does not include the appellant. His conclusion was
that the DNA found deposited
in the complainant’s vagina did
not belong to the appellant. The witness conceded to the
prosecution’s question that
it was possible that even if there
was vaginal penetration, there might be instances where it will be
difficult to find the DNA
of the suspect. The witness stated that
those circumstances are where (i) the suspect had a low sperm count
cell; (ii) abnormal
sperm count cell; (iii) used a condom; (iv) and
if the suspect had penetrated but did not ejaculate into the victim’s
vagina.
[33]
The presiding regional court magistrate his memo after taking further
evidence, still stands
by his conviction. His justification of the
conviction is based on the four scenarios given by Rambau, which
according to him the
possibilities still exists that the appellant
had committed the offence. Further that there is direct evidence by
the complainant
implicating the appellant, and therefore there is no
question of mistaken identity. The State when arguing the appeal
before this
court has also advanced the arguments aligning themselves
to what the regional court magistrate has stated in trying to justify
the conviction.
[34]
The approach of both the regional court magistrate and the State is
flawed. What they have failed
to take into consideration is that it
is the duty of the State to prove the guilt of the accused beyond
reasonable doubt, and there
is no duty upon the accused to prove his
innocence. What Rambau did was give the four scenarios which
according his experience
can made it difficult to find the DNA of a
suspect despite there being a vaginal penetration. He did not link
any scenario to the
appellant. It was the duty of the prosecution to
lead evidence as which of the four scenarios was relevant and
applicable to the
appellant, but had failed to do so. What is left
now is for the court to speculate which scenario might be relevant
and applicable
to the appellant. An accused cannot be convicted based
on speculation and suspicion.
[35]
What is also worrisome is the manner in which the complainant had
identified the appellant in
the accused box. The transcribed record
read as follows:
“
PROSECUTOR: How do
you know Mokete Koka?
COMPLAINANT: We are
neighbours.
PROSECUTOR: Where is he
today?
COMPLAINANT: I do not
know. Is he not available? Is it not I was called by the police?
PROSECUTOR: Just inside
this court, can you see him anywhere, if he is here?
COMPLAINANT: I do not
know if ever Mokete is in this courtroom. I do not know.
PROSECUTOR: If you can
see him, will you be able to recognise him?
COMPLAINANT: Yes, I will
PROSECUTOR: Just stand up
and look at each one of us inside this court. Just go nearer to where
you are looking at.
INTERPRETER: The witness
is pointing at the accused person in the dock your worship.
PROSECUTOR: Do you have
problems with your eyes?
COMPLAINANT: No, not that
much. Your worship, it is now winter. If you get to a place where the
lights are on, it becomes darker”.
[36]
Under cross-examination by the defence counsel when it was put to the
complainant that the reason
why she took some time to identify the
appellant in the accused box was that she is having eye problems, she
disputed that and
stated that she did not have eye problems. The
complainant has testified that she knew the person who had raped her,
but on two
follow up questions, she did not see the appellant in
court. The prosecution went to the extend that the complainant must
stand
up and go nearer to where she was looking without the
prosecution laying basis for the witness to leave the witness box and
go
to person she was looking at. It also does not appear from the
record whether the complainant went to look at the appellant only.
In
the accused box it was only the appellant, and normally the person
whom the witness will be required to identify will be an
accused in
the accused box.
[37]
In terms of section 35(5) of the Constitution, evidence obtained in a
manner that violates any
right in the Bill of Rights must be excluded
if the admission of that evidence would render the trial unfair or
otherwise be detrimental
to the administration of justice. In my
view, the manner in which the prosecution was leading the
complainant, it was channelling
and assisting her to point at the
appellant as person who had raped her. Even though the appellant was
legally represented, and
his counsel did not object to that, that did
not justify the approach of the prosecution in the manner in which it
was leading
the complainant to identify the appellant. It was
prejudicial to the appellant for the prosecution to request the
complainant to
go nearer the appellant without the prosecution having
laid the basis for that, even after the complainant on two follow up
questions
from the prosecution has stated that she was not seeing the
appellant in court. The court
a quo
should have intervened,
and its failure to do so had prejudiced the appellant, as this was
dock identification, and in the accused
dock it was only the
appellant. That has therefore violated the appellant’s right to
fair trial.
[38]
The court
a quo
approach in assessing the evidence in this
matter was not holistic. The evidence of the complainant in relation
to the penetration
was that of a single witness. The manner in which
the complainant had identified the appellant in the accused box was
not clear
and satisfactory. Had the court
a quo
taken into
consideration the irregularities I have pointed out above, that the
appellant’s matter was finalised without DNA
test results which
excludes the appellant as the person who might have deposited his
sperms into the complainant’s vagina,
that the evidence of the
complainant been that of a single witness in relation to penetration
was not clear and satisfactory, and
also that in the possible
circumstances in which a suspect might be held liable despite the DNA
results excluding him, the prosecution
had failed to link any of
those scenarios to the appellant, the court
a quo
should have
found that the balance weighs so heavily against the prosecution as
to exclude any reasonable doubt about the appellant’s
guilt.
The appellant should therefore have been given the benefit of doubt
as the prosecution has failed to prove his guilt beyond
reasonable
doubt. The court
a quo
has therefore misdirected itself in
convicting the appellant. It follows that the appeal on conviction
stands to succeed.
[39]
Accordingly, the following order is made:
39.1 The appeal is
upheld.
39.2 The order of the
court
a quo
is set aside and substituted with the following:
“
The accused if
found not guilty and discharged on the charge of rape”
39.3 It is ordered that
the appellant be immediately released from the correctional services
which he might be held, unless he is
still having some pending cases
or serving other sentences.
KGANYAGO
J
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA,
LIMPOPO DIVISION,
POLOKWANE
I AGREE
MORGAN AJ
ACTING JUDGE OF THE
HIGH COURT OF SOUTH AFRICA,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES:
Counsel for the
appellant
: R Scott
Instructed
by :
Legal Aid SA Polokwane Office
Counsel for the
respondent
: Adv Ramuthaga
Instructed
by
: DPP Polokwane Office
Date
heard :
13
th
September 2024
Electronically
circulated on
: 17
th
September 2024
[1]
1991
(1) SACR 198 (A)
[2]
2003
(1) SACR 134
(SCA) at para 15
[3]
[1996] ZACC 25
;
1996
(4) SA 187
(CC) at para 12