S v Mathlare (389/99) [2000] ZASCA 186 (29 September 2000)

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[2000] ZASCA 186
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S v Mathlare (389/99) [2000] ZASCA 186; 2000 (2) SACR 515 (SCA) (29 September 2000)

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IN THE SUPREME COURT
OF APPEAL OF SOUTH AFRICA
CASE NUMBER: 389/99
In the matter between:
JONAS MATHLARE
APPELLANT
AND
THE STATE
RESPONDENT
CORAM : MARAIS, SCOTT and ZULMAN JJA
DATE OF HEARING : WEDNESDAY 16 AUGUST 2000
DATE OF JUDGMENT : FRIDAY 29 SEPTEMBER 2000
Subject
: Criminal trial - whether admissions deducible from questions put in
cross-examination by accused’s legal representative.
JUDGMENT
ZULMAN JA
[1]
The appellant was charged in the Regional
Court Orlando with rape. He was acquitted on the charge but was
convicted of contravening
section 14(1)(a) of Act 23 of 1957 in that
he had intercourse with a girl under the age of 16. He was sentenced
to four years
imprisonment. On appeal to the WLD the conviction was
confirmed but the sentence reduced from four years to eighteen months
imprisonment.
The appellant appeals, with leave, only against his
conviction. The essential issue argued before this court was
whether the
State had proved beyond a reasonable doubt that the blood
samples analysed by an expert witness called by the State were those
taken from the appellant, the complainant and her child.
[2]
At the time of the alleged offence the
appellant was a sports teacher at a school in Diepkloof and the
complainant a 15 year
old pupil at the school.
In brief the
complainant’s evidence was that after a sports event organised by
the appellant on 25 August 1994 he arranged
for the complainant and
other pupils of the school to be taken by taxi to their respective
homes. All the pupils, except for
the complainant, were dropped off
at their homes but the appellant instructed the taxi driver to take
the complainant and himself
to the appellant’s home, where he
allegedly raped her. It was only some months later in January 1995
after a doctor had examined
the complainant and found that she was
pregnant that she complained of the alleged rape. The complainant
subsequently gave birth
to a child.
[3]
The appellant admitted that he had
accompanied the complainant in the taxi on the day in question. He
denied that he had raped
her or that he had sexual intercourse with
her or that she had accompanied him to his home.
[4]
During the course of the state case and in
July 1996 after the complainant, her mother and another teacher at
the school had
given evidence, the prosecutor brought an application
for an order in terms of
section 37(1)(c)
of the
Criminal Procedure
Act, 51 of 1977
for a blood sample of the appellant to be taken. In
granting the application the magistrate delivered a brief judgment in
which
he recorded, inter alia that on 11 October 1995 the appellant
had been ordered to undergo a blood test and that his appeal against

that order had failed.
In
the course of his judgment the magistrate said the following:
“
Placing himself in the position of the accused and if
what accused says is true, would it be wonderful to undergo this test
at this
stage because that test would show if accused is correct that
he is not the father and it will show that these people outside here

who have already convicted accused, what fools they have made of
themselves.
On the other hand if the test is to the contrary justice
will be served or not that justice will not be served both ways, it
will
of course be served both ways.
Thus to solve this whole mystery and perhaps even to aid
the accused the court deems it necessary and in accordance to justice
to
order that the accused at this stage submit himself for a blood
test and hopefully he will do so freely and voluntary. If what
he
says is true I would hate to order policemen now to physically take
him to the district surgeon for such a test but he is a
teacher and I
suspect a very wise, intelligent man and his attorney will no doubt
also give him the correct advice.
The court at this stage, in the light of what is now
said, orders that the accused undergo the said blood test.”
[5]
The court thereafter placed on record that
arrangements had been made with the district surgeon that a DNA test
be conducted
in respect of the accused, the complainant, as well as
the child. The court further noted that the accused had voluntarily
agreed
to submit himself to the test. The trial was postponed to 15
August 1996. It does not appear from the record as to what happened

on 15 August 1996. However on 16 November 1996, Mrs Olga
Letitia Philips a senior superintendent in the South African Police

Force and an expert biochemist, microbiologist and forensic analyst,
with fifteen years experience, gave evidence. The following

exchange occurred during her evidence in chief:-
“
AANKLAER : Is dit korrek dat u het op 17 September
hierdie jaar ‘n ‘crime kit’ ontvang van u administrasiekant? -
- Dit is
korrek.
Blykbaar het u daardie “crime kit” ontleed en u
uitslae het u in hierdie vorm geskryf, is dit korrek? - - Dit is
korrek.
HOF : U verwys na hierdie bloedmonsters wat u ontvang
het, nè? - - Ja.
Dit is van die beskuldigde, van die ... (tussenbei) - -
Klaagster. Betrokke klaagster en die kind. - - En die
kind.
..................................
So verstaan ek korrek dat volgens daardie bevinding is
beskuldigde 99,04 persent daadwerklik, die waarskynlikhede dat hy wel
die
pa is? - - - Hy is ingesluit as 99,04 persent ”
[6]
An affidavit by Philips was handed in and
she referred to it during her evidence. Paragraphs 3 and 4 thereof
read as follows:-
“
3. Ek het, tydens die verrigting van my ampspligte,
op 1996-09-17, drie (3) Crime Kit 2 ontvang, vanaf die
Adminstrasie-eenheid
van hierdie laboratorium. Elk was afsonderlik
verseël en inter alia gemerk, soos volg:
3.1 ‘O.M., Diepkloof, CAS 226/01/95', verseël met
‘n metaalseël nommer 040044/5, bevattende twee (2) ongemerkte
bloedmonsters,
deur myself gemerk ‘1.95, O.M., Biologiese Moeder
36818/96';
3.2 ‘K. M., Diepkloof, CAS 226/01/95', verseël
met ‘n metaalseël nommer 039950/1, bevattende twee (2)
ongemerkte bloedmonsters,
deur myself gemerk ‘1.96, K.M., Kind,
36818/96'; en
3.3 ‘Jonas Mahlare, Diepkloof, CAS 226/01/95', verseël
met ‘n metaalseël nommer 040024/5, bevattende twee(2)
ongemerkte
bloedmonsters, deur myself gemerk ‘1.97, Jonas Mahlare,
Beskuldigde, 36818/96'.
4. Ek was versoek om met behulp van DNA-analises te
bepaal of die beskuldigde (Jonas Mahlare) in- of uitgesluit kan word
as moontlike
biologiese vader van die kind (K.) en het die volgende
bevind met behulp van DNA-genotipering op sewe genetiese
loki..............”
[7]
After she completed her evidence in chief
the appellant’s attorney asked for a postponement to enable him to
get “some expert
opinion”. The request was granted. The trial
was resumed approximately one month later on 12 December 1996. The
appellant’s
attorney then cross-examined Philips. The line of
cross-examination was directed solely towards attempting to show
that the
DNA finding of the witness did not conclusively establish
that the appellant was the father of the child born to the
complainant.
Nowhere during the cross-examination was it suggested
that the blood samples analysed by the witness were not those of the
appellant,
the complainant and her child on the contrary, it was
implicit in the questions put that the blood samples were those of
the appellant,
the complainant and her child. The following extract
from the cross-examination indicates as much:-
“
CROSS-EXAMINATION BY MR LEKABE: Miss Phillips
....(inaudible) as regard to the report in totality one gets an
impression that there
is a possibility that there could be somebody
else with the same genetic constitution who could also be, have the
same probability
to be the father of the child as the accused.
HOF: Verstaan u? - - Dit is korrek.
MR LEKABE: There is talk in your report of about one in
about 1 657 males or black males to be specific. - - Persons that
could
have that aleel-combination.
Would you agree with me if I say to you that in a
society where there is a concentration of black males, a high
concentration of
black males the possibility that somebody else could
be the father becomes much more apparent? - - Dit is korrek.
You still confirm it, according to you that, what you
are really saying here is there is a possibility, what you are saying
is that
the accused cannot be excluded as the father of this child
through your tests. - - Dit is korrek, hy kan nie uitgesluit word
as pa van die kind nie.”
Nor did the appellant suggest when giving
evidence that the blood sample analysed by Philips was not his.
[8]
The appellant’s counsel drew attention to
the fact that no formal evidence was presented as to the actual
drawing of a sample
of blood from the appellant and also that the
State did not lead any direct evidence to show that the blood samples
in the “crime
kits” which the witness Philips received and
analysed were those taken from the appellant, the complainant and her
child. These
facts were relied on by the appellant’s counsel in
contending that an essential element of the states’ case had not
been proved.
I do not agree.
[9]
It seems to me that the whole tenor of the
cross-examination of Philips and particularly the passages which I
have quoted above,
especially viewed in the context of the events
that occurred earlier in the trial, and not, I stress, before the
trial commenced,
indicates that it was accepted that the samples of
blood were those of the three relevant parties. In my view there was
a clear
implied informal admission of this fact by the appellant’s
legal representative. I have detailed these events earlier in this

judgment. In summary they are:-
(a) The magistrate’s order that the appellant’s
blood be taken, despite his objection thereto.
(b) The subsequent postponement of the trial in order
for this to be done.
(c) The evidence given some four months later in chief
by the expert witness Philips resulting in the request for a
postponement
so that her evidence could be considered.
(d) The resumption of the trial approximately a month
later and the cross-examination of the analyst in a manner consistent
only
with acceptance of the premise upon which her evidence was
based, namely, that the samples she analysed were indeed those of the

appellant, the complainant and the child born to her.
[10]
That the last mentioned assertion is
well-founded, is borne out by the fact that not only in his original
notice of appeal from
the judgment of the magistrate but also in a
later amendment thereof, there was no suggestion that proof of such
facts was lacking.
The approach of the court in
S v Magubane
1975 (3) SA 288
(N) is instructive in this regard. The court was
there concerned with an appeal from a conviction of assault with
intent to commit
murder, in that the appellant had deliberately
driven a car at speed through a police roadblock at night in spite of
police officers
waving torches up and down in front of him to cause
him to stop. The appellant’s legal representative questioned the
State witnesses
by putting to them what the accused would say in
evidence concerning his driving of the car. However the appellant’s
case was
closed without the appellant giving evidence. The main
ground of appeal was an alleged failure on the part of the state to
prove
an intent to murder. At the hearing of the appeal leave was
given to add an additional ground of appeal to the effect that the

State had failed to prove that the appellant was the driver of the
car in question. As to the additional ground, the court held
that
the questions framed by the appellant’s legal representative at the
trial and put to the two police officers who gave evidence
for the
State amounted to an unequivocal admission by the accused that he was
the driver of the car. Hoexter J, delivering the
judgment of the
Full Court, put the matter as follows at pages 291 G to 292 line 2:-
“
In dealing with this point, which was also raised at
the conclusion of the trial, the regional magistrate pointed out,
correctly
in my view, that the line of cross-examination of the
witnesses Venter and Majola was such that, while it joined issue on
the question
of intent to kill or recklessness on the part of the
accused, the questions framed by the legal representative of the
accused nevertheless
was such as to involve an explicit assertion by
the defence that the accused was the driver of the car. I agree with
the trial
court that, in the context of the evidence of Venter and
Majola, the assertions in cross-examination by the legal
representative
of the accused, which I have quoted in reviewing the
evidence, are to be accepted as unequivocal admissions by the accused
of the
matter so asserted. Furthermore, such admissions having been
made during the course of the trial, in open court at the hearing

thereof, require no formal proof. In my view, the additional point
argued by
Mr Schutte
has no merit and the regional court
properly decided that the State had proved beyond reasonable doubt
that the accused was the
driver of the car.”
[11]
Applying these remarks to the matters
which I have set out above and even although there was no “explicit
assertion” during
the cross-examination of Philips, it was
implicit in the questions put that it was the blood of the appellant,
the complainant
and her child which had been analysed. I am
therefore satisfied that there was an unequivocal informal admission
by implication
during the course of the trial, requiring no formal
proof, that the blood samples analysed by Philips were those taken
from the
three relevant persons. (See also
S v W
1963 (3) SA
516
(A) at 523 C - F,
Rex v Modesa
1948 (1) SA 1157
at 1159
(T))
[12]
I am also satisfied, upon the basis of the
expert testimony of Philips, which was not seriously challenged on
appeal, that
the appellant’s genotype was found to correspond with
that of the child born to the complainant, it being Philips’
evidence
that there was a mere 0.06% possibility that the appellant
was not the biological father of the child.
[13]
The appeal is accordingly dismissed and
the conviction and sentence confirmed.
R H ZULMAN JA
MARAIS JA )
SCOTT JA ) CONCUR