---

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

 

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

 

 CASE NO: CA 07/21

REPORTABLE: NO

Circulate to Judges: NO

Circulate to Magistrates: NO

Circulate to Regional Magistrates: NO

 

In the matter between:

 

MOSIMANEGAPE KEOKILWE                                         APPELLANT

 

AND

 

THE STATE                                                                         RESPONDENT

 

CORAM                              PETERSEN J & REDDY AJ

 

DATE OF HEARING           :11 NOVEMBER 2022

 

DATE OF JUDGMENT        : 31 JANUARY 2023

 

ORDER

(i)            The application for the late filing and prosecution of the appeal is condoned.

 

(ii)          The appeal is re-instated.

 

(iii)         The appeal is upheld.

 

(iv)         The conviction and sentence is set aside

 

(v)          The appellant is to be released immediately, unless otherwise lawfully detained.

 

Reddy AJ

Introduction

 

[1]          On 11 October 2015, the victim hereinafter referred to as MT was raped at what was described as an excavation pit. On the evening of 12 October 2015, the appellant was arrested and stood trial on a count of contravening section 3 read with sections 1, 55, 56(1) 57, 58, 59, 60 and 61 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 ("SORMA"). The charge proffered against the appellant did not make reference to section 51(1) of the Criminal Law Amendment Act 105 of 1997 ("the CLAA"). The appellant was convicted on 6 December 2016 of contravening section 3 of SORMA. In the exercise of its sentencing discretion, the trial court found the presence of substantial and compelling circumstances warranting a deviation from the minimum sentence of life imprisonment and imposed a sentence of 18 years' imprisonment. The appellant was also declared unfit to possess a firearm in terms of section 103 (presumably section 103(1) of the Firearms Control Act 60 of 2000).

 

[2]        The parties requested that the appeal be disposed of without oral arguments as contemplated in section 19(a) of the Superior Courts Act 10 of 2013. The request was acceded to and the appeal was disposed of without oral argument.

 

Condonation and re-instatement of the appeal

[3]        The appellant was convicted on 16 December 2016 and sentenced on 27 February 2017 to 18 years' imprisonment. An application for leave to appeal the conviction and sentence was dismissed on the date of sentence. The appellant petitioned this Court on 21 February 2021. Leave to appeal the conviction and sentence was subsequently granted on 27 July 2021 and the appellant's notice of appeal was consequently delivered on 2 September 2021.

 

[4]        The appeal was duly set down for 3 December 2021 , on which date the appeal was struck from the roil as an exhibit relevant to sentence, Exhibit "C", a list of the appellant's previous conviction/s did not form part of the appeal record. The appellant's appeal was re-enrolled on 11 November 2022, following a correction of the appeal record. Since, the appeal was struck from the roll on 3 December 2021, it was incumbent on the appellant to file a condonation application setting out sufficient cause for non-compliance with the rules of court. The appellant was required to apply for re-instatement of the appeal in terms of Rule 67(5A)(ii) of the Magistrates Court Rules.

 

[5]        The law on condonation is best summarized with reference to the oft quoted passage by Holmes JA in Melane v Santam Bank Insurance co. Ltd 1962 (4) SA 531 (A) at 532 B-E where the following was stated:

 

"In deciding whether sufficient cause has been shown, the basic principle is that the Court has a discretion, to be exercised judicially upon the consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation thereof, the prospects of success, and the importance of the case. Ordinarily, those facts are interrelated: they are not individually decisive, for that would be a piecemeal approach incompatible with true discretion, save ofcourse that if there are no prospects of success there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate for the prospects of success which are not strong. Or the importance of the issue and the strong prospects of success may tend to compensate for a long delay. '(See also Wynberg and Another (1998) SACR 18, 1998 (3) SA 34 (SCA) at 40 H-41 9."

 

[6]          In Van Wyk v Unitas Hospital and Another 2008 (2) SA CC paragraphs [20] and [22] the following was stated in respect of an application for condonation:

 

"This court has held that the standard for considering an application for condonation is in the interest of justice. Whether it is in the interests of justice to grant condonation depends on the facts and circumstances of each case. Factors that are relevant to this enquiry but are not limited to the nature of the relief sought, the extent and the cause of the delay, the effect of the delay on the administration of justice and other litigants, the reasonableness of the explanation of the delay the importance of the issue to be raised in the intended appeal and the prospects of success. ...An applicant for condonation must give a full explanation for the delay. In addition, the explanation must cover the entire period of the delay. And what is more the explanation must be reasonable. "

 

[7]        The Supreme Court of Appeal (SCA) in Mulaudzi v Old Mutual Life Assurance Company (SA) Limited 2017 ZASCA 88, restated the factors that are to be given due consideration of in a condonation application stated in Melane:

 

"Factors which usually weigh with this court in considering an application for condonation include the degree of non-compliance, the explanation thereof, the importance of the case, the respondent's interest in the finality of the judgment of the court below, the convenience of this court and the avoidance of unnecessary delay in the administration of justice. '

 

[8]        In Grootboom v National Prosecuting Authority 2014 (2) SA 68 (CC) at paragraph [23], the following was said:

 

"It is now trite that condonation cannot be had for the mere asking. A party seeking condonation must make out a case entitling it to the court's indulgence. It must show sufficient cause. This requires a party to give a full explanation for the non-compliance with the rules or court's directions. Of great significance, the explanation must be reasonable enough to excuse the default."

 

[9]        The appellant deposed to an affidavit in support of his application for condonation. After the imposition of an 18 year imprisonment sentence on 27 February 2017, the appellant through his legal representative applied for leave to appeal against the conviction and sentence. The application did not find favour with the trial court and was accordingly dismissed. On petition to this Court, the appellant was granted leave to appeal the conviction and sentence on 26 February 2021. The appellant obtained knowledge of the outcome of his petition on 25 July 2021. The appellant's notice of appeal was delivered on the 2 September 2021. There are good prospects of success on appeal and condonation should accordingly be granted.

 

Grounds of appeal

[10]      At the heart of the grounds of appeal lies the issue of identification and more narrowly, the reliability and credibility of a single witness for the State, the victim MT. The conviction is assailed on the basis that the identity of the appellant was not proven beyond reasonable doubt. The sentence is challenged on the basis that the imposition of a sentence, in excess of the prescribed sentence of 15 years' imprisonment, was inappropriate in the clear absence of reasons. This ground of appeal is misconstrued and exacerbates the misdirection of the Regional Magistrate, as the prescribed minimum sentence for rape in circumstances other than referred to in Part I of Schedule 2, is in fact 10 years' imprisonment for a first offender of such offence. The Regional Magistrate is further said to have misdirected himself by finding that the rape was pre-planned or premeditated.

 

Conviction

[11]       It is settled law that a court of appeal will not likely interfere with credibility and factual findings of the trial court. In the absence of an irregularity or misdirection, the court of appeal is bound by such findings, unless it is convinced that the findings are clearly incorrect or unless an examination of the record reveals that those findings are patently wrong. (S v Francis 1991 (1) SACR 198 (A) at 204c-e, S v Mkohle 1990 (1) SACR (A) at 100e).

 

[12] In S v Hadebe 1997(2) SACR 641 (SCA) at 645 e-f Marais JA stated as follows:

 

"Before considering these submissions it would be as well to recall yet again that there are well—established principles governing the hearing of the appeals against findings of fact. In short, in the absence of demonstrable and material misdirection by the trial Court, its findings are presumed to be correct and will only be disregarded if the recorded evidence shows them to be clearly wrong. The reasons why this deference is shown by appellant Coutts to factual findings of the trial court are well known that restatement is unnecessary.

 

[13]      In S v Monyane and Others 2008 (1 ) SACR 543 at paragraph [15] Ponnan JA stated:

 

"This court's powers to interfere on appeal with the findings of fact of a trial court are limited....ln the absence of demonstrable and material misdirection by the trial court, its findings of fact are presumed to be correct and it will only be disregarded if the recorded evidence shows them to be clearly wrong. '

 

[14]      In S v T 2005 (2) SACR 318 (E) at paragraph [37] the following trite principle was enunciated as regards the burden of proof on the State.

 

"The State is required, when it tries a person for allegedly committing an offence, to prove the guilt of the accused beyond a reasonable doubt. The high standard of proof- universally required in civilized systems of criminal justice- is the core component of the fundamental right that every person enjoys under the Constitution and under the common law prior to 1994, to a fair trial. It is not part of a charter for criminals and neither is it a mere technicality. When a court finds that the guilt of an accused has not been proved beyond a reasonable doubt, that accused is entitled to an acquittal, even if there may be suspicions that he or she was indeed, the perpetrator of the crime in question. That is an inevitable consequence of living in a society in which the freedom and dignity of the individual are properly protected and are respected. The inverse-convictions based on suspicion or speculation — is the hallmark of a tyrannical systems of law. South Africans have a bitter experience of such a system and where it leads to. "

 

[15]      To explicate the burden of proof on the State, it had to prove every element of the crime, that the appellant was the perpetrator of the rape, that the appellant had the required intention, that the rape was indeed committed and that the act was unlawful. Of relevance and significance before us is whether the State had proved beyond a reasonable doubt that the appellant was indeed the perpetrator of the rape.

Summary of the evidence

 

[16]      On the day in question, MT was on foot alone from a shop at Masutlhe 1, returning to Dibono Village when she was approached by an unknown male person, subsequently identified as the appellant. He posed certain personal questions eliciting information as to her age and place of residence. Both questions were replied to. Unexpectedly, a knife was drawn by the appellant and MT was pulled to the side of an excavation pit. With knife being wielded MT was instructed to undress of all her clothing. She acquiesced. The appellant proceeded to remove his shirt and placed it on the ground. MT was instructed to lie on his shirt.

 

[17]      The appellant then mounted MT, inserting his penis into her vagina. After a while the appellant removed himself from on top of MT and ordered her to put on her clothing, which she did. MT was allowed to leave, but a threat of silence in respect of this incident was emphasized by the appellant. It was the first time that MT had seen the appellant. MT described the clothing worn by the appellant as a black shirt which had blue and red stripes. He further wore an Adidas tracksuit trouser which was blue in colour on the lower part of his body, with black and white Adidas shoes. The face of the c appellant which MT claims to have seen was described as being similar to that of a neighbour. There were no eye witnesses, though MT seems to suggest in her evidence that there may have been a witness who had seen the appellant on the day she was raped. Not much reliance was placed on this piece of evidence by the prosecutor. It would serve no meaningful purpose to dwell on it. In favour of the prosecution, one can accept that as a representative of the State and the public at large, had this evidence been at her disposal it would have been introduced as part of the mosaic of proof.

 

[18]      On arrival at home on the same day MT was crying. Her clothing and the back of her head were soiled. MT reported to her mother that she had been raped and described her assailant to her mother as being hefty and short. In cross-examination, however, MT indicated that she described her assailant to her mother; as being moderately short, dark in completion, wearing short dreadlocks, with small ears, who had a baby face like that of a neighbour. Notably, the report MT made to her mother describing the appellant as hefty is not echoed in her mother's evidence.

 

[19]      The police were summoned. On arrival of the police, an inspection was conducted of the crime scene where the rape occurred. No physical evidence was recovered from the crime scene. A medical examination followed the same day at the Bophelong Hospital, which included the collection of a sexual evidence kit. The conclusion on the gynecological examination found that the presence of genital injuries was consistent with the alleged history of sexual assault. It is noteworthy that whilst at Bophelong Hospital, in describing her assailant to the police, MT described him as hefty, short, wearing blue tekkies with yellow stripes on the side and a tracksuit trouser, and a T-shirt with blue stripes.

 

[20]      On 12 October 2020, police officers in the company of MT proceeded to the residential address of the appellant. MT was noncommittal as to how the address of the appellant was established and it was simply accepted that it was on information that had come to her knowledge. Acting on the strength of this information the police proceeded to the residential address of the appellant. No description was provided by MT as regards the appellant to the police officers. MT remained inside the motor vehicle, whilst the police officers proceeded on foot to the identified address. MT observed the police officers knocking on the identified door and eventually entering. The police officers emerged with the appellant who was wearing a black and white T-shirt with a green, red and blue stripes, a light blue Dickies brand trouser and black and white Adidas shoes. The police officers used the artificial lights of the motor vehicle to illuminate the person of the appellant and under that light MT confirmed that the appellant was the person who had allegedly raped her.

 

[21]      During the evidence of MT, she was required to enter the courtroom to point out the person that allegedly raped her. This procedure is a disconcerting practice in the circumstances of the present appeal, for two reasons: (i) MT had confirmed the identity of appellant on the evening of his arrest and (ii) dock identification is generally treated with caution because of the little evidential value that is c attached to it, unless it is shown to be founded in independent preceding identification. (See S v Tandwa and Others 2008 (1) SACR 613 (SCA) paragraphs 129-131).

 

Alibi evidence

[22]      The appellant belatedly during his evidence raised an alibi as a defence. This is in stark contrast to his version put to the State witnesses that at the time of the rape between 10h00am and 1 lh00am he had gone to collect water and returned home and for the rest of the day he had been home. In S v Thebus and another [2003] ZACC 12; 2003 (2) SACR 319 (CC) at paragraph [14], the apex court addressed the late disclosure of an alibi as follows.

 

"The failure to disclose an alibi timeously is therefore not a neutral factor. It may have consequences and can be legitimately be taken into account in evaluating the evidence as a whole. In deciding what, if any, those consequences are, it is relevant to have regard to the evidence of the accused, taken together with any explanation offered by her or him for failing to disclose the alibi within the factual context of the evidence as a whole. "

 

[23]      In S v Liebenberg 2005 (2) SACR 56 SCA at paragraph 14 the following was stated:

 

"The acceptance of the prosecution's evidence could not, by itself, be sufficient basis for rejecting the alibi evidence. Something more is required. The evidence must have been, when considered in its totality, of the nature that proved the alibi evidence to be false. "

 

The law on identification

[24]      In R v Diad/a 1962 (1) SA 307 (A) at 310 C-E the following was stated as regards identification:

 

‘.one of the factors which in our view is of the greatest importance in a case of identification, is the witness previous knowledge of the person sought to be identified. If the witness knows the person well enough or has seen him frequently before, the probability that his identification will be accurate is substantially increased.. .1n a case where the witness has known the person previously, questions of identification...of facial characteristics and of clothing are in our view of much less importance than in cases where there was no previous acquaintance with the person sought to be identified What is important is to test the degree of previous knowledge and the opportunity for a correct identification, having regard to the circumstances in which it was made. "

 

[25]      In the seminal authority on identification in S v Mthetwa 1972 (3) SA 766 at 768 A-c, Holmes JA stated as follows:

 

"Because of the fallibility of human observation, evidence of identification is approached by the Courts with some caution. It is not enough for the identifying witness to be honest: the reliability of his observation must also be tested. This depends on various factors, such as lighting, visibility, and eyesight; the proximity of the witness; his opportunity for observation, both as to time and situation; the extent of his prior knowledge of the accused; the mobility of the scene; corroboration; suggestibility; the accused's face, voice, build, gait, and dress; the result of identification parades, if any; and, of course, the evidence by or on behalf of the accused. The list is not exhaustive, These factors, or such of them as are applicable in a particular case, are not individually decisive, but must be weighed one against the other, in the light of the totality of the evidence, and the probabilities; see cases such as R. v Masemang, 1950 (2) SA 488 (AD); R. v Diadla and Others, 1962 (1) SA 307 (AD) at p. 310C; S. v Mehlape. 1963(2) SA 29 (AD)."

 

[26]      A useful summary of the test to determine identity is set out in Volume 18 of LAWSA paragraph 263, where the learned authors state as follows:

 

"Judicial experience has shown that evidence of identity should, particularly in criminal cases, be treated with great care. Even an honest witness is capable of identifying the wrong person with confidence. Consequently, the witness should be thoroughly examined about the factors influencing his or her identification, such as the build, features, colouring and clothing of the person identified. An early identification before the trial (which is admissible as an exception to the rule prohibiting previous consistent statements) lends credibility to the evidence. Particular care should be taken if the only evidence connecting the accused with the crime is that of a single identifying witness; then the cautionary rule relating to single witnesses should also be taken into account. "

 

The evaluation of the evidence by court a quo

[27]      It is so that MT was a single witness. Section 208 of the Criminal Procedure Act 51 of 1977 ("the CPA") provides that 'an accused can be convicted on the single evidence of a competent witness. ' There is a plethora of jurisprudential authority on how a court should assess the evidence of a single witness. (See: S v Webber 1971 (3) SA 754 (A) at 758, S v Sauls and Others 1991 (3) SA 172 (A), R v Mokoena 1956 (3) SA 81 (A) at 85). The golden thread that runs c through the case law is that the evidence of a single witness must be approached with caution. The trial court must be satisfied that the evidence of the single witness is satisfactory in all material aspects, with a proviso, that the exercise of caution should not displace the exercise of common sense. It is incontestable that MT was an honest and sincere witness. It is the reliability of her evidence on the identification of the appellant that provided a snare for the Regional Magistrate.

 

[28]      The Regional Magistrate's judgment is replete with patently incorrect factual and legal findings. I propose to address those that are material to the main ground of appeal: identification of the appellant. In the judgment the Regional Magistrate reasons as follows:

 

"The scene itself was not mobile, there was no fight between them. Through their interaction she noticed the complexion, the height of the accused. She described the t- shirt he was wearing as being black with, green, blue and red stripes. Further, that the accused was wearing Adidas tracksuit pants and Adidas black and white sneakers. She says except for the trouser the same clothes are the ones that the accused was wearing at the time of his arrest..

 

[29]      This passage loses sight of a few material pieces of evidence. Firstly, to say there was no "fight between them" is a misnomer of gargantuan proportions. MT's freedom of movement was restrained with the aid of a knife, which was further used to direct her to the excavation pit. Secondly, at the excavation pit again aided with the knife, the appellant instructed MT to undress. Thirdly, the appellant raped her. Rape is prima facie indicative of a tack consent. Fourthly, after MT was raped she was threatened into silence. The entire ordeal would certainly have a bearing on the reliability of MT's identification. It probably explains the absence of specific facial characteristics, which are a more enduring and reliable form of identification than clothing.

 

[30]      In respect of the clothing apparel, MT testified that on her first encounter with the appellant, he was wearing a black shirt, which had blue and red stripes, an Adidas tracksuit pants on the lower part of his body which was blue in colour and Adidas black and white shoes. At the Bophelong Hospital MT described the appellant to the police in the presence of her mother as follows; as hefty, short, wearing blue tekkies with yellow stripes on the side. wearing a tracksuit, a t-shirt that had blue stripes. At the time of arrest, the appellant wore a t-shirt that was black and white that had a qreen stripe, a red stripe and blue stripe, with a blue dicky trouser, with black and white tekkies.

 

[31]      The finding "substantially matches" in respect of the clothing description by the Regional Magistrate formulated as follows, unfortunately does not ascend the threshold of proof beyond a identification chain of the appellant.

 

[34] It is inexplicable that the appellant was arrested without MT having provided the arresting police officers with any identification features or clothing apparel that might have assisted in the apprehension of the appellant. MT was not present when the appellant was arrested, the appellant was escorted to the motor vehicle where MT was waiting. This identification was suggestive, for the appellant was the sole individual in the company of the police. The appellant contends that there was an individual named V[...]/V[...] who was also present in the motor vehicle with MT. MT denies this. The failure of the prosecution to have led the evidence of any of the arresting officers deprived the trial court of independent evidence on the presence or absence of V[...]/ V[...] and crucially the objective confirmation of the clothing and tekkies that the appellant was wearing

 

[35] MT identified the appellant by his clothing that he wore, notwithstanding the differences. General characteristics, like the dreadlocks, the moderate height, dark complexion and a baby face appearance did not play a role in the identification. In S v Charzen and Another 2006 (2) SACR 143 (SCA) at paragraphs [14] and [19], Cameron JA (as he then was) stated as follows:

 

"[14] The complainant's observation is correct facial characteristics are a more reliable and enduring source of identification than variable features such as hairstyle or clothing. But the assertion — propounded repeatedly during his cross-examination — underscores the significance of his mention of dreadlocks. If they were immaterial to his recollection, why did he mention them at all? On the other hand, if they were material, but there were no dreadlocks, his error was unignorable.

 

[19] This is inevitable, mainly because the only evidence the State called about the robbery was the single testimony of the complainant. There was no physical evidence: not a fingerprint, not a recovered cell phone, nor wallet, nor purse, nor baby seat, nothing to connect the accused to the crime and thus provide a measure of objective assurance against the pitfalls of subjective identification. The greatest assurance of guilt must lie in such evidence rather than identification on its own, which as in this shows can be beset by error and misdescription and doubt in which case possibly and even presumably guilty persons must walk free.

 

[36]      Our courts have emphasized repeatedly in cases of identification that honesty and sincerity and the subjective assurance, are inadequate. There must be certainty beyond reasonable doubt that the identification is reliable. MT's evidence based on her recollection of the appellants clothing apparel and appearance was dangerously unreliable. An investigation of the crime scene shortly after the rape did not result in the collection of any physical or forensic evidence that may have pointed the police in the direction of the appellant. There was no objective evidence in the form of direct evidence led by the State to enhance the identification of the appellant or from which a process of inferential reasoning may have been applied, that may have placed the appellant in the proximity of MT.

 

[37]      The record suggests that the presence of a witness who could have placed the appellant in the company of MT on the day in question. As alluded to earlier, this evidence did not form part of the State case on identification together with the circumstances that led to the arrest of the appellant, his defence could not have been rejected as being "not real or possible are very slim." It is accordingly apposite to restate the law as set out by Zulman JA in S v V 2002 (1) SACR 453 (SCA) at paragraph3 (i) the following was stated:

 

"It is trite that there is no obligation upon an accused person, where the state bears the onus "to convince the court". If his version is reasonably possibly true he is entitled to his acquittal even though his explanation is 0 improbable. A court is not entitled to convict unless it is satisfied not only that the explanation is improbable but beyond any reasonable doubt it is false. It is permissible to look at the probabilities of the case to determine whether the accused's version is reasonably possibly true, but whether one subjectively believes him, is not the test. As pointed out jn many judgments of this Court and other courts the test is whether there is a reasonable possibility that the accused's evidence may be true. "

 

[40]      In the final analysis, a correct assessment of the conspectus of the evidence could not have resulted in a finding that the State had proved its case beyond a reasonable doubt. It is axiomatic, that if the conviction stands to be set aside and that the sentence and ancillary orders fall away.

 

Order

 

[41]      In the result, the following orders are made.

 

(i)         The application for the late filing and prosecution of the appeal is condoned.

 

(ii)       The appeal is re-instated.

 

(iii)      The appeal is upheld.

 

(iv)      The conviction and sentence is set aside.

 

(v)       The appellant is to be released immediately, unless otherwise lawfully detained

 

A REDDY

ACTING JUDGE OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

 

I AGREE

 

A H PETERSON

JUDGE OF THE HIGH COURT

NORTH WEST DIVISION, MAHIKENG

 

Appearances:

For the Appellant:        Mr M V Kekana

 

Instructed by:               Legal Aid SA

Mafikeng Justice Centre

No. 742 Dr. James Moroka Drive

MMABATHO

 

For the Respondent:   Adv DG Jacobs

Instructed by:              Director of Public Prosecutions (DPP)

Megacity Building, East Gallery

3139 Sekame Street

MMABATHO

---