Director of Public Prosecutions, Gauteng v KM

• Jurisdiction: South Africa
• Court: Supreme Court of Appeal
• Judge: Maya AP, Theron JA, Dambuza JA, Molemela AJA and Gorven AJA
• Judgment Date: 02 June 2017
• Citation: 2017 (2) SACR 177 (SCA)
• Hearing Date: 15 February 2017
• Docket Number: 1101/2015 [2017] ZASCA 78
• Counsel: S Mahomed SC (with CP Harmzen) for the appellant.HL Alberts (with S Moeng) for the respondent.

Dambuza JA (Molemela AJA concurring):

[1] On B 12 February 2014 the respondent was convicted by the Nelspruit Regional Court on a charge of the rape of a 13-year-old girl. He was sentenced to life imprisonment. The regional magistrate ordered that he not be considered for parole and that his name be entered in the register of sex offenders. C

[2] On appeal the Gauteng High Court, Pretoria (per Avvakoumides AJ, with Louw J concurring) (High Court), set aside the conviction and the sentence. Consequently, the respondent was released from imprisonment. The Director of Public Prosecutions, Gauteng Division, Pretoria (the DPP), then brought an application, in this court, for special leave to D appeal against the order of the court a quo. The appeal was to be founded on two questions of law, as provided in s 311(1) of the Criminal Procedure Act 51 of 1977 (the CPA). This court ordered that the application for special leave to appeal be argued in open court and that the parties be prepared to make submissions on the merits of the appeal if invited to do so. E

[3] In this judgment I set out the background facts. I then consider whether the intended grounds of appeal fall within the ambit of s 311 of the CPA, whether such an appeal requires special leave or is an appeal as of right, whether a proper case has been made for special leave to appeal and whether the appeal should be upheld. F

[4] The respondent was charged in the regional court, Nelspruit, with the rape of his 13-year-old niece, who was his sister's daughter (the complainant). At the time of the incident, which took place on 9 September 2005, the complainant shared her home in Phola Trust, Nelspruit, with her elder sister G. Their mother lived in Johannesburg where she worked. Although G this is not clear from the record, it would appear that their father lived elsewhere as well. The respondent lived with his mother (the children's grandmother).

[5] The state led the evidence of the complainant; G who was 16 years H old at the time of giving evidence; Dr Megan Windvogel who examined the complainant after the incident; Nurse Lucy Themba who drew a blood sample from the respondent; and several police officers who were involved in the safekeeping and transmission of the forensic samples. The respondent was the sole defence witness.

[6] The complainant's evidence was as follows. On the afternoon I preceding the night of the incident her uncle, the respondent, and his girlfriend who lived in their locality, requested that she sleep at the girlfriend's home that night, to keep the latter's 14-year-old daughter, K, company, as the couple were going out for the evening. For this reason the couple fetched the complainant from her home during the day and J

Dambuza JA

left A her at the girlfriend's home. In the early hours of the following morning, whilst the complainant was still at the girlfriend's home, the couple returned home. They were drunk and it appeared that they had been fighting. The respondent continued to assault the girlfriend until she ran away. He then ordered the complainant to go to her home with B him to see if G was home. They found her at home. The respondent told the complainant that he was taking her back to his girlfriend's home. On the way he told her that they should stop at his home to close a window. At his home they went into the respondent's bedroom. The respondent closed the window and the bedroom door and C instructed the complainant to undress and get into the bed. By this time he had a firearm in his hand. He promised not to hurt the complainant. When the complainant did as she was instructed the respondent proceeded to have sexual intercourse with her without her consent. Thereafter he gave her R50 and warned her not to tell anyone about the incident. The complainant went home where she immediately told G D what had happened.

[7] G testified that at about 06h00 on the morning of 10 September 2005 she was at home when the complainant arrived home crying, reporting that the respondent had sexual intercourse with her at their grandmother's house E and then gave her R50. G took the money and went to her grandmother's home where she reported the matter. She used the money to telephone her parents from a nearby public phone, to report the incident. While she was phoning her parents, she observed the respondent fleeing from her grandmother's home. Thereafter she, together with her grandmother and her F aunt, went back home to the complainant. She gave what was left of the money to her grandmother to take the complainant to the clinic. Prior to that morning, she had last seen the complainant the previous evening when the respondent's girlfriend came to fetch her to keep her daughter, K, company.

[8] G Dr Megan Windvogel's evidence related to the contents of the medico-legal report she had prepared pursuant to the medical examination of the complainant following the allegation of rape. In essence, her evidence was to the effect that the complainant's private parts presented with redness and she had observed a white discharge thereon. She took H vaginal swabs from the complainant and placed them in a crime kit which, after sealing, she handed, together with the medico-legal report, to Insp Nkosi.

[9] Evidence relating to the collection and transmission of forensic evidence was also led, together with the evidence of a nurse who drew a I blood sample from the respondent. It was common cause at the trial that blood samples were obtained from him on two occasions. Two forensic reports set out in two affidavits deposed to by Lt Col Catharina Botha, in terms of ss 212(4)(a) and 8(a) of the CPA, form part of the record. Lieutenant Colonel Botha performed the forensic analysis on the J specimens obtained from the complainant and the respondent.

Dambuza JA

[10] In the first affidavit, dated 16 July 2008, she stated, amongst other A things, that:

'The partial STR profile of the DNA obtained from the vaginal vault swab is the same as the STR-profile of the DNA obtained from the control blood sample.'

It was common cause that the blood sample referred to in this report was B the one allegedly drawn from the respondent on the first occasion. In the second affidavit, dated 17 July 2012, she said that:

'The STR-profile of the DNA obtained from the control blood sample is the same as the STR-profile of the DNA obtained from the control blood sample [KM].' C

[11] In summary, the state case was that the DNA results were obtained on an analysis done on the first blood sample drawn from the respondent in 2007. The second blood sample was used to confirm that the first and the second blood samples belonged to the same person, the respondent.

[12] The respondent denied having had sexual intercourse with the D complainant. He insisted that his DNA could never have been found on the complainant. According to him, on his arrival at his girlfriend's home, after the evening out, he saw two boys leaving the girlfriend's house. The suggestion was that the two boys must have been in the company of the complainant and K, and that is how the complainant had E engaged in sexual intercourse. According to him, the false charge of rape and the fabricated evidence against him were motivated by a 'vendetta' on the part of his sister, the complainant's mother, and her children. They did not want him to discipline them. He denied that he had requested the complainant to sleep at his girlfriend's home and that he had a firearm in his possession on the night in question. F

[13] In convicting the respondent the magistrate found that the chain evidence relating to the DNA was never seriously disputed during cross-examination. He acknowledged, however, that the respondent had denied that the first blood specimen was drawn from him and suggested G that the second blood specimen could have been contaminated. The magistrate was of the view that the fact, that the person who drew the first blood sample from the respondent did not testify at the trial, did not undermine the rest of the evidence relating thereto. It was sufficient, in the view of the magistrate, that Nurse Themba who drew the second blood sample, and Const Simba in whose presence the second blood H sample was drawn, gave evidence. What was paramount, according to the magistrate, was that both blood samples were proved to be from the respondent, and that the DNA from the first blood specimen matched the partial STR profile of the DNA found in the vaginal smear obtained from the complainant. The magistrate concluded that forensic evidence I proved that the respondent had engaged in sexual intercourse with the complainant.

[14] As to the different versions given by the respondent and the complainant, the magistrate found that the complainant's evidence was credible. He found that the complainant did not contradict herself and J

Dambuza JA

that, A although she was a single witness, G's evidence as to the complainant's condition when she returned home, the report she made to G immediately upon her arrival, together with the R50 she had in her possession, all supported her version. On the other hand, the fact that the respondent fled from his home after the arrival of G to report the incident, was found to be supportive of the state case. The magistrate B found the respondent to be a liar and that his version, including his allegation of conspiracy against him by his sister and her children, was false.

[15] On appeal the High Court set the conviction aside based on the C denial of sexual intercourse, the failure of the state to 'sustain the chain and link of the blood samples taken from the Appellant' and 'the failure to lead evidence to corroborate the samples and the authenticity of the tests conducted and to link such samples to the Appellant'.

[16] It is pursuant to the order of the High...