S v Buhlase (Appeal)

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Langa J and Mankge J
• Judgment Date: 07 November 2022
• Docket Number: A52/2021
• Hearing Date: 14 October 2022
• Citation: 2022 JDR 3402 (MN)

Langa J (Mankge J concurring):

Introduction and background:

[1]

On 11 March 2016 the appellant was convicted in the Ermelo Regional Court on a count of rape and sentenced on 3 April 2016 to twenty (20) years imprisonment. He had pleaded not guilty to the charge. The appellant was represented throughout the trial and the appeal is with the leave of the trial court on both conviction and

2022 JDR 3402 p2

Langa J (Mankge J concurring)

sentence. It should be mentioned that the leave to appeal was granted by another Magistrate without any insight into the record proceedings as the Magistrate who heard the matter had ostensibly resigned. The matter was set down for hearing on 26 August 2022 and the parties dispensed with the hearing of the oral submissions.

[2]

The appellant pleaded not guilty on the charge of rape and denied having had sexual intercourse with the victim. In his plea explanation the appellant admitted that the victim is known to him and that she was under the age of 16 years. He stated that she was about 14 years of age. Her birth certificate was admitted as Exhibit "C". He further also partly admitted the chain evidence in respect of the forensic evidence from the taking of his blood sample up to the delivery thereof to the forensic laboratory.

[3]

He admitted in this respect that his blood sample was taken by the nursing sister Khumalo and properly sealed in his presence with seal number 11DBAN7432 and handed over to Sergeant Mkhwanazi. He further admitted that sergeant Mkhwanazi kept the sample in safe custody until he handed it over to the forensic laboratory in Pretoria. He however, placed in dispute the receipt, opening and analysis of the blood sample by the laboratory. In addition, he challenged the results of the DNA analysis which states that the victim's baby was fathered by him.

The evidence

[4]

As she was a minor I will for the purposes of this judgment refer to the complainant only as [LMM]. She testified that the appellant raped in the year 2014 after sending her to the shop to buy bread. She alleged that when she came back to his house the appellant closed the door, grabbed her, covered her mouth to prevent

2022 JDR 3402 p3

Langa J (Mankge J concurring)

her from screaming and had forced sexual intercourse with her. She testified that she did not report the incident to anyone until her aunt suspected that she was pregnant. When she was confronted she told her about the rape and took her aunt and her uncle to the appellant's house and identified him as the person who raped her. She eventually gave birth to a child who however unfortunately later passed away. However, according to the uncontroverted evidence, blood samples or swabs were taken from the baby before she died and her DNA material was later compared with that of her mother and the appellant.

[5]

In her testimony Lindiwe Nkosi, the complainant's aunt, could only confirm that when the complainant visited her she suspected, from her looks, that she was pregnant and confronted her about it. She then informed her that she was raped by one Mashaba after he sent her to buy bread. Her husband and her sister then went to confront the appellant who she did not know at the time.

[6]

The next and crucial witness was the forensic analyst form the forensic laboratory Warrant Officer Trishen Naidoo, who testified about the blood samples/monsters which were delivered to the forensic laboratory by Sergeant Mkhwanazi and received by SK Mahlangu on 21 January 2015. The latter's affidavit regarding the receipt of the blood monster was admitted as Exhibit "XX". The exhibit bag had two envelopes one belonging to "Mnisi" and the other to "Sibusiso". The second exhibit belonging to Mnisi was also brought by sergeant Mkhwanazi to the laboratory on 05 June 2015 and received by JL Mahlangu. It was opened by Warrant Officer Bono Metate on 22 June 2015.

2022 JDR 3402 p4

Langa J (Mankge J concurring)

[7]

Warrant Officer Trishen Naidoo's testimony was about the DNA evidence and how it works. The nub of his evidence was that after comparing the DNA materials taken from the appellant, the complainant and her child, he concluded, based on the DNA analysis that the appellant was 99.99% the father of the complainant's deceased child. This he stated means that the appellant was the father of the child. His report was admitted as Exhibit "D".

[8]

After the State closed its case the appellant also testified and confirmed that he knew the complainant who did not stay far from his house at the time of the alleged incident in 2014. He further admitted having sent her to buy him bread on a certain day but denied the allegation by the complainant that he raped her. His version is that he sent her and another child to buy bread and when they came back they cleaned his house where after he paid them and they left. After this day he went away and when he came back in June the complainant's aunt and uncle came to confront him about the pregnancy and he denied that he was the father of the child. He further denied that he was the father of the complainant's child as alleged by the State. He however, could not explain the positive DNA results.

Grounds of appeal and the appellant's contentions

[9]

In the notice of motion, the appellant made a general contention that the State did not prove his guilt beyond reasonable doubt. He further averred that the trial court failed to properly analyse the evidence and incorrectly rejected his evidence as being false. Concerning sentence, although he was not sentenced to life imprisonment, he nevertheless contended that the effective term of life imprisonment is strikingly inappropriate and out of proportion with the facts as he was regarded as a first

2022 JDR 3402 p5

Langa J (Mankge J concurring)

offender. He further alleged that the trial court erred in over emphasizing the seriousness of the offence, the interest of society and retribution as an element of sentence.

Legal principles and analysis

[10]

It is trite law that a court of appeal should be slow to interfere with the trial court's findings of fact in the absence of a material misdirection. R v Dhlumayo and Another 1948 (2) SA 677 (A) at 705-706). An appeal court's powers to interfere on appeal with the findings of fact of a trial court are limited. S v Francis 1991 (1) SACR 198 (A) at 204E. In the absence of a demonstrable and material misdirection by the trial court, its findings of fact are presumed to be correct and will only be disregarded if the recorded evidence shows them to...