S v Motlafi

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: AML Phatudi J and MV Semenya DJP
• Judgment Date: 13 August 2022
• Docket Number: A09/2020
• Hearing Date: 04 June 2021
• Court: Limpopo Division, Polokwane
• Citation: 2022 JDR 0294 (LP)

AML Phatudi J:

Introduction:

[1]

One count of housebreaking with intent to commit an offence [1] and one of rape as defined in the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 [2] , were preferred against the appellant at Groblersdal Regional Court- per Mr G Mogotlane.(Trial court)

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AML Phatudi J

[2]

The trial court found the appellant guilty as charged. The sentences of 5 and 15 years' imprisonment followed the guilty verdict on housebreaking and rape respectively. Two years of 5 years' imprisonment was ordered to run concurrently with the sentence imposed for rape. The appellant was effectively imprisoned to 18 years.

[3]

The appellant's leave to appeal against both the convictions and sentences were shown off the hand by the trial court. Saddened by the refusal for leave to appeal, the appellant petitioned the Judge President of this division. The High Court (MG Phatudi and Kganyago JJ) granted the appellant leave to appeal against both convictions and sentences imposed by the trial court.

[4]

This is thus an appeal against both convictions and sentences. The appellant adumbrated the trial court's errors and misdirection(s) in the notice to appeal.

Grounds of appeal:

[5]

The appellant's grounds of appeal are, in short, (i) that the trial court failed to consider the state's failure to lead evidence on how the appellant's saliva was obtained, by whom, when and where, in finding the appellant guilty and (ii) that the trial court erred in accepting the state's evidence that the fingerprints uplifted on the crime scene are that of the appellant.

[6]

The grounds of appeal in respect of the sentences imposed were abandoned by counsel from the bar, as instructed. The appeal is thus, only against convictions.

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AML Phatudi J

Factual background:

[7]

The state, in its quest to proof the guilt of the appellant beyond reasonable doubt, led the evidence through the testimonies of several witnesses. Their evidence demonstrates that, in the middle of the darkest night of 10 February 2013, an assailant broke into the house in which the 66-year-old Makgetsi Margaret Namane was in and, wherein after, a sexual offence was perpetrated on her.

[8]

The assailant and perpetrator left some pointers at the crime scene which were uplifted and collected. The first pointer is the fingerprint uplifted from inside the bathroom window which does not open. The fingerprint was facing downward. There were no other prints uplifted at the scene. The second pointer is the discharge found in the complainant's vaginal vault which was collected by the doctor. The doctor collected some swabs, packaged and sealed them before they were handed to the police in charge. The swabs were taken to Forensic Scientific Laboratory for further investigation.

[9]

The investigations conducted on both pointers alluded to above, positively matched those of the appellant.

[10]

The appellant denies that the fingerprint uplifted from the inside window of the property that was broken into, is his. He further denies having ever perpetrated a sexual offence on the complainant.

[11]

The question to be determined is whether the state proved its case beyond reasonable doubt the guilt of the appellant.

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AML Phatudi J

The Law and legal principles applicable:

[12]

As a point of departure, the principle set in R v Dlhumayo and Another [3] is that

'A court of appeal must bear in mind that a trial court saw the witnesses in person and could assess their demeanour. If there was no misdirection of facts by the trial court, the point of departure is that its conclusion was correct. The court of appeal will only reject a trial courts assessment of evidence if it is convinced that the assessment is wrong. If the court is in doubt, the trial court's judgement must remain in place. The court of appeal does not zealously look for points upon which to contradict the trial courts conclusions, and the fact that something has not been mentioned does not in itself mean that it has been overlooked.' [4]

[13]

It is trite law that an appeal court decides the appeal on the facts before it as contained within the four corners of the record of appeal. The appeal court is thus duty bound to establish from the record, if the trial court has either misdirected itself on facts or has applied the law erroneously to the facts. The appellant bears the onus to satisfy this appeal court that the trial court misdirected itself and/or erred when assessing the evidence based on the facts and the law before it [5] .

Evaluation: Ad conviction: Housebreaking

[14]

I find it apposite to first deal with the conviction relating to the housebreaking count, more specifically, the evidence in respect of the fingerprints uplifted at the crime scene.

[15]

Henry Micheal Makhoba, a police officer of 27 years' service in the South African Police Service, attached to the Criminal Records Centre,

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AML Phatudi J

who specialise in investigating fingerprints and forensic investigations, testified on how he uplifted the fingerprint from the inside of a window of a property in which it is alleged the offence was perpetrated. He kept the exhibits under lock and key in a safe. He later scanned the uplifted fingerprints to the fingerprint scan system. He discovered that the fingerprints were positive and they identified a person. He informed the investigating officer of the identity of the suspect. The investigating officer informed him that the identified person was arrested. He then proceeded to prepare the court chart.

[16]

The charts he prepared for the court are: (i) The fingerprint of the middle finger uplifted from the window at the scene marked exhibit G. (ii) The fingerprints chart, commonly referred to as SAP192, with the fingerprint of the appellant taken on 14 March 2016, marked exhibit H. (iii) Exhibit J, being the fingers and palm print taken from the appellant for comparison purposes, was as well handed in as evidence. (iv) The last fingerprint was taken from the appellant on 3 April 2018 during trial and before court. The exhibit was handed in and marked K.

[17]

Makhoba testified with reference to all seven points alluded to in the charts prepared for the court. He, after handing in exhibit K, demonstrated on how the seven points he found on the fingerprint uplifted from the window matches that of the appellant. He opined in his conclusion that the appellant is linked to the commission of the housebreaking offence based on the uplifted fingerprints from the window which he compared with that of the appellant. For ease of reference, this is how it was captured on record [6] :

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AML Phatudi J

'Court: Right. You may proceed-

Makhoba: Yes, your worship, I was just reading the points which I did marked from point 1 to 3- all those points were marked as bifurcations on the court chart. Point 4 from photo 1 and 2 were a beginning or ending. Point 5 photo 1 and 2 also it is bifurcation. Point 6 on photo 1 and 2 – it is a beginning or ending. Photo 1 and 2 are marked point 7, which is bifurcation.

Court: Is that all?

Makhoba: That is all the points which I did marked on the court chart

Court: Okay

Prosecutor: Yes

Makhoba: No person Your Worship that can have the same fingerprint or footprint. That is why I have no doubt that it proves this one I did hand it in are belonging to the person which is in front of court.

[18]

Counsel for the appellant submits, with emphasis to one of the grounds for the appeal, that the trial court erred by accepting the expert's evidence as the expert failed to point out the place where the fingerprint were uplifted. He further submits that there is no evidence on record to show that the fingerprints were taken in court in the presence of the presiding officer.

[19]

I am unable to comprehend why the appellant submits that Makhoba "failed to point out the place where the fingerprints were uplifted" whereas the evidence is overwhelming. It is evident from the record that the appellant questioned Makhoba about the place where the fingerprints were uplifted during cross examination. This is how it unfolded:

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AML Phatudi J

Mr Mokai: was the...