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[2016] ZAWCHC 151
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Diamond v S (A540/15) [2016] ZAWCHC 151 (13 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Case
No: A540/15
Coram:
Le Grange, Binns-Ward et Schippers JJ
In
the matter between:
THANDISIZWE
JOHN DIAMOND
Appellant
and
THE
STATE
Respondent
Order
(Schippers J dissenting): The appeal against conviction and
sentence is dismissed.
JUDGMENT:
13 OCTOBER 2016
LE
GRANGE, J
:
[1]
I have had the
advantage of reading the judgments prepared by Binns-Ward, J and
Schippers J, respectively. Regretfully
I differ with the
conclusion reached by Schippers, J. I am in agreement with
the reasoning and conclusion reached by
Binns-Ward, J. I hereby wish
to add the following.
[2]
On the objective
medical evidence it is not in dispute that the complainant suffered a
vicious assault on her person. Some of her
injuries were also
consistent with forced anal penetration by a penis and or similar
blunt object. The complainant was also severally
traumatised. The
medical doctor who examined the complainant noted her traumatised
condition.
[3]
The Appellant does not
dispute that the complainant was assaulted and raped. The Appellant
denies he is the culprit. According to
the Appellant he is being
wrongly accused as the complainant did not sleep at their shared home
(shack) on the night of 14 November
2013 when the incident occurred.
[4]
It is not in dispute
that the Appellant and the complainant were involved in a
relationship and had consensual sex on 12 November
2013. At the
time the prosecution put the charges to the appellant he was legally
represented and must have been fully aware
of the allegations against
him.
[5]
The proceedings at
pleading st
age were
recorded as follows:
“
AANKLAER
STEL AANKLAG 1 AAN BESKULDIGDE
AANKLAER: Kan ek
voortgaan met Aanklag 2 Edelagbare?
AANKLAER STEL
AANKLAGTE 2 EN 3 AAN BESKULDIGDE
HOF: Mnr Diamond, u
het gehoor die klagtes soos uitgelees deur die aanklaer vir u getolk.
Twee klagtes van verkragting en dan een
aanklagte van aanranding met
die opset om ernstig te beseer. Verstaan u al drie hierdie aanklagte
teen u?
BESKULDIGDE: Ek
verstaan U Edele.
HOF: Wat pleit u op
hierdie drie aanklagte?
BESKULDIGDE: Op die
van die verkragtig U Edele, pleit ek onskuldig, want hierdie person …
Ek het saam met hierdie person
gebly. En ek het nie vir haar
geforseer nie U Edele, want ons het by, met toestemming het ons
geslagsgemeenskap gehad.
HOF: Goed. Mnr
Diamond, u doen nou Mnr Hartzenberg se werk voor hom. Ons gaan later
kom by die pleitverduideliking. Al wat die hof
nou by u wil weet. U
het vir die hof gesê u verstaan die aanklagte. Die hof wil nou
weet, pleit u skuldig of pleit u onskuldig
op die aanklagtes?
BESKULDIGDE: Skuldig
aan die aanranding U Edele.
BESKULDIGDE PLEIT
SKULDIG OP AANKLAGTE 3
HOF: En op die klagtes
van verkragting meneer?
BESKULDIGDE: Ek het
nie verkrag nie U Edele.
HOF: Mnr Diamond,
beteken dit dat u onskuldig pleit op aanklagte 1 en 2?
BESKULDIGDE: Ek pleit
onskuldig U Edele op die eerste klagte en op die tweede klagte, want
dis wat ons altyd doen. Ons het geslagsgemeenskap
altyd. Ons doen dit
U Edele.”
[6]
Although the Appellant
elected to exercise his right to remain silent after these statements
were made, he spontaneously admitted
to sexual intercourse with the
complainant on the date mentioned in the charge, that being the 14
th
of November 2013. The only aspect disputed by the Appellant was his
contention that the sex was consensual.
[7]
It is now trite that
where an admission is made during plea proceedings which were not
recorded as a formal admission, it is indeed
evidential material.
This so because it was made in court and as such recorded. The
practical effect of this is not only that the
admission by the
accused may be used in cross-examination to discredit him, but also
that in an appropriate case it can on its
own serve to prove an issue
in favour of the state. In this regard see (Butterworths,
Law
of Evidence
by C
Schmidt & H Rademeyer [Issue 7] at 9-44 and the cases referred to
therein.) ‘An informal admission is of course
not
necessarily sufficient proof of any fact, and an accused is always at
liberty to lead evidence to refute, qualify or weaken
the effect of
the admission. See
S
v Cloete
1994 (1)
SACR 420
(A) at 424 d-f.
[8]
In this instance, the
Appellant failed to lead evidence to refute, qualify or weaken the
effect of the admission but advanced an
entirely new defence.
[9]
But, even in the
absence of such an informal admission, on a conspectus of all the
evidence, this is one of those cases where in
considering the merits
and demerits of the evidence presented, one must not allow the
exercise of caution to displace the exercise
of common sense.
See:
S v Sauls and
Others
1981 (3) SA
172
(A) at 180 E.
[10]
In the result the
following order is made:
The
Appeal against conviction and sentence is dismissed.
________________
LE
GRANGE, J
BINNS-WARD
J:
[11]
I had the privilege of
reading in draft the judgment prepared by my brother, Schippers J,
after the first hearing of the appeal.
This judgment, in which
I set out my reasons for arriving at a different conclusion, was
written in response to that draft.
The matter was subsequently
reheard after Le Grange J was enlisted as an additional member of the
court in terms of s 14(3)
of the Superior Courts Act 10 of
2013. After the rehearing Schippers J revised the draft
considered by me after the first
hearing, and recast his judgment as
a minority judgment. I have considered his revised
judgment in draft. Its
content has not required me to alter my
originally prepared judgment, save for this explanatory first
paragraph.
[12]
I agree with my
colleague’s assessment that the magistrate was misdirected in
her treatment of the evidence; more particularly,
in appearing to
hold that the contradiction of an aspect of the appellant’s
evidence by one of the witnesses called in his
defence afforded a
sufficient basis, by itself, to reject the evidence for defence and
bring in a conviction. As Schippers J
has rightly
emphasised, with reference to the principle lucidly expressed in the
oft-cited dicta of Nugent J in
S
v Van der Meyden
1999 (1) SACR 447
(W) at 449j-450c, all of the evidence must be
accounted for in the judging process. How the appropriate
conclusion is reached
in a given case, namely whether it has been
proven beyond reasonable doubt that the accused is guilty, or whether
it is reasonably
possible that he might be innocent and entitled to
acquittal, will, as Nugent J observed, ‘depend on the
nature of the
evidence which the court has before it’.
There is no empirical formula. The court is required to
exercise its
judgment on the evidential material before it considered
and evaluated holistically. The exercise requires choices to be
made and preferences determined. It is critical, however, that
they be justifiable in the context of the evidence as a whole.
[13]
Indisputable
facts and objective criteria, along with any inherent probabilities
in the given context, play an important part in
determining issues in
respect of which there has been conflicting evidence, and also in
determining, with reference to the evidence
as a whole, whether there
is scope for reasonable doubt in an accused’s favour.
Where there are mutually conflicting
versions assistance may be
derived from the analytical approach described by Nienaber JA in
Stellenbosch
Farmers' Winery Group Ltd & Another v Martell et Cie and Others
2003 (1) SA 11
(SCA) at para 5,
[1]
provided, of course, that in applying it the court must be mindful
and respecting of the more demanding standard of proof in criminal
trials and the effect of the presumption of innocence. (Nothing
in
Martell
et Cie
is in conflict with the approach stated in
S
v Saban en ’n Ander
1992 (1) SACR 199
(A) at 203j-204c referred to by Schippers J.
It merely sets out the indicated approach in more detail.)
[14]
For the reasons given
below, and notwithstanding my endorsement of his criticism of the
trial court’s judgment and the ineptness
of the prosecutor’s
cross-examination, I have found myself unable, on an assessment of
the evidence on the basis summarised
above, to agree with
Schippers J’s conclusion that the appeal against
conviction should succeed.
[15]
There is no reason to
doubt the complainant’s evidence that she was brutally
assaulted and raped during the night of 14 November
2013. The
nature of the assault, as she described it, was corroborated by the
findings noted in the medical examination that
she underwent at about
midday the following day, after she had reported the matter at the
Athlone police station early that morning.
The only question is
whether her implication of the appellant as her assailant was
established beyond reasonable doubt.
[16]
She had been in a
live-in relationship with the appellant (to whom she referred by his
nickname ‘Donker’) for some months
at the time. She
testified that the appellant had accused her of being unfaithful to
him and that despite her denials he
had assaulted her and proceeded
to rape her, first vaginally, when he had worn a condom, and then
anally, after he had removed
the condom. She described how the
appellant had bitten her breast and then while raping her anally had
bitten her on her
back.
[17]
The medical evidence
confirmed that amongst her injuries were three aberrations that were
consistent with bite marks. Two
on her back and one on the
lateral aspect of her chest. She also had five ‘fresh’
anal tears, three of which
were deep, and ‘fresh swelling
around the peri-anal area’. The examining doctor opined
that the anal injuries
were consistent with the consequences of
‘recent forcible anal penetration with a penis or an object’.
The complainant’s
other injuries included bilateral
peri-orbital bruising and swelling, which would suggest that she had
sustained blows to the face
in the area of both her eyes. She
described to the doctor that she had bled from the nose and the
mouth.
[18]
It was not suggested to
the complainant, or the doctor who had examined her, that the
injuries identified in the medical report
put in at the trial had not
been sustained, as she described, on the night before she was
examined. On the contrary the doctor’s
description of
some of them as ‘fresh’ corroborates the history given by
the complainant as to when she sustained the
injuries. The
doctor testified that the injuries could have been sustained within a
72 hour period preceding the examination,
but it may be inferred from
the other evidence, which contained no indication, such as would have
been expected had the position
been otherwise, that the complainant
had showed any signs of distress in the early evening of 14 November
that she sustained them
during the time between then and when she
reported to the police early on the morning of 15 November.
The examining
doctor noted that the complainant had looked
‘traumatised’. She indicated that in the case of a
sexually active
woman like the complainant who had borne children the
absence of vaginal injuries was not irreconcilable with a report of
forced
intercourse.
[19]
The complainant
testified that the sexual assault had occurred in the shack in which
she and the appellant lived in an informal
settlement at Vygieskraal
in the Athlone area of Cape Town. It was common cause that they
shared those living quarters with
one Elias Buyane (more often
referred to in the evidence as ‘Unsotho’ or variants of
that name), who slept in an area
separated by only a curtain from
that in which the appellant and the complainant slept. The
complainant readily acknowledged
that their respective beds were in
fact in close proximity on either side of the curtain.
[20]
In answer to a standard
question in the course of the medical examination, the complainant
reported that the last occasion on which
she had engaged in
consensual sexual intercourse before the rape was on the night of 12
November. The consensual intercourse
had been with the
appellant. A condom had not been used on that occasion.
The factual premise of this aspect of the
complainant’s report
to the examining doctor was not in dispute at the trial. It was
not suggested that the consensual
intercourse had occurred anywhere
else but at the shack where they lived. The complainant made no
secret of the fact that
Buyane had been present in his part of the
shack when she was raped and that, if he had been awake or had cared
to listen, he would
have been able to hear what was going on.
She said that Buyane was always present in the shack at night.
Her evidence
in this respect was not challenged. It is evident
therefore that intimate relations between the complainant and the
appellant
must have been conducted with a minimum of privacy.
Indeed, it emerged in the appellant’s evidence that Buyane was
also in the habit of engaging in sexual relations with women when the
appellant was present in his part of the shack. One
can easily
imagine that people forced to live in such uncomfortable proximity to
each other would develop a tendency to turn a
deaf ear to the
activities of their cohabitants, if only as a means of respecting and
maintaining their respective dignity.
[21]
The
complainant testified that the sexual assault on her had been
perpetrated after she and the appellant had returned to the shack
from a nearby shebeen. She said that the appellant had earlier
gone by himself to a shebeen after his return from work.
Upon
his return he had accused her of infidelity and had forced her to go
out with him to a shebeen. There, they had sat
with some of the
appellant’s friends, none of whom she knew by name. She
said that the appellant had insisted that
she drink some wine.
Upon their return to the shack, the appellant had instructed her to
undress and then proceeded to examine
her lower body in the area of
her private parts. He had then ordered her to pass a condom to
him, whereafter he proceeded
to have intercourse with her. She
described the intercourse as abnormal, not as they would ordinarily
engage in. The
appellant had bitten her. He then removed
the condom and penetrated her anally from the rear. He bit her
again; this
time on her back.
[2]
She had wept and asked him to desist. After he had finished,
the appellant went to sleep. The complainant said
that she had
tried to find the key to the shack in order to escape, but was unable
to find it in the dark. She spent the
rest of the night next to
the slumbering appellant waiting for it to grow light. As soon
as it was light enough to see, she
found the key and let herself
out. She went to the neighbour’s shack where she kept her
identity document. Having
collected her identity document, she
went to the police station where she made a report to Constable
Samuels.
[22]
Constable Samuels
confirmed that the complainant had reported a complaint to him at the
Athlone police station early on Friday,
15 November. He said
that the complainant had initially stated at the charge office
counter that she had been assaulted by
her boyfriend, and that it was
only after he had taken her aside to take down her statement that she
disclosed that she had been
raped ‘
van
voor en agter
’.
In my view the particular significance of Samuel’s evidence was
that his description of the complainant’s
behaviour was
consistent with that of a traumatised and embarrassed woman.
Had she been intent on falsely charging the appellant
with raping
her, one would have expected her to be forthright, rather than
reticent, in her accusation. (The same might be
said of her
unwillingness to say anything to her neighbour when she collected her
identity document before going to the police
station.)
[23]
Under
cross-examination the complainant was taxed with her failure to have
reported the assault to Buyane and to have engaged his
assistance.
She replied that Buyane was not someone with whom she was able to
engage. Apart from language difficulties
- the complainant
spoke Afrikaans, whereas Buyane gave his evidence through an
indigenous African language interpreter, he was
not the sort of
person who was given to listening to other people’s
problems.
[3]
[24]
The appellant denied
having raped the complainant. He maintained that she had not
spent the night in their shack. He
testified that when he
returned from work on the evening of 14 November, the complainant had
told him that she was going to visit
her aunt. He said that he
had gone to a shebeen with a friend and work colleague who lived
close by, Nkuseli Magqubushana.
He and Magqubushana returned
between 10 and 11 p.m. He went to his shack and
Magqubushana to his. The door of
his shack was locked and
Buyane had to let him in. (Buyane had been sharing the shack
with him for two to three years, but
they were old acquaintances,
having known each other since 1996.) The complainant was not
present. Buyane told him
that she not been there all evening.
He and Buyane then repaired to their respective beds for the night.
He said that
he spent the rest of the night in the shack.
[25]
The
appellant said that the complainant had returned early the next
morning. He said that he was busy with his morning ablutions,
sometime before 7 o’clock, when there was a knocking at the
door. He opened it to find the complainant there.
He said
that she had come back to wash herself. According to the
appellant, the two of them had become involved in an argument
about
her absence. She struck out at him and he retaliated by
slapping her face once with an open hand. She continued
hitting
him, to which he then reacted by punching her once with his fist in
the face. (When testifying under cross-examination,
the
appellant described the assault differently, stating that he had
struck the complainant with both fists. He demonstrated
how it
had been first with the left fist and then the right. At the
conclusion of his evidence, when questioned by the magistrate
on the
order of the blows he had administered to the complainant, he
contradicted himself further by stating that he had struck
her first
with his fists and then slapped her face with an open hand. In
cross-examination of the complainant it had been
put to her by the
appellant’s attorney that the appellant had struck her twice;
first with an open hand to the face and then
once with his fist to
her eye.) He then went off to work with Nkuseli Magqubushana.
He mentioned to Magqubushana on
their way to work that he had
assaulted the complainant.
[4]
He was arrested after his return from work on 15 November.
[26]
It was put to the
complainant in cross-examination that Buyane would be called to
testify that she had not spent the night in the
shack and that only
Buyane and the appellant had spent the night there.
Buyane was indeed called to testify in the
defence case. I
shall discuss his evidence presently.
[27]
It
was also suggested to the complainant in cross-examination by the
appellant’s attorney that she had initially withdrawn
the
charges and then had them reinstated when he had refused her requests
that they should become reconciled. The complainant
refuted
this suggestion. She testified that she had not withdrawn the
charges. She had in fact been shocked to discover
that the
appellant had been released. She made enquiries with the
investigating officer as to what had happened and had been
informed
that the police personnel responsible for processing the appellant in
the criminal justice system had neglected to do
their job properly.
Indeed, it would appear that the appellant, having been arrested on a
Friday afternoon, was taken to
court only on the following Tuesday
and thereby detained longer than the Criminal Procedure Act
permitted. That would no
doubt explain how the appellant,
according to his own evidence, came to be released at court without
even appearing before a magistrate.
The complainant testified
that she had pressed the investigating officer for the charges
against the appellant to be proceeded
with. In point of fact
the appellant was summonsed to appear on the charges more than nine
months after his initial release.
[5]
[28]
The investigating
officer, Sergeant De Vries, gave evidence at the trial. No
questioning was directed to De Vries by the appellant’s
legal
representative to challenge the complainant’s evidence that she
had not withdrawn the charges, or that having done
so, she had later
sought their reinstatement. I would have thought that if the
charges had indeed been withdrawn by the complainant
that would have
been an obvious point to put to the investigating officer when the
opportunity presented. The appellant’s
legal
representative also did not seek to elicit any evidence from De Vries
to contradict the complainant’s evidence that
she had enquired
of him why the appellant had been released and that she had insisted
that the charges be pursued.
[29]
Moreover, an indication
of any previous withdrawal of the complaint by the complainant would,
no doubt, have been evident on the
police docket. If there had
been any such indication, there would have been an ethical duty on
the prosecutor to disclose
it in the face of the complainant’s
denial of the proposition under cross-examination. The position
would be indistinguishable
in principle from that which pertains
where there is a material discrepancy between the evidence of a state
witness given in court
and the content of a prior statement by the
witness in the prosecutor’s possession (cf.
S
v Xaba
1983 (3) SA
717
(A) at 728E-730E).
[30]
The absence of any
cross-examination of De Vries on the point and the silence of the
prosecutor both weigh in favour of an acceptance
of the complainant’s
evidence and cast doubt on the aspersions against her in the evidence
of the appellant and the two other
defence witnesses. As it
happened, the appellant conceded that he was unable to dispute the
proposition put to him by the
prosecutor that he had been released
without appearing in court, not because the charge had been
withdrawn, but because he had
been detained beyond the statutory time
limit.
[31]
Turning now to Buyane’s
evidence. It was only partly consistent with the version put to
the complainant in cross-examination.
He did indeed say that
the complainant had been absent from the shack on the night in
question. But he contradicted the appellant’s
claim to
have spent the night there. He testified that after he had let
the appellant in during the night of 14 November
after the
latter’s return from the shebeen, the appellant had immediately
gone out again and had returned only the following
morning shortly
before the complainant arrived at the shack.
[32]
Buyane’s evidence
that the appellant had not spent the night in the shack evidently
came as a surprise to the appellant’s
attorney. So much
so that the attorney first asked him whether he had been drinking
that evening, and then asked him whether
he had been drinking the
night before he gave evidence. (It is noteworthy in this regard
that the prosecutor, during her
address at the end of the trial,
remarked ‘
Ongelukkig
blyk dit dat mnr Unsotho wel onder die invloed van sommige enige
(sic
) tipe alkohol
was toe hy kom getuig het
’.
The remark did not attract dissent from either the magistrate or the
appellant’s attorney.)
[33]
Buyane’s evidence
as to the appellant’s arrival back at the shack on the morning
of 15 November was also inconsistent.
He initially stated
(twice) that he had let the appellant in after the appellant had
knocked on the door for admission early in
the morning. He
later stated that he had seen the appellant outside the shack
urinating when he went out to get water to
wash first thing that
morning. and that he had remarked ‘
O,
jy is hier Donker
’.
When the appellant’s attorney in essence cross-examined his own
witness on the contradiction, Buyane then gave
a third version, which
was that he had let the appellant in and gone back to bed and then
got up shortly afterwards to get water
and that it had been when he
was returning with the water that he had encountered the appellant
outside urinating. The attempt
to reconcile the first two
conflicting versions was unconvincing; particularly in the context of
the aforementioned remark, consistent
with what would be said on a
first encounter, that he had described having uttered in the context
of the second version.
[34]
Buyane denied that he
was hard of hearing. There was no reason to doubt his evidence
in that respect. In my assessment,
however, the investigation
into Buyane’s auditory capacity was misdirected. It arose
out of a misapprehension as to
the gist of the complainant’s
statement that he was not a person given to listening to others, in
other words not the sort
of person to whom she would wish to turn for
assistance. The gruffness of Buyane’s manner came across
in his evidence.
For example, he told the appellant’s
attorney during his evidence in chief, when the latter suggested that
his evidence was
not clear on a particular point, ‘
Jy
moet nou mooi luister op hierdie manier wat ek vir jou verduidelik
’
and then after offering an explanatory clarification rounded it off
with ‘
is dit
duidelik
?’.
[35]
Buyane often did not
give clear and unequivocal answers to questions directed to him in
his evidence in chief. So, for example,
the following exchange
as to the complainant’s knowledge as to where the key to the
shack was kept:
Appellant’s
attorney: Weet sy waar die sleutels is as u-hulle slap in die
aande? --- Wie?
Appellant’s
attorney: Janette [the complainant]?
Buyane:
Janette sal praat met haar man oor die sleutel as hy miskien wil
oopmaak dan sal hulle praat oor hulle sleutel. Ek het my
eie
sleutel.
Appellant’s
attorney: Ek gaan my vraag weer herhaal. Weet sy waar die
sleutels is? --- Ja, sy weet die sleutel
is by haar
man. As sy wil oopmaak dan
vra sy haar man
.
And about whether he had
seen the complainant again after she had reported having been raped
by the appellant:
Appellant’s
attorney: Goed. Het u daarna die storie dat hy nou vir
haar verkrag het nè, het u vir haar
weer gesien? --- Ek het
gehoor dat het vir hulle (sic) daar geneem, hulle het vir Athlone toe
geneem dit is maar wat ek gehoor
het.
Appellant’s
attorney: Ek gaan my vraag herhaal. Het u haar weer
gesien? --- Ek het weer vir haar kom sien toe
ons vir haar gevra het
wat het gebeur jou en Donker en sy het gesê sy het ’n
saak gemaak want hy het vir haar verkrag.
Toe sê sy dat
sy kan gaan dat hy kan vrygelaat word en toe word hy vrygelaat.
Dit is die storie.
[26] In my view, a close
analysis of Buyane’s evidence justifies the conclusion that he
was a poor witness.
[27] Of striking
significance, when the evidence is considered as a whole, is the
absence of any indication in the evidence of the
appellant or of
Buyane as to their alleged encounters with the complainant on the
morning of 15 November that she appeared injured
or distressed in any
way when they say they saw her. The objective indications being
that the compliant had been brutally
sexually assaulted during the
night of 14/15 November, it seems to me extremely unlikely that she
would not have noticeably traumatised
by the experience and that her
traumatised condition would have been evident to anyone seeing her
early in the morning of the 15th.
Indeed, as mentioned, the
doctor who examined her some hours later noted her traumatised
appearance. And Constable Samuels’
description of her
report at the police station gives the impression that she was
subdued and inhibited. Those descriptions,
which accord with
what might have been expected in the circumstances, are
irreconcilable with the impression of a defiant and aggressive
demeanour conveyed in the evidence of the appellant and his
shack-mate concerning the complainant’s alleged behaviour.
Having regard to the trauma she had just been through, the
description of her behaviour early on the morning of 15 November
given
by the appellant and Buyane is strikingly inconsistent with the
inherent probabilities.
[28] The effect of the
significant improbability in the version of the appellant and Buyane
is compounded by the material conflict
between their respective
versions. The appellant, consistently with the complainant’s
evidence, has himself sleeping
in the shack overnight, while Buyane
was adamant that he had not spent the night there. In the
context of both the complainant
and the appellant placing themselves
in the shack at the material time, Buyane’s evidence that
neither of them was there
had to raise questions about his
reliability. The question mark raised in respect of this
evidence in this most important
aspect fell to be assessed in the
context of the incongruent character of his other evidence discussed
earlier. And those
factors, taken together, had to be seen in
the context of his longstanding connection with the appellant, which
justified an especially
critical scrutiny of his evidence because of
the inherent danger in the circumstances that he might be less than
impartial, or
even susceptible to giving false testimony in support
of his friend.
[29] Nkuseli Magqubushana
testified that he was a good friend of the appellant. He came
from the same area in the Eastern
Cape. They had known each
other for about six years. He also knew the appellant’s
mother in the Eastern Cape.
He lived in a shack about four
shacks away from that in which the appellant lived. He also
knew the complainant. He
described that she was employed as a
domestic worker in Surrey Estate. His evidence in that respect
was in contradiction
of that of the appellant, who had said that the
complainant had not worked during the period that she lived with him
in the shack.
The appellant’s evidence in that respect
was consistent with that of the complainant. Magqubushana also
contradicted
the appellant by stating that the complainant had only
stayed over at the appellant’s shack now and then
(
Afr
. ‘partykeer’). That evidence was
inconsistent with that given by all the other lay witnesses in the
case.
It was also contradicted by the investigating officer’s
confirmation of the evidence of the complainant that the police had
arranged alternative accommodation for her at Saartje Baartman
House. That would not have been necessary if she already had
somewhere else to live. These inconsistencies call into
question the reliability of Magqubushana’s evidence.
[30] Magqubushana stated
that on the evening of 14 November 2013, after their return from
work, he and the appellant had gone to
a shebeen together. He
recalled that they had been in the company of other friends there,
but claimed to be unable to recall
who they were. This
suggested a selective memory because, curiously, at a remove of two
years, he purported to be able to
remember that they had consumed six
bottles of sweet wine. Magqubushana said that he and the
appellant had returned home
together at about 10:00 pm. He had
gone to his shack and the appellant to the appellant’s shack.
He went to the
appellant’s house the following morning to call
him to come to work. He said that the appellant was asleep and
did
not respond to his shouts. He went off to work alone, but
the appellant caught up with him along the way. He said nothing
about having seen either the complainant or Buyane when he went to
the appellant’s shack early on the morning of 15 November.
He did however relate that the appellant had told him on the way to
work that the complainant had not slept at the shack the previous
evening and that she had arrived just before he left. He said
that the appellant had been arrested when they returned home
from
work.
[31] Magqubushana’s
recollection was that the appellant had been released approximately
three weeks after his arrest when
the complainant had withdrawn the
charges. His recollection in this respect was demonstrably
incorrect on both counts.
[32] Magqubushana
supported the appellant’s version that the charges had been
reinstituted when the appellant had refused
her entreaties to take
her back. His evidence in chief in the latter respect was given
with a marked absence of corroborating
detail and left the impression
that it was based on what he had been told, rather than what he had
witnessed. Under cross-examination,
however, he claimed that the
complainant had told him directly that she had withdrawn the
charges. Had this indeed been so,
one would have expected the
appellant’s attorney, who throughout the trial dealt with
leading evidence in chief and cross-examination
with consistent
attention to detail, to have elicited the evidence in chief, and also
to have put it to the complainant in cross-examination.
He did
not. I have already dealt elsewhere with the improbabilities
that attend the suggestion that the charges had been
withdrawn at the
instance of the complainant and the circumstances of their
reinstatement.
[33] There is nothing
irreconcilable between between Magqubushana’s evidence as to
events on the evening of 14 November and
that of the complainant.
She described how she was forced to accompany the appellant to a
shebeen after he had come home
from the shebeen to which he had gone
earlier in the evening on his return from work. Magqubushana
did not purport to know
what the appellant had done after the two of
them had gone their separate ways when they returned from the
shebeen.
[34] The magistrate found
the complainant to be ‘a very good witness’. She
also stated that the appellant and
Nkuseli Magqubushana were good
witnesses, but nevertheless concluded that their evidence and that of
Buyane fell to be rejected
as ‘improbable, mendacious and
false’. Unfortunately she failed to explain these
on-the-face-of-it contradictory
findings. It seems to me that
in describing the appellant as a good witness, the magistrate was
referring to his demeanour,
with which she apparently could not find
fault. Appellate courts have cautioned against the attachment
of too much weight
by trial courts in the determination of cases to
the demeanour of the witnesses. They have stressed the
importance of rather
paying close attention to the content of the
evidence and the extent of the coincidence of its content with the
probabilities (see
e.g.
Body Corporate of Dumbarton Oaks v Faiga
[1998] ZASCA 101
;
1999 (1) SA 975
(SCA) at 979B-I). This would appear to have
been what the magistrate must have done. It is unfortunate,
however, that
she failed to articulate her reasoning in the judgment.
[35] I can find no fault
in the assessment of the trial court that the complainant was a
satisfactory witness and in its finding
that she had given a truthful
account. The complainant bore up well under a long and detailed
cross-examination. Her
evidence against the appellant was
supported by her conduct in reporting the matter to the police at the
earliest opportunity and
her description of the nature of the assault
on her was supported by the objective indicators noted at the medical
examination.
It was inherently improbable that she would
falsely attribute the brutal sexual assault to her boyfriend rather
than to the person
who had actually assaulted her, which is the
implication in the appellant’s evidence.
[36] I have already
identified various material respects in which the evidence of the
appellant and his supporting witnesses was
internally and mutually
contradictory and improbable. It bears noting that these
improbabilities and contradictions were
evident notwithstanding that
the defence witnesses were hardly cross-examined and that the quality
of the superficial cross-questioning
that was addressed by the
prosecutor was lamentable. (I agree with the observations made
by Schippers J about the importance
in general of proper
cross-examination. In the context of the current case, however,
it is difficult to see how a more effective
cross-examination could
have resulted in the calling by the appellant of further evidence or
could have led to a relevant or material
qualification by any of the
defence witnesses of their evidence. The improbabilities
in the defence evidence were innate,
the contradictions established
and in material respects impossible to reconcile.) The effect
is that I have not been persuaded
on appeal that the trial court
erred in rejecting the evidence of the appellant and Buyane as
untruthful.
[37] In the result I
would dismiss the appeal against conviction.
[38] The rape offences of
which the appellant was convicted were subject to a prescribed
sentence of life imprisonment in terms
of the
Criminal Law Amendment
Act 105 of 1997
. All three counts (the two counts of rape and a
count of assault with intent to do grievous bodily harm) were taken
as one
for sentence and he was sentenced to 15 years’
imprisonment. The magistrate took the following factors into
account
in determining that there were substantial and compelling
reasons to depart from the prescribed sentence: that he was for
practical
purposes a first offender, that he had already spent ten
months in custody, that the commission of the offences had been
inspired
by alcohol and jealousy, and (without derogating from the
seriousness of the offences) that they were not the worst instances
of
rape with which the court had had to deal. Sentencing is
pre-eminently a matter within the discretion of the trial court.
I am not persuaded that any basis has been shown upon which this
court could hold that the magistrate was materially misdirected
in
the exercise of her discretion. The sentence imposed is by no
means shockingly inappropriately severe. I would therefore
also
dismiss the appeal against sentence.
[39]
In my judgment the appropriate order would be ‘The appeal
against conviction and sentence is dismissed’.
__________________
BINNS-WARD,
J
SCHIPPERS J:
[40]
I have read the
judgments prepared by my colleagues, Le Grange J and Binns-Ward J.
I respectfully disagree with the conclusion
to which they have come.
In my view, the State did not prove its case beyond reasonable doubt.
[41]
The appellant was
charged in Wynberg Regional Court with two counts of rape under
s 3
of the
Criminal Law (Sexual Offences and Related Matters) Amendment
Act 32 of 2007
, and assault with intent to do grievous bodily harm.
The State alleged that on 14 November 2013 and at Athlone, the
appellant
unlawfully and intentionally committed an act of sexual
penetration with the complainant without consent: vaginally (count
1);
and anally (count 2); and that he assaulted the complainant by
slapping her, hitting her with his fists, and biting her (count 3).
The appeal lies only against conviction and sentence in respect of
the charges of rape (counts 1 and 2).
[42]
The appellant was
legally represented. He pleaded not guilty to charges 1 and 2,
exercised his right to remain silent and
did not furnish a plea
explanation. He pleaded guilty to count 3. He admitted
assaulting the complainant by slapping
her and hitting her with his
fists around her eyes, but denied intent to cause grievous bodily
harm. His assault on the complainant
was recorded as an
admission in terms of
s 220
of the
Criminal Procedure Act 51 of 1977
.
[43]
I respectfully disagree
that the appellant’s defence, when he pleaded to the charges of
rape, was one of consent; and that
he advanced an entirely new
defence at the trial. The record shows that when the appellant
made a statement to the effect
that he lived with the complainant and
they had engaged in consensual intercourse, the Magistrate replied,
“Ons gaan later
kom by die pleitverduideliking”.
What is clear is that the appellant’s attorney informed the
court that the plea
of not guilty accorded with his client’s
instructions and that the appellant had elected to exercise his right
to remain
silent. That is also how the Magistrate understood
his plea, as appears from the judgment.
[44]
On 6 August 2015 the
appellant was found guilty as charged on counts 1 and 2. On
count 3 he was found guilty of assault with
intent to do grievous
bodily harm by hitting the complainant with his fists and slapping
her (the State alleged that he also had
bitten her). All three
counts were taken together for the purpose of sentence and the
appellant was sentenced to 15 years’
imprisonment.
The evidence
[45]
The state adduced
evidence by the complainant, two police officers and Dr A Narula, a
clinical forensic medicine practitioner.
[46]
The complainant
testified that at the time of the incident, she was living with the
appellant in an informal settlement in Vygieskraal,
Athlone.
They lived in a shack with a single room which they shared with Mr
Elias Buyane (“Buyane”). They
had had a good
relationship, but the appellant was very jealous. He had never
threatened or assaulted her prior to the incident
on 14 November
2013; and two days before that they had engaged in sexual
intercourse.
[47]
The complainant’s
evidence concerning the incident, in summary, is as follows. On
14 November 2013 the appellant returned
from work, put down his bag
and left. Later he returned and accused the complainant of
having been with another man that
day. He then hit her once
with his fist above her eye and took her to a shebeen. There,
she said, he forced her to
drink wine and refused to let her to go to
the toilet. As they left the shebeen, he asked her to be honest
(as to whether
she had been with another man). When she denied
it he again hit her with his fists in her face.
[48]
When they got home the
appellant locked the door. He asked the complainant to undress, which
she did, and again hit her with his
fists. He told her to lie
down and asked her for a condom, which she gave him. They then
had sexual intercourse, in
the complainant’s words, “
nie
soos ons normaal seks gehad het nie
”.
He turned her on her side, removed the condom and had anal sex with
the complainant. She cried and told the
appellant and that he
was hurting her. He hit her, bit her on her back and banged her
head against a cupboard. She
said that all she could do was
cry. The appellant’s sperm ran down her legs and he fell on to
his back. Later, she
heard him sleeping. She got up to
look for the key to the shack but it was dark and she could not find
it. She got
dressed and sat on the bed. She did not
sleep. When it became light she found the key on the cupboard,
went to a neighbour
to collect her identity document and immediately
went to the police. She said that she did not tell the
neighbour about the
rape because she did not want to talk to anybody
about it.
[49]
The complainant said
that at the time of the incident, she was not drunk. The
appellant had consumed alcohol but was not very
drunk. Buyane
was in the same room (separated by a curtain) and was sleeping.
The complainant said that she did not
alert Buyane to the rape
because they are all afraid of the appellant; that she herself is
afraid of the appellant; and that Buyane
is like one who is deaf - he
does not actually hear what one says to him.
[50]
Constable Adriaan
Samuels (“Samuels”) testified that at about 08:05 on 15
November 2013, the complainant called at Athlone
police station to
open a case of assault against the appellant. Samuels noticed
that her eyes were bruised and swollen.
The complainant did not
inform him how the assault took place or how the injuries were
sustained. Upon further questioning,
the complainant informed
Samuels that the appellant forcefully had sex with her, as she said,
“
van voor en
van agter af
”.
He informed his superior, Lieutenant Helsinger, the trauma counsellor
in the area. The complainant was then
taken to the trauma room
and later to the district surgeon.
[51]
Dr Narula testified
that she saw the complainant at 12:15 pm on 15 November 2013 at JF
Jooste Hospital in Athlone. The report
of her medico-legal
examination states that there were some fresh and old external
injuries on the complainant’s body. She
had a fresh aberration
on the left forearm; a circular aberration resembling a bite mark on
the left posterior shoulder, right
posterior shoulder and left of the
chest; and periorbital swelling and bruising around both eyes.
The complainant also had
fresh bruises on her neck and left anterior
shoulder; fresh aberrations in the upper and lower inner lip; and old
bruises on the
left arm. Dr Narula concluded that these
injuries were consistent with blunt force trauma and the history
which the complainant
gave her. Dr Narula did not notice any
evidence of drugs or alcohol intoxication at the time of the
examination.
[52]
Dr Narula’s
gynaecological examination revealed no fresh tears or bruising of the
hymen; no bleeding or discharge; no injuries
of the perineum; and no
other injuries. Her conclusion was an absence of severe
injuries in a sexually active woman with
a carunculated hymen, which
did not exclude the possibility of forcible vaginal penetration with
a penis or an object.
The anal examination revealed fresh
swelling and bruising around the peri-anal area; and fresh, deep
tears at the orifice.
Dr Narula concluded that these findings
were compatible with recent forcible anal penetration with a penis or
an object.
She said that the injuries which the complainant
sustained could have happened within 72 hours of her examination.
[53]
Sergeant Angelo De
Vries of the Family Violence, Child Protection and Sexual Offences
Unit, Nyanga cluster, testified that he obtained
a DNA sample from
the appellant with his consent, on 15 November 2014. This
sample and a crime kit (consisting of the complainant’s
underwear and a DNA sample retrieved from her) were sent to the
police forensic laboratory. The result of the forensic analysis
is contained in an affidavit by Warrant Officer Michelle Baard,
admitted in evidence in terms of
s 212
of the
Criminal Procedure
Act. The
affidavit states that the DNA result from the
reference sample of the appellant is read into the mixture DNA result
of the complainant;
and that the most conservative occurrence for all
the possible contributors to the mixture DNA result is 1 person in
every 130 000
people. In short, it appears that the
appellant’s DNA was found on the complainant.
[54]
The appellant testified
in his defence. He and the complainant lived together for nine
months. Their relationship ended
because the complainant, who
was unemployed, used to sleep out and return the next morning.
When he would ask where she had
been, she would say that she slept
over at the home of friends or a certain female friend. On the
day of the incident the
appellant saw the complainant drinking at the
home of a neighbour on his return from work. She returned home
after he had
washed himself and said that she was going to her aunt.
Later that night he left with Mr Nkuseli Magqubushana (“Nkuseli”),
a fellow employee, to a shebeen. The complainant had not yet
returned home. On the appellant’s return home, the
door
was locked from the inside. He knocked on the door and Buyane
opened it. They sleep in the same room in the shack,
and their
beds are separated by a curtain. He asked Buyane if the
complainant had returned. He said no. The appellant
closed the door and they went to sleep. As he was getting ready
for work before 7 am the next morning, there was a knock
on the
door. It was the complainant. He asked where she had
been, but she scolded and slapped him. He hit her
with his
fist, slapped her and told her to leave. He went to Nkuseli and
they left for work. On returning home he was
surprised to hear
that the investigating officer had been looking for him in connection
with a rape case. About 10 minutes
later he was arrested.
[55]
At the police cells the
investigating officer told the appellant that the complainant had
laid a charge of rape and assault against
him. The appellant
denied raping or biting the complainant, but admitted assaulting her
before he went to work that day.
He said that she did not sleep
in the shack on the night that the alleged rape occurred; that he
does not know where she was that
night; that he did not at any time
have anal sex with the complainant; and that Buyane is not deaf and
can hear very well.
The appellant spent that weekend in the
police cells and was subsequently taken to Wynberg Magistrate’s
Court where he was
later released. The appellant returned to
the site where he had been working. He said that he was not
given any reason
for his release.
[56]
The appellant testified
that about six weeks later the complainant approached him at another
house and wanted them to get back together.
He refused because
she had sent him to jail. Subsequently she returned on more
than one occasion and asked him to resume
their relationship.
However, when she saw that he was involved with another woman he
received a notice at work advising him
to report to Wynberg
Magistrate’s Court for the rape case. That happened about three
months after his first arrest.
[57]
The appellant’s
evidence was not really challenged in cross-examination. It
comprises only 7 pages. He was asked
about his relationship
with the complainant which he said lasted for nine months. He
maintained his innocence and admitted
that he assaulted the
complainant on 15 November 2013, when she returned home. He
disagreed with the DNA result, stating
that the complainant had not
slept with him on 14 November 2013. (It is common ground that
they had engaged in sexual intercourse
two days before.) He
said that Buyane can hear very well. The appellant also said
that he had his own key to the shack.
[58]
Nkuseli testified that
he knows both the appellant and the complainant who lived together.
He worked with the appellant. After they
returned from work on 14
November 2013 the appellant went to Nkuseli and from there they went
to drink at a shebeen in the informal
settlement. The
complainant did not drink with them. They returned home at
about 10 pm that night. The next morning
they left together for
work. Nkuseli said that after the incident he saw the
complainant but could not remember how many
times. He confirmed
the appellant’s version that after the case had been withdrawn,
the complainant returned and again
wanted to live with the appellant,
who refused.
[59]
Buyane testified that
on the night in question, the appellant and Nkuseli went drinking.
At around 10 pm the appellant returned,
but left again. When he
locked the shack that night, the complainant was not home. The
uncontradicted evidence was that Buyane
did not drink at all that
night. As to what happened the next morning, Buyane said:
“
Die
oggend toe het Donker geklop aan die deur. Ek het my sleutel en
hy het hom sleutel, want ek het toegemaak aan die binnekant.
Ek
het vir hom oopgemaak en hy het ingekom. Hy het vir my gevra of
hierdie vrou nog nie daar gekom het nie, ek het gesệ
nee ek het
nog nie vir haar gesien nie. Ek het water loop skep en toe ek
terugkom toe is die vrou al terug, toe is sy daar.
Toe wil sy
gewas het met hierdie water. Toe stry Donker nou met haar, toe
stry hulle twee. Toe wil Donker weet waarvan
af kom sy.
Die vrou het toe gesệ dat sy kom van iewers af. Ek het my
sak geneem en toe is ek maar weg, want ek
sien nou hulle stry, laat
ek my sak vat en werk toe gaan. Ek het toe vir hulle gesệ
albei van julle het fone julle
kan mos vir mekaar bel en jy sê
toe vir die vrou hierdie ding doen jy altyd om nie terug te kom nie,
dan sal jy in die oggende
hiernatoe kom en dan wil jy kom en was.”
[60]
What is clear from
Buyane’s evidence is that neither the appellant nor the
complainant slept at the shack on the night of
14 November 2013, and
that the appellant was first to arrive the next morning. He
also said that he has no difficulty hearing
and in fact pointed out
that he had no hearing problem in court. Buyane said that he
had no problem with the complainant.
[61]
As in the case of the
appellant, Buyane was not cross-examined, if at all. His cross
examination comprises 2 pages of the
record. He was adamant
that neither the complainant nor the appellant slept in the shack on
14 November 2013. He shares
a room with them. He
confirmed that the appellant has his own key to the shack and that
the appellant did not drink with
the complainant on the night in
question - he had been drinking with Nkuseli. Buyane also said
that generally the appellant
and the complainant had a good
relationship; that they sometimes argued; and that there were times
when he intervened to stop them
from fighting.
Did the State prove
its case beyond reasonable doubt?
[62]
The Magistrate came to
the conclusion that the complainant was a reliable and credible
witness; that there were guarantees of her
reliability in the
findings of Dr Narula; and that Buyane’s contradiction of the
appellant’s evidence was a further
indicator that the
appellant’s version was untrue. Consequently she found
that the State had proved its case beyond
reasonable doubt.
[63]
Before
considering whether or not the Magistrate was correct, the dictum of
Nugent J (as he then was) in
Van
Der Meyden
,
[6]
bears repetition:
“
The
proper test is that an accused is bound to be convicted if the
evidence establishes his guilt beyond reasonable doubt, and the
logical corollary is that he must be acquitted if it is reasonably
possible that he might be innocent. The process of reasoning
which is appropriate to the application of that test in any
particular case will depend on the nature of the evidence which the
court has before it. What must be borne in mind, however, is
that the conclusion which is reached (whether it be to convict
or to
acquit) must account for all the evidence. Some of the evidence
might be found to be false; some of it might be found
to be
unreliable; and some of it might be found to be only possibly false
or unreliable; but none of it may simply be ignored.”
[7]
[64]
The
central issue is whether the State proved beyond reasonable doubt
that the complainant’s version that the appellant raped
her in
the shack at Vygieskraal, Athlone, on 14 November 2013, is
objectively true. Where, as in this case, the versions
of the
State and the defence are contradictory, before a finding can be made
as to the objective truth of the one version and the
falsity of the
other, not only the honesty, but also the reliability of the version
must be considered. The State, which
bears the onus, must prove
the truth of its version and not merely the honesty of the witnesses
who presented that version.
[8]
[65]
Applying these
principles, the Magistrate, in my view, erred in finding that the
complainant’s evidence was reliable and consistent,
in failing
to consider the evidence in its totality and in concluding that the
State had proved its case beyond reasonable doubt.
[66]
In my opinion, the
record shows that the complainant was an unreliable witness. To
begin with, her story that the appellant
took her to a shebeen before
the incident and forced her to drink alcohol there, is not true.
Both the appellant and Nkuseli
denied that she had been drinking with
them at the shebeen. The Magistrate found that both the
appellant and Nkuseli had
made a good impression on her and that
neither’s evidence had been contradicted in material respects.
The complainant’s
version as to what happened in the shack is
improbable. According to her evidence the appellant had hit her
on her back,
bitten her, banged her head against a cupboard and she
was crying. When it was put to her that Buyane must have heard
the
commotion, she said that most of the blows inflicted on her could
not be heard. This is impossible. Buyane’s evidence
was that he would have heard the commotion. Her explanation for
not asking Buyane for help, was that he was deaf and afraid
of the
appellant. This also is not true. The evidence plainly
shows that Buyane is not deaf and that he had on previous
occasions
intervened when the complainant and the appellant had argued.
And there is no evidence, in my respectful view,
that Buyane was
under the influence of alcohol or that he turned a deaf ear to what
was happening. When asked why she did
not leave the shack after
the incident, the complainant said that she could not find the key.
When it was put to her that
she knew where the appellant’s key
was, she replied that the appellant never had his own key to the
shack.
[67]
Then there is the
evidence by Samuels that the first report of the incident was that
the complainant had been assaulted. It
was only after he
questioned her that she said that she had been raped. It is
improbable that having been vaginally and anally
raped, and sat up
most of the night, the complainant would have reported simply an
assault. Further, the fact that she was
only assaulted ties in
with the evidence of the appellant and Buyane: she had returned home
that morning, there was an argument
about where she had been the
night before and the appellant assaulted her.
[68]
The evidence of Dr
Narula takes the State’s case no further. She could not
say whether the bite marks were sustained
within 72 hours prior to
her examination. The complainant’s version that she had
sustained the bite marks the night
before, is thus insupportable.
Dr Narula’s finding that there were no severe injuries in a
sexually active woman and
that forcible vaginal penetration with a
penis or object was not excluded, is equally consistent with the
common cause fact that
the complainant and the appellant had engaged
in consensual intercourse 2 days prior to the alleged rape. And
the medical
evidence regarding the anal penetration is also
inconclusive: no semen (not even contaminated semen) was found in the
anal area,
and those injuries could have happened at any time within
a 72 hour period. The DNA evidence is also inconclusive.
In this regard Dr Narula testified that semen can remain for up to
five days in the cervix; and even if there had been semen in
the anal
area, it would have been contaminated by bacteria very quickly.
[69]
There is accordingly
reasonable doubt as to when, where, in what manner and under what
circumstances the injuries referred to in
Dr Narula’s report
were sustained. The appellant is entitled to the benefit of
that doubt.
[70]
I
come now to Buyane’s evidence. It was not challenged at
all in cross examination. The Constitutional Court has
said
that cross-examination is not only a right but also imposes certain
obligations. Generally, when it is intended to suggest
that the
witness is not speaking the truth on a particular point, it is
essential to direct the witness’s attention to that
issue, by
questions put in cross-examination and to give the witness an
opportunity, while still in the witness box, to furnish
an
explanation. If a point in dispute is left unchallenged in
cross-examination, the party calling the witness is entitled to
assume that the unchallenged witness’s testimony is accepted as
correct.
[9]
The
Court went on to say:
“
The
precise nature of the imputation should be made clear to the witness
so that it can be met and destroyed, particularly where
the
imputation relies upon inferences to be drawn from other evidence in
the proceedings. It should be made clear not only
that the
evidence is to be challenged but also how it is to be challenged.
This is so because the witness must be given an opportunity
to deny
the challenge, to call corroborative evidence, to qualify the
evidence given by the witness or others and to explain contradictions
on which reliance is to be placed.”
[10]
[71]
In effect then,
Buyane’s evidence must be accepted as correct. In light
of his evidence that the complainant was not
at the shack at all on
the night in question, her evidence as to the alleged rape cannot be
true.
[72]
Aside from this,
Buyane’s evidence is reliable. First, he confirmed that
the complainant had not been drinking with
the appellant and Nkuseli
prior to the alleged rape. It should be noted that the
Magistrate accepted Nkuseli’s evidence
that the complainant was
not with them at the shebeen before the rape.
[73]
Second, Buyane got on
well with the complainant: there was no reason to falsely testify
against her. Third, he did not lie
for his friend: he said that
the appellant had also not slept at the shack that night.
Fourth, there is nothing to gainsay
his evidence that the complainant
often was absent from the shack overnight. And why would Buyane
invent such a story?
In my respectful view, there are no
material inconsistencies in his evidence. Further, the
appellant’s evidence that
the complainant had often not slept
in the shack and returned the next morning was not challenged.
[74]
There was thus no basis
for the Magistrate to reject Buyane’s evidence. But the
record shows that the Magistrate
also
accepted Buyane’s evidence
as a material and critical reason for rejecting the appellant’s
version that he (the appellant) slept in the shack on the
night in
question. This, immediately after finding that the appellant
had made a good impression on her; that he gave a detailed
description of the events on the night in question; that he did not
deviate from his version; and that his version was not broken
down in
any material respect. In these circumstances, and the absence
of any adverse comments on his demeanour in the witness
box by the
Magistrate in her reasons, the rejection of Buyane’s evidence
is neither logically nor legally defensible.
[75]
Finally, the Magistrate
also paid insufficient regard to the evidence that the charges
against the appellant were reinstated because
he refused to take the
complainant back after he had been arrested the first time.
Buyane and Nkuseli confirmed the appellant’s
version on this
score. In this regard, Nkuseli’s evidence - which was not
challenged - reads:
“
[Mnr
Hartzenberg] En het u vir haar weer gesien na die insident?
--- Die dame?
Vir
Janette? --- Ja, ek het weer vir haar gesien.
Hoeveel keer
omtrent? ---Ek kan nie meer onthou nie, ek het nie opgelet nie.
Het
sy na die saak nou, of nadat Donker nou weg is met die polisie en na
sy nou gesê het dat sy het hierdie saak teruggetrek,
weet u of
sy en Donker in daardie tyd saamgebly het? --- Nee, hy wou nie weer
vir haar gehad het nie.
Hoekom sê u so? ---Sy het weer die
saak loop maak nadat sy die saak teruggetrek het, toe gaan sy weer
terug om die saak te
maak.
En wanneer het dit gebeur? --- Ek kan
nie meer so mooi onthou nie.
En hoe weet u dat sy het weer
die saak gemaak nadat sy dit teruggetrek het? --- Sy het die saak
oopgemaak en Donker was vrygelaat
en toe sê sy mos sy het die
saak teruggetrek teen hom, Donker is vrygelaat. Sy het
teruggekom en sy het gesê
sy wil weer met Donker bly en toe sê
Donker, nee, ek kan nie meer met jou bly nie. Toe eindig dit
nou daar.”
[76]
It is common ground
that the appellant did not appear in court after he was arrested and
taken to the cells at Wynberg Magistrate’s
Court. It was
put to him by the prosecutor that he did not appear in court (and was
released) because the 48 hours within
which he had to be brought
before a court, had expired. The appellant replied that he
could not dispute this. But that
is not the point. The
appellant’s testimony was that the complainant had asked him on
numerous occasions to resume
their relationship, and that when he
refused to do so, the complainant proceeded with the charges.
Here too, the evidence
supports the appellant’s version.
Both Buyane and Nkuseli referred to the withdrawal of the rape charge
and Nkuseli
confirmed that the complainant wanted to get back with
the appellant. The appellant said that he was charged with the
offences
some three months after he had been released the first
time. The record shows that the appellant’s first
appearance
in court was on 5 August 2014 - nearly nine months after
the alleged rape - and then on warning.
[77]
So far from indicating
that the appellant’s version was untrue, when the evidence is
considered as a whole, Buyane’s
testimony casts serious doubt
on the credibility, reliability and veracity of the complainant’s
version. Further doubt
is cast by the evidence of Nkuseli.
[78]
In conclusion, on the
totality of the evidence I am of the opinion that the State did not
prove its case beyond reasonable doubt;
and accordingly, the appeal
in relation to counts 1 and 2 must succeed.
[79]
What remains is the
charge of assault with intent to do grievous bodily harm (count 3).
The appellant admitted, in terms of
s 220
of the
Criminal Procedure
Act, that
he hit the complainant with his fists around her eyes and
that he slapped her. He confirmed in evidence that he did so on
the morning of 15 November 2013. Dr Narula testified that the
complainant sustained swelling and bruising around the whole
of both
eyes. These are not insignificant and superficial injuries.
They were caused by considerable force and the
only reasonable
inference to be drawn is that the appellant intended to cause
grievous bodily harm. The trial court rightly
found that the
appellant had the requisite intention to injure the complainant
seriously.
[80]
The trial court took
all three counts together for the purpose of sentence and therefore
the sentence which it imposed must be set
aside. As to an
appropriate sentence, the mitigating factors are that the complainant
was assaulted during an argument; that
the appellant effectively
admitted guilt; and that practically, he is a first offender -
although he has one previous conviction
of assault with intent to do
grievous bodily harm in 1993. However, he assaulted a
defenceless woman as a result of which
she not only sustained
significant injuries, but also a violation of her dignity: two black
eyes are clear signs of an assault.
Given the particular
circumstances of this case and the fact that the appellant has
already served part of his sentence, the only
appropriate sentence,
it seems to me, is a period of imprisonment, backdated to the date on
which he was sentenced by the trial
court.
[81]
I would make the
following order:
(a)
The appeal is upheld,
and the convictions on the charges of rape (counts 1 and 2) are set
aside.
(b)
The appellant’s
conviction of assault with intent to do grievous bodily harm (count
3) is confirmed.
(c)
The sentence imposed by
the trial court is set aside, and replaced with the following:
“
On
the charge of assault with intent to do grievous bodily harm (count
3), the appellant is sentenced to four (4) months imprisonment,
antedated to 23 September 2015, the date on which he was sentenced by
the trial court.
”
_____________________
SCHIPPERS,
J
[1]
On the
central issue, as to what the parties actually decided, there are
two irreconcilable versions. So, too, on a number of
peripheral
areas of dispute which may have a bearing on the probabilities. The
technique generally employed by courts in resolving
factual disputes
of this nature may conveniently be summarised as follows. To come to
a conclusion on the disputed issues a court
must make findings on
(a) the credibility of the various factual witnesses; (b) their
reliability; and (c) the probabilities.
As to (a), the court's
finding on the credibility of a particular witness will depend on
its impression about the veracity of
the witness. That in turn will
depend on a variety of subsidiary factors, not necessarily in order
of importance, such as (i)
the witness' candour and demeanour in the
witness-box, (ii) his bias, latent and blatant, (iii) internal
contradictions in his
evidence, (iv) external contradictions with
what was pleaded or put on his behalf, or with established fact or
with his own extracurial
statements or actions, (v) the probability
or improbability of particular aspects of his version, (vi) the
calibre and cogency
of his performance compared to that of other
witnesses testifying about the same incident or events. As to (b), a
witness' reliability
will depend, apart from the factors mentioned
under (a)(ii), (iv) and (v) above, on (i) the opportunities he had
to experience
or observe the event in question and (ii) the quality,
integrity and independence of his recall thereof. As to (c), this
necessitates
an analysis and evaluation of the probability or
improbability of each party's version on each of the disputed
issues. In the
light of its assessment of (a), (b) and (c) the court
will then, as a final step, determine whether the party burdened
with the
onus of proof has succeeded in discharging it. The hard
case, which will doubtless be the rare one, occurs when a court's
credibility
findings compel it in one direction and its evaluation
of the general probabilities in another. The more convincing the
former,
the less convincing will be the latter. But when all factors
are equipoised probabilities prevail
.
In
a criminal trial, what Nienaber JA called ‘
the hard case
’,
the accused would be given the benefit of the doubt, as no doubt
also in a case in which ‘all factors were equipoised’,
for in those situations the reasonable possibility of the truth of
the accused’s version would be starkly evident.
[2]
The
judgment of Schippers J sets out a more detailed account of the
complainant’s evidence concerning the assaults to which
she
was subjected, including details of when and how the appellant had
punched her with his fists.
[3]
The
relevant passage in the complainant’s evidenceA under
cross-examination went as follows:
Appellant’s
attorney: U
sien maar dan verstaan ek nie hoekom u nie
saggies vir Msotho kon
gevra het, luister, waar’s die keys nie, siende jy al een is
wat die sleutel het, ek moet prober
wegkom hierso?
Complainant:
Ek wou nie vir Msotho gevra het nie, want Msotho … Hy’s
soos
een wat doof is. Jy moet
ook
hard praat.
[My italics.)
Attorney:
So hy’s doof. Jy moet
hard praat met hom?
Complainant:
Ja. Hy’s
kind of
, hy hoor nie wat jy eintlik vir hom sê
nie. [Italics in the original.]
I
do not understand the complainant to have suggested that Buyane was
extremely hard of hearing. The evidence fell to be
understood
in the context of the complainant’s earlier evidence that she
did not feel comfortable in confiding to Buyane,
with whom she
plainly had no sense of affinity, and her expressed anxiety not to
do anything that might cause the appellant to
wake up.
[4]
He used the
word ‘geskop’, which translates literally as ‘kicked’.
[5]
The record
indicates that the appellant’s first appearance on the charges
was on 5 August 2014.
[6]
S
v Van Der Meyden
1999 (1) SACR 447 (W).
[7]
Van
Der Meyden
n 1 at 449j-450b.
[8]
S
v Saban en ‘n Ander
1992 (1) SACR 199
(A) at 203j-204c.
[9]
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
2000 (1) SA 1
at para 63.
[10]
SARFU
n 4 para 63 footnotes omitted.