About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2016
>>
[2016] ZAWCHC 213
|
|
Sibindi v S (A460/2015) [2016] ZAWCHC 213 (21 October 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
CASE
NO
: A460/2015
DATE
:
21 OCTOBER 2016
In
the matter between:
T
D
SIBINDI
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
BOQWANA,
J
The
appellant was arraigned before the Regional Court in Paarl for one
count of rape and one of assault with intent to do grievous
bodily
harm. He pleaded not guilty to both charges and was convicted
on 8 July 2014 on both counts. In respect of the
rape count he
was sentenced to 20 years imprisonment, 5 years of which was
suspended on specific conditions and to 12 months imprisonment
in
respect of count 2 of assault with intent to do grievous bodily
harm. The sentences were ordered to run separately, making
the
effective sentence 16 years imprisonment. Leave to appeal
against conviction was granted on petition to this Court.
For
some reason both the appellant and the respondent addressed the issue
of sentence in their heads of argument. I will
return to this
later.
The
incident giving rise to the conviction occurred on 17 June [2012]
near Mbekweni where a 15 year old complainant was allegedly
raped and
assaulted by a male person whom she alleges was the appellant.
Six witnesses including the complainant testified
on behalf of the
state. The appellant testified in his case and also called Vuyokazi
Venge to testify on his behalf.
The
complainant testified that on 16 June 2012 she was walking with two
cousins and two friends towards a shebeen, known as London.
They met a lady known as Vuyokazi who encouraged them to go inside
the shebeen. They entered inside the shebeen and Vuyokazi
poured a glass of wine for her. As she was about to drink it,
another lady known as Thobeka entered. The complainant gave
the wine
to Thobeka. Vuyokazi poured another glass of wine for the
complainant which she drank. Vuyokazi left for a
while and came
back with an unknown gentleman. This gentleman drank with
Vuyokazi after which the police arrived and told
them to leave the
shebeen as they were closing it.
As
the complainant walked out with friends, after being told by the
police to leave, Vuyokazi suggested that they go to a shebeen
called
Jimbo where they would drink. Vuyokazi left, the complainant
did not know where she went and she came back in a white
vehicle
driven by a gentleman who was later identified as Doctor, the
appellant. The complainant told Vuyokazi that she was
not going
to drink as it was late. Vuyokazi informed the complainant that
they would drop her off at her home and pulled
her inside the
vehicle. The complainant relented and got inside the vehicle
and drove off with Vuyokazi and the appellant.
The appellant
drove past the complainant’s house. Upon enquiring as to
why they drove past her house Vuyokazi told
her that they were going
to buy alcohol and bring her back.
Upon
arrival at Jimbo, Vuyokazi went out of the vehicle, when the
complainant wanted to follow her she said she would be back soon.
As Vuyokazi went inside, the appellant drove off with the complainant
inside the vehicle. Upon asking where they were going,
the
appellant told her that he was going to the garage to put in petrol.
The appellant drove past the garage and towards a dirt
or gravel road
which had lots of trees. He stopped next to the trees and came
to the backseat of the vehicle where the complainant
was. He
then asked her to sleep with him which she refused to do. He then
slapped her on her face with his hand and hit her
on the top part of
her body using his fists. After that he took out a knife and
stabbed her repeatedly on her pants where
the button was, trying to
loosen the button until it came off. She tried to fight,
blocking him as and was also crying.
The appellant pulled her
pants down, pushed her and put his arm on her neck (which arm was
apparently lame) or disabled.
He used the other hand to pull
her pants down. He then knelt on the seat, took his penis out
and inserted it in her vagina,
making sexual movements and funny
noises. He then stopped, got off her and threatened that if she
told anybody she would
be dead. He then drove the vehicle,
using another route. On the road they gave a lift to two men,
whom they drove to
the garage to get petrol. These men got off
at Drommedaris.
The
appellant told her that they would go back to the place where
Vuyokazi was and she must sit and drink with Vuyokazi. She
drank three or four glasses before she came back. The appellant
then instructed her to leave with him. When she refused
to he
hit her on the back and face a number of times. As he was
hitting her a man by the name of Mazimandile approached them
and
asked the complainant to sit next to him in order to shield her from
the appellant. It appears that the appellant left
and never
came back.
The
complainant asked Mazimandile to accompany her home. Whilst
waiting for Mazimandile to finish drinking other people came
namely
Sihle, Pamela and Siphesanda. Sihle noticed that the
complainant had been assaulted and asked her what had happened
to
her. Mazimandile told Sihle that the appellant assaulted her.
The complainant then asked Sihle to accompany her
to the toilet.
At the toilet she told Sihle that the appellant had raped her, Sihle
suggested that they go home and tell
others at home about what the
appellant had done to her.
When
they got home they found Sihle’s father sleeping and did not
wake him as he looked like he had been drinking. In
the morning
Sihle called their brothers and told them. The brothers advised that
they go to the police station to report the incident.
They went
to the police station as suggested. The complainant still wearing the
clothes she wore the day before, (i.e.the day of
the alleged rape).
She explained to the police what happened and told them that Vuyokazi
knew the appellant.
Sihle
mentioned the name of the person that raped the complainant to the
police. She, the complaint, and the police and others
went
together to arrest the appellant. She confirmed that the man
being arrested was the man who raped her. Siphesanda,
her
boyfriend also saw the man. The complainant was then taken to
the doctor and was examined the same day. She had
scratches
around the pubic area and there was bleeding around that area due to
the scratches. After she was raped it was
difficult for her to
walk and she was crying.
Nohepi,
an adult woman at the tavern saw her crying, Vuyokazi also saw her
crying but did not take note of her, she was just dancing.
She
did not know if Mazimandile saw her crying. She did not ask for
help from the men that got into the vehicle because the
appellant was
still around them. She decided to tell Sihle about the rape,
because Sihle was a member of her family.
In
cross examination she was confronted about the statements that she
made to the police that she, inter alia, contradicted herself
in a
number of respects, including that she was walking with others, a guy
slapped her and offered her a lift to Jimbo liquor store,
which she
accepted, that statement was different from her testimony. She
testified that certain aspects of the police statements
that were put
to her were incorrect.
The
second witness was Mazimandile Buba. He testified that he knew
both the complainant and the appellant. He saw the
complainant
crying or looking like she was crying. He approached her and
asked her what the problem was but she did not want
to tell him.
Tears were coming down her face. She was making sounds like she
was sobbing. She sat alone at the intersection
of the table. As
he was walking towards her, the appellant came and started assaulting
her without saying anything.
He hit her with a fist on her
back. Mazimandile stopped the appellant after which the
appellant left. The complainant’s
cousin came and took
her away.
In
cross examination it was put to Mazimandile that the appellant had
one arm disabled and he testified that he probably used the
other arm
to assault the complainant. He confirmed that the appellant
owned a white Mazda Sting and that he had no problems
with him.
There were security personal at the shebeen but they did nothing to
stop the assault. According to him, fights
occurred every
weekend in that shebeen in the presence of the security guards.
Sihle
Ndebeni was the next witness to testify. She testified that on 17
June 2012, she was with the complainant and three friends
(Thobeka,
Pamela and Yolanda) on their way to drink at London tavern around
12:00 midnight. The complainant is her […].
They
had not even started to drink when the police came and told them to
leave as they were going to close the place. The
complainant’s
boyfriend Siphesanda called the complainant. They decided to go to
Renies place, another shebeen, with their
boyfriends. Whilst they
were walking, a vehicle approached and the man who was driving the
vehicle said he wanted the complainant.
Siphesanda replied by stating
that the complainant was his girlfriend. Vuyokazi called the
complainant and told her not to
worry because she was also in the
vehicle. Vuyokazi then grabbed the complainant into the
vehicle. The complainant got inside
the vehicle and left.
Siphesanda
told her who the gentleman in the vehicle was and he was worried that
something could happen to the complainant.
They went around
looking for the complainant in all the shebeens including Jimbo but
could not find her.
Sihle
and the remaining friends went home around 4h00am. Sihle was
woken up by a person known as Nosani telling her that her
sister was
being hit by somebody at Jimbo. She and others went to Jimbo
and found the complainant crying. Mazimandile
told them that
the complainant was assaulted by the appellant. She asked the
complainant if they could go to the bathroom.
She noticed that
the complainant could hardly walk and her pants were torn.
Mazimandile gave the complainant a jacket to put around
her waist.
The complainant was holding her waist. She asked her why she
held her waist and the complainant told her
that the appellant had
raped her. She told the complainant that they must go home and tell
the older people. On their way
home the complainant could
hardly walk. She and Yolanda had to help her. They went to
sleep and she asked the complainant
again about what she had told her
so as to make sure that it was true. The complainant repeated
what she had earlier told
her about the rape. Their father was
still not home and they decided to go and tell the grandmother.
On their way to
their grandmother they met their father and told him
that the complainant was raped. He went to tell the rest of the
family
about the incident.
Dr
Gail Beverley Davids testified that on 17 June 2012, at 17h30 she
examined the complainant. The gynaecological examination
indicated that the complainant had sustained swelling of the urethral
orifice, the fraenulum of the clitoris was swollen, the para-urethral
folds were swollen, there was friability of the posterior fourchette
and swelling of the hymen with fresh tears in the 7 o’clock
position. The complainant also had small superficial tears in the
vagina that did not actively bleed. The vaginal examination
was
painful. Superficial tears were noted and there was a bloody
discharge. Further, there was bleeding in the cervix
and sample
of pregnancy were negative. Her conclusions of the
gynaecological examination were that there was definite clinical
evidence of dry penetration with fresh tears in the hymen and
superficial tears in the vagina. The hymen was torn indicative
of the fact that the complainant was not sexually active. The
swelling and bruising indicated that injuries could not have
been
older than a week and could have happened 24 hours before she
examined the complainant. She found the complainant’s
mental health and emotional health to be withdrawn and she did not
find any clinical evidence of drugs or alcohol.
Constable
Sibuyele Sihlobo, testified that he was the investigating officer in
the matter. He received a phone call from Mbekweni
Police Station
that there was a rape case reported. She saw the complainant
for the first time on the Sunday, the day after
the matter was
reported to her. The complainant looked very traumatised and
she was crying. She saw that the complainant’s
pants were
torn but did not say where they were torn. She also noticed
that the complainant was wet because when she left
a chair she could
see that she left a wet spot or mark. When she spoke to the
complainant, the complainant told her that
she realised that she had
just had her periods. She took down the warning statement of the
appellant having explained his rights.
The appellant’s
blood and pubic hair were taken as part of the investigation.
Michelle
Smit testified that she had been attached to the biology unit of the
forensic science laboratory since 1 July 2009 and
did the DNA
examination of the exhibits sent to her pertaining to this case.
She confirmed that no male DNA was found on
the swabs. She
testified that lack of semen could be because of drainage, which
could be caused by going to the bathroom
or having periods.
Such activities could wash the evidence such that when the doctor did
the examination no semen was left
inside her body. She could
not say whether or not sexual intercourse did occur as no male
evidence was found. That
was the evidence of the state
witnesses.
The
appellant testified and called Vuyokazi as his witness. He
testified that on the day in question at about 11:00 at night
he was
with Vuyokazi and the complainant. He drove to the garage with
the complainant to put in petrol. From there
they drove to
Jimbo Liquors and they bought four beers and drank. After
drinking the beers he told Vuyokazi and the complainant
that they
must go home, the complainant refused. He and Vuyokazi left and
the complainant remained behind at the shebeen.
Before going to
Jimbo he and Vuyokazi had been at London shebeen where police came
and chased them out. From the London shebeen
they went to his
vehicle. The complainant said they must wait for her. Before
they got there she was called by her boyfriend.
When she was
done talking to him, she got into the vehicle and they drove off.
When
they arrived at Jimbo he told the complainant and Vuyokazi to get off
the vehicle. The complainant did not get off. He
then drove
with her to the garage to put in petrol. He got back from the
garage and parked the vehicle next to the school
by the pavement.
The complainant got off and went inside Jimbo. He stayed
behind, locked the vehicle after which he
proceeded to go inside
Jimbo. He was searched by the security personnel at Jimbo and
proceeded to go inside. He then saw
the complainant, Vuyokazi and
Noyepi sitting together. There were also two gentlemen and
another lady from Silvertown.
He joined them and they all drank
alcohol. He was at the same time playing pool. When the
alcohol was finished, he
said they must go home. The
complainant said he was not going to go home with them because she
was sitting with her aunt
Noyepi. They then left her behind and went
to sleep.
He
denied that he drove with the complainant to a dead road and raped
her. He refuted having any sexual intercourse with her
and
denied assaulting her. When asked about why the complainant
would accuse him of raping and assaulting her, he testified
that she
was sent by her grandmother to lay a case of rape against him,
because the grandmother said she would get him.
When
asked about the motive of why other witnesses would testify against
him, he testified that he did not get along with Mazimandile
in the
township and they did not even talk to each other. As regards
other witnesses, he did not have a problem as he did
not even know
them.
In
cross examination he confirmed that he knew the complainant, before
the incident from seeing her around Langa Buja where he sold
goods as
a hawker. It was however the first time talking to her on the day of
the alleged incident. He knew her by name for
a while and also
knew the grandmother. He also thought the complainant was
around 16 years of age. He was the only
male amongst the girls
he was sitting with. He normally drank with Vuyokazi regularly
but not with the complainant.
They normally put money together
to buy alcohol and meet at the pub or shebeen. At the London
shebeen, the complainant arrived
that evening and asked Vuyokazi for
a glass of wine, Vuyokazi gave it to her and they all carried on
drinking. It was normal
for a stranger to walk into a group and
ask for a glass of wine. He could not say how many glasses of
wine she drank because
they were all sitting there and drinking wine
or beer.
When
asked why he would go to the garage when he had already arrived at
Jimbo where they had intended to drink, he testified that
he would
not have been able to go further than Jimbo with the petrol he had.
He was a businessman and would need to wake
up early in the
morning to go to the farms. He put in petrol when he did, so as
to prevent having to do so before going to
the farms in the morning.
It took about three minutes to drive from Jimbo to the petrol
station. He put in petrol for thirty
rand and got back very quickly
from the petrol station. There was blood in the vehicle but it
was as a result of things that
he was selling. He found it
strange why the complainant would not tell the security at Jimbo that
she was raped.
Vuyokazi
testified that whilst they were sitting and drinking a girl child
arrived and went straight to the appellant and asked
for a glass of
wine and the appellant gave it to her. It was the first time
she saw her. While they were sitting the
police arrived and
closed the shebeen. As they were outside, the appellant said
they must go to Jimbo. This girl, who
was identified as the
complainant called another man and asked where Vuyokazi and the
appellant were going. She then asked
them to wait for her. She
got into the vehicle and drove with them. She denied that she
pulled the complainant into the vehicle
stating that the complainant
got into the vehicle by herself.
When
they got to Jimbo the appellant told them to get out of the vehicle
as he was going to the garage to put in petrol. The
appellant
gave money to Vuyokazi to buy alcohol in the meantime. Vuyokazi
got off the vehicle but the complainant said she
was not getting off
she was going with the appellant. Vuyokazi went inside Jimbo
and the complainant and the appellant left
for the garage. It
was not long before they came back. They took about five
minutes and they were back. The garage
is not far from Jimbo.
When
they came back there was nothing wrong with the complainant. There
was nothing wrong with her face or pants and she was not
crying. She
did not see Mazimandile. She also did not see the appellant hitting
the complainant. After the appellant finished
playing pool he
said they must leave and the two of them left.
In
cross examination she testified that it was the first time seeing the
complainant. She did not know if the appellant knew
her.
She denied giving the complainant wine. She did not know why
the complainant said she would not get off the vehicle.
She was
confronted about the statement she gave to the police that the
appellant and the complainant were gone for a long time.
She denied
that she told that to the police and stated that she said they did
not take long. According to her, the complainant
never got up
to go to the bathroom. She, Vuyokazi also never went to the
bathroom. Furthermore, the appellant never hit her.
She
admitted that she was drunk because they were drinking wine the whole
time. The complainant only drank one glass of wine
at the
London shebeen.
The grounds of appeal
raised on behalf of the appellant are that:
1.
The trial of the appellant was unfair and
not in accordance with the proper administration of justice and the
Magistrate erred by
finding that it was, for the following reasons:
(a) that the appellant
was inadequately represented because the cross examination of the
state witnesses and the doctor was ineffective
and simplistic and in
so doing the appellant was prejudiced in his rights to challenge and
adduce evidence;
(b) the approach of the
legal representative to the warning statement was not done skilfully
by the legal representative and the
presiding officer;
(c) it can be gleaned
from the record that the legal representative simply paraphrased the
complainant’s statements to the
police, argued with the
complainant instead of questioning her; made irrelevant conversation
with the state expert witness.
2.
The trial court erred by not intervening
and applying the rules of evidence and proper administration of
justice. The presiding
officer could have ensured that the rights of
the complainant and the appellant were not trampled. The introduction
of the warning
statement of the appellant was left unchallenged or
verified as to whether the appellant understood his rights. The
evidence with
regards to the DNA and the J88 was introduced into
evidence without an indication of section 220 admissions or legal
representative
and/or appellant was aware of the contents of the
documents and admissions of chain of evidence;
3.
The magistrate was not objective. The
record shows distracted comments and logistical considerations while
evidence was led. There
are instances where the presiding officer
negatively influenced the confidence and demeanour of the appellant’s
testimony
with abrasive interjections. In one instance, the appellant
preferred to stand while he testified and the presiding officer read
or perceived this as a sign of arrogance.
4.
The state did not prove the guilt of the
appellant beyond reasonable doubt and that his version is reasonably
possibly true for
the following reasons:
(a)
The complainant was a single witness with
regards to the rape incident and the cautionary rule should have been
applied;
(b)
The complainant was not consistent when she
was confronted about the discrepancies in her statement to the police
and there were
material discrepancies such as her torn pants and why
they were not secured as an exhibit; if the appellant had a knife; if
she
had sustained injuries; the conditions of the arm of the
appellant; the description of the assault after clinical examination;
she conceded that she was under the influence of alcohol; she
informed the doctor that her last sexual encounter was in 2011; she
had her menstruation on the 15th of June and that there was no
consensual partners during the seven days prior;
(c)She
washed but did not change her clothing; there was no trace of semen
in her inner parts; the magistrate rred in her
findings
regarding the medical evidence; the magistrate erred by finding
that the appellant’s version was riddled with
improbabilities
and was not reasonably possibly true; observations by Vuyokazi
supported the appellant’s version;
ages and experience of
the complainant and the appellant as well as alcohol should have been
taken into account.
The
first question to determine is whether or not the appellant got a
fair trial?
Mr Paries who appeared
for the appellant prefaced his argument in his heads of argument by
quoting a well known decision of the
Supreme Court of Appeal of
S
v Tandwa
2008(1) SACR 613 (SCA) where
Cameron JA
(as the
then was) stated the following at paragraphs 7 and 8:
“
7.
The Constitution guarantees every accused person the right to a fair
trial (Bill of Rights s 35 (3)). This includes the
right ‘to
choose, and to be represented by, a legal practitioner’.
(s 35(3)(f)), as well as the right ‘to
have a legal
practitioner assigned to the accused person by the state at the
state’s expense if substantial injustice would
otherwise
result’ s35(3)(g)). The right to a chosen or assigned
legal representation is a right of substance not form:
‘The
constitutional right to counsel must be real and not illusory and an
accused has, in principle, the right to a proper,
effective and
competent defence’.
Incompetent
lawyering can wreck a trial thus violating the accused fair trial
right. The right to legal representation therefore
means a
right to competent representation - representation of a quality and
nature that ensures that the trial is indeed fair.
When an
accused therefore complains about the quality of legal
representation, the focus is no longer, as before the constitution,
only on the nature of the mandate the accused conferred on his legal
representative, or only on whether an irregularity occurred
that
vitiated the proceedings - the inquiry is into the quality of
the representation afforded.
8. It
need hardly be added that accused 1 enjoyed a constitutional right to
testify in his own defence. The right of the accused
person to
‘adduce’ evidence (Bill of Rights s 35 (3)(i)) clearly
encompasses the right to adduce his own evidence.
It follows
clearly from the structure of s 35 that an accused person has the
right to represent himself, without the interposition
of counsel. If
the unwanted or inept advice of counsel improperly or unfairly
thwarted his exercise of that right, his right to
a fair trial would
have been infringed.”
In regard to the issue of
incompetent lawyering it is apposite to also refer to the decision of
S v Halgryn
2002 (2) SACR 211
at para 14 which was mentioned
by
Cameron JA
in
S v Tandwa
where the court held that:
“
The
constitutional right to counsel must be real and not illusory and an
accused has, in principle, the right to a proper, effective
and
competent defence. Compare
S v
Majola
1982 (1) SA 125
and 133D –
E. Whether a defence was so incompetent that it made the trial
unfair is once again a factual question that
does not depend upon the
degree of
ex post facto
dissatisfaction
of the litigant. Convicted persons are seldom satisfied with
the performance of their defence counsel.
The assessment must
be objective, usually, if not invariably, without the benefit of
hindsight. Compare
S v Louw
[1990] ZASCA 43
;
1990 (3) SA 116
(A) at 125D – E. The Court must place
itself in the shoes of the defence counsel, bearing in mind that the
prime responsibility
in conducting the case is that of counsel who
has to make decisions, often with little time to reflect. See
(
cf R v Matonsi
1958 (2) SA 540
A at 456 C as explained by
S
v Louw
supra). The failure to
take certain basic steps such as failing to consult, stands on a
different footing from the failure
to cross-examine effectively or
the decision to call or not to call a particular witness. It is
relatively easy to determine
whether the right to counsel was
rendered nugatory in the former type of case but in the latter
instance, where counsel‘s
discretion is involved, the scope for
complaint is limited. As the US Supreme Court noted in
Strickland
v Washington
[1984] USSC 146
;
466 US 668
1984 at 686:
“
Judicial
scrutiny of counsel’s performance must be highly differential.
It is all too tempting for a defendant to second guess
counsel’s
assistance after conviction or adverse sentence, and it is all too
easy for a court, examining counsel’s
defence after it has been
unsuccessful, to conclude that a particular act or omission of
counsel was unreasonable.”
Not
everyone is a Clarence Darrell or FE Smith and not every trial has to
degenerate into an OJ Simpson trial.”
‘
Whether
or not the appeal Court would intervene to grant appropriate relief
at the instance of the accused dependent upon whether
or not the
irregularity had resulted in a failure of justice. That in turn
depended upon whether or not the irregularity
prejudiced the accused
or possibly whether the appeal court’s intervention was
required in the interests of public
policy’. In this regard see
the unreported judgment of
Larry v S
(A573/2013)
[2014] ZAWCHC 98
(13 June 2014) at para 9’.
It
is also convenient to consider what the courts have described as the
role of the judicial officer as the objectivity of the magistrate
in
this case has been called into question on behalf of the appellant.
It
is trite that the role and duty of the judicial officer in a trial is
to ensure that justice is done and he or she should guard
against
entering into the arena.
The Court in
S v
Nnasolu
2010 (1) SACR 561(KZP)
at paras 38 and 39 held the
following:
“
[38]
He or she is entitled and often obliged in the interests of justice
to put such additional questions to witnesses, including
the accused,
as seem to him or her desirable in order to elicit or elucidate the
truth more fully in respect of the relevant aspects
of the case.
The presiding officer should not enter the area. He or she is
entitled and often obliged in the interests
of justice to put such
additional questions to witnesses, including the accused, as seem to
him or her desirable in order to elicit
or elucidate the truth more
fully in respect of the relevant aspects of the case. The
Presiding officer should not only ensure
that justice is done, he or
she should also ensure that justice is seen to be done. The
trial should therefore be conducted
in such a way that the
open-mindedness, impartiality and fairness of the judicial officer
are manifest to all those who are concerned
in the trial and its
outcome, especially the accused. The presiding officer should
refrain from indulging in questioning
witnesses or the accused in
such a way or to such an extent that it may preclude him or her from
detachedly or objectively appreciating
and adjudicating upon the
issues being fought out before him or her. The presiding
officer should refrain from questioning
a witness or the accused in
such a way that it may intimidate or disconcert him or her or unduly
influence the quality or nature
of the replies and thus affect his or
her demeanour or impair his or her credibility.
[39]
In my view the present case falls far short of those cases where the
role of the judicial officer has led to an unfairness
in the trial.
The Magistrate might have overstepped the line in putting to the
first appellant that he was “talking
nonsense” and
“playing games”. But the questions in which those
statements were made, and the responses that
they elicited, had no
particular influence on the trial and its outcome. This case is
one which falls far short of those
cases where the court has
interfered on appeal because in the trial court the judicial officer
“entered the arena.”
(own emphasis)
From
my reading of the record, it appears that the state witnesses were
cross examined at length and the appellant’s version
was put to
them for comment. The whole purpose of proper cross examination
is to elicit from the opposing witness facts which
are beneficial to
the case of the cross examiner’s client and put such client’s
opposing and contradictory version
to the witness. The record
is replete with instructions which were put to the witness and in
particular the complainant.
Upon
reflection Mr Paries was constrained to concede that indeed the
questions were put to the complainant in such a manner and
that the
appellant’s version was put to her and in that regard it could
not have been said that there was substantial injustice.
The
questioning was done whilst the complainant’s statements to the
police was read line by line. The fact that the
approach that
was followed by the legal representative during the trial is
belatedly found to be unsatisfactory by the appellant
cannot amount
to an irregularity pointing to the failure of justice. If the
ineffectiveness of the cross examination or lack
of skill by the
cross examiner were found to establish a ground strong enough to
vitiate proceedings then the possibility would
be that many
proceedings in this country would arguably stand to be set aside and
the quality of cross examination may be found
wanting in many cases.
What is important is to look at the conduct of the proceedings and
conduct of the cross examination
as and whether it was so gross such
that lack of interference by the judicial officer in those
circumstances led to a failure of
justice.
It
may be so that the cross examiner in this case lacked some
experience, he however cross examined witnesses on crucial aspects
of
the case and put the version of the appellant. He read out
portions of their statements to the witnesses for them to comment.
The fact that another counsel would have done differently is
unfortunately not the test.
The
appellant’s version and his denials were repeated many times by
the legal representative. The complainant was further
asked
about the knife and pants and the police officers that did not take
it as an exhibit. She was further accused of lying
about her
age and the fact that she did not ask for help from the security
guards or people at the shebeen. The appellant
and/or his
current counsel may not like the strategy that was adopted by the
legal representative at the trial and his manner of
questioning may
also appear to be shallow but relevant questions were asked and the
magistrate allowed him to do that. The
complainant’s
cross examination went on for two days. Whilst the style of the
cross examination may not be like I repeat
by the appellant as not
being probing, it cannot be said that it was so irregular so as to
vitiate the proceedings.
It
is unclear what Mr Paries meant when he suggested that the statements
were paraphrased. He clarified that during oral argument
by
saying that paraphrasing was possibly not a proper choice of words.
Statements appear to have been quoted verbatim, not
only in respect
of the appellant but in respect of other witnesses too.
Mazimandle’s statement was read out as well.
The
magistrate mentioned during the argument of the application for leave
to appeal as this matter was also raised there that she
did not ask
the defence to hand in statements because she was criticised for not
having done so because she was told no they would
not hand it up.
She stated that she did not want to insist as there could have been
things that were prejudicial to the appellant
in those statements and
the defence chose not to hand them in for those reasons. She
made her decision based on the evidence
before court. That on
its own in my view cannot amount to an irregularity and it is curious
that Mr Green who represented
the appellant at the application for
leave to appeal and raised this point confirmed when asked by the
Magistrate that their argument
was not about the proper defence.
The
issue around admissions and the J88 also does not make sense as the
evidence was led in full on the J88 and the DNA findings
which would
have been to the appellant’s advantage. The Magistrate could
not have been expected to intervene when she had
no knowledge as to
what the version of the appellant was and how he was to handle his
case and most importantly the appellant was
legally represented.
As
to the warning statement, the warning statement the investigating
officer testified that he explained the appellant’s
constitutional rights to the appellant. The warning statement was
handed in as an exhibit. The admissibility of the statement
was
not an issue as the statement neither constituted a confession nor an
admission. Whilst perturbed by the fact that questions
were
initially asked by the appellant’s legal representative to the
appellant through reading of the warning statement, he
was not
prejudiced. If anything, words were put to his mouth. The
prosecutor would have been entitled to object in
that situation.
The complaint about a warning statement has no merit.
Once
again, upon reflection Mr Paries confirmed that this is not an issue
at all. At the stage where the legal representative
of the
appellant during the trial attempted to put a written statement to
Vuyokazi which was not before Court, the magistrate rightly
intervened.
As
to the magistrate’s lack of objectivity, only two examples were
given. Although the magistrate may have shown some
impatience
and irritability upon closer analysis, those interventions were not
of any material degree. The abrasiveness did
not curtail the
leading of evidence in any way. There is no indication from the
record that comments about the appellant’s
perceived show of
arrogance affected the proceedings and the appellant’s
confidence or his manner of answering questions
or relaying his
evidence after those words were uttered in any way. It further
appears from page 338 of the record that the
appellant said something
in Xhosa (that was not interpreted and the magistrate was Xhosa
speaking), when he was asked about offering
a lift to the complainant
by the prosecutor whatever he said or did seems to have prompted, the
magistrate’s comments about
his arrogance and attitude.
It is hard to tell what exactly happened as some of it may have had
to do with the appellant’s
demeanour in court. The
magistrate went as far as saying: “I have never, never treated
you or any witness with disrespect,
I don’t expect you to be
disrespectful of this court either. Do you understand
that. Yes.”
It
is hard to tell without the benefit of the translation of what
happened or what the appellant did or said prior to the magistrate’s
comments. At the end of the day, the comments and the
interventions by the magistrate whilst appearing to be heavy handed
or undesirable did not in my view singly or cumulatively amount to a
misconduct rendering the trial unfair. As was found
in
S v
Nnasolu
supra at para 39, the magistrate may have overstepped the
line by stating that the appellant showed arrogance, but such
statements
did not influence the outcome of the trial.
Furthermore, other statements that have been referred to by Mr Paries
had no
relevance whatsoever to the running of the trial. From
the reading of the record after those comments the appellant answered
questions in the same way as before. I am satisfied that the
appellant was afforded a fair trial.
Turning
to the other remaining grounds of appeal it cannot be disputed that
the appellant and the complainant were in each other’s
company
on the evening of the alleged incident. The appellant’s
evidence corroborates that of the complainant that
she got into the
vehicle having been told that they were going to Jimbo. Leaving
aside for a moment her evidence that she
was persuaded to do so by
Vuyokazi, under the pretence that she’d be taken home, it is
common cause that she, the appellant
and Vuyokazi drove to Jimbo.
When they reached Jimbo, Vuyokazi got out of the vehicle, leaving the
appellant and the complainant
alone. It is also common cause
that the appellant drove away with the complainant stating that he
was going to the garage.
What is in dispute is what happened
during the period the two were alone. The assessment as to what
took place between the
time the appellant and the complainant
reportedly ‘left’ for the garage and came back is quite
crucial.
It
is so that the complainant was a single witness in the actual rape.
It is established that the trial courts should apply
the cautionary
rule to the testimony of a single witnesses and children.
Application of the cautionary rule however does
not mean dispensing
with common sense. As was observed by
Diemont JA
in
S v
Sauls and Others
1981 (3) SA 172
(A) at 180E – G, the
Court must be satisfied that the truth has been told despite the fact
that there are shortcomings
or defects in the testimony of a single
witness.
The
complainant gave a detailed account of the events of the night in
question from the time she went towards the London shebeen
with her
friends and what followed thereafter. She gave a descriptive
and chronological version of how she got to be in the
appellant’s
vehicle after which Vuyokazi got off. The appellant drove her
to a dirt road filled with trees, asked her
for sex, joined her at
the backseat, pinned her down with one arm, whilst using the other
arm to undress her, penetrated her vagina
with his penis, made sexual
movements and funny noises and then stopped. The complainant’s
evidence was clear, coherent
and consistent. She was cross
examined at length but stuck to her version.
The
appellant on the other hand offered a very sketchy detail as to what
happened during the time he left with the complainant.
All he
could say was that he drove to the garage to put in petrol and drove
back to Jimbo. When asked during cross examination
for more
detail about what took place as they were together with the
complainant in the vehicle, all he said was that the complainant
was
chatting about knowing him.
His
version about how long it took to get to the garage and back is also
questionable. It was highly improbable that it only
took a few
minutes, possibly six, to drive to and from the garage, if one had
regard to the fact that they had to wait for petrol
to be put into
the vehicle before going back to Jimbo. Vuyokazi’s version that
the appellant and the complainant were gone
for only five minutes was
clearly designed to protect her friend. It also made no sense
that the appellant would suddenly
need to put in petrol in his
vehicle, having reached the destination where they were set to
drink.
It
is also strange that the complainant with whom he only began to have
a conversation with that night, would insist on remaining
in the
vehicle with a stranger for no apparent reason.
The
appellant admitted that there was blood in his vehicle (albeit
attributing it to things that he sold). The existence of
the
blood co-incides with the complainant’s version that she was
bleeding around her pubic area due to scratches caused by
the
stabbing. It was highly probable that the blood on the seats of
his vehicle came from her.
What
is observed from the complainant by the state witnesses at Jimbo
after she returned with the appellant is also telling.
It
strengthens the credibility of her evidence. She was seen
crying by Mazimandle. Her emotional state of crying was
also
confirmed by Sihle. That they found the complainant crying,
that she could not even speak, Sihle also corroborates the
complainant’s statement that she could not walk properly, that
her pants were torn and that the complainant went to the toilet
with
her and reported to her that she was raped by the appellant.
The investigating officer also mentioned that the complainant
was
traumatised and had torn pants.
The
doctor’s evidence confirmed that the complainant had a number
of injuries in her genital area. The injuries in the
vagina
were suggestive of penetration that had taken place within a period
of 24 hours of examining the complainant. Various
gynaecological injuries, swelling, tears, and bruises the extent of
which need not be repeated, were noted. The doctor made
various
marks around the vaginal area. The doctor concluded that there
was dry penetration with a fresh tear in the hymen.
These are
consistent with the complainant’s version that she was raped.
The question is who rape her?
The
only person that the complainant was alone with during a particular
period of the night was the appellant. At all other
times,
before getting into the appellant’s vehicle and when she
returned with him she was in the company of her relatives,
friends
and other people drinking.
The
fact that no DNA was found from the swabs taken from inside her body
did not mean that she was not raped. Lack of male
semen could
be attributed to a number of reasons, one of which was explained as
drainage by Ms Smith. It is furthermore trite
that lack of
semen does not discount sexual penetration.
The
issue of torn pants not being secured as an exhibit cannot be laid at
the feet of the complainant that is the work of the investigating
officer. I agree with the magistrate that the complainant’s
torn pants, which appear to have been noticed by the investigating
officer, should have been booked as evidence. That however, does not
take away the strength of the state’s case. Other
evidence sufficiently corroborated the complainant’s version of
events. Whether or not she drank alcohol is of no purpose
in
this case, as she clearly was not inebriated as to the extent that
she did not know what was going on. To the contrary
she gave a
clear account of events.
As
to the charge of assault the complainant is supported by Mazimandile
who witnessed the appellant hitting the complainant at Jimbo.
He further reported this to the complainant’s relatives.
Sihle confirmed the report of assault, to her by Mazimandile
at Jimbo
after being woken up from sleep by a person who reported that the
complainant was being assaulted at Jimbo. According
to her, the
complainant looked like she had been hit. It has, in my view,
been proved beyond reasonable doubt that the complainant
was
assaulted. The appellant’s denial that he assaulted the
complainant falls to be rejected. The complainant
also alleged
that the appellant assaulted her before raping her. The
appellant has however not been charged for two counts
of assault.
The
discrepancies pointed out by Mr Paries were not material. A
holistic approach should be followed in weighing up all the
evidence,
taking into account the strengths and weaknesses, probabilities and
improbabilities of both sides, and having done so
a decision must be
made as to whether the balance weighs so heavily in favour of the
state so as to exclude any reasonable doubt
about the accused is
guilt. See
S v Chabalala
2003 (1) SACR 134
(SCA) para
15. Having considered all the elements cumulatively, I am
satisfied that the appellant was correctly convicted
for both rape
and assault. There was no misdirection by the Magistrate
warranting interference by this Court.
As
regards sentence, as I have already mentioned, leave was not granted
in this regard. Both the appellant and the respondent
were
therefore mistaken by suggesting otherwise. Be that as it may,
to the extent that it is necessary my view is that, the
sentence
imposed by the magistrate was just and appropriate and there is no
reason to interfere with it.
In
the result I would make the following order.
THE APPEAL IS
DISMISSED AND THE CONVICTION AND SENTENCE CONFIRMED
________________________
BOQWANA,
J
I
agree and it is so ordered.
________________________
KOSE,
AJ