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[2017] ZAWCHC 47
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Cekwana v S (A523/15) [2017] ZAWCHC 47 (10 March 2017)

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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case
number: A523/15
Before: Mr Justice Binns-Ward
Mr Justice Henney
Mr
Acting Justice Parker
In the
matter between:
SONGEZO
CEKWANA
Appellant
and
THE
STATE
Respondent
Order:
The appeal is upheld and the conviction and sentence are set aside.
The order of the trial court is substituted with
an order that the
appellant is acquitted and discharged.
JUDGMENT
delivered on 30 MARCH 2017
BINNS-WARD
J  (HENNEY J concurring; PARKER AJ dissenting):
[1]
This an appeal from a judgment of the
regional magistrate sitting at Khayelitsha in terms of which the
appellant was convicted of
having committed an act of sexual
penetration in contravention of s 3 of the Criminal Law
Amendment Act (Sexual Offences and
Related Matters) 32 of 2007.
The appeal is with leave obtained on petition to this court, and is
in respect of conviction
only.  I have had the advantage of
reading in draft a judgment prepared by Parker AJ after he had had
the opportunity of reading
the initial draft of this judgment; and
thereafter, the finally revised judgment of the learned acting judge
given below.
For the reasons that follow I regret that I am
unable to agree with his conclusion that the appeal should be
dismissed.  Indeed,
owing to the inability of Parker AJ and I to
reach consensus, the appeal was heard a second time after the
addition, in terms of
s 14(3)
of the
Superior Courts Act 10 of
2013
, of Henney J to the panel.
[2]
The offence was allegedly committed during
the night of 15/16 January 2012.  The complainant is a […]
of the appellant.
Her date of birth was […] 2001, so she
was only ten years and ten months old at the time; although the
medical evidence
indicated that she had reached a fairly advanced
stage of physical maturity with Tanner stage 4 breast and pubic
hair.
[1]
The examining physician described Tanner stage 4 as ‘
teenage
stage of maturity maturation
’.
[3]
It is common ground that the appellant was
visiting the complainant’s family as a houseguest at the time.
Apart from
the complainant’s […] sister, A., who had
encountered the appellant during a visit to the Eastern Cape during
the
previous month, the family had not met him before.  He had
arrived there on the day in question and spent three nights and
then
returned for a second visit later in the week, when he again spent a
few nights at the complainant’s family home.
(That much
was common cause between the appellant and the complainant’s
sister, although the complainant gave evidence that
the appellant had
been there since a few days earlier, during which time she had
treated him as a brother, including making breakfast
for him.
The contradiction in the state’s evidence in this respect
appears to have been overlooked by all concerned
at the trial,
including the appellant’s legal representative - it is also not
accounted for in Parker AJ’s assessment
that the complainant’s
evidence was satisfactory in all material respects.)  He hailed
originally from the Eastern Cape
and was new to Cape Town, where he
was residing with an aunt in the Makhaza area of Khayelitsha.
[4]
The complainant, who testified in English,
related that she was with the appellant in the sitting room of the
house on the night
in question.  They were watching an ‘action
movie’.  A., was with them initially, but she then retired
to
sleep in another room.  Also in the house, apparently having
already retired for the night, were the complainant’s mother,

in whose room the complainant usually slept, and another sister and
the latter’s child.  The complainant said that she
fell
asleep on a sleeping bag on the floor.  She said ‘
I
was sleeping on the floor and then Songezo Cekwana
– the full names of the appellant –
woke
me up to show me a porn movie
’.
The prosecutor then said ‘
Proceed
’,
whereafter the complainant continued her evidence as follows:
And then I fell asleep again; he picked me up; he put me
on the couch; he closed my mouth.  And then he took off my
pantie
and then he put his penis inside my vagina and then when he
was done, I ran to the toilet and then when I got to the toilet I saw

white bubbles on my leg and on my pantie.  And then it was
Monday morning when I was getting ready to go to school and my
[...]
was watching every move because he did not want me to tell my parents
what happened yesterday.  So I wrote a letter
in his cell phone
on Thursday saying that I am going to tell my mom about what
happened.  Friday afternoon I went to my father’s
house.
When I got back Sunday my sister saw the message on the phone and
then she asked me what was the message about.
And then I told
her that my [...] raped me and then she told my brother; B..
[5]
There are two striking features in that
passage of the complainant’s evidence in my view.
Firstly, the apparent easy
familiarity of the by then 11-year old
complainant with the concept of a ‘
porn
movie
’; and secondly - if events
did transpire as she described, but which the appellant denied –
the fact that after the
appellant had tried to interest her in
watching a pornographic video, she was not sufficiently discomforted
to leave the room and
go to sleep with her mother, as she usually
did.  The inherent probability is that a child treated in a way
that made her
feel uncomfortable would have left the room and gone to
sleep in the different room where she usually did.  The
magistrate
did not find these features worthy of consideration in his
judgment.  This may have been because they did not receive the
sort of treatment they deserved in the appellant’s legal-aid
appointed attorney’s cross-examination of the complainant.

But it was the trial court’s duty to scrutinise the
complainant’s evidence with particular care; not only was she a

single witness, she was also a child witness.  Her evidence had
to be satisfactory in every material respect for the court
to found a
conviction on it.
[6]
When asked why she did not cry out when the
appellant was raping her, the complainant said that he was holding
her mouth shut.
Somewhat inconsistently, she also said that
while he was raping her he was kissing her on the face ‘
saying
that I love you and if you tell mamma I am going to kill you.
All those stuff
’.  The
complainant’s description of events in this respect also
arouses my scepticism.  It depicts the appellant
as
extraordinarily physically dexterous; managing to keep the
complainant’s legs over his shoulders, hold her mouth closed

and kiss her face while speaking to her all the while - all at the
same time.  Its manner of delivery, with the dismissive
touch
‘
All those stuff
’,
adds to my discomfort with it.
[7]
The complainant testified that after the
rape she went to the toilet and noticed a white substance running
down her leg and on part
of her panties.  She then went to sleep
in another room instead of with her mother, as she apparently usually
did.  She
explained this as follows: ‘
I
went to sleep on the couch next to the kitchen because I did not want
my mother to notice me that I was crying
’.
The prosecutor asked ‘
Is there a
reason why you did not want your mamma to see that you were crying?
’,
to which she answered ‘
Yes,
because I did not want her to die
’.
She expanded ‘
Because my [...]
threatened me that he is going to kill my family
’.
[8]
The evidence concerning the complainant’s
report of the alleged rape was inconsistent and contradictory.  The
complainant’s
sister testified that the complainant did not of
her own accord make a report to anyone.  Her elder sister said
that she had
found the message that the complainant had left on the
appellant’s phone.  Why the complainant’s sister
should
have been delving in a drafts folder on the appellant’s
phone was not satisfactorily explained.  The appellant’s

sister did not confront the appellant with the find; she raised the
matter with the complainant who then made a report.  Under

cross-examination, the complainant at one stage suggested that she
had reported the matter to her sister of her own volition‘…
because it was disturbing me at school.
I could not concentrate
’.
She subsequently reverted to a version consistent with that of her
sister.
[9]
The complainant’s sister’s
evidence was that the complainant had initially not been forthcoming
when shown the message
on the telephone, and had only come out with
her story after being pressed.  That was inconsistent with the
complainant’s
evidence under cross-examination that she had
decided on the preceding Friday already that she was going to report
the matter.
She said she had made this decision after hearing a
story about the arrest of a bad man who had abused a child and
threatened to
kill her family, but who had been arrested after the
child had informed her mother about what had happened.  The
judgment
of the court a quo (and that of Parker AJ) gives no
attention to the inconsistency.  Indeed, the magistrate held in
his judgment
that the complainant had told the appellant the
following day that she was going to report the incident to her
mother.  There
was no evidential foundation for that finding
whatsoever.
[10]
The complainant was taken for a medical
examination.  The examining doctor endorsed the report ‘
She
has clinical findings consistent with previous vaginal penetration
with a blunt object like a penis
’.
I shall return to the medical examination presently.  It appears
to have been on the basis of what was taken
to be objective
corroboration of her report in the medical examination that the
appellant was thereafter arrested at his aunt’s
house.  It
would also seem that his mobile phone was seized, although no proper
chain of evidence in this respect was adduced
by the prosecutor.
The unchallenged evidence of the appellant was that his phone was
left behind at the house where he was
staying when he was arrested,
so it must have been seized later.
[11]
The appellant’s phone was
forensically examined.  A number of videos were found loaded on
the device, but according to
the police officer who carried out the
examination none of them was of a pornographic nature.  There
were also some photographs
found on the phone.  Print-outs of
them were put in evidence as exhibit C.  Some of them might be
regarded as suggestive
in nature, but none of them fitted the
complainant’s definition of ‘pornographic’, which
was ‘naked persons
having sex’.  The appellant
testified that he had not put the pictures on the phone.  They
had been on a memory
card he had been given for use in the phone by a
relative in the Eastern Cape.  Although it was not referred to
in the course
of the oral evidence, it is apparent from the printed
information on exhibit C that the photographs were uploaded on to the
memory
card on various dates during November 2011.  The forensic
examination did not turn up the message that the complainant alleged

that she had left on the phone or that her sister claimed to have
seen on the phone.  The forensic examiner (Sergeant Mfreke)
said
that it was impossible for him to retrieve deleted messages from the
drafts folder of the model of phone that the appellant
had.
That evidence had to be seen, however, in the context of the
appellant’s evidence that he had never seen the message
and
therefore not had cause to delete it.  As I shall show
presently, that evidence is not only reasonably possibly true,
it is
supported by the probabilities.
[12]
The evidence concerning the message
allegedly left by the complainant on the appellant’s telephone
was problematic on a number
of levels.
[13]
At a basic level, the act of leaving what,
according to its tenor, would have been an unambiguously threatening
message on the appellant’s
phone would have been behaviour
entirely inconsistent with the complainant’s claim to have been
too terrified to tell anyone
about the incident.  The
inconsistency was left unexplained.  It detracted materially
from the plausibility of the complainant’s
evidence.  It
gave rise to further inherent improbability in the complainant’s
version.  Again, the magistrate
failed to deal with this aspect
at all in his judgment, as indeed does Parker AJ.
[14]
Secondly, the evidence failed to explain
technically how the complainant could have done what she claimed to
have to have done by
leaving the message in the drafts folder.
The evidence was unclear in this regard, but the onus was on the
state to make
the case clearly.  This was after all an important
element of the evidence adduced in support of its case.  The
appellant’s
legal representative tried to explore the question
in cross-examination, but having been interrupted by the magistrate,
who does
not seem to have appreciated the essence of the questioning,
‘
moved on
’.
It was not clear whether the message was an sms or an email.  I
think that in this modern world a court is entitled
to have judicial
notice of how these means of communication operate, rather as expert
evidence is not required to prove what is
entailed in driving a motor
car.  I have never encountered a system in which one can save
draft sms’s or whatsapp messages
for that matter.  One is
able to save draft emails, and it is not necessary for that purpose
even to have entered an addressee’s
address.  The
complainant spoke of entering her own name instead of a telephone
number.  That implied that she must have
intended to convey that
she had written an sms, not an email.  That it was an sms is
furthermore suggested by the forensic
examiner, Sergeant Mfreke’s
evidence that his instruction was to retrieve sms’s.  He
said his system could not
open drafts.  I find that unsurprising
because, as noted, I have never encountered a phone that stores draft
sms’s.
[15]
But even if it was possible to save draft
sms’s, it was not explained how the complainant’s sister
would have been able
to access such a draft when the forensic
examiner’s system was unable to do so.  Parker AJ suggests
that a draft may
be retained in an sms folder simply by not sending
it.  That is obviously so, but that was not the import of the
evidence.
The evidence was that the message had been saved in a
drafts folder.  Furthermore, the evidence of the complainant’s

sister was to the effect that it was the folder in which the
appellant stored his pictures or photographs.  A. Cekwana
testified
in that regard ‘ …
it
is his photos that I saved on the draft.  And that is where I
saw the message on the draft
’.
Under cross-examination, she put it differently saying ‘…
I went to Drafts, because his photos are
saved on the Draft in that phone
’.
(As I shall indicate presently, that was inconsistent with the
complainant’s evidence.)
[16]
Moreover, it is impossible to reconcile
Sergeant Mfreke’s evidence that it had not been possible to
retrieve any message of
the import described by the complainant and
her sister with the evidence of A. Cekwana that ‘
And
if the Court wants to see this message, the Court can also be able to
see that message because it is still available
’.
Not surprisingly, in view of the subsequently adduced forensic
evidence, the prosecutor did not pursue that invitation.
(The
appellant’s legal representative’s failure to challenge
that evidence is explicable in the context of the fact,
to be
discussed presently, that she was at that stage not aware of the
content of the forensic evidence.)
[17]
Thirdly, even if the complainant had used
email to store the message, a drafts folder is the last place one
would expect someone
to find it.  An owner of a phone is likely
to look in the drafts folder only to retrieve something that he or
she has him-
or-herself put there.  Drafts are kept of something
one has composed, and intends to send later; it is the last place
anyone
would look to
receive
messages.
[18]
Fourthly, the complainant’s sister’s
evidence of how she allegedly stumbled across the message in the
drafts folder
is inherently most improbable.  Just as the
phone’s owner is only likely to look in the drafts folder for
something
he or she knows that he or she has left there when it is
time to send saved the item; it is inexplicable why a third party
casually
looking at the phone would look there.  The witness’s
explanation that that was where the photographs on the phone were

stored is inconsistent with the evidence of Sergeant Mfreke who found
pictures, but obviously not in the elusive draft sms folder.

The sister’s evidence was also inconsistent with that of the
complainant who testified in this respect that the appellant
did not
‘
have anything on the drafts
’
apart from the message she had left for him.  The judgments of
the trial court and Parker AJ pay no attention to these

inconsistencies.
[19]
The complainant’s sister’s
evidence in other passages suggests that she had a peculiarly
discriminatory approach in
browsing the appellant’s phone.
Under cross-examination she testified as follows:
Q Tell me did you see any pornography on the phone? ---
I don’t even go to the videos.
Q But you said you browse the phone, so you didn’t
go and look at the videos? --- When I browse the phone, I go to
music,
to pictures, but I do not go to the videos.
But why
then go to drafts?  Her claim that that was where the appellant
stored his pictures was not only inherently improbable;
it was not
borne out by the forensic evidence.
[20]
Fifthly, there was no trace of the message
when the phone was forensically examined.  It is however
apparent that the sms folder
was accessible because the investigating
officer testified there were sms’s on the phone ‘not
related to the case’.
If the appellant had been concerned
about what might be found on his phone and for that reason effected
deletions, the inherent
probabilities are that he would also have
deleted the sexually suggestive photographs that were found on it.
But he did not.
Again, the inherent probabilities in this
regard received no attention in the magistrate’s judgment.
Parker AJ too
does not deal with this aspect.
[21]
The magistrate made no mention whatsoever
in his judgment of the forensic evidence.  Indeed, he appears to
have had no regard
to the evidence of either Sergeant Mfreke or the
investigating officer.  He recorded that
three
witnesses had given evidence for the state when there had in fact
been
five
.
[22]
Continuing with a general examination of
the evidence in the context of the inherent probabilities:  It
would have been extraordinarily
bold and reckless conduct by the
appellant to sexually assault the complainant in the circumstances
she described.  The house
was small.  It was described at
one stage as consisting of two rooms, although the evidence in this
respect was at times confusing.
What did emerge clearly though
was that it was small enough to require its permanent occupants to
share sleeping quarters.
There was no suggestion that the
appellant was intoxicated.  He therefore would have had to be
acutely conscious that he could
easily be caught in the act by the
other persons in the house.  It is also striking that on the
complainant’s version
of events, the appellant did nothing to
control her movements after the act had been done.  He did not
stop her going to the
toilet or moving to another room.  These
features demonstrate a further element of inherent improbability in
the complainant’s
version.  The magistrate’s
assessment of the evidence shows no sign of his having taken it into
account.  It also
does not receive consideration in the judgment
of Parker AJ.
[23]
The complainant was medically examined a
week after her alleged rape.  No abnormalities were found on
examination.  The
dimensions of the annular hymen opening were
recorded as 15mm transverse and 14 mm vertical.  In his oral
evidence the doctor
qualified those measurements with the word
‘
about
’.
The doctor explained that it was not unusual for a virgin to have a
hymen with an opening, but said that ‘
its
opening will be within limits of the child’s age
’.
Later in his evidence the doctor made the following statement ‘…
the opening of the hymen though it tends
to be disputed tends to go along with the age of the victim.  At
some point we tend
to add an additional two millimetres to the age of
the victim to go with the opening  …
’.
It follows therefore that the opening in the complainant’s
hymen was within a tolerance of about 1 mm within
that which might be
expected in a virgin of her age.  (As mentioned earlier, her
physical maturity was in point of fact comparatively
advanced for her
age.)
[24]
What the examining physician also
described, however, were ‘bumps’ at 15h00 and 17h00, as
he described it, on the opening
in the complainant’s hymen, as
well as ‘clefts’ at 08h00 and 09h00.  He explained,
not altogether clearly,
that ‘
bumps
and clefts are scars within the hymen.  Bumps are scars that do
not go the entire width of the hymen … bumps would
be a tear
that it went half way through and it healed.  So as we examine
it you will see there is a cleft that goes in and
out whereas a cleft
will go all the way through to actually have moved that part of the
hymen tissue
’.  Elsewhere in
his evidence he put the matter a little more clearly ‘
Bumps
would have been healed previous tears that were not deep enough to
have gone right through the whole length of the hymen itself
and
clefts would be the tears which would have been considered severe had
gone through the hymenal breadth and when they heal they
would leave
a cleft like shape.
’
[25]
The doctor found no ‘fresh tears’
on examination.
[26]
The doctor resisted the prosecutor’s
attempt to get him to say that the bumps and clefts afforded proof
that the child had
been sexually assaulted.  He made it clear
that he had interpreted them in the context of an acceptance of the
history given
to him by her to make the conclusion that ‘
she
has clinical findings consistent with previous vaginal penetration
with a blunt object like a penis
’.
[27]
It was clear, as Parker AJ also
acknowledges and counsel for the state conceded in argument at the
hearing of the appeal, that the
medical evidence was inconclusive.
The doctor could not give any indication of the age of the bumps and
clefts and it was
evident that those features could even be the
result of self-inflicted injury by way of the insertion of a finger
which could occur
say if a child was suffering irritation from a
urinary tract infection.  He said that bumps would be visible a
year after
the causative injury to the hymen;
a
fortiori
presumably with a cleft.
[28]
The magistrate’s treatment of the
medical evidence in his judgment was confused.  At one point he
recorded that the doctor
had ‘
also
observed tears on the vagina of the victim
’
– there was no such evidence.  He gave no indication of
having appreciated that the complainant’s hymenal
opening was
consistent with what might ordinarily be expected in a girl of her
years, that there was no indication of the age of
the bumps and
clefts, and that they were symptoms that could have been caused by
other methods of penetration other than sexual
assault.  Had he
undertaken a critical analysis of the medical evidence he would have
recognised its inconclusive nature and
that the doctor had expressed
his opinion premised on an acceptance of the veracity of the
complainant’s report – a
matter for the court, not the
doctor to determine.
[29]
The minority judgment does not address
these material flaws in the magistrate’s treatment of the
evidence and gives no consideration
to its effect on the trial
court’s determination of the case.  Parker AJ finds
instead that although the magistrate’s
judgment did not
‘
necessarily reveal a very
scientific approach
’ and was
‘
robust
’,
he could not find that the magistrate had misdirected himself in any
material respect and that his assessment of the evidence
of the
witnesses and his conclusions had to be presumed to be correct in the
absence of such material misdirections.  For
the reasons I have
given, as well as certain other deficiencies to which I refer below,
I am in fundamental disagreement with Parker
AJ’s endorsement
of the magistrate’s evaluation of the evidence.  The
magistrate’s approach was not ‘robust’;
it
was - I am sorry to have to say - careless, superficial and
misdirected.
[30]
With respect, I also find the reliance in
the minority judgment in support of the conviction on the oft cited
enjoinders in
Van der Meyden
[2]
and
Van Aswegen
[3]
that regard must be had to all the evidence adduced in the case in
deciding whether a conviction or acquittal is indicated not
a little
ironic in view of the magistrate’s demonstrable and very
material failure to have done just that.  The deference
that
appellate courts ordinarily give to the factual findings of trial
courts, upon which Parker AJ has also placed considerable
emphasis,
is not blind or unwavering; compare, for example
Bernert
v Absa Bank Ltd
2011 (3) SA 92
(CC), at paras. 105 -106 (per Ngcobo CJ)
[4]
and
President of the Republic of South
Africa and Others v South African Rugby Football Union and Others
2000 (1) SA 1
(CC),
1999 (10) BCLR 1059
, at paras. 78-80.
It is not afforded when it is apparent, as in my view was clearly the
case in the current matter, that
the trial court’s treatment of
the evidence was selective, demonstrably erroneous in material
respects, lacking in any regard
for evident contradictions and
inconsistences, and oblivious to the inherent probabilities; cf the
principles numbered 8-11
of those enumerated by Davis AJA in
R v
Dhlumayo and Another
1948 (2) SA 677
(A), at 706.
[5]
[31]
The appellant testified that he had been
watching television on the evening in question while the complainant
was listening to music
on his mobile phone.  When he finished
watching television he fell asleep on the couch, where he had earlier
indicated he
would be spending the night in preference to the
accommodation in a backyard structure at the property that had been
offered for
his use.  He said that the complainant was still
playing with his phone when he went off to sleep.  He had asked
her
to put it on a table when she was finished with it.  He said
that the complainant was sleeping in the room when he awoke the
next
morning.  He acknowledged that he gave free access to his phone
to the complainant and her sisters during his visits.
He had no
idea that there was any problem before he was suddenly arrested.
He suspected that he had been framed because of
some or other
property dispute in the family, although the complainant’s
family had been friendly and welcoming up to the
time of his arrest.
The appellant was not upset on any material point in
cross-examination, and although Parker AJ finds
him to have been an
unimpressive witness, he offers no instance of the appellant having
been upset in cross-examination.
[32]
It was put to the appellant that a denial
by him put to one of the state witnesses in cross-examination that
there was any pornographic
material had been contradicted by the
pictures depicted in exhibit C.  He made no attempt to deny that
the pictures were on
his phone.  Whether any of the photographs
qualified as pornographic is debatable.  They did not depict
full nudity or
the engagement of anyone shown in them in sexual
intercourse.  I am constrained to differ from Parker AJ’s
finding
that one of the photographs showed ‘
a
naked female kissing a man
’.
The only photograph to which he could have been referring shows a
fully clothed man kissing a woman who is wearing
a pink top and what
appear to be black trousers drawn down to below her buttocks.
One is unable to make out whether or not
she was wearing an
undergarment.  There is no exposure of either party’s
private parts.  I also disagree with his
statement that the
photographs ‘
clearly depict people
either completely or substantially naked
’.
On the contrary, all the males depicted in the photographs are fully
clothed and there was no exposure of the private
parts or naked
breasts of any of the women depicted.  I would describe the
sexually suggestive photographs (numbering only
three of the total of
eight pictures shown on exhibit C) as lewd, rather than
pornographic.  I am also impelled to differ
from Parker AJ’s
characterisation of the photographs as being what the complainant had
referred to when she claimed to have
been shown a ‘porn
movie’.  Apart from the fact that that proposition was
never put to the complainant, or indeed
any of the other witnesses at
the trial, it was quite evident from her testimony considered as a
whole, that the complainant was
sophisticated enough to distinguish
still photographs from a movie.
[33]
It also bears mention that the evidence
concerning the photographs found on the phone was adduced without a
copy of the recovered
material having been made available beforehand
to the appellant or his legal representative, which is not in
accordance with fair
trial practice.  A six-minute adjournment
was given for the appellant’s legal-aid appointed
representative to take instructions.
It was hardly surprising
in the circumstances that the origin of the photographs that were
found on the phone was not put to Sergeant
Mfreke, or any of the
other witnesses.  Quite clearly, if fair trial requirements were
to have been met, the appellant and
his legal representative should
have been afforded adequate notice of Sergeant Mfreke’s
evidence and the opportunity to have
the phone independently
examined.  As it was, despite these unsatisfactory aspects to
the conduct of the trial, the forensic
evidence concerning the phone
was as inconclusive as the medical evidence.  It failed to
advance the state’s case.
[34]
In weighing up the mutually contradictory
versions, the magistrate placed great weight on the undisputed
hospitality that the complainant’s
family had extended to the
appellant to discredit the latter’s hypothesis that he had been
framed.  The minority judgment
appears to endorse the trial
court’s approach in this respect.  While that aspect of
the case did present certain difficulties
for the appellant, his
evidence in that regard was, however, confessedly speculative and
therefore quite obviously of no value
to the determination of the
case.  In
S
v Van der Watt
[2010]
3 All SA 434
(SCA), at para 16, the Supreme Court of Appeal
pertinently observed ‘
It is trite
that an accused may tender an explanation why he believes he has been
falsely implicated and it may turn out another
reason unknown to him
exists or is more probable. The accused is called upon to speculate,
not testify on a matter of fact. In
such circumstances he cannot be
blamed if it turns out that his explanation is found to be wanting.
’
The appeal court cited a number of earlier judgments in support of
its observation, including
S v
Ramochela
1997 (2) SACR 494
(0) at
496a-e and
R v Mtembu
1956 (4) SA 334
(T) at 335H-336B, where reference was made with
approval to the observations of Millin J in an unreported judgment to
the following
effect ‘
It is a
wrong approach in a criminal case to say “Why should a witness
for the prosecution come here to commit perjury?”
It might
equally be asked: “Why does the accused come here to commit
perjury?” True, an accused is interested in not
being
convicted, but it may be that an inspector has an interest in
securing a conviction. It is, therefore, quite a wrong approach
to
say “I ask myself whether this man has come here to commit
perjury, and I can see no reason why he should have done that;

therefore his evidence must be true and the accused must be
convicted.’ The question is whether the accused's evidence
raises
a doubt
’.
[35]
The central question for determination by
the trial court was not a matter of motive, but one of fact.  An
accused person’s
speculation as to why another person or a
police officer should have reason to falsely incriminate them is of
no primarily probative
effect at all.  The factor is merely one
to be weighed as part of the probabilities.  The fact that the
probabilities
weigh against the appellant in this respect cannot by
itself be determinative.  A holistic approach to the evidence
requires
it to be taken into account along with the internal
contradictions and improbabilities, discussed above, that
characterised the
factual evidence in the state’s case.
Was the appellant’s inability to explain convincingly why his
family members
should falsely incriminate him sufficient to negate
the doubts raised by the state’s case when the evidence is
analysed holistically?
In my judgment that was certainly not
the case.  Indeed, during the appellant’s evidence in
chief the magistrate questioned
the relevance of his evidence as to
the history of family tension, and interrupted the line of
questioning by the appellant’s
legal representative, ending
with the remark ‘…
your
client can just say yes there was animosity between our families;
that is all; we will accept that’
.
[36]
I regret to say that the magistrate’s
treatment of the evidence was skewed and lacked any cogently reasoned
analysis.
The trial court’s approach brings to mind the
flawed approach in comparable circumstances described by the appeal
court in
S v Raghubar
2013 (1) SACR 398
(SCA), at para. 18-19.  It bears mention
in this regard that the magistrate throughout the trial referred to
the complainant
as ‘
the victim
’,
and even directed the interpreter to refer to her as such during the
appellant’s testimony.  That was unfortunate,
to say the
least.  The epithet would only be appropriate after a conviction
had been brought in.  For the court to refer
to a complainant as
a ‘victim’ at any earlier stage is want to give rise to
impressions of prejudice.  The magistrate
would be well advised
to eschew the practice in future.
[37]
The only part of the judgment of the trial
court that approached any form of analysis was the last two
paragraphs, which went as
follows:
On my view, despite the fact that the child’s
evidence was not supported by the DNA, I am of the opinion that the
witnesses
for the state were trustworthy.  They were honest and
reliable witnesses.  Their evidence was credible.  It is my

view that the State has proved its case beyond reasonable doubt.
The accused on the other hand tried
to find a way to get out of this case.  He has fabricated his
evidence.  He has told
a lot of lies in this Court.  This
Court has decided to reject his evidence as it false beyond
reasonable doubt
.
There
was no DNA evidence.  And it was unjudicial to hold, without
explanation, that the witnesses for the state were honest
and
reliable, in the context of the contradictions and inherent
improbabilities that affected it.  It was also impermissible
to
hold that the appellant had fabricated his evidence in the absence in
the evidence of a single demonstrable example to sustain
the finding.
The magistrate’s approach appears to have been based on
his general impression of those of the state witnesses
whose evidence
he chose to discuss.  It calls to mind the following remarks of
Nugent JA in
Medscheme Holdings (Pty) Ltd v Bhamjee
2005 (5)
SA 339
(SCA),
[2005] 4 All SA 16
, at para 14:
It has been said by this Court
before, but it bears repeating, that an assessment of evidence on the
basis of demeanour - the application
of what has been referred to
disparagingly as the “Pinocchio theory”
- without regard for the wider
probabilities, constitutes a misdirection. Without a careful
evaluation of the evidence that was
given (as opposed to the manner
in which it was delivered) against the underlying probabilities,
which was absent in this case,
little weight can be attached to the
credibility findings of the Court a quo. Indeed, on many issues, the
broad credibility findings,
undifferentiated as they were in relation
to the various issues, were clearly incorrect when viewed against the
probabilities
.
(footnotes omitted)
[38]
The appellant was entitled to the benefit
of the doubt raised by the contradictions, inconsistencies and
inherent improbabilities
in the state case.  The magistrate did
not have to believe him in order to acquit him.  He was bound to
acquit him if,
after a consideration of all the evidence, it was not
proved beyond reasonable doubt that the appellant had committed the
offence.
Indeed, in the circumstances it was not surprising
that counsel for the state conceded that she was unable to contend
that the
conviction was safe.  In the result I am of the view
the appeal must be upheld.
[39]
The following order is made:
The
appeal is upheld and the conviction and sentence are set aside.
A.G. BINNS-WARD
Judge of the High Court
HENNEY J  (BINNS-WARD J concurring; PARKER AJ
dissenting):
[40]
I have had the advantage of reading the
judgment of Binns-Ward J as well as that of Parker AJ.  I
respectfully disagree with
the judgment of Parker AJ.  I concur
with the decision of Binns-Ward J to uphold the appeal against
conviction and his reasons
for doing so, but I would like to state
further and additional reasons for holding that the appeal should be
upheld.
[41]
In my view, the regional magistrate
materially misdirected himself by not properly analysing the evidence
and by not giving reasons
why he convicted the appellant.  I
disagree with the conclusion of Parker AJ that the regional
magistrate had properly or
at all, evaluated and assessed the
evidence of the witnesses.  There was no such assessment or
evaluation.
[42]
From a perusal of the judgment
[6]
handed down by the regional magistrate, it seems that the regional
magistrate only made a critical appraisal of the evidence of
the
appellant.  No evaluation was undertaken, in particular, in
respect of the evidence of the complainant, as well as the
other
state witnesses.  He did not even mention the evidence of Mfreke
regarding the cell phone evidence.  The regional
magistrate,
after having evaluated and rejected the appellant’s version,
goes on to say: “
In my view,
despite the fact that the child’s evidence was not supported by
DNA, I am of the opinion that the witnesses for
the state were
trustworthy. They were honest and reliable witnesses and their
evidence was credible. It is my view that the state
has proved its
case beyond a reasonable doubt”.
[7]
[43]
The regional magistrate, failed to state
why he came to the conclusion that the evidence of the state
witnesses were trustworthy,
reliable and credible.  His
conclusion is not supported by any reasons.  It is trite that
judicial officers have a duty
to give reasons for their decisions. In
S v Mokela
[8]
,
Bosielo JA
stated: “
I find it necessary to
emphasise the importance of judicial officers giving reasons for
their decisions. This is important and critical
in engendering and
maintaining the confidence of the public in the judicial system.
People need to know that courts do not act
arbitrarily, but base
their decisions on rational grounds. Of even greater significance is
that it is only fair to every accused
person to know the reasons why
a court has taken a particular decision, particularly where such a
decision has adverse consequences
for such an accused person. The
giving of reasons becomes even more critical, if not obligatory,
where one judicial officer interferes
with an order or ruling made by
another judicial officer.”
[44]
In
S v
Mcoseli
[9]
where a regional magistrate also failed to set out the evidence at
all, Pickering J held: “
It is
regrettable to have to criticise the calibre of a judgment of a
regional magistrate, but this particular judgment falls so
far short
of the minimum standard which can reasonably be expected of a
magistrate, much less a regional magistrate, that I would
be failing
in my duty were I not to do so. So shoddy and careless is the
judgment that it amounts, in my view, almost to a dereliction
of the
regional magistrate’s duty as a judicial officer.”
[45]
In a decision of this court in
Xaba
v S
[10]
,
Savage J in dealing with a judgment of the same regional magistrate
that also presided in this case and where she was faced with
a
similar situation as in this case refers to the above-mentioned
judgments as well as the decision of
Mphahlele
v First National Bank of SA Ltd
[11]
.
In
Mcoseli
(supra)
[12]
the regional magistrate dealt with the evaluation of the evidence in
a similar manner in which the regional magistrate dealt with
the
evaluation of the evidence in this case, where Pickering J held: “
The
regional magistrate further made no effort whatsoever to analyse the
evidence which was tendered on behalf of the state, contenting

himself with a criticism of appellant’s evidence”
.
[46]
Savage J in
Xaba
concluded that a Court of Appeal is permitted in terms of
section 309
(3) of the
Criminal Procedure Act 51 of 1977
to confirm, alter or
quash a conviction or sentence by reason of an irregularity or defect
where on appeal it appears that a failure
of justice has resulted
from such irregularity or defect.
[13]
She further was of the view that the right to reasons is a
fundamental right to a fair trial, that the failure to provide

reasons constitutes an irregularity and that where no reasons are
provided there is a failure of justice, such as contemplated
in
s 309
(3).
[47]
In this regard she relied on the decision
of Cameron JA in
S v Mavinini
[14]
,
where it was held that:
It is sometimes said that proof beyond reasonable
doubt requires the decision-maker to have ‘moral certainty’
of the
guilt of the accused […] It comes down to this: even if
there is some measure of doubt, the decision-maker must be prepared

not only to take moral responsibility on the evidence and inferences
for convicting the accused, but to vouch that the integrity
of the
system that has produced the conviction – in our case, the
rules of evidence interpreted within the precepts of the
Bill of
Rights – remains  intact. Differently put, subjective
moral satisfaction of guilt is not enough: it must be
subjective
satisfaction attained through proper application of the rules of the
system.
[48]
Further, Savage J concluded that it is
impossible for this court to step into the shoes of the trial court
and arrive at conclusions
on the evidence as a whole, without the
benefit of assessing the credibility and reliability of witnesses in
the witness box. In
addition, that on appeal, there can be no moral
certainty on a conspectus of the evidence that the state discharged
its burden
of proof.
[49]
She concluded that the accused’s
right to a fair trial under section 35 (3) of the Constitution has
been compromised by the
magistrate’s failure to take into
account all of the evidence before the trial court and provide the
reasons for the appellant’s
conviction and sentence. On this
basis she held in that case, that the appeal against conviction and
sentence should succeed.
[15]
[50]
Similarly in this case, there was no
assessment of the credibility and reliability of the witnesses in the
witness box. In my view,
this is therefore a gross misdirection on
the part of the magistrate by firstly, not properly assessing the
evidence; secondly,
by failing to make a proper evaluation of the
evidence; and thirdly by failing to give any reasons for his judgment
before convicting
the appellant. On this basis alone the conviction
falls to be set aside.
[51]
Even if I should be wrong in my above
conclusion regarding the basis on which the conviction should be set
aside, for the reasons
that follow, I am also of the view that the
conviction should be set aside.
[52]
A further fundamental misdirection was the
regional magistrate’s failure to deal with the evidence of the
complainant who
was a single witness. The magistrate, in my view,
even though he did not give reasons as to why he accepted the
evidence of the
complainant, on a conspectus of the evidence, could
not have and did not apply the cautionary rule applicable to a single
witness
in a criminal case. In a case like this, it has been held in
S v M
[16]
by Melunsky AJA that:
Prior to the decision in
S
v Jackson
1998
(1) SACR 470
(SCA), it had long been accepted that criminal cases of
a sexual nature fell into a special category. It was said that there
was
an 'inherent danger' in relying upon the unconfirmed
testimony of a complainant in a sexual case. This resulted in the
courts
adopting a cautionary rule of practice. The rule required –
(a) the recognition of the
'inherent danger'; and
(b) the existence of some
safeguard that reduced the risk of a wrong conviction, such as
corroboration of the complainant in a respect
implicating the
accused, or the accused's failure to give evidence or his obvious
untruthfulness.
(See
S
v Snyman
1968 (2) SA
582
(A) at 585C - H.) In
S
v Jackson
it was
pointed out at 476e-f that the application of the cautionary
rule to sexual assault cases was based on irrational and
outdated
perceptions. Although the evidence in a particular case might
call for a cautionary approach, this, it was emphasised
in the
judgment, was not a general rule: the State was simply obliged to
prove the accused's guilt beyond reasonable doubt. The
factors which
motivated this Court to dispense with the cautionary rule in sexual
assault cases apply, in my view, with equal force
to all cases in
which an act of a sexual nature is an element.
[17]
[53]
In coming back to this case, the regional
magistrate, in my view has failed to recognise the inherent dangers
in accepting the evidence
of the complainant as a single witness.  In
the absence of any reasons, it seems that he uncritically, accepted
the evidence
of the complainant, without dealing with the following
issues:
1)
He
accepted her version on face value that she did not complain to her
mother or someone else immediately after the rape had taken
place, to
be true. There was no reason afforded by the magistrate why he
accepted her evidence in this regard, and why he found
this version
plausible.
2)
Why
she elected to leave a message on the phone of the appellant under
her name in the draft messages section of the phone, without

considering why she would do that instead of complaining to her
mother or another adult person.
3)
That
by pure coincidence, she got hold of the appellant’s phone on
the Thursday, where after she entered the draft message
onto the
phone.
4)
What
she thought might be achieved by entering this message onto his
phone.
5)
That
the sister also by pure coincidence, quite fortuitously, also on the
Thursday managed to get hold of the phone of the appellant
and came
across this message.
6)
How
it was possible for a person whose name or cell phone number or a
particular number is not a contact on a particular cell phone,
that
has not been entered onto that cell phone, to save the message in the
draft section on the cellphone. This is a fact which
is known to all
users of a cell phone, which the court can accept,
[18]
that it is impossible to send a message in the draft message section
of a phone.  It is common cause that the complainant
did not
have a phone or number in order to have a draft message saved on the
appellant’s phone.
[52]
It is not clear what safeguards the court a
quo took into consideration in reducing the risk of a wrongful
conviction, such as corroboration
of the complainant in respect of
implicating the appellant. If it was the draft message, the
pornographic video on the cell phone,
the evidence of her sister to
confirm the existence of the draft message and the medical evidence.
I am not convinced that
such evidence could assist the court in
reducing such risk.  In this regard, I concur with the
conclusions of my brother Binns-Ward
J that such evidence is either
highly suspicious, has little evidential value and unconvincing to
have assisted the court in concluding
that, after applying the
cautionary rule, that the evidence of the complainant should be
accepted beyond reasonable doubt to convict
the appellant.
[53]
For these reasons, I would also set aside
the conviction and sentence.
R.C.A. HENNEY
Judge of the High Court
PARKER AJ (dissenting from the majority judgments):
[54]
I have had the significant benefit of
reading the judgment of Binns-Ward J and the concurring judgment of
Henney J.  In my
view the state had succeeded in proving the
appellant’s guilt beyond reasonable doubt.
[55]
The appellant stood trial in the Regional
Court, Khayelitsha, on a charge of rape, in contravention of section
3 of the Criminal
Law Amendment Act (sexual offences and related
matters) 32 of 2007.  He was convicted of rape on 21 October
2013 and on 20
November 2013 sentenced to 10 (ten) years
imprisonment.  Though the prescribed minimum sentence of life
imprisonments was
applicable, the trial court found compelling and
substantial circumstances enabling it to impose the lesser sentence.
On
petition to this court leave to appeal against conviction only was
granted on 6 October 2015.
[56]
I respectfully do not agree that the
Regional Magistrate had materially misdirected himself, certainly not
to the extent where interference
by this court is justified.  I
say this even though I agree that the Regional Magistrate’s
judgment is not crafted very
eloquently nor does it necessarily
reveal a very scientific approach.  It certainly does not
comprise of a detailed evaluation
and assessment of the evidence of
every witness.  It is unfortunate for example that the evidence
of Mfreke, the police witness
who analysed the cellphone, was not
evaluated by the Regional Magistrate.  He similarly did not in
any detail elaborate on
exactly how he came to the finding that the
state witnesses were trustworthy, reliable and credible.
[57]
The fact that he may not have followed a
more conservative and routine method of crafting the judgment does
not necessarily have
the effect of such possible feature justifying
the setting aside of the proceedings unless it is clear that the
appellant was prejudiced
thereby.  In this regard see
S
v Kwinda
1993 (2) SACR 408
(V).
See also
Hlantlalala and Others v
Dyantyi NO and Another
1999 (2) SACR
541
(SCA) where it was held that a failure to inform an accused of
the right to legal representation, and particular availability of

legal aid, was potentially irregular.  However such irregularity
would only vitiate a conviction if a failure of justice resulted

therefrom.  May I add that an appellant would have to establish
that there in fact was such a failure of justice.  It
was
further held in this case that a failure of justice would be
established where an accused suffers actual or substantial prejudice.
[58]
On the totality of the evidence in this
matter, and even though it may be conceded that the apparent failure
by the Regional Magistrate
to give comprehensive reasons for his
judgment may be disconcerting to some, it certainly cannot be
concluded that in this particular
instance such failure, as there may
be in his method of crafting the Court’s judgment (or the lack
of reasons), resulted
in a failure of justice.  I say this,
because the evidence is available on record and a proper assessment
and evaluation thereof
can be made on appeal.  I am of the view
that if proper regard is had to the evidence on record the Regional
Magistrate’s
findings of fact are not only understandable but,
in the context, become meaningful, and rational.
[59]
It is trite that a presumption exists that
a trial court’s findings of fact are correct, in the absence of
demonstrable and
material misdirections by the said court.  Such
findings of fact are presumed to be correct and only susceptible to
be disregarded
if the recorded evidence shows them to be clearly
wrong.  In determining whether or not the trial court’s
findings of
fact were clearly wrong it is useful to break the body of
evidence down to its component parts, but, in doing so, one must
guard
against a tendency to focus too leniently upon separate and
individual parts of what was, after all, a mosaic of proof where the

evidence ultimately needs to be assessed as a whole.  In this
regard see
S v Hadebe and Others
1998 (1) SACR 422
(SCA).
[60]
In the Supreme Court of Appeal case of
S
v Ntsele
1998 (2) SACR 178
(SCA) it was
likewise held that if it is not possible to say that the findings of
fact are palpably wrong and that a reasonable
court could never have
made such findings, the court of appeal is not entitled, under such
circumstances, to interfere with the
trial court’s findings.
See also
S v Monyane and Others
2008 (1) SACR 543
(SCA).
[61]
In assessing whether or not the conviction
was proper, free of any material misdirections, it must be borne in
mind that an evaluation
has to be made on the totality of the
evidence.  In this regard see
S v
Van Aswegen
2001 (2) SACR 97
(SCA) where the court relied on the following passage in
S
v Van der Meyden
1999 (1) SACR 447
(W)
at 449 G for its decision that the court should not base its
findings, on whether to convict or acquit, only on a portion of
the
evidence but that the decision that you have taken on all the
evidence.  The court inter alia contended that –
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 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 ought
to acquit) must account for
all
the evidence
[underlining and
emphasis supplied]
.  Some
of the evidence might be found to be false, some of it might be found
to be only possibly false or unreliable but none
of it may simply be
ignored.
[62]
It is against the above back-drop that an
evaluation of the evidence on record needs to occur in deciding
whether or not the conviction
is sustainable or alternatively whether
or not there were material misdirections on the part of the trial
court which justified
interference by this court.
[63]
The complainant and the appellant are
[...]s.  The appellant is the complainant’s mother’s
[...].  Despite
this close family relationship the appellant had
only recently come to Cape Town for the first time after meeting the
complainant’s
sister, A., in the Eastern Cape where the
appellant hails from.  It is common cause that the complainant,
her mother and siblings
were all very excited to meet the appellant,
allowed him into their house with open arms and treated him like one
of the family.
In fact, the complainant testified that she
regarded the appellant like an older brother and her mother regarded
him like a son.
The appellant visited the complainant’s
family, arriving there on the day in question (the rape allegedly
occurred on 15/16
January 2012), stayed for 3 nights and then left
and returned again later in the week, when he again spent a few
nights there.
During this time, according to the complainant,
she not only treated the appellant like a bother and made breakfast
for him (though
denied by the appellant), he also gave her special
attention.  According to her he gave her things like money and
let her
use his cell phone, things no-one else ever gave her before.
[64]
The complainant’s evidence relating
to the incident in question was that:
(i) On the night of 15/16 January 2012, she had been in the lounge in
the company of her older sister, A., and the appellant.
They
were watching a movie.  Her sister left the lounge and went to
sleep in her room at midnight, leaving the complainant
and the
appellant behind, still watching the movie.  The complainant
fell asleep where she was lying on a sleeping bag on
the floor.
(ii) Also in the house that night were the complainant’s mother
and another sister and the latter’s children.
(iii) The appellant woke the complaint up and showed her a porn movie
on his cell phone.  She did not look at the movie on
the phone
as she was not comfortable looking at pictures of naked people
engaging in sexual activity, and fell asleep again.
(iv) The appellant thereafter picked her up from the floor where she
had been sleeping, carried her to a couch in the lounge that
he was
meant to sleep on, put her on the couch, closed her mouth with his
hand, took off her panty and put his penis into her vagina.
She
explained that he closed her mouth, preventing her from making any
noise.  He lifted her legs over his shoulders when
he penetrated
her without consent.
(v) Later that morning (Monday), when she was getting ready to go to
school, the appellant kept a close watch on her movements,
which
seemed to her to be aimed at preventing her from telling her mother
what had happened during the night.
(vi) On the Thursday following the incident, the appellant was back
visiting at the complainant’s family home.  The

complainant left a message on his cell phone to the effect that she
was going to tell her mother about what had happened.
She had
saved this message in the drafts portion of his cell phone.  She
reflected her own name as the person to whom the
message was
addressed as she did not know how to change the “to” –
the addressee to “from” –
the addressor.  She
hoped that this message would cause the appellant to leave their
home.
(vii) Her sister, A., saw the message on the appellant ‘s phone
later on that same Thursday evening but could only confront
the
complainant about it on the Sunday afternoon when the latter returned
from her father’s place.  The complainant
then reported to
her sister what had happened.
[65]
A.
confirmed
the complainant’s evidence relating to the latter’s
report to her  (the witness) of the rape.  She
had, per
chance, come across the message  (on the appellant’s phone
in the drafts) when she was browsing through the
appellant’s
cell phone which was lying on the table.  It is common cause
that everyone had free access to the appellant’s
phone, and he
in turn also had access to their phones.  A. then called in the
help of her other sister and brother whereafter
they eventually
reported the matter to the police.
[66]
The complainant was medically examined
about a week after the incident.  The doctor’s evidence
was that there were signs
of injuries to the genitals of the
complainant.  However this evidence was inconclusive in that the
doctor could not give
any indication of the age of the bumps and
clefts as same could conceivably be visible a year after being
inflicted.  According
to the doctor he said bums and clefts
could be the result of self-inflicted injury caused by the insertion
of a finger or even
if a person such as the complainant is suffering
from irritation from a urinary tract infection.  The doctor
indicated that:
-
(i) There were no abnormalities – no fresh tears
(ii) The hymen opening was 15mm traverse and 14mm vertical –
which according to him was an opening “within the limits
of the
child’s age”
(iii) There were “bumps” at 3 o’clock and 5 o’clock
as well as clefts at 8 and 9 o’clock.  Though
both bumps
and clefts are tears within the hymen – bumps go halfway
through the hymen and then heal whilst clefts are tears
that go
through the hymen and when they heal they leave cleft like shapes.
(iv)  His observations and conclusion that his clinical findings
were “consistent with previous vaginal penetration
with a blunt
object like a penis” were made in the context of his acceptance
of the history given to him by the complainant
of what had happened
with reference to the alleged rape
[67]
The last of the state’s witnesses
viz
Sergeant Mfreke
– downloaded the information from the appellant’s cell
phone.  This forensic investigation revealed that:
(i) There were a number of videos found on the phone but none would
be described by the witness as pornographic.
(ii) There were a number of photos found on the phone.  These
photos, which were handed in as Exhibit “C”, inter
alia,
depicted persons very scantily dressed only in panties, suggestive of
being engaged in some sexual activity, for example
with one female
person having inserted her hand into the panty of another female “in
the front or in the private part of
the other lady”.
Another photograph depicted what appeared to be a naked female
kissing a man.
(iii) This phone was a Nokia 5130 and was one of those where one
cannot retrieve deleted items.
[68]
Though, according to the policeman, he
would not classify the images that he saw as pornographic, these
images could certainly lead
a young girl, such as the complainant at
the time, to describe the images as depicting naked people engaged in
sexual activity”,
which evidenced her understanding of “porno
movies”.
[69]
Sgt Mfreke was unfortunately not asked for
an opinion on whether or not one can save a draft sms or whats app.
However, in
this modern era of social media and the dominant presence
of cell phones in everyone’s life, the way these devices work
has
almost become general knowledge.  I am aware of the feature
where one can save a sms message in draft, particularly in the
older
phones such as the one in question.  If such message is drafted
and simply not sent, it will remain in draft until either
deleted or
sent.
[70]
Recognising the fact that the complainant
was a single child witness as far as the act of rape is concerned I
respectfully differ
with a view that the Regional Magistrate seems to
be unmindful of the need to apply caution in assessing the evidence
of such witnesses.
The Regional Magistrate had clearly
exercised his mind about the caution in dealing with the evidence of
a single witness when
he made reference to
section 208
of the
Criminal Procedure Act 51 of 1977
.  He proceeded to as a matter
of fact find that the evidence of the complainant was satisfactory in
all material aspects.
[71]
Insofar as corroboration of the
complainant’s evidence relating to the rape, was necessary,
despite the findings in the case
of
S v
Jackson
1998 (1) SACR 470
(SCA) that
the application of the cautionary rule in sexual assault cases was
based on irrational and outdated perceptions, it
is my view that the
complainant’s evidence was in fact corroborated, lending a
sufficient safeguard reducing the risk of
a wrong conviction.
[72]
The corroboration I refer to above is in
the form of the evidence of the sister A., whose evidence does not in
any way lend itself
to criticism on the grounds of not being reliable
and/or credible.  In this regard I need to pause and say
something about
the evidence that the complainant had left a message
in the draft of the appellant’s cellphone, which message was
subsequently
seen by this witness A..  The learned Binns-Ward J
and Henney J are of the view that it is not physically possible

to have done so and therefore, by implication A.’s evidence
stands to be ignored if not outrightly rejected.  It is
a fact,
known to all who use cellphones in the modern era, that if a message
is composed and left on the phone it will not delete
itself, it will
remain there until deleted, as it cannot delete itself.  Even if
the senders’ number is not on the phone
of the recipient of the
message such message will not simply delete by itself.  If one
then goes to the drafts, as testified
by A., such message will be
there to be seen.  Nowhere in either of the judgments of
Binns-Ward J or Henney J is it suggested
why A.’s evidence
should be ignored and not be considered as part of all the evidence
as held in the case of
Van der Meyden
supra.
[73]
If I am correct and it is possible to thus
save the message in the drafts  (particularly in view of the
fact that this evidence
was never challenged, nor is there evidence
anywhere on the record that it is not possible for a message to be
thus saved, as testified
by the complainant and later seen by A.),
then Numbulelo’s evidence serves as adequate corroboration for
the complainant’s
version of events.
[74]
It is also abundantly clear that the
complainant’s evidence was rather spontaneous therefore more
likely to have been truthful.
There is absolutely no basis to
reject A.’s evidence other than the speculative, dare I say,
almost desperate, reason advanced
by the appellant that there was
some or other conspiracy against him which by implication involved
A., the complainant and others,
a contention for which there is no
factual basis on the record.  In fact, the evidence such as it
is strongly suggested the
contrary.
[75]
In his defence, the appellant testified
that he had been watching television in the lounge where he was in
the company of the complainant
and the latter’s sister A., who
returned to her room at midnight.  The complainant, who remained
behind with him after
her sister left, was listening to music on the
appellant’s phone when he decided to sleep.  He told her
to put it on
the table when she was finished with it.  He awoke
the next morning and everything was normal.  The complainant was
still
sleeping on the floor where she was when he had gone to sleep.
He agreed that they had had free access to each other’s
cell
phones. He was not aware that there was any problem until he was
arrested on 23 January 2012 and charged with having raped
the
complainant.  He submitted that he had been framed because of
some or other property dispute with the family.  He
was,
however, clear that he did not suspect the complainant’s mother
and/or siblings to be involved in this devious action
of framing
him.  They (complainant’s family) had been very friendly
with him and were very welcoming.
[76]
The appellant was, in my view, not an
impressive witness.  His version was justifiably found by the
trial court to be improbable
(not reasonably possibly true).
His general response of calling the complainant and her family,
particularly her sister A.,
blatant liars who were intent on getting
him into trouble by concocting this elaborate lie that he had raped
the complainant only
because an aunt of the complainant, who does not
live at this house, was behind this exercise of framing him because
of the property
family dispute, was unconvincing.  There seems
to be absolutely no merit in this fanciful allegation.  In fact,
the common
case evidence of how they had reached out to him, treated
him with warmth and kindness, and entertained him does violence to
this
contention.  This aspect completely shakes the foundation
of his central theme that he had been framed.  In fact, this
was
interestingly never put to either the complainant or A. when they
testified.
[77]
I am acutely aware that a court does not
have to believe an accused, but his version of events must be
reasonably possibly true
for him to resist the charge against him.
I am of the view that his version was improbable.  A perusal of
his evidence
under cross-examination reveals that he simply had no
answers to important and fundamental discrepancies with reference to
aspects
that were either put to state witnesses, which were contrary
to his evidence, or aspects that were not challenged because those

aspects were contrary to his evidence.  The evidence reflects
that:
(i) He suddenly in cross-examination testified that A. was the person
who did not want him there.  According to him, her evidence
of
how excited she was to meet him and the financial contribution she
had made and was willing to commit to for him to educate
himself etc.
– was all lies.  Importantly, this was not canvassed with
A..  It was definitely not challenged/disputed
when she
testified.  His only explanation for this was to blame his
attorney – see page 92 – 93 of the record.
(ii) He continued to blame his attorney for not challenging the
complainant who said she was watching an action movie with him,

which, according to him, she lied about as she was not watching a
move with him.  Once again according to him the complainant
was
just telling lies.
(iii) His evidence for the first time under cross-examination that he
had left his phone with the complainant when he went to sleep,
was
not put to the complainant when she testified that she did not have
his phone.  It all was again labelled by him as lies.
(iv) The complainant’s evidence that she had gone to sleep
elsewhere after the alleged rape and had not woken up in the lounge

where the appellant woke up the next morning, was also labelled as
lies, though never challenged when she testified.
[78]
The record/transcript is replete with such
examples of the appellant introducing evidence that was never raised
before and whenever
his evidence is in conflict with the evidence of
any state witness, then resorting to calling them liars.  His
attempt to
suggest that he was framed due to this property family
dispute, is unconvincing and improbable if regard is had to the
conspectus
of the evidence.
[79]
On the other hand, the evidence of the
state witnesses and, more importantly, that of the complainant and
her sister, was highly
satisfactory.  They both testified
without hesitation, did not contradict each other or other witnesses
or themselves, were
rather forthright, and evidenced no
improbabilities.  Cross-examination in no way detracted from
their evidence.
[80]
The complainant’s evidence re the
“porn movie” must be seen against the backdrop of her own
evidence of her understanding
of porn viz that it involves naked
people engaging in sexual activity.  The photos clearly depict
people either completely
or substantially naked indulging in sexual
acts such as one female, wearing only a panty, inserting her hand
into the panty of
another female into the other’s private
parts, while another photo depicts a naked female kissing a man.
[81]
The complainant’s evidence that she
did not immediately tell someone about what had happened is equally
probable in the circumstances
where she had been threatened by the
appellant that he would kill her family if she told anyone. The
veracity of this evidence
is enhanced if one considers the
spontaneous answer by the complainant as to why she did not want her
mother to see her cry, when
she said “Yes, because I did not
want her to die.”  Her evidence that she subsequently, on
the Thursday, left
the threatening message on his phone is very
plausible if cognisance is taken of her evidence that she was
troubled when he returned
to their house after having left.  She
was uncomfortable with him in the house and had hoped the message
would cause him to
leave the house.  It certainly does not make
her evidence that she feared for the safety of her family
improbable.  Instead,
it is very conceivable that she had become
more desperate to get him out of the house, and that her desperation
at that stage was
greater than her fear.  She would obviously
have been more comfortable with him out of the house.
[82]
Though no evidence was proffered about the
complainant’s background and upbringing, she lived in
Khayelitsha where the incident
also happened.  Reading the
record of her evidence, one gets the impression that she is a rather
confident young girl who
was 12 years old when she testified, but
appeared rather mature beyond her age, not only physically (as per
the district surgeon)
but also emotionally.  She seemed rather
street wise.  It was therefore not at all strange that she was
familiar with
the concept of a porno movie.
[83]
Regarding the probabilities in the matter,
I am mindful of what was said by Rumpff JA in
S
v
Rama
1966 (2) SA 395
(A) at 401
viz
:
…
there is no obligation
upon the Crown to close every avenue of escape which may be said to
be open to an accused.  It is sufficient
for the Crown to
produce evidence by which such a high degree of probabilities is
raised that the ordinary reasonable man, after
mature consideration,
comes to the conclusion that there exists no reasonable doubt that an
accused has committed the crime charged.
He must, in other
words, be morally certain of the guilt of the accused.  An
accused’s claim to the benefit of a doubt,
when it may be said
to exist, must not be derived from speculation, but must rest upon a
reasonable and solid foundation created
either by positive evidence
or gathered from reasonable inferences which are not in conflict
with, or outweighed by, the proved
facts of the case
”
,
a rationale followed in
S
v Phallo and Others
1999 (2) SACR 558
(SCA).
[84]
The fact that no pornographic movies and/or
the message were found on the phone also does not detract from the
evidence of the complainant
and her sister if regard is had to the
repeated evidence of Sgt Mfreke that he could not retrieve any
deleted items from the phone.
[85]
The fact that the medical evidence was not
conclusive, in that the doctor could not determine the age of the
bumps and clefts, and
further because he came to the conclusion, that
his clinical findings were “
consistent
with previous vaginal penetration with a blunt object like a penis
”,
in the context of what the complainant had told him, thus affecting
his objectivity, is not decisive of the case.
If the evidence
was conclusive, it would have been helpful.
[86]
If I have regard to the other facts, and,
without getting entangled in the issue of motive for falsely
implicating the appellant,
I believe that the complainant and her
sister testified honestly about what had happened. There were no
inconsistencies, improbabilities
in their evidence and the evidence
of both struck me as credible.  In arriving at this decision, I
have remained cognisant
of the need for the trial court to have
exercised caution because the complainant was a child witness.
[87]
Although the Regional Magistrate seemingly
had a robust approach in evaluating the evidence, I cannot find that
he had misdirected
himself in any material respect.  His
assessment of the evidence of the witnesses and his conclusions based
thereon must be
presumed to be correct in absence of such material
misdirections.
[88]
In the premises, I would dismiss the appeal
against conviction  (there being no appeal against sentence).
M. PARKER
Acting Judge of the High Court
[1]
The Tanner scale is a five stage measure of physical development
based on external primary and secondary sex characteristics.

Stage 5 is indicative of the attainment of adult maturity in respect
of these characteristics.
[2]
S v Van der Meyden
1999 (1) SACR 447 (W), 1999 (2) SA 79.
[3]
S v Van Aswegen
2001
(2) SACR 97 (SCA).
[4]
At para. 106, the learned chief justice made the
following observations:
The
principle that an appellate court will not ordinarily interfere with
a factual finding by a trial court is not an inflexible
rule. It is
a recognition of the advantages that the trial court enjoys, which
the appellate court does not. These advantages
flow from observing
and hearing witnesses, as opposed to reading ‘the cold printed
word’. The main advantage being
the opportunity to observe the
demeanour of the witnesses. But this rule of practice should not be
used to ‘tie the hands
of appellate courts’.  It
should be used to assist, and not to hamper, an appellate court to
do justice to the case
before it. Thus, where there is a
misdirection on the facts by the trial court, the appellate court is
entitled to disregard
the findings on facts, and come to its own
conclusion on the facts as they appear on the record.
Similarly, where the appellate
court is convinced that the
conclusion reached by the trial court is clearly wrong, it will
reverse it.
(Footnotes omitted.)
[5]
8. Where there has been no misdirection on fact by the trial
Judge, the presumption is that his conclusion is correct; the
appellate
court will only reverse it where it is convinced that it
is wrong.
9. In such a
case, if the appellate court is merely left in doubt as to the
correctness of the conclusion, then it will uphold
it.
10. There may be
a misdirection on fact by the trial Judge where the reasons are
either on their face unsatisfactory or where
the record shows them
to be such; there may be such a misdirection also where, though the
reasons as far as they go are satisfactory,
he is shown to have
overlooked other facts or probabilities.
11. The
appellate court is then at large to disregard his findings on fact,
even though based on credibility, in whole or in part
according to
the nature of the misdirection and the circumstances of the
particular case, and so come to its own conclusion on
the matter.
[6]
Record page 129-131.
[7]
Record page 131.
[8]
2012 (1) SACR 431
(SCA) para 12.
[9]
2012 (2) SACR 82
(ECG) at 85I.
[10]
(A588/14)
[2015] ZAWCHC 53
(8 May 2015).
[11]
1999 (2) SA 667 (CC).
[12]
Mcoseli
n4 at 86H.
[13]
Xaba
n 5 para 17.
[14]
[2009] 2 All SA 277
(SCA) para 26 .
[15]
Xaba
n 5 para 21.
[16]
1999 (2) SACR 548 (SCA).
[17]
Ibid
para 17.
[18]
S v Mthimkulu
1975 (4) SA page 765 paras D - F