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[2016] ZASCA 112
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Notshokovu v S (157/15) [2016] ZASCA 112 (7 September 2016)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 157/15
In
the matter between:
THOBANI
NOTSHOKOVU
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Notshokovu v S
(157/15)
[2016] ZASCA 112
(7 September 2016)
Coram:
Shongwe, Seriti, Petse and Mathopo JJA and
Potterill AJA
Heard:
22 August 2016
Delivered:
7 September 2016
Summary:
Reconsideration of an order refusing special
leave by two judges of the SCA: test has stringent requirements as
the threshold is
now higher: whether the courts below, including the
decision of the two SCA judges, ought to have granted leave or not:
appellant
failed to show special circumstances: special leave
refused.
ORDER
The decision of this court dated 9
February
2015 dismissing the applicant’s application for special leave
to appeal is referred to the court for reconsideration
and, if
necessary, variation in terms of s 17(2)
(f)
of the Superior
Courts Act 10 of 2013 (Mpati P)
The application for special leave to appeal is refused.
JUDGMENT
Shongwe
JA (Seriti, Petse, Mathopo JJA and Potterill AJA concurring)
[1]
This appeal is a result of an order made by the President of this
court on 30 July 2015, in terms of the provisions of s 17(2)
(f)
of
the Superior Courts Act 10 of 2013 (the Act). The appellant was
convicted by the Regional Court (East London) on one count of
rape
and sentenced to 6 years’ imprisonment. An application for
leave to appeal against conviction and sentence was refused
–
so was a subsequent petition to the high court. A special leave
application to this court, before two judges, suffered
the same fate.
[2]
The appellant brought an application in terms of s 17(2)
(f)
of
the Act, which was granted. What is, therefore, before us for
adjudication is the reconsideration and, if necessary, variation
of
the decision of the two judges who dismissed the application for
special leave. In my view, this is not an appeal on the merits
against the conviction and sentence but a reconsideration of the
decision refusing special leave to appeal. This court has to decide
whether or not the courts below, including the two judges of this
Court, ought to have found that reasonable prospects of success
existed to grant leave or special leave respectively. (See
S v
Khoasasa
[2002] ZASCA 113
;
2003 (1) SACR 123
(SCA);
S v
Matshona
[2008] ZASCA 58
;
2013 (2) SACR 126
(SCA)). An appellant,
on the other hand, faces a higher and stringent threshold, in terms
of the Act compared to the provisions
of the repealed Supreme Court
Act 59 of 1959. (See
Van Wyk v S, Galela v S
[2014] ZASCA 152
;
2015 (1) SACR 584
(SCA) para [14].)
[3]
The trial court refused leave to appeal because it was satisfied of
the complainant’s credibility and more so that it
was
corroborated by the other state witnesses. On the other hand it found
the appellant’s version not to be reasonably possibly
true and
contradictory. Essentially the refusal of leave was factually based.
It concluded that, although the complainant was under
the influence
of alcohol, she was not drunk. It found that there were no reasonable
prospects of success on the merits.
[4]
In order to understand the motivation of the trial court in refusing
leave – it is essential to consider the factual background
of
what actually happened on that fateful day. On 27 January 2007 the
complainant and her boyfriend M. K. (K.) and other people
attended a
farewell party. The appellant was also present. The complainant was
introduced to the appellant by K. She had two sparkling
wine drinks
for the evening. She also danced with a friend for a few minutes and
later around 3am she felt tired and decided to
go and sleep. Her
boyfriend walked with her to the bedroom and she asked him to lock
the door but her boyfriend suggested that
he should not lock it
because she might want to visit the ladies bathroom later. During her
sleep, she heard someone coming into
the bedroom, whom she thought
was her boyfriend. As a result she did not wake up to see who it was.
She felt the person coming
on top of her and also realised that the
person was penetrating her. She testified that she was on her monthly
period that day
and she had inserted a tampon to regulate the
bleeding. She realised that it was not her boyfriend as the person
was lighter than
the boyfriend, she woke up screamed and cried and
noticed that it was the appellant who penetrated her. K. came into
the bedroom
and other party goers also came. The appellant ran away.
She later reported the matter to the police and subsequently also
underwent
medical examination in the hospital.
[5]
The appellant admitted having had sexual intercourse with the
complainant but said it was consensual. His version is that he
danced
with the complainant, which she denies, and they touched each other
and he put his hands around her waist whilst she put
hers on his
shoulder. He interpreted her actions and conduct as being relaxed
around him and mutually attracted to each other.
Later he decided to
go and sleep. He went to the room which was identified to him by one
Andile, a friend and a person who resided
in the particular house. He
found the complainant asleep and he moved in next to her and they
started kissing each other. He realised
that she was naked. He
mounted her and had sexual intercourse with her. While busy with the
intercourse, the door opened and closed
immediately and he could not
see who opened the door. Shortly thereafter the door opened again and
the lights went on and when
he looked he noticed that it was K.. The
appellant said that she exclaimed and said ‘yoh maybe that was
M.’. He immediately
stood up, and put on his clothes,
apologised to K. and then K. started assaulting him and he ran away.
[6]
K., also testified, although his version is that when he opened the
bedroom door where the complainant was sleeping, he immediately
put
the lights on and saw the appellant on top of the complainant and was
badly shocked. He remained standing at the door. He asked
the
appellant what was going on, upon which he answered that he thought
it was his (appellant’s) girlfriend.
[7]
His evidence contradicts that of Thembele Maseka (Maseka), also a
state witness, in that Maseka said when they got to the complainant’s
bedroom door K. opened the door, peeped and closed it and followed
him (Maseka) to his bedroom – but he (Maseka) asked why
K. was
following him, K. turned back to where the complainant was sleeping,
opened the door and put the lights on. Maseka also
followed K. when
he turned back. It would appear that Maseka’s version is
consistent with that of the appellant when he said
that someone
opened and closed the door before opening it again and switching on
the lights.
[8] Be that as it may – it is common cause that
there are discrepancies and contradictions in both the State and the
defence
cases, the question remains whether or not the said
discrepancies and contradictions are relevant and material to the
issue or
issues to be decided by this court. The totality of the
evidence ought to be considered holistically. In
S v Mkohle
1990 (1) SACR 95
(A) at 98E-F Nestadt JA remarked that:
‘
Contradictions
per se
do
not lead to the rejection of a witness’ evidence. As Nicholas
J, as he then was, observed in
S v
Oosthuizen
1982 (3) SA 571
(T) at
576B-C, they may simply be indicative of an error. And at (576G-H) it
is stated that not every error made by a witness affects
his
credibility; in each case the trier of fact has to make an
evaluation; taking into account such matters as the nature of the
contradictions, their number and importance and their bearing on
other parts of the witness’ evidence.’
[9] In
Westinghouse Brake & Equipment (Pty) Ltd v
Bilger Engineering (Pty) Ltd
1986 (2) SA 555
(A) at 564G-H:
Corbett JA observed that:
‘
The
general principle is that an applicant for special leave to appeal
must show, in addition to the ordinary requirement of reasonable
prospects of success, that there are special circumstances which
merit a further appeal to the Appellate Division. This Court will
be
the arbiter as to whether such special circumstances exist.’
[10]
I turn to deal with the appellant’s contentions. The appellant
attacked the admissibility of the medical report (J88)
contending
that it did not comply with the provisions of s 212(4) of the
Criminal Procedure Act 51 of 1977 (the CPA). He complained
about the
procedural acceptance thereof in that the medical report was not
properly completed and the qualifications of the doctor
were not
properly stated. The State conceded the inaccuracies and that it was
wrongly admitted. However the State submitted that
in view of the
nature of the defence advanced by the appellant, the medical report
does not take the appellant’s case any
further and I agree with
the State’s submissions. The medical report simply becomes a
neutral fact. The appellant did not
dispute sexual intercourse with
the complainant but averred that it was consensual, which the
complainant denies. Even if one excludes
the medical report, the
trial court relied on her evidence which was corroborated by other
State witnesses.
[11]
The appellant also contended that schedule 2 of
s 68(2)
of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007
, amended the Magistrates’ Court Act 32 of 1944 and
provides that a judicial officer must be assisted by two assessors in
terms of s 93ter(2) of the Magistrates’ Court Act, in cases of
rape. It probably became clear to counsel for the appellant
that his
interpretation of s 93ter(2) was incorrect. The essence of the
State’s contention was that the date of commencement
of the
amendment of the Act is still to be proclaimed. The present position
is that s 93ter(2) of the Magistrates’ Act gives
the presiding
officer a discretion to use assessors, except where the charge is
murder. This court in
Gayiya v S
[2016] ZASCA 65
;
2016 (2)
SACR 165
(SCA) referred to
Chala & others v Director of Public
Prosecutions, Kwazulu-Natal & another
2015 (2) SACR 283
(KZP)
and confirmed the position that, the presiding officer is obliged to
use assessors in cases where an accused is charged with
murder only,
unless the accused person elects otherwise.
[12]
I now turn to discuss the contention that the trial court applied an
incorrect test in that the court required the appellant
to prove that
his version of the facts was probable. It is quite clear from the
tenor of the judgment as a whole, that in arriving
at her conclusion,
the magistrate had had regard to the credibility of all the
witnesses. On the contrary the record reveals that
the magistrate
made a proper assessment and analysis of all the evidence, by amongst
other things, weighing the strength and the
weaknesses of the State’s
case vis-ä-vis that of the appellant, including the
probabilities and improbabilities. It
is axiomatic that an
examination of the probabilities cannot be done in a vacuum. Such an
exercise requires an analysis and evaluation
of the evidence as a
whole. (See
S v M
2006 (1) SACR 135
(SCA) para 189.)
[13]
On the facts of this case, the State proved beyond reasonable doubt
that she did not give consent to the intercourse that took
place. The
evidence is clear that she could not have said that her boyfriend
should lock her inside the bedroom, if she had a secret
visitor in
mind in the person of the appellant. Clearly she did not consent when
she realised that it was the appellant on top
of her, she screamed
and cried prompting the appellant to put his hand on her mouth. She
could not have consented to have sexual
intercourse when she knew
very well that she had a tampon inside her as she was menstruating.
She even refused to have sexual intercourse
with her boyfriend
earlier in the day for the same reason that she was having her
period. She immediately reported to her boyfriend
and others that she
had been raped and reported the matter to the police and was examined
by a doctor on the same day. If the version
of the appellant, that
the consent should be inferred from the time when he got onto the bed
next to her, then its improbability
becomes glaring because she
screamed and cried upon realising that it was the appellant on top of
her.
[14]
It is easy for one to trivialise the shock and trauma that a rape
victim experiences and to conclude that she faked a rape.
This court
should be guided by the facts as played out by the evidence during
the trial. On a conspectus of all the evidence including
the
appellant’s version the complainant could not have consented to
have sexual intercourse with the appellant. Her boyfriend
was in the
house he could have come into the bedroom at any time during the
night.
[15]
Based on the above considerations, I am of the firm view that the
appellant failed to demonstrate any special circumstances
which merit
a further appeal to this Court – therefore special leave to
appeal was justifiably refused. There are no reasons
to vary the
order of the courts below, including the decision of the two judges
of the SCA. It is not of great public importance,
nor is this a case
where without leave a grave injustice would result.
[16] The application for special leave to appeal is
refused.
_______________________
J
B Z Shongwe
Judge
of Appeal
Appearances
For
the Appellant: L Janse Van Rensburg
Instructed by:
BBM
Attorneys, Cape Town;
Symington & De Kock, Bloemfontein.
For
the Respondent: H Obermeyer
Instructed by:
Director of Public Prosecutions, Grahamstown;
Director of Public Prosecutions, Bloemfontein.