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[2013] ZAGPJHC 181
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Makgai v S (A571/2011) [2013] ZAGPJHC 181 (22 July 2013)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
(NORTH GAUTENG HIGH
COURT, PRETORIA)
CASE NO. A571/2011
DATE: 22/07/2013
NOT REPORTABLE
In
the matter between:
LESIBA
MOSES MAKGAI
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
NAIDOO AJ
(1) The appellant was
charged in the Regional Court, Bela Bela as follows: Countl -
Kidnapping
Count 2 - Contravening
Section 3 of the Sexual Offences Act 32 of 2007 (Rape)
Count 3 - Contravening
Section 3 of the Sexual Offences Act 32 of 2007 (Rape)
Count 4 - Assault with
Intent to do Grievous Bodily Harm Count 5 - Kidnapping
The appellant was found
guilty on counts 2, 4 and 5 and sentenced to ten (10) years', two (2)
years' and three (3) years' imprisonment
respectively on each of the
three counts I have mentioned. The sentences in respect of counts 4
and 5 were ordered to run concurrently
with the sentence in respect
of count 2, thus imposing an effective sentence of 10 years'
imprisonment on the appellant. The court
a quo granted leave to
appeal against the conviction only. The appellant was legally
represented at the trial. Mr MG Botha appears,
in this court, for the
appellant and Mr MD Matjokana appears for the Respondent.
(2) The complainant, OM,
the first of the five witnesses called by the State, testified that
she and the appellant had previously
lived together as husband and
wife after the appellant had paid lobola. They appear to have had a
troubled relationship, causing
her to leave him and return to the
home of her mother, towards the end of 2009. Her evidence is that she
had obtained a Protection
Order in terms of the Domestic Violence Act
against the appellant, and on 12 January 2010, she was on her way to
the Bele Bela
Magistrate's Court, that being the return date
stipulated in the Protection Order. She was accompanied by her
younger brother,
S, the fifth state witness. Shortly after she left
home, she encountered the appellant, who sent her brother to fetch
some documentation
from his house and then joined her in boarding a
taxi in order to get to the court. She however, did not appear in
court that day,
as the appellant assaulted her and took her, against
her will, to the home of his uncle in Rustenburg, after his cousin,
Tshepo
Makgai, had brought clothes belonging to the appellant and the
complainant. These were clothes that she had left at the matrimonial
home, when she left the appellant at the end of 2009. In Rustenburg,
she had tried, unsuccessfully, to gain access to a telephone
in order
to make contact with her family. She then pretended to be ill and the
appellant and his uncle took her to the local clinic
where she
enlisted the assistance of the nursing staff to secure the arrest of
the accused and his uncle, and to return to her
mother's home. She
was held in Rustenburg for three days. This incident was the subject
matter of count 1.
(3) One evening, a few
weeks later (on 28 February 2010), the complainant encountered the
appellant at a shop near her home. He
asked to speak to her and when
she refused, he assaulted her, causing her to lose consciousness. On
regaining her senses, she found
herself in a cave in some bushes. She
was held captive in this cave by the appellant who raped her twice
during the twenty four
hour period that he held her there. She also
testified that she was severely assaulted by the appellant in order
to make her submit
to him. When she returned home the next evening,
she reported to her mother what had happened to her. The appellant
was thereafter
arrested, and the complainant was then taken to a
hospital where she was examined and treated. This incident was the
subject matter
of counts two to five.
(4) Ruth Mataba Moseneke
testified that she is a nursing sister at a clinic in Rustenburg. She
confirmed the complainant's evidence
that the latter came to the
clinic, and asked for assistance as she had been kidnapped. Her
observation was that the complainant
looked scared, she was shaking
and crying. She confirmed that in order to detain the accused for a
longer period at the clinic
to allow the police to arrest him, she
put a drip on the complainant, even though the later advised that she
was only pretending
to be ill. This witness confirmed that she called
the complainant's mother, at the request of the complainant, and
advised her
that the complainant was safe.
(5) Nicholas Mabonyane,
who is a forensic nurse at the Bela Bela Hospital examined the
complainant on 2 March 2010. He noted physical
injuries on various
parts of her body as well as injuries to her genital area. He
concluded that there was forceful sexual penetration
and that her
injuries were also consistent with having been assaulted with a blunt
object and a fist. He recorded his findings
on the form that is
commonly referred to as the "J88". I pause to note that
photographs depicting the injuries of the
complainant as well as the
cave where she was taken by the appellant, were handed up as
exhibits. These photographs were taken
on 4 March 2010.
(6) F M, the mother of
the complainant corroborated the evidence of the complainant in all
material respects, with regard to the
two incidents I have referred
to. There were some discrepancies regarding the exact time the
incident at the shop (on 28 February
2010) may have occurred, as well
as the time period regarding the absence of the complainant when she
left home on 12 January 2012.
This witness indicated that she waited
for the complainant for some weeks, but from other evidence placed
before the court, it
is evident that the complainant had been gone
for a few days. In my view these discrepancies do not render her
evidence unacceptable,
nor does it discredit the evidence of the
complainant. The final witness for the State, Samuel Makubela also
corroborated the evidence
of the plaintiff as well as that of F M
with regard to his role in the sequence of events.
(7) The accused testified
in his defence and called two witnesses, Paulinah Baloyi and Tshepo
Makgai. His version amounted to a
bare denial, in that he denied
having raped the complainant and alleged that he was not in her
company after his encounter with
her at the shop on 28 February 2010.
He said that he and Paulinah in fact observed the complainant's
mother and another woman assaulting
the complainant with a whip
commonly referred to as a "sjambok" and a broomstick. This
was, of course, strenuously denied
by the complainant and her mother.
The evidence of Paulinah merely confirmed what the accused said
regarding the assault on the
complainant, and, on the whole, does not
take the matter much further. The accused denied that he kidnapped
the complainant on
12 January 2010, and alleged that they went to
Rustenburg at the complainant's request and that she had in fact
called his cousin
Tshepo to bring their clothes. Tshepo Makgai
testified that he had been called by the complainant and that is how
he took the clothes
to the appellant and the complainant. The latter
directed him to where they would be waiting for him. That concluded
the evidence
for the defence.
(8) The learned
magistrate, in evaluating the evidence was mindful of the fact that
the complainant was a single witness and he
rightly concluded, with
regard to counts 2, 4, and 5 that the complainant's evidence, albeit
that she was a single witness could
be relied upon. In spite of the
discrepancies that I have mentioned in paragraph (6) above, my view
is that such discrepancies
have not tainted the evidence for the
State to the extent that it cannot be relied upon. The complainant,
for example, while initially
giving exact times regarding the length
of her stay in the caves, the time of day she spoke to the appellant
at the cave and the
time they left the cave, later conceded that
these were estimates "in her head". Exact times are not
always vital to
the credibility of the evidence, and approximations
are acceptable, provided that they do not detract from the
reliability of the
evidence as a whole.
(9) In this regard, I
refer to the appellant's Heads of Argument (page 11, paragraphs
4.13.3 and 4.13.4) in which the complainant's
credibility is called
into question because she said that it took about an hour to walk
from the cave to her home. In the light
of what I have said about
estimations of time, clearly this was an estimate on the part of the
appellant. In his Heads of Argument,
the appellant alleges that
according to the Global Positioning System, the cave was three
kilometers away from the township. There
is no evidence on record
relating to the Global Positioning System in confirmation of this
allegation, apart from Photograph 6
(of the photographs that were
handed up as exhibits), which depicts an instrument showing certain
coordinates. Mr Botha was unable
to take the matter any further when
asked to indicate where in the record such evidence could be found. I
will, accordingly, place
no reliance on the submissions relating to
the Global Positioning System.
(10) The appellant also
attacked the credibility of the complainant because of the
differences between her viva voce evidence and
the statements she had
made to the South African Police. When the complainant was being
cross examined on these differences, the
trial court indicated
specifically that it was allowing the cross examination
provisionally, until the police official who took
the statement was
called. The police officer was not called. It is trite that the
complainant's viva voce evidence must super-cede
any other evidence
regarding her version of events.
(11) Mr Botha argued that
as a result of the troubled history between the complainant and the
appellant, the complainant had motive
for falsely implicating the
appellant, especially with regard to the kidnapping and rape charges.
Ms Matjokana pointed out that
the complainant's conduct does not
reflect such motive. I agree. It makes no sense that the complainant
would have gone to the
trouble of faking illness in order to get
assistance to contact her family, if she had gone willingly to
Rustenburg in the first
place, and if there was no threat from the
appellant.
(12) It is also common
cause that the complainant was no longer living with the appellant on
12 January 2010. His evidence is that
he had packed a bag that
morning because he was going to work in Tzaneen. The complainant
could not possibly have known that his
bag was packed and, much less,
where it could be found. On the other hand, her clothes were still in
the matrimonial home where
the appellant lived. It is far more
probable that he had packed both bags and requested his cousin Tshepo
to deliver the bags.
His version that it was at the complainant's
request that they went to Rustenburg is, therefore, improbable, and
negates the assertion
that the complainant was falsely implicating
the appellant.
(13) As intimated above,
the appellant's defence was largely a bare denial of the
complainant's version, and as such, was not very
convincing at all.
The trial court correctly rejected his version. It must also be borne
in mind that both Tshepo Makgai and Paulinah
Baloyi grew up with the
appellant and seem to have a close relationship with him. Their
evidence should therefore be approached
with caution, as they clearly
have an interest in protecting the appellant. Therefore, such
corroboration that they may have provided
for the appellant's version
cannot, in my view, be relied upon
(14) While I agree with
the caution expressed by Smallberger AJA in S v Mtsweni 1985(1) SA
590 (A), when he said (as translated
in the headnote):
"although the
untruthful evidence or denial of an accused is of importance when it
comes to the drawing of conclusions and
the determination of guilt,
caution must be exercised against attaching too much weight thereto.
The conclusion that because an
accused is untruthful, he therefore is
probably guilty must especially be guarded against. Untruthful
evidence or a false statement
does not always justify the most
extreme conclusion. The weight to be attached thereto must be related
to the circumstances of
each case"
my view is that the
circumstances of this case, as supported by the evidence, are such
that the lack of truthfulness on the appellant's
part justifies the
inference of guilt.
(13) I, accordingly,
propose that the following order be made:
13.1 The appeal is
dismissed
NAIDOO AJ
I
agree and it is so ordered
DEVO J
Date
of Hearing: 22 July 2013
Date
of Judgment: 22 July 2013
Counsel
for Appellant: Mr MG Botha
Instructed
by: Justice Centre, Pretoria
Counsel
for the Respondent: Ms MD Matjokana
Instructed
by:The State