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[2013] ZAGPJHC 257
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Mnqibisa v S (A164/2013) [2013] ZAGPJHC 257 (18 October 2013)
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REPORTABLE
IN THE
SOUTH GAUTENG HIGH COURT
JOHANNESBURG
CASE NO:
A164/2013
DATE: 18/10/2013
In the matter between:
MNGQIBISA
MLUNGISI
...............
Appellant
and
THE
STATE
…..............................
Respondent
J U D G M E N T
MASHILE, J:
[1] This is an appeal from the Regional Court of Gauteng held at
Soweto. The Appellant was a twenty-eight year old man charged
with
kidnapping, rape of a fourteen year old girl whom he had abducted and
the contravention of
Section 120(6)(b)
of the
Firearms Control Act 60
of 2000
- Pointing of anything which is likely to lead a person to
believe that it is a firearm.
[2] The Appellant who was legally represented throughout the
proceedings pleaded not guilty to all the three counts. On 28 August
2009 the Appellant was found guilty, convicted and sentenced to an
effective seventeen years imprisonment on kidnapping and rape.
He was
however acquitted on pointing of anything which is likely to lead a
person to believe that it is a firearm.
[3] Leave to appeal was sought and granted against his conviction
alone. It is against the conviction that he is appealing now.
[4] The three charges emanate from the facts that I will proceed to
describe hereinafter. The Appellant and the Complainant know
each
other very well consequently there is no issue about the identity of
the Appellant.
[5] On 8 April 2006 at approximately noon the Complainant was in the
company of one T, a friend of hers, when she was approached
by the
Appellant. The latter lifted his shirt to display to her what
appeared to her to be a firearm and demanded that she accompany
him.
T ran away and the two walked along side each other.
[6] Upon arrival at the Appellant’s friend, Mlungisi, they
passed some members of the public including Mlungisi at the gate.
She
was then forced to go into a certain shack apparently belonging to
Mlungisi. Once they were inside the shack the Appellant
took out what
the Complainant believed was his firearm and placed it on the bed.
From that moment began her ordeal when the Appellant
forcefully had
sexual intercourse with her without her permission
[7] Later in the day the Appellant went out to buy liquor for
himself. The Complainant took this opportunity to escape. Through
a
window she jumped to the immediate neighbour where she encountered a
male person. She told him that Mlungisi next door had kept
her
against her will and that she did not want to sleep there.
[8] The male person advised her to jump to the next property occupied
by a couple that lived in a garage, which she did. The couple
hid her
there for quite a while checking from time to time whether the
Appellant was in the street or not. When she was told that
he was
not, she left for her home where she immediately related the
horrendous occurrence to her mother.
[9] Dr Bomvana medically examined her the following day, 9 April
2006, at 9h50. According to the J88 that he completed subsequent
to
his examination, he discovered that there was indeed some proof of
forced penetration into her vagina. She informed the doctor
that the
Appellant has had sexual intercourse with her against her will. The
doctor recorded the time of the occurrence as midnight.
[10] The mother of the Complainant took the stand and largely
corroborated the evidence of her daughter except in one or two
respects.
The mother said that the Complainant told her that the
Appellant grabbed and dragged her into the shack yet her evidence to
court
is that she walked alongside the Appellant albeit of course
against her will. The Complainant also testified that she was forced
to go into the shack.
[11] At the time when the trial took place unfortunately Dr Bomvana
had passed on consequently Dr Ilunga took the stand. He testified
in
accordance with what the deceased doctor Bomvana recorded on the J88.
The evidence of the doctor therefore confirmed that there
was forced
entry to the Complainant’s vagina.
[12] The Appellant testified on his own behalf. He said that he saw
the Complainant being in the company of T on the day and time
alleged. He called her and enquired about his friend, V , whom is
also known to the Complainant.
[13] The Complainant did not know where V was but then went on to
request if the Appellant could give her some money. The Appellant
did
not have such money but invited her to escort him to another friend
of his, Andile, where he would obtain money to give to
her.
[14] The two
got to A's, place but only to discover that he was not home.
According to the Appellant the two went their separate
ways
thereafter. In short therefore his evidence is that he did not have
any sexual intercourse with her whether with or without
her consent.
[15] The court is to determine whether or not the Appellant had
sexual intercourse with the Complainant against her will.
[16] It is common cause that the Appellant and the Complainant know
each other very well, they saw each other on 8 April 2006,
they spoke
and walked together.
[17] The evidence of the Complainant in so far as the act of rape is
concerned is indubitably that of a single witness. It is trite
that
the evidence of a single witness especially of a child should be
approached with great circumspection.
Section 208
of the
Criminal
Procedure Act 51 of 1977
provides that a court may convict a person
on the proviso that it is satisfied that the evidence of the single
witness is reliable
and satisfactory in material respects.
[18] When convicting the
Appellant the court
a
quo
was swayed that
the evidence of the Complainant was reliable and satisfactory in
material respects notwithstanding that she was
a single witness.
[19]
In
the case of
R
v Mokoena
1932
OPD 79
at 80, which has been followed many times and affirmed in the
Appellate Division (see
S
v French-Beytagh
1972
(3) SA 430
(A) at 446A) it was said that:
“
The
uncorroborated evidence of a single competent and credible
witness...should only be relied upon where the evidence of the single
witness is clear and satisfactory in every respect
.”
See
also
S
v Sauls and Others
1981 (3) SA
172
(A) at 180E-G.
[20] The magistrate was alive to the fact that the
evidence of the Complainant was to be approached with some degree of
vigilance.
The following factors are very pertinent:
20.1 The Complainant knows the Appellant very well;
20.2 No one compelled or persuaded her to implicate the Appellant;
20.3 She used the first reasonable opportunity to report the
incident.
[21] The question of identity cannot feature since both parties know
each other very well. The Complainant had a choice whether
to report
this to her mother or not. She voluntarily told her mother that the
Appellant kidnapped her, took her to Mlungisi’s
shack where he
had a penetrable sexual intercourse with her against her will.
[22] The Appellant holds the view that the Complainant’s
failure to report the incident to Mlungisi’s immediate
neighbour
and the couple that lived in the garage whom she claims to
have known should have been regarded adversely against her by the
magistrate.
The point is that the Complainant was 14 years old and
therefore should be judged in accordance with a thinking standard of
a person
of that age.
[23] She states that she did not want to tell the male person about
the rape in case he would tell Mlungisi. Her failure to report
to the
couple in the garage is also understandable and can be expected of a
14 year old child because rape is disconcerting and
embarrassing, one
that a person does not readily share with any member of the public.
This does not only happen with children but
also with women who are
of age.
[24] Thus it is perfectly logical why her mother under the
circumstances became the first person to whom she confided. Moreover,
she did this on the very same day. The criticism would conceivably be
justified if she only did so a day or two after the incident.
[25] It is also apparent from the J88 that she also informed Dr
Bomvana that she was raped by the Appellant and the doctor recorded
it as such. There is therefore consistency in what she has reported.
The criticism in my opinion is rather gratuitous.
[26] The respondent also points
out that according to the evidence of the mother of the Complainant,
the latter reported to her
that she was ‘
grabbed
and dragged into a shack
’
whereas she testified that the Appellant took her against her will
and they walked side by side until they reached Mlungisi’s
shack where she was forced into the shack.
[27] The Complainant conceded that her choice of words could have
been wrong. In my opinion her concession should take care of
that
criticism. The point is that the Complainant herself testified that
she was forced to do what she did. Besides the Appellant
himself
agrees that he was in the company of the complainant on that day.
[28] I do not think it is fair to attribute the discrepancies in the
time of the occurrence of the rape to the Complainant. It
is Dr
Bomvana who wrote that the Complainant was raped at midnight but she
has throughout been unswerving that she was kidnapped
at midday and
that the rape occurred between that time and 18h00.
[29] It is relevant to add here
that it is trite that it is not necessary for the State to prove its
case beyond all doubt. The
case of
S
v Van As
1991 (2) SACR
74
(W) finds application here.
[30] I regard the reference to midnight as a mistake by Dr Bomvana or
even the Complainant herself. What is more is that one can
easily
confuse midnight and midday. The Appellant corroborates the
Complainant’s evidence that he met her during the day
and her
mother too says that she arrived home at approximately 18h00. The
rape could not therefore have occurred at midnight.
[31] In evaluating the evidence
presented, the Court must not decide the matter in a piece meal
fashion but all the evidence presented
must be taken into account.
See in this regard,
S
v Radebe
1991 (2) SACR 166
(T) and
S
v Van Der Meyden
1999
(1) SACR 447
(W) at 449j-450b.
[32] The evidence of the Complainant viewed in its entirety is
reasonably possibly true whereas one cannot say the same with that
of
the Appellant. The Appellant’s evidence is simply that he knows
nothing about the rape. This is not satisfactory at all.
The question
is why would a 14 year old falsely accuse a person that she knows,
one whose uncle has an intimate relationship with
her mother and one
who is far older than her for rape.
[33] While the evidence of the Complainant is satisfactory for
purposes of the conviction of the Appellant one cannot but point
out
that the Respondent has in many respects failed to discharge its
duties. It failed completely to secure the evidence of T albeit
that
the evidence is that T would have been an unwilling and probably also
unco-operative witness because she is a drinking friend
of someone
who knows the Appellant.
[34] The
evidence of the first person who came into contact with the
Complainant and the couple in the garage would have been extremely
valuable. The Respondent has furnished no reasons why the attendance
of these witnesses was not secured by way of a subpoena.
[35] That said, however, the evidence of the Complainant and the
other witnesses viewed in its totality remains more probable than
that of the Appellant. In the result the respondent has successfully
managed to discharge its onus beyond reasonable doubts and
the appeal
cannot succeed. Accordingly, the following order is made:
The appeal is dismissed.
The judgment on conviction of the court a quo is confirmed
B MASHILE
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
I agree
SA
THOBANE
ACTING JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
Counsel For Appellant: Adv. C Xamsana
Instructed by: Legal Aid Board South Africa
Counsel For Respondent: Adv. R Ndou