About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2015
>>
[2015] ZASCA 26
|
|
Tofa v S (20133/14) [2015] ZASCA 26 (20 March 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
NOT
REPORTABLE
Case No: 20133/14
In the matter between:
KHOLILE JACKSON
TOFA
...................................................................................
APPELLANT
and
THE
STATE
..............................................................................................................
RESPONDENT
Neutral citation:
Tofa v The State
(20133/14)
[2015] ZASCA 26
(20 March 2015)
Coram:
Mpati P, Majiedt JA, and Schoeman AJA
Heard: 16 MARCH 2015
Delivered: 20 MARCH 2015
Summary:
Rape
conviction – whether guilt proved beyond reasonable doubt on
evidence of a single witness – application to adduce
further
evidence – principles restated.
ORDER
On appeal from:
High Court, Free State Division,
Bloemfontein (Lekale J and Zietsman AJ, sitting as court of appeal):
(1) The application
to adduce further evidence is dismissed.
(2) The appeal
against conviction is dismissed.
JUDGMENT
Majiedt JA (Mpati P and Schoeman AJA
concurring):
[1] This is an appeal against an order
of the High Court, Free State Division, Bloemfontein (Lekale J and
Zietsman AJ, sitting as
a court of appeal), dismissing an appeal to
it against the conviction of the appellant, Mr Kholile Jackson Tofa,
on a count of
rape in the Bloemfontein Regional Court. There is also
an application before us to lead further evidence. The high court
granted
leave to appeal to this court and, although the application
to adduce further evidence was not before it, expressed the view that
this court should consider that application together with the appeal.
It is convenient to consider that application first.
[2] The appellant placed an affidavit
from the complainant before the high court. That affidavit
purportedly showed that the complainant
admitted that she had not
been raped. In an opposing affidavit the complainant, Ms N[…]
C[…] B[…], disputed
the authenticity of her alleged
affidavit and pointed out that her surname had been misspelt as
‘Bh[..]’ in it, whereas
her surname was ‘B[…]’.
The policeman who is alleged to have commissioned the disputed
affidavit, Constable
Sabata Motjetje, also deposed to an affidavit.
In it he denied any knowledge of the statement or that he knew the
complainant prior
to meeting her when a State advocate set up a
meeting with the two of them to clarify the disputed affidavit.
[3] A brief recital of how the matter
proceeded in the high court is necessary. The appellant, who was
legally represented at all
times, was convicted of rape on 4 March
2011 and sentenced to 10 years’ imprisonment on 5 April 2011.
On the last-mentioned
date the regional magistrate refused his
application for leave to appeal against conviction and sentence. On
21 November 2011 the
high court (Musi J and Kubushi AJ) granted leave
to appeal to the high court on petition. The appellant was granted
bail pending
his appeal, which was heard on 3 June 2013 but without
an accompanying application to lead further evidence. The appeal was
dismissed
by Lekale J and Zietsman AJ. On 25 July 2013 the matter
came before Moloi J as duty Judge, who granted leave for it to be set
down
before the Full Court to consider the relief sought, namely a
‘rescission’ of the judgment on appeal by Lekale J and
Zietsman AJ. The Full Court (Kruger J, Van Zyl J and Molemela J)
dismissed this extraordinary application and postponed it to 1
November 2013 for hearing by Lekale J and Zietsman AJ as part of the
application for leave to appeal. We do not have the reasons
(if any
had been given) for the orders issued by Moloi J and by the Full
Court before us. But it does appear as if the Full Court
dismissed
the application before it primarily on the basis that the appellant
sought to introduce a civil law remedy in criminal
proceedings. The
appellant’s bail was extended to 1 November 2013, on which date
the hearing was postponed to 29 November
2013 and bail was further
extended. Lekale J and Zietsman AJ granted leave to appeal against
conviction to this court but regarded
themselves as
functus
officio
as far as the application for leave to adduce further
evidence was concerned. They thought it proper that this court should
deal
with that aspect on appeal.
[4] The test for the hearing of further
evidence on appeal is well established. The requirements are:
(a) There should be
some reasonably sufficient explanation, based on allegations which
may be true, why the evidence which it is
sought to lead was not led
at the trial;
(b) There should be
a
prima facie
likelihood of the truth of the evidence;
(c) The evidence
should be materially relevant to the outcome of the trial.
See:
S v de Jager
1965 (2) SA 612
(A) at 613C-D;
S v Ndweni & others
1999 (4) SA 877
(SCA)
at 880D.
[5] The power to receive further
evidence on appeal is sparingly exercised; further evidence will only
be allowed in exceptional
circumstances so that there can be finality
in cases –
De Jager
at 613A. The present application
does not meet the first two requirements above. In his affidavit the
appellant says that, while
in prison, he was visited by his relatives
who conveyed to him that the complainant wanted to recant her
testimony. What is glaringly
absent is an identification of these
relatives so that the State could follow this up. Also lacking is the
date on which this information
became available to the appellant.
This has a material bearing on the first requirement. The evidence
was available when the appeal
was heard in the high court and yet
there was no application for it to be led. We have not been given any
explanation for this
omission. This dearth of detail negated the
State’s ability to follow up these allegations. As it turned
out, the State did
follow up where it could, namely in respect of the
alleged recanting affidavit of the complainant, which is what I
discuss next.
[6] The affidavits of the complainant
and Constable Motjetje cast great doubt on the authenticity of the
alleged recanting affidavit.
And the misspelling of the complainant’s
family name exacerbates the matter. There is a strong suspicion that
this new evidence
is a fraudulent fabrication, but it is not
necessary to make a finding in this regard. It suffices to hold that
the application
does not meet the first two requirements set out in
para 4 (a) and (b) above and it falls to be dismissed.
[7] With regard to conviction, the
thrust of the appellant’s attack was that the complainant’s
testimony lacked credibility,
that no reliance can be placed on her
as a single witness absent any acceptable corroborating evidence and,
lastly, that the appellant’s
version was reasonably possibly
true. The trial court erred in accepting the complainant’s
evidence and rejecting his, so
the appellant contended. The salient
facts were briefly as follows (most of the facts were common cause):
The appellant and
the complainant lived in the same street and were known to each
other. The complainant bought liquor from the
appellant (who ran a
shebeen) on several occasions. On the date and at the place stated in
the charge sheet the parties had sexual
intercourse at the
appellant’s house. The appellant alleged that this was
consensual, whereas the complainant’s version
was that it was
not. Immediately thereafter, the complainant went to her mother’s
house and reported that the appellant had
raped her (her mother
confirmed this report). Thereafter she laid a complaint with the
police and she was medically examined. The
J88 medical report
recorded no visible physical injuries, except for a superficial
abrasion on the fossa navicularis which was
indicative of probable
penetration. The appellant’s version was that he and the
complainant had been in a clandestine love
relationship for over two
years without there ever having been any sexual intimacy involved
(the appellant was a married man at
that time). On the evening in
question, on the appellant’s version, she came to his house to
buy beer and sexual intercourse
occurred at her instigation and
insistence. On his version the complainant made advances and although
he initially showed no interest,
he later succumbed to her wiles, due
to the fact that his wife was not at home. The complainant had a
completely different version.
According to her, the appellant had
pulled her into a bedroom, threw her on a bed, then proceeded to
undress her and thereafter
raped her.
[8] It is trite that an appellate court
has limited powers to interfere with the factual findings of a trial
court, which are presumed
to be correct unless they are clearly wrong
ex facie
the record; see –
S v Francis
1991 (1)
SACR 198
(SCA) at 204e-d. While it is true that the complainant’s
evidence was not without blemishes, it was not nearly of such poor
quality that it warranted outright rejection. The primary issue was
that of consent. It matters therefore not that she was not
fully
consistent about the time she had arrived at the appellant’s
place, whether she had an empty beer bottle with her or
not and on
the minute detail of how sexual intercourse had occurred. Of more
materiality were the events afterwards. She walked
a long way to
report the rape to her mother. And she was in a tearful state when
she arrived at her mother’s house.
[9] The appellant’s version, on
the other hand, was correctly found to be false beyond reasonable
doubt. He would have the
trial court believe that, while in a secret
love relationship for two years with the complainant, they had not
been sexually intimate
until the evening in question. When that
watershed moment did eventually arrive, the complainant quite
remarkably cried rape. And
his explanation that the complainant had
been paid R2 000 by a Ms Sophie Malisa to lay a false charge
against him beggars
belief. Ms Malisa held a grudge against him, said
the appellant, due to a previous incident when Ms Malisa’s
daughter, Mandwa,
had died at the appellant’s hands. The
appellant was charged with her murder but was acquitted on the basis
of self- defence.
The fatal flaw in this explanation is the fact that
the complainant made the rape allegation that same night, having gone
directly
from the appellant’s dwelling to that of her mother.
On the undisputed facts there had been no opportunity for the
complainant
to have met with Ms Malisa before making the rape report,
to hatch this conspiracy against him.
[10] In the circumstances, the regional
magistrate’s findings are unassailable. The appeal must fail.
The following order is issued:
1.
The application to adduce further evidence
is dismissed.
2.
The appeal against conviction is dismissed.
________________________
S A
Majiedt
Judge
of Appeal
Appearances
For the Appellant: P W Nel
Instructed by:
Bloemfontein Justice Centre
For Respondent: W J Harrington
Instructed
by:
The
Director of Public Prosecution, Bloemfontein