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[2013] ZAGPJHC 283
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Pitsa v S (A253/2012) [2013] ZAGPJHC 283 (8 November 2013)
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REPUBLIC OF SOUTH AFRICA
IN THE SOUTH GAUTENG HIGH COURT
JOHANNESBURG
CASE NO: A253/2012
8 November 2013
In the matter between:
LLOYD
PITSA
.......................................................
Appellant
and
THE
STATE
......................................................
Respondent
J U D G M E N T
MASHILE, J:
[1] The Appellant, a 42 year old man, stood before the Regional Court
of Gauteng held at Wynberg accused of rape read with Section
51 and
52 of the Criminal Law Amendment act No. 105 of 1997 and assault with
intent to do grievous bodily harm. The Complainant
was a 26 year old
lady well-known to him.
[2] The Appellant who was legally represented throughout the
proceedings pleaded not guilty to both charges and tendered no plea
explanation. On 13 July 2009 he was nonetheless found guilty on both
charges, convicted and sentenced. He was also declared unfit
to
possess a firearm in terms of
Section 103
of the
Criminal Procedure
Act No. 51 of 1977
.
[3] On 20 July 2011 the trial court sentenced him to an effective
direct imprisonment of 10 years. The Appellant launched an
application
for leave to appeal against both conviction and sentence
on the same day. Believing that it was possible that another court
could
find differently, the trial court gave him leave to appeal
against both.
[4] The Appellant admits that he had sexual intercourse with the
Complainant but denies that such sex came about without the
Complainant’s
permission. Put differently, the sexual
intercourse was with the consent of the Complainant. The issue to be
determined is therefore
whether or not the sexual intercourse was
with the permission of the Complainant.
[5] It is trite that the onus of
proving the guilt of the accused beyond reasonable doubts rests on
the State. Conversely, an accused
person will be entitled to an
acquittal if his version is reasonably possibly true. See in this
regard
S v Trickett
1973 (3) SA 526
(T).
[6] It
is common cause that the evidence of the Complainant is that of a
single witness in so far as the actual rape itself is concerned.
Section 208
of the Criminal Procedure act No. 51 of 1977 provides
that it is competent to convict on the evidence of a single witness
provided
it is satisfactory in all material respects.
See
R v Mokoena
1932 OPD 79
at 80,
S
v
ffrench-Beytagh
1972 (3) SA 430
(A) at 446A and
S
v Sauls and Others
1981 (3) SACR 172
(A)
.
The following paragraph of Leon J
in
S
v Ganiel 1967 (4) SA
203
(N)
is also relevant:
"A
Court should approach the evidence of a single witness with caution
and should not easily convict upon such evidence unless
it is
substantially satisfactory in all material respects or unless it is
corroborated."
[7] When embarking on the process of discharging its onus, the
Respondent called 4 witnesses including the Complainant herself.
These witnesses are, the Complainant, her grandmother, D S and Dr
CatherineJoan Knight. The Appellant testified on his own behalf
and
did not call any witnesses to give evidence in support of his case.
[8] The Complainant testified that:
8.1 She is a twenty-six year old lady with no children. On Monday
morning, the 3
rd
of September 2007, the Appellant visited
the Complainant at her home. The Complainant showed him pictures of
hair styles and expressed
a wish to go to a hair salon in Yeoville.
The Appellant suggested a salon in Pretoria, which he said would do a
perfect job for
the style that the Complainant wanted.
8.2 The Appellant and the Complainant drove to Pretoria in the
Appellant’s motor vehicle. The Appellant then left her at
the
salon to do her hair while he went to check on a friend in the area
of Pretoria.
8.3 He came back at 19h00 but the two had to wait for his friend for
approximately two and a half hours before leaving.
8.4 They drove back into the direction of Johannesburg using Kyalami
Road. The Complainant was tired with intermittent headaches
being the
after effects of the platting of her hair and was drifting in and out
of sleep.
8.5 The Appellant asked her if they could go into the Kyalami Race
Track. When she asked him what they were going to do he said
that he
wanted to chat. Her response was that they could talk while driving
home because the road ahead was still long.
8.6 The two nonetheless ended up inside the race track where the
Appellant skipped over from his seat to the passenger side where
the
Complainant sat. He showed aggression as he did so, pushed the seat
backwards, locked the passenger door and began to kiss
her
forcefully.
8.7 When she screamed and tried to resist her he twisted her arm,
throttled her and knelt on her thighs causing her unbearable
pain to
subdue her.
8.8 Using his one hand, he unzipped her fitting jeans ripping them in
the process. He also lowered his pants, took out a condom
and slid it
into his penis and inserted it into her vagina. He had sexual
intercourse with her for about 20 minutes.
8.9 The passenger seat was slightly tilted but the Complainant
maintains that she was still in a sitting position when the sexual
intercourse started and finished.
8.10 The Appellant asked her to supply him with a tissue to wipe off
his penis when he finished. She did not have any and the Appellant
just pulled out his penis. Thereafter he went outside to throw the
condom into a dustbin.
The two then drove out of the race track and were once again on
route to Soweto. The Appellant asked if he could take the
Complainant to her boyfriend whereupon she told him to drop her off
at home.
8.12 The Appellant left her at home and drove off. He sent her sms
messages apologising for what happened. She opened the door
and noted
that her grandparents were in their bedroom and gave a signal that
she was home. She did not tell them about the incident
because she
did not want to worry them.
8.13 She reported the alleged rape to the Appellant’s nephew
but apparently he did not want to get involved. She then called
D S
but he was on voice mail. She sent him an sms message and he called
her back the following morning.
8.14 The following morning she reported her alleged ordeal to her
grandmother and then left to lay a charge of rape against the
Appellant at the Meadowlands Police Station.
8.15 She was advised to report it at a police station nearest where
the incident occurred. The incident having taken place in the
area of
Kyalami, she went to lay a charge of rape at the Midrand Police
Station. She then went to the Sunninghill Clinic where
she was
medically examined by Dr Catherine Joan Knight.
[9] The second witness who took the stand to give evidence in support
of the Complainant was her friend, D S. His evidence was
that:
9.1 He is a project consultant for the Department of Health for
Global Fund and he is a friend of the Complainant.
9.2 He received an sms during the night but could not see it until
the morning because his mobile phone was off. He subsequently
received a call from the Complainant. She told him that she was raped
by the Appellant.
9.3 The Complainant related how the Appellant came to rape her. The
Appellant took her to a hair salon in Pretoria where he left
her for
virtually the entire day.
9.4 He came back at about 19h00. They drove back to Soweto using
short cuts and she was drifting in and out of sleep as she was
tired
and was experiencing headaches from the platting.
9.5 She told him that the motor vehicle suddenly stopped at a dark
spot, a place she did not recognise, but could tell that it
was
somewhere in Midrand. She demanded to know why he stopped and he told
her that he wanted to chat. Her response was that they
could do so
while the motor vehicle was in motion.
9.6 He insisted on having a word with her and a scuffle ensued as she
was not prepared to have any of it. She realised that he
wanted to do
something and she then said to him that she trusted that he did not
want to do what she thought he wanted to do.
9.7 He took off her jeans and began to have sexual intercourse with
her without her permission. When he finished they drove to
Soweto but
prior to dropping her off at her home he went pass Diepkloof to see
his friend. Once that was done he took her to her
house and left.
9.8 D S did not see any visible injuries on the Complainant.
[10] The third State witness, Dr Catherine Joan Knight, testified
that:
10.1 She is a medical doctor having qualified as such from the
University of Cape Town. She acquired some experience in the
examination
of rape victims in 2007 during which year she worked in
various casualties around Johannesburg including Union and
Sunninghill
Clinics. At the time of the examination she was employed
at the Sunninghill Clinic. Her qualifications as a doctor were not
challenged.
10.2 On 4 September 2007 she examined the Complainant and recorded
her findings on the J88. She noted that there was ‘increased
viability’ and tenderness of the opening of the vaginal canal.
She also recorded that there were no other physical injuries
other
than as aforesaid.
10.3 She concluded by stating that her findings correlated with
vaginal penetration by the penis of the perpetrator.
10.4 She examined the Complainant from head to toe and did not pick
up any injuries whatsoever. She did not notice any bruises
on the
Complainant’s thighs or throat. She did not note any sore arm.
10.5 She could not remember whether or not the Complainant told her
about her sore arm and thighs.
[11] The grandmother was the last to testify in support of the
State’s case and she stated the following:
11.1 She knows the Appellant because he attended church with her
daughter, M. The Complainant is the daughter of G, one of her
daughters. The Appellant was a family friend and would visit from
time to time.
11.2 She had known the Appellant since 1995. The Appellant told them
that he is married and that he used to live in Diepkloof but
that he
and his wife had since relocated to Pretoria.
11.3 The Appellant used to give the Complainant driving lessons. The
Complainant had a boyfriend and his name is Tumi. The relationship
with Tumi endured until the rape incident.
11.4 According to her the Complainant and the Appellant were not
involved in a love relationship and the two never had sex in her
house. She denied that her husband ever discussed ‘lobola’
arrangements with the Appellant. She was adamant that if
he did, it
must have been a joke because such arrangement could only be done
with parents of the Complainant.
11.5 She confirmed that on 3 September 2007 the Complainant left for
Pretoria with the Appellant and came back at about midnight.
She told
the trial court that she opened the door for the Complainant that
night.
11.6 The Complainant was somewhat distraught when she arrived home
that night.
11.7 The Complainant recounted the events of the previous night to
her the following day and told her who the culprit was.
[12] Finally the Appellant took the stand and said:
12.1 He visited the Complainant on 3 September 2007. She wanted to do
her hair and he suggested and offered to drive her to a salon
in
Pretoria, which he thought would be the best to produce the style
that she showed him.
12.2 He dropped her off but came back later in the day at about 19h00
to pick her up. They drove back to Johannesburg using the
Kyalami
Road. They spoke about various things but mainly about the
Appellant’s wife.
12.3 He suggested to her that they could have sexual intercourse
since it was quite a while since they last did it. He recommended
that they could go inside the race track as it was safe. She agreed
but specifically requested that the Appellant should be quick.
12.4 They went through the security check point at the race track,
found a secluded area, had sex and left.
12.5 They drove out of the race track and along the way the
Complainant remarked that the Appellant was very selfish in that he
was very quick to come when she did not.
12.6 She also added that he was happy because he was going home to be
welcomed by his wife while she had no one to go to.
12.7 He dropped her off at her grandparents’ house and left.
[13] Having heard the evidence of the Complainant the trial court
resolved that her evidence, considered in conjunction with the
other
State witnesses, was sufficient and could therefore be relied upon to
find the Appellant guilty on the two counts.
[14] Counsel for the defence ardently argues that the evidence of the
Complainant does not bear the hallmarks of the single witness
as
envisaged in
Section 208
of the Criminal procedure Act No. 51 of 1977
in that it was not satisfactory in all material respects and was not
corroborated.
[15] The following emerged from the Complainant’s
evidence-in-chief and cross-examination:
15.1 The Appellant met with his friend shortly after he had picked up
the Complainant from the salon in Pretoria. When cross-examined
by
the defence Counsel however, the Complainant stated:
15.1.1 the appellant’s friend did not turn up;
15.1.2 did not see any person;
15.1.3 could not remember; and
15.1.4 could not recall whether or not the Appellant met with anyone.
15.2 She stated that she fell in and out of sleep and suddenly when
she became fully conscious she realised that they were in Kyalami
at
the race track. For some reason she left out the following:
15.2.1 While driving towards Kyalami the Appellant told her that he
did not want to be with his wife whereupon she rendered an
advice.
15.2.2 She was awake when she and the Appellant arrived at the
Kyalami Race Track and that they went through the security check
point when they entered.
[16] I agree with the defence Counsel’s argument that the
omissions, it would appear, are meant to be congruent with her
assertion that she did not know that the Appellant wanted to have
sexual intercourse with her. She claims to have been surprised
to
find out that she was at the Kyalami Race Track when her evidence
suggests that she knew precisely where she was.
[17] It is undoubtedly improbable that the Appellant could have
successfully penetrated the Complainant sexually in the manner
described by her. When one contrasts how she alleges the penetration
happened with how the Appellant explains it, the probabilities
tilt
in favour of the explication proffered by the Appellant.
[18] The Complainant’s evidence is that prior to the sexual
penetration the passenger seat where she sat was somewhat slanted.
All that the Appellant did was to move it backwards. The Appellant
then unzipped her jeans and pulled them off tearing them in
the
process. This occurred while she was in a sitting position and it is
in that position that the sexual intercourse took place.
It is hard
to comprehend how penetration of her vagina took place if she was
sitting.
[19] It is improbable that the Appellant with one hand throttling the
Complainant could manage to do the following with the other:
19.1 Unzipped her jeans and pulled them off ripping them in the
process.
19.2 Took a condom from his pants, pulled off his pants while still
holding the condom, opened it and slid his penis into it.
19.3 With one hand, split her thighs and had sexual intercourse with
her for about 20 minutes.
[20] The Appellant on the other hand states that the back of the seat
was reclined with the whole seat pushed backwards. It was
while in
that position that the two began kissing, culminating in sexual
intercourse to which the Complainant responded. This is
a more
probable version as it accounts how the Appellant was able to
penetrate her vagina and had sex.
[21] Counsel for the defence points out that if the Appellant had a
criminal mind it is more unlikely that the Kyalami Race Track
would
have been his preferred spot. In support of this is the fact that the
place has security guards the chances of being caught
were more
distinct especially if his victim, the Complainant, were to defy his
attempt as is her evidence. It is more probable
that both chose the
spot because it was safe and secure.
[22] The use of a condom also suggests that the parties anticipated
that they would at some stage that day engage into sexual intercourse
whether at the place where it occurred or at any other. Aberrant and
somewhat uncharacteristic of a person who had just viciously
went
against the wishes of a lady is that he in fact asked for a tissue as
he withdrew from her.
[23] I am not suggesting that rapists do not or cannot utilise
condoms but this evidence viewed holistically and in conjunction
with
other evidence of the State witnesses makes it improbable that a
rapist would be so considerate.
[24] The Complainant’s failure to escape when she was
temporarily alone in the vehicle is totally understandable especially
to a person who was not familiar with the surroundings. An assailant
in the position of the Appellant could easily have caught
her again
before she reached the security guards and the consequences could
have been horrendous. The criticism levelled at her
in this respect
is rather gratuitous.
[25] It remains strange and of course surprising that she did not
alert the security guards when she and the Appellant drove out
of the
race course later. This is bound to cast doubts on her evidence.
[26] The defence Counsel also points out that her evidence relating
to the torn jeans is also not cogent. She admitted that the
jeans
were made of the normal tough jean material. If that is so it is
difficult to envisage how they came to be torn by the Appellant
when
pulling them down. In any event the grandmother did not notice any
torn jeans when she opened for her, adds the defence Counsel.
[27] Moreover, the Complainant claims to have handed them over to the
police but they were not presented to court as exhibit. For
this
reason the defence Counsel argues that the trial court should have
drawn an adverse inference. I cannot but agree with the
defence
Counsel. If they were indeed ripped, the police’s failure to
bring them before the trial court is staggering. Needless
to add that
the evidence was critical and could affect the outcome of this case.
[28] It is settled that naturally one would expect a rape victim in
the position of the Complainant to make a first report to people
close to her such as parents or siblings or a friend. Her action in
this regard leaves one befuddled. Her evidence is that she
is quite
close with both her grandparents and parents yet, she did not tell
her grandmother when she got home that night choosing
instead to
report to the Appellant’s nephew to whom she was not close at
all.
[29] Her explanation for this atypical behaviour is that she did not
want to worry her old grandparents. Shockingly the very next
morning
she confided in her grandmother albeit that it was after she had
called D S. Similarly, her reason for not telling her
parents about
her ordeal in the hands of the Appellant is also startling. Her
evidence is that her parents were not accessible.
There is no
evidence of her attempting to reach them at all.
[30] The trial court also overlooked the serious contradiction
between the Complainant and her grandmother. The Complainant’s
testimony is that she opened the door on her own when she arrived
home that night. Both her grandparents were in their bedroom.
The
Complainant’s evidence is not corroborated by that of the
grandmother. According to the grandmother she opened the door
for the
Complainant and noted that she was distressed.
[31] The trial court underestimated the significant contradiction in
the testimony of these two witnesses and held that the Complainant’s
omission to report to her grandmother on her arrival could not be a
reason to disallow her evidence. The defence Counsel submitted
that
this material contradiction raises the following:
31.1 The Complainant’s failure to report her alleged rape to
her grandmother whom she likes and trusts electing instead to
report
to a male person who is related to the Appellant and who is virtually
a stranger to her is perplexing.
31.2 It is also surprising that she did not tell the trial court that
her grandmother opened the door for her.
31.3 Her grandmother told the trial court that she noticed that her
granddaughter was rather upset yet she never bothered to find
out
what the problem was. That is also bizarre because one would have
expected any concerned parent to have been inquisitive. Short
of
this, one would have predicted the grandmother to have been
considerate and comforting to her without necessarily becoming
intrusive.
[32] The trial court indisputably erred by disregarding the
contradictions, omissions and improbabilities in the testimony of the
Complainant holding, instead to the contrary, that her evidence was
probable and not contradictory.
[33] Notwithstanding that D S would not have been the person to whom
the Complainant would have reported the alleged rape, the
discrepancies between their evidence is bewildering given that D S
was the author of his own statement. It is rather puzzling that
the
trial court concluded that his statement was a summary of the
Complainant’s testimony especially in view of the glaring
contradictions such as:
33.1 D S’s evidence is that the Complainant called him in the
morning whereas the Complainant’s testimony in this respect
is
that he called her upon receiving her message.
33.2 The Complainant told D S that the vehicle stopped at a place
which she did not know whereas she told the trial court that
the
vehicle stopped at Kyalami Race Track as she saw a big sign board.
33.3 The appellant was aggressive throwing insults at her when he
hopped over from the driver’s seat to her side. He then
began
to kiss her forcefully, choked her and twisted her left arm to
restrain her resistance. D on the other hand told the trial
court
that a brief fight which was not accompanied by violence took place
between the two.
33.4 The complainant did not tell the trial court that they stopped
in Diepkloof where the Appellant wanted to see his friend prior
to
taking her home that night whereas it was D S’s evidence that
the Complainant told him that she and the Appellant did
stop in
Diepkloof to see his friend.
[34] The trial court came to the conclusion that the lack of detail
in the complainant’s report to D does not render it improbable.
The trial court held so even on the face of such testimony having
been presented principally to demonstrate the complainant’s
consistency. The trial court clearly erred in this regard.
[35] The evidence of the doctor, Catherine Joan Knight, is of immense
significance as it was meant to corroborate forceful vaginal
penetration and that the Complainant sustained certain injuries
inflicted by the Appellant while in the process of restraining
her
resistance
[36] Dr Knight noted on the J88 that her finding correlates with
‘vaginal penetration by the penis of the perpetrator’.
This is only in respect of the alleged rape and she did not record
any injuries of whatever nature in so far as the charge of Assault
with Intent to do Grievous Bodily Harm is concerned. This is so even
though there was a space provided for the capturing of such
information.
[37] When Dr Knight gave evidence however she told the trial court
that there could have been forceful penetration in sexual
intercourse.
Needless to state that this constituted a sharp
departure from what she recorded on the J88. She added that she held
this opinion
because the Complainant’s vagina exhibited some
increased ‘viability’ damage
[38] According to her ‘increased viability’ means
inflammation possibly accompanied by some redness that could be
caused by forceful sexual penetration. Strangely when Dr Knight was
cross-examined she could not state whether or not there was
any
redness, could not recall precisely what she found and that she only
has the findings as captured in the J88.
[39] She told the trial court that it was her hypothesis that the
‘increased viability’ was caused by forceful vaginal
penetration. She also stated that there would be more injuries in a
non-sexually active person but could not tell the trial court
why
there were not more injuries in this specific case. At some point in
her evidence she said that she was not really an expert
in these
types of cases yet she was called in her capacity as such.
[40] The trial court should have
discarded her evidence immediately when she confessed that she was
not really an expert in these
kinds of cases particularly as she was
specifically called as such. The trial court therefore erred in
relying on her evidence
as that of an expert. The court can only rely
on an expert witness’s opinion if the witness’s reasoned
conclusion is
based on certain facts or data which are either common
course or established by his own evidence or that of some other
competent
witness.
S v Zuma
2006 (2) SACR 191
(W)
is pertinent in this regard.
[41] Dr Knight having found that there was vaginal penetration it
becomes rather illogical to conclude that there was forceful
vaginal
penetration. The conclusion that she reached was not supported by her
findings as recorded in the J88. Her evidence was
so flawed that the
trial court should have ignored it completely. In fact, there is
substance in the defence Counsel’ submission
that the finding
of vaginal penetration and the absence of any other injuries backs up
the appellant’s version.
[42] In so far as the evidence of the grandmother is concerned,
contrary to what the trial court said, it was common cause that
the
Appellant was a family friend and that the Complainant had a
boyfriend known as T. So, it was no corroboration of the
Complainant’s
evidence at all. When asked whether she knew that
the Complainant and the Appellant were involved in a love
relationship she said
that as far as she was concerned the two were
not but later stated that she did not know.
[43] It is entirely logical that the nature of the relationship of
the Appellant and the Complainant was known only by them or
one or
two other people. It could not have been an open relationship for
fear that society would look down upon them with disparagement
knowing that the parties were cheating on the Appellant’s wife
and T, the Complainant’s boyfriend. Accordingly, the
grandmother’s lack of knowledge of such relationship makes
absolute sense if viewed in that context.
[44] Turning to the evidence of the Appellant. The trial court came
to the conclusion that it was improbable that if the Complainant
and
the Appellant were involved in a sexual relationship, they would have
had sexual intercourse only three (3) times in that entire
period.
The Appellant’s evidence in this regard is that they had sexual
intercourse at the least not less than three times.
[45] The trial court also found that it was improbable that the
Appellant would have been contented with quick and very uncomfortable
sexual intercourse. Here the trial court forgot that according to the
Appellant the agreement with the Complainant was that the
sexual
intercourse had to be quick so that they could still get home in
time.
[46] The trial court also found it implausible that the sexual
intercourse happened in the manner sketched out by the appellant.
It
expressed this doubt because Dr Knight noted ‘increased
viability’ at the vagina. The finding of Dr Knight as recorded
on the J88 is that there was sexual penetration by the penis of the
Appellant and this is in complete harmony with the evidence
of the
Appellant.
[47] It also did not make sense to the trial court that the
Complainant would without any reason falsely accuse the Appellant of
this rape. According to the Appellant’s testimony the
Complainant could have been angry because the Appellant had made it
plain to her that he was not prepared to leave his wife overnight.
Secondly he also speculated that it could be that he had just
bought
a motor vehicle for his wife.
[48] The evidence of the
Complainant must be approached with great circumspection because it
is of a single witness and is not satisfactory
in all material
respects. The numerous intrinsic improbabilities, omissions and
contradictions in such evidence and the lack of
corroboration by
other witnesses fortify this court’s resolve to reject the
Complainant’s evidence as most improbable.
See
S
v Teixera
1980 (3) SA 755
(A) at 761
where
the following was stated:
“
I think I am stating the obvious in
saying that, in evaluating the evidence of a single witness, a final
evaluation can rarely,
if ever, be made without considering whether
such evidence is consistent with the probabilities
.”
[49] Contrasting the aforegoing with the evidence of the Appellant I
cannot but state that his version of what transpired that
night is
more probable. There were no inherent contradictions and omissions as
was the case with that of the Complainant. It must
be borne in mind
that it will be sufficient to acquit if the version of the Appellant
is reasonably possibly true. See S v Trickett
supra.
[50] With regard to the charge of assault with Intent to do grievous
bodily Harm, the State failed to adduce any evidence that
can sustain
a guilty finding at all. The only witness who could have corroborated
the testimony of the Complainant in that respect
was Dr Knight. Her
evidence relating to such injuries was dismally unpersuasive and the
least said about it the better. In addition
none of the other
witnesses noted any visible injuries.
[51] In the circumstances the State has failed to prove the guilt of
the Appellant on both counts beyond reasonable doubts. Accordingly
the appeal is upheld and I make the following order:
1. The order of the trial
court is set aside;
2. The Appellant is
discharged on both counts; and
3. The Appellant is
declared fit to possess a firearm.
B MASHILE
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
I agree
____________________________ SA THOBANE
ACTING JUDGE OF THE SOUTH GAUTENG HIGH COURT, JOHANNESBURG
Date Heard: 17 October 2013
Date of Judgment: 8 November 2013
Counsel for the Appellant: Adv. Rene Burger
Instructed by: Emile Viviers Attorneys
Counsel for the Respondent: Adv. MT Mushwana
Instructed by: Office of the Director of Public Prosecutions