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[2015] ZASCA 139
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NS v The State (20642/2014) [2015] ZASCA 139 (30 September 2015)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case
No: 20642/2014
In
the matter between:
NS
APPLICANT
and
THE
STATE
RESPONDENT
Neutral
citation
:
NS
v The State
(20642/2014)
[2015] ZASCA 139
(30
September 2015)
Coram
:
Ponnan, Theron, Swain and Mbha JJA and Baartman AJA
Heard
:
16 September 2015
Delivered:
30
September 2015
Summary:
Grant
of application for special leave to appeal in terms of
s 16(1)
(b)
of the
Superior Courts Act 10 of 2013
– manifest failure of
justice – appeal upheld – conviction of rape and sentence
of ten years’ imprisonment
set aside.
Order
On
appeal from:
Gauteng
Division of the High Court, Pretoria
(Potterill
J with Webster J concurring sitting as court of appeal).
1
The applicant is granted special leave to appeal in terms of
s
16(1)
(b)
of the
Superior Courts Act 10 of 2013
.
2
The appeal is upheld. The order of the court a quo is set aside and
substituted with the following order:
‘
The
appeal is upheld. The conviction of the appellant of rape by the
Regional Court, Ermelo and the sentence imposed pursuant thereto
is
set aside and the following order is substituted in its stead:
Accused
one is found not guilty and discharged.’
Judgment
Swain
JA
(Ponnan,
Theron and Mbha JJA and Baartman AJA concurring):
[1]
This
matter involves an application for special leave to appeal and, if
granted, the determination of the appeal itself. The application
for
special leave to appeal to this court in terms of
s 16(1)
(b)
of the Superior Courts Act 10 of 2013 (the Act), has its origin in
the conviction of the applicant before the Ermelo Regional Court
(Mpumalanga) on one count of the rape of a girl under the age of 16
years for which the applicant was sentenced to 15 years’
imprisonment.
[2]
An
application for leave to appeal to the Gauteng Division of the High
Court Pretoria, was refused by the magistrate. A subsequent
petition
to the high court was successful, and leave was granted to him to
appeal the conviction and sentence.
[3]
The
applicant’s
[1]
appeal
before the court a quo was partially successful. The conviction was
confirmed but the sentence imposed was altered to 10
years’
imprisonment.
[4]
On
19 September 2014 the court a quo erroneously granted the applicant
leave to appeal to this court against both conviction and
sentence,
when it no longer possessed jurisdiction to do so as the special
leave of this court was required at that stage.
[2]
[5]
The
applicant thereafter applied to this court for special leave to
appeal against his conviction and sentence in terms of s 16(1)
(b)
of the Act. In addition the applicant sought the following
declaratory relief:
a
An order declaring s 16(1)
(b)
of the Act inconsistent with the
Constitution and therefore invalid insofar as it requires the
applicant to meet the ‘special
circumstances’ threshold
required by the section.
b
An order declaring Supreme Court of Appeal Rule 6(5) inconsistent
with the Constitution and therefore invalid insofar as it prevents
the applicant from placing the record of proceedings before
this
court together with the present application.
[6]
On
25 November 2014 this court granted an order referring the
application for special leave to appeal for oral argument and
directed
the parties to be prepared if called upon to address the
court on the merits of the appeal. The applicant was also directed to
file the record and serve a copy of the application upon the Minister
of Justice and Constitutional Development (the Minister).
The
Minister was granted leave to intervene and if so advised defend the
constitutionality of these provisions. As a result, the
Minister has
intervened and filed submissions dealing with the constitutional
challenges raised by the applicant.
[7]
The
record of the proceedings has been filed. For the reasons which
follow, it is clear from the evidence that special circumstances
exist which merit a further appeal to this court. The prospects of
success are so strong that the refusal of leave to appeal would
result in a manifest denial of justice, if the applicant’s
conviction were allowed to stand. As a consequence it no longer
becomes necessary to consider the constitutional challenges raised by
the applicant.
[8]
The
central issue at the trial was whether the sexual intercourse which
the applicant admitted having had with the complainant was
consensual. In this regard the evidence of the complainant was
neither reliable, nor credible. The magistrate found that the
complainant’s
evidence was not satisfactory in all respects,
that she had lied about certain aspects of her version, that her
evidence was not
very clear, contained contradictions and she altered
her version of events. Despite these reservations the magistrate
found that
her version that she was raped, was corroborated by the
findings and opinion of a forensic nurse contained in a J88 report
which
was handed in by consent, as well as the evidence of an
independent witness, Mr [JS], who arrived on the scene. The high
court’s
approach to the matter was similar, finding that the
complainant’s evidence was not clear and satisfactory in every
material
respect, but that it was corroborated by the two sources of
evidence relied upon by the magistrate.
[9]
Before
examining the so-called corroborative evidence, it is necessary to
examine the complainant’s evidence. The most glaring
contradiction in her evidence is her implication of a third assailant
in the attack, in addition to a second (the second accused
in the
trial court). She alleged that both of these individuals had assisted
the applicant, who was the first accused, to rape
her. At the
commencement of the trial the prosecutor stated that the State
withdrew the charges against the third accused Mr [JCM].
[10]
Constable
[M], the arresting officer, gave evidence that he had arrested Mr
[JCM] because the complainant had pointed him out as
the person who
had assisted the second accused to grab her, put her on the ground
and hold her whilst the applicant was undressing.
The complainant in
her evidence stated that she did not see any persons other than the
applicant and the second accused. When asked
by the prosecutor
whether she had seen [JCM] on that day she replied ‘No, I did
not see him’.
[11]
This
change in the complainant’s evidence was not simply an
alteration in the role played by the erstwhile third accused in
the
alleged attack, but a removal of him from the scene entirely. Having
described to constable [M] the precise role he had played,
to then
deny that she had seen him, is only explicable on the basis of a
blatant lie. She either lied when implicating him, or
later when
exonerating him. In either event her credibility was seriously
undermined by this deliberate falsehood.
[12]
The
magistrate however in his judgment, rather than classifying this
change of evidence by the complainant as a lie, which seriously
affected her credibility, advanced a number of hypothetical
explanations for her conduct. At first the magistrate speculated that
she was intimidated, or that the erstwhile third accused’s
‘people’ had approached her. The magistrate then
speculated that the complainant did not recognise him, or perhaps did
not see him clearly. The magistrate then added the further
possibility that the complainant thought there were two persons
involved and not three. Finding that three persons were present,
because the applicant and the second accused said this was the case,
the magistrate then offered a further explanation for the
complainant’s
volte
face
,
namely that, the complainant gave her evidence through an
intermediary, and was not in court to see how many accused were
present.
Accordingly, so he stated, because only two individuals were
charged, the complainant in her childish innocence decided that she
must only talk about the two individuals and keep quiet about the
third assailant. The magistrate then added a further explanation,
namely that the complainant was traumatised and is a child. Such
hypothetical reasoning serves only to detract from the true enquiry,
namely the real weight that can and should be attached to the
complainant’s evidence in the light of all these blemishes.
[13]
The
court a quo cursorily dealt with this issue on the basis that it did
not appear from the record ‘why this [JCM] was not
a
co-accused’. The prosecutor however when opposing the
application for the discharge of the accused at the close of the
State case explained why this was so. She explained that she could
not comment why the complainant initially told the police there
were
three assailants, but later in her statement and when giving evidence
maintained there were only two.
[14]
I
turn to the corroborative evidence relied upon by the magistrate and
the court a quo. The J88 medical report compiled by the forensic
nurse contains the following conclusion: ‘History obtained is
consistent with findings. Fossa navicularis tears at 4, 5,
6, 7
o’clock. Cervix red and swollen up at the opening.’ It
was recorded that the complainant had sexual intercourse
ten days
prior to the incident. Although the defence admitted the truth of the
contents of the J88 form this did not include an
admission of the
complainant’s version of events in the form, nor that the
clinical findings were consistent with the complainant’s
version of events. The magistrate on the basis of these findings
concluded that although the complainant was only 15 years of age,
but
was sexually active, he did not expect there to be tears in her
vagina, if the sexual intercourse was consensual. There was
however
no evidence upon which the magistrate’s professed expectation
was based. All that the findings of the forensic nurse
corroborated
was that sexual intercourse had taken place which is consistent with
the applicant’s version.
[15]
It
was vital in this case to call the forensic nurse to give evidence,
to explain her conclusion and exclude any reasonable possibility
that
the physical evidence was equally consistent with consensual sexual
intercourse. This court has in the past expressed its
dissatisfaction
with the growing trend on the part of the prosecution, particularly
in cases of sexual assault, not to call the
medical expert who
examined the complainant and compiled the medical report.
[3]
The routine approach by prosecutors seems to be to obtain an
admission from the accused as to the findings in the report
ostensibly
to satisfy this vital part of the prosecution’s
case. The shortcomings in this lackadaisical approach are starkly
illustrated
by this case. The evidence of the forensic nurse to
explain her findings and deal with the issue of whether the sexual
intercourse
was consensual, could decisively have affected the
outcome. In the circumstances for the magistrate to rely upon the
bald and cryptic
conclusion in the J88 form, to corroborate the
unsatisfactory evidence of the complainant was unjustified. The court
a quo dealt
with this issue simply on the basis that it could not
find the conclusion of the forensic nurse that the physical evidence
was
consistent with the history of rape, to be illogical. The enquiry
however, was not whether it was illogical, but whether it was
reliable.
[16]
I
turn to the evidence of the witness, Mr [JS]. The magistrate placed
great reliance upon the fact that when he asked this witness
whether
he gained the impression that the complainant had been raped, he
replied in the affirmative. The views of this witness
were of course
entirely irrelevant. When his evidence is examined, the only
observation he made which is objectively inconsistent
with the
applicant’s version that the sexual intercourse was consensual,
was that he said he saw a male who was holding the
hands of the
complainant above her head, whilst another male was lying on top of
her. Because he said he never saw a third person
on the scene, this
individual could only have been the second accused. However, the
complainant said that after the second accused
had taken off her
clothes and closed her eyes, he did not do anything further to her.
She added that he stood to one side but not
far away. She also agreed
that the second accused did not help the applicant to push her to the
ground and rape her. The magistrate,
in order to explain this glaring
contradiction, again embarked upon unsubstantiated hypothetical
reasoning to reduce its significance.
This was that the complainant
probably did not mention this because she was not asked by the
prosecutor, who did not lead her on
this aspect. This is not so; her
evidence directly contradicts the evidence of Mr [JS].
[17]
The
magistrate again embarked upon hypothetical reasoning to explain the
evidence of Mr [JS] that he did not see a third person
in the
vicinity. Having found that there was a third person present, the
magistrate then reasoned that this person must have participated
in
the attack, but then decided that it was going too far, did not
participate further and moved away. What the magistrate should
have
focused on was the inability of Mr [JS] to clearly observe the scene.
Mr [JS] observed the scene at night whilst he was travelling
in his
vehicle. He said that because his car lights were on bright he saw
the shadows of people moving and did not properly see
what was
happening. He accordingly put his lights on dim and then again on
bright and realised there was something wrong along
the road. He saw
a female person lying on the ground with a male person on top of her.
Another male was grabbing the hands of the
female. He realised he had
to increase speed to see what was happening and drove faster. At this
stage the males ran away. That
he did not see the erstwhile third
accused at all, reveals how limited his observation of the scene was.
[18]
The
magistrate also concluded that the applicant ran from the scene
because he was raping the complainant. The applicant, however,
said
he had moved away from the scene because he saw the vehicle flicking
its lights and he wondered why the driver was doing this.
He realised
the driver could ask them what they were doing there. Even if the
applicant ran from the scene and did not simply move
away as he
maintained, his wish not to be accosted for having sexual intercourse
in public, is reasonable in the circumstances.
The court a quo,
however, concluded that the applicant’s explanation was
‘unsatisfactory, illogical and not reasonably
possibly true’.
I disagree. The guilt of the applicant was accordingly not the only
reasonable inference to be drawn from
his leaving the scene. It is
therefore clear that the evidence relied upon by the magistrate and
the court a quo to corroborate
the evidence of the complainant was in
itself unreliable.
[19]
No
major criticism can be levelled at the evidence of the applicant,
except that his version that he had been in a relationship
with the
complainant was not disclosed until he was cross-examined. However,
when the merits and demerits of the evidence of the
State witnesses
and applicant are examined, as well as the probabilities of the
case,
[4]
it is clear that the
State failed to discharge the onus of proving beyond a reasonable
doubt that the applicant raped the complainant.
It follows that the
appeal against his conviction of the rape must succeed.
[20]
The
following order is granted:
1
The applicant is granted special leave to appeal in terms of s
16(1)
(b)
of the
Superior Courts Act 10 of 2013
.
2
The appeal is upheld. The order of the court a quo is set aside and
substituted with the following order:
‘
The
appeal is upheld. The conviction of the appellant of rape by the
Regional Court, Ermelo and the sentence imposed pursuant thereto
is
set aside and the following order is substituted in its stead:
Accused
one is found not guilty and discharged.’
K G
B Swain
Judge
of Appeal
Appearances:
For
the Appellant:
F van As
Instructed
by:
Pretoria
Justice Centre
Bloemfontein
Justice Centre
For the Respondent:
P Vorster
Instructed
by:
Director
of Public Prosecutions, Pretoria
Director
of Public Prosecutions, Bloemfontein
Intervening party:
M S Mangolele
Instructed
by:
The
Minister of Justice and Constitutional Development
[1]
The identities of
the complainant, the applicant and the second and third accused are
not disclosed as they were all minors at
the time of the alleged
rape. For this reason the identity of the state witnesses, Mr [JS]
and Constable [M] are not disclosed.
[2]
Van Wyk v S
,
Galela
v S
(20273/2014,
20448/2014)
[2014] ZASCA 152
,
[2014] 4 All SA 708
(SCA);
2015 (1)
SACR 584
(SCA) (29 September 2014).
[3]
Madiba v S
(497/2013)
[2014] ZASCA 13
(20 March 2014); 2015 (1) SACR 485 (SCA).
[4]
S v Singh
1975 (1) SA 227
(N) at 228G-H.