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[2018] ZAGPJHC 131
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Norman v S (A283/2017) [2018] ZAGPJHC 131 (3 May 2018)
SAFLII
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Certain
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE NO. A
283/2017
(1)
REPORTABLE:
YES /
NO
(2)
OF
INTEREST TO OTHER JUDGES: YES/
NO
(3)
REVISED.
__3/05/2018_________
______________________
DATE
SIGNATURE
In
the matter between:
MAKHUVELA:
NORMAN
Appellant
and
THE
STATE
Respondent
JUDGMENT
INGRID
OPPERMAN j
INTRODUCTION
[1]
This
is an appeal against both conviction and sentence. The
appellant, Mr Makhuvela, was convicted in the Germiston Regional
court of rape in contravention of section 3, read with sections 1,
55, 56(1), 57, 58, 59, 60 and 61 of the Criminal Law (Sexual
Offences
and related matters) Amendment Act, 32 of 2007 having been legally
represented during his trial.
[2]
He
was sentenced to life imprisonment and accordingly has an automatic
right to appeal against both his conviction and sentence.
[3]
He
was accused number 1 in the court
a
quo
and Mr Sibusiso Skondo J. (‘
Mr
J.’
),
was accused number 2, who was charged and convicted of assault with
intent to do grievous bodily harm and sentenced to 5 years
imprisonment.
SUMMARY
OF THE EVIDENCE
[4]
On
the evening of 29 May 2015, the complainant met her then boyfriend of
3 months standing, Mr J., at a tavern where she consumed
11
x 750ml bottles of Hunters Dry, and a 12
th
on her way to Mr J.’s residence, a room. At his room, which she
was visiting for the first time, at about 2h00 in the morning
of 30
May 2015, they had consensual intercourse in the presence of the
appellant who was lying in the corner. Mr J. then ordered
the
appellant and a third person (‘
the
third person’
)
to have sex with the complainant whereafter Mr J. assaulted her with
an iron rod. She attempted to defend herself with a broken
bottle and
managed to escape. She was assisted by security personnel who, she
says, took her to the hospital.
[5]
Ms
Kokwane Phangula, a police constable (‘
the
constable
’)
testified that she had been called to the Germiston Police Station to
take the complainant to hospital, which she did.
This occurred at
about 12h00 on 30 May 2015. After the
complainant was examined the constable was contacted
to fetch her
again.
[6]
The
constable and one other, fetched the complainant from the hospital,
and the complainant directed them to the room of Mr J..
He was not
there but the appellant was lying on the bed. The complainant
identified the man lying on the bed as the person who
had raped her.
She also identified the iron rod, which had been used to assault her.
This rod they confiscated. The constable,
who affected the arrest of
Mr J. on 28 September 2015, testified.
[7]
Upon
her return to her home, the complainant told two of her friends what
had happened. A professional nurse, Ms R. (‘
the
nurse’
),
testified that on the day in question, she was working at B. G.
Hospital (‘
the
hospital
’),
had examined the complainant and had recorded her findings on the J88
form. The clinical findings included findings
that the
complainant’s head was swollen, that there were bruises on her
right thigh, a laceration on her right upper forearm,
multiple
bruises on her back, lacerations on her lower right eye, both hands
had lacerations on the inside and she had lacerations
on her left
breast.
[8]
She
had concluded that these injuries were in keeping with the
complainant having been physically assaulted with a hard, blunt
object. An examination of the complainant’s genitalia revealed
irregular tears at 6 and 3 o’clock with a cleft at 5
o’clock.
Her cervix was found to be inflamed which injuries were found to be
consistent with forceful penetration with a
hard blunt object. The
nurse found her to have been extremely drowsy during examination
which she attributed to having been either
tired or inebriated.
[9]
The
state then closed its case whereafter the appellant and Mr J. applied
for a discharge in terms of section 174 of the Criminal
Procedure
Act. The judgment in respect of such application is not part of the
record but it was evidently refused. The appellant
and Mr J. then
closed their cases without testifying or leading any evidence. The
magistrate then called two witnesses Ms B. N.
(‘
Ms
N.’
)
and Ms M. M. (‘
Ms
M.
’).
The reason for doing so does not appear from the record.
[10]
Ms N.
testified that she had met the complainant and Mr J. at a tavern
where they had both told her that they were involved romantically.
They left saying Mr J. was to give the complainant money. In the
morning she saw the complainant who explained that Mr J. had forced
one Dumdum, the appellant, to have sex with her and had assaulted her
with an iron rod. Ms N. said that the complainant’s
face was
swollen.
[11]
Ms M.
testified that the complainant arrived at her home, which she shared
with the complainant. The police had accompanied her.
She had
explained to her that Mr J. had ‘forced’ himself onto her
and had then woken up a certain Venda guy to rape
her. Mr J. then
assaulted her with an iron rod having confronted her about a cell
phone. Ms M. was asked to identify the appellant
whom she identified
as Dumdum. She was also asked whether the complainant had identified
the Venda man to her. She said that the
complainant had not mentioned
his name.
ISSUES
[12]
The
issue in this appeal in relation to the appellant, is whether the
identification of the appellant as the perpetrator of the
rape, was
both honest and reliable.
ASSESSMENT
OF EVIDENCE
[13]
The
evidence of the complainant is that of a single witness. The
court
a
quo
had regard to the cautionary rules applicable when assessing this
type of evidence. It is clear that the court
a
quo
was aware of the fact that it could only convict on the evidence of a
single witness if such evidence were satisfactory in every
material
respect. It correctly referred to
R
v Mokoena
,
1932 OPD 79
and
S
v Sauls,
1981 (3) SA 172
(A) at 180e
and
cautioned itself that it had been held that such rule does not
replace common sense.
[14]
In my
view, the learned magistrate incorrectly concluded that the evidence
of the complainant was satisfactory in all material respects
in
respect of the identification of the appellant. My reasons
include:
14.1.
During
her evidence in court, the complainant testified that Mr J. had
compelled the appellant to rape her. She had testified that
after her
and Mr J.’s consensual sex, he had instructed the appellant,
who had just prior thereto been sleeping in the corner
of the room on
the floor, to have sex with her.
14.2.
In
her statement made to the police she had said that after sex with Mr
J., two men had come into the room and had demanded to have
sex with
her. The complainant’s explanation, when confronted with this
contradiction, far from clarifying the situation,
compounded the
confusion. It was and remains unclear what the role of this
third person was. He seems, on both versions,
just to have
appeared, have raped her, and disappeared again.
14.3.
It
seems that the charges were formulated with reference to the
complainant’s sworn statement as Mr J. was not charged with
compelled rape which offence attracts a minimum sentence of life
imprisonment.
14.4.
On
the facts initially presented to the state as formulated in the sworn
statement, the appellant and the third person entered the
room and
quite independently demanded sex. The version presented in court was
fundamentally different. The version presented in
court was to the
effect that at least one of the two perpetrators, the appellant, was
compelled - by Mr J.. In my view, this contradiction
goes to the root
of the state’s case.
14.5.
Even
if I were wrong in this assessment, the following discrepancies
further support the conclusion that the complainant’s
evidence
was not satisfactory in all material respects. The complainant had
told the constable that she had gone to Mr J.’s
room where they
had encountered some people where one of such people had raped her.
This appears to be her first report after the
rape, which report is
inconsistent with her sworn statement and her evidence in court.
14.6.
The
complainant had told neither Ms N. nor Ms M. that she had been raped
by a third person. She had told Ms N. that she had been
raped by
Dumdum, the appellant. Yet, she had failed to mention his name in her
sworn statement. If she had not mentioned his name
to the police and
in her sworn statement because she only knew him by sight, then how
could she have told Ms N. that she had been
raped by Dumdum.
14.7.
She
had told Ms M. that she had been raped by a Venda man. She did not
mention his name to her.
[15]
To
have consumed 9 litres of cider (12 x 750ml) during a period of no
more than 8 hours (18h00 to 02h00), must have impaired both
the
complainant’s judgment at the time and her recall of the
events.
[16]
In
S
v Jackson
,
1998 (1) SACR 470
(SCA) Olivier JA held at 476 E – F as
follows:
"In
my view, the cautionary rule in sexual assault cases is based on an
irrational and out-dated perception. It unjustly stereotypes
complainants in sexual assault cases (overwhelmingly women) as
particularly unreliable. In our system of law, the burden is on
the
State to prove the guilt of an accused beyond reasonable doubt –
no more and no less. The evidence in a particular case
may call for a
cautionary approach, but that is a far cry from the application of a
general cautionary rule”
[17]
In my
view and particularly by virtue of the consumption of the vast
quantities of alcohol, the evidence of the complainant calls
for a
cautionary approach. The objective circumstances attending the
complainant’s observation does not instil confidence
even for
one who did not consume one drop of alcohol.
[18]
The
complainant testified that it was dark in the room. No evidence was
led as to the lighting along the route she followed from
the room to
the security personnel. One does not know how much opportunity she
had to observe the perpetrator/s. The learned magistrate
found that
the pursuit from the room to the security staff afforded her
sufficient opportunity for observation. I disagree with
that
conclusion. It may well be that the lighting along the way was such
to draw that conclusion but there were no facts placed
before the
court to draw such a conclusion. The court simply does not know what
the conditions were prevailing at the time.
[19]
The
magistrate’s finding that, if she could identify the iron rod,
she could identify the appellant, is unsustainable. Identifying
a
person’s features and identifying an iron rod can simply not be
compared. In addition, she felt the blows of the iron rod
which made
the identification of the weapon easier.
[20]
The
next question which falls for consideration is whether the failure on
behalf of the appellant, to have testified can assist
the state in
discharging the onus which rests upon it. In this regard the learned
magistrate relied much on the
dicta
in
Osman
and Another v Attorney General Transvaal
,
[1998] ZACC 14
;
1998 (2) SACR 493
(CC) and
S
v Boesak,
[2000] ZACC 25
;
2001 (1) SACR 1
(CC) at 11e to the effect that the fact that an
accused person has a right to remain silent, does not mean that there
are no consequences
attaching to a decision to remain silent during
the trial.
[21]
It is
so that where there is evidence which calls for an answer and an
accused person elects to remain silent in the face of such
evidence,
a court may well be entitled to conclude that the evidence is
sufficient in the absence of an explanation, to prove the
guilt of
the accused.
[22]
The
weight of the evidence in this matter did, in my view, not call for a
response. The state of sobriety of the complainant, the
numerous
material contradictions in the state’s case as well as the
absence of facts presented to assist the court in assessing
the
objective circumstances attending the observation by the complainant
of the identity of her attacker, were lacking and a response
was not
called for. The State’s case, primarily because of the
contradictions in the single witness’s testimony, simply
did
not attain the level of coherency and persuasiveness to put the
appellant on his defence to the degree that his failure to
testify
counted against him sufficiently to enable him to be convicted.
[23]
The
duty of a judicial officer in a criminal case has been articulated
many times. In
Rex
v Hepworth
1928 AD 265
, dealing with what was termed a ‘
technical
issue
’
(ie, the oath had not been administered to a witness and this was
uncovered after the testimony was given) Curlewis
JA held at
277:
“
A
criminal trial is not a game where one side is entitled to claim the
benefit of any omission or mistake made by the other side,
and a
judge’s position in a criminal trial is not merely that of an
umpire to see that the rules of the game are observed
by both sides.
A judge is an administrator of justice, he is not merely a
figurehead, he has not only to direct and control proceedings
according to recognised rules of procedure but to see that justice is
done.”
[24]
In
S
v Van den Berg
1996 (1) SACR 19
(Nm) the issue was that inadequate evidence had been
adduced by the prosecution about whether diamonds were rough or
uncut. The
trial court had discharged the accused at the end of the
state case. On appeal, the court held that the magistrate ought to
have
followed up on this aspect pursuant to the powers in terms of
sections 167 and 186. The court ordered the trial to be re-opened.
In addressing the application of the sections the court approved the
dictum
in
Rex
v Hepworth
,
and at 65g held further:
“
The
result is that the South African criminal trial is a compromise
between the "accusatorial" and the "inquisitorial"
systems. The presentation of evidence is normally left to the
parties, but if the Judge considers that the material before him
is
not sufficient to enable him to arrive at the truth, he may pursue
the investigation himself.' It should be abundantly clear
that even
though our system is a 'compromise' or can be described as 'mixed',
the accusatorial element remains the dominant element.”
[25]
A
court has a duty to intervene and has a very wide discretion when
deciding whether evidence is essential, which a court of appeal
will
only interfere with on very limited grounds - see
S
v Gabaatlholwe and Another
,
2003 (1) SACR 313
(SCA).
[26]
The
learned magistrate was accutely aware of the admissibility and weight
which should be attached to first reports. She referred
to section 58
of Act 32 of 2007 and the case of
S
v Hammond
2004 (2) SACR 303
(A) which held that evidence of first reports were
admissible to show consistency and to negate consent. That may be so
but what
the magistrate overlooked, in her assessment of these
witnesses, was that there were material inconsistencies. The
magistrate concluded
that ‘
The
complainant was consistent in her report that accused 1 raped her and
that accused 2 assaulted her with an iron rod’
.
The two witnesses called by the court did not support the
evidence of the complainant as found by the learned magistrate.
I
have listed the discrepencies above.
[27]
In
my view, the learned magistrate was faced with a case which had been
poorly presented. She admirably tried to find the truth.
The
trial in this matter has left me with a grave sense of disappointment
about the way the allegation of rape was investigated
and the way the
case for the State was presented to the court. This imposed an
immense and unfair burden on the magistrate to fulfil
her proper role
as impartial arbiter. The court was asked to convict and sentence a
man to life imprisonment. The stakes could
not be higher.
[28]
What
was put before the court does not resonate with the seriousness of
the charges. Care must be taken in any criticism of
a given
prosecution (or a given defence) and is not to be glibly made because
it is impossible for the critic to know what the
instructions were or
what enquiries were made that might have produced nothing helpful.
Not unmindful of those considerations,
I find that there nevertheless
remain inadequacies in the presentation of the State’s case in
this trial that are alarming.
[29]
The
prosecution should present evidence in an orderly fashion and explain
why witnesses were not called. It occupied an inordinate
amount of
time during the hearing of this appeal to establish the sequence of
events.
[30]
It
was (and remains) not at all clear whether the complainant went to
the hospital first and then to the police station or the other
way
around. Indeed, the learned magistrate was of the view that the
police had interviewed the complainant at the hospital.
The
complainant was not led on the lighting in the room nor on the
lighting on the route to the security personnel.
[31]
The
security personnel were not called as witnesses, nor was a reason
proferred for this omission. In
S
v Sebofi
,
2015 (2) SACR 179
(GJ) at [65] – [67] Sutherland J (with whom I
concurred) held:
‘
[65]
The calibre of the case presentations, both prosecution and defence,
were unacceptable for a case of this seriousness.
A prosecutor
cannot present a case by just pouring out a jumble of random facts as
if one was pouring treacle from a jar. It is
unfair to a court and it
retards the aim of a fair trial, which apart from other factors,
needs to be coherent and orderly…………
Moreover, victims of rape, as a class
of vulnerable people in our society, ought to have a reasonable
expectation that their cases
are taken seriously enough to be
investigated properly and tried at a standard that the guilty do not
wriggle free because of un-insightful
and superficial attention to
details by those who are responsible to protect them. (See the
remarks about the role of the police:
S v
Minister of Safety and Security & Others
2012 (1) SA 536
(CC)
at [37] [53] – [61])
[67] In
rape cases the most familiar scenario will be that the victim is a
single witness. Therefore, it is a foreseeable
and generic aspect of
such cases. Accordingly, any police officer who is involved, and that
includes the officer who receives the
complaint, the officer who
takes the victim’s statement, the arresting officer and the
investigating officer ought to appreciate
that an axiomatic line of
enquiry is what circumstances might offer corroboration or throw
suspicion on the truth or accuracy of
the complaint….’
[32]
Care
should be taken when written statements are taken from complainants.
Police officers to blame for inaccurate statements, should
be called
to testify to own up for such wrongdoing thereby protecting the
credibility of the, often single, witness.
[33]
Although
Mr J.’s conviction does not serve before me and anything I hold
in that regard will be
obiter
,
I do think it important to note that a big distinguishing feature
between the evidence relating to the appellant and the evidence
underpinning the conviction of Mr J., is the fact that the
complainant was in a relationship with Mr J. and thus knew him well.
CONCLUSION
[34]
Having
regard to all the evidence presented, I am not persuaded that the
state has discharged the onus resting upon it in relation
to the
conviction of the appellant. It cannot be said that beyond a
reasonable doubt he was the man who raped her on the order
of Mr J..
The presence of the alleged third man is enough to cast sufficient
doubt on the issue of identity. Combined with the
level of alcohol
consumption and the different versions of events given by the
complainant as a single witness, the Court cannot
conclude that his
identification as the rapist was proved beyond a reasonable doubt.
ORDER
[35]
I
accordingly grant the following order:
35.1.
The
appeal succeeds;
35.2.
The
conviction and sentence of the appellant is set aside.
_________________________
Ingrid
Opperman
Judge
of the High Court
Gauteng
Local Division, Johannesburg
I
Agree
_________________________
MB
Mahalelo
Judge
of the High Court
Gauteng
Local Division, Johannesburg
Heard:
26 April 2018
Judgment
delivered: 3 May 2018
Appearances:
For
Appellant: Adv AH Lerm
Instructed
by: Legal Aid South Africa
For
Respondent: Adv MPD Mothibe
Instructed
by: Office of the Director of Public Prosecutions