Mkize v S (A191/2010) [2010] ZAGPJHC 114 (15 November 2010)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2010
>>
[2010] ZAGPJHC 114
|

|

Mkize v S (A191/2010) [2010] ZAGPJHC 114 (15 November 2010)

REPORTABLE
IN THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
CASE NO. A191/2010
DATE: 15/11/2010
In the matter between:
MKIZE:
BONGANI
........................................................................
1
st
Appellant
and
THE
STATE
...................................................................................
Respondent
JUDGMENT
MOTLOUNG
A J
[1] This is an appeal
against both conviction and sentence.
[2]
The appellant was charged and kidnapping and multiple counts of rape
in the Boksburg regional court.
[3]
The appellant was legally represented and the magistrate convicted
and sentenced him as follows:
1. On the kidnapping
charge, to 5 years imprisonment.
2. On the two counts of
rape, to 15 years imprisonment.
3. He was automatically
declared unfit to possess a firearm.
[4] This means that the
appellant was sentenced to an effective 20 years imprisonment.
[5] The appellant was
granted leave to appeal against both convictions and sentences after
petitioning the judge president. It is
on this basis that the matter
came before us.
[6]
The facts briefly are follows: The complainant testified that she had
a love relationship with the appellant which had been
in existence
for approximately two months as at the date of the circumstances
giving rise to this case. On the date in issue, being
Saturday the
22
nd
November
2008 and at approximately 16h00, she went to OK stores at a shopping
centre called Goldspot in Vosloorus in order to buy
groceries and
then meet the appellant thereafter, as previously arranged between
the two of them. She wanted to inform the appellant
that they must
stop their love affair because she was married and she did not want
to cheat on her husband anymore. She never had
any problems in the
relationship with the appellant before then, The appellant came
driving in his motor vehicle, she got in the
front passenger side
next to the appellant and they drove off. It was while they were busy
driving that she told the appellant
that she wanted them to stop the
affair as she was no longer interested in continuing therewith.
[7] The appellant said
they must go and discuss the matter at the Basotho hostel there in
Vosloorus. They went into a room in the
hostel, where they found a
certain man. They sat there for a while and the said man left the
room and went away. The appellant
locked the door and after a long
time of sitting there, the appellant told her that it was becoming
late and, therefore, she was
not going back home that night.
[8] The appellant then
gave her a cellphone and instructed her to phone her husband and
inform him that she no longer wanted him
as she found a new
boyfriend. She was busy crying the whole time, and the appellant told
her that it was not going to help as nobody
was going to come to her
rescue there at the hostel. He further warned her that if she
continued crying, he would stab her with
a knife and throw her
underneath the bed.
[9] She phoned her
husband and spoke to him to give him the message. Her husband asked
what was happening or what was wrong and
she replied that the
appellant has locked her in a room at the hostel and refused to let
her leave and return home. Her husband
could no longer wanted her to
speak to her husband. The appellant then phoned her husband, swearing
at him and using vulgar language,
telling him that he was no longer
going to get her back.
[10] Thereafter, they
slept there at the hostel – he raped her without using a
condom. He forced her to have sexual intercourse
with him by pushing
her onto the bed and instructing her to remove her clothes.
Thereafter, he slapped her and instructed her to
remove her panties
too. She complied with all his instructions as she was scared because
she thought that he was going to kill
her. The appellant also removed
all his clothes and had sex with her the first time. Thereafter, he
got off her, had a rest whilst
not fast asleep but merely lying on
the bed. They were busy arguing at that stage as she was busy telling
him that she wanted to
go home and asking him to let her go, whilst
he kept on refusing to let her go. He later had sexual intercourse
with her again.
When he had sex with her the second time, it was also
after midnight.
[11] The appellant kept
her in the said room for the whole day of Sunday without having sex
with her. She could not sleep the whole
time whilst the appellant was
asleep. Whilst he slept, she was just sitting there next to him as he
had earlier threatened to kill
her if she made noise and told her
that nobody was going to help her, and she only managed to sleep
during the day, around midday.
The room she was in had a window that
was closed with a cloth.
[12] They slept until
approximately 15h00 when the owner of the room came back. When the
owner knocked on the door, the appellant
stood up to unlock and open
the door for him. The owner was having bread and a packet of chips
with him. The appellant told him
to go and buy food and he obliged,
came back with the food and placed it inside the room and went away
again. Thereafter, the appellant
locked the door, sat down, and again
warned her that she must not think of escaping from him, because if
she did, he would go to
her place and kill her husband. This was her
reason for not moving or running away, as she was scared that he
could carry out his
threat. All along they were naked, even at the
time that the owner of the room returned. This went on until late
that night when
the appellant took the food and told her they must
eat, but she refused and he ate alone. After eating, he raped her
again, whereafter
he slept as he was tired. She was also tired and
also fell asleep. They slept until the next morning, the morning of
Monday, when
he woke up and raped her again.
[13] Thereafter, he
picked up the phone and handed it to her and instructed her to phone
her husband and tell him to leave the house
key behind so that she
could go and fetch her clothes. She did so, and her husband said she
that if they had a problem between
them, she must come back alone so
that they could resolve it.
[14] The appellant then
changed his mind and told her that she was no longer going home,
because of the fact that she had already
phoned her husband, and it
was possible that her husband had called other people, and the said
people would be waiting for him
there at her husband’s place.
He then suggest that they must go to a certain witchdoctor, as he
wanted to see what was happening.
They went to a certain house in
Vosloorus where they met the sangoma who gave them medicine and told
them to go and use it. This
was around midday on that Sunday. She was
afraid to raise alarm because she was afraid as he had earlier on
said if she dared run
away or raise alarm, he was going to kill her
husband too. Both of them used the medicine but it did nothing. The
appellant decided
that they must go to Soweto. They went to Soweto
and while seated there, she informed the owner of the house that she
was seeking
assistance from her, and the said owner said there was
nothing she could do as she was afraid of the appellant.
[15]
They stayed there in Soweto and they did not have a place to sleep,
and the appellant decided that they should leave the house
in issue
and go to Diepkloof hostel, which is still in Soweto. Upon their
arrival there, the appellant spoke to the owner of the
room. The
owner said they could come in, and thereafter pointed them a room
they could use to sleep. They both got in bed and slept,
but the
appellant did nothing to her that night. He woke her up around 04h00
and told her that he was taking her home, then. This
was on a Tuesday
the 25
th
November
2008.
[16] They got dressed and
got into the appellant’s vehicle and drove back to Vosloorus.
When they got into Vosloorus, and
when she was about to get off so
that she could go home, the appellant changed his mind and told her
that she must not get off
because she was going to let him have a
problem by laying a charge against him with the police, who will
arrest him. He said it
is better to kill her and drove towards
Kliprivier, and she asked him where were they driving to, and he said
he was going to kill
her.
[17] It was whilst
driving towards Kliprivier that she saw a marked police vehicle
coming towards their direction. She thought to
herself that they
might held her and immediately opened the door of the moving vehicle
and got out. She fell out as the police
were going past them. The
police saw this and made a u-turn and gave chase to the appellant
until they caught up with him and came
back with him together with
his vehicle to where she was. On e of the police officers was driving
the appellant’s vehicle.
The police phoned an ambulance.
[18] Whilst waiting for
the ambulance, she told the police that the appellant kidnapped her
and locked her in a hostel for three
days, and also raped her. At
that stage, the appellant was inside the police vehicle. She
sustained open wounds to both knees,
lower arm and the face as a
result of falling out of the moving vehicle.
[19] After the ambulance
arrived, the police took her first to Kliprivier police station to
lay a charge before proceeding to hospital.
She made a written
statement to a lady police officer after which she was taken to
hospital where she was admitted from that Tuesday
till Thursday when
discharged. She was healed when she testified in court.
[20] When asked if she
loved the appellant during their affair, she stated that she indeed
loved him, but not to say more than her
husband, it was only that
they were attracted to each other. The appellant was not supposed to
do what he did to her, because she
disclosed that she was married the
first time he proposed love to her.
[21] Under
cross-examination:
1. When it was put to her
that the appellant will deny that she demanded at any stage to go
home, she replied that “I told
him to release me, I will go
home and I will talk for myself on my arrival at home”.
2. She admitted that she
went to Goldspot to meet the appellant as the appellant phoned him to
arrange the meeting.
3. She met the appellant
after buying the groceries.
4. She said she wanted to
tell the appellant that they needed to stop the affair as her husband
was now suspicious that she was
cheating on him. That was the reason
she wanted to stop the affair.
5. She was not familiar
with the place of the sangoma, but if accompanied by the police, she
could point the place out, and the
sangoma can confirm that the
appellant was there.
6. On the Monday night,
when they slept, they were naked as they had taken their clothes off,
but the appellant did not have sex
with her that night.
7. When it was put to her
that the appellant would say that she is the one who woke him up in
the morning of Tuesday, saying that
she must go home because her
husband left her children at the social worker, she replied that it
was a police officer who phoned
her immediately they arrived in
Soweto to threaten that her husband had given her children away to
the social worker, and the appellant
was then prepared to release her
to go back home. She admitted that her husband phoned through a
policeman threatening that her
children were with the social worker.
[22] Captain Motshoane
testified that she was at the Kliprivier police station when she was
approached by the driver of the Nedcare
ambulance, Ms Chanel
Geldenhuys, who informed her that she had a rape victim outside in
the ambulance. She then asked the complainant
to explain “what
actually happened with her and this gentleman, the suspect.”
She told her that she wanted to stop
the affair and the appellant
told her to get into his vehicle so that he could take her to the
taxi rank because she wanted to
go home. He drove to the hostel where
he kept her and raped her. He stopped raping her on Monday morning.
He kept her in captivity
continuously without ever allowing her out,
until Monday. On Tuesday morning he took a cloth and a knife and told
her he was going
to kill her on that day. They got into his vehicle
and as they drove came across the police vehicle, and that was when
she decided
to throw herself out. She did not tell her where they
were going to.
[23]
Constable Mokoena testified that after they saw the complainant fall
out of the moving vehicle, they tried to stop the vehicle
but the
driver drove away and they chased him until he came to a stop sign
and alighted, and ran away.
They
stopped their vehicle and he chased the appellant and caught up with
him, and took him to where the fallen complainant was.
The
complainant told him that he kidnapped her, kept her for several days
and raped her
[24] The next witness for
the respondent was the complainant’s husband, Tsotetsi, who
testified that the complainant phoned
him from her phone at
approximately 21h30 on Saturday. He saw from the numbers appearing on
his phone that it was her phone. He
answered the call by asking who
was the person phoning, but got no reply. ‘That person did not
tell me what or who he was.
No he did not answer at all”. When
asked if the person was male or female, he said it was a male. When
asked by the magistrate
how could he figure this out, he said it was
because the person phoned again for the second time. After a few
minutes of the said
person phoning him for the second time, he got a
call from his wife who was busy crying then. He asked her where she
was and she
said at Goldspot shopping centre. It was at that stage
that the person grabbed the phone from her and told him in Zulu that
he
was not going to be with his wife that night as she was his for
the night. He asked the person for his name, and he said Bongani
from
Kwazulu Natal.
[25] The next day,
Sunday, he got a call from his wife but every time he tried to phone
his wife it was Bongani who answered the
phone. When asked by the
magistrate whether his wife phoned him, he said it was him who phoned
the wife. He then handed the phone
to his wife who said they were at
the Vosloorus hostel, whereafter he took the phone from her and swore
at him, using vulgar words.
The next morning, being Sunday at around
10h30, he got another call from his wife’s phone, and the
appellant asked him as
to what were they going to do now “with
this wife of yours”. He answered that “there is nothing
that I could
do because you have already taken her.
[26]
He went to the police on Monday morning to open a case of kidnapping
(to a leading question). He went back again to lay a charge
of a
missing person, but the police said he could not do so as he was able
to communicate each and every time with her.
He
the asked constable Selema to pretend to be a social worker “as
[he] wanted to know their whereabouts”, and his wife
answered
the call and said they were at a Soweto hostel whose name she did not
know. Then on Tuesday at 06h45 he got another call
from his wife when
he was on his way to work, and she said they are at Kliprivier, and
Bongani had been arrested. When his wife
phoned, at all times, she
was crying and angry. The appellant always used his wife’s
phone, and never his.
[27] The last witness for
the respondent was the medical doctor Dr Mashele who testified that
his clinical findings regarding a
gynaecological examination were
that as the complainant had two children, he could not find anything
amiss, because everything
was intact, there were no bruises, no
tears, no lacerations, nothing, and he could not find anything like
that.
[28] The appellant
testified in his own defence, and his testimony was briefly that he
had consensual sexual intercourse with her
on two occasions only, and
she went around voluntarily with him to the places they went to. He
also left her on the morning of
Sunday to go to work as a taxi driver
and came back in the night and found her there. She got angry with
him at some stage, accusing
him of making a fool of her by going away
with another woman in Soweto and talking to another one over the
phone. On the night
of Monday, as she was angry and no longer talking
to him, he slept with his clothes on. On Tuesday morning he went back
to Vosloorus
with the complainant, and stopped under a tre and asked
her if she was alighting or not, or accompanying him to a trip to
Kliprivier
to collect some people, and she did not respond, and he
drove away towards Kliprivier until they met the police vehicle when
she
threw herself out without saying a word. He did not know why she
did that. He could not stop immediately as he was driving fast,
and
the police arrested him whilst inside his vehicle, intending to make
a u-turn, and accused him of kidnapping and raping her.
He testified
under cross-examination that many times, whenever he met with the
complainant, they had sex, and he thought that she
laid a false
charge as she was afraid of her husband, and he never had any weapon
with him.
[29] He disputed the
complainant’s version in many material respects, ranging from
whether she cried or not, whether the door
was locked or not, whether
she cooked or ate, whether he gave her the phone to call her husband,
whether he knew that she was still
married or not, whether he
instructed her to tell him to leave the house keys or not, whether or
not they were given medication
by the sangoma, whether he threatened
to kill her or not. I do not deem it necessary to deal with his
testimony in detail, as I
am of the view that an analysis of the
respondent’s case, with particular reference to the onus
resting on the respondent
in criminal cases, makes it unnecessary to
do so, as the respondent’s case cannot sustain itself, even
without much reference
to the appellant’s testimony.
[30] In the evidence
above, I find that the following facts are undisputed:
The complainant, who was
married to her husband for approximately 14 years, with whom she had
two children, cheated on him in
an extra-marital affair with the
appellant, and the affair had been in existence for some time.
Every time that the
complainant met the appellant, they engaged in sex.
When
the complainant met the appellant on the afternoon of Saturday the
22
nd
November
2008, this was per appointment or arrangement between her and the
appellant. In the circumstances, it is clear that she
expected the
appellant to come and collect her from where she waited for him.
The complainant had left
her house under the false pretext that she was going to buy
groceries.
The
complainant had phoned her husband on Sunday the 24
th
November
2008 in the presence of the appellant, to inform him that he must
leave the keys of the house as she was coming to collect
her
clothes.
The husband of the
complainant told her that when she came to collect her clothes, she
must not come with the appellant, but alone.
A police officer
pretending to be a social worker phoned the complainant to inform
her that her children had been taken to social
workers by her
husband.
The police refused to
open a case of a missing person as the report by the husband showed
that the two were in constant contact
and communication
telephonically, and when they phoned the complainant, they did not
try to find out where she was, but did tried
to lure her back.
The complainant’s
husband only reported the missing wife on Monday, at least after two
days of her going missing, and in
circumstances where he could
communicate with both her and the appellant.
The complainant and the
appellant met another person at the Basotho hostel on Saturday and
she did not ask him for help, and no
explanation was given for this
omission.
The complainant and the
appellant met another person at the Soweto hostel and she did not
ask him for help, and no explanation
was given for this omission.
The complainant and the
appellant met the sangoma in Vosloorus before proceeding to Soweto
and she did not ask him for help, and
no explanation was given for
this omission.
Despite the arrest of
the appellant, no knife was traced or found in his vehicle, despite
the report that he took a cloth and
knife when leaving Soweto, which
were apparently going to be used to kill the complainant.
[31] There are many
factual disputes between the two versions, but the central points in
dispute are (a) whether the complainant
was forced or coerced to go
with the appellant, and (b) whether the sexual intercourse took place
with or without consensus.
[32]
The above-mentioned facts show that it was appellant, and not the
other way around, who phoned the complainant to arrange the
meeting
of the 22
nd
November
2008 nest to Goldspot shopping centre. The facts show that the
intention to go somewhere else in the appellant’s
vehicle.
Furthermore, the complainant, who stood on the other side of the road
when the appellant came to fetch her, walked across
the road and
climbed into his vehicle voluntarily. Irrespective of which version
to believe or not, the objective facts show that
the parties agreed
to go somewhere from where they met, and as they did so, the
complainant sat in the front passenger seat next
to the appellant,
and the doors of the vehicle were not locked.
[33] Up to the date in
issue, the two were apparently madly in love, with no history of
problems in the love affair. Whenever they
met, they engaged in
sexual intercourse.
[34] There is no evidence
of the complainant behaving in a manner suggesting that she did not
want to go to the hostel with the
appellant. When they came across
other people, like the man at the Vosloorus hostel, the man at the
Soweto hostel, and the sangoma,
the complainant never raised alarm or
behave in any other manner showing or suggesting that she was in the
appellant’s company
involuntarily.
[35] The appellant never
showed the complainant any weapon before the Tuesday and no existence
of any weapon belonging to or associated
with was alleged or proven.
The complainant had her cellphone in her possession at all or at
least most material times when in
the company of the appellant, and
she has access thereto and in fact phoned her husband several times
to give him messages about
her whereabouts, mentioning specific
places.
[36] I cannot understand
why the complainant’s husband, who was told by her on Saturday
night, after his wife had left the
common home around 14h00, as to
where she was, in the vicinity as the hostel mentioned was also in
Vosloorus, did not do something
about it immediately or report the
matter to the police or anybody else, but keeps mum about it until
Monday when he has to go
to work, and thus forced to do something
about the children, including asking the police to disguise as a
social worker.
[
37]
When the appellant spoke to the complainant’s husband on the
phone, he readily disclosed his name and where he hailed
from. The
appellant went to a sangoma in Vosloorus (where the complainant
stayed) with the complainant in broad day light, travelling
in the
unlocked vehicle, whilst she sat in front next to him.
[38] Coupled with all the above facts,
the respondent did not obtain or lead the evidence of the men the
parties met at the two
hostels, or the lady at the house in Soweto or
the sangoma, whose identities were either known or easily
ascertainable, in circumstances
where, in my view, their evidence
could have helped to shed more light on the murky waters of this
matter.
Even the learned magistrate was either
indifferent or oblivious towards these potential witnesses. Nothing
stopped the magistrate
from calling these people as witnesses whose
testimony could have been to the advantage or disadvantage of either
side, but to
the potentially very useful evidence to the court to
clarify many unexplained or unclear issues.
[39] The cumulative effect of all the
above facts, some to a greater degree than others, is such that, in
my view, have the result
of militating against a finding that the
complainant was forced to go with the appellant. She could, and she
should have raised
alarm with some or all the above-mentioned people.
Particularly as nothing shows that she never had the opportunity to
do so.
[40] I have carefully considered the
appellant’s version on the same aspects, and I remain
unimpressed with the veracity and/or
truthfulness of his version
thereon. There are even instances where I would have preferred the
complainant’s version on aspects,
as her version is more
probable on them than that of the appellant. For an example, I am
inclined to believe that the appellant
indeed sped off the scene
after the complainant threw herself out, and that there is no reason
to disbelieve the evidence of the
constable who arrested him.
However, even this criticism does not detract from the fundamental
aspect that the respondent needs
to prove each and every element of
the crime beyond reasonable doubt, and that there is no onus on the
appellant to prove his innocence.
It is not necessary for me to
believe him, or believe him in every material respect. It is
sufficient if the court finds that his
evidence is reasonably
possibly true, to acquit him.
[41] I am thus of the view that the
respondent failed to prove that the complainant was forced to go with
the appellant to any of
the places they went to.
[42] For the same reasons or
considerations, mutatis mutandis, I am of the view that the
respondent failed to prove that the complainant
was forced to engaged
in sexual intercourse with the appellant. In fact, I find that it is
more probable than not that the sexual
intercourse occurred with the
consent and active participation of the complainant. The appellant’s
explanation that he slept
in clothes on Monday night (the night on
which no sexual intercourse took place) and the complainant queried
why he did so, whilst
the complainant testified that they were both
naked, is more probable and consistent with the other proven
objective facts.
[43] Added to the above, in respect of
both charges, are the following factors: There were many material
contradicting and/or unsatisfactory
features and/or inconsistencies
in the evidence of the complainant in relation to what her report was
to captain Motshoane. For
an example, she told her that the threat to
go and kill her happened as they left Soweto, whereas she testified
in court that the
threat only came as a change of mind after they had
arrived back in Vosloorus after he went past where she was supposed
to get
off. She told the captain that he took a cloth and a knife
then in Soweto to go kill her, but she made no mention of this fact
in court. The significance of this contradiction lies in the fact
that the complainant’s said explanations relate to why she

threw herself out of the moving vehicle. If the threat to kill her
was indeed done, it is important to determine when such threat
was
made. On the available evidence, it is impossible to say when such
threat was made; In Soweto or in Vosloorus. She is contradicted
by
her husband regarding the sequence of the telephone calls and the
nature of the discussion on the phone.
[44] The circumstances of this matter
call for the exercise of caution.
[45] Whilst a court may convict on the
credible evidence of a single witness as provided for in section 208
of our
Criminal Procedure Act 51 of 1977
, the cautionary rules also
apply to the evidence of a single witness, which must also be
reliable in every material respect.
[46] The complainant clearly gave what
at times was an incoherent version. The magistrate was obviously
alive to the said deficiencies,
but sought to undermine and
under-play them by finding that she was an unsophisticated witness.
This approach, in circumstances
where no explanation or excuse was
placed on record, and where no mental deficiency was proven on the
part of the complainant,
was clearly wrong. The application of this
sort of approach, in my view, is a direct opposite and displacement
of the cautionary
rule.
[47] In fact, I may remark in passing,
that a proper reading of the record will show that the magistrate was
unduly, form the commencement
of the trial, predisposed towards the
complainant, and towards the state’s case. He, at times,
suggested answers to the complainant,
albeit indirectly. In my view,
this constituted a material misdirected on the part of the
magistrate. He failed to give due consideration
and weight to the
unsatisfactory features of the evidence of the complainant, but
rushed to finding excuses or explanations for
her conduct. An example
of this fact is where the magistrate remarked, when the captain was
testifying, and having told the court
that the complainant told her
that the appellant took a cloth and a knife before leaving Soweto,
remarked that her evidence was
the same in court. This remark shows
that the magistrate had completely lost sight of the fact that the
complainant’s testimony
on this point was contradictory.
[48] In the light of the misdirection
mentioned above, this court, acting as a court of appeal, is entitled
to consider what its
judgment would have been on the evidence before
it.
[49] Applying the
cautionary rule to the evidence of the complainant, I find that the
appellant’s version, whilst not without
its own problems,
cannot be dismissed as not being reasonably possibly true. The fact
that he ran away when pursued by the police
may well have been an act
of panic. After all, the complainant had all the hallmarks of a
skilful manipulator. She could cheat
on her husband without
detection, and even when she left the common home on Saturday she
pretended she was going to buy groceries.
After all, it is clear,
from the circumstances of this case that she had to offer some
dramatic explanation for her to be accepted
back by her husband with
impunity. It is thus not only unfair, but also wrong to place undue
weight to the fact that she performed
an apparently life threatening
stunt. Life is riddled with examples of some people actually going to
the extremes of committing
suicide when confronted with certain
challenges.
[50] I also cannot find
that the complainant’s evidence is sufficiently reliable to can
convict thereon.
[51] This court need not
even believe the appellant in order to acquit him; it is sufficient
in order to acquit him if the court
finds that his version, albeit
not without criticism, is reasonably possibly true. Where there
exists doubt, like as to the reason
why the appellant ran away when
pursued by the police, the benefit of such doubt has to accrue in
favour of the appellant.
[52] In my view, the
state has not succeeded in proving its case beyond reasonable doubt,
thus entitling the appellant to his acquittal.
[53] In the light of my
finding as regards the conviction, it is unnecessary to consider the
grounds of appeal on sentence.
[54] Consequently, I
hereby make the following order:
1. The appeal against
both convictions and sentences is upheld, and the appellant is found
not guilty and discharged
_______________________________
I. MOTLOUNG
(ACTING JUDGE OF THE HIGH
COURT OF SOUTH AFRICA)
I CONCUR
_____________________________
M.P TSOKA
(JUDGE OF THE HIGH COURT
OF SOUTH AFRICA)
IN THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
CASE NO. A191/2010
In the matter between:
MKHIZE BONGANI
VICTOR
.............................................................
Appellant
vs
THE
STATE
...................................................................................
Respondent
JUDGMENT
MOKGOATLHENG J:
(1) I have had the
benefit of reading the judgment of my colleague Motloung AJ with
which Tsoka J concurs. I however, regret that
I cannot “
agree
with his approach to the evidence or with his conclusions
”
My colleague and I differ
in our approach and evaluation of the details of the appellant’s
evidence, and the State’s
evidence. “
The
difference between us is fundamental in that it lies in our approach
to the essential situation of the complainant’s evidence
which
depicted the complainant”
as
a married woman who according to her version freely admitted to
cuckolding her husband by having an affair with the appellant
and
agreed to a tryst with him on the 22 November 2008, with the purpose
of ending the relationship, but that such tryst precipitated
tension
and disagreement with the appellant, which manifested itself in the
deprivation of her liberty and being forced to have
non-consensual
sexual intercourse. In contradistinction the appellant’s
version is that the mutually agreed to meeting was
purely a lover’s
tryst, which ended in consensual sex.
(2) I agree with Cameron
JA sentiments in
S
v M
2006 (1) SACR 135
at 165 para [237]
that
in approaching a matter such as this, a fact-finder must be alive to
the fact that:
“
[237] It surely
needs no argument that our capacity for evidentiary appreciation
should embrace situations that involve a sexual
advance made upon a
victim who may already be in a position of deep sexual, emotional and
even physical compromise when sex is
proposed. Such a position of
compromise may derive from a pre-existing consensual or
semi-consensual interaction with the perpetrator.
‘Date rape’
is the best-known instance:
the
parties may have seen each other socially, and even have engaged
extensively in intimate physical contact (petting). When one
party
refuses to ‘go all the way’, nothing approaching violence
or physical coercion may be involved, and to seek it
may be gravely
mistaken. The emotional and physical complexities are less crass, and
demand a proportionate response from the fact-finder.”
(3) I further agree with
the Learned Judge that the fact-finder must guard against:
“
an attempt to
apply the wrong conceptual model (or ‘paradigm’) to the
violation this case involves”.
The
fact-finder must be wary of
“
an
approach to the complainant’s evidence that in my view does not
justly appreciate the situation it evoked” or “to
mistake
complexity for contradiction, and nuance for
incoherence.”
LEGAL PRINCIPLES
(4) Before traversing the
evidence, perhaps it is apposite to restate the legal principles
applicable to the present matter.
Van
der Merwe (DJP)
in
the case of
State
v Zuma
2006 (2) SACR 191
at 208i-211f
has
succinctly re-enunciated the principles governing the analysis and
evaluation of evidence, and adjudication in criminal matters.
I
hereby for emphasis restate these legal principles by quoting the
learned Judge verbatim:
“
In this particular
matter it is necessary to refer to the State's burden of proof and
the way in which a court should approach the
evidence where a court
is faced with two conflicting, in some instances, mutually
destructive, versions.
In
S
v Ntsele
1998
(2) SACR 178
(SCA) ([1998]
3 All SA 517)
the Supreme Court of Appeal
deals with the
onus
of proof on the State,
the adequacy of proof and the trial court's evaluation of evidence.
At 182b-f (SACR) Eksteen JA says the
following:
'Die bewyslas wat in 'n strafsaak op
die Staat rus is om die skuld van die aangeklaagde bo redelike twyfel
te bewys - nie bo elke
sweempie van twyfel nie. In
Miller
v Minister of Pensions
[1947]
2 All ER 372
op 373H stel Denning R (soos hy toe was) dit soos volg:
''It need not reach certainty, but it
must carry a high degree of probability. Proof beyond reasonable
doubt does not mean proof
beyond the shadow of a doubt. The law would
fail to protect the community if it admitted fanciful possibilities
to deflect the
course of justice. If the evidence is so strong
against a man as to leave only a remote possibility in his favour
which can be
dismissed with the sentence 'of course it is possible,
but not in the least probable', the case is proved beyond reasonable
doubt.
. . .''
Ons reg vereis insgelyks nie dat 'n
hof slegs op absolute sekerheid sal handel nie, maar wel op
geregverdigde en redelike oortuigings
- niks meer en niks minder nie
(
S v Reddy and Others
1996 (2) SASV 1 (A) op 9b-e). Voorts,
wanneer 'n hof met omstandigheidsgetuienis werk, soos in die
onderhawige geval, moet die hof
nie elke brokkie getuienis
afsonderlik betrag om te besluit hoeveel gewig daaraan geheg moet
word nie. Dit is die kumulatiewe indruk
wat al die brokkies tesame
het wat oorweeg moet word om te besluit of die aangeklaagde se skuld
bo redelike twyfel bewys is (
R
v De Villiers
1944 AD 493
op 508-9).'
The reference to
S
v Reddy and Others
1996 (2)
SACR 1
(A) reads as follows:
'Lord Coleridge, in
R
v Dickman
(Newcastle Summer
Assizes, 1910 - referred to in
Wills
on Circumstantial Evidence
7
ed at 46 and 452-60), made the following observations concerning the
proper approach to circumstantial evidence:
''It is perfectly true that this is a
case of circumstantial evidence and circumstantial evidence alone.
Now circumstantial evidence
varies infinitely in its strength in
proportion to the character, the variety, the cogency, the
independence, one of another, of
the circumstances. I think one might
describe it as a network of facts around the accused man. That
network may be a mere gossamer
thread, as light and as unsubstantial
as the air itself. It may vanish at a touch. It may be that, strong
as it is in part, it
leaves great gaps and rents through which the
accused is entitled to pass in safety. It may be so close, so
stringent, so coherent
in its texture, that no efforts on the part of
the accused can break through. It may come to nothing - on the other
hand it may
be absolutely convincing. … The law does not
demand that you should act upon certainties alone. … In our
lives, in
our acts, in our thoughts we do not deal with certainties;
we ought to act upon just and reasonable convictions founded upon
just
and reasonable grounds. … The law asks for no more and
the law demands no less.'' '
In
S
v Singh
1975 (1) SA 227
(N)
the Court discussed the approach of a court where there is a conflict
of fact. The learned Judge says the following at 228F-H:
'[I]t would perhaps be wise to repeat
once again how a court ought to approach a criminal case on fact
where there is a conflict
of fact between the evidence of the State
witnesses and that of an accused. It is quite impermissible to
approach such a case thus:
because the court is satisfied as to the
reliability and the credibility of the State witnesses that,
therefore, the defence witnesses,
including the accused, must be
rejected. The proper approach in a case such as this is for the court
to apply its mind not only
to the merits and the demerits of the
State and the defence witnesses but also to the probabilities of the
case. It is only after
so applying its mind that a court would be
justified in reaching a conclusion as to whether the guilt of an
accused has been established
beyond all reasonable doubt.'
An extremely helpful summary also
appears in the headnote of the judgment in
S
v Radebe
1991 (2) SACR 166
(T) at 167j-168h. The summary reads thus:
'A criminal court does not judge an
accused's version in a vacuum as if only a charge-sheet has been
presented. The State case,
taking account of its strengths and
weaknesses, must be put into the scale together with the defence case
and its strengths and
weaknesses. It is perfectly correct that the
State case cannot be determined first and if found acceptable
regarded as decisive.
The State case, if it is the only evidentiary
material before the court, must in all cases be examined first in
order to determine
whether there is sufficient evidentiary material
in respect of all the elements of the offence and whether there is
not perhaps
in any event a reasonable possible alternative hypothesis
appearing therefrom. Precisely the same approach is applicable if the

defence puts forward a version. Taking into account the State case,
once again it must be established whether the defence case
does not
establish a reasonable alternative hypothesis. That alternative
hypothesis does not have to be the strongest of the various

possibilities (that is, the most probable) as that would amount to
ignoring the degree and content of the State's
onus
.
The State's case must also not be weighed up as an independent entity
against the defence case as that is not how facts are to
be
evaluated. Merely because the State presents its case first does not
mean that a criminal court has two separate cases which
must be
weighed up against one another on opposite sides of the scale. The
presentation of the two cases in that sequence is the
result of
considerations of policy and effectivity. The criminal court
ultimately has a conglomerate of evidentiary material before
it which
is indicative of facts against or in favour of the innocence of the
accused. Some exculpatory facts may appear from the
State case whilst
incriminating facts might appear from the defence case, for example
admissions made during cross-examination.
The correct approach is
that the criminal court must not be blinded by where the various
components come from but rather attempt
to arrange the facts,
properly evaluated, particularly with regard to the burden of proof,
in a mosaic in order to determine whether
the alleged proof indeed
goes beyond reasonable doubt or whether it falls short and thus falls
within the area of a reasonable
alternative hypothesis. In so doing,
the criminal court does not weigh one ''case'' against another but
strives for a conclusion
(whether the guilt of the accused has been
proved beyond a reasonable doubt) during which process it is obliged,
depending on the
circumstances, to determine at the end of the case:
(1) where the defence has not presented any evidence, whether the
State, taking
into account the onus, has presented a
prima
facie
case which supports
conclusively the State's I proffered conclusion; (2) where the
defence has presented evidence, whether the totality
of the
evidentiary material, taking into account the
onus
,
supports the State's proffered conclusion. Where there is a direct
dispute in respect of the facts essential for a conclusion
of guilt
it must not be approached: (a) by finding that the State's version is
acceptable and that therefore the defence version
must be rejected;
(b) by weighing up the State case against the defence case as
independent masses of evidence; or (c) by ignoring
the State case and
looking at the defence case in isolation.'
From the aforegoing, it must at this
stage already be clear that there is no
onus
on an accused to convince a court of
any of the propositions advanced by him. It is for the State to prove
the propositions false
beyond reasonable doubt.
See
R
v Difford
1937 AD 370
at
373:
'It is not disputed on behalf of the
defence that in the absence of some explanation the Court would be
entitled to convict the
accused. It is not a question of throwing any
onus on the accused, but in these circumstances it would be a
conclusion which the
Court could draw if no explanation were given.
It is equally clear that no onus rests on the accused to convince the
Court of the
truth of any explanation be gives. If he gives an
explanation, even if that explanation be improbable, the Court is not
entitled
to convict unless it is satisfied, not only that the
explanation is improbable, but that beyond any reasonable doubt it is
false.
If there is any reasonable possibility of his explanation
being true, then he is entitled to his acquittal . …'
All evidence requires a court to
engage in inferential reasoning. Reference is hereinbefore made to
circumstantial evidence. The
question is: how should a court approach
circumstantial evidence?
In
S
v Mtsweni
1985 (1) SA 590
(A) at 593E-I it is emphasised that only proven facts can form the
basis for legitimate inferences. Furthermore, inferences can
only be
drawn if the logical dictates of
R
v Blom
1939 AD 188
at 202-3
are fully complied with. In the
Blom
case Watermeyer CJ states as follows:
'In reasoning by inference there are
two cardinal rules of logic which cannot be ignored:
(1) The inference sought to be drawn
must be consistent with all the proved facts. If it is not, the
inference cannot be drawn.
(2) The proved facts should be such
that they exclude every reasonable inference from them save the one
sought to be drawn. If they
do not exclude other reasonable
inferences, then there must be a doubt whether the inference sought
to be drawn is correct.'
THE EVIDENCE
(5) My Learned colleague
has aptly summerised the evidence adduced in the court-a-quo. In
determining whether the State has discharged
its onus, I turn to
consider the totality of the evidence, and in particular the reasons
predicating my colleaque’s conclusion
that the State has failed
to discharge the onus reposing on it beyond a reasonable doubt, by
applying the aforementioned legal
principles. It is instructive to
bear in mind that proof beyond reasonable doubt does not mean proof
beyond a shadow of doubt.
(6) At the outset because
my colleague has found that magistrate misdirected himself
materially, this court is obliged to decide
the case purely on the
record (without having the benefit of seeing the witnesses) with the
result that the question of onus becomes
all-important
(see
R v Dhlumayo 1948 (2) 677 (A) at 706, principles 11 and 13).
THE COMPLAINANT’S
VERSION
(7) The complainant
testified that after telling the appellant that she was terminating
their relationship, he persuaded her to
accompany him to a hostel in
Vosloorus under the guise of soberly discussing her decision, Events
went awry when the appellant
locked the door and refused to allow her
to leave, and subsequently forced himself on her by having non
consensual intercourse
with her.
(a)
According to the
complainant
the
first non-consensual intercourse
occurred
on the 22 November 2008 at the Vosloorus hostel and subsequently at
Diepkloof hostel after the appellant “
told
her that she is not going home today.
”
She
testified that the appellant pushed her on to the bed, slapped her
and instructed her to remove her clothes. She stated that
she
submitted to the appellant’s demands because she was scared and
thought the appellant was going to kill her.
She testified
“
He then had sex
with me only one round, when he had finished he had a rest, later he
did the same for the second time now”
Record
page 13 line 1 – 3
;
(b)
The
second non consensual sexual intercourse
was
in the early hours of the 23 November 2008. When the court asked the
complainant
“
Now
this what you refer to as a second time was this obviously also after
midnight – Yes your worship”
Record
page 13 line 5 – 10;
The complainant explained
further that the appellant:
“
had
sex with me that Saturday night midnight or the first part he
finished he had a rest that is when we continued with the argument,

then he got on top of me early hours of Sunday”
Record page 15 line
3 – 6;
Complainant further
testified that in the
:
“Early hours of Sunday early hours of the morning that is when
he got on top of me and had sex with me for the second round”
Record page 15 line
10 – 13 and page line 22
–
24;
The third
non-consensual sexual
intercourse
the complainant
testified happened
“
On
Sunday evening he then raped me again had sex with me again”
Record page 18 line
20 – 24; and
The fourth
non-consensual sexual intercourse
the
complainant testified occurred
“
then
we slept there that night until in the morning, Monday following day
then he locked, he got on top of me and he raped me
as he did before
Record page 18 line
24 – 25 and page 19 line 1 – 2
(8) The complainant
testified that she jumped out of the appellant’s moving vehicle
because the appellant although he had
undertaken to drop her at her
residence, had driven past her residence and had threatened to kill
her.
THE APPELLANT’S
EVIDENCE
(9) In his plea
explanation and his evidence in chief the appellant confirmed that he
and the complainant had an agreement to meet
at around about 14.00 on
the 22 November 2008. The appellant never alleged either in his plea
or evidence that he and the complainant
also agreed to spend the
whole weekend together. The fact that the complainant required a
change of clothing demonstrates that
there was no agreement to spend
the weekend together. The complainant testified that on appellant’s
instructions she phoned
her husband and told him to leave the house
key in order to enable her to obtain or secure fresh clothing.
(10) In his plea
explanation the appellant stated that he and the complainant went in
his vehicle to Bamboga Squatter Camp to one
of his friend’s
place, where after all three had partaken of a meal prepared by the
complainant, he and the complainant went
to bed had consensual sex
and thereafter slept in that hostel room.
(11) In his evidence in
chief the appellant testified that
”
I
continued working until late at around about 20.00 in the evening. We
were together the whole time when we went to my place where
I reside,
we went there to go and sleep there at my place together with her.
During the night we had sexual intercourse and when
we finished we
slept until the early hours of the morning the following day”
Record page 66 line
6 - 13
Later he contradicted
himself and testified that;
“
we
went later to the hostel….my friend was there. He is the owner
of the place…..we arrived late in the evening…..we
ate,
when we had finished eating we went to bed to go and sleep.”
It
is impossible if not improbable that the appellant and the
complainant slept at two different places during the same time
period.
(12) The appellant’s
counsel when leading him, put it to the complainant: “
Now
accused also informs me that you told him that your husband had found
another woman and that would mean that you are now free,”
Record
page 27 line 17 – 19
“
further
that you told her that if she escaped you will go to her house and
you are going to kill her husband.
The
appellant responded
“
No
I disagree with that too because I did not know that she is a married
woman she said the relationship had broken down……I

would not say such things if I knew that they are still in love with
her husband if the relationship was still on”
Record
page 71 line 17 – 23
(13) Under cross –
examination the appellant contradicted this evidence when asked by
the prosecutor: “
did
her husband not know about the affair by the time you spoke to him
(that is on the 22 November 2008) at about 21.25?
The
appellant responded
,
“Not at all, it was my first time to know that there is a
husband when I was here in court when he was testifying,”
Record
page 76 line 15 - 17
(14) Under cross –
examination when it was put to the appellant that the complainant
indicated to the court that you had sexual
intercourse with her four
times, the appellant testified that “
No
I disagree with that, it was only twice not four times,”
Record
page 76 line 8 – 10.
The
appellant when led by his counsel contradicted this assertion, he
testified that: he had sexual intercourse with the complainant
four
times:
(a)
The
first sexual encounter:
“
after
talking to the complainant’s husband had consensual sexual
intercourse on the evening of the 22 November 2008’,
Record
page 70 line 1 – 9
;
(b)
The
second sexual encounter:
“
now
close to midnight (that is the 22 November 2008) almost the next day
(that is 23 November 2008) or the next day she said that
you had
sexual intercourse again with her – Yes I do not dispute
that….but it was consensual sex……
Record
page 70 line 20 0- 24;
(c)
The
third sexual encounter:
“
now
on the next day (that is the 23 November 2008) she said was not
dressed and you got on top of her again and had sex without
her
consent – She is lying that was not against her will,
Record
page 71 line 4 – 6;
(d)
The
fourth sexual encounter:
“
she
said, late, much later on Sunday night you had sexual intercourse
again with her without her consent – we did as usual,
there was
nothing wrong.
Record
page 72 line 8 – 10
.
(15) The appellant’s
counsel put to the complainant that the appellant will deny that he
took you to the sangoma
Record
page 33 line 1 – 2.
When led by his counsel
the appellant conceded that they both went to the sangoma, appellant
testified that
”…
..there
was no medication given to us, I am the one who wanted to go there
seeing that she said she had problems with her husband.
I said she
should go and check herself there too”
Record
page 73 line 5 – 9
.
(16) The appellant
testified that the police found him seated in his vehicle. The police
did not chase him, he had stopped, the
police assaulted him, because
the accused him of having pushed the complainant out of his vehicle.
He ran away because his life
was in danger. This evidence was never
proffered in his evidence in chief. Police reservist Mokoena
testified that after the complainant
had jumped out of the vehicle
the appellant did not attempt to stop, he drove away, they chased his
vehicle, appellant stopped
got out of the vehicle, and ran away they
chased him and arrested him. The court-a-quo correctly accepted the
evidence of police
reservist Mokoena.
(17) When asked by the
prosecutor why the complainant would jump out of a moving vehicle
endangering her life, the appellant responded
that he did not know
the reason but “
thinks
it is because he got a phone call whilst they were in Soweto from a
lady and the complainant said he is fooling with her”
Record page 78 line
1 – 9.
(18) The appellant’s
improbable explanation should be viewed against the background that
he admits that he drove past the
complainant’s residence and
drove away with her because she was angry and not communicating with
him, as opposed to the complainant’s
version that the appellant
told her that he had changed his mind and was no longer going to drop
her off at her residence because
she was going to lay a charge and
get him arrested.
MOTLOUNG AJ’S
FINDINGS
(19) I respectfully
disagree with the premises predicating my colleague’s findings
and I address some of them
ad
seriatim
.
It is not correct that the complainant’s version is riddled
with contradictions, inconsistencies and is not credible or
reliable.
There is consistency in the complainant’s evidence which
attests to her allegation that she was kept in Vosloorus
and Soweto
against her will and forced to have intercourse without her consent.
Record page 9 line
19 - 25
(20) The complainant’s
reason for jumping out of a moving vehicle and imperiling her life
when she saw the police and thereafter
contemponeously
making reports to Captain
Moshoane and Police Reservist Mokoena are consistent with her version
that she was held against her will.
In contradistinction the
appellant’s proffered reason for complainant’s accusation
was:
“
the
complainant’s reason to allege that he kidnapped and raped her
is because she had already decided she wants to give false

information so that she may lay a charge against me, she wanted me to
be arrested, but I do not know
,”
or
that
it was because that the complainant had, had an argument regarding
the fact that he had spoken to a young woman in Soweto,
or that the
complainant was afraid of her husband.
Record
page 74 and page 76 line 3 - 7
(21) When Captain
Motshoane interviewed the complainant, she told her that the
appellant had deprived her of her liberty, threatened
to kill her and
raped her, further the complainant related a comprehensive version
similar to the one complainant testified to
in court.
Record
page 43 – 46
Captain
Motshoane further testified that the complainant’s emotional
state was sad.
Record page 74 line
13 – 20
(22) The evidence
attesting to the consistency in her version, finds support in the
evidence of her husband Tsotetsi who testified
that when the
complainant spoke to him on the phone she was crying, that “
the
appellant grabbed the phone and speaking in Zulu told him that “you
could not be with your wife today because this wife
is mine”
Record page 55 line
6 – 9 record
(23) The complainant’s
husband Tsotetsi corroborates her evidence that the appellant “
was
swearing at my husband….telling my husband that you
are no longer going to
get her back.”
Record
page 11 line 20 – 23
(24) The complainant
after having jumped out of the appellant’s vehicle
contemporaneously and spontaneously reported fully
to firstly Mokoena
that:
“
He kidnapped me
and he kept me for a few days at a certain place and he was raping me
all the time
”
Record page 51 line
2 – 4
In
S
v Hammond
2004 (2) SACR 303
para [12]
it
was held:
“
[12] It is
often said that the fact that a complainant in a sexual misconduct
case made a complaint soon after the alleged offences,
the terms of
that complaint, are admissible for two purposes, namely, to show the
consistency of the complainant’s evidence,
and to negative
consent. “See, also
R
v M
1959 (1) SA 352
(A) at 355G-H.
(25) The complainant’s
ordeal spanned four days and should be understood in the context of
the fact that she wanted to terminate
her affair with the appellant;
it is he who suggested that they should repair to Basuto Hostel in
Vosloorus, subsequently to Diepkloof
Hostel in Soweto. The
complainant testified that she was threatened with death, that she
believed these threats. She testified
that she was constantly under
the appellant’s control and observation, and was told if she
attempted to raise an alarm she
and her husband would be killed.
Record page 21 line
18 – 23.
(26) It is incorrect to
suggest that the complainant voluntarily telephoned her husband “
to
inform him that she no longer wished to live with him, or that he
must leave the keys of the house as she was coming to collect
her
clothes
.”
The complainant’s evidence is that at about 21.25 hrs on 22
November 2008 the appellant “
gave
her a cellphone, and instructed her that she should contact her
husband and inform him that she does not want him any longer,
as she
has got a new boyfriend.
”
Record page 9 line 15
- 17
(27) To demonstrate that
the complainant acted under compulsion, duress and on the appellant’s
instructions: On a question
from the Court, “
What
did you say to your husband when you phoned him - My husband asked me
what is happening or what is wrong then I said the accused
has locked
me into a room at the hostel, he is refusing that I should leave the
room and go away home.”
Record
page 10 line 15 - 20.
(28) The complainant’s
husband testified that during the telephone conversation on the 22
November 2008 with his wife she
was busy crying at that time
“
and she was
angry”
Record
page 55 line 6 and page 57 lines 24 and 25
and
further during this call the appellant grabbed the phone saying to
him “
you
could not be with your wife today because your wife is mine today
”
page 55 line 2 –
8.
Further
on Saturday the appellant answered the phone and swore at him.
Record
page 55 line 11 – 13.
(29) Further it is the
complainant’s evidence that on Monday morning:
“
when he had
finished raping me he picked up the phone, he gives it to me, he says
phone your husband tell your husband to leave
the key behind for you
so that you must go and fetch your clothes at his place meaning my
husband’s place. I then did what
he told me to do, I phoned my
husband and told my husband to leave the key behind for me
.”
Record page 19 line
1 - 5
(30) It is incorrect to
state that the complainant and the appellant met another person at
Vasatu Hostel Vosloorus and in Soweto
(Diepkloof) Hostel and a
sangoma but that the complainant did not seek help and no explanation
was given for this omission. Further,
the conclusion that the
complainant could and should have raised an alarm with the male
parties at the two hostels, the lady at
the Soweto house, or the
sangoma as nothing prevented her from doing so or there is nothing
that shows she never had the opportunity
to do so misconceives the
objective evidence.
(31) The Court posed the
question
“
Now
just explain to us also to understand you are now walking the Streets
of Vosloorus, why did you not raise an alarm?
The
complainant answered
:
“Your worship I was scared because he threatened me earlier on
he said if I dare run away or raise an alarm to somebody
he is going
to kill me and kill my husband too, that is the reason why I did not
raise an alarm”
Record
page 19 lines 24 - 26 and page 20 lines 1 and 2
.
(32) The fact of the
matter is that the complainant solicited assistance from the lady in
the Soweto house. The complainant testified
that the appellant
threatened her with death, and brazenly told her that nobody would
come to her assistance at the hostels. In
any event, the males at the
two hostels were the appellants friends, these males didn’t
tarry long, and were only engaged
by the appellant, and at no stage
were these males in the presence of the complainant only. The
appellant was in a dominant position
over the complainant who was
caught in the throes of his threats and her fear.
(33) Further the
complainant testified
:
“we left Vosloorus, we went to Soweto on our arrival in Soweto,
I informed the owner of the house, whilst seated there I
informed the
owner of the house there and asked for assistance from her, she then
said I am afraid of the accused, I cannot assist
you there is nothing
I can do.”
Record page 20 line
9 - 12
(34) Further the
complainant testified
”
I
was busy crying the whole time, the accused said to me even if you
can cry there is nobody who is going to assist you here at
the
hostel….if I continue making noise he will stab me with a
knife, after stabbing me with a knife he will throw me underneath
the
bed at the hostel”.
The
complainant testified that she was scared and decided to comply with
appellant’s instructions.
(35) The complainant’s
further evidence is that
“
at
the Vasutu Hostel – Vosloorus is we arrived at the
hostel…..after getting in the, accused the said guy (that is

the owner of the room) was there but after we were seated there after
a while he left and went off away and the accused locked
the door”
Record
page 9 line 8 - 14
.
Consequently,
according to the complainant there was no opportune time to solicit
assistance. In any event the persons she met were
the appellant’s
friends, the complainant had resigned herself to her fate as she was
constantly under the appellant’s
threats and control
.
(36)
It
is incorrect to conclude that
“
despite
the arrest of the appellant, no knife (and cloth) was found…..which
were apparently going to be used to kill the
complainant.”
Reserve
Constable Mokoena did not testify that after chasing and arresting
the appellant he searched him, neither did the appellant
testify to
that effect, this issue was simply never canvassed.
In
S
v M
2006 (1) SACR 135
(SCA) at para 272
Cameron
JA said:”
‘
Accused persons
are entitled to be acquitted when there is reasonable doubt about
their guilt. That does not make it necessary or
permissible for
motives to be freely imputed to sexual offence complainants at
appellate level when these were not fairly and properly
explored in
their testimony. To permit this would threaten return to the
indefensible days when complainants were treated as inherently

unreliable, inherently inclined to false incrimination, and
inherently disposed to destructive jealousy in relation to their
consensual
male sexual partners.’
(37)
It
is incorrect to conclude that
“
there
is no evidence of the complainant behaving in a manner suggesting
that she did not want to go to the hostel with the appellant
or
that……she was in the appellant’s company
involuntarily.”
It
is common cause that the parties mutually agreed to meet at Goldspot
Shopping Centre, according to the complainant the purpose
of the
meeting was to terminate their love relationship or affair. The
complainant testified
“
I
told him that I want us to end up because I am no longer interested
in doing what I have been doing with you”
It
was after this discussion that the appellant drove away and said to
her
“
let
us go to the hostel so that we should go and talk over this problem
with us”
Record
page 8 line 8 and line 19-20.
(38) The complainant
testified that the appellant drove to Vasutu Hostel in Vosloorus
whereat the complainant believed the appellant
was going to discuss
the termination of their affair, but instead
“
after
entering the room the appellant locked the door and thereafter
threatened the complainant with death after locking the hostel
room
door and telling her that you are not going home today”.
The
complainant further testified she
“
informed
her husband that the (appellant) the accused has locked me into a
room at the hostel, he is refusing that I should leave
the room and
go away home”.
Record
page 10 line 16 – 19
(39) It is incorrect to
conclude that the complainant had her cellphone in her possession at
all material times when in the company
of the appellant, or
“
in
fact the complainant phoned her husband several times…….”
The evidence shows that
the appellant was in control of the complainant’s cellphone
consequently in effective possession of
the complainant’s
cellphone.
The
complainant testified that at Vasutu Hostel after the owner of the
room had left, at about 21.25 “the accused gave me
a phone, a
cellphone, he said I should contact my husband……I
scrolled my cellphone…..and I phoned him…….”
Record page 10 line
3 - 13
(40) Further the
complainant testified that
“
later
the accused takes the phone himself phoned my husband” –
Further
“
the
appellant said she must inform her husband that “…you
have got another boyfriend
,”
and she mero moto thereafter adviced her husband that the,
“
accused has
locked her into a room at the hostel and is refusing that she should
leave the room and go home, the accused immediately
took removed the
phone from me and he kept it”
Record
page 11 line 1-2.
Later the complainant
testified
:
“because he got the phone it is in his possession he then
phoned my husband again and he was swearing at my husband.”
In
my view these instances evidence the fact that the appellant was in
effective control and consequently in possession of the complainant’s

cellphone, having regard to the fact that the complainant’s
evidence is that at all times the appellant was in her presence,
and
she submitted herself, to the appellant’s authority and
command.
Record page 11 line
10
(41) It is not correct
that the complainant did not show an indication to go home. The
complainant testified that
“
we
were having an argument….I was busy telling him the whole time
that I want to go home, will you please leave me, I want
to go home”
Record page 14 line
3 - 5
(42) It is trite that
submission without resistance does not necessarily indicate consent.
See in this regard
R
v Swiggelaar 1950 (1) PH H61 (A)
where
it was held:
‘
Submission by
itself is no grant of consent, and if a man so intimidates a woman as
to induce her to abandon resistance and submit
to intercourse to
which she is unwilling, he commits the crime of rape. All the
circumstances must be taken into account to determine
whether
passivity is proof of implied consent or whether it is merely the
abandonment of outward resistance which the woman, while
persisting
in her objection to intercourse, is afraid to display or realizes its
useless.’
Further
the complainant testified that she was in fear because the appellant
had threatened her with death if she dared to run away
or raised an
alarm, consequently she resigned herself to her fate.
(43) The conclusion by my
colleague that he cannot understand why complainant’s husband
only reported the matter to the police
by preferring charges of
Kidnapping against the appellant and also reporting a case of a
missing person, such conduct is more consistent
with a version that
says there were serious problems in the relationship hence the
husband’s indifferent conduct.
(44) From the record
there is and no evidence suggesting that the complainant and her
husband had marital problems prior to the
22
nd
November 2008 despite her
adulterous affair with the appellant. The complainant’s husband
was desperate to find out where
exactly the complainant was, he even
utilised the services of a policeman to impersonate a social worker
in order to establish
the whereabouts of the complainant. He
testified that
“
I
spoke to Constable Selema…..to phone my wife and pretend to be
a social worker because I wanted to know their whereabouts
…Then
my wife answered the phone saying that we are at Soweto Hostel but I
do not know the name of that hostel.”
Record
page 56 line 18-21
(45) The complainant’s
husband’s version is corroborated by the complainant who under
cross-examination testified that
:
“ immediately when we got to Soweto….one police officer
phoned he was threatening me he said if he says he had given
the
children to the social worker the accused would release me so that I
should come back home.”
Record page 37 line
13-16
(46) My colleague’s
conclusion that “
it
is simply devastating against the respondent’s case as to why
did the husband say that if there are problems between them,
she must
discuss them with him, and not fetch her clothes in the company of
the appellant
”
is
not borne out by the evidence.
(47) It must be recalled
that the complainant’s husband was confronted with and was
grappling with the shocking reality that
his wife was having an
adulterous affair with the appellant whom she now accuses of
depriving her of her liberty. He testified
that
:
“On the 22 November 2008 at about 21.30 at night I received a
phone call…….(from his wife’s phone) the
male
person who identified himself as Bongani, adviced him that he could
not be with his wife today because she was his today.”
Record page 55 line
8 - 10
(48) My colleague’s
conclusion that
“
unless
there were serious marital problems then, and also unless the
appellant’s version was more probable the husband would
have
eagerly awaited and perhaps, waylaid the appellant when they came to
fetch the clothes, or even better still, reported the
matter to the
police so that they can spring a surprise on the unsuspecting
appellant.”
This
conclusion with respect is based on hypothetical speculation not
borne out by the
evidence.
The fact of the matter is the complainant’s husband reported
the matter at Dawn Park Police Station on the 24 November
2008 as a
reasonable concerned, husband and left the matter in the hands of the
police.
(49) Although my
colleague finds that he is inclined to believe that the appellant
indeed sped off the scene after the complainant
threw herself out (of
the moving vehicle) he does not at all deal with the reasoning which
motivated and impelled the complainant
at the risk of her life to do
so.
(50) In my view this
exigency has a direct bearing in the determination of whether the
complainant’s conduct is consistent
with her version that she
was kidnapped and the appellant had sexual intercourse with her
without her consent, and whether the
appellant’s conduct in not
coming to the assistance of the complainant who according to his
version was still his paramour,
is consistent with his version that
sexual intercourse with the complainant was consensual.
(51) The finding that
“
the
fact that he ran away when pursued by the police may well have been
an act of panic. After all it is clear from the circumstances
of this
case that the complainant had the hallmarks of a skilful manipulator,
and had to offer some dramatic explanation for her
to be accepted
back by her husband with impunity.”
With
respect these findings do not accord with the evidence. The appellant
in his evidence in chief testified that he did not run
away, that he
only ran away when the police assaulted him rendering his life in
danger. Reserve Constable Mokoena was never confronted
with this
version, which attests to the fact that it is a recent fabrication.
The complainant’s evidence is that: “
on
the 25 November 2008” when we came into Vosloorus….when
I was about to get off so that I should go to my place,
the accused
changed his version he said no you are no longer getting off because
you are going to lay a charge against me and the
police will arrest me.
He was now driving towards Kliprivier.”
Record page 21 line
18 – 22
(52) In
S
v Sauls and Others
[1981 (3)] SA 172
(AD) [Diemont JA]
held:
“
The State is,
however, not obliged to indulged in conjecture and find an answer to
every possible inference which ingenuity may
suggest any more than
the Court is called on to seek speculative explanations for conduct
which on the face it s incriminating.
And when the accused misleads
the Court by lying arguments based on improbable inferences are not
calculated to impress a trial
Judge. A passage in a minority judgment
given by Malan JA
in
R v Mlambo
1957 (4) SA 727
(A) at 738
is
apposite. I may add that two paragraphs in this passage were cited
with approval by Rumpff JA in
S
v Rama
1966 (2) SA 395
(A) at 401
:
“
In my opinion,
there is no obligation upon the Crown to close every avenue of escape
which may be said to be open to an accused.
It is sufficient for the
Crown to produce evidence by means of which such a high degree of
probability is raised that the ordinary
reasonable man, after mature
consideration, comes to the conclusion that there exists no
reasonable doubt that an accused has committed
the crime charged. He
must, in other words, be morally certain of the guilt of the accused.
An accused’s
claim to the benefit of a doubt when it may be said to exist must not
be derived from speculation but must rest
upon a reasonable and solid
foundation created either by positive evidence or gathered from
reasonable inferences which are not
in conflict with, or outweighed
by, the proved facts of the case.”
(53) In his evidence in
chief the appellant did not testify as to what efforts he made to
come to the assistance of the complainant
after she jumped out of the
vehicle. Under cross – examination he testified that
“
he tried to
stop,…..and whilst doing that, those police officers who drove
past had already made a u – turn and were
following” me
from behind…..the police did not give chase to me they found
that I had parked the vehicle and had stopped
they were busy hitting
me……now my life was in danger I decided to run away
from them.”
Record page 79 line
10 - 16
(54) Reserve Constable
Mokoena testified that the appellant did not stop, he drove away,
they gave chase, the appellant stopped
the vehicle got out and ran
away, they gave chase, arrested him and brought him back to the scene
where the complainant was lying.
The complainant made a report to
him:
“
she
said he kidnapped me and he kept me for a few days at a certain place
and he was raping me all the time.”
Record page 51 line
2 - 4
(55) Captain Motshoane
testified that on the same day that she interviewed the complainant
who was in an ambulance, she asked her
what actually happened: The
complainant told her: “
she
was kept from the 22
November
2008 until Monday “and the guy was having sex with her without
her consent”
Record
page 45 line 9 – 12
.
Further that
:
“she informed the appellant that they should stop their love
affair because she now felt it was not right”.
Record
page 43 line 17 – 24.
The
Captain when asked about the complainant’s emotional state,
answered that she was sad.
(56) It is incorrect to
find that
“
the
significance of this contradiction lies in the fact that the
complainant’s said explanation relates to why she threw herself

out of the moving vehicle”.
Fact
of the matter is, if it is accepted that Captain Motshoane is
correctly relating what the complainant told her regarding this

exigency, was the complainant telling a lie on this aspect. The
complainant was never confronted with this version.
(57) Differently stated,
is the complainant’s testimony on this aspect a material
contradiction that vitiates the whole of
her evidence? I do not
believe so. In my view it is not possible that the complainant would
have jumped from the moving vehicle
at the risk of endangering her
life without a compelling reason.
(58)
Judge
H C Nicholas delivered a lecture on ‘Credibility of Witnesses’
at 1984 Oliver Schreiner Memorial Lecture. The
learned Judge dealt
succinctly with factors a court takes into account in assessing
witness credibility, focusing on veracity,
reliability and
probability:
(a)
“
A
witness is proved to be in error where his statements are
contradicted by the proved facts or where he is guilty of
self-contradiction.
Where he has made contradictory statements, since
both cannot be correct, in one at least he must have spoken
erroneously. Yet
error does not in itself establish a lie. It merely
shows that in common with the rest of mankind the witness is liable
to make;
mistakes. A lie requires proof of conscious falsehood, proof
that the witness has deliberately misstated something contrary to his

own knowledge or belief.’…… ;
(b)
There
is no proof of conscious falsehood on the part of the complainant or
Captain Motshoane. In order for a court to reject the
complainant’s
evidence, more is required than the pointing to this contradiction;
there must be proof that this contradiction
was the result of a
deliberate and conscious falsehood. Such proof does not exist. In the
absence of proof of deliberate fabrication
a court cannot find that
the complainant or Captain Motshoane were mendacious and reject their
evidence on this basis. Their contradictions
on this aspect are of
such a nature that they are in all likelyhood the result of an honest
mistake.
(c)
Where
there is proof of a witness’s mendacity on one or more
occasions, this is not a ground for rejecting the witness’s

testimony in its entirety. The maxim falsus in uno falsus in omnibus
(false in one thing, false in all) has been rejected in South
African
law as unreliable and illogical.
(d)
Wigmore
has said of the maxim:
‘
It is untrue to
human nature. It is not correct that a person who tells a single lie
is therefore necessarily lying throughout his
testimony, nor that
there is any strong probability that he is so lying. This would not
entitle the court to reject automatically
all of the complainant’s
evidence as untrue. Of importance in this regard is the fact that The
‘material contradictions’
referred to by my colleague in
evidence did not relate to the essential elements of the offences.
The contradiction in the complainant’s
evidence if any is
insufficient to impugn fatally the credibility of the State’s
case or to preclude proof of the state’s
case beyond a
reasonable doubt; and
(e)
as
Judge Nicholas observes:
‘
The question is
not whether a witness is wholly truthful in all that he says, but
whether a court is satisfied, beyond a reasonable
doubt in a criminal
case, or on a balance of probabilities in a civil matter, that the
story which the witness tells is true in
its essential features.’
(59) It is trite that “
in
the adjudication of sexual cases there has grown up a cautionary rule
which requires (a) the recognition by the court of the
inherent
danger of relying on the testimony of a complainant, and (b) the
existence of some safeguard reducing the risk of wrong
conviction,
such as corroboration of the complainant in a respect implicating the
accused, or the absence of gainsaying evidence
from him, or his
mendacity as a witness, while there is always need fir special
caution in scrutinizing and weighing the evidence
of young children,
complainants in sexual cases, accomplices and generally the evidence
of a single witness, “courts must
guard against their reasoning
tending to become stifled by formalism” the exercise of caution
should not be allowed to displace
the exercise of common sense
.
See S v Snyman
1968 2 SA 582
(A); R v J
1966 1 SA 88
(RA) 90; S v
Artman
1968 3 SA 339
(A).”
(60) In
S
v Sauls and Others (supra)
it
was held:
“
The absence of
the word “credible” in
section
208
of the
Criminal Procedure Act 51 of 1977
,
which
provides that “an accused may be convicted on the single
evidence of any competent witness”, is of no significance;
the
single witness must still be credible but there are, as Wigmore on
Evidence
vol III para 2034 at 262
points
out, “indefinite degrees in this character we call
credibility”. There is no rule of thumb test or formula to

apply when it comes to a consideration of the credibility of the
single witness. The trial Judge will weigh his evidence, will

consider its merits and demerits and, having done so, will decide
whether, despite the fact that there are shortcomings or defects
or
contradictions in the testimony, he is satisfied that the truth has
been told. The cautionary rule referred to in
R
v Mokoena
1932 OPD 79
at 80
may
be a guide to a right decision but it does not mean “that the
appeal must succeed if any criticism, however slender, of
the
witnesses’ evidence were well founded”. It has been said
more than once that the exercise of caution must not be
allowed to
displace the exercise of common sense”.
See also
R
v Gumede
1949 3 SA 749
(A) 756 and S v Mokonto
1971 2 SA 319
(A)
323A. See also Colin v De Guisti
1975 4 SA 223
(NK) 228D and Carpede
v Choene
1986 3 SA 445
(O) 451, and S v Mafaladiso
2003 (1) SACR 583
(SCA) at 593e-594H.
cf S v Oosthuizen
1982 3 SA 571
(T) Cf also Merula Manier van Procederen 4 65 16:
“
Vascheid in
eenig Deel krent ‘t Geheel van de Depositie” (falsity in
any part detracts from the whole deposition)
PERCEIVED
CONTRADICTIONS
(61) My colleague’s
conclusion that
“
There
were many material contradictions and/or unsatisfactory features
and/or inconsistencies in relation to what her report was
to Captain
Moshoane for an example, she told her that the threat to go and kill
her happened as they left Soweto, whereas she testified
in Court that
the threat only came as a change of mind after they had arrived back
in Vosloorus after he went past where she was
supposed to get off”
is a
material contradiction is not correct
.
(62) There is no material
contradiction in the report the complainant made to Captain Motshoane
and her evidence in Court. Firstly
it must be recalled that Captain
Motshoane conducted what she called a
“
short
interview” with the complainant “who was sad and in
pains”
and
was injured after her traumatic experience of jumping out of a moving
vehicle.
(63) Secondly Captain
Motshoane initially tendered her evidence in English, and it became
obvious that she was not proficient in
the language to such an extent
that the magistrate requested her to testify in her mother language.
Captain Motshoane was struggling
to coherently and intelligently
express herself hence the Court asked her
“
do
you not
prefer speaking in
your own language, it will be so much easier….Ms interpreter
please help us.”
Record page 45 line
23 – 25
(64) The complainant in
her evidence in chief testified that on the 22 November 2008, at
21.25 after the appellant gave her cellphone
to contact her husband
and inform him that she no longer wants him as she has a new
boyfriend, because she was busy crying, the
appellant warned her
that
:
“if I continue making noise he will stab me with a knife, after
stabbing me with a knife he will throw me underneath the
bed there at
the hostel.”
(65) Critically it was at
the stage when Captain Motshoane testified that on Tuesday morning
the appellant took the cloth and knife
and told complainant that
today he was going to kill her, that the Court interjected that
Captain Motshoane testify in her own
language, further just before
then the prosecutor had remarked that “
I
do not follow you now, what are you saying.”
Record page 45 line
13.
(66) In my view this
evidence shows that the complainant did mention a knife in her
evidence in chief consequently it cannot cogently
be argued that when
she mentioned to Captain Motshoane (if the latter is correctly
enunciating the complainant’s report)
that the appellant before
leaving Diepkloof Hostel – Soweto took a cloth and knife and
said today I am going to kill you,
that assertion can be construed as
an intentional falsehood or a material contradiction if regard is had
to the probabilities pertaining
to the complainant’s and the
appellant’s versions.
(67) My colleague’s
conclusion’s premise is incorrect because the assumption
underpinning it, is that only one death
threat was made by the
appellant, and that was the threat testified to by Captain Motshoane.
However, a perusal of the record shows
that even if the complainant
did not in court testify about this threat at Diepkloof Hostel
Soweto, as testified to by Captain
Motshoane in court she did testify
that the appellant instead of dropping her off at her residence, told
her that he had changed
his mind, drove away with her saying that the
complainant and her husband were going to lay criminal charges
against him, consequently,
he had decided that he was going to kill
the complainant to prevent that.
(68) It is erroneous to
conclude that it is impossible to say when such threat was made
either in Soweto or Vosloorus. The probabilities
favour the
complainant’s version that she jumped out of a moving vehicle
endangering her life in the process, because the
appellant drove past
the complainant’s residence and had threatened to kill her.
More so, if one has regard to the fact that
the appellant’s
conduct despite professing not having made the threat, drove away
after the complainant jumped out of his
vehicle and did not stop to
offer her assistance or investigate the extent of her injuries, and
despite the police chasing him,
did not stop his vehicle is
inconsistent with his version that he did not deprive the complainant
of her liberty and had consensual
sex with her.
(69) When regard is had
to the fact that as at the 22 November 2008, the complainant had told
her husband that
“
the
accused has locked me into a room at the hostel, he is refusing that
I should leave the room and go away home,”
there
was totally no reason why she would jump out of the vehicle in order
to concoct a plausible reason for the edification of
her husband
regarding her absence from the marital home.
Record page 10 line
18 - 19
(70) In order words the
complainant’s husband already knew that the complainant was in
the company of the appellant more so
the appellant himself testified
under cross – examination that he told the complainant’s,
husband that he did not know
that the complainant was married. In my
view, therefore there is no compelling reason why the complainant
would jump out of a moving
vehicle at the risk of her life in order
to contrive a reason by risking death to convince her husband that
she was indeed kidnapped
and raped by the appellant when he was
already aware of such exigency as from the 22 November 2008.
(71) Surely this is not
the conduct of an innocent observer to the complainant’s
inexplicable and unexpected unfolding drama.
In these circumstances,
an innocent reasonable concerned lover would be expected to stop,
find out the reason of such outrageous
unsolicited behavior, and
commiserate with the complainant who according to appellant’s
version was still his lover, and
investigate the extent of her
injuries and solicit medical assistance for her.
THE COURT’S
PERCEIVED BIAS
(72) A court of appeal
should not on the basis of mere assumptions and in the absence of
clear evidence find that a trial court
has committed an irregularity
in any event not every irregularity viates the proceedings. The
conclusion that the court was unduly
predisposed towards the
complainant and the State’s case is not born out by the record.
The court a quo had the advantage
of viewing the complainant testify
and its observation that the complainant was not familiar with court
procedure is well founded
having regard to the fact that the court
that did not sit supine, it was aware of the issues, it understood
the language spoken
by the complainant, he sought clarity and sought
to get to the crux of the disputed facts.
Page 15 line 20 –
23.
(73) In
Rex
v Hepworth 1928 [Curlewis, J.A.]
held:
“
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 figure head, he has not
only to direct and control the
proceedings according to recognized
rules of procedure but to see that justice is done.”……….The
intention
of
section 247
seems to me to give a judge in a criminal
trial wide discretion and power in the conduct of the proceedings, so
that an innocent
person be not convicted or a guilty person get free
by reason inter alia, of some omission, mistake or technicality.”
THE MAGISTRATE’S
FINDINGS
(74) In my view an
analysis and evaluation of the complainant’s version shows that
in its essential features it has the hallmarks
of the truth as to how
the concatenation of events on that fateful weekend played themselves
out, it is too detailed to lend itself
to fabrication. The defining
salient features of her evidence are consistent with her testimony
that she was deprived of her liberty
and forced to have sexual
intercourse without her consent.
(75) I concur with the
court a quo’s conclusion that “
the
complainant never deviated from her version, that the appellant’s
counsel’s thorough cross – examination had
no adverse
effect on her testimony, that she stood rigidly by her evidence
.”
In contradistinction the court-a-quo correctly found that the State
had proven the case against the appellant beyond reasonable
doubt,
and correctly rejected the appellant’s version as false beyond
reasonable doubt.
(76) In the premises it
is my view that the appeal both on the conviction and the sentence
should have been dismissed.
Dated at Johannesburg on
the 15
th
November 2010.
­­
_______________________________
MOKGOATLHENG J
JUDGE OF THE HIGH COURT
For
Appellant:
:..........................
Adv
Cosyn
Instructed
by:
.............................
Legal
Aid South Africa: Johannesburg
For
Respondent:
......................
Adv
Serepo
DATE
OF HEARING:
..............
25 October 2010
DATE
OF JUDGMENT:
..........
15 November 2010