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[2020] ZAGPJHC 359
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Sibanda v S (A114/2019) [2020] ZAGPJHC 359 (22 June 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE NO: A114/2019
DPP
REF NO: 10/2/5/1-(2019/094)
In
the matter between:
SIBANDA
,
JOSEPH
Appellant
and
THE
STATE
Respondent
JUDGMENT
DE
VILLIERS, AJ:
[1]
The appellant appeals with leave of the court
a quo
his
conviction on two charges of rape (as set out in the Criminal Law
Amendment Act, 32 of 2007, and as read with the
Criminal Procedure
Act, 51 of 1977
) and one of kidnapping pertaining to events that took
place on 4 October 2016. He was convicted on 29 June 2017 in the
Johannesburg
Regional Court by magistrate Graf. Mr Ngxumza
represented the appellant throughout the hearing. The state called
four witnesses:
The complainant, her ex-boyfriend (Mr Malatji), a
close friend (Ms Moshile), and a forensic nurse (Ms Maseko). The
appellant also
testified.
[2]
On 3 October 2016 the complainant commenced to
rent a shack
[1]
in an informal settlement from the appellant, and paid her first
rent. Until then the complainant and Mr Malatji were in a
relationship
and had occupied a shack in an informal settlement. It
is common cause that the relationship did not end well. According to
the
complainant, the relationship involved domestic violence. Mr
Malatji alleged that he had no knowledge of a so-called protection
order that the appellant obtained against him, and elected not to
answer questions about his alleged violent conduct towards the
complainant. Tellingly, Mr Malatji kept the two telephones of the
complainant when she left the common home. As will appear below,
it
was to Mr Malatji that the complainant turned for help.
[3]
The appellant stayed in the adjacent shack to the one
rented by the
complainant. The appellant testified that the complainant had been in
occupation of the shack rented from him for
some days before 4
October 2016, and once even had a meal with him after she had moved
into her shack. This version had not been
put to the complainant or
to Mr Malatji for comment.
[4]
After the complainant had left, Mr Malatji found the
number of the
appellant on the one phone belonging to the complainant, phoned the
appellant, and demanded that he must evict the
complainant. Mr
Malatji confirmed such a request. The impression left in his evidence
is that he made several calls to the appellant.
On the appellant’s
version, Mr Malatji in order to ensure the eviction of the
complainant, threatened to burn down his shack,
and not only phoned
him, but visited him as well too to make the demand. This version of
a visit had not been put to the complainant
or to Mr Malatji for
comment. Mr Malatji denied the threat, but admitted the telephonic
request. After the demand by Mr Malati,
the appellant returned the
complainant’s rent, and sought to evict her. At her insistence,
the complainant, Ms Moshile and
the appellant went to the police. The
police advised the appellant that he could not evict the complainant
as intended. At the
risk of repetition, as will appear below, it was
to Mr Malatji that the complainant turned for help.
[5]
That night between 20H00 to 21H00 the appellant called
the
complainant into his shack, supposedly to discuss the renting of the
shack. Whilst she was there the appellant (on the complainant’s
version) received a call from Mr Malatji at about 22H00. Nothing
really turns on the time of the call, or whether the specific
call
was made by the appellant or not, as the conversation is common
cause. The appellant told Mr Malatji to fetch the complainant.
During
this discussion, the advice by the police was conveyed, namely that
the appellant had to give the complainant three months’
notice
to evict her. The complainant, on her version, knew of the call as
she was in the appellant’s shack at the time. No
other
explanation why she would have known of the call was pursued in the
evidence and in the cross-examination.
[6]
Against this background of a woman, living in poverty,
without a
place to stay if evicted, whose means of communication had been taken
from her, the rest of the story unfolded. On the
complainant’s
version, the appellant in his shack asked the complainant to enter
into a sexual (called a “
love
”) relationship with
him. They hardly knew each other. He also knew that she had just
ended a relationship, evidently on bad
terms. She refused. This
angered the appellant, who saw her refusal as a sign of disrespect.
The appellant then he locked the door
to his shack with a chain and
padlock, before he strangled the complainant, and raped her. The
complainant was so afraid during
the strangling that she wet herself
and the bed. After this ordeal, the appellant threatened the
complainant. He said that he would
kill her and dump her body at a
railway or railway station. He even looked for his phone to contact
his friends who would assist
him in such an undertaking, and spoke
(or pretended to speak) to someone. The complainant begged for her
life and promised to tell
no one of what had happened. The appellant
then raped her again.
[7]
The appellant denied this evidence. The logical consequence
of his
denial is that the accusations of the rapes and kidnapping were
fabricated. It was common cause that he and the complainant
hardly
knew each other before she rented the shack from him.
[8]
On the complainant’s version, the next day, on
5 October 2016,
very early that morning the complainant begged to go to work. The
appellant allowed the complainant to collect
toiletries from her
shack, before she had to return to wash in his shack. The appellant
added
muti
to the water to ward off Mr Malatji. On the
complainant’s version, the appellant was reluctant to allow her
to go to work,
as he said she would go to the police and report the
matter. He decided to escort her to work, and demanded that she had
to inform
him when she was ready to return, as he wanted to pick her
up. To this end, just before they arrived at her work, he gave her a
cellphone to phone him. It is common cause that the appellant had
accompanied the complainant to work, but the appellant had a
different version how this came about.
[9]
On the appellant’s version, the complainant called
him
throughout the night to accompany her to work, as she was scared of
Mr Malatji. She made such a nuisance of herself, that he
gave the
phone to his wife to answer. It was not clarified when and where the
complainant obtained such a phone. One must bear
in mind the context
of (on the appellant’s version) that this alleged plea for help
took place immediately after his attempted
eviction of the
complainant. His case was that within hours of seeking to evict her
and asking her ex-boyfriend to fetch her, she
turned to him for help
and in fact pestered him.
[10]
The complainant worked as a domestic worker, and her employers had
left
home before her arrival for work, and had not arrived by the
time she left again. Whilst at work, the appellant could not phone
Ms
Moshile, who did not have a phone. When the appellant collected the
complainant from work, he was accompanied by Mr Malatji.
On the
complainant’s version she phoned a number she knew, her own on
one of her two cellphones, seeking help from the person
in possession
of her phone, Mr Malatji. She told him that she had something to tell
him. Mr Malatji testified that the complainant
had called him, asking
not to come to her place of work with the appellant. He also
testified that the appellant had called him
after he had sent him a
“please-call-me” message. The intent was that they would
“
confront
” the complainant. The appellant’s
version was that the complainant called him to collect her, and that
he called Mr
Malatji in order for the complainant and Mr Malatji to
resolve their differences. It is common cause that the three walked
home.
[11]
Whilst the three walked home, and the appellant was a distance away,
the complainant told Mr Malatji that the appellant strangled her,
threatened to kill her, and to dump her body at a railway station.
She did not mention the rapes. Upon arriving at the informal
settlement, Mr Malatji conveyed the facts known to him to Ms Moshile.
Ms Moshile fetched the complainant from her shack. At Ms Moshile’s
shack, the complainant confirmed the strangling, and started
crying.
Upon inquiry, she told Ms Moshile and (later) Mr Malatji of the rapes
as well. The complainant and Mr Malatji went to the
police station to
lay charges. In other words, the complainant lodged a complaint with
the police on the first evening after the
rapes, 5 October 2016. She
underwent a medical examination the next day by a forensic nurse, Ms
Maseko. The gynaecological examination
revealed signs of vaginal
bruising, consistent with vaginal penetration.
[12]
Ordinarily one would look at the appellant’s heads of argument
to determine the issues on appeal. In this case, one could not do so.
Apart from quotations from cases, and innocuous references
to a very
brief chronology of the trial, the court of appeal was asked to
overturn a conviction on these terse submissions:
“
Disputed facts:
8.
Was the complainant kidnapped and raped by the appellant.
9.
Whether the version of the appellant can be accepted as being
reasonably possibly true.
…
12
The appellant testified and denied the allegations.
Record page 125 lines 22 to 24
.
…
22
It is submitted that the version of the appellant can be accepted as
being
reasonably possibly true
.”
[13]
The first court of appeal clearly was upset by this standard of work.
When the matter came before the Honourable Coppin J and McAfferty AJ
on 21 November 2019, they postponed the matter and ordered:
“
The
appellant is ordered to deliver supplementary heads no later than 28
November 2019, dealing with the grounds in the notice of
application
for leave to appeal dated 28 November 2018
.”
[14]
Only one-and-half pages of supplementary heads of argument followed.
These additional heads first made one point, namely that there was no
clinical evidence to support the complainant’s version
that she
had been strangled. Then followed only these two submissions were
made:
“
4.
The complainant did not escape or alarmed anyone of being raped.
5.
The complainant failed to inform Maleka
[2]
of the rape
.”
[15]
This judgment is not limited to the three grounds set out in the
heads
of argument, but also addresses the grounds set out in the
application for leave to appeal to consider if the appellant’s
guilt has been established beyond reasonable doubt:
[15.1]
The complainant did not scream for help.
(This
criticism was not put to the complainant for comment. It would be
unfair to ask a court to disbelieve her on this basis. See
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
2000 (1) SA 1
(CC) para 61-63. I add,
who would have screamed after having been strangled, locked in a room
with one’s assailant, and having
been threatened with death?
The complainant was petrified);
[15.2]
The complainant was briefly on her own during the early morning of 5
October
2016 to collect toiletries, and did not then run away, but
instead returned to the shack.
(This
criticism was not put to the complainant for comment. I add, the
evidence was that the two shacks were a unit, secured from
the street
with a gate. There was no evidence that escape was even possible. The
complainant had been through a night of terror
of physical and
emotional violence. Who could blame a traumatised person for being
submissive? On her version, she did not want
to cause problems for
herself, as the appellant was suspicious of her);
[15.3]
The complainant did not leave her place of employment to go to the
police
on 5 October 2016.
(The
complainant is not on trial for how quickly she reacted in reporting
the crimes to others and the police. Her ordeal must have
been
emotionally painful and frightening. Her conduct is consistent with
what one would encounter when a frightened, raped woman,
vulnerable
to exploitation, would have reacted);
[15.4]
The complainant did not immediately tell Mr Malatji of the rapes. The
complainant
only told Ms Moshile and Mr Malatji of the rapes after
having been asked by Ms Moshile if she was only strangled (or if
something
else also happened).
(The
complainant’s evidence was that she was ashamed. She waited to
speak to Ms Moshile who would not judge her. Her language
in
describing these feelings, fills one with compassion. In considering
the failure to tell Mr Malatji everything, immediately,
one must
consider that he is the man with whom her relationship had formally
ended the previous day, the man who had sought to
engineer her
eviction from her newly acquired room, the man who had kept her
telephones, the man she said was violent towards her.
The complainant
turned to this man for help and then did not make a full disclosure
immediately when the assailant was about a
few metres away as they
walked. Why does such conduct reflect a lying witness?)
[15.5]
There was no physical evidence of strangulation.
(Ms
Maseko testified that this would depend on the level of violence
used. It is a non-issue.)
[15.6]
The complainant was a single witness.
(It
is trite that a conviction may follow on such evidence. The
complainant’s evidence was satisfactory in all material
respects.
See
S v Sauls and Others
1981 (3) SA 172
(A)
at 180C-H.)
[16]
The appellant’s version is that he was with his wife during the
night in question. I must add, “alleged” wife, as the
complainant had no knowledge of such a relationship. One would
have
expected the complainant to have knowledge of the status of the
appellant, as his shack was next to the communal water tap
where she
collected water and met the appellant. According to her, the person
worked for the appellant and resided elsewhere, in
“
A
Section
”. The appellant’s alleged wife did not
testify. According to an objection by the state prosecutor evident
from the
appeal record, she attended the trial. There is no
suggestion that she was not available to testify.
[17]
The law on the evaluation of evidence is trite. I refer to some of
the
well-known cases. Regarding interfering in factual findings on
appeal, I refer to two decisions by the Supreme Court of Appeal:
[17.1]
S v Francis
1991 (1)
SACR 198
(A) at 198J - 199A:
"
The
powers of a court of appeal to interfere with the findings of facts
of a trial court are limited. In the absence of any misdirection,
the
trial court's conclusion, including its acceptance of a witness's
evidence is presumed to be correct. In order to succeed on
appeal,
the appellant must therefore convince the court on adequate grounds
that the trial court was wrong in accepting the witness's
evidence -
a reasonable doubt will not suffice to interfere with its findings.
Bearing in mind the advantage which a trial court
has of seeing,
hearing and appraising a witness, it is only in exceptional cases
that the court of appeal will be entitled to interfere
with a trial
court's evaluation of oral testimony
".
[17.2]
Naidoo v S
[2019] ZASCA 52
para 46:
“
As an appellate court it is essential that we
remain cognisant of the strictures on us as far as the trial court’s
factual
findings are concerned. Absent demonstrable, material
misdirections and clearly erroneous findings, we are bound by the
trial court’s
factual findings.
[3]
It is not for an appellate court ‘to second-guess the
well-reasoned factual findings of the trial court’.
[4]
We are not the triers of fact at first instance. …”;
[18]
Applying that law in this case, presented little
difficulty. If the state’s evidence is considered in the light
of all the
evidence (as one must do),
[5]
including:
[18.1]
The fact that there were no contradictions in the complainant’s
evidence.
The one or two instances of slight deviations between her
evidence and that of Mr Malitji, does not reflect a reason to
disbelieve
her;
[18.2]
There are no inherent improbabilities in the evidence of the
complainant,
whilst the same cannot be said of the appellant’s
version. The earlier comments herein pertaining to the probabilities,
are
not repeated;
[18.3]
The appellant’s version, where she interacted with third
parties, was
confirmed by those witnesses;
[18.4]
The improbability that the complainant would have sought help from Mr
Malatji
of all people due to their recent past interaction, unless
she had nowhere else to turn after truly traumatic events;
[18.5]
The medical evidence of recent vaginal penetration, for which no
explanation
but the two rapes, has been suggested;
[18.6]
The omission of the appellant to ensure that his full version was put
to
state witnesses;
[18.7]
The appellant’s omission to lead evidence from his alibi
witness, his
wife. The case against the appellant was too strong for
him to advance an alleged alibi defence without calling his wife. A
negative
inference in this matter, when all the evidence is
considered is appropriate. See
Elgin Fireclays Limited v Webb
1947 (4) SA 744
(A) at 749-750.
[19]
I have no doubt that the learned magistrate Graf correctly analysed
the
case. The judgment is properly reasoned and its outcome is
correct. No demonstrable, material misdirections or clearly erroneous
findings were made. To my mind the State evidence in this matter is
so convincing as to exclude a reasonable possibility that the
appellant might be innocent. See too
R v Mlambo
1957
(4) SA 727
(A) 738A-C:
“
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
.”
[20]
For the reasons above, I propose that the following order be made:
1.
The appeal is dismissed
_______________________
DP
de Villiers AJ
I
agree and it is so ordered
_______________________
MMP Mdalana-Mayisela J
Heard
on: 8 June 2020 (matter determined on written submission at the
parties’ request who elected not to make oral submissions
due
to Covid-19 restrictions)
Delivered
on:
22 June 2020 electronically, by e-mail
On
behalf of the Appellant:
Adv AH Lerm
On
behalf of the Respondents: Adv VH Mongwane
[1]
The use of the term is not intended as disrespectful, but to
illustrate graphically the environment where the complainant found
herself.
[2]
The reference to Maleka is wrong, it is the name of the witness, his
surname is Malatji.
[3]
“11
S v Hadebe & Others
1997 (2) SACR 641
(SCA) at 645E-F;
S v Modiga
[2015] ZASCA 94
;
[2015] 4 All SA 13
(SCA) para 23.“
[4]
“
12
Mashongwa
v PRASA
[2015]
ZACC 36
;
2016 (3) SA 528
(CC) para 45.“
[5]
Shilakwe v S
[2011]
ZASCA 104
para 11 and 14;
S v Van Der Meyden
1999 (2) SA 79
(W) at 80H-82B. See too
S v
Chabalala
2003 (1) SACR 134
(SCA) para 15:
“
The
correct approach is to weigh up all the elements which point towards
the guilt of the accused against all those which are
indicative of
his innocence, taking proper account of inherent strengths and
weaknesses, probabilities and improbabilities on
both sides and,
having done so, to decide whether the balance weighs so heavily in
favour of the State as to exclude any reasonable
doubt about the
accused’s guilt. The result may prove that one scrap of
evidence or one defect in the case for either party
(such as the
failure to call a material witness concerning an identity parade)
was decisive but that can only be an ex post facto
determination and
a trial court (and counsel) should avoid the temptation to latch on
to one (apparently) obvious aspect without
assessing it in the
context of the full picture presented in evidence. Once that
approach is applied to the evidence in the present
matter the
solution becomes clear
.”