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[2020] ZAGPJHC 336
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Mkhize v S (A040/2019) [2020] ZAGPJHC 336 (24 June 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
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REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE
NO: A040/2019
In the matter between:
MXOLISI
LINDOKUHLE PHAKAMANI
MKHIZE
APPELLANT
And
THE
STATE
RESPONDENT
APPEAL JUDGMENT
MOGALE
AJ,
INTRODUCTION
1.
The
appeal is before us with the leave of this court. The appeal is in
respect of the conviction only. The appellant was charged
in the
Regional Court, Johannesburg on the following counts:
·
Count
1- Contravention of Section 3 read with Section 1, 55, 56(1), 57, 58,
60 of the Sexual Offences and Related Matters Act 32
of 2007.
·
Count
2- Contravention of the provisions of Section 51(1) read with section
1, 56(1), 57, 58, 59, 60 and 61 of the Criminal Law
Amendment Act
(Sexual Offences and Related Matters) 32 of 2007.
·
Count
3- Kidnapping
2.
The
appellant was legally represented during trial. The trial court
explained the nature of the charge and the possible sentence
in terms
of the provision of the
Criminal Law Amendment Act, 105 of 1997
.
3.
On
the 17
th
November 2017 the appellant was found guilty on all three counts and
subsequently sentenced on the 30
th
May 2018. On count 1, effective 10 years imprisonment, count 2, 5
years imprisonment and count 3 to 3 years imprisonment. It was
ordered that the sentences on count 2 and 3 would run concurrently
with the sentence in count 1.
4.
After
sentencing, the appellant brought an application in terms of Section
309B (5) of the Act for leave to present further evidence
which was
not adduced during the trial.
THE
BRIEF AND RELEVANT GROUNDS OF APPEAL
5.
The
Complainant, S M testified that on the 20
th
May 2016 she visited the offices of the Master of the High Court
together with her friend M N where he was assisted by the appellant.
She entered into an open plan where she was supposed to be assisted,
but the appellant took her to a certain office, locked her
therein
and sexually violate her. The appellant started by touching her
breasts and genitals, forced her to touch his genitals
and inserted
his finger into her vagina.
6.
M N
confirmed that she was together with the complainant on the
abovementioned date and place. The complainant made a report to
her
that the appellant said she was going to be her girlfriend and he
loved her. The complainant went back to the appellant’s
office
after obtaining finger prints and came out after some time with a sad
face. The complainant had some blood on her trousers
but refused to
talk about what happened inside the office until they were at KFC
with J N.
7.
J N
confirmed that the complainant was reluctant to tell her what
happened but M informed her that the complainant was nearly raped.
She then encouraged the complainant to inform her mother about the
incident.
8.
J Z
confirmed that she is the mother of the complainant, further that in
the afternoon of the abovementioned date, the complainant
came back
home in a bad state. Her hair was mixed up, her jersey was in a bad
condition and the trousers had blood stain. The complainant
told her
that the appellant wanted to rape her but because she was fighting,
the appellant only managed to insert his finger inside
her vagina.
She reported the matter to the police and the following day took her
for medical assistance.
9.
Joyce
Khumalo is a professional nursing sister who consulted with the
complainant on 21 May 2016. Her findings were consistent with
the
recent vaginal penetration and the complainant confirmed consensual
sexual intercourse in the last seven days before the examination.
10.
The
appellant conceded that he was on duty on that day assisting numerous
members of public, further that he might have also assisted
the
complainant though he cannot remember but denied any misconduct
whatsoever.
ISSUES TO BE DECIDED
11.
This
court has to determine, as a court of appeal, whether the appellant
was correctly convicted.
THE PRINCIPLES APPLICABLE IN
APPEALS
12.
It is
trite law that a court of appeal will not interfere with or temper
with the trial court’s judgment or decision regarding
either
conviction or sentence unless it (court of appeal) finds that the
trial court misdirected itself as regards its findings
of facts or
the law).
See
R v Dhlumayo & Another
1948 (2) SA 677
(A)
.
13.
If
the trial court misdirected itself either on the facts or the law, a
court of appeal will be at large to interfere and deal with
the
matter as it deems fit, including substituting its own order or
decision for that of the trial court, which may include an
order for
the setting aside of a conviction or the altering of the sentence.
This was aptly amplified in the decision of
Booi
v State (14/2010) {210} ZAFSHC
91
delivered on the 12
th
August 2014 as follows:
“…
the
ambit for the interference by the appeal court on a finding of fact
and credibility is restricted to few instances. It is -only
allowed
in instances where there is a demonstrable and material misdirection
by the trial court where the recorded evidence shows
that the finding
is clearly wrong.
See
S
v Hadebe and Others
1997 (2) SACR 641
(SCA) t 645 e- f.
Factual errors may be errors where the reasons which the trial judge
provides are unsatisfactory or where he/she overlooks
facts or
improbabilities. Also, where the finding on fact is not dependent on
the personal impression made by a witness’
demeanor, but
predominantly upon inferences and other facts, and upon
probabilities. The appeal court is also in an equal position
to the
trial court.”
14.
When
evaluating or assessing evidence, it is imperative to evaluate all
the evidence, and not to be selective in determining what
evidence to
consider. As Nugent J (as he then was) in
S
v Van der Meyden
1999 (1) SACR 447
(W)
stated at 450:
“
What must
be borne in mind, however, is that the conclusion which is reached
(whether it is to convict or to acquit) must account
for all the
evidence. Some of the evidence might be found to be false, some of it
might be found to be unreliable, and some of
it might be found to be
only possibly false or unreliable, but none of it may simply be
ignored.”
15.
The
test in this matter is beyond reasonable doubt. In the assessment of
evidence the court must look at the total body of evidence
and not to
break up the evidence into some compartments.
REPRESENTAION OF THE PARTIES AND
SUBMISSIONS ON APPEAL
16.
There
was no appearance on behalf of the State due to the fact that Mr
Mongwane from the Office of the Director of Public Prosecutions
could
not be traced for the submission of the heads of arguments nor oral
submissions on the appeal.
17.
As a
result, this court decided that it will be in the Interest of Justice
that the appellant’s appeal be proceeded with.
18.
Mr Du
Plessis on behalf of the appellant in his heads of arguments and in
his oral submission, submitted the following:
18.1.
The
magistrate failed to apply the necessary caution to the evidence of
both complainants. Caution should have been applied due
to the fact
that the complainant was a young child, and the special circumstances
of this case warranted that.
18.2.
The
magistrate was not impartial in the conduct of the trial. The
magistrate erred in failing to draw a negative inference from
the
contradictions between the state witnesses’ oral evidence in
court.
18.3.
The
magistrate erred in failing to find that the version of the
complainant was improbable.
18.4.
The
magistrate erred in failing to consider the evidence presented in
terms of Section 309B (5) of the Act presented during the
application
for Leave to Appeal.
18.5.
The
complainants failed to report the alleged rape at the first available
opportunity, and her explanation for the delay in reporting
it, is
unconvincing.
18.6.
The
magistrate erred in failing to consider that the State failed to call
the person who came to take some papers in the office
in order to
corroborate her version that he found her naked with the appellant in
the office.
18.7.
The
magistrate erred in failing to consider that it is improbable for the
complainant not to scream and try to alert the people
within the
corridors of the office building as she indicated that she was
physically resisting by kicking the appellant.
18.8.
The
magistrate erred in failing to consider that the State failed to
present the photographs taken by the Police where the incident
took
place.
18.9.
The
findings by the Nurse, Sister Joyce Khumalo were not satisfactory.
18.10.
The
magistrate erred in finding that the state succeeded in proving its
case beyond reasonable doubt, and that that the version
of the
appellant was not reasonably possibly true but false beyond
reasonable doubt.
THE JUDGMENT BY THE MAGISTRATE
AND HER REASONS
19.
The
court made a finding on the totality of the evidence as stated in
S
v Chabalala
2003 (1) SACR 134
(SCA)
,
and having referred to the cautionary rules applicable to the
evidence of young children, and further having recognized that there
were a number of discrepancies or contradictions between the evidence
of the state witnesses, the magistrate found that:
19.1.
The
version of the complainant and her two witnesses, Ms N and Ms N
corroborate each other with regard to the substantial parts
of their
evidence, and although there were contradictions or inconsistencies
in their evidence, the said contradictions were minor
and immaterial,
and consequently not justifying any negative inference against any of
the state witnesses.
19.2.
The
version of the complainant was also corroborated by medical
examination that revealed a fresh tear on posterior fourchette.
19.3.
The
complainant had no motive to falsely implicate the appellant, and
there were no improbabilities in her evidence.
20.
On
the other hand, the magistrate found that, with regards to the
testimony of the appellant, the crux of his defense was that there
was a conspiracy to falsely implicate him and denies any misconduct
of whatsoever.
21.
The
magistrate concluded by finding that the state succeeded in proving
its case beyond reasonable doubt.
APPLICATION OF THE PROVISIONS OF
SECTION 208 OF THE CPA
22.
The
provisions of Section 208 of the CPA provides that an accused person
may be convicted of any offence on the single witness of
any
competent witness. In
Sauls
and Others
1981 (3) SA 172
(A)
180
it was held that that there is no rule-of-thumb test or formula to
apply when it comes to the consideration of the credibility
of a
single witness. The trial court should weigh the evidence of the
single witness and should consider its merit and demerits
and having
done so, should decide whether it is satisfied that the truth has
been told despite shortcomings or defects or contradictions
in the
evidence.
23.
In
S
v Webber
1971 (3) SA 745
(A)
it was decided that the evidence of a single witness should be
approached with caution and such evidence should not necessarily
be
rejected merely because the single witness happens to have an
interest or bias to the accused. The correct approach is to assess
the intensity of the bias and to determine the importance thereof in
the light of evidence as a whole.
BEYOND REASONABLE DOUBT
24.
The
onus of proof in a criminal case is discharged by the state if the
evidence establishes the guilt of the accused beyond reasonable
doubt. The corollary is that the accused is entitled to be acquitted
if it is reasonably possible that he might be innocent.
25.
Proof
of the guilt of the appellant beyond reasonable doubt and the
question of whether the appellant’s version is reasonably
possibly true is not separated and independently tested. As we held
by Nugent J in
S
v Van der Meyden
1999 (1) SACR 447
(W)
at 488 f-I
the following was noted:
“
These are
not separate and independent tests, but the expression of the same
test when viewed from the opposite perspectives. In
order to convict,
the evidence must be established the guilt of the accused beyond
reasonable doubt, which will be so only if there
is at the same no
reasonable possibility that an innocent explanation which has been
put forward might be true. The two are inseparable,
each being the
logical corollary of the other. In whichever form the test is
expressed, it must be satisfied upon a consideration
of all the
evidence. A court does not look at the evidence implicating the
accused in isolation in order to determine whether there
is proof
beyond a reasonable doubt, and so too does it not look at the
exculpatory evidence in isolation in order to determine
whether it is
reasonably possible that it is reasonably possible that it might be
true.
26.
It is
trite law that the court does not have to believe the appellant’s
version nor does it need to reject the State’s
case in order to
acquit him, instead a court is bound to acquit the appellant if there
exists a reasonable possibility that his
evidence may be true. A
holistic approach to all the evidence is required as opposed to a
fragmented and compartmentalized approached
to the evidence.
EVALUATION OF EVIDENCE
27.
We
have been unable to find, from considering the evidence before us,
the reasons why the trial court concluded that there were
no
improbabilities present in the version of the complainants. The only
reasonable inference to draw from lack of the factual basis
for the
said finding is that the trial court failed to consider the
probabilities or improbabilities.
28.
This
being so, this court is at large to consider the presence or
otherwise of the inherent probabilities or improbabilities. It
seems
improbable that the appellant in front of his colleagues in an open
plan office immediately professed his love to an 18 years
old
stranger instead of attending to her enquiries. It seems highly
improbable that complainant who was physically resisting the
appellant by kicking him would fail to shout, scream and tried to
alert the people around the corridors of the busy office building
which is forever full of people. It also seems improbable that while
the complainant was still naked in the office, the appellant
responded to a knock by unlocking the door and letting a colleague in
and the same colleague not to react towards what was happening
inside
the office. It is further highly improbable that the accused would
rape the complainant in broad daylight and within a hearing
distance
of his co-workers who were in other offices and corridors. It is hard
to imagine how the accused did not care that there
were people who
can come and knock in the office they were in.
29.
There
are several gaps in the evidence adduced by the state. The
complainant went to the Offices of the Master with the police to
effect the arrest. Photographs depicting the office where the
incident took place were taken but the state opted not to present
such evidence before the court. Photographs were only submitted when
the evidence in terms of Section 309B (5) was presented by
the
defense. This issue creates confusion due to the fact that the
complainant mentioned that she went inside an open plan but
the
appellant took her to a separate office inside an open plan. The
witness (Ms N) also confirmed that the complainant went alone
into an
open plan but was taken to an office. They did not mention that the
office, in which the complainant was taken to, is the
same office she
was directed to take fingerprints.
30.
The
complainant failed to inform the police about the co-worker who found
her naked inside the office. The state also failed neither
to
investigate these allegations further nor to call him to testify.
31.
The
appellant’s suggestion of a possible motive to falsely
implicate him was found to be improbable and was rejected as false
beyond reasonable doubt. A distinction should be drawn between
a situation where an accused is proved by the totality of
the
evidence led to have lied on the facts – as distinct from being
wrong on his suggestion or suspicion of a possible motive.
Where the
court finds that the accused is an incredible liar - in circumstances
where the surrounding circumstances and probabilities
excluded any
reasonable possibility that someone other than the accused
perpetrated the offence – it may find that such proof
(of the
accused as an incredible liar) constitutes support for the state’s
case.
See
Mudau v The State (764/12)
[2012] ZASCA 56
(9 May 2013) and Thebus
and another v S
[2002] 3 All SA 782
(SCA).
32.
However,
where the court finds that the motive suggested by the accused as the
possible reason why the state witnesses could falsely
implicate him,
is implausible, it becomes a neutral point that does not disadvantage
the accused or support the state’s case.
In this case, even a
total rejection of the accused’s suggestion of a possible
motive (not evidence on the merits or the
facts), does not entitle
the trial court to draw an adverse inference which contributes to
supporting the state’s case against
him.
33.
In
our view, the appellant’s defense amounted to nothing more than
a suggestion of a possible motive as to why the state witnesses
would
falsely implicate him in the commission of the offences. This being
so, the trial court was not entitled to draw an adverse
inference.
The court a quo clearly placed a lot of reliance on the rejection of
the appellant’s suggestion of a possible
motive to falsely
implicate him in order to find that the state had succeeded to prove
its case beyond reasonable doubt against
the accused even if it found
his suggestion of a possible motive to be implausible.
34.
Although
the magistrate referred to the cautionary rule, we are of the view
that she did not apply sufficient caution in approaching
the evidence
of the complainant particularly in the light of the pliability of
youthfulness and the improbabilities I have referred
to above.
Therefore, in our view, the trial court misdirected itself on this
aspect.
35.
The
court
a
quo
dismissed the possibilities that the tear of the medical report might
have been caused by consensual sexual intercourse that occurred
seven
days before.
36.
The
trial court should have examined the manner in which the rape was
reported. The court should have examined the kind and level
of
interrogation used to get her to make the said report but his was not
done.
37.
In
our view, the misdirection of the trial court in respect of not
considering the gaps in the state’s case, coupled with
the
failure to consider the number, nature and extent of the
improbabilities inherent in the circumstances of the case, and
failure
to exercise sufficient caution in approaching the evidence of
the complainant, is such that they justify interference by this
court.
This means that this court is at large to consider this matter
as if it was a court of first instance, and substitute its own
findings
of fact and law.
ORDER
38.
Accordingly
the following order is made:
38.1 The appeal is upheld.
38.2 The judgment and sentence of
court
a quo
is set aside.
38.3 It is ordered that the Appellant
be released from custody with immediate effect.
_________________________
K MOGALE
ACTING JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
I agree
_________________________
N P MNGQIBISA-THUSI
JUDGE OF THE HIGH
COURT
GAUTENG LOCAL
DIVISION, JOHANNESBURG
APPEARANCES
For Appellant: Adv P Du
Plessis,
Instructed by: BDK
Attorneys, Johannesburg.
For the State: No
appearance
Date of hearing: 18 June
2020
Date of judgment: 24 June
2020