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[2020] ZAGPJHC 197
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Mathebula v S (A14/2020) [2020] ZAGPJHC 197 (30 July 2020)
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Certain
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
APPEAL CASE NO: A14/2020
DPP REF NO:10/2/1 (2020/011)
In the matter
between:
MATHEBULA,
LOUIS
COLLINS
Appellant
and
THE
STATE
Respondent
CORAM: MABESELE J AND DE
VILLIERS AJ
J U D G M E N T
DE
VILLIERS, AJ
[1]
The
appellant was charged in the Soweto Regional Court with four counts
of criminal conduct: Two counts of rape of a 16-year-old
complainant,
a third charge of kidnapping of the same complainant, and fourth
charge of rape of 20-year-old complainant. The appellant
was legally
represented throughout the trial. The presiding magistrate, Mr
Mhango, convicted the appellant, as charged, on all
four counts on 1
July 2019.
[2]
The
learned magistrate sentenced the appellant on 14 October 2019, taking
into account the minimum sentence provisions set out
section 51
of
the
Criminal Law Amendment Act 105 of 1997
. The appellant was
sentenced as follows:
[2.1]
On
the first two counts, being the rape of the 16-year-old complainant,
life imprisonment;
[2.2]
On
the third count, kidnapping of the 16-year-old complainant, four
years imprisonment, the sentence to run concurrently with the
life
imprisonment sentence;
[2.3]
On
the fourth count, the rape of 20-year-old complainant, ten years
imprisonment, the sentence to run concurrently with the life
sentence.
[3]
The
learned magistrate also declared the appellant unfit to possess a
firearm.
[4]
The
appellant had an automatic right to appeal to both the convictions
and sentences, hence this appeal that served before us. The
real
issue on appeal is the conviction in respect of counts one, two and
three.
[5]
Accordingly,
I start by addressing and disposing of the appeal with regard to
count four. The appellant was linked to the rape of
the 20-year-old
complainant by DNA evidence. The DNA evidence was not challenged at
the trial. There is no basis upon which a court
on appeal could or
should interfere in his conviction, and none was advanced before us.
[6]
An
attempt was made on appeal to challenge the prescribed minimum
sentence of ten years imposed in respect of count four. The appellant
had raped the complainant, not known to him, by entering her home,
and by putting a knife to her throat. He executed a nightmare
that
women fear. In argument the following factors were advanced as
grounds for interfering in the prescribed minimum sentence:
(a) the
appellant was 23 years old at the time when he committed the rape,
(b) he has two children, (c) he had been in prison for
three years
pending his sentencing, (d) the victim “
did
not suffer any grievous physical/ bodily injury
”,
[1]
(e) he had not used excessive violence in raping the complainant, (f)
no evidence had been led of enduring psychological trauma
suffered by
his victim, and (g) no evidence had been led of HIV transmission to
his victim as a result of the rape. These are not
factors
sufficiently compelling this court to interfere in the prescribed
minimum sentence. In fact, grounds (d) to (g) are entirely
consistent
with the mental attitude of a rapist who still shows no remorse for
his deeds. The appellant has shown no remorse, as
he still denies his
guilt.
[7]
The
appeal against conviction and sentence on count four must and does
fail.
[8]
As
stated, the real issue on appeal is the conviction in respect of
counts one, two and three. In broad strokes, the background
facts were that in the early hours of the morning of 17 December 2014
(at about 01H30 to 02H00) the 16-year-old complainant was
at a tavern
with her sister and friends. She alleged that she was forcibly
dragged by the appellant to a construction site, where
he raped her
the first time (count 1). He then took her to his shack at another
location, where raped her again (count 2). The
appellant was 24 years
old on the day in question. In his defence, the appellant alleged (a)
that he and the complainant were in
a “
love
”
relationship (a sexual relationship), (b) that the sexual intercourse
in question occurred at the second location only,
and (c) that the
intercourse occurred by consent. His brother and sister confirmed the
fact of a relationship between the complainant
and the appellant. The
age difference between the appellant and complainant was substantial,
she was 16,
[2]
nearly 17, and he was 24. The learned magistrate did not err, with
respect, with regard to the age of the complainant. The complainant
was still 16 years old on the night of 16 December 2014 when the
incident took place, having been born on 15 January 1998.
[9]
Two
legal issues are at stake: An interference on appeal with a factual
finding by the court a quo, and a conviction based on the
evidence of
a single witness.
[10]
It
was held in
S
v Mafaladiso en Andere
,
[3]
translated by BR Southwood in
Essential
Judicial Reasoning,
[4]
that it is the duty of the court of appeal to rectify a wrong factual
finding, where necessary:
“
'It
is true that a Court of Appeal will not lightly interfere with a
factual finding of the trial court - even if it is an inference
from
proved facts. But this proposition is nothing more than a guideline
and is not a legal rule.
R
v Dhlumayo and Another
1948
(2) SA 677
(A) op 695 in fine et seq) and where a Court of Appeal is
satisfied that the Trial Court has made a wrong finding of fact it
must
rectify it. (See
S
v Mkohle
(supra
at 100e-j);
President
of the Republic of
South
Africa and Others v South African Rugby Football Union and Others
2000
(1) SA 1
(CC) in paras [78] - [81])
'
”
[11]
Mbatha
JA (Navsa and Dambuza JJA concurring) in
Y
v S
[5]
succinctly
dealt with the test to be applied in criminal proceedings, with a
special emphasis on the approach to a conviction based
on the
evidence of a single witness, as has happened in this case:
“
[45]
In criminal proceedings, the State bears the onus to prove the
accused’s guilt beyond a reasonable doubt. Furthermore,
the
accused’s version cannot be rejected solely on the basis that
it is improbable, but only once the trial court has found
on credible
evidence that the accused’s explanation is false beyond a
reasonable doubt. (See: S v V
2000
(1) SACR 453
(SCA) at 455B.) The corollary is that, if the accused’s
version is reasonably possibly true, the accused is entitled to an
acquittal. It is trite that in an appeal the accused’s
conviction can only be sustained after consideration of all the
evidence
and the accused’s version of events
.
[46]
…
[48]
The applicant was convicted on the evidence of a single witness,
which in order to be sufficient to convict, must be clear
and
satisfactory in every material respect. (See: S v Sauls
1981
4 All SA 182
(A).) It is trite that a court will not rely on such
evidence where the witness has made a previous inconsistent
statement, where
the witness has not had a sufficient opportunity for
observation and where there are material contradictions in the
evidence of
the witness. In Sauls
it
was held 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. Rather, a court should consider the merits and demerits of
the evidence, then decide whether it is satisfied that
the truth has
been told despite the shortcomings in the evidence.
[49]
In respect of sexual assault cases, thankfully there is no cautionary
rule. In S v Jackson this Court aptly stated as
follows:
‘
In
my view, the cautionary rule in sexual assault cases is based on an
irrational and out-dated perception. It unjustly stereotypes
complainants in sexual assault cases (overwhelmingly women) as
particularly unreliable. In our system of law, the burden is on
the
State to prove the guilt of an accused beyond reasonable doubt - no
more and no less. The evidence in a particular case may
call for a
cautionary approach, but that is a far cry from the application of a
general cautionary rule.’”
[50]
The only direct evidence implicating the applicant in this case was
that of the complainant. For such evidence to be accepted
it must be
clear and satisfactory in all material respects.
…
”
[12]
I
omitted the footnote giving a reference to
S
v Jackson
.
[6]
[13]
I
summarise the complainant’s evidence in what follows, and
reflect the material supporting and contradictory evidence:
[13.1]
The complainant alleged that she only knew
the appellant by sight. They grew up in the same area, and she
alleged that that she
only knew the name of his sister. However,
according to her sister, N, the morning after the events described
below, the complaint
already knew the name of the appellant. They
moved in the same social circle too, as earlier on 16 December 2014,
the complainant
went to Protea Mall where she saw the appellant in
the company of someone she knew, one K. On her version she only spoke
to K,
and not to his companion (whose name she allegedly did not
know). It is likely that she knew him better than what she was
prepared
to admit;
[13.2]
The
complainant went to the tavern at 22H00. On her version, she was in
the company of four friends (N, D, A, and P). It later turned
out
during the evidence of the N, that she is an older sister of the
complainant, and not her friend. Both A and N testified. The
group
partied. The evidence about the exact amount of alcohol consumed was
contradictory. During the night, the complainant, on
her version,
consumed one bottle of cider. N testified that they already had two
“beers” each on their way to the tavern,
and did not
testify about the consumption in the period thereafter. A testified
that they each had one cider at the tavern. No
evidence was presented
that alcohol diminished the observation and recollection of the
witnesses;
[13.3]
Between
01H30 and 02H00 the next morning, the group commenced to go home.
According to the complainant, she and A waited outside
the tavern for
the rest of the group. According to her, waiting with them was a male
person, whom she did not identify. According
to the complainant
further, he would have walked home with them (and therefore was
presumably known to them or some of them). Importantly,
A disputed
this evidence by the complainant. According to her, only the two of
them were waiting outside the tavern, which would
make the
complainant’s version of an abduction by stealth, less
probable. The evidence of N was that she had gone out of
the tavern
with her sister, and then back into the tavern to look for an
unidentified male or males to walk home with them. She
did not
mention a male escort that would have walked home with them who was
already waiting outside with her sister and A. A confirmed
that N
went to look for young men in the tavern to accompany them home;
[13.4]
The
complainant testified that that of the unidentified male referred to
by the complainant, fell on the ground, next to the complainant.
According to the complainant, she picked the hat up. A saw the
complainant picking up a hat, but as will be seen below, had a
different version of events. During cross-examination the complainant
confirmed that she was standing next to the unidentified male
person,
whose hat she had picked up. The complainant changed her evidence
during cross-examination and testified that she was standing
alone,
with A and the unidentified male person standing on the opposite side
of the road, about ten steps away from her. A did
not support this
evidence and testified that the last time she saw the complainant,
she was standing next to her. According to
A, the owner of the hat
had had walked past when his hat fell off and did not stop (and was
not in her company).
There
are material contradictions in the evidence;
[13.5]
The
complainant testified that when she bent to pick up the hat, she was
grabbed from behind. The assailant, the appellant, dragged
her around
the corner, into the next street and further away. The last time that
A saw the complainant, she was next to her. A
noticed nothing about
her abduction. It is not clear from the record if the complainant
testified that she screamed and was not
heard by A, or decided not to
scream as she knew she would not be heard because of the loud music.
The answers given by the complainant
were to the effect that she
tried to scream, but that she was told by A that she did not hear her
scream due to the loud music.
Later in cross-examination she said
that she had shouted “A”. N testified that A told her
that she did not see the
complainant leaving, as she was “
disturbed
”
by a gentleman standing with her (a version that is conflict with the
version of A).
It
seems improbable that the complainant simply would have disappeared;
[13.6]
After
an unsuccessful attempt by the complainant to seek help from a
passing car, the appellant dragged the complainant towards
the
building site where the first rape took place. The appellant after a
while and bizarrely told her to run, and when she did
not do so
immediately, he slapped her. She started to run, whilst the appellant
followed and gave her instructions where to run
to. Only in
cross-examination did the complainant add that after she was slapped,
the appellant had taken out a knife to threaten
her. It was a
material omission or a change in her version;
[13.7]
Thereafter,
according to the complainant, the appellant dragged her to a shack
where he lived. He pushed open the gate and thereafter
the door to
the shack, both of which were not locked. There were two shacks in
close proximity, they entered one, according to
the complainant. Once
inside, the appellant demanded that the complainant had to get into
bed, which she did;
[13.8]
The
complainant testified that she took out her phone from a pocket of
her jacket in the shack, as she wanted to send a message
to her
sister, S. This was her first, spontaneous evidence. Under
cross-examination the complainant changed her evidence and said
that
she had sent two SMS messages, one to her sister S and one to her
friend D. These were sent at about 03H00. She told them
that a man
had taken her, in what area she was, and that they had to look for
two shacks facing each other. N knew of the second
SMS, and testified
that it referred to a black gate and to two shacks facing each other.
She also stated that it reflected the
area where the shacks were, and
that the complainant had said that she was raped. They went looking
for the complainant, but could
not find her. A testified that she
read the SMS to D, that it referred to two shacks, a request to be
fetched, and a warming that
the four of them could not come alone.
According to her, they simply went home;
[13.9]
The
complainant changed her evidence to say that she sent the messages
before they reached the shack, whilst running, without looking
at the
phone, which was in her jacket’s pocket. Not only is this
improbable, but as a matter of logic, she could not have
conveyed
detail about the shack in an SMS before she arrived at it;
[13.10]
In
the early morning, the appellant raped the complainant again
(according to her). Thereafter he accompanied her until they were
close to her home. He told her not to speak when they pass people. By
then it was about 05H30 to 06H00;
[13.11]
In
cross-examination the complainant added a third rape, one that took
place when they arrived at the appellant’s shack. It
is
material that he was only charged with two rapes. It seems beyond
question that a third rape was only mentioned belatedly. It
also was
a material omission or a change in her version; and
[13.12]
Upon
arrival at home, the complainant told her sisters, S, P and N what
had happened, and the oldest sister, S, accompanied her
to the police
station. The complainant is the youngest sister of the three. N
testified that the complainant did not tell them
how many times she
was raped. She did not report immediately the rape at unfinished
house, and only mentioned having been raped
at the shack. She further
testified that the complainant had told them that she was raped at
gunpoint at the shack.
[14]
The
evidence by the complainant was not clear and satisfactory in all
material respects.
The
learned magistrate, with respect, committed a misdirection when he
found that the complainant gave consistent evidence, for
the reasons
set out already herein. In my view, with respect, under those
circumstances he could not have found that she was an
honest witness,
taking into account only the evidence presented for the prosecution.
[15]
The
appellant testified the complainant had called him to fetch her from
the tavern, and that they had consensual sex in his shack.
His
brother had to unlock the gate to property where their shacks were.
His brother confirmed that he had to unlock the gate allow
the
complainant and the appellant to enter the property. I have dealt
with the conformation by the brother a and sister of a relationship
between the appellant and the complainant. It also seems probable
that the occupants of the shacks would not have left access to
them
unsecured, contrary to the evidence by the complainant.
[16]
One
cannot find that the defence was false beyond a reasonable doubt. The
appeal against conviction on counts one to three, must
succeed.
[17]
Taking all the above in consideration, I
propose that the following order be made:
1.
The appeal against convictions and
sentences on counts one, two and three, is upheld, and the
convictions and sentences are set
aside;
2.
The appeal against conviction and sentence
on count four, is dismissed.
3.
The order of the court below declaring the
appellant unfit to possess a firearm is confirmed.
___________________
DP de Villiers AJ
Heard on:
22 June 2020 by written
submission at the election of counsel
Delivered on:
10 July 2020 by uploading on CaseLines and by e-mail
On behalf of the
Appellant:
Adv WA Karam
Instructed
by:
Legal Aid SA
On
behalf of the Respondent:
Adv
V Maphiri
Instructed
by:
Office of the Director of Public Prosecutions
MABESELE,
J
:
[17] I have read the judgment and
order of my brother, De Villiers AJ and confirm his order. The
reasons are the following:
[18] The appellant was convicted in
the Soweto Regional Court on two counts of rape of a 16 year-old
complainant and kidnapping
of the same complainant. He was also
convicted of rape of a 20 year-old complainant. He was
sentenced to life imprisonment
on the two counts of rape, taken
together; 4 years imprisonment on a count of kidnapping and 10 years
imprisonment for rape of
a 20 year-old complainant. It was
ordered that the sentence imposed on counts 3 and 4 run concurrently
with that imposed
on counts 1 and 2. The appellant was declared unfit
to possess a firearm.
[19]
Although the indictment reflects the age of complainant as 16 years
at the time of the alleged rape, the complainant testified
in her
evidence-in-chief that she was 17 years old at the time of the
incident. During cross-examination she changed her
version and
said that she was 16 years old. She did not deny that she said
she was 17 years old save to say she could not
remember saying she
was 17 years old. Since this issue was not clarified during
re-examination or by the court, it cannot
be said with certainty that
the complainant was 16 years old when the alleged incident occurred.
At any rate, section 16
of the Sexual Offences Act, 32 of 2007
provides that sexual intercourse with a child
below the age of
16 years
constitutes rape.
Since the complainant does not fall within this category this section
cannot apply in this case.
[20] There are two issues to be
addressed in this appeal. The first is whether the court below
correctly convicted and sentenced
the appellant on counts 1, 2 and 3
upon the evidence of a single witness. The second is whether
the evidence of DNA which
links the appellant to the rape of a 20
year-old complainant justifies both the conviction and sentence of
the appellant on count
4.
[21] It is common cause that on the
night of 16th December 2014 the complainant on counts 1, 2 and 3 was
at the tavern with friends,
drinking alcohol. The appellant,
too, went to the tavern. The evidence of the complainant is
that around 02h00 she
and her friend, A, went outside the tavern and
waited for the two friends who were still inside. She and A
were in the company
of a man who was going to accompany
them home. While they were still waiting outside, a hat of the
man fell on
the ground next to her. As she bend down to pick it
up someone who she later identified as the appellant pulled her from
behind and moved her away from where she was standing, to the next
street. She tried to fight so that she could free herself
but
did not succeed. When she was asked about the whereabouts of
her friend, A, when she was taken away by the appellant
she responded
that A was unable to hear her screaming because of the loud music
that was played inside the tavern.
[22] The complainant testified that
while she and the appellant were still walking along the street, a
motor vehicle came across
them. She asked the driver to stop.
The driver stopped and opened the door. As she was explaining
to the driver and
occupants that the appellants took her by force
from the tavern the appellant reprimanded them not to interfere in
his affairs
and told them that she was her girlfriend. After
the vehicle drove off the appellant again dragged her and walked with
her.
As they approached certain shacks the appellant slapped
her on the face and instructed her to run. The appellant ran
behind
her and directed her to the area which she should run to.
They eventually reached the houses which were under construction
and
the appellant dragged her into one of the houses. He then
threatened her and ordered her to undress. After she
had obeyed
the instructions the appellant had sexual intercourse with her. As
the appellant penetrated her, he asked if she knew
who he was.
She replied and told the appellant that she knew him by sight and is
the brother of J. She further told
him that she saw him earlier
that day. After the appellant had raped her they both stood up.
She told the appellant that
since he got what he wanted he should
release her so that she could go home. When they left the house
the appellant took
her to an informal settlement called Ngalagatha.
On arrival there, the appellant took her into a certain shack and
ordered
her to get under the blanket. While both of them were
under the blanket the appellant again had sexual intercourse with
her.
At some stage, still under the blanket, she operated her
cell phone from the pocket of her jacket and send an SMS to her
sister,
S, and informed her about her whereabouts. She told her
sister that she was in a shack and could not describe the yard save
to note the colour of the gate. After the appellant had raped
her for the second time he told her that he would accompany
her
home. Subsequently, the appellant walked her home until they
reached a certain passage not far from her home. At
the passage
the appellant turned back and she proceeded home. When she
reached home she informed her sisters, S and P, about
the rape
incident. Thereafter one of her sisters accompanied her to the
clinic. From the clinic they proceeded to the police
station to
repot the matter to the police.
[23] When the complainant was asked
during cross-examination how she sent an SMS to her sister, S and
friend, L, she said that she
sent an SMS at the time she and the
appellant were running. The record reflects the following:
“
Ms D: Your Worship, I sent
the SMS when he was running, Your Worship and the phone was inside
the jacket, I did not put my hand
in the jacket, so I was pressing
the phone while it was inside the pocket of the jacket.
Mr GUMEDE: This is very
interesting, you never removed the phone to see what you were
sending?
Ms
D: Your worship, when I was fighting, I knew where the alphabets so
and so is, Your worship, I would know that it is the second
or first
or fourth alphabet, Your worship
”
[24] Ms N T was one of the friends who
were in the company of the complainant at the tavern. She did
see in whose company
was the complainant when she left the tavern in
the early hours of the morning. She last saw the complainant in
the company
of A outside the tavern. When she got out of the
tavern with other friends they found A standing alone outside the
tavern.
When they asked A about the whereabouts of the
complainant she told them that she did not see what happened to her
because she
was busy talking to the man who was standing with her.
When she was asked about the SMS alleged to have been sent to L she
confirmed that L received an SMS from the complainant and informed
her about her whereabouts. She had the opportunity to
read the
SMS. She testified that after they had read the SMS they
proceeded to the place where the complainant said she was
kept. When
they arrived at the area mentioned in the SMS they could not locate
the house because people were being relocated
to another area and
only few shacks were left. They tried to call her but did not
pick up the phone.
[25] Ms A M testified that she was in
the company of the complainant outside the tavern when the
complainant disappeared.
Her evidence is that while she and the
complainant were outside the tavern a hat of someone fell on the
ground. She saw the
complainant bend down to pick up the hat.
Since then she did not see what happened to the complainant.
She tried to
look around the gate and could not see anyone. She
testified that she, too, had an opportunity to read an SMS from the
complainant
which was sent to L wherein the complainant informed L
about her whereabouts. That concluded the evidence of the
complainant
in counts 1, 2 and 3.
[26] Ms M M was the complainant in
count 4. On the night of 15
th
December 2014
she and a friend visited Mazazane tavern. After she had
consumed few drinks she went back home.
On arrival she put on
pyjamas, locked the door and went to sleep. She was suddenly
woken up by a man who was on top of her,
holding a knife. He
had covered his face with what is called ‘balaclava.’ The
man threatened her with a knife
and asked her not to scream.
Due to the threats she kept quiet. The man then tore her
pyjamas and forced her to open
her thighs. After she had done
so, she was raped. Thereafter the man left the house and ran
away.
[27] By agreement between the state
counsel and counsel for the appellant, on the instructions of the
appellant, the report on the
DNA results which links the appellant to
the rape of the complainant in count 4 was handed up to the court to
form part of the
record.
[28] The appellant testified that he
had a love relationship with the complainant in counts1, 2 and 3.
His version is that
on 16
th
December 2014 at 13h00 she met
the complainant and her friend at the bottle store. After he
had bought them alcohol he parted
ways with them. On the night
of the same day he noticed a missed call on his phone which came from
the complainant.
When he returned the call the complainant
informed her that she was at the tavern and asked him to come and
fetch her. The
complainant gave her the directions to the
tavern. He proceeded to the tavern. When he arrived he
took the complainant
to his place of residence at […] M
street. Upon arrival he requested his brother, B, to open the
gate for them.
After the gate was opened he took the
complainant to his room and had sexual intercourse with her, by
consent. In the morning
he accompanied the complainant home.
He said that K and J knew about his relationship with the
complainant.
[29] Although the appellant denied to
have raped the complainant in count 4 he admitted the evidence of DNA
which linked him to
the rape of the complainant on this count.
[30] Ms J M is the sister of the
appellant. She and the appellant stay on the same premises. She
knows the complainant in
counts 1, 2 and 3. Her version is that
the appellant and complainant were in a love relationship since 2013
or 2014.
She said that the complainant occasionally visited the
appellant at his shack. Her version with regards to the affair
between
the appellant and complainant is corroborated by the
appellant’s brother, B M. He occasionally saw them
together at
the mall. In the morning of the alleged incident he
opened the gate for both of them to enter the appellant’s
shack.
[31] Our courts have stated in
numerous decisions that evidence of a single witness should be
approached with caution. One
may add that ‘where rape is
alleged to have occurred at the tavern in the early hours of the
morning, evidence of a single
witness, in particular a young victim,
should be approached with outmost care. This is because the
victim may likely create
a story of rape and kidnapping so that the
parents understand why she did not sleep at home’.
[32] The testimony of a single witness
must be clear and satisfactory in every material respect. Where
evidence is riddled
with inconsistences and lies, it may not be
regarded as satisfactory (Mocke V S
[2008] ZASCA 80
;
[2008] 4 All SA 330
(SCA).
[33] The complainant and A waited for
their friends outside the tavern so that they could all go home.
They all secured the
services of a male colleague who waited outside
the tavern with the complainant and A so that he would accompany all
of them safely
home. Therefore the version of the complainant that A
did not hear her screaming when taken away by force by the Appellant
and
that of A that she did not see the complainant taken away from
them have no merit. Therefore, it stands to reason that the
complainant voluntary left the tavern with the appellant.
[34] The version of the complainant
that she stopped the vehicle and sought for help and later sent an
SMS to her sister and friend,
notifying them of her
whereabouts, persuaded the magistrate to regard the complainant as a
‘very good and honest witness’.
Regrettably, the
magistrate omitted to scrutinize the unbelievable version of the
complainant that she operated her cell phone
from the pocket of her
jacket without looking at the alphabets, and send an SMS to her
sister and friend. Since this version
is unbelievable and
improbable it follows that no SMS was sent to the sister and friend.
Accordingly, the versions of A and
N that they read the message which
was sent to the sister of the complainant via SMS are rejected. For
all these reasons it cannot
said that the evidence of the complainant
that she was kidnapped and raped is satisfactory in every material
respect.
[35] The magistrate correctly argued
in his judgement that the version of the appellant could only be
rejected if the court is satisfied
that the evidence is so improbable
that there is no reasonable possibility of it being the truth.
[36] The version of the appellant that
she had an affair with the complainant is corroborated by her sister
and brother who occasionally
saw them together. In the morning
of the incident the brother of the appellant opened the gate for the
appellant and complainant
to enter the appellant’s shack.
Importantly, the appellant would not accompany complainant home while
knowing that
he had raped her. Therefore, his version that he
never raped the complainant and kidnapped her is reasonably possibly
true.
Therefore the convictions and sentences on counts 1, 2
and 3 should be set aside.
[37] The appellant did not contest the
results of the DNA which linked him to the rape of the complainant in
count 4. Therefore,
there is no basis upon which this court can
interfere with the conviction on this count. The sentence of 10
years imprisonment
on this count is appropriate in view of the nature
and seriousness of this offence. The result is that the conviction
and sentence
on this count should be dismissed.
________________________________________
M. M MABESELE
JUDGE OF THE
HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
[1]
Under
section 51(3)(aA)(ii)
of the
Criminal Law Amendment Act 105 of
1997
, “
an
apparent lack of physical injury to the complainant
”
does not constitute substantial and compelling circumstances
justifying the imposition of a lesser sentence than the prescribed
sentence.
[2]
The
incident took place during the night of 16 December 2014. She was
born on 15 January 1998.
[3]
S
v Mafaladiso en Andere
[2002] ZASCA 92:
“
Dit
is natuurlik so dat 'n hof van appèl nie ligtelike met 'n
feite-bevinding, selfs 'n afleiding uit bewese feite, van
'n
verhoorhof sal inmeng nie. Maar hierdie stelling is niks meer as 'n
riglyn nie en is nie 'n regsreël nie (
R
v Dhlumayo and Another
1948
(2) SA 617
(A) op 695 in fine ev) en waar 'n hof van appèl
oortuig is dat die verhoorhof 'n verkeerde feitebeslissing gemaak
het,
moet hy dit regstel. (Sien
S
v Mkohle
,
supra, op 100 e - f;
President
of the RSA and Others v South African Rugby Football Union and
Others
[1999]
ZACC 11
;
2000 (1) SA 1
(CC) op 42, [78] - [81].)”
[4]
BR
Southwood,
Essential
Judicial Reasoning
,
LexisNexis, Para 13.2.
[5]
Y
v S
[2020] ZASCA 42
para 45, 48, 49 and 50.
[6]
S
v J
1998 (2) SA 984
(SCA) at 994C-996D, a judgment by Olivier JA
(Mahomed CJ, Van Heerden DCJ, Streicher JA and Farlam AJA
concurring.) See too
Director
of Public Prosecutions v S
2000
(2) SA 711 (T) at 714J-715A and section 60 of the Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2000:
“
Notwithstanding
any other law, a court may not treat the evidence of a complainant
in criminal proceedings involving the alleged
commission of a sexual
offence pending before that court, with caution, on account of the
nature of the offence
.”