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[2014] ZASCA 159
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Tofie v S (104/14) [2014] ZASCA 159 (1 October 2014)
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THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
NOT
REPORTABLE
Case
No: 104/14
In
the matter between:
EBRAHIEM
TOFIE
..........................................................................................................
APPELLANT
and
THE
STATE
....................................................................................................................
RESPONDENT
Neutral
citation
:
Tofie
v The State
(104/2014)
[2014] ZASCA 159
(1 October 2014)
Coram:
Lewis JA and Mathopo and Gorven AJJA
Heard:
11 September 2014
Delivered:
1 October 2014
Summary:
Evidence ─ adequacy of proof ─
rape of 15 year old girl ─ evidence of complainant in sexual
matters ─ complainant’s
evidence riddled with inherent
improbabilities and not corroborated by other witnesses ─
discrepancies affecting her reliability
and credibility. Conviction
overturned.
ORDER
On
appeal from:
Western Cape High Court,
Cape Town (Erasmus and Gangen JJ sitting as court of appeal):
The
appeal is upheld and convictions and sentences are set aside and
replaced with the following:
‘
The
accused is found not guilty and discharged on both counts.’
JUDGMENT
Mathopo
AJA (Lewis JA and Gorven AJA concurring)
[1]
The appellant was convicted by the Regional Court Wynberg of two
counts of rape of a 15 year old female person (Ms H) by penetrating
her vaginally and anally. He was sentenced to 10 years’
imprisonment on each count. The trial court ordered the sentences
not
to run concurrently and therefore imposed an effective sentence of 20
years’ imprisonment. Aggrieved by the convictions
and sentences
the appellant appealed to the Western Cape High Court, which
dismissed the appeal and increased the sentences to
life
imprisonment. The high court granted him leave to appeal against the
sentence only. Leave to appeal against conviction and
sentence was
granted by this court.
[2]
Briefly the facts are as follows: Ms H’s evidence was that on 8
January 2010 at or around 23h00, she was walking her boyfriend
D[…]
L[…] (L[…]) home along Hoosen Park. They were coming
from a party. They met the appellant who was known
to her as he was a
friend of her father. The appellant asked them for a cigarette
lighter which they did not have. He then followed
them, produced a
knife and raised his voice in a threatening manner and instructed
L[…] to go home. When L[…] protested
the appellant
threatened to stab him. The complainant then instructed L[…]
to go home and proceeded walking with the appellant.
Along the
way the appellant put a hand around her neck as if they were a
couple. The complainant told the appellant that she was
going to
sleep at her uncle’s place in Grassy Park.
[3]
Along the way she passed a group of Rastas at a party. When they
reached Parkwood and Grassy Park the appellant put a knife
against
her neck, threw her on the ground and pulled off her panties, tore
her skirt and shirt then unzipped his trousers. She
screamed loudly
but the appellant closed her mouth while holding a knife against her
throat. He then inserted his penis into her
vagina. According to Ms H
the appellant penetrated her for a long period of time. She estimated
this to be about 90 minutes. The
appellant then turned her around,
made her lie on her stomach and half penetrated her anally. As a
result, the complainant bled
from her vagina and anus.
[4]
The complainant then managed to free herself and ran towards the
house nearby with the appellant in hot pursuit. Mr Walid Ismail
(Ismail) came out of the house and rescued her. The appellant then
left. Ismail contacted the complainant’s family. Her father
and
sister arrived and she was taken to the police station where she
wrote a statement. I will deal with the significance of the
statement
later in the judgment. She was thereafter taken to the doctor who
examined her at about 05h00 in the morning. She told
the doctor
during the examination that she had been a virgin.
[5]
In her statement to the police dated 9 January 2010, the complainant
stated that she had been with her female friend R[…]
at a shop
in Bluebird Lane when the appellant accosted her and took her by
force. She did not disclose that she had been at a party
with her
boyfriend (L[…]). She later deposed to an affidavit on 21
January 2010 where she stated that she had been with
her boyfriend.
When asked why she gave different versions she said she was scared to
tell the truth because her parents did not
give her permission to go
to the party. It was clear that the statements contradicted each
other and her evidence in court. When
asked to explain the
discrepancies she admitted to lying. When pressed further she said
she lied because her father and sister
were present when she wrote
the first statement. In her second statement she admitted that she
had sexual intercourse with L[…]
once and this was at her
boyfriend’s friend’s house. This piece of evidence was in
stark contradiction to the evidence
of the boyfriend who testified
that they had sexual intercourse three times that afternoon at the
complainant’s friend’s
house. Another disconcerting
aspect of her evidence is that she told the doctor that she was a
virgin. This was clearly untrue
because she had sexual intercourse
with her boyfriend that afternoon. She explained that she lied to the
doctor because she thought
the doctor would tell her mother.
[6]
Dr J D G de la Cruz examined her at 05h00 in the morning and he noted
in the medical report known as Form J88 that the complainant
was neat
and tidy and that he did not observe any bleeding either vaginally or
anally. She had not bathed at that stage. This contradicted
her
evidence that the appellant tore her skirt and shirt during the
incident. She told the doctor that she was penetrated vaginally
and
anally. However she was not sure whether the appellant ejaculated or
not. On examination of the vagina the doctor found no
bleeding or
tears. There was a little bit of erosion and some discharge in the
posterior area of the cervix. The doctor said that
on gynaecological
examination of the vagina the redness and erosion could have been
caused by the sexual intercourse with her boyfriend
earlier.
[7]
The doctor’s evidence was not particularly helpful. He conceded
that he was uncertain whether anal penetration took place
or not.
When asked by the court, he said the redness on the anus could be
attributed to other facts. Later when pressed further,
he stated that
after inserting a sampling brush he found the discharge. When asked
to explain how it came about as people normally
do not have a
discharge in the anus he said it was likely that there was
penetration and the discharge was caused by the ejaculation.
During
cross-examination, he conceded that the redness as well as the fact
that there were no fresh tears could be attributable
to the fact that
the complainant had sexual intercourse earlier in the day with her
boyfriend.
[8]
Ismail also testified that he heard screams and when he came out to
investigate he saw the complainant standing with the appellant.
The
complainant screamed and said ‘Uncle hy rape me’. He then
noticed the appellant fastening his trousers and running
away. In
cross-examination he changed his version and said the complainant
uttered the words ‘Hy wil my rape’. What
Ismail in fact
said when questioned by the court was:
‘
HOF:
U het eers gesê sy het gesê “Uncle, hy rape me”
en toe later u gesê “Uncle, hy wil my rape”
─
Ja kan u onthou dat dit nie was hy rape my nie, maar hy wil my rape?
─ wil my rape ─ Ja’
[9]
In his defence the appellant admitted that he knew the complainant
very well and was friends with her father. He said that he
met the
complainant on the night in question but denied threatening L[…]
with a knife. According to his evidence the complainant
asked him to
accompany her to her uncle’s place in Grassy Park. Along the
way he bought her cigarettes and some items from
the garage. It was
his evidence that the complainant threw herself down and asked him to
have sex with her. He refused and this
made the complainant angry. He
then told the complainant to insert his penis in her vagina. At that
stage his penis was out of
his trousers as he had just finished
urinating. When the complainant touched his penis to insert it in her
vagina, he then told
her to stop. She then took off her panties,
lifted her skirt and said that she was going to urinate in the
bushes. The complainant
then started screaming and shouting that the
appellant had raped her and ran towards the houses.
[10]
Initially he denied that he instructed his counsel that he had
penetrated her twice. Later he said the sexual intercourse was
consensual. When asked to explain the discrepancies he could not give
a reasonable explanation save for stating that he wanted
the case to
be finalised.
[11]
The trial court and the court below were satisfied that the
discrepancies in the complainant’s evidence were not material
and described the evidence as understandable and acceptable in the
circumstances. After applying the cautionary rules both courts
were satisfied that she had told the truth when testifying.
[12]
The appeal is based on three grounds: Firstly, that the trial court
and high court erred in accepting that the complainant’s
evidence satisfied the requirements of the cautionary rule, and that
the State proved its case against the appellant beyond reasonable
doubt. Secondly, that on the evidence, the appellant’s conduct
constituted two counts of rape. Thirdly, that the high court
committed an irregularity when it increased the sentences.
[13]
In this court it was submitted that the complainant was a single
witness and that her evidence, especially because she was
15 years
old, required that it be approached with caution. It was contended
that because of the contradictions in her statements
and evidence,
both courts had erred in accepting her evidence as reliable and
credible. The fact, it was
argued,
that the appellant’s evidence was also contradictory and
improbable, does not necessarily warrant a conclusion that
the
evidence of the complainant was reliable and true.
[14]
As regards the finding that there were two counts of rape it was
contended that this was a single prolonged act of intercourse
with no
interruption.
[15]
The State, on the other hand, submitted that the fact that the
complainant admitted to lying in certain parts of the evidence
does
not necessarily mean that her evidence should be rejected as a whole.
Counsel contended that evaluating her evidence as a
whole, she was a
credible and reliable witness who told the truth. In support of his
arguments, counsel relied on the evidence
of L[…] and Ismail
as sufficient corroboration of the complainant’s evidence. I do
not agree. The complainant contradicted
the evidence of Ismail, L[…]
and De la Cruz. And the evidence of Ismail did not corroborate that
of the complainant in relation
to the manner in which he saw them. He
said that
they
had been standing facing each other. In fact Ismail contradicted
himself in cross-examination. In
S
v
Gentle
[1]
the remarks of Cloete JA are apposite when dealing with
corroboration:
‘
It
must be emphasised immediately that by corroboration is meant other
evidence which supports the evidence of the complainant,
and which
renders the evidence of the accused less probable,
on
the issues in dispute
(cf
R
v W
1949 (3) SA 772
(A) at 778-9). If
the evidence of the complainant differs in significant detail from
the evidence of other State witnesses, the
Court must critically
examine the differences with a view to establishing whether the
complainant’s evidence is reliable.
But the fact that the
complainant’s evidence accords with the evidence of other State
witnesses on issues not in dispute
does not provide corroboration.’
The
submission that the complainant was shaken and terrified is
unconvincing. It is only when Ismail intervened that the complainant
cried rape. The complainant was afforded an opportunity to come clean
when she made the second statement but elected not to do
so.
[16]
The complainant was a single witness with regard to the rapes. It is
trite that when dealing with the evidence of a single
witness such
evidence must be approached with the necessary caution. Before a
court can convict, it must be satisfied that such
evidence is clear
and satisfactory in all material respects. See
S
v Jackson
.
[2]
It was necessary to have approached her evidence with the caution
referred to in
S
v Sauls
.
[3]
The trial court and the high court paid lip service to that approach.
There is no corroboration in the complainant’s evidence
that
the appellant penetrated her vaginally. The medical evidence is also
unclear and uncertain. In his findings De la Cruz did
not find any
discharge on vaginal examination. His evidence did not take the
State’s case any further. In addition his concession
that
penetration or ejaculation was not the only possible cause of the
discharge did not help the State’s case.
[17]
It is clear from the judgments of both the courts below that they, in
spite of material discrepancies in the complainants evidence,
wrongly
held that it was true and reliable. I find it untenable that both the
trial court and the high court found the complainant’s
evidence
credible and reliable in all material respects notwithstanding the
glaring contradictions if not blatant lies, in her
evidence.
[18]
I accept that the appellant was also an unsatisfactory witness. He
admitted to sexual intercourse with the complainant, later
changed
his version and disavowed what his counsel put to the witnesses. His
version that the complainant asked for sex out of
the blue and
attempted to pull his penis out of his trousers is plainly
preposterous. While the falsity of the appellant’s
evidence,
and the fact that he did not seriously contradict the complainant’s
evidence on that score, are factors to be taken
into account when
weighing the evidence, it cannot be elevated beyond its due.
[19]
It is trite that there is no obligation upon an accused to prove his
innocence. The State bears the onus of proving the commission
of an
offence. If his version is reasonably possibly true he is entitled to
his acquittal even though his explanation is not plausible.
As
pointed out in many judgments it is permissible to look at the
probabilities of the case to determine whether the accused’s
version is reasonably possibly true, but whether one believes him is
not the test. It is and remains the State’s duty and
not the
appellant’s to discharge the onus and it should not be
reversed. The proper test was formulated by Nugent J in
S
v Van der Meyden
[4]
as follows:
‘
The
proper test is that an accused is bound to be convicted if the
evidence establishes his guilt beyond reasonable doubt, and the
logical corollary is that he must be acquitted if it is reasonably
possible that he might be innocent. The process of reasoning
which is
appropriate to the application of that test in any particular case
will depend on the nature of the evidence which the
court has before
it. What must be borne in mine, however, is that the conclusion which
is reached (whether it be 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 might be found
to be only possibly false or unreliable; but none of it may simply be
ignored.’
[20]
Against this backdrop it is necessary to examine the complainant’s
evidence. In my view the complainant’s account
of how she was
physically overcome by the appellant was inconsistent and
unconvincing. On the face of it, the complainant’s
evidence
appeared to be improbable. One moment she was uncomfortably walking
with the appellant, the next moment she seemed happy
to walk with him
along the veld late at night. Sight must not be lost of her evidence
that he had just threatened her and her boyfriend
with a knife. Such
a change in attitude would indeed be improbable in a person who was
initially threatened. But the complainant
was not. She was happy to
continue walking with the appellant. Even when they passed the group
of Rastas she did not ask them for
help. This makes her evidence
improbable.
[21]
The following aspects of her evidence illustrates her unreliability
and affect the probative value of her evidence. In her
first
statement to the police dated 9 January 2010 she stated that the
appellant accosted her at the shop in Bluebird Lane while
waiting for
her friend Ronell who had gone home to fetch her jersey. In her
second statement dated 21 January 2010 she stated that
she was with
L[…] at Hoosen Park. She admitted to sexual intercourse with
L[…] only once. This contradicted his (L[…])
evidence
that it happened three times at a different place to the one
suggested by the complainant. It is noteworthy that she failed
inexplicably to seek assistance from the Rastas whom they passed
shortly before the appellant raped her. Her explanation that she
was
scared of the appellant is unconvincing. The fact that she did not
resist when the appellant put his arm around her as if they
were a
couple casts serious doubt on her credibility. In her statement and
evidence in court she testified that the appellant tore
her skirt and
shirt when he raped her. This evidence is contradicted by the doctor
who found her clothing to be neat and tidy when
he examined her at
05h00 in the morning. She told the doctor that she was a virgin. In
court she said she was bleeding from her
vagina and anus. However, no
such evidence was found on examination by the doctor. Finally, Ismail
stated that when he came out
of the house in response to the screams
he noticed the complainant and the appellant standing, facing each
other, and yet she reported
that she had just been raped. As pointed
out correctly by counsel for the appellant none of the state
witnesses corroborated her.
In fact L[…], Ismail and De la
Cruz made her evidence open to doubt.
[22]
The unreliability of the evidence as to rape is such that the State
has not proved its case beyond reasonable doubt and the
appellant
must be acquitted.
[23]
I therefore make the following order:
1
The appeal is upheld and the convictions and sentences are set aside
and replaced with the following:
‘
The
accused is found not guilty and discharged on both counts.’
R
S Mathopo
Acting
Judge of Appeal
Appearances
For
the Appellant: M Calitz
Instructed
by:
Legal
Aid South Africa, Cape Town
Legal
Aid Board, Bloemfontein
For
the Respondent: M O Julius with him M D September
Instructed
by:
Director
of Public Prosecutions, Cape Town
Director
of Public Prosecutions, Bloemfontein
[1]
S
v Gentle
2005 (1) SACR 420
(SCA) para 18.
[2]
S
v Jackson
1998 (1) SACR 470.
[3]
S
v Sauls
&
others
1981 (3) SA 172
(A) at 180E.
[4]
S
v Van der Meyden
1999 (1) SACR 449j-450b.