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[2014] ZASCA 215
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S and Another v S (126/2014) [2014] ZASCA 215 (1 December 2014)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 126/2014
Not
Reportable
In
the matter between
B[…]
S[…]
….........................................................................................................
FIRST
APPELLANT
J[…]
V[…]
R[…]
..............................................................................................
SECOND
APPELLANT
and
THE
STATE
....................................................................................................................
RESPONDENT
Neutral
citation:
S[…] & another
v The State
(126/2014)
[2014] ZASCA 215
(01 December 2014)
Coram:
Bosielo JA, Schoeman and Fourie AJJA
Heard:
25 November 2014
Delivered:
01 December 2014
Summary
:
Criminal appeal against convictions on rape and indecent assault –
Complainant a single witness – evaluation of her
evidence –
the trial court making credibility findings favourable to complainant
– whether the appeal court free to
interfere with such –
consent – whether the evidence sufficient to sustain the
convictions.
ORDER
On
appeal from:
Western Cape High Court,
Cape Town (Goliath J and Cloete AJ sitting as a court of appeal):
The
appeal is dismissed.
JUDGMENT
Bosielo
JA (Schoeman and Fourie AJJA. concurring):
[1]
The facts of this case are not only intriguing but appear more
fictitious than real. Paradoxically, they are largely common
cause
between the protagonists. They are succinctly set out hereunder.
[2]
The first appellant and the complainant, TS a 19 year old woman are
blood cousins. Notwithstanding this they had a secret love
affair
going on for almost two years. The second appellant is a friend of
the first appellant. After midnight on 8 June 2006, the
two
appellants arrived at TS’s home. She opened for them and
returned to her bed.
She was alone in bed.
The two appellants entered her bedroom. The first appellant
went and sat on her mother’s bed in
the same room whilst the
second appellant joined her in bed on the pretext that it was cold.
They got engaged in some chit-chat.
[3]
In no time the second appellant started to touch her private parts.
She objected. He then forced his tongue into her mouth.
She tried to
push him away but all was in vain. The first appellant then joined
them in bed. Whilst TS was sandwiched between them,
they began to
suck her breasts. Once again she protested and tried to push them
away. However, they overpowered her and pinned
her down. They both
forcibly pulled both her trousers and panty off and the first
appellant had sexual intercourse with her. After
he had ejaculated he
dismounted and the second appellant who had been in the bedroom
throughout, approached her with his trousers
at knee-level,
ostensibly to have sexual intercourse with her but he never did. Both
the appellants then left her home.
[4]
It is common cause that TS did not report this incident to her mother
who arrived at home in the early hours of the morning.
Her
explanation is that she was still frightened and confused and further
that her mother had a heart ailment. She feared for her
well-being.
She however reported the incident to her friend, R[…] E[…]
(E[…]) the next day. She was taken
to the police station where
she laid a charge of rape. She was medically examined by Dr Anneria
Lombard on 10 June 2006 who completed
a medical report, the J88
detailing her observations and findings. It suffices to state that Dr
Lombard concluded that ‘pasiënt
is waarskynklik teen haar
sin gepenetreer agv. vaginale erosies & klein skeurtjies’.
[5]
TS maintained that the entire act of cuddling, fondling and kissing
by both appellants culminating in the sexual intercourse
with the
first appellant was not with her consent.
[6]
On the other hand, although admitting to all the acts of fondling and
kissing and the sexual intercourse by the first appellant,
the
appellants deny that it was by force. They testified that TS never
resisted or protested and that she consented to all the
acts.
[7]
Emanating from these facts, both appellants stood trial in the
Regional Court, Malmesbury on one count of rape and 2 counts
of
indecent assault. They were convicted on one count of rape and one of
indecent assault each. The first appellant was sentenced
to
imprisonment for 10 years in respect of rape and 5 years for indecent
assault whilst the second appellant was sentenced to imprisonment
for
8 years for rape and 5 years for indecent assault. The respective
sentences for indecent assault were ordered to run concurrently
with
the sentence imposed in respect of rape.
[8]
With the leave of the regional magistrate, both appellants appealed
against their convictions to the high court. Their appeal
was
dismissed on 27 May 2011. The appeal against conviction to this Court
is with the leave of the court below.
[9]
The gravamen of the appellants’ attack against their
convictions is that, both regional magistrate and the court below
adopted a wrong approach to the evaluation of evidence. It was
submitted further that both courts erred in attaching inadequate
weight to the fact that TS was a single witness, and further that she
contradicted herself as well as the statement which she made
to the
police. It was furthermore contended that both the regional
magistrate and the court below erred in not finding her version
to be
improbable as compared to that of the appellants, which it was
submitted was reasonably possibly true.
[10]
On the other hand, counsel for the respondent submitted that the
version of TS was correctly accepted as it was corroborated
not only
by her friend (E[…]) to whom she reported the incident and Dr
Lombard, but importantly, by the version of both
appellants. It was
contended that the appellants’ version when evaluated against
that of TS is so inherently improbable that
it cannot be reasonably
possibly true. Counsel for the respondent submitted that as both the
regional magistrate and the court
below had made factual and
credibility findings in favour of the state, absent any proof that
such findings are clearly or demonstrably
false, that this court,
sitting as a Court of Appeal, cannot interfere with such findings.
[11]
At the heart of this appeal is the correct approach to the evaluation
of evidence in a criminal trial.
[12]
I pause to observe that both the regional magistrate and the court
below gave detailed and well-reasoned judgments. Both judgments
show
clearly that both the regional magistrate and court below were aware
that insofar as the actual sexual intercourse is concerned,
TS was a
single witness; that she did not report to her mother when she
arrived home that morning; that there were contradictions
between her
evidence in court and the statement which she had made to the police.
[13]
In dealing with the fact that TS is a single witness, both the
regional magistrate and the court below found that her version
was
amply corroborated by the evidence of both appellants. Save for the
issue of consent which they relied on, they both did not
dispute her
evidence. In addition, support for her version can be found in the
fact that she reported the incident to her close
friend, E[…]
the next day as well as the medical report by Dr Lombard. As a
result, both the regional magistrate and the
court below found that
there is no indication that her evidence was untruthful. I am unable
to find any fault with the finding.
[14]
Contrary to this, the regional magistrate and the court below found
the appellants’ versions regarding consent to be
so inherently
improbable as not to be reasonably possibly true.
[15]
It is common cause that in evaluating the evidence, the regional
magistrate considered the merits and demerits of both the
state’s
and defences’ version as well as the inherent probabilities of
the case. Counsel for the appellants criticised
the regional
magistrate for this approach. In particular, he submitted that the
appellants’ version could only be rejected
if it was found to
be false beyond reasonable doubt. It suffices to say that this
submission seductive as it may be at first blush
is fallacious.
[16]
The State relied largely on the evidence of TS, the complainant.
Contrary to the submission on behalf of the appellants, she
is not a
single witness. Her version of the events of that fateful night which
forms the subject matter of the charges against
the appellants is
corroborated by the two appellants themselves. The only aspect of her
evidence which they disputed is her evidence
that she did not consent
to the actions in issue. Further support of her version can be found
in the evidence of E[…] and
Dr Lombard, whose evidence was
never criticised.
[17]
The correct approach to the evaluation of evidence in a criminal
trial was enunciated by this Court as follows in
S v Chabalala
2003 (1) SACR 134
(SCA) para 15:
‘
The
trial court’s approach to the case was, however, holistic and
in this it was undoubtedly right:
S v
Van Aswegen
2001 (2) SACR 97
(SCA). 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 port
facto
determination and a trial court
(and counsel) should avoid the temptation to latch onto one
(apparently) obvious aspect without
assessing it in the context of
the full picture presented in evidence….’
This
salutary approach was also adopted in
S v Trainor
2003 (1)
SACR 35
(SCA) para 9.
[18]
Grappling with the perennial debate on the difference between proof
beyond reasonable doubt and proof on a balance of probabilities,
this
Court enunciated the correct approach as follows in
S v Phallo &
others
1999 (2) SACR 558
(SCA):
‘
On
the basis of this evidence it was argued that the State had, at best,
proved its case on a balance of probabilities but not beyond
reasonable doubt. Where does one draw a line between proof beyond
reasonable doubt and proof on a balance of probabilities? In
our law,
the classic decision is that of Malan JA in
R
v Mlambo
1957 (4) SA 727
(A). The
learned Judge deals, at 737F-H, with an argument (popular at the Bar
then) that proof beyond reasonable doubt requires
the prosecution to
eliminate every hypothesis which is inconsistent with the accused’s
guilt or which, as it is also expressed,
is consistent with his
innocence. Malan JA rejected this approach, preferring to adhere to
the approach which ‘at one time
found almost universal favour
and which has served the purpose so successfully for generations’
(at 738A). This approach
was then formulated by the learned Judge as
follows (at 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.
An
accused’s claim to the benefit of a doubt when it may be said
to exist must not be derived from speculation but must rest
upon a
reasonable and solid foundation created either by positive evidence
or gathered from reasonable inferences which are not
in conflict
with, or outweighed by, the proved facts of the case.”
(See
also
S v Sauls and others
1981 (3) SA 172
(A) at 182G-H;
S
v Rama
1966 (2) SA 395
(A) at 401;
S v Ntsele
1998 (2)
SACR 178
(SCA) at 182
b-h
.)
The
approach of our law as represented by
R v Mlambo, supra
,
corresponds with that of the English Courts. In
Miller v Minister
of Pensions
[1947] 2 All ER 372
(King’s Bench) it was said
at 373H by Denning J:
“
(T)he
evidence must reach the same degree of cogency as is required in a
criminal case before an accused person is found guilty.
That degree
is well settled. It need not reach certainty, but it must carry a
high degree of probability. Proof beyond reasonable
doubt does not
mean proof beyond the shadow of a doubt. The law would fail to
protect the community if it admitted fanciful possibilities
to
deflect the cause of justice. If the evidence is so strong against a
man as to leave only a remote possibility in his favour,
which can be
dismissed with the sentence “of course it is possible, but not
in the least probable”, the case is proved
beyond reasonable
doubt, but nothing short of that will suffice.”’
[19]
The combined version of the appellants is that TS consented to both
of them fondling her, kissing or sucking her breasts and
eventually,
the first appellant having sexual intercourse with her. All this
happened in the full glare of all three. This is notwithstanding
the
fact that the first appellant had a secret relationship with TS, who
is her cousin. The second appellant did not know of this
relationship. If both TS and the first appellant were so desperate to
keep this relationship a secret, is it probable that she
would
consent to the first appellant having sexual intercourse with her, in
full view of the second appellant? The answer should
be no as this
would be a give-away. Another intractable question is whether it is
probable that the first appellant would allow
the second appellant to
fondle and kiss his girlfriend? Furthermore, is it probable that the
complainant would act in this manner
whilst her boyfriend was
watching? This sounds not only inherently improbable but incredulous.
As it was stated in
Mlambo
(supra) the state’s evidence
is to my mind, ‘of such a high degree of probability that the
ordinary reasonable man,
after mature consideration, can come to the
conclusion that there exists no reasonable doubt that the accused has
committed the
crime charged’.
[20]
Another hurdle which lay in the appellants’ way is that the
regional magistrate made strong credibility findings in this
matter.
He found TS, Engelbrecht and Dr Lombard to be credible and reliable
witnesses. The regional magistrate was not impressed
by the two
appellants.
Evidently this finding was
based on his observations of all the witnesses who testified before
him. The appellants have not demonstrated
that the regional
magistrate was demonstrably wrong on the credibility and factual
findings which he made.
[21]
This Court held as follows in
S v Pistorius
2014 (2) SACR 314
(SCA) para 30:
‘
It
is a time-honoured principle that once a trial court has made
credibility findings an appeal court should be deferential and
slow
to interfere therewith unless it is convinced on a conspectus of the
evidence that the trial was clearly wrong (
R
v Dhlumayo & Another
1948 (2) SA
677
(A) at 706;
S v Kebana
[2010] 1 All SA 310
(SCA) para 12.’
This
is so because of the fact that as the trial court was ‘steeped
in the atmosphere of the trial’ it had the advantage
of
observing the witnesses as they testified which the appeal court
never had.
[22]
Despite my diligent search I have not been able to find any
demonstrable or clear error on the part of the trial court to justify
interference with its credibility findings. Nor was one suggested to
me by counsel. To the contrary, the record proves that the
trial
court was correct in its credibility findings. Given the conspectus
of the evidence, I am unable to find that the trial court
erred in
finding that the appellants’ versions are so inherently
improbable as not to be reasonably possibly true. It follows
that the
appeal has no merit.
[23]
In the result, the appeal is dismissed.
_________________
L
O BOSIELO
JUDGE
OF APPEAL
Appearances:
For
Appellant : D Filand
Instructed
by:
Hassan
& Associates; Cape Town
Phatshoane
Henney, Bloemfontein
For
Respondent : E Kortje
Instructed
by:
Director
of Public Prosecutions; Cape Town
Director
of Public Prosecutions, Bloemfontein