About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2013
>>
[2013] ZASCA 81
|
|
Nemavhola v S (45/13) [2013] ZASCA 81 (30 May 2013)
Links to summary
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 45/13
Not Reportable
In the matter between:
TSHIFHIWA TSHISILINGO NEMAVHOLA
.................................................
APPELLANT
and
THE STATE
..............................................................................................
RESPONDENT
Neutral citation
:
Nemavhola v State (
45/13)
[2013]
ZASCA 81(30 May 2013)
Coram:
CACHALIA, PETSE JJA and ERASMUS AJA
Heard:
23 May 2013
Delivered Order:
23 May 2013
Reasons Delivered:
30 May 2013
Summary: Rape ─ conviction ─ sufficiency of proof ─
evidence of penetration not established ─ alibi in defence
reasonably possibly true.
_________________________________________________________________________________
ORDER
___________________________________________________________________
On appeal from:
Limpopo High Court (Thohoyandou) (Hetisani J
sitting as court of first instance):
1. The appeal against both the conviction and sentence is upheld.
2. The conviction and sentence are set aside.
3. The appellant is to be released from custody forthwith, unless he
is held on a legal warrant other than the warrant of detention
in
this matter.
4. Reasons for the order are to follow.
REASONS
ERASMUS AJA (CACHALIA and PETSE JJA concurring):
[1] The appellant was charged and convicted of rape in the Venda High
Court on 10 March 2006. He was sentenced to life imprisonment.
On appeal to this court and having considered the record of
proceedings in the court below and hearing argument on the merits of
the appeal, this court issued an order in the following terms:
1. The appeal against both the conviction and sentence is upheld.
2. The conviction and sentence are set aside.
3. The appellant is to be released from custody forthwith, unless he
is held on a legal warrant other than the warrant of detention
in
this matter.
4. Reasons for the order are to follow.
These are the reasons:
[2] It was alleged that the appellant raped the complainant, a
thirteen year old girl, on 24 June 2004 at Vondwe in the vicinity
of
Thohoyandou. The appellant pleaded not guilty to the charge and
denied the offence, he did not disclose the basis of his defence
at
the plea stage. It later seemed evident that he also raised an alibi.
It was therefore incumbent upon the State to prove all
the elements
of the offence, including the identity of the perpetrator, beyond a
reasonable doubt.
[3] The respondent conceded in argument that the conviction of the
court a quo falls to be set aside. I shall consequently confine
myself to the two issues which fatally undermine the finding of the
court below. The first is whether the State succeeded in proving
that
the complainant was penetrated,
1
in a legal sense by the perpetrator and secondly, whether in any
event it could be found that the alibi raised by the appellant
was
reasonably possibly true and therefore caused a reasonable doubt as
to the identity of the perpetrator.
2
[4] The complainant testified that after sunset on 24 June 2004 she
was accompanied by two friends, en route from a shopping centre.
They
were approached by two male persons, one of whom she identified as a
person by the name of Tshisilingo Tshiphoto. This person
was pointed
out by her in court as the appellant. Immediately upon encountering
them, the appellant assaulted her and dragged her
into a bush. At
that stage her friends ran away. In the bush the appellant undressed
her and called his friend, Ramatu, who held
her legs whilst the
appellant ‘was having sexual intercourse’ with her. Later
the appellant stopped what he was doing
when she screamed. They then
left for a place next to a shop, where Ramatu assaulted her with an
open hand and cut her hands with
a knife. In the meantime, the
complainant must have run away. The complainant mentioned an incident
where a friend of hers by the
name of Sheila was assaulted by Ramatu
before the appellant took her into the bush. This is in total
contradiction with the evidence
of other witnesses.
[5] In cross-examination of the complainant it was put to her by the
appellant that she was falsely implicating him because he
had been
the cause of the dissolution of a previous relationship of hers,
which she denied.
[6] One of the friends of the complainant, Daisy Gwedugwedu,
testified that she accompanied the complainant on the night of the
incident. Although she never spoke to the appellant she knew him from
sight. According to her the incident happened after sunset
at six
o’clock on 23 June 2004. When asked how she knew that it was
six o’ clock her answer was as follows:
‘
we
have had been told that my lord.
By whom? By the police.’
According to her, when the appellant approached them he said that he
‘wanted’ the complainant and slapped her with
an open
hand. She asked him where he was taking her, whereupon the appellant
dragged her into the bushes. She remained behind.
After a while they
left and called the police. It became clear from the
cross-examination that this incident happened outside a
busy business
centre where the public was moving around and is adjacent to a police
station. The friends of the complainant did
not alert the general
public of the fact that the appellant took the complainant into the
bushes as Daisy wanted to see what Ramatu
was up to. This explanation
seems strange.
[7] The investigating officer testified that he searched for the
appellant, under the name Tshiphoto, for about a year and could
not
find him. Ultimately, the appellant was traced, apparently after his
father informed the police that he was in custody in a
different
town. The appellant was identified by the complainant at a prison as
the person who had raped her.
3
The manner in which the court dealt with the identification of the
appellant was inadequate.
[8] The court record reflects that the presiding judge, in an attempt
to clarify the issue of the appellant’s names, ventured
into a
line of questioning with the investigating officer about the criminal
record centre and therefore the history of the appellant.
[9] The report of the doctor who examined the complainant shortly
after the incident, reveals that the complainant reported having
consensual intercourse three days prior to the alleged rape. He
concluded that there was evidence of penetration and there were
no
injuries and he does not exclude penetration. No further evidence is
given as to the time when, if any, penetration may have
taken place
other than the consensual intercourse three days prior.
[10] The appellant elected to testify and called witnesses to confirm
his alibi and the complainant’s motive to falsely implicating
him in the rape. The appellant’s evidence was simply, that he
had left for Seshego in Polokwane during May 2004, where he
worked at
a construction company. He was not in the area on 23 June 2004 when
the incident is alleged to have occurred and it was
therefore
impossible for him to have committed the offence. The evidence also
revealed that the distance between the two places
is approximately
170 kilometres. The appellant was extensively cross-examined by the
prosecutor as to his whereabouts and his evidence
remained unshaken.
[11] Regarding his assertion that the complainant had a motive to
falsely implicate him, he called a witness by the name of Vhutshilo
Demana. I find the trial judges’ response to the evidence of Mr
Demana disturbing, the following passage from the record
is
illuminating:
‘
Mr
Demana, I put it to you that you are just here to protect your cousin
and friend. --- I was trying to speak the truth my lord.
Ja, but your truth does not
involve the period in which the incident took place. --- No.
Do you know when this alleged
incident took place? --- I only heard that Lufuno had been raped and
how it happened I do not know.
Accused told the court that the
complainant, Lufuno, your ex-lover, according to you, have laid a
false charge of rape against him.
In other words, according to, since
you also say you know that she had been raped, he says she was raped
by someone else, but because
she hated him, because she alleged that
he caused the fall out between you and herself, she then laid a
charge against him, having
been raped by someone else, either from
Zimbabwe or Mozambique, she did not worry about that person. She only
laid the charge against
him because she hated him because she thought
he interfered in your love affair. Did you know that? --- I know
nothing about that
my lord.
Are you sure you do not know?
--- Yes, my lord.
Thank you, you are excused Mr
Demana. You may go and sit in the gallery or you may go home.’
It is instructive to note that the trial judge was putting statements
to the witness that were not borne out by evidence before
the court.
[12] The appellant insisted that he wanted to call his employer where
he allegedly worked at the time of the incident. He was taken
by the
investigating officer to look for his employer, but the employer
could not be found.
[13] The trial court had accepted the evidence of the complainant
that she was raped by the appellant on the said day, solely on
the
basis that the complainant testified to that effect and rejected the
appellant’s version as not reasonably possibly true
thus
concluding that the appellant must be guilty. This approach is
unacceptable.
4
[14] In order for a conviction of rape to be sustained, the state has
to prove beyond a reasonable doubt that all the elements
of the
offence are present and that the act was committed by the person so
charged. An important element of the offence that the
state must
prove is that penetration took place as is required in law. In the
instant matter the court a quo found reliance on
the medical evidence
to confirm that penetration took place. In his judgment the learned
judge remarked inter alia as follows:
‘
Then
the court called Dr M P Thilivhali of Donald Fraser.’
…
‘
There
is also the evidence of Dr … (indistinct) … who then
gave, who read the report, the J88 and gave evidence and
was
cross-examined.
He came to the conclusion,
according to him, that she has been assaulted by the accused. There
is evidence of penetration as shown
by an open hymen. Although there
is no injury, this does not exclude penetration.’
[15] There are two problems with the way the judge dealt with the
medical evidence. The doctor did not testify by reading the report
or
giving evidence or being cross-examined. The report was handed in by
consent at the outset of the trial without any oral evidence
having
been led. There is further no indication in the report to support the
conclusion as given by the judge. There is no indication
of the
identity of the perpetrator as the judge states in his summary.
[16] The only evidence by the complainant was that the appellant had
‘sexual intercourse’. There is no evidence on
record of
what the complainant’s understanding of the term was, nor, was
she asked to explain this.
5
It is trite that this is not enough. The court further found that
‘Later the accused cut her with a knife’, but on
the
State’s own evidence that was not correct.
[17] In dismissing the appellant’s evidence that he must have
been at his work place on the date in question, the court a
quo found
that by reason of the fact that the day in question was a Saturday,
the appellant would not have worked and would have
travelled home for
the weekend.
[18] There was no evidence that 23 June 2004 was on a Saturday. The
judge a quo raised this for the first time in argument with
counsel.
The record reflects:
‘
HETISANI
(J):
Now
the fact that he said he was at Seshego, did you check that 24 June
2004 was a Saturday?
MR MANWADU:
I
did not check.
HETISANI (J):
The
date of the incident is 23 June 2004. So normally what you do, you
check, this year June, what date will … (indistinct)
…
MR MANWADU:
Sorry,
my lord, you said a Saturday?
HETISANI (J):
The
one on which this incident took place, 23 June 2004, was it not a
Saturday? You only work backwards, you look at this year 2006,
and
then you go back to 2005, you get 2004 will be a Saturday. It was on
a Saturday.
MR MANWADU:
Unfortunately …
(intervene)
. . . .
MR MANWADU:
I
am a little bit lost my lord.
HETISANI (J):
No,
I am talking about the alibi, which he raised, that, among other
things, “I, the accused, I was at Seshego, I was working
an now
the incident, if you look at the incident, it is alleged to have
occurred on 23 June 2004. Now, I am just drawing your attention,
are
you aware that this thing happened on a Saturday?
MR MANWADU:
I
was not aware of the fact that it happened on a Saturday.
HETISANI (J):
Then
I am making you aware. What is your comment there?
MR MANWADU:
My
lord, unfortunately I do not know whether at that construction they
used to work from Monday to Friday or from Monday to Saturday.
On
that basis I will leave that in the hands of the court to make a
decision.
HETISANI (J):
I
just wanted to make you aware of that point.’
[19] The quote above illustrates how the court came to the conclusion
that 23 June 2004 was a Saturday. Not only is this approach
to
determine dates and the days of the week upon which it fell novel, it
is also not supported by a search of calendars for the
year 2004.
6
The 2004 calendar reveals that 23 June 2004 did not fall on a
Saturday as stated by the judge a quo, but rather on a Wednesday.
The
basis of the court’s rejection of the appellant’s version
in this regard is therefore fallacious.
[20] In my view, the state failed to prove all the elements of the
offence, more particularly sexual penetration. The evidence
of the
appellant was of such a nature that, properly evaluated, the
conclusion that it is not reasonably possibly true cannot be
reached.
Consequently, the appellant is entitled to an acquittal. Hence the
order in para 1 was made.
________________________
N C ERASMUS
ACTING JUDGE OF APPEAL
APPEARANCES
APPELLANT: M J Manwadu (Attorney)
Thohoyandou Justice Centre
C/O Bloemfontein Justice Centre
RESPONDENT: R J Makhera
The Director of Public Prosecutions, Thohoyandou
C/O Director of Public Prosecutions, Bloemfontein
1
See
S v MM
2012 (2) SACR 18
(SCA).
2
S
v Jochems
1991
(1) SACR 208
(A)
;
S v Malefo and another
1998 (1) SACR 127
(W)
1998
(1) SACR 127
(W)
.
3
Such
witness identifications are to be approached with great caution. See
S v Mthetwa
1972 (3) SA 766
(A), which case deals with
jail-cell identifications and wherein the court enunciates the rule
that, inter alia, the court must
have regard to whether or not the
circumstances of the identification were such as to suggest the
identity of the accused to
the witness.
See
also PJ Schwikkard and SE Van der Merwe,
Principles of Evidence
3
rd
Edition (2010) 548;
Law of South Africa
,
Annual Cumulative Supplement 2011, Volume 9, para 837; Sukwana v S
[2007] JOL 19396
(C).
4
See
State v Sauls
1981 (3) SA 172
(A) at 180.
5
See
S v MM,
supra, note 1.
6
The
court can take judicial notice of the day of the week upon which a
particular date fell with reference to a calendar, as determined
in
R v Dube
1915 AD 557
at 562.