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[2010] ZAWCHC 507
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Sebastiaan v S (A40/2010) [2010] ZAWCHC 507 (22 October 2010)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE, HIGH COURT. CAPE TOWN)
CASE NO
: A40/2010
DATE:
22 OCTOBER 2010
In the matter between:
IVAN
SEBASTIAAN
….............................................................................................................
Appellant
and
THE
STATE
…........................................................................................................................
Respondent
JUDGMENT
DESAI, J
:
The
appellant, a resident of Hawston, was convicted in the Regional Court
at Hermanus on two charges of rape and sentenced to an
effective term
of ten years' imprisonment. He appeals against the convictions only
and the matter comes before us with the leave
of the trial court.
This
case is somewhat unusual in that the charges against the appellant
were only instituted more than three years after the offences
were
allegedly committed. That, of course, is not fatal to the State's
case. The lapse of a significant period of time between
the
commission of an offence and the institution of criminal proceedings
simply means that a greater degree of
caution
is required in the evaluation of the complainant's evidence.
The
real problems in this case are more fundamental. The complainant is
also a single witness and her evidence is not corroborated
by any
objective evidence whatsoever. In order to overcome this problem, the
trial court endeavours to find support for the State's
case in
appellant's version of what transpired on the evening these offences
were allegedly committed. Its findings in this regard
are incapable
of fair-minded support. I shall revert to this aspect
shortly.
Moreover,
appellant's evidence was both consistent and coherent and he did not
contradict himself in any material respect. His wife,
the only other
witness to testify at the trial, supports his version. She does not
confirm the complainant's version that the first
report of the rapes
was made to her. She in fact denies that such a report was made to
her and, in effect, contradicts an essential
aspect of the
complainant's case.
Her
evidence was rejected by the trial court on rather tenuous grounds.
The fact that she was nervous cannot be held against her.
It seems
that she was receiving medication for stress or a stress disorder.
The trial court finds that her denial amounts to a
"botweg plat
ontkenning". That can hardly be significant. The first report
was either made to her or it was not. I do
not think any negative
connotation can be attached to a simple denial that such a report was
not made.
Then
there is the criticism that appellant is her husband and the father
of her children and accordingly not objective. It may be
that she is
not, or may not be, objective, but she was the person to whom the
report was allegedly made. She, and not some other
more objective
person, was the only one who could testify about the first report.
The
appellant's version that she was taken to Fishershaven and raped and
made the report on her return to the appellant's wife who
pleaded
with her not to report the matter is, on the face of it, plausible.
The explanation for the delay in reporting the matter
is also
plausible. Less plausible is the explanation why she continued to
stay with the appellant and his wife at their home until
she was
fetched a few days later.
However,
on the whole, we will do her an injustice by not finding that her
evidence was coherent, if not logical, and she did not
materially
contradict herself during cross-exxamination. Simply stated, she was
a relatively good witness despite the lapse in
time and her young age
when the offences were allegedly committed.
On
the other hand, the appellant's evidence was also reasonably good. He
was cross-examined at length by the prosecutor, his cross-examination
runs from page 116 to 129 of the typed record, a total of 13 pages.
His examination by the magistrate runs from page 129 to 144
of the
record, a total of 15 pages. At times the questioning by the
magistrate appears to be hostile, if not cross-examination.
Such
lengthy examination by the trial court could easily lead to a
perception of bias in appropriate circumstances. I do not make,
or
imply, a finding to that effect in this instance.
In
any event, a great deal of the questioning by the magistrate was
directed to ascertain from appellant how he could remember what
happened on a specific date four of five years earlier. There is an
innocuous explanation for this. His attention was directed
to the
trip they made to Fisherhaven. He remembers this trip to Fisherhaven
but on his version there were no rapes as testified
by the
complainant. In other words, he does not remember a specific date but
he recalls the day on which he and the complainant
went to
Fisherhaven. They differ of course as to what happened at
Fisherhaven.
The
conclusion that something untoward must have happened because he
remembers the day, is neither fair nor warranted in the
circumstances.
The
appellant's recollection of what happened at Fisherhaven does not,
and cannot, amount to corroboration of the complainant's
version. The
trial court's conclusion "hoekom onthou hy dit as daar niks
gebeur het nie" (page 190 of the record) cannot
be supported as
I have already indicated.
At
best for the State, the trial court was confronted with two versions
which are equally probable. The defence case is in fact
stronger with
the denial in respect of the first report, but whatever version is
more probable, the trial court must ultimately
decide whether the
accused's case can reasonably possibly be true. Even without recourse
to the applicable cautionary rules, that
possibly cannot be excluded
in this instance. In the peculiar circumstances of this case the
trial court erred in not making such
a finding.
In the result, I
propose making the following order:
The appeal succeeds, the appellant's convictions and sentence are set
aside.
VELDHUIZEN.
J
: I agree.
VELDHUIZEN,
J
SALDANHA. J
:
I agree.
SALDANHA,
J
DESAI. J
: It is so
ordered.
DESAI. J