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[2010] ZAWCHC 514
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Samuels v S (A315/2009) [2010] ZAWCHC 514 (27 October 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
No: A315/2009
In
the matter between:
MOGAMAT
SAMUELS
…..................................................................................................
Appellant
Versus
THE
STATE
…................................................................................................................
Respondent
JUDGMENT
DELIVERED ON 27 OCTOBER 2010
Allie,
J
[1]
The
appellant was convicted in Wynberg Regional Court on two counts of
rape and two counts of indecent assault. He had pleaded
not guilty.
All counts were taken together for the purpose of sentence and he
was sentenced to
20
years
direct imprisonment.
[2]
He
appeals against the conviction.
[3]
The complainant alleged that while she and her boyfriend, Clive
Morkel was lying in their wendy house in front of an incomplete
building, they heard a car pull up. Mr Morkel opened the door of the
shack and recognised one, Bradley who serviced a portable
toilet on
the building site. He said that Bradley had come about the dog at
the site. Bradley and the appellant threatened to
harm them if they
did not open the door of the wendy house. The appellant came in and
asked what the complainant was doing with
an older man, namely, Mr
Morkel. He then chased Mr Morkel out of the shack and told the
complainant to move further back on the
bed and to undress. He
threatened to shoot her with a gun if she did not have sexual
intercourse with him. He pulled her pants
down half way and she
pulled it down the rest of the way.
[4]
He had sexual intercourse with her in the wendy house. He took her
to the incomplete building at the back where he penetrated
her
anally twice, vaginally once and compelled her to perform fellatio
twice. He then took her back to the wendy house and on
the way they
encountered Mr Morkel. The complainant alleged that she told Mr
Morkel that she had been raped.
[5]
Once in the wendy house the complainant said that the appellant
attempted to rape her again but he was interrupted when the
police
arrived. She said that the appellant told the police that she was
his girlfriend but she told the police that that was
not true.
[6]
Later during cross examination the complainant admitted that she
asked the appellant whether he used TIK. She also said for
the first
time that when the appellant approached her on the bed when he first
entered the wendy house, she felt in his pants'
pockets for a gun
but he did not have one there. He told her that he only had his
money and cell phone in his pocket.
[7]
During cross examination she admitted that she had given the
particulars of her bank account to the mother of the appellant
after
he was arrested and she discussed the issue of Mrs Samuels paying
her to withdraw the charges. She however denied that
she agreed to
withdraw the charges in exchange for payment and alleged that she
was trying to entrap Mrs Samuels for bribery.
[8]
The accused's version is that he went with his friend Bradley to the
wendy house of the complainant and her boyfriend. Bradley
asked him
to keep the complainant busy by talking to her so that Bradley could
discuss taking the dog with Mr Morkel.
[9]
He testified that the complainant asked him if he used TIK, and then
she took out a TIK lolly and they used it together. Thereafter
she
wanted money from him and he said he will give her some when he is
at the car. He then wanted to know what she would give
him in return
and she started performing fellatio. Thereafter the police arrived.
He denied raping her, indecently assaulting
her and taking her to
the incomplete building behind her wendy house. His version clearly
does not make sense because if she
had given him a TIK lolly, he
would not have asked her what she would do for him as she would
already have given him something
in return for the money he was
going to give her.
[10]
A
court does not however have to believe the version of an accused to
acquit him.
[11]
The
state has an obligation to first discharge the onus of proving
beyond reasonable doubt that the accused committed the offences.
[12]
The testimony of the complainant together with that of Mr Morkel and
the lack of medical evidence to prove unequivocally
that forced
penetration occurred, creates considerable doubt. Once the
complainant could feel no gun in the pocket of the appellant,
the
element of coercion that she relied upon to explain her submission
to appellant falls away.
[13]
The scenario she sketched in her evidence-in chief is that of a
woman frightened by the threat of being shot with a gun,
who chose
to co-operate rather than resist. She offered no explanation about
how she could be so at ease in the company of the
accused that she
could chat with him about whether he used TIK. Mr Morkel failed to
support her allegation that the accused chased
him away. He in fact
stated that he took the opportunity to slip away to a neighbour and
to summon the police because his only
concern was that Bradley and
the appellant would steal the dog. He testified that when he
returned after calling the police he
found the appellant and the
complainant holding hands and walking from the incomplete building
into his shack. He waited outside
the closed door of his shack and
did not hear the complainant resist the advances of the appellant at
all.
[14]
At one state the complainant's evidence points to being raped thrice
although she states pointedly that she was raped twice.
The
inconsistencies in her evidence were not clarified. On a conspectus
of all the state's evidence, I can find no evidence to
support the
allegation by the complainant that she was raped and indecently
assaulted.
[15]
In the circumstances the appeal succeeds and the convictions and
sentence are set aside.
ALLIE,
J
I
agree
K
MATTHEE, AJ