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[2013] ZASCA 198
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Kruger v S (612/13) [2013] ZASCA 198; 2014 (1) SACR 647 (SCA) (2 December 2013)
Reportable
THE SUPREME COURT
OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Case No:
612/13
Date: 02 December 2013
In
the matter between:
LODEWICUS
ANDRIES MICHAEL KRUGER
...........................
Appellant
and
THE
STATE
............................................................................
Respondent
Neutral citation:
Kruger v The State
(612/13)
[2013] ZASCA 198
(2 December 2013)
Coram:
Lewis,
Leach, Theron, Pillay and Petse JJA
Heard:
22
November 2013
Delivered:
02
December 2013
Summary: General Law ─ rape ─ statement
of complainant implicating alleged offender made shortly after the
incident
─ such statement and the emotional state of
complainant at that time supporting conclusion that she had been
raped.
O R D E R
On appeal from:
North Gauteng High Court,
Pretoria (Mavundla and Louw JJ sitting as court of appeal):
The appeal is dismissed.
J U D G M E N T
LEACH
JA (LEWIS, THERON, PILLAY AND PETSE JJA CONCURRING)
[1] Arising out of an incident that occurred on 19 March
2008 in Danville, Pretoria the appellant was charged in the regional
court
with having raped the wife of a friend. Although it is common
cause that the appellant had sexual intercourse with the complainant,
he denied that he had raped her and alleged that she had consented to
the act. The trial court disbelieved him. It convicted him
as charged
and imposed a sentence of eight years’ imprisonment. The
appellant appealed unsuccessfully to the North Gauteng
High Court
against both his conviction and sentence. The appeal to this court is
with leave of the high court. The appeal was prosecuted
solely
against the conviction.
[2] Before dealing with the merits of the appeal, it is
necessary at the outset to deal with the test applied by the high
court
in granting leave to appeal to this court. Despite dismissing
the appellant’s appeal, the high court concluded that it was
‘possible’ that another court might arrive at a different
conclusion and that leave to appeal should not be ‘lightly
refused’ where the person concerned is facing a lengthy
sentence of imprisonment. This is an incorrect test. What has to
be
considered in deciding whether leave to appeal should be granted is
whether there is a reasonable prospect of success. And in
that regard
more is required than the mere ‘possibility’ that another
court might arrive at a different conclusion,
no matter how severe
the sentence that the applicant is facing. As was stressed by this
court in
S v Smith
2012 (1) SACR 567
(SCA) para 7:
‘
What the test of
reasonable prospects of success postulates is a dispassionate
decision, based on the facts and the law, that a
court of appeal
could reasonably arrive at a conclusion different to that of the
trial court. In order to succeed, therefore, the
appellant must
convince this court on proper grounds that he has prospects of
success on appeal and that those prospects are not
remote but have a
realistic chance of succeeding. More is required to be established
than that there is a mere possibility of success,
that the case is
arguable on appeal or that the case cannot be categorised as
hopeless. There must, in other words, be a sound,
rational basis for
the conclusion that there are prospects of success on appeal.’
[3] The time of this court is valuable and should be
used to hear appeals that are truly deserving of its attention. It is
in the
interests of the administration of justice that the test set
out above should be scrupulously followed. In the present case, it
was not, and this court has had to hear an appeal in respect of which
there was no reasonable prospect of success.
[4] I turn to the facts. Late in the afternoon of 18
March 2008, the day before the incident giving rise to the charge,
the appellant
went to the home of the complainant and her husband in
order to fetch a Wendy-house they had given to him. However the
appellant,
who is by occupation a tow-in/breakdown operator, received
a call to attend to a breakdown and had to leave after making an
arrangement
that he would send one of his employees to fetch the
Wendy-house the next morning.
[5] At about 9:30 the following day the appellant was
alone at the house, waiting for the Wendy-house to be collected.
According
to her, she had been doing her washing in the kitchen but
took her 11 month old baby to her bedroom to change his nappy. Having
done so, she put the child down on the carpet. She then saw the
appellant standing in the doorway leading to her bedroom. When
she
attempted to move past him, he grabbed her and forced her back into
the room and onto her bed. He proceeded to forcefully remove
her
tracksuit pants and her lower undergarment, forced her legs apart and
raped her. The complainant is a lightly built person
(a medical
report reflects her weight as 65 kilograms and that she is of small
general bodily build) while the appellant is a large
man (he weighed
137 kilograms) and she was unable to offer effective resistance.
Shortly after he had finished, he received a
call on his cellphone to
attend a breakdown, and immediately left.
[6] The complainant testified that she promptly
telephoned her sister who lives nearby, and arranged to go and see
her. However
before she could leave, the appellant’s truck,
driven by Mr David Els, arrived to fetch the Wendy-house. She said
that she
forced herself to be calm and told Els to take the
Wendy-house and to lock the gate behind him when he left. Taking her
infant
son with her, she then left and walked to the home of her
sister.
[7] The appellant, on the other hand, testified that
although he had not originally intended to go to the complainant’s
home
that day, he suddenly decided to do so. On his arrival he went
to the back door where he found the complainant doing her washing
in
the kitchen. She engaged him in conversation and offered him a cup of
coffee. At this stage, the complainant started flirting
with him and
when she stumbled and almost fell, he grabbed her by the hand to
steady her. With that she thrust herself against
him and kissed him.
One thing led to another and, at her invitation, he followed her into
the bedroom where consensual sexual intercourse
took place after the
complainant had removed her lower garments. He confirmed that after
the sexual act had taken place, he had
received a callout on his
cellphone and that he had left to attend to it before Els arrived.
[8] Crucial to a resolution of these conflicting
versions was the evidence of the complainant’s sister, Mrs
Johanna Pretorius,
who lived within walking distance of the
complainant’s home. She testified that at about 9:45 that
morning she received a
telephone call from the complainant who was in
tears and in such a state of distress that it was difficult to make
out what she
was saying. She ascertained that the complainant wanted
to see her and, after 15 minutes or so, the complainant arrived on
foot,
carrying her baby. She was crying and in a highly disturbed
emotional state. Mrs Pretorius described how it was only after she
had given the complainant a pill to calm her down that she had been
able to inform her of the incident and had explained how the
appellant had raped her. On hearing this, Mrs Pretorius took the
complainant to her bedroom and made her lie down. She then telephoned
her husband and, on his recommendation, contacted Crisis-on-Call.
Both the police and the complainant’s husband were also
informed of what had happened.
[9] The fact that the complainant informed her sister of
what had happened immediately after the incident is not only
admissible
under
s 58
of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007
but shows consistency on
her part in regard to her complaint, a factor that serves to rebut
any suspicion that she may have fabricated
her allegations. Moreover,
in a case such as this, where the complainant is in a state of
distress and weeping almost immediately
after the incident, her
condition is also relevant and serves to rebut a defence of consent.
1
[10] The appellant attempted to avoid the obvious
consequences of Mrs Pretorius’ evidence by relying upon the
driver of the
truck who went to fetch the Wendy- house, Els, who
testified that the complainant did not appear to him to have been at
all distressed
when he arrived at her house. Els, however, was a
witness of no great credibility. He insisted that the complainant had
been wearing
a dress whereas it was common cause that she had been
dressed in a T-shirt and tracksuit pants. He also testified that he
had been
with the complainant for about half an hour, but this cannot
be accepted in the light of the evidence of the complainant’s
sister that she had arrived at her home not long after she had
telephoned her. In addition, Els testified that the complainant
had
left without her child. This, too, was wrong. And as I have
mentioned, the complainant herself testified that she had tried
to
compose herself when dealing with Els. Taking that into account
together with his limited opportunity for observation and his
faulty
recall of various details, Els’s evidence really takes the
matter no further.
[11] The appellant also sought to impugn the
complainant’s credibility by relying on the fact that she had
no bruises when
subsequently examined by a doctor, Dr Ribero, and
that the latter, when called to testify and given a description as to
how the
rape had allegedly occurred, had ventured to suggest that
such an assault was likely to have caused bruising. However, despite
the fact that the appellant is a heavy man, without knowing the
precise movements of his body in relation to that of the complainant
and where and how he had pressed down onto her, it would be
speculation to find that bruises would inevitably have been caused.
Certainly, in my view, the fact that there was no bruising does not
mean that the complainant was not raped, and I did not understand
the
doctor to contend to the contrary.
[12] It was further argued on behalf of the appellant
that he had not departed from his version while being cross-examined
and that
there was therefore no reason to reject his version of the
events as not reasonably possibly true. While the fact that an
accused
is consistent in his or her version is a factor to be taken
into account, it does not in itself mean that an acquittal should
follow.
A court is required to have regard to all the evidence and to
consider whether, in the light thereof and the inherent probabilities
of the case, the version of the accused could reasonably possibly be
true.
2
And in cases such as this, where no reason readily presents itself,
or was even suggested to the complainant, as to why she would
falsely
cry rape, it seems wholly improbable that she would do so and expose
herself to the humiliation flowing from reporting
the matter to the
police and having to undergo the resultant scrutiny of total
strangers.
[13] I do not think it is necessary to analyse the
evidence on record any further. While there may have indeed been
certain unusual
aspects of the complainant’s evidence ─
such as her initial unwillingness to inform her husband what had
happened (something
which may be explained by the nature of their
marital relationship or a state of emotional confusion after having
been raped by
one of his friends) ─ there is no reason to doubt
the pith of her story. The trial court had the advantage of seeing
her
testify and concluded that she was a reliable witness. In the
light of that finding, the inherent probabilities and the other
factors
that I have mentioned, there can in my view be no doubt that
the appellant was guilty as charged. His appeal against his
conviction
was correctly dismissed by the high court.
[14] The appeal is dismissed.
L E Leach
Judge of Appeal
APPEARANCES:
For Appellant: H L Alberts (Attorney)
Instructed by:
Pretoria Justice Centre, Pretoria
Bloemfontein Justice Centre, Bloemfontein
For Respondent: P W Coetzer
Instructed by:
The Director of Public Prosecutions,
Pretoria
The Director of Public Prosecutions,
Bloemfontein
1
See:
Fletcher v S
[2010] 2 ALL SA 205
(SCA) para 13 and
S
v R
1965 (2) SA 463
(W) at 465D-E.
2
See eg
S v Chabalala
2003 (1) SACR 134
(SCA) para 15 and
Fletcher v S
[2010] 2 All SA 205
(SCA) paras 9-11.