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[2013] ZASCA 199
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Khorommbi and Another v S (572/13) [2013] ZASCA 199 (2 December 2013)
7
SAFLII
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Certain
personal/private details of parties or witnesses have been
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NOT
REPORTABLE
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Case No: 572/13
DATE: 02 DECEMBER
2013
In the matter between:
KHOROMMBI
NTSHENGEDZENI ALFRED
.................................
First
Appellant
KHOROMMBI
THIFHELIMBILU KENNETH
............................
Second
Appellant
And
THE
STATE
........................................................................................
Respondent
Neutral
citation:
Khorommbi & another v The State
(527/2013)
[2013] ZASCA 199
(2 December 2013)
Coram:
Navsa ADP,
Malan and Tshiqi JJA
Heard: 27 November
2013
Delivered: 2
December 2013
Summary: appeal
against convictions for rape – version of the complainants
inherently improbable – report made to the
mother inadmissible
– good cause shown to set aside the conviction.
ORDER
On appeal from:
Limpopo High Court, Thohoyandou (Hetisani J
sitting as a court of first instance):
The appeal is upheld.
The convictions and
sentences imposed by the trial court are set aside.
JUDGMENT
Tshiqi JA (Navsa ADP
and Malan JA concurring):
1]
The appellants, Alfred and Kenneth Khorommbi, were each convicted in
the Limpopo High Court, Thohoyandou, on two counts of rape
and
sentenced to effective terms of 23 and 21 years’ imprisonment
respectively. They now appeal to this court against both
the
convictions and sentences, leave having been granted by that court,
(per Booi AJ), in respect of the first appellant and subsequently
in
respect of the second appellant (per Victor J).
2]
The appellants were implicated through the evidence of the two
complainants who testified that they met the two appellants and
an
unidentified male whilst walking together in M Village on their way
to I Village, Venda. The two appellants were walking in
the opposite
direction towards M Village. The first appellant grabbed the second
complainant by her belt and the second appellant,
the first
complainant by her hands. They then dragged them and forced them to
head back in the direction of M Village. The second
appellant was
known to the first complainant. None of the appellants was armed but
one of them threatened the second complainant
with assault. They
arrived at a shebeen where they sat with the appellants who forced
them to drink beer. Whilst there, one V,
the wife of the second
appellant arrived, confronted and slapped the first complainant after
accusing her of having a romantic
relationship with the second
appellant. Thereafter they left the shebeen in the company of a third
male, one Z, and spent the night
at his house. There, according to
the complainants, the two appellants threw the key away and took
turns to rape them until the
following morning. According to the
second complainant, Z was present when the rapes took place but
according to the first complainant,
he opened the house for them and
left. In the morning the two appellants asked them to leave.
3]
The complainants went to the second complainant’s aunt at I
Village. She gave them fresh clothing, as their clothing was
dirty,
and they remained there until the second complainant’s mother
Mrs G M arrived. According to the second complainant,
when Mrs M
arrived she called a policeman and asked him to beat the second
complainant so that she would tell the truth. After
the policeman had
beaten her she said that they had been raped by the appellants. They
were then taken to hospital and to the police
station to lay a
charge.
4]
Mrs M testified that she did not know the whereabouts of the second
complainant on the day of the rape because the latter had
neither
sought her permission nor informed her when she had left a week
earlier. She was informed that the second complainant was
in I
Village. When Ms M got there she found the first and the second
complainants and they told her about the rapes. She then
took them to
the police station to lay a charge. Mrs M did not mention in her
evidence that she had arranged for the second appellant
to be beaten
so that she could tell her about the rapes. She also testified that
after the appellants were arrested, they approached
her and according
to her: ‘… told me that they are from Block L, a police
van had come to them, so they are bringing
money so that I could go
and drop the charges’. She went with them to Mr T, her
neighbour who said that they needed to be
locked up. Mr T, however,
contradicted her evidence in that he testified that the appellants
approached him directly and did not
offer him any money. In any
event, the evidence of Mrs M and Mr T does not suggest an
unequivocal admission by the appellants
that they had indeed
committed the rapes.
5]
In order to prove the ages of the complainants at the date of the
alleged offences the State presented the birth certificate
of the
second complainant, indicating that she was born on 25 October 1990
and a clinic card in respect of the first complainant,
reflecting her
date of birth as 12 March 1990. Both complainants were approximately
13 years old at the time of the alleged
offences, but were both
approximately 18 years old at the time of the trial. Medical reports
(J88 form) completed by medical practitioners
on 13 October 2003, two
days after the date of the alleged rape, were admitted into evidence
by consent. In both instances no fresh
injuries were noted. However
it was also noted that ‘absence of fresh injuries does not
exclude penetration.’
6]
Both appellants testified and denied having had sexual intercourse
with the complainants. However, they admitted that they had
been in
the company of the complainants at the shebeen but that the
complainants were there voluntarily and that when they left
the
shebeen to go to Z’s home where they spent the night, they did
so voluntarily. The appellants denied that they had sexual
intercourse with the complaints. Their version in that regard was
corroborated by Z who testified that he was present the whole
night
and no sexual intercourse took place.
7]
The State bears the onus to prove the guilt of an accused person
beyond any reasonable doubt. The only evidence implicating the
appellants was that of the complainants. Their evidence was fraught
with so many improbabilities that it should have been rejected
by the
trial court as unreliable. When the complainants arrived at the
shebeen they found other patrons who were busy drinking.
There is no
suggestion that those patrons had anything to do with the fact that
they were detained there by the appellants against
their will or even
knew what was taking place. If indeed they were dragged there and
detained against their will it is improbable
that they would not have
seized that opportunity to flee, seek help or alert someone that they
were there against their will.
Instead, they remained in the shebeen
and continued to consume alcohol with the rest of the patrons. A
perfect opportunity to flee
presented itself when V, the wife to the
second appellant arrived accused the first complainant of having a
relationship with the
second appellant and assaulted her. Neither of
the complainants seized that opportunity to either tell V that there
was no relationship
between the first complainant and the second
appellant and that they were in fact detained there against their
will. On the contrary,
immediately after that altercation, they
simply left with the appellants with no apparent resistance. That
kind of behaviour is
inconsistent with their version that they were
in the company of the appellants against their will.
8]
Apart from the improbabilities in the evidence of the complainants,
the evidence of the report made to the second complainants’
mother is also problematic in that, the alleged rape was disclosed
only after she had been beaten up by the policeman. The evidence
of
the complainant’s report should have been rejected by the trial
court. See
S v
T
1963 (1) SA 484
(A) at 486H.
9]
The only objective evidence, the J88 form, also does not take the
State’s case any further because it states that there
were no
fresh tears observed in the genital area and does not state at all
that there was evidence of penetration in respect of
either
complainant.
10]
The version of the appellants on the other hand was corroborated by
Z. According to Z, who even on the version of the first
complainant
was present in his house the whole night, no sexual intercourse took
place. There is no basis to reject his evidence
in that regard.
11]
For all those reasons it follows that a case has been made to set
aside the convictions by the trial court. I therefore make
the
following order:
a)
The appeal is upheld.
b)
The convictions and sentences imposed by the trial court are set
aside.
ZLL TSHIQI
JUDGE OF APPEAL
APPEARANCES:
For Appellant: M
Madima
Instructed by:
Justice Centre,
Thohoyandou
Justice Centre,
Bloemfontein
For Respondent: RJ
Makhera
Instructed by:
The Director of Public
Prosecutions, Thohoyandou
The Director of Public
Prosecutions, Bloemfontein