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[2012] ZASCA 14
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S v Matome (565/2011) [2012] ZASCA 14 (16 March 2012)
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Not Reportable
Case No: 565/2011
In the matter between
VINCENT MATOME
….........................................................................
APPELLANT
and
THE STATE
…...................................................................................
RESPONDENT
Neutral citation:
S v Matome
(565/11)
[2012] ZASCA 14
(16 March 2012)
Coram: FARLAM, VAN HEERDEN, CACHALIA, SNYDERS and
MAJIEDT JJA
Heard: 17 FEBRUARY 2012
Delivered: 16 MARCH 2012
Summary: Criminal law – conviction - rape of a
minor – complainant’s testimony as a single witness
regarding the
alleged rape not satisfactory in all material respects
– other evidence wrongly disregarded by trial court –
accused’s
version reasonably possibly true.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
Gauteng North High Court Circuit
Local Division for the Northern Circuit District, Polokwane (Legodi J
sitting as court of first
instance):
The appeal against conviction is upheld. The appellant’s
conviction and sentence are set aside.
______________________________________________________________
JUDGMENT
______________________________________________________________
MAJIEDT JA (FARLAM, VAN HEERDEN, CACHALIA and SNYDERS
JJA concurring):
[1] On 18 August 2006, the appellant, Mr Vincent Matome,
was convicted in the regional court on one count of rape, read with
the
provisions of
section 51(1)
and (2) of the
Criminal Law Amendment
Act, 105 of 1997
. After the conviction was confirmed in terms of
s
52(1)(
b
) of the said
Act
1
by the Gauteng North High Court, Circuit Local Division
for the Northern Circuit District (Legodi J), he was sentenced to
life imprisonment
. The appellant appeals against his conviction and
sentence with the leave of this Court.
[2] The evidence led at the trial was briefly as
follows. The complainant, who was 14 years of age at the time of the
alleged rape,
is the appellant’s stepdaughter. She alleged that
the appellant had raped her on three occasions while her mother had
been
away from home due to work commitments. The appellant’s
modus operandi
on each occasion was to call the
complainant into the kitchen late at night so that she could dish up
food for him. The complainant
and her two siblings slept in a room
outside the main house, of which the kitchen was a part. After she
had dished up the food,
the appellant would force her into her
mother’s bedroom, beat and throttle her, undress her and then
rape her. She reported
these incidents to her mother, but when the
latter confronted the appellant, he would beat her mother as well and
threaten to kill
both of them if they were to report the matter to
the police. After the first such incident, her mother took her to a
clinic where
she was given certain tablets.
[3] The complainant’s mother passed away on 30
June 2005 after the third alleged rape. A few weeks later, on 19 July
2005,
the complainant reported the rape to her aunt. The following
day a charge was laid with the police and the complainant underwent
a
medical examination. Her aunt, Ms Aisida Mahotla, confirmed this
testimony as it related to her. She testified that the complainant
had come to live with her on 19 July 2005. The doctor testified that
her examination of the complainant revealed that sexual penetration
might have occurred, since the hymen was not intact. The doctor
alluded to other possible causes of the rupture of the hymen. The
complainant had informed her that she had been a virgin before the
incidents and that she was using contraceptives. The doctor
did not
question the complainant as to the reason for her use of
contraceptives.
[4] The appellant denied raping the complainant. He
stated that her allegations were a fabrication instigated by the
complainant’s
aunt. He testified that the complainant’s
aunt harboured a grudge against him due to his refusal of her request
to stay at
his house for a short while after his wife’s death
to look after the children, as well as an unresolved dispute over
certain
assets.
[5] The trial court convicted the appellant on the sole
evidence of the complainant. It completely disregarded the evidence
of the
complainant’s aunt and that of the doctor. The
appellant’s evidence was not only rejected as false beyond
reasonable
doubt, but the regional magistrate also added the
startling observation that the appellant’s evidence was
‘ridiculous’.
[6] For the reasons I will presently enumerate the
complainant’s evidence fell short of the legally required
standard. Corroboration
thereof as contemplated in
S
v Gentle,
2
ie on the issues in dispute, was consequently required.
Neither her aunt’s evidence nor the medical report (the
so-called
J88), amplified by the doctor’s testimony, had a
bearing on the central issue, namely, whether the appellant had had
sexual
intercourse with the complainant without her consent. But, as
will presently appear, the regional magistrate erred in completely
disregarding this evidence which would have redounded to the
appellant’s benefit. It would also have provided a fuller
picture
of the events, all of which had to be considered by the trial
court.
[7] There were many shortcomings in the State’s
case, particularly in the complainant’s evidence, some of which
were
material. Counsel for the State was eventually driven to concede
as much in the course of her argument. Given this concession I
mention only some of the more important shortcomings.
[8] There was no explanation advanced by either the
complainant or her aunt regarding the reason for the delay in the
reporting
of the alleged rape to her aunt.
3
On their version, the rape was reported almost three
weeks after the complainant’s mother’s death. This
appears, on
the face of it, an unreasonably long delay which calls
for an explanation, particularly when regard is had to the fact that
the
complainant was in contact with her aunt during that period.
Moreover, the medical report reflects the date of the examination as
29 July 2005. This is in conflict with the aunt’s evidence that
the complainant had been examined the day after she had reported
the
rape, ie 20 July 2005. It can be accepted that the date on the
medical report is in all likelihood correct, which would mean
that,
on the aunt’s version, the rape had only been reported to her
on the preceding day, ie 28 July 2005. This in turn would
entail an
even longer delay in the reporting of the rape. A related question is
what, if anything, had prompted the complainant
to pluck up the
courage at that particular time (and not immediately after her
mother’s death) to make the report to her
aunt. This aspect did
not receive any consideration by the regional magistrate in his
judgment. Evidence of a prompt complaint
does not provide
corroboration for the complainant’s testimony regarding the
alleged rape, but may lend support to her credibility.
4
The converse is also true.
[9] In her evidence-in-chief the complainant detailed
the incidents of rape, but recounted only two such instances. She
testified
that her mother fell ill after the second alleged rape
occurred and subsequently passed away. Later the complainant added a
third
incident and clarified it with regard to dates. While not
conclusive, this initial contradiction is troubling. The regional
magistrate
appears to have simply accepted this as an oversight.
[10] As stated, the doctor did not explore with the
complainant the reason why she was using contraceptives. It was
submitted, during
argument, that these may well have been the tablets
given to the complainant when she had visited the clinic after the
first of
the alleged rape incidents. But it is at least equally
probable that the complainant may have been using contraceptives
because
she had been sexually active all along. In this context the
absence of evidence by the clinic staff who had treated the
complainant
is of considerable importance. In his response to queries
raised earlier by Mbha J (before whom the case initially came and who
postponed it for later hearing) regarding the conviction, the
regional magistrate conceded that that evidence had been necessary.
Such evidence would also have shed light on, for example, any
injuries that the complainant suffered and the extent thereof and,
importantly, whether there had been any signs of forced penetration.
The absence of this evidence creates a significant gap in
the State’s
case.
[11] Another glaring shortcoming in the State’s
case is the lack of evidence from one or both of the complainant’s
siblings.
On her version her sister had also been molested by the
appellant and her brother had been assaulted by the appellant,
prompting
him to obtain a domestic violence interdict against the
appellant. Their evidence would at the very least have established
the
veracity of the complainant’s allegation that she was
called from the outside room where they slept, by the appellant late
at night. The complainant testified that her siblings had heard the
appellant knocking on the door during these occasions. It appears
from the regional magistrate’s response to the queries raised
by Mbha J that the complainant’s sister was in court
during one
of the hearings and she was warned, at the State’s request,
that her presence would be required again. One can
therefore safely
assume that this witness had been available to testify.
[12] The abovementioned shortcomings in the State’s
case were exacerbated by the regional magistrate’s complete
disregard
of the evidence of the complainant’s aunt and the
doctor. As stated, this evidence provided the context in respect of
certain
important aspects of the complainant’s version, namely,
the delay in the report of the rape by the complainant, the alleged
motive for false incrimination as advanced by the appellant and, in
respect of the doctor, the complainant’s use of contraceptives.
It is trite that a court must have regard to all, and not just some,
of the evidence before it.
5
This case provides a classic example of the pitfalls
associated with the regional magistrate’s flawed approach.
Viewed on
its own and without any regard to this other evidence, the
complainant’s evidence appears, on the face of it, credible.
But
when the other evidence is also considered, doubt emerges. This
reasonable doubt should have weighed in favour of the appellant.
It
is to his version which I turn next.
[13] The appellant, as stated, denied the rape and
averred that the complainant had been instigated by her aunt falsely
to implicate
him in order to settle old scores. The aunt laid claim
to his late wife’s house and furniture, a claim which he
resisted.
He rejected her request to live at the house after the
appellant’s wife had passed away. The aunt confirmed that there
was
an unresolved dispute over certain movables, but denied that she
had laid claim to her late sister’s house. It was therefore
common cause that some degree of animosity existed between the aunt
and the appellant, although the aunt initially denied that
there was
any animosity. When one considers with this the seemingly
unreasonable delay in the complainant reporting the matter
to her
aunt after the death of the complainant’s mother, it becomes
incomprehensible how the regional magistrate was able
to dismiss the
appellant’s version as being ‘ridiculous’. I am of
the view that, when all the evidence is considered,
the appellant’s
version is reasonably possibly true. The considerable doubt in the
State’s case must redound to his
benefit. In summary, on a
conspectus of all the evidence the complainant’s testimony was
not satisfactory in all material
respects and the appellant’s
version was reasonably possibly true. In the premises, the conviction
cannot stand.
[14] The appeal is upheld. The appellant’s
conviction and sentence are set aside.
________________________
S A MAJIEDT
JUDGE OF APPEAL
APPEARANCES:
Counsel for appellants : W A KARAM
Instructed by : Pretoria Justice Centre
Bloemfontein Justice Centre
Counsel for respondents : S A NGOBENI
Instructed by : Director of Public Prosecutions,
Pretoria
Director of Public Prosecutions,
Bloemfontein
1
Prior
to the repeal of the said section by Act 38 of 2007.
2
S
v Gentle
2005 (1) SACR 420
(SCA) para
18.
3
Contrary
to the submissions contained in the heads of argument of counsel for
the State,
s
59
of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007
does not apply since the Act was not in
operation at the time of the trial. Section 59 provides that a court
may not, in criminal
proceedings involving the alleged commission of
a sexual offence, draw any inference only from the length of any
delay between
the alleged commission of a sexual offence and the
reporting thereof.
4
S
v Hammond
2004 (2) SACR 303
(SCA)
paras 15 and 16
5
S
v Chabalala
2003 (1) SACR 134
(SCA)
para 15.