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[2012] ZASCA 43
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Pillay v S (570/11) [2012] ZASCA 43 (29 March 2012)
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 570/11
Not reportable
In the
matter between:
DANNY PILLAY
…..............................................................................................
APPELLANT
and
THE
STATE
….................................................................................................
RESPONDENT
Neutral citation:
Pillay v The State
(570/11)
[2012]
ZASCA 43
(29 March 2012)
Coram:
Cloete, Mhlantla, Bosielo, and Tshiqi JJA
et
Petse AJA
Heard: 23 February 2012
Delivered: 29 March 2012
Summary: Appeal – conviction against charges of rape and
indecent assault on
two complainants – reliability of the evidence of state
witnesses – whether the
court a quo applied the necessary caution.
ORDER
On appeal from
: North Gauteng High Court, Pretoria (Phatudi J
and Tokota AJ sitting as court of appeal):
The appeal is dismissed.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
BOSIELO JA (CLOETE, MHLANTLA, TSHIQI JJA AND PETSE AJA
CONCURRING):
[1] The appellant was convicted in the regional court, Pretoria on
one count of rape and one of indecent assault. The two counts
were
treated as one for purposes of sentence and the appellant was
sentenced in terms of s 276(1)
(h)
of the Criminal Procedure
Act 51 of 1977 (CPA) to three years’ correctional supervision
subject to certain conditions and
a further imprisonment for five
years wholly suspended for five years on certain conditions.
[2] Aggrieved by the sentence imposed, the respondent appealed in
terms of s 310A of the CPA. The appellant cross-appealed against
his
conviction. The respondent’s appeal against the sentence
succeeded whilst the appellant’s appeal against his conviction
failed. The sentence by the trial court was set aside and replaced
with a sentence of imprisonment for five years in respect of
the rape
charge and in respect of the indecent assault charge, three years’
imprisonment wholly suspended for three years
on condition that the
appellant was not convicted of indecent assault or rape committed
during the period of suspension. The appellant
is appealing against
his conviction with the leave of the court below.
[3] At the heart of this appeal is the reliability and credibility of
the two cardinal state witnesses, who incidentally are the
complainants.
[4] The salient facts leading to the conviction can succinctly be
stated as follows: The two complainants are cousins to the
appellant’s
wife. They are P who was 18 years old and S who was
19 years old at the time. The alleged incident occurred on 7 November
2007,
when they were both at the appellant’s home, to celebrate
Diwali, a festival celebrated by adherents of the Hindu faith. It
appears from the evidence of the appellant, his wife, K and their
son, V that the complainants drank some intoxicating liquor during
that evening. According to the appellant and his wife, this was
Klipdrift brandy mixed with coke. The complainants admit that they
drank some beverage offered to them by the appellant at his home.
However, they deny that they knew that it contained alcohol.
They
were, according to them, under the impression that they drank coke
and not intoxicating liquor.
[5] Soon after they had drunk the drinks offered by the appellant, P
started feeling so dizzy that she could not stand on her own.
P then
left the group and went to rest in the bedroom of the appellant’s
son. As she could not walk properly, the appellant’s
son
assisted her. These facts are common cause. What follows is the
disputed version of P. The appellant followed her into the
bedroom.
(There was some confusion in P’s evidence regarding whether the
appellant’s wife had entered the bedroom at
all at that stage.
The statement made by P to the police suggested that she had. But
that was not her evidence. Ultimately, it
appeared that only the
appellant entered the bedroom at that stage, but that both the
appellant and his wife did so at a later
stage when S was indecently
assaulted.) After P lay down on the bed, the appellant started to
undress her. At this stage she was
drowsy and was passing out
intermittently (presumably due to the alcohol that she had consumed).
She then became unconscious and
cannot remember what happened. When
she regained her consciousness, she was in the main bedroom and she
was naked. The appellant
and his wife were also in the room, both
naked. The appellant’s wife had a vibrator in her hand. Whilst
P lay on the bed,
the appellant spread her legs apart, fondled her,
sucked her vagina and inserted his penis in her vagina. P testified
that at this
stage the appellant did not have a condom on. P could
not remember if the appellant ever put a condom on. All she
remembered was
that the wife told him to put one on but if he
eventually put it on or not she could not be certain. As the sexual
intercourse
was painful she cried. She then started to vomit. The
appellant then stopped and went to fetch water for her. This was on
the instructions
of appellant’s wife. The appellant and his
wife then carried her to the shower where they turned on the cold
water tap. Later
on, the appellant’s wife dressed her in her
own clothes.
[6] They then took her to their son’s bedroom where she found
her sister S sleeping. According to P she was still drowsy
at this
stage. The appellant and his wife entered the bedroom where S was
sleeping with their younger daughter. Both were still
naked and the
appellant’s wife still had the vibrator. They started to fondle
S. The appellant apparently left the room.
The appellant’s wife
told S that the appellant was waiting to have sex with her at the
swimming pool. However, S resisted,
claiming that she was tired and
pretended to be asleep. The appellant then re-entered the room,
apparently to check on the progress.
The appellant’s wife then
told him to wait outside as S would be coming. As S resisted all
attempts to get her out, the appellant’s
wife finally gave up
and left the room.
[7] In the morning, P reported to S that she had been raped the
previous night. P testified that she was a virgin at the time and
further that she did not give the appellant consent to penetrate her
carnally. She was 18 years old at the time.
[8] S confirmed that, together with P, they enjoyed some drinks which
were offered to them by the appellant whilst they were at
his house.
She denied that she drank alcohol. According to S, she and P drank
coke. However after drinking the ‘coke’
offered to her by
the appellant, she felt dizzy and nearly fell over. Whilst on the
veranda, P complained that she was not feeling
well and wanted to
sleep. She left for the house. S remained on the veranda with the
appellant’s children after the appellant
and his wife had
followed P into the house. She then started to pass out
intermittently. Later she asked the appellant’s
son to help her
to the house where she ended up in the same bedroom where P was
sleeping. Significantly, she realised that P’s
hair was wet.
The appellant’s wife then came and pulled her to their bedroom
where she was shown several pornographic movies
on a laptop. She then
left them and returned to the room where she had been sleeping. The
appellant’s wife later returned
to her room where she fondled
her and stroked her with a vibrator on her chest after she had opened
her pyjama top, whilst at the
same time kissing and touching her
body. The appellant then touched her twice on her vagina outside the
pyjamas. The appellant’s
wife tried to get her to go to the
appellant at the swimming pool. S successfully resisted all these
attempts, claiming that she
was tired. The appellant and his wife
then left her room.
[9] After the appellant and his wife had left the room, P started to
cry and complained of pains in her private parts. When they
woke up
the next morning, S then discovered that P was dressed in different
clothes. She had a brown top on and a pair of black
trousers with no
bra. Inside the shower they saw P’s pyjamas under the
appellant’s clothes. P then told S that she
could remember what
had happened and reported that she had been raped by the appellant.
During the morning both the appellant and
his wife pretended as if
nothing had happened. They appeared to P and S still to be drunk.
[10] After they had had their breakfast, the appellant’s wife
took them home. Upon arrival at home, they did not report this
incident to their parents immediately as they found them on their way
to some shopping mall. Instead, P went to her friend’s
house
where she reported this to her friend’s father who advised them
to report the matter to the police. They then went
to the police
station to report the incident. P was later examined by a district
surgeon, Dr Martinez.
[11] Dr Martinez examined P on 8 November 2007. He observed the
following: a fresh tear on the fossa navicularis; a swelling of
the
hymen and a fresh tear of the hymen. His conclusion was that the
genital injuries found on P were consistent with penetration
of a
large object beyond the labia majora, for example an erect penis. He
also concluded that there was forceful penetration which
in his
estimation had occurred within the previous 72 hours.
[12] The appellant testified in his defence. He conceded that the two
complainants were at his home on 7 November 2007 until they
went home
the next day. He testified that his house was securely locked and
that nobody entered or left his home that night. He
was the only
adult male person in the house that night. He testified that both
complainants drank Klipdrift brandy mixed with coke
at his home.
According to the appellant the two complainants became ‘paralytically
drunk’ whilst drinking the Klipdrift
and coke. They kept on
falling down. According to the appellant the two complainants drank
the Klipdrift and coke knowing what
they were drinking. He denied
having had any sexual intercourse with, or indecently assaulting,
either of them. The appellant contended
that the charges were
fabricated. The reason he advanced is that he had had some dispute
with their parents in the past. However,
it was later clarified that
as at the time of the incident, the dispute had been resolved.
[13] Counsel for the appellant launched a strong attack against the
acceptance of the complainants’ evidence. He submitted
that on
their own version, they were so inebriated that they even suffered
several bouts of loss of consciousness. The submission
is that the
complainants were so drunk that they were unable properly to recall
the events of the day. It was contended further
that on their own
version, they were so drunk that they experienced intermittent bouts
of loss of consciousness as a result of
the alcohol which they drank.
Based on their state of intoxication, it was contended that their
evidence is like that of a drunkard
and should have been approached
with caution and rejected as being unreliable.
[14] Undoubtedly the evidence in this matter called for a cautionary
approach. This is because both complainants were seriously
under the
influence of intoxicating liquor.
[15] Counsel also criticised the complainants for their behaviour
which on the face of it appears to be improbable. First, the
complainants failed to telephone their parents, despite having a
cellular phone, to alert them to their predicament. Second, instead
of fleeing home in the morning, they elected to make and enjoy
breakfast at the appellant’s home. The argument is that they
did not behave like rape victims. In evidence, the complainants had
testified that the appellant and his wife were still drunk
in the
morning and behaving in a rather peculiar manner. Concerning their
failure to phone their parents, S explained that she
did not have a
charger and the batteries to her cellular phone were low. In any
event the appellant’s wife offered to take
them home. Given the
traumatic experiences they lived through the previous night, I do not
think that this behaviour can seriously
detract from their
credibility and reliability. At the available opportunity, P reported
to S that she had been raped by the appellant.
On the evidence this
report was spontaneous.
[16] In evaluating the evidence, the court below acknowledged that
the two complainants were under the influence of intoxicating
liquor
when the incidents described herein allegedly occurred. Importantly,
the court below accepted that due to the effect of
alcohol, their
evidence was not reliable. In exercising caution, the court a quo
found the doctor’s evidence regarding recent
penetration of P
to be irrefutable. The only vexed question which remained was who the
perpetrator was. P testified that the appellant
penetrated her
carnally. Importantly, the evidence is that, except for their 13 year
old son, there was no other male person present
at the appellant’s
house on that night. Assuming that the son may have been sexually
active, the possibility that he may
have been the perpetrator can
safely be excluded for there was no reason for P to blame his father
and implicate his mother if
he had raped her. The appellant admitted
that he was sexually active. It is common cause that the house was
fitted with adequate
security to exclude any possible intruders.
There is therefore no suggestion that another man could have gained
entry into the
house stealthily overnight and raped the complainant.
The possibility that P could have left the house voluntarily and had
sexual
intercourse with an unknown person can also safely be excluded
─ she was in no condition to have done so. It was suggested
by
the appellant’s counsel that it may have been the vibrator that
caused the injuries to P’s genitals found by Dr
Martinez.
Theoretically it could have been, but such a hypothesis is
inconsistent with P’s evidence that after the appellant
penetrated her, his wife told him to put on a condom, whereupon he
withdrew from her and thereafter re-entered her. There would
have
been no point in the appellant’s wife telling him to put on a
condom if he was using a vibrator to penetrate P.
[17] But whatever the shortcomings of the complainants’
version, the medical evidence of fresh tears on P’s hymen and
clear signs of recent penetration beyond the labia majora by a large
object like an erect penis, makes the conclusion inescapable
that P
was sexually assaulted that night. The only possibility other than
rape by the appellant is that P had sexual intercourse
a day or so
prior to the visit and she and her sister decided for some reason to
blame the appellant for her loss of virginity.That
is too far fetched
to contemplate. Why would the sisters concoct so complex a story?
Given the fact she was at all material times
in the appellant’s
house, the inference that it is the appellant who had sexual
intercourse with P on that night is, to my
mind, the only reasonable
inference to be drawn from the proven facts.
[18] It is a trite principle of our law that the state bears the
burden to prove the guilt of an accused beyond reasonable doubt
and
not beyond any shadow of doubt. As Malan JA aptly held in
R v
Mlambo
1957 (4) SA 727
(A) at 738A-B:
‘
In my
opinion, there is no obligation upon the Crown to close every avenue
of escape which may be said to be open to an accused.
It is
sufficient for the Crown to produce evidence by means of which such a
high degree of probability is raised that the ordinary
reasonable
man, after mature consideration, comes to the conclusion that there
exists no reasonable doubt that an accused has committed
the crime
charged. He must, in other words, be morally certain of the guilt of
the accused. An accused’s claim to the benefit
of a doubt when
it may be said to exist must not be derived from speculation but must
rest upon a reasonable and solid foundation
created either by
positive evidence or gathered from reasonable inferences which are
not in conflict with, or outweighed by, the
proved facts of the
case.’
See also
S
v Ntsele
1998 (2) SACR 178
(SCA) at
182b-e.
[19] Based on the conspectus of the evidence, I cannot find any fault
with the reasoning and conclusion of the court below. In
particular,
I find that the cumulative effect of all the evidence points
inexorably to the appellant as the person who raped P
on the night in
question. Because the version of the appellant and his wife about the
events of that night fall to be rejected
so far as the rape of P is
concerned, and because there is corroboration by P of S’s
evidence that S was indecently assaulted,
I consider that the
appellant was correctly convicted on this latter count as well.
Consequently, I am satisfied that the appellant’s
guilt was
proved beyond reasonable doubt on both counts.
[20] In the result, the appeal is dismissed.
____________
L O BOSIELO
JUDGE OF APPEAL
APPEARANCES:
For Appellant: J J Strydom SC
Instructed by:
O J Botha Attorneys, Montana Park
Honey Attorneys, Bloemfontein
For Respondent: M J Makgwatha
Instructed by:
Director of Public Prosecutions, Pretoria
Director of Public Prosecutions, Bloemfontein