About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2024
>>
[2024] ZAFSHC 47
|
|
Maduna v S (A100/2023) [2024] ZAFSHC 47 (14 February 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
no: A100/2023
In
the matter between:
GIFT
MADUNA
Appellant
and
THE
STATE
Respondent
CORAM:
MHLAMBI J
et
LEKHOABA AJ
HEARD
ON:
10 NOVEMBER 2023
DELIVERED
ON:
14 February 2024
JUDGMENT
BY:
LEKHOABA AJ
[1]
The appellant was charged in the Regional Court, Frankford on charges
of rape. The rape charges were brought
in terms of section 3 of Act
32 of 2007, read with the provisions of section 51(1) of Act 105 of
1997. I hereby need to state that
initially the accused was charged
in terms of section 51(2) of Act 105 of 1997 and after the State
Application in terms of Section
86(1) of the Criminal Procedure Act
51 0f 1977 which the court
a quo
decided to grant.
This
aspect of this case shall be dealt with later in this judgement.
[2]
The appellant has an automatic right to appeal in terms of
section
309(1)(a)
of the
Criminal Procedure Act 51 of 1977
. This appeal is
against the conviction and sentence.
This
court is grateful to counsels in this matter for their oral arguments
and written heads of arguments.
[3]
Grounds for Appeal
a) The Court a quo
erred by finding that the complainant was a satisfactory witness and
satisfied the requirements of the
cautionary rules.
b) That the
contradictions between the witnesses were immaterial.
c) That the
state witnesses were credible in particular the complainant.
d) That the
version of the Appellant was not reasonably possibly true.
e) That the
evidence of the Appellant was not reasonably possibly true.
f) That the
evidence of the Appellant was not plausible.
g) The court erred
by granting the application for amendment of the charge sheet.
[4]
The background on this matter is briefly as follows: The
Appellant was a 20-year-old man and the Complainant was
16 years old
girl at the time of the rape. On 11 January 2020, the Appellant
unlawfully and intentionally committed an act
of sexual penetration
by inserting his male genital organ into the female genital organ.
[5]
Common cause facts
1.
Both the accused and the complainant are known to each other
2.
The place of the alleged rape is not in dispute.
3.
the existence of sexual intercourse between the parties is also not
in dispute.
4.
The complaint went to the home of the Appellant.
5.
The alleged offence took place on 11 January 2020.
[6]
The offence was committed at the Appellant's grandmother’s
house.
[7]
The Appellant made a plea explanation that he had sexual intercourse
with the complainant on 11 January 2020.
[8]
The complainant testified that she used to collect a lunch box from
Mrs. Madibo in the house that the appellant
stayed in. She stated
that if the lady was not available, she would get a lunch box from
her son. She further testified that there
were two structures in the
yard. On the day in question, as she walked past the appellant's
grandmother’s house, the appellant
texted her on WhatsApp,
informing her to come and collect a lunch box. The complainant denied
ever communicating with the accused
on Facebook. Her evidence was
that their conversation started on WhatsApp when she mistakenly
obtained the appellant's number from
one Kgontse.
[9]
The appellant testified that the complainant sent him a WhatsApp
message and asked him where he was. The appellant
also testified that
the complainant asked for his number from Facebook inbox. The
appellant further testified that a lady was staying
in the backroom.
The appellant denied any knowledge of the lunch box and testified
that they never spoke about it with the complainant.
[10]
It is trite that the onus rests on the state to prove beyond a
reasonable doubt that the accused committed the crime
accused of.
Equally trite is the principle that an accused should be acquitted if
his or her exculpatory testimony can be reasonably
possibly true.
[11]
It has long been our law that the trier of fact should not consider
the evidence implicating the accused and evidence
exculpating the
accused in a compartmentalised manner. The court must evaluate the
evidence before it in its totality and judge
the probabilities in the
light of all the evidence; see
R v Difford
1937 AD 373
, S v Van
der Meyden 1999(1) SACR 447 (W) and S v Toubie 2004(1) SACR 530 (W)
[12]
The proper approach of a court was laid down by
Malan JA in R v
Mlambo 1957(4) SA 727 (A), especially at 738 A - C:
“
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.”
This approach was
approved by Olivier JA in
Phallo and Others
1999 (2) SACR 558
(SCA) at 562g to 563e
[13]
In the matter of
Stellenbosch Farmers’ Winery Group Ltd &
Another v Martell ET Cie and Others
2003 (1) SA 11
(SCA) Nienaber JA
14I-J – 15A-D (two
irreconcilable versions)
“
The technique
generally employed by courts in resolving factual disputes of this
nature may conveniently be summarized as follows:
To come to a
conclusion on the disputed issues a court must make findings on (a)
the credibility of the various factual witnesses;
(b) their
reliability; and (c) the probabilities. As to (a), the court’s
finding on the credibility of a particular witness
will depend on its
impression about the veracity of the witness. That in turn will
depend on a variety of subsidiary factors, not
necessarily in order
of importance, such as (i) the witness’ candour and demeanour
in the witness-box, (ii) his bias, latent
and blatant, (iii) internal
contradictions in his evidence, (iv) external contradictions with
what was pleaded or put on his behalf
or with established fact or
with his own extra curial statements or actions, (v) the probability
or improbability of particular
aspects of his own version, (vi) the
Caliber and cogency of his performance compared to that of other
witnesses testifying about
the same incident or events. As to (b), a
witness’ reliability will depend, apart from the factors
mentioned under (a)(ii),
(iv) and (v) above, on (i) the opportunities
he had to experience or observe the event in question and (ii) the
quality, integrity
and independence of his recall thereof. AS to (c),
this necessitates an analysis and evaluation of the probability or
improbability
of each party’s version on each of the disputed
issues. In the light of its assessment of (a), (b) and (c) the court
will
then, as a final step, determine whether the party burdened with
the onus of proof has succeeded in discharging it.”
[14]
In
S v Chabalala
2003 (1) SACR 134
(SCA) Heher AJA
@140a-b said –
“
The correct
approach is to weigh up all the elements which points towards the
guilt of the accused against all those which are indicative
of his
innocence, taking proper account of inherent strengths and
weaknesses, probabilities and improbabilities on both sides and,
having done so, to decide whether the balance weighs so heavily in
favour of the State as to exclude any reasonable doubt to the
accused’s guilt. The result may prove that one scrap of
evidence or one defect in the case for either party (such as the
failure to call a material witness concerning an identity parade) was
decisive but that can only be on an ex post facto determination
and a
trial court (and counsel) should avoid the temptation to latch on to
one (apparently) obvious aspect without assessing it
in the context
of the full picture in evidence.”
[15]
S v T
2005 (2) SCAR 318
(ECD) @ 329b-e
“
The state is
required, when it tries a person for allegedly committing an offence,
to prove the guilt of the accused beyond a reasonable
doubt. This
high standard of proof – universally required in civilized
systems of criminal justice – is a core component
of the
fundamental right that every person enjoys under the Constitution,
and under the common law prior to 1994, to a fair trial.
It is not
part of a charter for criminals and neither is it a mere
technicality. When the court finds that the guilt of an accused
has
not been proved beyond reasonable doubt, that accused is entitled to
an acquittal, even if there may be suspicions that he
or she was,
indeed, the perpetrator of the crime in question. That is an
inevitable consequence of living in a society in which
the freedom
and the dignity of the individual are properly protected and are
respected. The inverse – convictions based on
suspicion or
speculation – is the hallmark of a tyrannical system of law.”
[16]
In many rape cases, similar to this one, the victim is always a
single witness to the alleged offence. Our law is clear
that caution
must be applied when assessing the evidence of a single witness as to
has to be satisfactory in all material respect.
In the case of
Stevens
v S 2005 [1] All SA 1 (SCA):
[17]
5d-e: In terms of
s 208
of the
Criminal Procedure Act, an
accused can
be convicted of any offence on the single evidence of a competent
witness. It is, however, a well-established judicial
principle that
the evidence of a single witness should be approached with caution,
his or her merits as a witness being weighed
against factors which
militate against his or her credibility.
The correct approach to
the application of the so-called ‘cautionary rule’ was
set out by Diemont JA in
S v Sauls and Others
1981 (3) SA 172
(A) at 180E-G …
[18]
5i-j, 6a-d: …her judgment illustrates the dangers of what has
been called “
a compartmentalized approach”
to the
assessment of evidence, namely an approach which separates the
evidence before the court into compartments by examining
the ‘defence
case’ in isolation from the ‘State case’ and vice
versa. In the words of Nugent J in
S v Van der Meyden
1999 (1)
SACR 447
(W) at 449c - 450b:
“
Purely as a
matter of logic, the prosecution evidence does not need to be
rejected in order to conclude that there is a reasonable
possibility
that the accused might be innocent. But what is required in order to
reach that conclusion is at least the equivalent
possibility that the
incriminating evidence might not be true. Evidence that incriminates
the accused and evidence which exculpates
him, cannot both be true –
there is not even a possibility that both might be true – the
one is possibly true only
if there is an equivalent possibility that
the other is untrue…
The proper test is
that an accused is bound to be convicted if the evidence establishes
his guilt beyond reasonable doubt, and the
logic corollary is that he
must be acquitted if it is reasonably possible that he might be
innocent. The process of reasoning which
is appropriate to the
application of that test in any particular case will depend on the
nature of the evidence which the court
has before it. What must be
borne in mind, however, is that the conclusion which is reached
(whether to convict or acquit) must
count for all the evidence. Some
of the evidence might be found to be false; some of it might found to
be unreliable; and some
of it might be found to be only possibly
false or unreliable; but none may simply be ignored”
S v Sauls and
Others
1981 (3) SA 172
(A)
at 180E-G
[19]
There is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of a single witness…
The
trial judge will weigh his evidence, will consider its merits and
demerits and, having done so, will decide whether there are
shortcomings or defects or contradictions in his testimony if he is
satisfied that the truth has been told. The cautionary rule
referred
to by De Villiers JP in 1932 (in R v Mokoena), may be a guide to a
right decision but it does not mean “
that the appeal must
succeed if any criticism, however slender, of the witnesses’
evidence where well founded ….”
It has been said
more than once that the exercise of caution must not be allowed to
displace the exercise of common sense.
S
v Artman and Another
1968 (3) SA 339(SCA)
Holmes JA
[20]
Single witness – required that her testimony should be clear
and satisfactory in all material aspects. The exercise
of caution
must not be allowed to displace the exercise of common sense.
There is a factor that
causes some measure of concern as far as conviction is concerned. The
trial court’s evaluation of the
evidence of witnesses is
concerning. Despite numerous contradictions between the witnesses,
the court a quo found the complainant
a credible witness who was
honest in the account of events.
[21]
The court a quo stated that the contradictions between the witnesses
were immaterial and the state witnesses were credible
and reliable in
particular the complainant.
[22]
I would like to disagree with the court a quo concerning the
testimony of the complainant on the following basis:
a)
On how she got the contact details of the appellant. During
examination in chief, she said she
was under the assumption that the
number belonged to Kgontsi whereas during gross examination she
agreed with the defence that
the reason why she got the appellant
number was for the appellant to transport her from Frankfort to
Reitz.
`Further, the court a quo
in its judgement added that the complainant denied the version that
was put to her that she and the appellant
communicated on Facebook
about the appellant taking her to Reitz. See page 392 of the
Judgment.
b)
During the examination in chief, she testified that after learning
that the numbers belonged to
the appellant, she immediately cut off
communication and they never had any WhatsApp conversation until the
day in question when
the appellant texted her to come fetch the lunch
box.
c)
Having knowledge that the number did not belong to the so-called
Kgoitsi, she, on the day
in question, continued to communicate with
the appellant.
d)
She further testified that she used to collect lunch from a lady or
his son. Surprisingly on the
day in question, she went to collect
from the appellant on a Saturday afternoon.
[23]
As regards the issue of the amendment of the charge sheet, Section 86
of the Criminal Procedure Act 51 of 1977 (the CPA)
provides for the
amendment for a defective charge if it appears that the averments are
not aligned with the evidence, that words
are omitted or included,
which should have been included or excluded or where there is an
error in the charge. The court is empowered
to grant an amendment at
any time before judgment if there is ‘no prejudice’ to
the accused.
[24]
I am of the view that the amendment was not prejudicial since the
evidence of both the state and the defence was that sexual
intercourse took place more than once.
Conclusion
[25]
In conclusion, the evidence adduced by the state was not sufficient
to sustain the convictions under consideration in
this appeal. The
appeal succeeds, and the Appellant’s conviction on the charge
of Rape is set aside.
[26]
In the result, I propose the following order:
Order:
1. The appeal
against the conviction succeeds. The conviction is set aside, and the
appellant is found not guilty.
2. The sentence
imposed is set aside.
LEKHOABA,
AJ
I
concur,
MHLAMBI,
J
Counsel
for the applicant:
Mr.
V.C Abrahams
Legal
Aid SA Bloemfontein
Counsel
for the respondent:
Adv.
M Lencoe
Director
of Public Prosecution
Bloemfontein