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[2023] ZAFSHC 283
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Makala v S (A114/2022) [2023] ZAFSHC 283 (24 July 2023)

IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
APPEAL
NUMBER: A114/2022
In
the matter between:
SIMON
SEHLOHO MAKALA              APPELLANT
and
THE
STATE                                         RESPONDENT
HEARD
ON:
27
FEBRUARY 2023
CORAM
:
NAIDOO,

J et MAHLANGU, AJ
JUDGMENT
BY:
NAIDOO,
J
DELIVERED
ON:
24
JULY 2023
[1]
The appellant was convicted on 15 September
2020 on one count of Rape, in the Odendaalsrus Regional Court. He was
sentenced on 29
October 2020 to life imprisonment. The appellant
approaches this court in terms of
his automatic right of appeal, and
the appeal lies against both his conviction and sentence. Ms S Kruger
appeared for the appellant
and Mr WJ Harrington for the respondent
(the state).
[2]
The Appellant’s grounds of appeal
against the conviction and sentence are, in essence, that the court
a
quo
erred in:
2.1
finding that the state had proved its
case beyond reasonable doubt;
2.2
not properly analysing and evaluating the
evidence of the state witness;
2.3
finding that the state witness gave her
evidence in a satisfactory manner;
2.4
rejecting the appellant’s evidence as
not being reasonably possibly true;
2.5
attaching too much weight to the factors in
aggravation (of sentence), such as the seriousness of the offence and
the interests
of society;
2.6
not
attaching any weight to the appellant’s personal and mitigatory
circumstances, in finding that no substantial and compelling

circumstances exist to justify deviating from the imposition of the
minimum sentence of life imprisonment, which is shockingly

inappropriate and out of proportion.
[3]
It is perhaps useful to sketch a
brief background relevant to this matter. The complainant was at a
tavern with her boyfriend and
a female friend of hers, called Zonke.
The complainant’s boyfriend indicated to her that he was
leaving. Shortly thereafter
she received a call, on her mobile
telephone, from her uncle and went outside to answer the call. While
she was still talking on
the telephone, the appellant approached her
and asked who she is talking to. The appellant is her ex-boyfriend,
the relationship
between them having ended a few months prior to this
incident. She told him that she was talking to her uncle and even
showed him
her mobile telephone. He then began assaulting her by
throwing stones and empty bottles at her. As a result, she suffered
lacerations
to her back, which were bleeding.
[4]
The appellant then said that they were
going to his place of residence and pulled her forcibly away. The
people present at the tavern,
including her friend Zonke, were too
scared to intervene. Zonke called the complainant’s stepfather.
It seems that at some
stage her stepfather and uncle were present at
the tavern when the appellant assaulted the complainant, but they did
not intervene,
nor did they try to stop the appellant from abducting
the complainant from the tavern. The appellant dragged the
complainant along
until they reached his residence, where he asked
her to undress. He then raped her, after which he went outside. While
he was outside,
she found a shoebox that she had left at his house.
Inside the shoebox, she found a firearm and some ammunition. She
“stole”
one bullet and put it in her pocket. Thereafter
they slept until 6h00 the next morning.
[5]
When they awakened, he raped her again. At
7h30 she wanted to go home. The appellant gave her a T-shirt to wear
as hers was blood-stained.
He then walked her halfway home. When she
got home, she narrated the story to one Zanele. The latter
accompanied the complainant
to the police station where a charge was
opened against the appellant. She was taken for a medical examination
which was performed
by a nurse. The medical report (J88) completed by
the nurse was handed in as an exhibit, with the consent of the
appellant. The
J88 indicated injuries, being a fresh 2,8 cm cut and
fresh “barrel line” bruises, on the complainant’s
back,
and the gynaecological examination revealed no visible
injuries. The conclusion of the nurse was that the absence of
injuries does
not rule out vaginal penetration.
[6]
The appellant’s version is that at
the time relevant to this matter, he and the complainant were in a
love relationship and
had been for approximately eight months before
the incident. On the night in question, he and the complainant were
at a tavern.
He went outside, and a woman walked out behind him. The
complainant followed him out and accused him of having a relationship
with
that woman. A fight ensued between them, and they were throwing
empty beer bottles at each other. The complainant’s father

intervened and said the appellant should leave with the complainant,
which they did. They went to his house, where the complainant
showed
him her injuries. He heated some water and cleaned her wounds. They
then went to bed and had consensual sexual intercourse.
The next
morning, which would have been 27 January 2019, he accompanied the
complainant to town, and left her at another woman’s
house.
[7]
The appellant also testified that after he
returned home, the complainant arrived with the police, alleging that
he was in possession
of firearm and ammunition. The police searched
his house but found nothing. They alleged that the complainant had
brought ammunition
to the police station. He was arrested and taken
to court, where he was released. On 29 January 2019, he was arrested
again, this
time for rape, which culminated in the trial of this
matter.
[8]
Ms Kruger stood by the submissions in the Heads of Argument on behalf
of the appellant. The argument for the
appellant is that the court
failed to properly assess the evidence in its totality and to take
proper account of the discrepancies
and contradictions in the state’s
case. The complainant and appellant were the only witnesses for the
state and appellant
respectively. As properly acknowledged by both
parties, the state bears the onus to prove its case beyond reasonable
doubt, while
there is no such duty on the appellant to prove his
case.
[9]
The parties accept that the trial court was faced with
two mutually destructive versions. It was pointed on behalf
of the
appellant that the complainant’s statement to the police spoke
of being raped once, whereas in her
viva voce
evidence, she
indicated that the appellant raped her twice. She explained this by
alleging that there was a language barrier between
her and the police
official who took her statement. The rest of her statement appeared
to be an accurate reflection of what she
said to the police official,
as there were no allegations to the contrary. At least six other
witnesses could have been called
to corroborate the complainant’s
version, namely her friend Zonke who was with her at the tavern and
allegedly tried to intervene
when the appellant assaulted the
complainant, the complainant’s boyfriend, Kabelo, the
complainant’s stepfather and
uncle, whom she said witnessed the
assault and kidnap, Zanele, to whom she reported that the appellant
had raped her and the police
official who recorded her statement.
[10]
The appellant asserted that the court erred in finding that the
discrepancies were not material, especially as the complainant
was a
single witness, whose testimony was not clear and satisfactory in all
material respects. The court also erred in rejecting
the appellant’s
version. The submission on behalf of the appellant is that the appeal
against conviction and sentence should
be upheld.
[11]
The state in its Heads of Argument set out candidly and extensively
what it saw as the discrepancies in the evidence
of the complainant.
The state raised a number of the same issues raised by the appellant.
With regard to the alleged second rape,
it was pointed out that
neither the statement to the police nor the J88 makes mention of the
second rape, and that the contents
of both documents were narrated by
the complainant. The state clearly regarded the explanation in
respect of both documents as
improbable. The failure to call relevant
witnesses was also raised by the state, which was of the view that
the failure by the
court to recognise the need for such witnesses and
the failure to invoke
section 186
of the
Criminal Procedure Act 51 of
1977
as an irregularity. The state was in agreement that the evidence
of the complainant was not satisfactory or reliable.
[12]
The state also raised criticisms against the evidence of the
appellant, in the following respects:
12.1
There were contradictions in the version put to the complainant and
his
viva voce
evidence, in that he put to the complainant that
he had no knowledge of her injuries, which differed from his
viva
voce
evidence;
12.2
He proffered the version in his evidence in chief that the
complainant got into a fight with the woman she accused
the appellant
of having a relationship with. He said that it was this lady who was
throwing the bottles which injured the complainant;
12.3
There were discrepancies in his evidence regarding the
argument/disagreement between himself and the complainant
regarding
the money she allegedly requested from him.
[13]
The state argued that no reasons were placed on record for the
failure to call the witnesses I mentioned. In addition,
the state
pointed out that both the appellant and the complainant were at a
tavern, and in spite of the complainant alleging twice
in her
evidence that the appellant apologised for what he did and imputed
his conduct to the consumption of alcohol, this aspect
was not
pursued by the prosecutor, the defence or the trial court, to
establish the state of sobriety of both parties. The state
was of the
view that the trial court incorrectly criticised the appellant for
not having seen the complainant’s injuries
or the blood on her
T-shirt when they left the tavern. This was so because there was no
evidence nor enquiry into the visibility
outside the tavern where the
bottles were being thrown. There was also no evidence regarding the
extent to which the complainant’s
T-shirt was bloodied. The
appellant was not asked details about the fight between the
complainant and the other woman, but was
criticised for not giving
such details.
[14]
Both counsel referred to the relevant case law and I do not deem it
necessary to repeat all of those cases. The learned
authors Du Toit
et al
in the Commentary on the
Criminal Procedure Act
introduce
their commentary on
section 208
of the
Criminal Procedure
Act thus
:
“
The
danger of relying exclusively on the sincerity and perceptive powers
of a single witness has evoked a judicial practice that
such evidence
be treated with the utmost care. This practice seems to have
originated in the following remarks made by De Villiers
JP in R
v Mokoena
1932 OPD 79
at 80:
'Now
the uncorroborated evidence of a single competent and credible
witness is no doubt declared to be sufficient for a conviction
by
section 256
, but in my opinion that section should only be relied on
where the evidence of a single witness is clear and satisfactory in
every
material respect. Thus the section ought not to be invoked
where, for instance, the witness has an interest or bias adverse to
the accused, where he has made a previous inconsistent statement,
where he contradicts himself in the witness box, where he has
been
found guilty of an offence involving dishonesty, where he has not had
proper opportunities for observation, etc.’
(RS 67, 2021 ch24-p1).
[15]
The guidelines set out in Mokoena have solidified the manner in which
courts approach the evidence of a single witness.
It has become trite
that the final evaluation of the evidence of a single witness can
rarely be made without considering whether
such evidence is
consistent with the probabilities. Where there is even a small
measure of corroboration, the court is no longer
dealing with the
evidence of a single witness., and such corroboration renders the
accused’s version less probable on issues
in dispute. Courts
generally employ corroboration as a safeguard against the dangers of
relying on the evidence of a single witness.
[
See S v Teixeira
1980(3) SA 755 (A); S v Letsedi1963(2) SA 471 (A); S v Gentle 2005(1)
SACR 420 (SCA
)]
.
[16]
It is well established in our law that where the state fails to call
relevant and available witnesses, who can support
a party’s
case,      the court may draw a negative
inference. Where the state has failed to call a witness
or witnesses
whose evidence is essential for a just decision to be made, then the
court has a duty to call such witness or witnesses,
as it would be in
the interests of justice to do so. The dictum of the court in R v
Hepworth
1928 AD 265
, made some 95 years ago is still relevant and
holds true today. The court said at p277:
“
A
criminal trial is not a game where one side is entitled to claim the
benefit of any omission or mistake made by the other side,
and a
judge’s position in a criminal trial is not merely that of an
umpire to see that the rules of the game are observed
by both sides.
A judge is an administrator of justice, he is not merely a figure
head, he has not only to direct and control the
proceedings according
to recognised rules of procedure but to see that justice is done”.
[17]
The trial court clearly accepted the version of the complainant,
stating that the court found her evidence to be true,
trustworthy and
credible. The court accepted the complainant’s explanation
regarding the absence of any mention of the second
rape in the police
statement and the J88, without interrogating the surrounding
circumstances, as pointed out by both Ms Kruger
and Mr Harrington.
With regard to the failure to call relevant witnesses, the trial
court found that in the light of its findings
regarding the manner in
which the complainant was taken from the tavern, it was not necessary
for the other witnesses to be called,
and that the state’s
failure to call such witnesses was not fatal to its case. The trial
court failed to take cognisance
of the appellant’s assertion
that the complainant was his girlfriend of eight months at the time
of this incident, that she
was assaulted by another female and that
her stepfather intervened and asked the appellant to leave with the
complainant.
[18]
The court merely stopped at its acceptance of the complainant’s
evidence without a balanced consideration of all
the other evidence.
If Kabelo, the complainant’s alleged current boyfriend were
called, he could have confirmed whether he
and the complainant were
in a relationship. The complainant’s stepfather and uncle would
have been able to say if the appellant
assaulted the complainant and
forcibly removed her from the tavern or whether the stepfather
intervened to prevent the assault
by the other female on the
complainant, as alleged by the appellant. Zonke was also an eye
witness who would have been able to
confirm whether she did in fact
try to intervene and prevent the appellant from assaulting the
complainant. The police officer
who took the complainant’s
statement could have confirmed or denied the complainant’s
version about the language barrier
between them. Zanele, who was the
first report in respect of the rapes, would have been able to say if
one or two rapes were reported
to her.
[19]
These witnesses would have enabled the trial court to properly assess
the complainant’s version and to make a definitive
ruling that
the appellant’s version is so improbable that it can be
rejected as false. I am not in agreement that the failure
to call
those witnesses I have referred to was not fatal to the state’s
case. The trial court was alive to the fact that
it had two mutually
destructive versions before it and that the complainant was a single
witness. In spite of articulating the
caution that it was expected to
exercise, the trial court, in my view, did not give due consideration
to all the evidence in its
assessment of whether the complainant’s
version was clear and satisfactory in all respects. This is
particularly so in respect
of the second rape, as the sentence of
life imprisonment hinges on the trial court’s acceptance that
the complainant was
raped more than once.
[20]
The complainant’s version about her retrieving a bullet from
the appellant’s cupboard and his version that
the police did
not find any firearm or ammunition in his house ought to have been a
further indicator that greater interrogation
of the respective
versions was required. The undisputed evidence that the appellant was
initially arrested only on a charge relating
to the firearm and/or
the ammunition, and only a day or two later arrested on a charge of
rape, equally demanded interrogation
and closer scrutiny.
[21]
One is left with a distinct sense that all relevant evidence was not
placed before the trial court, for example, if the
relationship
between the complainant and appellant ended eight months prior to the
incident, why did she feel so compelled to tell
him who she was
speaking to on the telephone outside the tavern, and go to the extent
of showing him her telephone in support of
her assertions? The
appellant lived close to the owner of the property, and warned the
complainant not to make a noise as the owner
would hear her, yet she
did nothing to attract the attention of someone close by. In my view,
the true nature of the relationship
between the parties ought to have
been interrogated and not dealt with superficially. It is also my
view, that the interference
of this court is required in order to
ensure that justice is done. It is not necessary to deal with
submissions made in respect
of sentence as, my view is that the
conviction cannot be sustained.
[22]
In the circumstances, the following order is made:
22.1
The appeal in respect of the conviction and sentence is upheld
22.2
The conviction and sentence imposed on the appellant are set aside.
NAIDOO,
J
I
concur.
MAHLANGU,
AJ
On
behalf of appellant:             Ms
S Kruger
Instructed
by:                           Legal

Aid South Africa
Bloemfontein
Local Office
On
behalf of respondent:         Mr
WJ Harrington
Instructed
by:                           The

Office of the DPP
BLOEMFONTEIN