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[2023] ZAECMKHC 90
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S v Ntakatsane (26/2023) [2023] ZAECMKHC 90 (18 August 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
NOT REPORTABLE
Case no: 26/2023
In
the matter between:
THE
STATE
and
SONWABILE
NTAKATSANE
Accused
JUDGMENT
Govindjee J
Background
[1]
Mr
Ntakatsane pleaded not guilty to raping NN, a 14-year-old girl, and
AN, a 15-year-old girl on 25 August 2018 at Elliot (‘the
complainants’). In terms of
s 220
of the
Criminal Procedure
Act, 1977
,
[1]
he admitted that
he had sexual intercourse with both complainants, indicating that he
had done so with their consent.
The state’s case
[2]
AN, a 19-year-old female complainant (‘the
complainant’), testified in proceedings held behind closed
doors. She lives
with her sister, YN, and is the cousin of the other
complainant (‘NN’). During 2018, she and NN had been sent
to a
shop in the Old Location by Mr Ncise, who lived at a farm in
Elliot (‘the farm’) where NN resided. Having not sourced
the items they required, the two children went on to another shop.
They encountered Mr Ntakatsane, who was walking towards them.
He
walked past them, stopped and called the complainant’s name.
[3]
The complainant had been told, sometime during the
previous year, that she was related to Mr Ntakatsane. She had,
however, never
conversed with him. When called, she responded without
stopping. As the children walked on, Mr Ntakatsane grabbed their
clothing
on the shoulder area.
[4]
Turning around, the complainant noticed that he
had a fixed-bladed knife in the hand that he held NN and asked him
what he was doing.
He swore at her and, still holding their clothing,
took them to a bridge area approximately 30 metres away. There he
told them
to undress. The girls argued with one another as to who
would do so first. He was right in front of them, still holding the
knife
and again instructed them both to undress. He proceeded to
insert his fingers into both of their vaginas, without consent,
causing
the complainant to cry in pain. NN was also crying. He then
told the complainants to dress and, holding both by their shoulders,
said they should leave.
[5]
Mr Ntakatsane lives in a shack (‘the
dwelling’) constructed on the premises of his parental home
(‘home’).
The complainants were taken there. Once they
were all inside, he closed the door, latched it, and instructed them
not to make any
noise. The complainants were instructed to undress
and again argued as to who would do so first, as neither wanted to
undress.
The complainant said she felt very scared.
[6]
Once they had both undressed, Mr Ntakatsane
instructed them to proceed to the bed. The complainants again argued
as to who would
do so first. When they did so, the complainant was
positioned in the middle. Both requested him to proceed with the
other. In response,
he jumped over the complainant and ‘started
with NN’ by inserting his penis into her. It was dark inside
the dwelling
and the complainant testified that she heard what he had
done to NN by her crying.
[7]
Having finished with NN, he climbed on top of the
complainant and inserted his penis into her. At some stage he fell
asleep while
lying on top of her. This enabled the complainant to
move her hand slowly and poke NN, who was right next to her, and
whisper to
her to leave and look for help as he was asleep. NN did so
after dressing.
[8]
After some time, the complainant believed that NN
was not returning. She pushed Mr Ntakatsane off her to the side of
the bed, got
up and looked for her clothes. She did not find her
panty, put on her trousers, and left for the farm.
[9]
The complainant was crying when she arrived, and,
at the gate, called out for NN’s mother. NN’s mother and
Mr Ncise
appeared, and she informed them that they had been raped.
She did not inform them of the identity of the perpetrator and
explained
that this had been due to her state of shock. NN’s
mother started to cry and they went inside the house.
[10]
The complainant was still crying when NN and her
sister PN and YN subsequently arrived. NN was also crying. The
following morning,
they were taken to the police station and to
hospital for medical examination.
[11]
The complainant admitted having consumed alcohol
earlier that evening at the farm and had been tipsy and not drunk.
She denied having
consumed alcohol with Mr Ntakatsane, or that he had
proposed love to NN. There was no stage where NN, who did not know Mr
Ntakatsane,
had been alone with him. She added that the complainants
had screamed when they had first been grabbed by Mr Ntakatsane, but
that
none of the people nearby had attended to them. Mr Ntakatsane
had been aggressive and not talking properly, and the complainant
had
been afraid to attempt escape earlier.
[12]
The complainant confirmed, during
cross-examination, that Mr Ntakatsane had been unaccompanied when
they had met him and throughout
the incident. She had not noticed him
as he walked by, but he had called her by her name once they had
crossed. The complainant
had turned and looked at him before
responding to him. She could not see him clearly and had not observed
a knife. After being
called, she had recognised him as the person
previously pointed out to her as a relative. After replying to him he
had said that
the complainants should go to him. At that stage he was
approximately eight metres away and the complainants continued
walking
while the complaint spoke to Mr Ntakatsane by turning and
looking at him over her shoulder.
[13]
The complainant was surprised that he then
followed them and grabbed them by their shoulders. He was holding a
fixed-bladed knife
and, because of that, she did not think to remind
him of their family link. Despite the complainants’ shouts for
help and
cries, none of the people who observed this came to their
assistance.
[14]
The complainant maintained that the knife had
still been in Mr Ntakatsane’s right hand while he had inserted
a finger from
each hand into each of the complainants. The knife was
in the hand used to penetrate NN. She was unable to explain how this
would
have occurred and noted that it was dark at the spot this
happened, near the bridge. The complainants had been standing on
their
feet while Mr Ntakatsane sat on the ground.
[15]
Later, the complainant realised that they had been
taken to his home. She had previously visited in the old location and
his home
had been pointed out to her given their family connection.
The complainants did not raise any alarm. This is because they had
been
told not to make a noise and had been scared, only crying softly
at the time. The complainant explained that she had been particularly
frightened because Mr Ntakatsane had been in possession of the knife.
Mr Ntakatsane’s parental household had been dark, and
nobody
had been seen when they entered his dwelling.
[16]
The complainant explained that she did not
ordinarily reside in the area and was unfamiliar with NN’s
daily movements and
with the name of the tavern to which Mr
Ntakatsane appeared to be headed when they had come across him. She
had never bumped into
him since he had first been pointed out to her.
[17]
The complainant testified that NN had cried while
she had explained to YN and PN that they had been raped. NN also had
the appearance
of a person who had been crying. Her impression was
that NN had already told them what had happened, and that they were
merely
seeking confirmation.
[18]
Various discrepancies with the complainant’s
contemporaneous statement to the police were pointed out to her.
While the complainant’s
statement indicated that Mr Ntakatsane
had threatened to kill them prior to taking them to the bridge, this
evidence had not formed
part of her testimony in-chief. The statement
contradicted her version, referring to Mr Ntakatsane taking out a
knife only at the
bridge. The complainant added that he had
repeatedly threatened them, and poked the back of their heads with
the knife. The complainant
could not recall being told to make the
bed at Mr Ntakatsane’s dwelling. She could not recall telling
the police that she
and NN had been raped twice each. In addition,
the statement made reference to Mr Ntakatsane waking up while on top
of the complainant
and asking about NN, and waking up when she tried
to leave. The complainant had no recollection of this. Her
explanation was that
what was reflected in the statement demonstrated
that the officer who had taken the statement had not understood her
properly.
She also could not recall what had happened to the money
the complainants had been given by Mr Ncise.
[19]
It was put to the complainant, and denied, that Mr
Ntakatsane had told the complainants that he was going to Jazz tavern
and that
they had offered to accompany him. The complainant, while
uncertain about whether they had screamed when accosted, was sure
that
Mr Ntakatsane had a knife with him at the time.
[20]
Mr Gcobani Ncise testified that he was 58 years of
age, and lived at the farm with his girlfriend, who was NN’s
mother. NN
would visit the farm on weekends and was close to her
cousin, the complainant. Around sunset on 25 August 2018, the witness
had
given them R200 to buy meat and drink from the Lunch Bar Shop,
approximately four kilometres away from the farm in the location.
When the children did not return, Mr Ncise proceeded to the Lunch Bar
Shop to look for them, before returning home. AN arrived
in the early
hours of the morning, breathing heavily and fast and shouting from
the other side of the premises’ locked gate.
She appeared to be
unhappy and in shock. AN told him that she and NN had been raped and
it appeared to him to be clear that she
had run away.
[21]
NN and YN arrived after a while and reported the
incident. NN, who was very young at the time, had cried. Mr Ncise
advised them
to sleep as he would accompany them to the police
station the following morning. He had been given Mr Ntakatsane’s
first
name when told about the identity of the perpetrator, but had
not known him until he saw him at court in Elliot.
[22]
Mr Ncise testified that the complainants were tiny
at the time of the incident. Any passer-by would realise that they
were children.
He testified that he had not made a statement to the
police, although it appears to be common cause that he did, and
admitted that
he may have made some mistakes because of a busy mind
and inability to function correctly. It was a mistake to suggest that
NN
had returned to the farm before the complainant.
[23]
During cross-examination, the witness stubbornly
denied that the complainants could have consumed alcohol that
evening, even when
the complainant’s admission to that effect
was put to him. He explained that the man working at the Lunch Bar
shop had told
him that the complainants had been seen there, so that
he returned home believing that they may have taken a different route
back
to the farm.
[24]
When the complainant arrived, it became apparent
that they had not bought the food or drink and she indicated that
they had lost
the money. Having heard from the complainant, Mr Ncise
and NN’s mother were still discussing what to do when NN and YN
arrived.
The complainant was then preparing a bed to sleep. NN’s
eyes were bloodshot, and she cried when asked by the witness where
she was coming from and told that the complainant had said that she
had been raped.
[25]
Mr Ncise subsequently admitted to having erred in
respect of his testimony about hearing the first name of Mr
Ntakatsane prior to
court proceedings in Elliot. The complainants had
made no mention of a name to him. According to the witness, YN had
told him that
she had met NN running, and that it appeared to her as
if NN had escaped from somewhere. He explained that he had been
shocked
by the incident.
[26]
YN testified that she had been with her cousin PN,
and PN’s boyfriend, sitting outside Lombo’s tavern on the
evening
in question. NN appeared running and crying, came to her,
called her aside and told her that she and the complainant had been
raped.
YN asked her to point out the place where the rape had
occurred and asked her if she knew where the complainant was. NN
informed
her that the complainant was still in the dwelling where she
herself had been raped, and that the perpetrator was still busy
raping
her.
[27]
NN took YN to Mr Ntakatsane’s dwelling. YN
was fearful and suggested that they begin at the main house. A lady
named Nomawethu
was inside and, having ascertained who was at the
door, opened for them. Mr Ntakatsane’s mother and father
appeared to be
drunk and his mother had passed out. Nomawethu
subsequently declined to accompany the two to Mr Ntakatsane’s
dwelling, saying
she was afraid to do so. PN appeared before they
knocked on his door. Mr Ntakatsane recognised YN, who said that he
should open,
as they were looking for the complainant. After some
discussion, he did so and YN realised that the complainant was not in
his
dwelling. NN remained silent during this time.
[28]
NN, YN and PN then went to the farm and called for
NN’s mother. Mr Ncise opened for them and they discovered that
the complainant
was already there, under the blankets. She was crying
and did not respond to a question asking when she had arrived at the
farm.
NN, who was in a state of shock, spoke to her mother and Mr
Ncise and informed them that she and the complainant had been raped
by Mr Ntakatsane.
[29]
YN explained that the Lunch Bar shop was next to
Lombo’s tavern. NN had not known that she had been at that
tavern on the
night in question, but they had been visible from the
street as they sat outside the tavern. The shop and tavern were on
the road
between Mr Ntakatsane’s dwelling and the farm.
[30]
The witness confirmed during cross-examination
that Mr Ntakatsane did not appear to be violent or aggressive when he
opened the
door. Her evidence was that she did not have time to
confront him about what NN had told her. She denied that the farm was
closer
to the dwelling, compared to the distance between the dwelling
and Lombo tavern. The street containing the tavern and shop was busy
and people would see if somebody was attacked.
Mr
Sojada
confirmed that there was no
dispute that YN had enquired about the complainant. His client
disputed the evidence about the state
of intoxication of his parents
at the time. Minor contradictions with her evidence and that of Mr
Ncise and the complainant were
pointed out, the witness remaining
firm in her version of what occurred when she arrived at the farm.
[31]
Dr Flannigan, a registered independent clinical
psychologist employed at Fort England Hospital, explained her
expertise and experience
dealing with criminal capacity and victim
impact assessments and out-patient psychotherapy. She had spent two
hours assessing NN
on 4 August 2023 but was forced to rely on
collateral information from the child’s mother and Mr Ncise,
her stepfather. NN
herself appeared perplexed and confused, having
slow movements, laughing inappropriately and unable to provide
relevant and logical
responses to her questions. Her speech was
impoverished, and she offered one-word answers, appearing anxious and
struggling to
concentrate.
[32]
Mr Ncise had explained that the child’s
behaviour had been normal prior to the incident. She now required
assistance in caring
for herself. Their efforts to assist the child
had included taking her to a clinic and to a sangoma.
[33]
Dr Flannigan concluded that NN was disconnected
from reality and not competent to testify due to psychosis, likely
caused by trauma
from the incident. She admitted that she had not
been informed that the child had only been in grade four, despite
being 14 years
of age during 2018 and that she was already consuming
alcohol. Importantly, however, she testified that her findings would
remain
unaltered, even though a formal diagnosis could not be
confirmed. The child was unable to complete psychometric testing as
she
was unable to comprehend the instructions given to her and was
easily distracted due to her current abnormal mental state. She was
currently psychotic with below average intellectual functioning and
requiring assistance with daily functioning. Dr Flannigan’s
professional opinion was that, even with assistance, she would not be
able to testify.
The defence case
[34]
Mr Ntakatsane testified that he had been with a
friend coming from Lombo’s tavern at approximately 20h00. They
met the complainants,
who asked where they had come from, noting that
the men ‘looked tipsy’. The complainants requested the
men to ‘try
them’, by which was meant that liquor should
be shared with them.
[35]
As the men did not have liquor, Mr
Ntakatsane thought about a former colleague and drinking partner,
named Madala, who lived in
town and could assist them with liquor.
The complainants agreed to accompany them. Mr Ntakatsane’s
friend left them, and
they proceeded with him to Madala’s home.
[36]
Mr Ntakatsane explained to Madala that he wanted
assistance with the purchase of liquor. Madala was not interested in
drinking but
gave money to Mr Ntakatsane, who left with the
complainants. The agreement was that they would go to the location
where he stayed,
as this was the closest area to Madala’s home.
At some point he suggested that they go to his home. This was because
he realised
that the R150 that he had received was insufficient and
several people would want to drink with them if they all proceeded to
the
tavern.
[37]
The route was uphill, and Mr Ntakatsane became
tired when they arrived there. He asked who would go to the tavern to
buy liquor,
and the complainant volunteered. He gave her money, and
she took a backpack and left to buy beers. She indicated to them that
she
would first pop by friends who would accompany her to the
‘Noblade’ tavern, some five houses away.
[38]
Once the complainant had left, Mr Ntakatsane
reminded NN that they had met previously, and he had proposed love to
her. She had
no problem with establishing a relationship but noted
that her boyfriend stayed in that area. She told him the boyfriend’s
name, in response to a question. He knew the individual and she
agreed with his suggestion that they should use any opportunity
while
keeping things secret from the boyfriend.
[39]
They proceeded to have sexual intercourse twice.
NN requested that they do so quickly before the complainant returned.
After resting
for a while, both realised that the complainant was not
returning. NN decided to look for her and left him alone inside the
dwelling.
[40]
The complainant arrived alone and enquired about
NN. Mr Ntakatsane wanted to sleep and was no longer interested in
drinking. He
told the complainant that she could leave him one beer
and depart with the rest of the alcohol. As she proceeded towards the
door,
he asked her ‘Are you going to leave me like that’.
Mr Ntakatsane indicated that he merely wanted to see her reaction.
She laughed and enquired what she was supposed to do. Noting her
interest, he informed her that she could do whatever she wished
and
‘something that would make me happy’. She mentioned the
possibility of NN returning but nonetheless closed the
door and
returned to have sexual intercourse with him. She then dressed, took
the beers, and left.
[41]
Mr Ntakatsane fell asleep and was woken by YN
knocking on the door. She was looking for both the complainants and
was in the company
of an unidentified female. She and this person
left immediately when told that the complainants were not there, and
Mr Ntakatsane
went back to sleep.
[42]
He explained that he would see the complainants in
the area ‘because they were having an affair nearby my home’.
The
complainants and Mr Ntakatsane were used to one another, in the
sense that they would talk, but he did not know their age. He had
nonetheless not greeted the complainant by name and denied her
version of events in its entirety. While he knew NN’s name,
the
complainant was known by a nickname. He noted that YN and the
complainant were related to his stepsister and that it was ‘always
light in my shack’.
[43]
During cross-examination, Mr Ntakatsane testified
that his plan, when leaving Lombo’s tavern and before meeting
the girls,
was to look for Madala to see what he was doing. He
clarified that he would first look for him on the way at Jazz tavern
before
proceeding to Madala’s home and admitted having made a
mistake in not mentioning this during evidence-in-chief. He
subsequently
indicated that whether he would drink at Jazz tavern,
the venue mentioned by his counsel to the complainant, would depend
on the
‘vibe’ there.
[44]
The complainants had not approached him from the
direction of the shop but ‘from the back of the township’.
Asked why
he had taken them to his dwelling, he explained that ‘one
must first go via my place’ when leaving Madala’s place.
He did not explain where they were headed, and then said that he had
just wanted to rest having walked from Madala’s place.
He had
been tipsy and not under the influence of alcohol.
[45]
Mr Ntakatsane testified that he knew that the
complainant would proceed to Noblades, a few doors down, to purchase
the alcohol,
when she left him with NN. He endeavoured to explain
that the reason they had not all proceeded to that tavern was because
of the
amount of money they had and because they did not want other
people joining in with their drinking. He subsequently testified that
he and NN had not known whether she had proceeded to Noblade’s
tavern or had visited friends instead.
[46]
NN had left his dwelling at approximately 22h00.
When the complainant arrived and responded to his request to be given
something,
he testified that, because of his alcohol consumption, he
did not have a choice but to go along with her lead. They had both
initiated
sexual intercourse and, having rested, he was no longer
tired. When asked why he had not continued drinking with her upon her
return,
he said that he had wanted to sleep and that he was weak from
his previous bouts of sexual intercourse. The complainant had
subsequently
left with his backpack. Had she had any complaint she
should have reported to her father, who lived in the same area as Mr
Ntakatsane.
[47]
He maintained that YN had asked for both
complainants upon her arrival. His explanation for how she would have
known to look for
them at his dwelling was that people would have
seen them walking together in the township, and possibly told YN
about this. He
stated that NN should have proceeded straight to the
farm, and not via Lombo’s tavern, had she been raped. When
asked why
he had not told NN to wait for the complainant to return so
that they could drink together, he said:
‘
I
decided that no I can’t drink with this one because the other
one will be under the impression that we do not want her to
take from
the alcohol’.
[48]
In response to questions from the court, Mr
Ntakatsane confirmed that he had wanted to go to Madala’s place
when leaving Lombo’s
tavern. This was not to obtain alcohol.
Having met them, he had thought that Madala could help him obtain
alcohol. This was for
NN’s sake, and to demonstrate that he was
serious about her, given his long-standing love interest. In fact, it
had been
five days prior to the incident that he had met NN and
propositioned her.
[49]
Mr Ntakatsane had wanted to make NN happy and she
had said that she wanted alcohol. It was quicker to proceed to his
residential
area than go back to Jazz tavern once he obtained money
from Madala. His home came before Noblades tavern and they had not
proceeded
there directly because NN’s boyfriend resided in his
area. The plan was to drink with them and then he would sleep. The
complainants
had wanted alcohol and he had not wanted to come across
their boyfriends. He subsequently indicated that the complainant’s
boyfriend did not live in that area. He also testified that he had
heard about the complainant’s boyfriend from NN on the
day in
question and had not asked her himself, as his interest was only in
NN. Both complainants used to visit men in his location.
Analysis
[50]
The
court is faced with two irreconcilable versions of events. It is
accordingly necessary to evaluate both versions against the
inherent
probabilities taking account of all the evidence.
[2]
This requires findings on credibility of the various factual
witnesses, their reliability and the probabilities.
[51]
The
complainant in this matter is a single witness in respect of proving
that Mr Ntakatsane’s admitted sexual intercourse
with the
complainants was non-consensual.
Section 208
of the Act provides that
an accused may be convicted of an offence on the single evidence of
any competent witness. There is no
rule of thumb test or formula to
apply when it comes to a consideration of the credibility of the
single witness.
[3]
The evidence
must be weighed by considering its merits and demerits before
deciding whether it is trustworthy and whether, despite
shortcomings,
defects or contradictions, the truth has been told.
[4]
[52]
The
complainant provided a clear and consistent account of the main
events of the night in question. The shortcomings in her testimony
relate mainly to various inconsistencies with the statement she made
to the police almost five years ago, and her inability to
remember
distances and times. The mere fact that there are contradictions
between the testimony of a witness and their previous
statement does
not mean that the witness is not credible. Courts must be alive to
the reasons for such differences, following the
approach in
S
v Mafaladiso en Andere
(footnotes
omitted):
[5]
‘
The
mere fact that there are self-contradictions, calls for a circumspect
approach by the Court. Firstly, it must be carefully determined
what
the witness intended to say on each occasion, in order to ascertain
whether there is in fact a contradiction and, if so, the
extent
thereof. In this connection the judge of fact must take into account
that a previous statement is not obtained by way of
cross-examination, that there may be language and cultural
differences between the witness and the author of the statement which
stand in the way of correctly recording what was intended, and that a
deponent is seldom if ever asked by a police official to
explain
their statement in detail … Secondly, it must be borne in mind
that it is not every error and not every contradiction
or deviation
that adversely affects a witness’ credibility …
Non-substantial variations are not necessarily relevant
…
Thirdly, the contradictory versions must still be considered and
evaluated in the context of all the evidence. The circumstances
in
which the versions were made, the proved reasons for the
contradictions, the actual effect of the contradictions on the
witness’
reliability or credibility, and the question whether
the witness had sufficient opportunity to explain the contradictions
–
and the quality of the explanations – and the
relationship between the contradictions and the rest of the witness’
evidence,
inter
alia
, must be taken
into account and assessed … Finally, the ultimate task of the
trial judge, to assess the weight of the statement
against the
viva
voce
evidence
in these cases is correctly summarised in
S
v Sauls and Others …
:
“
The
trial judge will weigh his evidence, will consider its merits and
demerits and, having done so, will decide whether it is trustworthy
and whether, despite the fact that there are shortcomings and defects
or contradictions in the testimony, he is satisfied that
the truth
has been told.”’
[53]
Many of the discrepancies pointed out by
Mr
Sojada
are non-substantial and not of
the kind that affect the complainant’s credibility,
particularly when evaluated in the context
of all the evidence and
bearing in mind the typical considerations that result in such
differences and the period that has elapsed.
The complainant’s
explanation that the police official who took her statement may not
have understood what she intended to
convey highlights her conviction
in her recollection of events as expressed in court. It is also of
relevance that she was a child
of 15 at the time that statement was
made. Her inability to estimate distances and times, including the
time it took for Mr Ntakatsane
to rape NN, must also be considered.
Importantly, these contradictions and inadequacies do not disturb the
core of her version
relating to the non-consensual sexual penetration
of both complainants, the preceding events and the complainants’
escape
from the dwelling and reporting of the incident.
[54]
This is not to suggest that her evidence was
without blemish. The complainant acknowledged that she had consumed
alcohol on the
evening in question and had been tipsy when she came
across Mr Ntakatsane. She was unable to provide a detailed
explanation of
the complainants’ reaction to seeing the knife,
how they had screamed or shouted or how they could have been grabbed
simultaneously
while Mr Ntakatsane held a knife in one of his hands.
The same difficulty confronts her evidence of the events at the
bridge.
[55]
Although
now an adult, the complainant was a child at the time she was
allegedly raped. The imaginativeness and suggestibility of
children
have been held to be only two of several elements that require that
their evidence be scrutinised with care to the point
of suspicion.
[6]
A trial court must fully appreciate the inherent dangers in accepting
such evidence. Even though she became exasperated, and appeared
tired
on occasion during cross-examination, she conveyed the impression of
an honest witness recalling events of some five years
ago, indicating
when she was unable to recall a particular occurrence. Considering
that lapse of time, and her age at the time
of the incident, it is
unsurprising that her evidence contains gaps and contradicts aspects
of her statement. Crucially, however,
her evidence as to how she and
NN were forced to enter the dwelling and were raped one after
another, before Mr Ntakatsane fell
asleep on top of her, was
consistent and unshaken. She certainly did not seek to
embellish her testimony. Ultimately, her
evidence must be considered
in the light of all the evidence and not in isolation. On my
assessment, she testified truthfully and
provided a credible account
of events which is supported by the mosaic of evidence presented and
accords with the intrinsic probabilities.
[56]
The complainant’s version is supported by Mr
Ncise, to whom she reported the incident once she had managed to
leave the dwelling.
While he admitted to some errors in recollection,
notably in respect of having heard Mr Ntakatsane’s name at the
time, and
was stubborn in his approach to certain propositions put to
him, I am satisfied that he testified truthfully about his
recollection
of the key events in question. He appeared to be
unsophisticated and guileless and referred to his age and state of
mind to explain
gaps in his recollection. It is so that he appears to
have forgotten that PN accompanied YN and NN when they arrived at the
farm
sometime after the complainant, and therefore contradicts YN’s
evidence on the point, which I accept. He also denied having
made a
statement to the police, possibly because of a concern that it did
not accord with his recollection. Nonetheless, his evidence
confirms
that the complainant had arrived at the farm in the early hours of
the morning, breathing heavily and fast, seemingly
unhappy and in
shock and keen to draw the attention of the adults. Reporting of the
incident occurred immediately thereafter and
was confirmed, in his
mind, when NN arrived, leaving him with a sense of shock. Leaving
aside the presence of PN, that evidence
accords closely with the
complainant’s version of events at the farm immediately after
the incident, including NN’s
emotional state, and the presence
of YN.
[57]
YN was an excellent witness whose testimony was
unshaken during cross-examination. NN had seen her sitting outside
Lombo’s
tavern and reported the incident to her, taking her
straight to Mr Ntakatsane’s home. That the two would have
proceeded there
is understandable considering what YN had been told
by NN, namely that the complainant was still at the shack being
raped. Her
conduct in proceeding straight to Mr Ntakatsane’s
dwelling, which is not disputed, supports her version as to what NN
told
her when they met, and NN’s emotional state at the time.
It must accordingly be accepted that that meeting occurred soon after
sexual intercourse took place. YN’s evidence is diametrically
opposed to the suggestion that NN had consensual intercourse
with Mr
Ntakatsane and left to find the complainant. In fact she was running
home in an emotional state and came across YN by chance.
Her
testimony supports the state’s case that NN had left the
dwelling while Mr Ntakatsane was still on top of the complainant.
NN
told YN that the complainant was still in the dwelling being raped,
and they understandably decided to proceed there.
Importantly,
it was not disputed that NN had been with YN when Mr Ntakatsane
opened the door to his shack to them sometime later,
or that YN had
enquired only about the complainant. This is a matter to which I will
return. Considering the preceding events,
and their concerns about
their own safety, it is unsurprising that NN did not speak to Mr
Ntakatsane at the time. YN’s testimony
also provides strong
support for the complainant’s evidence as to the sequence of
events. That evidence, which finds further
support in the testimony
of Mr Ncise, is that the complainant arrived at the farm before NN
and her companions.
[58]
As
for NN’s failure to testify,
S
v Kelly
[7]
is authority for the proposition that the state has an unfettered
discretion as to its choice of witnesses. At most it may result
in an
adverse inference being drawn in certain circumstances.
[8]
Considering the testimony and professional opinion of Dr Flannigan,
which I accept, it would be inappropriate to draw an adverse
inference from the state’s failure to call NN in circumstances
where it must be accepted that she has been assessed as psychotic
and
unable to testify.
[59]
Mr Ntakatsane vacillated as to his intentions when
leaving Lombo’s tavern. His version of meeting the complainants
in the
company of another man does not accord with the probabilities
considering the evidence led as to the events that followed. Neither
his real reason for supposedly visiting Madala with the complainants,
nor the haphazard reference to Jazz tavern, where Madala
may have
been, was clarified. The inconsistencies in respect of the visit to
Madala were palpable.
[60]
Accepting in his favour that the complainants were
keen to drink with him would explain why he visited Madala and tried
to obtain
liquor or money for liquor. But subsequent events fail to
support that version. Even accepting that the closest tavern to
Madala’s
home was Noblades, Mr Ntakatsane contradicted himself
as to why the three had not proceeded straight to that tavern once
they had
received the money from Madala. Initially he blamed this on
insufficient funds to drink with others at the tavern, later
mentioning
a desire to avoid both the complainants’ boyfriends
at Noblades. He also suggested that they had gone to his dwelling
because
he was tired. On his own version, subsequent events,
including three rounds of sexual intercourse, gainsay that averment.
His professed
seriousness about a relationship with NN and alleged
efforts to impress her by obtaining alcohol for her emerged during
cross-examination
and is unsupported by his conduct towards her after
sexual intercourse, and his suggested consensual intercourse with the
complainant.
[61]
There are also apparent contradictions in respect
of his familiarity with the complainants and their boyfriends, which
is difficult
to reconcile. While his version at one point was that he
did not wish to proceed to Noblades in case he met the complainants’
boyfriends, or at least NN’s boyfriend, at another point he
indicated that he only became aware of NN’s boyfriend’s
identity later once he was alone with her in the dwelling and then
asked her about the boyfriend’s name. He subsequently
indicated
to her that he knew the person and they should keep their
relationship a secret. By that time, he had already decided
to avoid
going to Noblades personally and had been happy for the complainant
to purchase the alcohol for them. It follows that
even on his own
version, the boyfriend whose identity was unknown to him could not
have deterred him from proceeding to Noblades
instead of taking the
complainants to his dwelling. The suggestion about inadequate money
and not wanting to drink with others
is nonsensical when assuming
that the complainants were keen to drink with him, absent any concern
about meeting a boyfriend at
the tavern. The suggestion that he was
tired after walking up the hill to his location is far-fetched
considering his version as
to his own subsequent conduct. Had that
been the case, he would have been unlikely to have given the
complainant money and a backpack
to purchase alcohol or to have
failed to object when she indicated that she would first visit
friends. Had he in fact merely wanted
to be alone with NN, to pursue
a romantic interest, he would likely have behaved and communicated
very differently towards the
complainant. Had that really been the
case, it is extremely unlikely that, tired as he was, he would have
proceeded to risk having
sexual intercourse with the complainant,
having just had sexual intercourse with NN twice. Considering the
time of night, and her
youthfulness, the likelihood was that she
would have quickly looked for the complainant at Noblades, five doors
down the road,
before returning. That aside, the inherent
probabilities do not support the complainants willingly wandering
alone in the area
considering their age, the time of night and the
fact that the adults would have been waiting for them to return with
the items
from the shop.
[62]
The contradiction in Mr Ntakatsane’s
testimony with what was put on his behalf when YN appeared at the
shack is also significant.
His testimony that YN had been with an
unidentified individual and had asked the whereabouts of both
complainants was an afterthought.
In fact, accepting YN’s
evidence, as I do, she had been accompanied by NN and had enquired
only about the complainant’s
whereabouts. There was no
difficulty with that evidence when YN testified, counsel confirming
her version that she had enquired
only about the complainant and
putting specifically that ‘he told you he does not know where
she is’, to which the
witness agreed. There can be no doubt
that that version changed materially when Mr Ntakatsane testified.
[63]
There are other, more minor difficulties in
accepting his version. The suggestion that he knew the complainants
and was used to
them, yet did not greet the complainant by name, was
contrived. Various matters, such as the use of the backpack, the
direction
from which the complainants had been travelling, the
possibility that YN had heard from people in the street that he was
with the
complainants at his dwelling and the light in the dwelling,
were not put to the relevant witnesses.
[64]
In sum, Mr Ntakatsane’s evidence was at
times evasive and contradictory. On occasion, as reflected above, he
tied himself
in knots and the resultant evidence was incomprehensible
and inconsistent. Absent a coherent and forthright explanation of
events,
it is unsurprising that he did not impress the court as
trustworthy. His version of events was in many respects at odds with
the
probabilities. It may be added that his demeanour in the witness
box, even bearing in mind the usual stresses and strains that a
person would experience when testifying as an accused in court, was
not that of a person speaking honestly.
[65]
The
cautionary rule that the evidence of a single witness must be clear
and satisfactory in every material respect does not mean
that any
criticism of that witness’ evidence, however slender, precludes
a conviction.
[9]
The exercise of
caution cannot be allowed to displace the exercise of common
sense.
[10]
The court is
entitled to convict on the evidence of a single witness if it is
satisfied beyond reasonable doubt that such evidence
is true, and
notwithstanding that the testimony was unsatisfactory in some
respect.
[11]
Before rejecting
an accused’s version on the probabilities, the court must be
able to find, as a matter of probability, that
the accused’s
version is simply not reasonably possibly true.
[12]
[66]
It
is necessary to adopt a holistic approach to analysing the available
evidence in this matter.
[13]
In
S
v Chabalala
,
[14]
the Supreme Court of Appeal explained this as follows:
‘
The
correct
approach is to weigh up all the
elements which point towards the guilt of the accused against all
those which are indicative of
his innocence, taking proper count 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 about the accused's
guilt.’
[67]
That the complainant was a single witness who was
a child at the time of the incident must be emphasised and the
necessary caution
applied. Despite the various shortcomings in the
complainant’s testimony, the court is satisfied that the
complainant’s
evidence that she and NN were each raped once by
Mr Ntakatsane at his dwelling was true. Despite NN’s failure to
testify,
this is the consequence of the acceptance of the evidence of
the complainant that she and NN were threatened with a knife and
forced
to accompany Mr Ntakatsane first to the bridge and then to his
dwelling, where the complainant heard him raping NN before he raped
her. On the accepted evidence, Mr Ntakatsane did not know NN and was
not alone with her at any point on the night in question.
Any
protestations would have been muted given the presence of the knife,
which I accept was shown to the complainants when they
were accosted.
This also explains why the complainant would have been unlikely to
have thought to mention her family link with
him. This is not to
suggest that it is probable that the knife was always held at times
when Mr Ntakatsane grabbed the complainants
by their shoulders and
inserted his fingers into them. It is apparent that by time they
entered his dwelling it had been put away.
By then, they had already
submitted to him and been violated at the bridge. In addition, Mr
Ncise’s evidence that they had
the appearance of children
accords with the inherent probabilities and Mr Ntakatsane’s
suggestion to the contrary must be
rejected. The complainant’s
evidence accords strongly with the mosaic of evidence presented by
the state, and any doubts
that exist as to what transpired are
dispelled when considering the evidence in its totality. The
assessment of the strengths and
weaknesses of that evidence, with the
necessary caution applied, reveals that the state has proved Mr
Ntakatsane’s guilt
beyond reasonable doubt. On my assessment of
all the evidence, and for the various reasons already advanced, his
version is wholly
improbable and cannot reasonably possibly be true.
It must be rejected. The order to follow reflects that Mr Ntakatsane,
despite
his admission to the contrary in respect of NN, is only
convicted of having raped each of the complainants once.
Order
[68]
It is ordered:
1.
Count 1: The accused is found guilty of the rape
of NN, a 14-year-old girl, in that he had sexual intercourse with her
per vaginam
without her consent and against her will.
2.
Count 2: The accused is found guilty of the rape
of AN, a 15-year-old girl, in that he had sexual intercourse with her
per vaginam
without her consent and against her will.
A GOVINDJEE
JUDGE OF THE HIGH
COURT
Heard:
2-4,7-10
&14-15 August 2023
Delivered:
18
August 2023
Appearances:
Counsel
for the State:
Adv
M. van Rooyen
Director
of Public Prosecutions
Makhanda
046 602
3000
Attorney
for Accused:
Mr
V. Sojada
Legal
Aid of South Africa
Makhanda
046 622
9350
[1]
Act 51 of 1977.
[2]
See the judgment
of Wallis JA in
S
v BM
2014
(2) SACR 23
(SCA) para 8.
[3]
S v Weber
1971
(3) SA 754
(A) at 758.
[4]
See
S
v Guess
[1976]
4 All SA 534
(A) at 537-538;
S
v Singh
1975
(1) SA 227
(N) at 228.
[5]
S v Mafaladiso
en Andere
2003
(1) SACR 583
(SCA) at 593
e
–
594
h
,
as translated in BR Southwood
Essential
Judicial Reasoning
(2015)
(LexisNexis) at 77, 78.
[6]
Ibid
.
[7]
[7]
S v Kelly
1980 (3) SA 301
(A) at 311A – H.
[8]
See
S
v Teixeira
1980
(3) SA 755
(A) at 764A – B.
[9]
R v Bellingham
1955
(2) SA 566
(A) at 569, quoting
R
v Nhlapo
(AD
10 November 1952).
[10]
S v Sauls and
Others
[1981]
4 All SA 182
(A) at 187.
[11]
R v Abdoorham
1954 (3) SA 163
(N) at 165, as quoted in
S
v Sauls
supra
.
[12]
S v Shackell
2001 (2) SACR
(SCA) 185 para 30: it is permissible to test the accused’s
version against the inherent probabilities, but
it cannot be
rejected merely because it is improbable. It can only be rejected
based on inherent probabilities if it can be said
to be so
improbable that it cannot reasonably possible be true.
[13]
Van Aswegen
supra
.
[14]
2003 (1) SACR 134
(SCA) para 15. Also see
S
v Dlamini
2019
(1) SACR 467
(KZP) para 25.