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[2024] ZAKZPHC 28
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Mbotho v S (AR12/2023) [2024] ZAKZPHC 28 (28 March 2024)
SAFLII
Note: Certain personal/private details of parties or witnesses
have been redacted from this document in compliance
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Policy
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR12/2023
In
the matter between:
MDUDUZI
PETROS LUNGUSANI MBOTHO
Appellant
and
THE
STATE
Respondent
ORDER
On
appeal from:
Durban Regional Court (sitting as court of first
instance):
1. The
appeal is upheld.
2. The
conviction and sentence are set aside.
JUDGMENT
Veerasamy
AJ (Chili J concurring)
[1]
On 25 November 2020, the appellant was convicted of contravening the
provisions of section
3 read with
sections 1
,
56
(1),
57
,
59
,
60
,
61
of the
Criminal Law (Sexual Offences and Related Matters) Amendment
Act 32 of 2007
, read with the provisions of
section 51
, and
Part 1of
Schedule 2 of the Criminal Law Amendment Act105 of 1997.
[2]
The appellant had been charged with unlawfully and intentionally
committing an act of sexual
penetration with a minor female child,
who at the time was 10 years old, by inserting ‘
his genital
organ into her genital organ on diverse occasions’
. He was
subsequently sentenced to 20 years imprisonment.
[3]
The appellant appeals both his conviction and sentence.
[4]
During the trial, the State called four witnesses. The first witness
was the complainant,
the minor child. She testified that at the time
of the alleged incident she lived with her mother, her four-year-old
brother, and
the appellant, who she called her step-father.
[5]
She could not recall the exact date when the incident had occurred
but could recall that
it had happened in 2019 at the beginning of the
year, since she was already going to school. She testified that she
lived together
with her family and the appellant in a one-roomed
house where the appellant and her mother slept on a bed, and she
slept on the
floor on a sponge mattress.
[6]
On the day of the alleged incident, her mother had gone to
Emalangeni, and it was just the
appellant and her at home. She
testified that, during the night, while she was asleep on her sponge
mattress, the appellant woke
up and came down off his bed. She did
not see him do so but saw a person standing up. The person who was
standing up climbed on
top of her and thereafter inserted his penis
into her vagina. She testified that when she woke up, he ran away.
[7]
Under examination in chief, she stated that once the alleged rape had
occurred, she moved
as she wanted to talk the person who had run back
to the bed. She then testified that she spoke to the appellant who
advised that
no-one had entered the room. He then woke up and
proceeded to leave for work.
[8]
She testified that the room in which they all slept was locked and
she saw the appellant
opening the door with a key before leaving the
room. All of the windows in the room were closed. After the appellant
had left for
work, she bathed herself and went to school. When she
came back home, she attended to her chores and then went out to play
with
her friends.
[9]
She thereafter testified that on day following the incident (which
was a Saturday) she was
in the room watching TV with her younger
brother and the appellant. When her younger brother left the room to
go and play with
his friends, the appellant requested that she have
intercourse with him. She testified that the appellant locked the
door and took
her to the bed. He undid his belt and took off her
underwear. She was able to push him off and tried to run out of the
room. The
complainant then testified that the appellant threatened
her, but she eventually was able to get out of the room and only
returned
when her mother came back home.
[10]
She testified that the appellant had inserted his penis into her
vagina either one or two times, and only
on one occasion. She did not
tell her mother of the incident because she was afraid.
[11]
The complainant finally told her aunt, Ms Z[...] P[...] M[...], about
the incident. Ms M[...] had enquired
from the complainant as to why
she was walking peculiarly when the complainant came out of the
toilet. On inspection, her aunt
found that there were ‘
worms
’
in and around the complainant’s vagina. When her aunt saw the
‘worms’ and enquired as to what had happened,
the
complainant advised her of the rape.
[12]
The complainant’s aunt took her to the Mshiyeni Hospital where
she was examined and given medication.
[13]
Under cross-examination, the complainant testified that the only time
she woke up (during the rape) was when
she felt the movement of her
assailant on top of her. When her assailant ran away, she testified
that she enquired from the appellant
as to who had been in the room.
[14]
The next witness called by the State was the complainant’s
aunt, Ms M[...]. Ms M[...] was unable to
contribute to the evidence
as she had merely been told by complainant that she had been raped
and had escorted her to hospital.
None of her testimony established
any elements of the charge proffered against the appellant.
[15]
The third witness called by the State was Dr Zaheed Aziz Khan. Dr
Khan had conducted the examination of the
complainant at hospital. Dr
Khan examined the complainant on 4 May 2019.
[16]
Dr Khan testified that during his general observation, he did not
notice any extra genital injuries on the
complainant. On the
gynaecological examination, the only finding he could make was of a
yellow offensive discharge emanating from
the complainant’s
genitalia. Dr Khan advised that offensive is a term used to
demonstrate an infectious aetiology, being
an infection causing the
discharge. If the discharge was in-offensive it would not be related
to an infection.
[17]
Dr Khan testified that such discharge was more commonly related to a
fungal infection but it also could be
bacterial infection. He further
testified that such a discharge was normal for children of the
complainant’s age in circumstances
where they did not clean
their genitalia properly or did not wipe properly when they used the
latrine.
[18]
During his examination in chief, Dr Khan’s evidence was that
there were no genital injuries to the
complainant. He treated the
complainant for the infection which she was suffering from.
[19]
Under cross-examination, Dr Khan confirmed that there was no
penetration according to his examination. He
further confirmed that
he did not notice any worms coming out of the complainant’s
genitalia and if he had seen same, he
would have documented same. He
treated the complainant for vaginitis. He further confirmed that the
discharge, which the complainant
was experiencing, was not related to
any sexually transmitted infection.
[20]
The fourth witness to testify was the complainant’s mother.
Equally, her evidence could cast no light
on the alleged incident, as
she was not present. She could merely inform the court that she had
been advised that the complainant
had been raped.
[21]
Upon the closing of the State’s case, the appellant testified.
[22]
His evidence quite simply was that he had not raped the complainant
and that she had been coerced into alleging
same by her aunt, Ms
M[...].
[23]
In order to succeed in an appeal, the appellant must convince this
court, on adequate grounds, that the trial
court was wrong in
accepting the evidence of the State and rejecting his version as
being reasonably possibly true. The court
a quo
was confronted
with a single witness, being the complainant. None of the evidence of
the further witnesses could lend any value
to proving the charge
proffered against the appellant.
[24]
A court of
appeal will not interfere with a trial court’s decision
regarding conviction unless it finds that the court misdirected
itself as regards its findings or on fact or law.
[1]
[25]
The headnote in
S v Francis
summarises the above as follows:
‘
In
the absence of any misdirection the trial Court's conclusion,
including its acceptance of a witness' evidence, is presumed to
be
correct. In order to succeed on appeal, the appellant must therefore
convince the Court of appeal on adequate grounds that the
trial Court
was wrong in accepting the witness' evidence - a reasonable doubt
will not suffice to justify interference with its
findings. Bearing
in mind the advantage which a trial Court has of seeing, hearing and
appraising a witness, it is only in exceptional
cases that the Court
of appeal will be entitled to interfere with a trial Court's
evaluation of oral testimony
.’
[2]
[26]
The court
a quo
found that the room in which the
complainant and the appellant were in was locked at the time of the
alleged rape and that they
were the only two people in the room. The
court accepted the evidence of the complainant that there was a man
who committed the
rape and ran to the bed where the appellant was
lying. The court
a quo
rationalised that the complainant had
to have been raped by the appellant, being the only other person in
the room. Thus, the court
a quo
found that the State had
proved its case beyond a reasonable doubt.
[27]
The complainant’s evidence is somewhat problematic in that,
despite the appellant being known to her,
she could not identify him
as the person who was allegedly on top of her at the time of the
rape. In fact, the complainant gave
no descriptive commonalities
between the appellant and the person who raped her.
[28]
At the time that the alleged rape occurred, the complainant did not
harbour any notion that she had been
allegedly raped by the
appellant. In fact, she went to the appellant who was sleeping on the
bed to enquire who else was in the
room.
[29]
No explanation was given by the complainant as to why she did not or
could not identify the appellant as
the person who was on top of her
at the time of the incident. From her evidence, the complainant saw
the person standing up and
saw the person who had climbed on top of
her. She saw the naked person insert his penis into her vagina.
However, there is no explanation
as to why, whilst looking at this
person, she did not recognise this individual as being the appellant.
[30]
Further, there was no evidence of penetration. The evidence of Dr
Khan was that no penetration had in fact
occurred. This contradicts
the complainant’s version that a penis had been inserted into
her vagina, not only once, but on
three diverse occasions according
to the report she made to her aunt, Ms M[...].
[31]
When assessing the evidence, it is imperative to evaluate all of the
evidence and not be selective in determining
what evidence to
consider. The State’s case was wholly reliant on the evidence
of the complainant.
[32]
In
S
v Stevens,
[3]
the Supreme Court of Appeal held:
‘
As
indicated above, each of the complainants was a single witness in
respect of the alleged indecent assault upon her. In terms
of s 208
of the Criminal Procedure Act, an accused can be convicted of any
offence on the single evidence of any competent witness.
It is,
however, a well-established judicial practice 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 (see, for example,
S v Webber
1971 (3) SA
754
(A) at 758G-H). The correct approach to the application of this
so-called “cautionary rule” was set out by Diemont JA
in
S v Sauls and Others
1981 (3) SA 172
(A) at 180E-G as follows:
“
There is no rule
of thumb test or formula to apply when it comes to a consideration of
the credibility of the single witness (see
the remarks of Rumpff JA
in
S v Webber
. . .). 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 or defects or contradictions in the testimony,
he is
satisfied that the truth has been told. The cautionary rule
referred to by De Villiers JP in 1932 [in
R v Mokoena
1932 OPD
79
at 80] 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 were well-founded’
(per Schreiner JA in
R v Nhlapo
(AD 10 November 1952) quoted
in
R v Bellingham
1955 (2) SA 566
(A) at 569.) It has been
said more than once that the exercise of caution must not be allowed
to displace the exercise of common
sense.”’
[33]
In order to
rely on the evidence of the complainant, the court must be satisfied
that their evidence is trustworthy. In
Maila
v S
[4]
the Supreme Court of Appeal held the following:
‘
The
evidence in this case was based on the evidence of a single witness,
the complainant. Apart from being a single witness to the
act of
rape, the complainant was a girl child, aged 9 years at the time of
the incident. For many years, the evidence of a child
witness,
particularly as a single witness, was treated with caution. This was
because cases prior to the advent of the Constitution
(which provides
in s 9 for equality of all before the law) stated
inter
alia
that a child witness could be
manipulated to falsely implicate a particular person as the
perpetrator (thereby substituting
the accused person for the real
perpetrator). To ensure that the evidence of a child witness can be
relied upon as provided in
s 208 of the CPA, this Court
stated in
Woji v Santam Insurance
Co Ltd
, that a court must be
satisfied that their evidence is trustworthy. It noted factors which
courts must take into account to
come to the conclusion that the
evidence is trustworthy, without creating a closed list. In this
regard, the court held:
“
Trustworthiness
.
. . depends on factors such as
the
child’s power of observation
, his
power of recollection, and his power of narration on the specific
matter to be testified. . . . His capacity of observation
will depend
on whether he appears ‘intelligent enough to observe’.
Whether he has the
capacity of
recollection
will depend again on
whether he has
sufficient years of
discretion ‘to remember what occurs’
while
the
capacity of narration or
communication
raises the question
whether the child has the ‘
capacity
to understand the questions put, and to frame and express intelligent
answers
.’”’ (Emphasis
in original, footnotes omitted)
[34]
The evidence of the complainant could not be considered as being
trustworthy, which was held as being
necessary by the Supreme
Court of Appeal in both
Stevens
and
Maila
. She could
not observe her assailant and had no manner of describing the
appellant as being the assailant, notwithstanding looking
at the
person who is alleged to have committed the offence.
[35]
The Supreme Court of Appeal has held that
‘
A
court is not entitled to convict unless it is satisfied not only that
the explanation is improbable but that beyond any reasonable
doubt it is false. It is permissible to look at the probabilities of
the case to determine whether the accused's version is reasonably
possibly true but whether one subjectively believes him is not the
test.’
[5]
[36]
The appellant’s version in these proceedings is simple –
he did not rape the complainant. He
believes that she was coerced
into laying this complaint against him.
[37]
The complainant’s evidence is significantly undermined by the
fact that she had looked at her assailant
and could not identify him
as the appellant. Further to the above, there was no evidence of rape
of the complainant during her
gynaecological examination.
[38]
Having given proper and due consideration to all circumstances, this
court finds that the trial court misdirected
itself in convicting the
appellant for the offence of rape.
[39]
We are of the view that the State has not succeeded in proving its
case beyond a reasonable doubt, especially
in light of the
probabilities and inherent circumstances of this case.
[40]
Accordingly, we are of the view that the State did not discharge its
onus of proving beyond a reasonable
doubt that the appellant raped
the complainant.
[41]
In the circumstances, the appeal should succeed, and the conviction
and sentence accordingly set aside.
Order
[42] I
therefore make the following order:
1. The
appeal is upheld.
2. The
conviction and sentence are set aside.
Veerasamy
AJ
I
concur, and it is so ordered.
Chili
J
HEARD
ON:
22
March 2024
JUDGMENT
DATE:
28
March 2024
FOR
THE APPELLANT
TP
Pillay
INSTRUCTED
BY:
Local
Office – Legal Aid South Africa
FOR
THE RESPONDENT:
Adv
SM Miloszewski
INSTRUCTED
BY:
Director
of Public Prosecutions
[1]
R
v Dhlumayo and another
1948 (2) SA 677
(A).
[2]
S
v Francis
1991
(1) SACR 198
(A) at 198j-199a.
[3]
S
v Stevens
[2005] 1 All SA 1
(SCA) para 17.
[4]
Maila
v S
[2023]
ZASCA 3
para 17.
[5]
S
v V
2000
(1) SACR 453
(SCA)
para 3(i) at 455a-b.