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[2023] ZAECELLC 35
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S v Ugoka (CC72/2019) [2023] ZAECELLC 35 (17 November 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, EAST LONDON CIRCUIT COURT)
CASE
NO. CC72/2019
In
the matter between:
THE
STATE
and
PATRICK
UGOKA
ACCUSED
JUDGMENT
Rugunanan
J
[1]
The charge against the accused is one of rape in
contravention of
section 3
of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 32 of 2007
read with
section 94
of
the
Criminal Procedure Act 51 of 1977
. The State alleges that on
divers occasions between 2017 and September 2018, and in Cambridge,
East London, the accused unlawfully
and intentionally committed acts
of sexual penetration with MD, a girl aged 11 to 12 years, by having
repeated intercourse with
her per
vaginam
without her consent and against her will. The
trial commenced on 31 August 2021. The accused pleaded not guilty to
the charge. Save
to deny the allegations against him, the accused did
not tender a plea explanation.
[2]
Before closing its case, the State led the
evidence of 5 witnesses, namely: MD, Ms Okuhle Mapholoba, Ms Nomphelo
Nikelo, Ms Sivuyisiwe
Ugoka, and Ms Nomvuyo Makinana, a nurse.
[3]
MD testified through an isiXhosa speaking
intermediary. For the benefit of the accused, the evidence was
further translated into
Igbo by an interpreter. The accused had at
all times during the conduct of the proceedings been legally
represented, and although
at some point, the number of his legal
representatives on his defence team had altered, this had no material
effect on the conduct
of the proceedings.
[4]
At the close of the case for the State, the
defence brought an application for the discharge of the accused in
terms of
section 174
of the
Criminal Procedure Act.
[5
]
Section 174
of the Act provides:
‘
If,
at the close of the case for the prosecution at any trial, the court
is of the opinion that there is no evidence that the accused
committed the offence referred to in the charge or any offence of
which he may be convicted on the charge, it may return a verdict
of
not guilty.’
[6]
It
is well established that the words ‘no evidence’ do not
mean no evidence at all, but rather no evidence on which
a reasonable
court, acting carefully, might convict.
[1]
[7]
Under
the present constitutional order, the test as to whether a court
should grant a discharge at the close of the State’s
case is
sui
generis
–
it
entails a discretion by the trial court. It is a discretion, which
must, self-evidently, be exercised judicially having regard
to the
specific facts and circumstances of each case. The test is informed
by fair trial principles
[2]
.
[8]
In
S
v Lubaxa
[3]
the Supreme Court of Appeal discarded the contentious
pre-constitutional consideration that a discharge should be refused
in the
event of a reasonable possibility that the defence evidence
may supplement the State’s case.
[4]
The court maintained that to compel a full trial in the expectation
that an accused would incriminate himself where the State’s
evidence had failed to do so, was a violation of the constitutional
protection accorded to rights of dignity and personal freedom
that
were long recognised and embodied in common law principles.
Fundamental thereto is that there should be ‘reasonable
and
probable’ cause to believe that an accused is guilty of an
offence before a prosecution is initiated.
[9]
The court considered that the constitutional
protection accorded to dignity and freedom underpins this position.
Therefore, if a
prosecution is not to commence without that minimum
of evidence, it should cease when the evidence falls below that
threshold.
In that circumstance, where a conviction would no longer
be possible except if an accused incriminates himself, fairness
requires
that a trial should be stopped for it threatens to infringe
constitutional protection.
[10]
At
this stage of the proceedings, the credibility of the State witnesses
plays a very limited role. Their evidence can only be ignored
if ‘
it
is of such poor quality that no reasonable person could possibly
accept it’
.
[5]
This sentiment was also expressed in
S
v Agliotti
[6]
where the court considered it ‘
unwise
to attempt to banish issues of credibility’
in
a
section 174
application.
[11]
In
summarising the legal position regarding applications in terms of
section 174
the following considerations are of note:
[7]
(a)
An accused person is entitled to be discharged at the close of the
case for the State if there is no
possibility of a conviction other
than if he enters the witness box and incriminates himself;
(b)
In deciding whether an accused person is entitled to be discharged at
the close of the State’s
case, the court may take into account
the credibility of the State witnesses, even if only to a limited
extent;
(c)
Where the evidence of the State witnesses implicating the accused is
of such poor quality that it cannot
safely be relied upon, and there
is accordingly no credible evidence on record upon which a court,
acting carefully, may convict,
an application for discharge should be
granted.
[12]
It
is common cause that the only witness who implicates the accused is
MD. There is no cautionary rule in sexual assault cases
[8]
but MD is a child and a single witness. Her evidence must be
approached with caution, and if it is to be accepted it must be
credible
[9]
and it must be clear
and satisfactory in material respects
[10]
.
This does not mean that such evidence must be flawless and beyond
criticism. There is no rule of thumb test or formula to apply
when it
comes to a consideration of the evidence of a single witness. Despite
shortcomings or defects or contradictions, the court
must weigh the
evidence, consider its merits and demerits and having done so, it
must be satisfied that the evidence is trustworthy
in the sense that
the truth has been told.
[11]
[13]
Trustworthiness
depends on factors such as the child’s power of observation,
the power of recollection and the power of narration
on the specific
matter testified. 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.
[12]
[14]
It
is for these reasons that courts have repeatedly emphasised the need
that cases involving alleged sexual molestation of minor
children be
handled thoroughly and sensitively by all involved. The prosecution
of rape represents peculiar difficulties and calls
for greater care
where the victim is young. The State is required to give thoughtful
preparation, patient and sensitive presentation
of the available
evidence and meticulous attention to detail. For it is in the nature
of such cases that the available evidence
may be scant and many
prosecutions fail for that reason alone. In short, the State is
required to be technically proficient in
prosecuting its case.
[13]
[15]
Against this background, I will now proceed
to analyse the evidence.
[16]
To begin with, I intend dealing with the medical
evidence by Ms Nomvuyo Makinana. On 28 September 2018 she compiled a
J88 medical
report in respect of her gynaecological examination of
MD. The examination took place at the Thuthuzela rape crisis centre
at Cecilia
Makiwane hospital.
[17]
Following her gynaecological examination of
MD, Ms Makinana concluded that her ‘
findings
are consistent with old and fresh genital penetration, erosion of the
perineum and fresh laceration in posterior fourchette
with minimal
bleeding’.
[18]
Ms Makinana’s report is incorporated in a
certificate in terms of
section 212
(4) of the
Criminal Procedure
Act. She
signed the certificate in her capacity as a forensic nurse.
Of necessity, the introduction of her evidence meant that the State
was required to qualify her to give testimony as a skilled
individual, or differently stated – as an expert witness, by
ensuring that she was properly qualified and experienced.
[19]
A person falling into a specialised category of
skill is rendered competent to testify provided that a sound and
proper evidential
basis is laid in respect of the professional
qualifications and experience of the witness.
[20]
In
that regard, the Court in
Menday
v Protea Assurance Company Limited
[14]
laid
down the following principle governing the admissibility of expert
evidence:
‘
In
essence the function of an expert is to assist the court to reach a
conclusion on matters on which the court itself does not
have the
necessary knowledge to decide. It is not the mere opinion of the
witness which is decisive but his ability to satisfy
the court that,
because of his special skill, training or experience, the reasons for
the opinion which he expresses are acceptable…
However eminent
an expert may be in a general field, he does not constitute an expert
in a particular sphere unless by special
study or experience he is
qualified to express an opinion on the topic.’
[21]
As for her professional qualifications, Ms
Makinana stated that these include a qualification in General Nursing
Science, an Advanced
Diploma in Forensic Nursing, a qualification in
Community Nursing Science, and further qualifications in psychiatry
and midwifery.
In relation to her experience, she testified that she
has an accumulated 4 years’ experience as a forensic nurse and
approximately
17 years’ experience as a nurse. As for a
description of her duties she stated that she assesses rape victims
and collects
forensic evidence from patients who have been sexually
assaulted. No clinical detail was elicited as to what she meant by
assessing
rape victims and by collecting forensic evidence. This
evidence would have laid the foundation for assessing her experience
and
competency to conduct gynaecological examinations of rape victims
and to express an opinion on her clinical findings.
[22]
During argument it was specifically raised with
the State whether the certificate under
section 212
(4) was relied
upon in qualifying Ms Makinana as an expert witness. This was done
for the reason,
inter alia
,
that there are clear indications that the certificate has not been
fully completed. Sections which are required to be deleted
where they
are not applicable, have not been so deleted. The certificate also
contains a declaration to the effect that the findings
and
observations recorded on the form J88 were established by an
examination requiring skills in physiology and anatomy.
[23]
The State contended that it did not rely on the
certificate and submitted that the
viva
voce
evidence of Ms Makinana was
sufficient to qualify her as an expert witness. I disagree. The
anomaly in the State’s submission
is that the certificate which
includes the medical report was handed into evidence as an exhibit.
It is perplexing that the State
disavows reliance on one part of what
is after all a composite document, and then seeks reliance on another
part which expresses
a conclusion in support of the case it advances.
[24]
It is nowhere apparent in Ms Makinana’s
testimony that she is properly qualified and experienced, and
therefore rendered
competent to testify and express a conclusion
contingent upon skill in anatomy and physiology.
[25]
It will also be noted from the certificate that
she discloses what appears to be her professional registration
number, or perhaps
an employee number. She was not asked to clarify
this, much less was she asked whether she is affiliated to or enjoys
recognition
with a professional body as a registered forensic nurse.
Although testifying that she is stationed at Cecilia Makiwane
hospital,
the mere fact of being an employee in a state institution
cannot by judicial notice qualify her as an expert witness possessed
of the requisite credentials and experience.
[26]
The
short shrift approach, is that the State failed to lead sufficiently
cogent evidence of the witness’s experience. Nor
did it lead
any evidence to qualify her proficiency or competency in the
disciplines of physiology and anatomy. Where the witness
has not
pertinently stated that she is the holder of such qualifications, or
that she has experience in those specialities where
they are relevant
to gynaecological examinations of rape victims, this cannot be
inferred for the purpose of qualifying her competency
to testify as
an individual possessed of the requisite skill in those disciplines.
It is apposite to repeat what the Constitutional
Court stated in
MEC
for Health Eastern Cape and Another v Kirland Investments
[15]
:
‘
[T]here
is a higher duty on the state to respect the law, to fulfil
procedural requirements and to tread respectfully when dealing
with
rights. Government is not an indigent or bewildered litigant, adrift
on a sea of litigious uncertainty, to whom the courts
must extend a
procedure circumventing lifeline. It is the Constitution’s
primary agent. It must do right, and it must do
it properly.’
[27]
This
dictum
comes home to presenting evidence in a technically
proficient manner.
[28]
In matters of this nature the selective approach
to the qualification and presentation of expert testimony, requires
judicial officers
to be vigilant to ensure that specialised evidence
of the kind is properly presented and fairly placed before the court.
In the
circumstances, the failure to have led relevant evidence for
ensuring that Ms Makinana was properly qualified and experienced
and thus rendered competent, results in the medical evidence being
rendered inadmissible.
[29]
Focus shifts to the evidence of MD. A clinical
psychologist’s report was presented to the Court at the
commencement of the
trial to support an application that MD testifies
with the assistance of an intermediary. At the time of
the psychological
assessment MD was 13 years of age, and was 15
old doing Grade 7 when the trial commenced.
[30]
The report notes that her average range of
intelligence is low and that she functions intellectually and
cognitively at a developmental
age between 7 to 11 years.
[31]
Of
note, is that the report indicates that her thinking and reasoning is
logical about her own experience and that she is able to
describe her
experiences of the events in this case. The report also notes that
she is able to concentrate, to comprehend, and
to answer questions
satisfactorily. MD’s performance in court unfortunately came
nowhere close to this depiction in the psychologist’s
assessment. Notwithstanding recourse to a transcript in preparing
this judgment, it bears mentioning that no judgment can ever
be
perfect in detailing all the evidential material, and it does not
necessarily follow that what is not mentioned herein, has
not been
considered.
[16]
It is
therefore unnecessary to recapitulate and analyse the minute details
of MD’s testimony. It speaks for itself in lending
credence to
the findings in the ensuing paragraphs of this judgment.
[32]
While
demonstrating sensitivity to the fact that MD is a child, there is in
principle no basis to attach a lower standard of proof
or a less
exacting assessment of the evidence than in any other criminal case.
In
S
v DJ
[17]
the court appositely stated that to do so would be to expose accused
persons to a greater chance of unjust conviction than persons
in
cases in which the complainants are adults. There can be no warrant
for such a regime.
[33]
The indictment reduces to one count acts of sexual
penetration that were committed on diverse occasions in the period
2017 and September
2018.
[34]
The central tenet of MD’s evidence is that
the accused would perpetrate these acts in her mother’s absence
when he was
alone with her. On the State’s case, the year 2017
marks the starting point at which these incidents commenced but this
time
frame was not independently identified by MD. The record
reflects that it was impermissibly proposed to her by counsel for the
State when she testified in chief.
[35]
On the other end of the time spectrum, a medical
examination occurred on 28 September 2018. But with that evidence
being declared
inadmissible, there is no certainty of the period in
which the incidents occurred. This is due to the fact that it is not
entirely
clear from MD’s evidence whether there were two, or
three or perhaps even a fourth incident involving sexual penetration
by the accused. I am conscious of the fact that the charge speaks of
diverse occasions for the purpose of securing a conviction
on a
single count. One is, however, unable to determine with any degree of
certainty the frequency and circumstances in which these
incidents
occurred. The record reflects that MD testified about an incident on
the occasion when she wore a black hat, another
incident on the
occasion when a report was made directly to Ms Mapholoba when
apparently, her mother was at ‘Hemingways’,
and another
incident when the accused showed her ‘dirty things’ on
his cell phone, and a further incident in which
a CD was inserted
into a laptop. There is no clarity from MD about whether these
incidents occurred during the day or at night.
The record however
evidences an indication that it was impermissibly suggested to her
that one incident occurred during the evening.
[36]
MD also recounted an occasion when she came home
late from the library. To avoid being chastised by her mother she
retorted that
her mother should chastise the accused. In that vein
she disclosed previously being raped by the accused. It is not clear
from
the evidence if this incident MD disclosed to her mother was
circumstanced by MD wearing the black hat or if it happened when she
claimed to have viewed dirty things either on the accused’s
cell-phone or the laptop.
[37]
Attempting to sensibly isolate and individualise
these incidents is an impossibility and an exercise in speculation.
It is difficult
to extrapolate a clear picture and sequence of events
from MD’s evidence. This is because at some point MD gave a
narrative
which suggested that there were either one or two incidents
which bore the hallmarks of each of the other incidents. If one
speculates
and reduces everything to two incidents, or arguably even
perhaps one incident, a troubling aspect of MD’s testimony is
that
she stated that the accused penetrated her vagina while she was
wearing shorts. This was confirmed in cross-examination and similarly
during re-examination when she stated that the accused ‘inserted
it on top of the shorts’. Reducing it all to one count,
this
evidence flies in the face of two separate demonstrations using
anatomical dolls.
[38]
The record also evidences resentment or hatred by
MD for the accused due to her suspicions that he assaulted or
ill-treated her
mother. He is her stepfather, and this brings to
light a motive behind her reason for pointing a finger at the accused
as being
the perpetrator of the offences against her. Objectively
considered, it follows that MD may have a reason to narrate
incongruent
versions about the accused’s conduct.
[39]
Adverting
to the evidence of the remaining witnesses, namely; Ms Mapholoba, Ms
Nikelo and MD’s mother Ms Ugoka, their evidence
is entirely
circumstantial to the events in question. Where the medical evidence
was the only evidence which would have objectively
corroborated MD,
and such evidence has been found to be inadmissible, it cannot be
argued that the reports and level of detail
volunteered by MD to
these witnesses about how the alleged rapes were perpetrated
corroborates the version of MD where she could
not even in the most
simplest of terms volunteer such information in a lucid manner. It
must immediately be emphasised that by
corroboration is meant other
evidence which supports the evidence of MD. Put otherwise, it must be
evidence implicating the accused.
A repetition of what MD may have
reported to these witnesses, whether they testified thereto orally or
whether contained in police
statements, must be weighed against MD’s
resentment of the accused and cannot furnish corroboration –
but can at most,
prove consistency – and proof of consistency
is not the equivalent of corroboration.
[18]
Where the cross-examination of these witnesses may not have placed
certain aspects of their narrative testimony seriously in dispute,
it
would be absurd to hold that their evidence corroborates that of MD
on the simplistic basis that it is common cause.
[40]
I am not oblivious of the pressures put on
witnesses in a courtroom, nor of the trauma attendant on victims of
sexual assault. Neither
Ms Mapholoba nor Ms Ugoka impressed me.
[41]
Ms Mapholoba had an affair with the accused and
the relationship curdled. She was an inflexible witness who had a
motive to give
evidence against the interest of the accused. As for
Ms Ugoka, her faint pleas that she feared for her safety and was
concerned
about MD were a veiled attempt to win sympathy with the
Court.
[42]
And lastly, as for Ms Nikelo, the landlady on
whose premises the Ugoka family rented a flat, the information which
she acquired
about the alleged rape was reported to her by Ms Ugoka
and MD. Her evidence for reasons already mentioned does not
corroborate
MD with the degree of persuasion that implicates the
accused. It emerged in cross-examination of this witness, which she
confirmed,
that she suggested to MD that the accused inserted his
‘thing’ into MD’s vagina.
[43]
In my assessment of the matter, the overall
unsatisfactory nature of the evidence by MD cannot be excused. On her
own failing, MD
was unable to express intelligent answers to the most
simple of questions. This led to the State repeatedly having to prod
her
for answers which in most instances were rarely intelligibly
forthcoming and at times were put forward after lengthy pauses in the
record.
[44]
Where satisfactory responses were forthcoming,
this was in response to suggestive questioning
[45]
In
dealing with MD, more attention ought to have been paid to the detail
and timing of the alleged instances of sexual penetration.
All of
this has implications for the factual matrix upon which the accused
is expected to answer to the charge against him. In
the
circumstances, this Court exercises its discretion to curtail a
superfluous process.
[19]
[46]
On an overall assessment of the evidence presented
by the State, there is no evidence on which a reasonable court,
acting carefully,
might convict.
[47]
While the accused enjoys the benefit of a reprieve
on legal grounds, it is emphasised that there appears to have been
something
seriously and morally disturbing in the Ugoka household.
[48]
But despite my own subjective views on the matter,
to expect the accused to answer the allegations against him would
detract from
his right to silence or the protection against
self-incrimination.
[49]
One has sympathy for MD, but that cannot be
allowed to circumvent or tread roughshod over what the authorities
referenced in this
judgment expect courts to do.
[50]
In the circumstances I make the following order:
1.
The application in terms of
section 174
of the
Criminal Procedure Act 51 of 1977
is granted.
2.
The accused is found not guilty and discharged.
S RUGUNANAN
JUDGE OF THE HIGH
COURT
Appearances:
For
the State:
S
Mgenge,
Office of the Director of Public Prosecutions,
Makhanda.
For
the Accused:
D
Skoti
, Instructed by Mgudulwa Attorneys, East London.
Dates heard:
31 August 2021; 1 September 2021; 2, 3, 4, 7, 8, 9, 10 February
2022;
29 March 2022; 19 September 2022; 4 October 2022; 11 April 2023;
13 April 2023; 7 August 2023; 13 November 2023; and
17 November 2023.
Date delivered:
17 November 2023.
[1]
R v
Shein
1925
AD 6
;
Rex
v Herholdt & Others
1956 (2) SA 722
(W);
S
v Mpetha & Others
1983 (4) SA 262
;
S v
Shuping & Others
1983 (2) SA 119
(B); S v Lubaxa 2001 (2) SACR 703 (SCA).
[2]
S v M
[2016]
ZAFSHC 41
para 16.
[3]
2001 (2) SACR 703
(SCA) para 19.
[4]
S v
Shuping supra
at
120-121A.
[5]
S v
Mpetha
supra
at 265 D-G.
[6]
2011 (2) SACR 437
(GSJ) at 457
b
.
[7]
S v
Dewani
[2014]
ZAWCHC 188
para 15.
[8]
Y v S
2019
(2) SACR 613
(WCC) para 49 in which the following dictum in
S
v Jackson
1998
(1) SACR 470
(SCA) at 476 is quoted with approval: ‘In my
view, the cautionary rule in sexual assault cases is based on an
irrational
and outdated perception. It unjustly stereotypes
complainant's in sexual assault cases (overwhelmingly women) is
particularly
unreliable. In our system of law, the burden is on the
state to prove the guilt of an accused beyond reasonable doubt –
no more and no less. The evidence in a particular case may call for
a cautionary approach, but that is a far cry from the application
of
a general cautionary rule.'
[9]
CB v
The State
[2020]
ZAWCHC 67
paras 21-21;
[10]
Y v S
supra
para
50.
[11]
ICM v
The State
[2022]
ZASCA 108
para 22.
[12]
Y v S
supra
para
51 wherein reference is made to
Woji
v Santam Insurance Company Ltd
1981 (1) SA 1020
(A) at 1021.
[13]
Y v S
supra
paras
4 and 51 wherein reference is made to
Matshivha
v S
[2013]
ZASCA 124
para 24; see also
CB
v The State supra
para 18.
[14]
1976 (1) SA 565
(E) at 569.
[15]
MEC for
Health Eastern Cape and Another v Kirland Investments (Pty) Ltd
2014 (3) SA 481
(CC) para 50.
[16]
ICM v
The State
[2022]
ZASCA 108
para 40.
[17]
2019 (2) SACR 613
(WCC), quoted in
CB
v The State supra
para 20.
[18]
CB v
The State supra
para 25.
[19]
S v
Dewani supra
para
14.