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[2011] ZASCA 43
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Biyela v S (859/10) [2011] ZASCA 43 (29 March 2011)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no
:
859/10
In the matter between:
BONGI BIYELA
...........................................................................................
Appellant
and
THE STATE
............................................................................................
Respondent
Neutral citation:
Bongi Biyela v The State
(859/10)
[2011] ZASCA 43
(29 March 2011)
Coram:
CLOETE JA, SHONGWE JA AND TSHIQI JA
Heard: 14 February 2011
Delivered: 29 March 2011
Summary:
Rape – Sexual intercourse with a girl under the
age of 16 – Apparent age pleaded – Actual age not
proven
by the state – Injuries also not conclusive –
Court faced with two mutually destructive versions – No basis
to reject accused’s version.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
North Gauteng High Court, Pretoria (Bertelsman
and Matojane JJ sitting as court of appeal):
The appeal succeeds. The conviction and sentence are set aside.
JUDGMENT
TSHIQI JA (CLOETE AND SHONGWE JJA concurring)
This appeal concerns two issues. The first issue
is whether the sexual intercourse between the appellant and the
complainant was
consensual. The second issue is whether the
appellant had the requisite mens rea when he engaged in sexual
intercourse with the
complainant, a girl under the age of 16 years.
1
The appellant was charged in the Regional Court, Pretoria, for
having raped the complainant, alleged to have been a 15 year old
girl. He pleaded not guilty. He admitted in terms of
s 220
of the
Criminal Procedure Act 51 of 1977
, that he did have sexual
intercourse with the complainant but pleaded that it was consensual
and further that he was under the
impression that she was between 18
and 20 years old.
The appellant was convicted and sentenced to 15
years’ imprisonment. He appealed to the North Gauteng High
Court against
both the conviction and sentence. His appeal (per
Bertelsman and Matojane JJ) was dismissed. In dismissing the appeal,
the court
below tabulated five factors that in its view,
cumulatively dispelled any doubt on the reliability of the evidence
of the complainant.
These will be considered at length herein below.
The present appeal is brought with leave of this court. Because the
appellant
was in custody and because there appeared to have been a
miscarriage of justice, the President ordered that the record of the
proceedings and the heads of argument in the court below should be
lodged with this court immediately and could be supplemented
in due
course if necessary. The appeal was argued on 14 February 2011. This
court upheld the appeal, set his conviction and sentence
aside and
stated that the reasons would follow. The order was issued urgently
because it became apparent that the continued detention
of the
appellant, as a result of the present conviction and sentence, was
not in the interests of justice.
2
This judgment contains the reasons for the order.
The sexual intercourse between the appellant and the complainant
took place in an outside room at the appellant’s home
in
Mamelodi West, Pretoria, in the early hours of the morning, on 29
June 1997 around five am. The previous evening both the
appellant
and the complainant had gone to two night clubs together with four
other friends, in the appellant’s motor vehicle.
The four
friends were: two females, the complainant’s cousins and two
men, their respective boyfriends. There was no existing
intimate
relationship between the appellant and the complainant when they
left their respective homes in Mamelodi. The complainant
had joined
the group with the blessing of her aunt, her mother’s sister,
Sharon who had asked the two cousins to take care
of her. She was
allowed entrance into both clubs and was not questioned about her
age.
In communicating what had occurred from the time the group arrived
at the second club until the sexual intercourse took place,
the
complainant was at pains to paint a picture suggesting that she was
not acquainted with the appellant and had no desire to
do so. She
stated that at the second club she simply sat and talked to her
cousins. According to her nothing happened between
her and the
appellant. According to the appellant, on the other hand, a close
relationship started developing between him and
the complainant at
this club. He stated that they talked and danced and that he even
professed his love for her. His version
was corroborated by one of
the state witnesses Given Makhanya, the boyfriend of one of the
cousins and was further corroborated
by Tony Letswalo, the other
cousin’s boyfriend, who testified as a defence witness. Her
version was not corroborated.
Makhanya’s version of what happened at the club was as
follows:
‘
We
then entered into the said nightclub and then we started to jive and
then we were seated at that time two by two.
Just a minute. At what time did
you leave Jamini? --- We did not in fact stay at Jamini because the
girls said that the place was
boring.
Yes, and then? --- And then we
grooved, enjoy ourselves and Bongi was busy then speaking to this
Refilwe and she had all the time
she was just enjoying herself
dancing, Bongi embraced her’.
Letswalo’s version was as follows:
‘
Bongi
and Refilwe enjoyed themselves. They were talking and dancing with
each other. They even hugged each other’.
After leaving the club, according to Makhanya and Letswalo, the
complainant requested to drive the appellant’s motor vehicle.
They did not accede to her request and Makhanya drove the vehicle.
This in itself is unusual if her version is true. It is unusual
that
she would request to drive a vehicle belonging to someone she met on
that day for the first time and with whom she was not
acquainted.
Her behaviour in that regard is rather consistent with the version
by Makhanya and Letswalo which suggests that on
the contrary, she
was close and comfortable with the appellant at the club.
It is not in dispute that after the group arrived back in Mamelodi,
the two cousins and their boyfriends alighted and both the
appellant
and the complainant remained in the vehicle. They are the only
witnesses who could testify as to what occurred thereafter.
According to the complainant, she was asleep in the car when they
travelled back to Mamelodi. She did not see the appellant dropping
off her cousin Sharon and her boyfriend but only woke up when the
appellant was dropping off the second couple in Mamelodi West.
She
asked them not to leave her in the car with the appellant and asked
the appellant to drop her at her home in Mamelodi East.
The
appellant refused and said that he would not be coming back to
Mamelodi West to drop off the couple but that he intended
to drop
the complainant at her home in Mamelodi East at a later stage.
The appellant’s home was in Mamelodi West. If he had indeed
intended to drop the complainant at her home in Mamelodi East,
and
then go back to his own home, he would have had to go back to
Mamelodi West. It is incomprehensible how he would have said
that he
would not return to Mamelodi West after dropping off the
complainant. It is also strange that both her older cousins,
who had
been asked to take care of her, left her in the car alone with the
appellant and did not question the fact that the appellant
dropped
them off first in Mamelodi West. The probable inference, I dare to
venture, is that already that stage, it was clear
to everyone in the
group that the complainant chose to remain with the appellant in his
motor vehicle.
After the appellant had dropped off the second cousin and her
boyfriend, the complainant was left alone in the vehicle with the
appellant. They proceeded to a petrol filling station. According to
her it was at the filling station that he told her that he
could not
take her home because he had to go to work. She stated that there
were petrol attendants at this filling station and
also agreed in
response to the prosecutor that she did not inform them that the
appellant did not want to take her home. Apart
from the fact that
she did not raise the appellant’s change of heart with any of
the petrol attendants, she also did not
ask the appellant to leave
her there or simply get out of the car. It does not seem that she
made an issue at all about the appellant’s
sudden change of
heart. Her behaviour is inexplicable. She had the perfect
opportunity to either leave his car and seek assistance
or shelter.
Strangely, she did neither.
After they left the filling station they proceeded to the
appellant’s home. She stated that at the gate she again asked
the appellant to take her home. He refused and told her he would
take her home in the morning. Her account of what occurred at
the
gate, and why she did not escape whilst the appellant was busy
opening the gate, leaves one with a distinct impression that
she did
not intend to do so. At best her evidence in that regard is vague.
Initially, she stated that the appellant stopped her whilst she was
trying to get out of the car by holding her and took out
a knife and
stated his intention to use it if she did not co-operate. When
questioned whether they were in or outside the car
at this stage she
stated that they were inside the car and she was trying to get out.
It is not clear what she meant when she
said she was trying to get
out of the car. She stated that he turned around and grabbed her
hand. She then stated that she then
got in the car and the appellant
locked it. It is not clear at what stage she got out of the car,
because earlier on she had
stated that they were not outside but
inside when he restrained her from trying to get out of the car.
Her further evidence is that the appellant left the car and went to
open the gate. Her evidence on why she did not open the door
and run
or scream for help is again confusing and vague. She initially
stated that after he left the car to open the gate he
did not lock
the doors again. When asked what she did when the appellant was
opening the gate she again stated that she was trying
to get out of
the car. Later on she suggested that the car was locked. She was
clearly undecided whether to state that the door
was locked or
unlocked.
Even if one accepts in the complainant’s favour that the doors
were locked while she remained in the car, there is no explanation
why she failed to simply open the doors and get out. There was no
evidence that it was not possible to open the locked doors
from
inside. The only inference is that she simply sat in the car and
failed to utilise yet another opportunity she had to escape
from the
car, or alert neighbours or the occupants inside the appellant’s
home that she was being held against her will.
Her evidence does not
explain this failure.
Another opportunity for the complainant to escape or seek assistance
presented itself when according to the complainant the appellant
left her alone in the room and went to an outside toilet. Again her
evidence is vague. She initially stated that she tried to
scream.
When asked how she tried to scream she stated that she did so by
shouting ‘Help.’ This she did whilst standing
somewhere
in the room. She could not explain why she did not go to open a
window and scream. Her response was that she did not
think of doing
so. She was confronted with a version she had given in another court
where she had stated that she did not scream
because she had flu (it
seems that the proceedings had commenced before a different
magistrate and had started de novo before
the one who convicted the
appellant). She could not explain this contradiction but simply
responded that she did scream.
What is uncontroverted is that the lights in the main house were on
when the appellant parked the car inside the yard. The question
why
the complainant did not regard this as a possible sign that there
were people in the main house, who could possibly come
to her
assistance, remained unresolved.
Then there is the layout of the appellant’s home. The
uncontroverted evidence of the appellant suggests that the yard was
small and that his room was close to the main house. His room was
also close to another room occupied by his cousin. These rooms
were
separated by a toilet which was built in between the two rooms and
the doors of these rooms faced each other. At such a
close
proximity, either the cousin or the mother would have heard the
complainant had she attempted to seek their attention.
The complainant left the appellant’s home that same morning.
The appellant gave her money for transport and she left for
home.
After she reported that she had been raped by the appellant, she was
accompanied to the police station and was referred
to Dr Rubeira, a
district surgeon. The appellant was later arrested at his home.
Dr Rubeira testified during the trial and was cross-examined at
length on her clinical findings. Her completed medical report
(J88)
reflected ‘age or apparent age’ as ’15 years’
and noted the complainant’s general health,
physical and
mental state as follows:
‘
Build
was consistent with age. Mental state-depressed. General
health-good’.
It further stated that the following was noted on examination:
‘
Urethral
area red. Hymen torn & bulging. Post fourchette with abrasion.
Digital exam-painful. Patient bleeding. The above injuries
are
consistent with those caused by forced entry’.
In his judgment the magistrate relied on the
contents of the J88 and the evidence of Dr Rubeira to support his
conclusion that the
complainant was indeed raped. In doing so the
magistrate misconstrued the evidence of the doctor in two respects.
The first area
of misdirection pertains to the age of the
complainant. The age of the complainant was crucial because the
appellant was faced
with a competent verdict of having had sexual
intercourse with a girl under the age of sixteen years ie ‘statutory
rape’.
3
From the onset the appellant disputed the age of
the complainant. His legal representative informed the court that he
would testify
that her apparent age was 18 to 20 years. He confirmed
this to the court.
In his summation of this evidence, the magistrate states that ‘she
indicated that she observed that this youngster was
15 years of age,
and not only that, she indicated further that the 15 years she
observed, or which was revealed to her was [consistent]
with the
build of the complainant’. With respect to the magistrate,
this was not the evidence of the doctor. What occurred
was that the
J88 was introduced into evidence. The doctor was taken through what
she had recorded in the J88. No attempt was
made to ask her to
explain what she meant pertaining to the age vis-a-vis the bodily
frame of the complainant. She was also not
specifically asked to
express her opinion on her age. No other expert evidence was led to
verify her age. Instead the learned
magistrate persisted with his
view, based on his observation that the complainant was ‘small’
and ‘frail’.
In this regard he erred.
Where proof of age is essential to the guilt of
an accused, the court
has
to be satisfied beyond a reasonable doubt on this score.
4
In terms of s
337
of the
Criminal
Procedure Act
5
the
court can estimate the age of a person
in criminal proceedings only if no or
insufficient evidence is available at the
proceedings. In this matter
s 337
was not
applicable because the district
surgeon was available.
6
What posed a further complication in this matter was the fact that
the complainant was close to attaining the age of 16. She
was born
on 8 August 1981 and was thus 15 years and two months old on 29 June
1997. She was clearly a border-line case.
Proof of the complainant’s date of birth was not the only
problem. The other bone of contention was her apparent age. The
appellant persisted in stating that the complainant appeared to him
to be older than 16. Both Makhanya and Letswalo also persisted
in
this fashion. Makhanya insisted that the complainant appeared to be
18 years old to him at the time. Even when the magistrate
repeated
his assertion and stated that in his observation ‘she is
frail. She cannot be 18, 19. I saw her this year in 2001,
not in
1997 when she was far much younger’. Makhanya responded to
this assertion and stated that:
‘
But
according to my judgment as I saw her there she appeared to me to be
18’.
Letswalo, also testified that he estimated the complainant’s
age to be 17 to 20 years. In addition to this he stated that
she was
wearing make-up ie mascara and red lipstick. His further evidence,
apparently to support his view, was that his own girlfriend
was 19
years old and the night club only allowed 18 year olds entrance.
Both these witnesses found it necessary to mention that the
complainant had asked to drive the car after they left the second
night club to drive back to Mamelodi. Her request would have
suggested to the appellant
that
she was old enough to have acquired a driver’s license or at
least a
learner’s
license.
The magistrate further criticised the fact that Letswalo’s
evidence, stating that the complainant was wearing make-up,
was not
put to the complainant during her cross-examination. This criticism
was unwarranted. The appellant’s legal representative
did not
anticipate that Letswalo would testify. He reserved the right to
call him only if the State chose not to call him, and
that is how
Letswalo ended up testifying as a defence witness. At the time he
testified, the complainant had already testified.
An accused may escape liability for engaging in
sexual intercourse with a girl under the age of 16 years if he can
prove that
he was deceived as to the age of the girl; either by the
girl or by a person in whose charge she was.
7
The deception may be by words, conduct or
appearance (R v T).
8
The accused must prove on a balance of
probabilities that he was deceived, whether inadvertently or
fortuitously.
9
Several factors must, in my view, be taken in favour of a finding
that the appellant was deceived about the complainant’s
age.
The person in charge of the complainant on the day permitted her to
go to a night club with older girls and their boyfriends.
She wore
make-up and she was allowed entry into both clubs. In the club she
enjoyed herself, danced and kept the company of the
appellant. She
asked to drive the appellant’s motor vehicle. Her appearance
and behaviour, cumulatively, could quite easily
have deceived the
appellant. There is therefore no basis to reject his evidence that
he was
deceived.
The other misdirection by the magistrate pertains to the nature of
the injuries sustained by the complainant. In his further
analysis
of Dr Rubeira’s evidence the magistrate states that ‘but
she affirmed her observation that the injury will
only be caused by
forceful penetration’. That is not what the doctor said. Her
testimony was the following:
‘
Now
doctor, assuming hypothetically of course that there was penetration
which was not forceful, would you still have the same abrasions?
---
You could. You could have’.
She confirmed this during cross-examination and stated:-
‘
You
already indicated that one cannot make the only inference that there
was forced entry in this specific instance. Is that correct?
--- That
is correct, ja’.
The finding by the magistrate that the injuries could only have been
caused by forceful penetration was therefore a fundamental
factual
misdirection.
Did the state discharge its onus? I have already dealt with the
evidence of what occurred between the complainant and the appellant
in the second night club. The complainant’s evidence remained
uncorroborated whilst the appellant’s evidence was
corroborated by Makhanya, the second state witness, and further by
Letswalo. Their evidence is at odds with that of the complainant.
I have also alluded to the inexplicable failure of the complainant
to seize at least three opportunities to escape or ask for
assistance if she wished to do so. The first opportunity was at the
filling station, the second one at the gate at the appellant’s
home and the third one in the room when the appellant had gone
outside leaving her alone. The evidence of Dr Rubeira pertaining
to
her age and her injuries does not assist the state either.
This then leads me to the issue of the knife which she introduced
into her evidence obviously to show coercion. The appellant
denies
that he was in possession of a knife. Both Makhanya and Letswalo
deny seeing a knife and Makhanya said specifically that
had the
appellant produced a knife he would have seen it. Even on her own
evidence, nothing much was done with the knife. It
was only shown to
her with a threat that it might be used if she did not co-operate.
Again she is a single witness in this regard.
I now turn to the issue that arose during Makhanya’s
cross examination by the defence, that the complainant had
falsely incriminated the appellant for fear of being reprimanded by
her mother. Makhanya stated that he had been told by Letswalo
that
the complainant had not wished to lay a charge of rape against the
appellant but did so because her mother was strict and
also because
it was the first time she went out until late. It should be recalled
that Sharon, her aunt, had asked the two cousins
to take care of the
complainant. It should also be recalled that these very cousins saw
her dancing with the appellant. They
also left her in his car after
they alighted. Letswalo was called by the defence and he confirmed
that the complainant had made
the statement to him. This evidence
was not, as I have already stated
,
anticipated by the defence, hence it was not put to the complainant
when she testified.
The magistrate rejected this evidence. His reasoning for rejecting
it boils down to this. If the complainant was indeed scared
that her
strict mother would scold her she would not have told Sharon, her
aunt, that she had been raped. This implies that if
indeed she had
consented to the sexual intercourse, she would have kept quiet about
it and her mother would not know. This reasoning
overlooks several
important considerations. The obvious one is exactly what the
complainant conveyed to Letswalo and it is that
the complainant had
to offer an explanation for coming back home the following morning.
In addition, her older cousins had left
her in the appellant’s
motor vehicle and she probably feared that they would talk about it.
There are other countless reasons
why a young virgin who, according
to the evidence, had not used protection would rather lie to her
parents. These range from
fear of pregnancy to infection. In this
matter it is not even necessary to speculate because the complainant
had confided in
Letswalo why she incriminated the appellant.
The conclusion by the magistrate that the
complainant had no reason to commit perjury and that her evidence
must therefore be
true, was yet another misdirection on his part. In
R v Mthembu
10
this approach was held to be wrong. The court
stated:
‘
The
magistrate in his reasons for judgment obviously takes the view that
if the evidence of the traffic inspector is accepted then
the accused
was guilty of driving to the danger of the public. In coming to the
conclusion that that evidence is to be accepted
he said that the
inspector either saw the accused drive as he says or he has come to
court to commit perjury. That is
not the correct approach.
The remarks of the late MILLIN, J., in
Schulles
v Pretoria City Council
,
a judgment delivered on the 8th June, 1950, but not reported, are
very pertinent to this point; he says:
‘
It
is a wrong approach in a criminal case to say ‘Why should a
witness for the prosecution come here to commit perjury?’
It
might equally be asked:
“
Why
does the accused come here to commit perjury?’ True, an accused
is interested in not being convicted, but it may be that
an inspector
has an interest in securing a conviction. It is, therefore, quite a
wrong approach to say ‘I ask myself whether
this man has come
here to commit perjury, and I can see no reason why he should have
done that; therefore his evidence must be
true and the accused must
be convicted.’ The question is whether the accused's evidence
raises a doubt”’.
The court was also faced with a further dilemma. Makhanya was a
state witness. He contradicted the complainant’s evidence
in
all material respects. The consequence of this was that the court
was faced with two mutually destructive versions of the
two state
witnesses whilst the version of the defence, on the other hand, was
corroborated by one of the state witnesses and
by a defence witness.
This left the court with no option but to accept the version of the
appellant. In light of the above considerations
there was no reason
why the magistrate rejected it and also no basis for the finding by
the court aquo that the appellant’s
version was not reasonably
possibly true.
It was in view of the above considerations that the appeal was
upheld and the conviction and sentence were set aside.
______________________
Z L L Tshiqi
Judge of Appeal
APPEARANCES
APPELLANT: B Booysens
Instructed by Schürmann Joubert,
Pretoria;
Honey Attorneys, Bloemfontein.
RESPONDENT: P Vorster
Instructed by the Director of Public Prosecutions,
Pretoria.
1
The
age of consent is 16 years.
The Sexual
Offences Act
23 of 1957 regulated the
position at the time of the offence.
2
In
certain instances it becomes necessary to grant an order prior to
giving judgment when the outcome of the appeal is not in
doubt and
the interests of the litigant demand an immediate resolution. See:
AD & another v DW & others (Centre for Child
Law as amicus
curiae; Department for Social Development as intervening party)
[2007] ZACC 27
;
2008
(3) SA 183
(CC); Arwah Abdi & another v Minister of Home Affairs
& others (734/2010)
[2011] ZASCA 2
(15 February 2011).
3
Section
261
(1) of the
Criminal Procedure Act 51 of 1977
.
4
R
v Matipa
1959 (2) SA 396
(T);
S
v Matseletsele
1976 (3) SA 821
(O); DT
Zeffert, AP Paizes and A st Q Skeen:
The
South African Law of Evidence
, p398
5
Section
337
substituted by
s 99(1)
of Act 75 of 2008; see also
ss 14
–
16
of the
Child Justice Act of 2008
;
S
v Reynders
1972 (1) SA 570
(C) at
572B;
S v Swartz
1970
(2) SA 240
(NC)
6
S
v Tsankobeb
1981 (4) SA 614
(A) at
629B.
7
Section
14(2)(c) of the Sexual Offences Act
23 of
1957 currently the Criminal Law (Sexual offences and Related
matters) Amendment Act 32 of 2007, applies.
8
1960
(4) SA 685
(T) at 687A.
9
R
v V
1957 (2) SA 10
(O)
;
S v F & others
1967 (4) SA 639
(W)
at 641D
;
JRL Milton,
MG Growling, S Hoctor:
South African
Criminal Law and Procedure
vol III,
statutory offences paras E3 – 6 and E3 – 12.
10
1956
(4) SA 334
(T) at 335H–336B;
Albert Kruger
Hiemstra’s
Criminal Procedure
p24 – 4.