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[2021] ZAGPPHC 159
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L.F.B v S (A358/2019) [2021] ZAGPPHC 159 (5 March 2021)
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IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE NO:
A 358/2019
REPORTABLE NO
OF INTEREST TO OTHER
JUDGES NO
REVISED
In the matter between
LF
B[....]
Appellant
and
THE
STATE
Respondent
JUDGMENT
MATSEMELA AJ,
INTRODUCTION
1. The appellant was
charged and convicted in the Regional Court sitting at Sebokeng on
one count of rape of an adult woman. The
appellant was legally
represented and pleaded not guilty to the charge. At the completion
of the trial the appellant was found
guilty as charged. On 12
December 2018 the appellant was sentenced to ten (10) years’
imprisonment. On 27 February 2019 an
application for leave to appeal
against the conviction and sentence was argued on behalf of the
appellant. Leave was granted to
appeal against the conviction only.
LEGAL ARGUMENTS
2. It was argued on
behalf of the appellant that the state failed to prove that the
complainant was raped in light of the following:
(a) It is
reasonably possible that the appellant and the complainant had
consensual intercourse.
(b) The medical
evidence does not support rape.
(c) Although the
complainant denied that she was in a relationship with the appellant,
several witnesses confirmed that they
were aware of such
relationship.
3. It was further
argued that the presiding magistrate erred in rejecting the evidence
of the appellant in light of the fact
that the complainant was a
single witness.
4. The appellant
further argued that the sentence imposed is shockingly inappropriate.
SUMMARY OF FACTS
5. The complainant,
N N[…], testified that on 21 February 2017 she was coming from
a friend’s place where she
wanted to borrow money for a taxi to
go and collect her child from the child’s father. On her
way home she met the
appellant. She explained to him that she
needed money to go and collect her child. She testified that it
was raining
at the time. The appellant told her that he would
give her the money and that she must accompany him to his home to
fetch
the money. She followed him to his house where she
remained outside whilst he went inside to fetch money.
6. When the
appellant returned, he gave money to the children at the house and
instructed them to go and buy a cigarette so
that he could use the
change to give the complainant R20.00. The appellant told the
complainant to go inside the house but she
preferred to remain
outside. At some stage the appellant, according to her, came
and pushed her into the house. He
then locked the burglar
door. The complainant questioned the appellant for locking the
door but he replied that he was waiting
for the children. The
complainant remained standing at the burglar door. When the
children returned, the appellant
collected the money from them and
the cigarette. He placed the money on top of the kitchen unit.
When the appellant
did not give the money to the complainant, she
suspected that he was planning something. She asked him to open
the burglar
door so that she could leave.
7. The appellant
told her not to be in such a hurry. The complainant started to
push and kick the burglar door and managed
to kick the door open.
She ran outside and reached the gate but the appellant followed her
and dragged her back into the
house. He locked the door again.
The complainant and appellant were struggling with each other during
which the appellant
made the complainant fall to the ground. He
started to strangle her. The appellant managed to undress her
from the
waist downward and then pushed her into the bedroom where he
raped her. During this incident the complainant continued to
resist the appellant and he had to use force to rape her. The
complainant noticed sperm on her thighs. She went to
the
bathroom to wipe herself clean. The complainant was swearing at
the appellant. Soon afterwards the appellant opened
the door
for her and she left the appellant’s home.
8. The complainant
testified that she then went to her friend and, whilst crying, she
told her friend what happened.
The police were phoned where
after she went home waiting for the police. When the police
arrived at her home, she was taken
to the police station for a
statement and to the clinic to be examined by a medical
practitioner. She went with the police
to the appellant’s
work place and house but he was nowhere to be found. A trap was
set for the appellant to come to
the complainant’s house where
he was then arrested. During her evidence and
cross-examination, the complainant denied
that she had a love
relationship with the appellant and insisted that she hardly knew
him.
9. P P[…]
testified that she is a friend of the complainant. She
confirmed that on 21 February 2017 at approximately
17:00 in the
afternoon, the complainant arrived at her home. The complainant
asked for petrol or paraffin because she wanted
to burn down the
house of the appellant. The complainant explained to her that
the appellant had raped her.
10. Ms P[…]
testified that she knew the appellant. He would visit her uncle
sometimes. She confirmed that
the complainant would
occasionally visit her when the appellant was there with her uncle.
One day during December 2016 the
appellant visited her uncle.
The appellant gave his cell phone number to the uncle for the uncle
to hand it to the complainant.
11. O P P[…]
confirmed that he is the uncle of P P[…] and that he is also
known as “R[…]”.
During December 2016 he was
at a tavern with the appellant. The complainant was also there
and the appellant was trying to
speak with the complainant but she
was not interested in the appellant. Mr P[…] reprimanded
the appellant. That
evening the appellant gave his cell phone
number to Mr P[…] and asked him to give it to the
complainant. Mr P[…]
gave the number to his niece, P
P[…], to hand over to the complainant.
12. The appellant
told Mr P[…] during December 2016 that he was in a love
relationship with the complainant.
During cross-examination Mr
P[…] confirmed that he was told by the appellant during
January 2017 that he spent the night
with the complainant.
13. Dora Meme
Chisane testified that she is a registered nurse working at
Thuthuzela Care Centre which is mainly assisting
rape victims.
Ms Chisane testified that on 22 February 2017 she medically examined
the complainant at the clinic. She
completed a J88 form with
her observations during the medical examination of the complainant.
Her clinical findings were:
(a) Bruise on the right
shoulder of approximately one centimetre.
(b) Bruise on the left
arm of approximately two centimetres.
14.
Ms Chisane found no other injuries. There was no physical sign
of the penetration or injuries
found during
gynaecological examination. The complainant was calm and
co-operative. Ms Chisane added, however, that
the absence of
injuries does not exclude penetration.
15. Nelson Organy
Mohale testified that he is a constable in the Police Service.
He testified that on 22 February 2017
he received a complaint of a
rape that was committed on 21 February 2017. He visited the
workplace and the home of the appellant
but could not find him.
The appellant was only arrested on 24 February 2017 after the
complainant told him to come to her
home to sign a withdrawal
statement. The appellant was arrested at the house of the
complainant and taken to the police station
where a warning statement
was taken from the appellant. The appellant denied that he had
raped the complainant but told the
officer that he was in a love
relationship with the complainant.
16. The appellant
testified that he met the complainant at Nozi’s Tavern in the
beginning of December 2016. He
wanted to talk to her, but she
said that it was not possible because she was with her boyfriend.
The following day he managed
to speak to the complainant and he
proposed love to her which turned out very favourable and they
started a love relationship.
Both the complainant and the
appellant were involved in other relationships as well. Several
people were aware of the relationship
he had with the complainant.
17. The appellant
confirmed that he met the complainant on 21 February 2017. They
went to his home where they watched
television and later had
consensual intercourse. During the time that the complainant
was with him, she received text messages
from her boyfriend asking
where she was. The appellant denied that he raped or assaulted
her.
18. M P[…]
testified that he is a friend of the appellant. He knew the
complainant as they were neighbours.
There are no ill feelings
between him and the complainant. Mr P[…] testified that
the appellant and the complainant
started a love relationship during
December 2016. He was aware that the appellant would give the
complainant money whenever
he visited her.
19. B G T[…]
testified that the appellant is her partner. Ms T[…]
testified that one day, the complainant
came into their home and
wanted to see the appellant. The appellant went out with the
complainant and later explained to
her that he owed the complainant’s
boyfriend money and that the complainant came to collect this money
from him.
20. During
cross-examination Ms T[…] testified that she became aware of
the relationship between the appellant and the complainant
after she
found the number of the complainant on the appellant’s phone.
She would then phone the complainant and tell
her to stop seeing the
appellant. When she confronted the appellant about the
relationship with the complainant, he told
her they were no longer
involved.
21. S M M[…]
testified that she knows the appellant. She testified that she
is self-employed and sell vegetables
outside of her house. On a
certain day she saw the appellant and the complainant together.
Her children told her that
the two are involved in a love
relationship. When the appellant came to buy vegetables from
her, she reprimanded him because
he was married to Ms T[…].
AD COVICTION
22. In criminal
proceedings, it is trite that the State bears the onus to prove the
accused’s guilt beyond a reasonable doubt.
The accused’s
version cannot be rejected merely on the basis that it is improbable,
but only once the trial court has found,
on credible evidence, that
the explanation is false beyond a reasonable doubt. The
corollary is that, if the accused’s
version is reasonably
possibly true, the accused is entitled to an acquittal. Equally
trite is that the appellant’s
conviction can only be sustained
if, after consideration of all the evidence, his version of events is
found to be false.
See also
S v Shackvell
2001 (2) SACR
185
(SCA) at 194G-I where Brand AJA cautioned against the rejection
of an accused’s version solely on the ground that it is
improbable.
23.
Section 208 of the Criminal Procedures Act
[1]
,
provides that ‘an accused may be convicted of any offence on
the single evidence of any competent witness.’
The
litmus
test
of a single witness was laid down in
R
v
Mokoena
1956
3 ALL SA 208(A)
at 212 and succinctly set out in S v
Sauls
and
Others
[1981] 4 ALL SA 182
AD as follows:
‘
The
absence of the word “credible” is of no significance; the
single witness must still be credible, but there are.
. . “indefinite
degrees in this character we call credibility. . . There is no rule
of thumb test or formula to apply when
it comes to a consideration of
the credibility of the single witness. . . 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.’
24.
The trial court
should have been mindful that it can only convict on such evidence if
it is satisfactory in all respects.
At the same time, this
Court, as a court of appeal, is reticent to interfere with the
credibility findings of the trial court as
well as the evaluation of
the oral evidence, unless there is a material misdirection.
The
objective evidence tendered by the State
witnesses is, at best for the state, neutral or,
at
worst, exculpatory. The appellant was convicted on the evidence
of the complainant which the magistrate said was corroborated
by the
first report witness. What the magistrate failed to take into
account was the fact that the complainant was a single
witness
insofar as the rape is concerned
.
25.
An assessment of the
complainant’s evidence shows that her evidence was not clear
and satisfactory. I am of the view
that the magistrate
misdirected himself in evaluating her evidence. Although it was
found that the complainant was a truthful
witness, we hold the view
that the complainant was not truthful and that her testimony was not
coherent. The first report
witness also did not support the
complainant on crucial aspects of her evidence. I will now turn to
the reasons for my conclusion.
26.
According to the complainant she met the appellant on the street and
that it was raining at the time. She explained
to the appellant
that she needed money to fetch her child. The appellant offered
to give her money which was at his home.
It appears from the
complainant’s evidence that appellant was kind and tried to
help her by offering to give her money so
that she can collect her
child. It is therefore not clear what the reason was why the
complainant would refuse to go inside
of the house to wait for the
money but elected to stand outside in the rain. According to
her version there was no reason
to fear the appellant at this stage.
27.
The complainant testified that, after she ran outside, the appellant
apprehended her at the gate. She was then dragged
back to the
house where the appellant locked the burglar door and threw the keys
outside. This does not make sense particularly
in light of the fact
that they both later exited through the burglar door.
28.
The complainant testified that after the rape, the appellant got
dressed in his uniform and that he opened the door of
the house where
after they left. There is no explanation as to how the
appellant retrieved the keys from outside to open
the burglar door.
Her evidence in this regard is, in my view, highly improbable.
29.
The complainant testified that there was a huge struggle between the
complainant and the appellant. According to
the complainant she
was dragged, tripped, made to fall on the ground and strangled. She
also testified that the appellant repeatedly
forced open her thighs
whilst she was fighting him. Finally, the appellant managed to
penetrate her. However, according
to the J88 and evidence of Ms
Chisane, the complainant sustained two small bruises on her arm and
shoulder. The bruises were
one centimetre and two centimetres
when measured. The minimal injuries found by the medical
practitioner does not, in our
view, support the extent of the
struggle and violence as described by the complainant. The
complainant clearly lied about
an alleged struggle.
30.
During cross-examination it was put to the complainant that she
received text messages during the time she was with the
appellant.
The complainant responded that, at some stage, her phone was
misplaced or that the appellant threw it somewhere
or that the
appellant hid it. The evidence of the cell phone and text
messages was not part of her evidence in chief.
In all other
respects her evidence was detailed yet it is strange that she would
not add that the appellant took her phone and
hid, threw or misplaced
it. I agree with the submission by counsel on behalf of the
appellant that the complainant was adjusting
her version during
cross-examination. The complainant also does not explain how
she got the phone back. It is improbable
that the appellant
would allow the complainant to read text messages during the ordeal
that she had described to the court in her
evidence. It is, in
my view, clear that she was lying about the cell phone.
31.
The evidence of Ms P[…], who testified as the first report
witness, is almost a word for word repetition of the
complainant’s
evidence and should have been treated with caution. The one
aspect on which Ms P[…] does not corroborate
the evidence of
the complainant was her evidence that the complainant’s
trousers and shoes were covered in mud. According
to Ms P[…]
she only saw dust on her trousers. The magistrate, in my view,
misdirected himself in finding that Ms P[…]
testified that the
complainant’s jeans and boots were soiled and muddy and that
she was hysterical.
32.
Ms P[...] testified that the complainant’s voice was shaking
and the complainant was shaking. There was no
mention made that
the complainant was hysterical. The complainant testified that
her voice was hoarse from crying when she
arrived at her friend’s
home. The magistrate appeared to have placed high value on this
evidence of Ms P[…].
33.
The learned magistrate dismissed the evidence of the appellant and
his witnesses that there was a love relationship between
the
appellant and the complainant. He further held that, even if
there was such relationship, it would not have made a difference.
Moreover, the magistrate chose to ignore the fact that the State
witness, O P P[…] confirmed that the appellant told him
about
this relationship prior to the incident. The defence witnesses
confirmed the relationship as well. The court
a quo
gave
no reason why their evidence was dismissed.
34.
In my view, the magistrate misdirected himself in dismissing the core
defence advanced by the appellant and that is that there
was a
relationship between the appellant and the complainant and that
intercourse was with consent. By lightly dismissing
this
defence the magistrate did not properly evaluate the evidence and
therefore misdirected himself.
35.
For these reasons, I conclude that the court
a quo
erred by
convicting the accused on evidence that was unsatisfactory in so many
respects and ultimately unreliable.
I
therefore make t
he following
order:
1.
The appeal is upheld.
2.
The appellant's conviction and sentence are set aside and the trial
court's orders
in those respects are substituted with an order that
the appellant is acquitted and discharged.
_______
________________________
M. MATSEMELA
ACTING JUDGE OF THE
HIGH COURT
GAUTENG DIVISION OF
THE HIGH COURT, PRETORIA
Electronically
submitted therefore unsigned
I
agree
________
________________________
A.C. BASSON
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION OF THE HIGH COURT, PRETORIA
Electronically
submitted therefore unsigned
Delivered:
This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically
by circulation to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on
CaseLines. The date for
hand-down is deemed to be 5 March 2021.
Case
number
: A358/2019
Matter
heard on
: 4 February 2021
APPEARANCES:
FOR THE
STATE:
ADV WKK MPHAHLELE
INSTRUCTED
BY:
NATIONAL PROSECUTING AUTHORITY
FOR THE
APPLICANT:
ADV L AUGUSTYN
INSTRUCTED
BY:
LEGAL AID SOUTH AFRICA
[1]
Act 51 of
1977