Kebana v S (161/09) [2009] ZASCA 100; [2010] 1 All SA 310 (SCA) (18 September 2009)

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[2009] ZASCA 100
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Kebana v S (161/09) [2009] ZASCA 100; [2010] 1 All SA 310 (SCA) (18 September 2009)

THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
J
UDGMENT
Case No:
161/2009
V
Kebana
Appellant
and
The
State
Respondent
Neutral
citation
:
Kebana v The
State
(161/09)
[2009] ZASCA 100
(18 September
2009)
Coram: HEHER, VAN HEERDEN
and SNYDERS
JJA
Heard: 14
September 2009
Delivered: 18
September 2009
Updated:
Summary: Criminal
law – attempted murder – holistic assessment of probabilities.
____________________________________________________________________________________
ORDER
In
an appeal from the High Court, Grahamstown (Miller and Chetty JJ
sitting as court of appeal).
The
following order is made:
The
appeal is dismissed.
JUDGMENT
___________________________
__________________________________________
HEHER JA
(VAN HEERDEN and SNYDERS JJA concurring):
[1] The
appellant was 45 years old at the time of the events which gave rise
to his arrest in June 2002. He had been divorced from
the complainant
for about a year and they occupied separate dwellings. The state
alleged that on the twenty-third day of that month
he raped her in a
forest near Coega and attempted to murder her by stabbing her on the
head and neck. After a trial in the regional
court in which both gave
evidence and the prosecution also relied on medical testimony, the
appellant was convicted on both charges
as well as a charge of
possessing a dangerous weapon,
viz
a knife, in contravention of s 2 of Act 71 of 1968. He was sentenced
to an effective period of imprisonment of 16 years.
[2] On
appeal to the High Court in Port Elizabeth the convictions on the
rape and dangerous weapon charges were set aside, but the
appeal
against conviction and sentence (ten years imprisonment) on the count
of attempted murder was dismissed. The court
a
quo
granted leave to appeal to this Court in
respect of both.
[3] The
magistrate rejected the version proferred by the appellant in
evidence in all material respects. The court
a
quo
found no reason to come to a different
conclusion. Counsel, in arguing before us, reluctantly conceded that
both courts were right
in their assessment of the credibility of his
client. That reduces the scope of the factual disputes in this appeal
to miniscule
proportions.
[4] The
complainant’s tale of woe began early on the morning of 23 June.
The appellant made an unexpected appearance at the door
of her flat.
He offered her a lift to her place of work. The weather was cold and
wet and she readily accepted. But once in the
car, the appellant,
instead of making good his offer, pursued his own agenda, eventually
stopping in a deserted forest area near
Coega. As he had, shortly
before this, threatened to kill the complainant, she scrambled out of
the car and fled. The appellant
chased her, striking her down with
his fist. As she tried to defend herself he beat her with his fists.
He removed her clothes
below her waist and, according to the
complainant’s testimony, raped her. He then attempted to cut her
throat and, when she protected
her neck from him, he stabbed her
several times on the side and back of her head with a sharp object.
He also dragged her on the
ground between the trees. Afterwards he
left her bleeding profusely from her wounds while she was temporarily
insensible. When
she had recovered a measure of control and awareness
the complainant made her way to a public road, where she lost
consciousness,
only regaining it a while later in St. George’s
Hospital. A good samaritan must have taken her to the hospital –
she had no
idea how she got there.
[5] Dr K.L.
Punt, who was on duty, examined the complainant. He gave evidence for
the prosecution at the trial that was unequivocal
and unchallenged.
In short, he identified three separate categories of injuries
suffered by the complainant: clear abrasions to
the head, one
shoulder and on the feet, probably the result of a dragging movement;
blunt force injuries to the face, particularly
below the eyes and to
the mouth; and four incised wounds on the skull, one on the chest and
one on the neck below the jaw, inflicted
with a sharp instrument. He
excluded, as extremely unlikely, the probability that the
last-mentioned injuries could have been inflicted
in a fall from a
moving vehicle. (Objectively viewed the photographs of those injuries
drive one to the same conclusion.) That
finding cut the ground out
from under the main pillar of the defence. It was relied on by both
lower courts in rejecting the appeal
and rightly so.
[6] Because
the appellant’s evidence, once rejected, provided no explicit
explanation for the injuries suffered by the complainant,
his counsel
before us was reduced to sniping at what he saw as weaknesses in the
complainant’s evidence, in an effort to raise
a reasonable doubt as
to the source of those injuries and the appellant’s role in causing
them.
[7] Counsel
began by submitting that when the court
a quo
upheld the appeal against the rape conviction
it effectively disbelieved the complainant, or, at least raised a
large question mark
against her reliability.
[8] But the
High Court went no further than finding that that charge had not been
proved beyond a reasonable doubt. Its reasons
were ‘the complete
lack of medical confirmation’ (ie injuries or traces of semen) of
recent forceful sexual intercourse and
an initial denial by the
complainant that she had been raped, both of which, so that court
found, cast doubt on her veracity concerning
the rape. I think the
appellant was fortunate. I would not necessarily have felt the same
hesitation. The court
a quo
could
equally as well have pointed out that the complainant did not testify
that the act of penetration was accompanied by any application
of
force or pain, that the complainant was a sexually experienced adult
who had borne a child, and the initial examination took
place about
six hours after the event. Equally the court
a
quo
could have emphasised that the
complainant was subjected to a violent assault (even though it did
not extend to sexual trauma) in
order to subdue her. The magistrate
did take account of all the factors for and against a finding that
the complainant was raped.
He not only heard her evidence but he
observed her demeanour, favourably. The court
a
quo
had none of these advantages. All in all
I am unable to accord the reservations of the court
a
quo
the (undue) weight that counsel would
have us read into its judgment.
[9] Counsel
also relied on apparent contradictions between the evidence of the
complainant and a verbal statement made by her to
Inspector Gental.
These related to whether the appellant said that he was taking her to
his
brother
in
Motherwell (rather than to his
sister
,
as the complainant testified), whether the appellant had kicked and
choked her during the course of the assault, and why she had
not
mentioned the appellant’s use of a sharp object to the inspector.
[10] The
credibility of the police inspector was not in issue but his evidence
needs to be put in perspective. First, the interview
took place under
circumstances unfavourable to the complainant in the hospital at
about 12pm on the day of the incident. Inspector
Gental readily
conceded that:
‘
Sy
kon nie mooi duidelik praat nie omdat volgens die dokter haar kake
beseer was. Haar hele gesig was opgeswel en met my onderhoud
met haar
moes ek my oor so te sê teenaan haar mond sit om te hoor wat sy
sê want sy kon nie reg praat nie. Ek moes
dan haar woorde wat
soos ek dit verstaan het, aan haar herlei sodat ons nie mekaar
misverstaan nie.’
In these
circumstances it would be unfair to expect perfect recollection from
the complainant or accurate and full communication
of the true facts
of the assault. But against such criticism as may be justified the
objective facts are more important: the complainant
was
stabbed and cut with a sharp instrument and blunt force
was
applied to her face.
[11] Once
again, the magistrate fully considered the criticisms and he rejected
them for good reason. I should add that in this
respect as in others
the magistrate correctly looked at and evaluated the evidence of both
parties holistically and in a balanced
manner rather than, as counsel
did before us, by examining each in isolation, cf
S
v Van Aswegen
2001 (2) SACR 97
(SCA) at
101a-e, referring with approval to
S v Van der
Meyden
1999 (1) SACR 447
(W) at 449h-450b.
[12] It is
unnecessary to allude to any of counsel’s lesser sallies. In
summary, the magistrate has not been shown to have misdirected

himself on any aspect of fact. The presumption arises that his
conclusion was correct; a court on appeal will only reverse it when

it is convinced that the conclusion was wrong:
R
v Dhlumayo
1948 (2) SA 677
(A) at 706. Not
only am I not so persuaded but I have no doubt that the magistrate
was right. The appeal against the conviction
must therefore fail.
[13] The
sentence of imprisonment for 10 years was assailed only on the ground
that it induced a sense of shock. Counsel drew
attention to the
appellant’s age and his long and apparently unblemished work record
with a single employer. His only previous
convictions – for common
assault and assault with intent to commit grievous bodily harm which
drew a small fine, half suspended
– were imposed fifteen years
before the events which gave rise to the conviction under appeal and
can be disregarded. At the
time of sentencing in the trial the
appellant supported four minor children. The magistrate weighed these
facts in the balance.
But he also gave weight to what he regarded as
aggravating circumstances,
viz
that
the attack was planned, and was carried out in a cruel and cowardly
manner. He regarded imprisonment for a long period as the
proper
punishment, fitting for the deed, appropriate to the circumstances of
the appellant. The appellant did not then or subsequently
admit his
guilt or express his remorse and the role of mercy must to a large
extent give way to just retribution. The sentence,
while heavy,
induces no disquiet in me.
[14] The
appeal is dismissed.
________________________
J
A HEHER
JUDGE
OF APPEAL
A
ppearances:
F
or
appellant: T N Price
I
nstructed
by: Nogcantsi & Associates, Port Elizabeth
Symington
& De Kok, Bloemfontein
F
or
respondent: N Henning
I
nstructed
by: Director of Public Prosecutions, Grahamstown
Director
of Public Prosecutions, Bloemfontein