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[2021] ZAGPJHC 164
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MJV v S (A23/221) [2021] ZAGPJHC 164 (26 August 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
REPORTABLE: NO
OF INTEREST TO OTHERS
JUDGES: NO
REVISED
CASE NO: A23/221
In the matter between:
MJV
APPELLANT
and
THE
STATE
RESPONDENT
APPEAL JUDGMENT
MAZIBUKO AJ,
A. INTRODUCTION
1.
On 5 February 2013, the Regional Court magistrate Mr Louw
convicted
the Appellant, MJV (the accused), of committing two acts of sexual
assault towards a 26 -years old male, J M[....], (the
Complainant) on
1 August 2010, at Cresta. O
n 15 July 2020, the Appellant was
sentenced to ten (10) years direct imprisonment on each count,
ordered to run concurrently.
2.
The Appellant was legally represented throughout the trial
proceedings.
3.
The appeal is against the conviction only.
B. THE APPLICANT'S
GROUNDS OF APPEAL
4.
The Appellant contends that the State did not prove its case beyond a
reasonable
doubt as the learned magistrate relied on the evidence of
a single witness which did not pass the threshold set as a cautionary
rule and that there were contradictions and improbabilities in the
State case.
5.
The Appellant argues that the learned magistrate should have accepted
his version
as reasonably possibly true.
C. RELATIONSHIP
BETWEEN THE APPELLANT AND THE COMPLAINANT
6.
It is common cause that the Appellant and Complainant worked for the
same company.
The Complainant was a security officer whilst the
Appellant was a Sales Manager and superior to the Complainant
regarding their
employment. The Complainant and his colleague, Mr
Mkhwanazi (Mkhwanazi), were rendering their security services and
giving water
to the cyclists during their (cyclists') competition.
D. SUMMARY OF
EVIDENCE IN THE TRIAL COURT
7.
According to the State, whilst the Complainant and his colleague,
Mkhwanazi,
performed their duties at the cyclists' competition at
Northem Farm, the Appellant
informed the Complainant that
there would be a party somewhere and that the Complainant would need
to safeguard the party venue.
T
he Complainant
accepted the post.
8.
The Appellant and Mkhwanazi knocked off, and the Appellant drove them
in the
company car. He dropped Mkhwanazi at Diepsloot and proceeded
with the Complainant to his residential home at C[....].
9.
Upon arrival, the Appellant inquired where exactly the party was. The
Appellant
responded that it would be starting soon.
They got
inside the Appellant's house, and the Appellant locked the doors.
10.
The Appellant went to the bedroom and returned with the pornographic
DVD in his pocket,
which he played. Whilst the pornographic DVD was
playing, the Appellant started touching the Complainant's private
parts, undressed,
and dragged him into the bedroom.
11.
The Appellant was scared as he was warned that any form of resistance
would lead to him
being killed. Also, in the bedroom, he saw a bullet
on top of the table.
12.
In the bedroom, the Appellant instructed the Complainant to insert
his (Appellant's) penis
into his mouth. After that, he instructed him
to bend and inserted his (Appellant's) penis into the Complainant's
anus and made
up and down movements.
13.
The Appellant went to the bathroom and ejaculated and gave
Complainant a towel to wipe himself.
After that, he offered him a
cool drink in a glass.
14.
The Complainant inquired about the party again. After that, they left
the Appellant's house,
and the Appellant dropped the Complainant at
Monte Casino at the robots. The Appellant reminded the Complainant
about not mentioning
what had transpired at work; otherwise, he would
be killed.
15.
The Complainant asked for transport money, and the Appellant
indicated that he had no money
with him and left the Appellant. The
Complainant approached a Metro police which was in the vicinity and
told them what had transpired.
The Metro police took him to
Douglasdale police station.
16.
At Douglasdale, he was not immediately assisted as the police laughed
at him. Only later
he was able to lay a charge of sexual assault
against the Appellant and taken for medical examination. He also
reported the matter
at his workplace.
17.
The State also called Mkhwanazi, who testified that after they
knocked off, the Appellant
drove him and the Complainant and dropped
him at Diepsloot. He continued to drive with the Appellant after
dropping him.
18.
The arresting officer, Mr Masala, testified that he effected the
Appellant's arrest on 12
August 2010. He had obtained the telephone
number and vehicle registration number of the Appellant from the
Complainant.
19.
Further, the State called Dr Gazi, who examined the Complainant on
the day of the incident.
According to the J88, there were no injuries
except redness, swelling and the tear at the eight o'clock position
on the anal area,
consistent with penetration.
20.
The Appellant testified and called no further witnesses. He testified
that whilst at Northem
Farm, he conversed with the Complainant about
the female cyclists' physique. The Complainant told him what he used
to do when he
was a barman at Germiston and had a sexual encounter
with the American woman. The Appellant then told the Complainant that
he had
a pornography DVD that he would show him. The Appellant was
interested, and they drove to drop Mkwanazi and proceeded to his
house
to show the Complainant the said DVD.
21.
They arrived at his home, he played the said DVD and left the
Complainant watching it whilst
he went to the bedroom to change his
work clothes. When he returned, where the said DVD was playing, he
found the Complainant fondling
himself whilst his trousers were
unzipped and open.
22.
The Appellant sat next to the Complainant, watched the DVD, and
became
aroused. Both then masturbated themselves, both ejaculated, and both
cleaned themselves up. The Appellant dropped the Complainant
off, and
he did not have any money to give to the Complainant when he was
asked for transport money.
23.
He denied having sexually assaulted the Complainant.
E. THE FINDINGS OF
THE TRIAL COURT
24.
The trial court found that the State has proven its case beyond a
reasonable doubt. It found
that the Appellant sexually violated the
Complainant as alleged and that the Appellant's version was not
reasonably possibly true.
F. THE PRINCIPLES
APPLICABLE IN APPEALS
25.
The standard of proof of guilt is that the prosecution must prove its
case beyond a reasonable
doubt. To satisfy the test, the court, in
assessing evidence, must look at the total body of evidence.
26.
The principles governing appeals have become settled. The appeal
court can only interfere
in very limited instances. The court can
interfere only where there is a misdirection on the law and facts.
G. THE APPLICATION
OF THE PRINCIPLES AND THE EVALUATION
27.
I am not persuaded that the learned regional magistrate in convicting
the accused misdirected
himself in any relevant respect in his
assessment of the evidence. The totality of the evidence justifies
the learned regional
magistrate's findings and his conclusions that
the version of the accused was not reasonably possibly true and that
his guilt was
proven beyond a reasonable doubt.
28
The learned regional magistrate treated the Complainant's evidence
with caution and
was mindful of certain inconsistencies in the
evidence. Many features show the Complainant's evidence to be
trustworthy and unquestionably
true and the exculpatory evidence of
the accused to be false beyond a reasonable doubt.
29.
The Complainant's evidence was not only credible but
clear,
reliable and satisfactory in all material aspects. The fact that his
evidence falls into the category of 'testimony of a
single witness'
does not diminish its value. The evidence has to be tested by
examining, amongst others, on its internal consistency,
the
credibility of the Complainant as a witness and its reliability in
relation to other facts that have been established, such
as in this
case, the fact that he was examined by a doctor who found that he had
sustained an injury to his anal passage which
was consistent with a
penetration of an object into the anus.
30.
On this approach, the principle that the evidence should be treated
with caution because
it emanates from a single witness merely means
that care must be taken in its assessment. It certainly does not mean
that the evidence
should be rejected. Here the learned magistrate did
exactly what the law required of him. He assessed the Complainant's
evidence
carefully and conscientiously. He came to the conclusion
that it was not only reliable but that it reflected the truth of what
happened to the Complainant when the Appellant took him to the
Appellant's home on that fateful day.
31.
I also find the Appellant's explanation as to why he brought the
Complainant over to his
home and then played the pornographic DVD to
be lacking in credibility. If he went home to change his clothes, he
should have done
just that and leave. There was no need to play the
pornographic DVD. By doing so, he created an opportunity to pursue a
sexual
encounter with the Appellant.
32.
The Appellant did not deny nor confront the Complainant's evidence
that there was a bullet
on top of his bedroom table, nor did he deny
that he threatened to kill the Complainant if he tells anyone of what
had transpired.
33.
He further does not deny that the Complainant consistently inquired
about the party; at
their arrival at C[....] and his house while
seated on the couch.
34.
In my view, the trial court's analysis of the evidence cannot be
faulted, nor can it be
criticized. The appeal against the Appellant's
conviction on both counts of sexual assault must fail and be
dismissed
ORDER
Accordingly, the
following order is made:
The appeal against the
Appellant's conviction is dismissed.
NGM MAZIBUKO
ACTING JUDGE OF THE
HIGH COURT
GAUTENG LOCAL
DIVISION, JOHANNESBURG
I agree
B VALLY
JUDGE OF THE HIGH
COURT
GAUTENG LOCAL
DIVISION, JOHANNESBURG
APPEARANCES
For Appellant:
Adv A Nel
Instructed by:
Raath Law Inc
For the State:
Mr C Ryan
Instructed by:
Director of
Public Prosecutions
Date of hearing:
29 July 2021
Date of Judgment:
26 August 2021