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[2021] ZAGPJHC 613
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Mdini v S (A045/2021) [2021] ZAGPJHC 613 (23 September 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
A045/2021
Reportable
No
Of
interest to other Judges No
Revised:
Yes
Date:
23 /09/ 2021
In
the matter between:
MDINI,
THABO
Appellant
and
THE
STATE
Respondent
J
U D G M E N T
MAIER-FRAWLEY
J (MIA J concurring):
1.
The
appellant was convicted in the regional court, presiding at
Randfontein, on a charge of rape.
[1]
He was sentenced to ten years imprisonment and declared unfit to
possess a firearm in terms of
section 103(1)
of the
Firearms Control
Act 60 of 2000
. This appeal lies, with leave of the trial court,
against conviction only.
2.
The legal representatives
of the parties agreed that the appeal could
be adjudicated on the papers, including the heads of argument filed
on behalf of the
parties, as envisaged in
section 19(a)
of the
Superior Courts Act, 10 of 2013.
3.
The appellant was legally
represented throughout the trial. He
pleaded not guilty to the charge of rape, however, he admitted to
having sexual intercourse
with the complainant on 15 June 2020 at his
residence in Elandsvlei, alleging that this occurred with her
consent.
4.
In the result, the trial
turned primarily on the question of consent,
it being common cause at the trial that:
4.1.
Sexual penetration occurred during the act of sexual
intercourse
between the complainant and the appellant on 15 June 2019;
4.2.
No condom was used by the appellant during the incident;
4.3.
The only persons physically present immediately prior
to and during
the occurrence of the incident were the appellant and the
complainant;
4.4.
As at the date of the incident, the complainant had
been and still
was involved in a love relationship with her boyfriend, one Elias
(the appellant’s cousin) whilst the appellant
had been and
still was involved in a love relationship with the complainant’s
friend, one, Mamokethi, and thus the accused
and the complainant were
known to one another;
4.5.
The complainant presented with fresh injuries upon examination
by a
medical doctor on 16 June 2021, being the day following the incident,
as recorded in the J88 medical report.
5.
The state led
the evidence of three witnesses whilst the appellant testified in his
defence without calling any further witnesses.
The state witnesses
included the complainant, the police officer to whom she reported the
incident (Sergeant Setshele) and the
medical practitioner who
examined the complainant on 16 June 2019 and completed the J88 (Dr
Olayiwola)
.
6.
Briefly, the
complainant’s evidence was to the following effect: On the
night of the incident she was visiting at her ‘in-laws’
house. She was sitting around the fire, socialising with friends (one
‘Lebo’ and two others) when the appellant arrived
there
looking for his girlfriend, Mamokethi. He asked the complainant if
she knew where his girlfriend Mamokethi was. The complainant
told him
that she did not know of Mamokethi’s whereabouts, where after
the appellant left and went his own way. A short while
later, the
complainant left the house to go to the shop to buy cigarettes for
her friend Lebo.
En
route to
the shop, she encountered the appellant in the street ‘at the
corner of the shops’ where he was standing with
his friend,
named ‘Tefo’. Tefo called her over as he was selling
shoes. An exchange took place about the shoes with
the complainant
indicating that she did not have money to buy shoes but that she
would need to look for her boyfriend to see if
he would buy them for
her. The appellant then instructed Tefo to leave, indicating that he
would catch up with Tefo further along
the way.
7.
An exchange
occurred between the appellant and the complainant, with the
appellant advocating that the complainant should ‘sleep’
with him and him attempting to persuade her to agree thereto. She
refused, given that Mamokethi was her friend and because she
was
involved in an intimate relationship with the appellant’s
cousin. When the appellant’s powers of persuasion proved
ineffective, he grabbed the complainant by the hair and forcefully
pulled her in the direction of the street in which he resides.
The
complainant resisted and screamed, and a shuffle ensued, with the
appellant at one point pulling out a knife and holding it
against her
neck. The complainant tried to ward off this attack by grabbing the
knife, injuring her fingers superficially in the
process. During the
shuffle, the appellant tightened his grip on her by compressing his
arm around her neck and pushed her in the
direction of his house.
During cross-examination the complainant indicated that at some point
during the shuffle she fell to the
ground whereupon the appellant
kicked her in the ribs and dragged her for a distance.
8.
Once at his
house, the appellant instructed her to undress and threatened to kill
her if she dared to scream. She tried unsuccessfully
to resist his
advances by trying to cover her private parts with her trousers but
the appellant overpowered her by strangling her
and pushing her arms
away. The appellant then had sexual intercourse with her by inserting
his penis into her vagina against her
will and without her consent.
After the incident, the complainant walked back home and the
appellant threatened to come and fetch
her the following day to have
sexual intercourse again.
9.
She reported
the incident to her friend Lebo immediately upon her return home on
the night of the incident and to the police the
following day, after
which she was examined by a medical practitioner (Dr
Olayiwola)
who completed the J88. The complainant’s evidence at the trial
corresponded in essential aspects with the complainant’s
account of the incident, as reported to Sergeant Setshele and Dr
Olayiwola
the day following the incident.
10.
The appellant
testified that he and the complainant had been involved in a
clandestine ‘part-time’ sexual relationship
for a period
of two years prior to the incident in question. They had made a prior
arrangement for him to come and collect her
at the house under the
pretence of looking for his girlfriend, so that they could be
together. He went to the house to enquire
about his girlfriend, as
arranged, accompanied by his friend ‘Tefo’. After leaving
the house, he waited for the complainant
in the street, a few houses
away, still in the company of Tefo. The complainant came to meet him,
as arranged. He then told Tefo
to leave. The complainant accompanied
him voluntarily to his residence without being threatened or
assaulted by him and without
being pushed or pulled to his residence,
where they eventually enjoyed consensual sexual intercourse. He did
not dispute that the
complainant sustained the injuries depicted in
the J88 but denied having assaulted the complainant, stating that he
did not know
who had assaulted her.
11.
It bears
mentioning that the complainant vociferously denied making any
arrangement with the appellant to come and collect her on
the night
in question or that she had been sexually involved with the appellant
prior to the incident. She also denied that they
had a clandestine
love affair.
12.
Dr
Olayiwola
confirmed the outcome of his examination of the complainant and the
injuries sustained by her, as recorded in the J88,
during his
evidence at the trial. The gynaecological examination revealed
abrasions and lacerations around the para-urethral folds,
multiple
abrasions around the labia minora, fresh tears to the hymen, with,
inter
alia
,
visible bruising, clefts and bumps and multiple abrasions around the
perineum. A painful left forearm and abdomen were noted,
with
superficial cuts to two of the complainant’s fingers,
consistent with having been inflicted by a sharp object.
Dr
Olayiwola
testified the gynaecological injuries were indicative of a struggle
or a female not being sexually aroused or not being
ready for sexual
intercourse, but more pertinently, were consistent with the
complainant’s account of non-consensual intercourse.
He
confirmed that the complainant reported that the date and time of her
last sexual intercourse - with consent - was on 15 June
2019 at
approximately 22h30.
[2]
During
cross-examination, Dr Olayiwola readily conceded the possibility that
injuries of the nature suffered by the complainant
(i.e., those
detected by gynaecological examination) could occur even during
consensual intercourse in circumstances where the
female in question
was not ready (sufficiently aroused or lubricated) at a time when
sexual intercourse occurred.
13.
The grounds of
appeal, as gleaned from the record, were that:
13.1.
The trial
court misdirected itself in that it did not apply the necessary
caution in analysing the evidence of the complainant which
implicated
the appellant in the commission of the crime of rape and by accepting
the complainant’s version when her evidence
was ‘entangled
with ambiguity and inconsistencies’;
13.2.
The trial
court erred in finding that the State had proved the appellant’s
guilt beyond reasonable doubt and in not finding
that the appellant’s
version was reasonably possibly true, particularly in circumstances
where the State failed to ‘bring
all evidence before the court
for it to come to a fair decision in the matter.’;
13.3.
The
trial court itself failed to exercise its judicial discretion to call
witnesses (being the complainant’s boyfriend, Lebo
or Tefo) in
terms of s186 of the CPA.
[3]
14.
The
central issue for determination in this appeal is whether the trial
court erred in finding that the State had proved beyond
a reasonable
doubt that sexual intercourse between the appellant and the
complainant occurred without the latter’s consent.
In this
regard, see
S
v Van Der Meyden.
[4]
T
he
onus of proving its case rests upon the prosecution. The required
standard is proof beyond a reasonable doubt. If an accused/
appellant’s version is reasonably possibly true, he should be
acquitted.
Proof
beyond reasonable doubt does not, however, equate to proof to an
absolute degree of certainty. It means that there should
be such
proof as leaves no reasonable doubt in the mind of an ordinary man
capable of sound judgment and of appreciating human
motivations. It
means a high degree of probability, not proof beyond a shadow of a
doubt or proof beyond
all
doubt.
The State does not have to close every avenue of escape, and fanciful
or remote possibilities can be discounted as these
do not lead to
reasonable
doubt. To be a reasonable doubt, the doubt must not be based on pure
speculation but must be based upon a reasonable and solid
foundation
created either from the positive evidence or gathered from reasonable
inferences not in conflict with or outweighed
by the proved facts.
[5]
15.
In
my view, the trial court evaluated the evidence on the basis set out
in
Van
Der Meyden
supra. The trial court took care to consider the totality of evidence
and left none of the material evidence out of account. To
this end,
t
he
learned magistrate, in a detailed judgment, carefully analysed the
evidence of all the witnesses, including that of the appellant
and
the complainant and reached a decision based upon a consideration of
the full conspectus of the evidence, including the merits
and
demerits in the countervailing versions of the appellant and
complainant, whilst weighing the inherent improbabilities in each
version against the undisputed facts.
The
trial court was alive to certain contradictions in the State’s
evidence that emerged during the trial. Indeed, the trial
court
specifically alluded to these in its judgment. In my view, these
contradictions did not impact upon the veracity or reliability
of the
complainant’s version apropos the issue of consent. They
related to peripheral issues only, which, when objectively
viewed,
would have had no impact on the ultimate outcome of the trial court’s
assessment of the evidence on the only determinable
issue at trial,
namely whether sexual intercourse between the complainant and
appellant was consensual.
[6]
As
such, the state’s failure to call witnesses who could not shed
light on that pertinent issue, did not amount to any misdirection
or
failure in the exercise by the trial court of its discretion to
arrive at a just result in the matter.
16.
The
trial court was equally alive to the fact that the evidence of the
complainant, who was a single witness regarding the incident
of rape
and the pivotal question of consent, must be viewed with caution.
In
terms of
s 208
of the
Criminal Procedure Act, 51 of 1977
, an accused
can be convicted of any offence on the single evidence of any
competent witness. It is well established in our law
that the
evidence of a single witness should be approached with caution, his
or her merits as a witness being weighed against factors
which
militate against his or her credibility (see, for example,
S
v Webber
1971
(3) SA 754
(A)
at 758G-H). The correct approach to the application of this so-called
‘cautionary rule’ was set out by Diemont JA
in
S
v Sauls and Others
1981
(3) SA 172
(A)
at 180E-G, as follows:
‘
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. The cautionary rule referred to by De Villiers JP in
1932 [in
R
v Mokoena
1932
OPD 79
at 80] may be a guide to a right decision but it does not mean “that
the appeal must succeed if any criticism, however slender,
of the
witnesses’ evidence were well-founded” (per Schreiner JA
in
R
v Nhlapo
(AD
10 November 1952) quoted in
R
v Bellingham
1955
(2) SA 566
(A)
at 569.) It has been said more than once that the exercise of caution
must not be allowed to displace the exercise of common
sense.’
17.
The
appellant’s counsel argued that the complainant’s
evidence was ‘entangled with ambiguity and inconsistencies’
without, however, indicating in what respects her evidence was either
ambiguous or inconsistent in material respects. The trial
court found
ambiguity or material inconsistencies which impacted on the court’s
ultimate findings such as to create a doubt
regarding the veracity of
the appellant’s version.
18.
The trial
court adopted a holistic approach in assessing all the evidence and
found, correctly so my view, that the complainant’s
account of
the rape was reliable and sound, more particularly, in that s
he
stood steadfast on the essential aspects of her evidence against the
appellant
regarding
the occurrence of forceful, non-consensual sexual intercourse to
which she had been subjected on the night in question.
In my view,
the complainant maintained her version despite rigorous
cross-examination and despite the speculative suggestion by
the
appellant’s counsel that she had been assaulted by her
boyfriend after being caught out for cheating on him, a fact,
I might
point out, that was not established in evidence and which was in any
event belied by the appellant’s own testimony
at the trial. The
appellant’s suggestion in his testimony that the complainant
was giving false evidence or that she had
a motive to falsely
implicate him because she did not wish to be caught out by her
boyfriend for cheating on him, was likewise
belied by the undisputed
and unrefuted evidence of the complainant that she had in fact
disclosed the occurrence of the incident
to her boyfriend on the
night in question.
There
were, in my view, no material contradictions or inconsistencies in
her evidence on the essential aspect of consent, and her
evidence
regarding the commission of the rape was both consistent and clear.
19.
The trial
court found the complainant to be a credible witness whose testimony
appeared to be truthful. The undisputed evidence
was that she was
emotionally distressed and upset as a result of the rape, which
condition was corroborated by the testimony of
Sergeant Setshele and
Dr
Olayiwola, who both witnessed her
emotional state and condition the day after the incident. Such a
state of acute upset and distress
is in my view, incompatible with
being in a loving relationship with a person, even if it were to have
been conducted in secret.
A further aspect of the complainant’s
testimony, which remained undisputed, was that the appellant was
feared in the community
as well as by the complainant, so much so
that she reported the incident to the police because she feared that
the appellant would
make good on his threat to come and find her and
repeat his unlawful conduct the following day.
20.
As regards the
credibility finding that was made in respect of the complainant as a
single witness, the Supreme Court of Appeal
held as follows in
S
v Pistorius
2014(2)
SACR 315 (SCA), para 30:
“
It
is a time-honoured principle that once a trial court has made
credibility findings, an appeal court should be deferential and
slow
to interfere therewith unless it is convinced on a conspectus of the
evidence that the trial court was clearly wrong.
R
v Dhlumayo and Another
1948
(2) SA 677
(A)
at 706;
S
v Kebana
[2010]
1 All SA 310
(SCA)
para 12. As the saying goes, he was steeped in the atmosphere of the
trial. Absent any positive finding that he was
wrong, this court is
not at liberty to interfere with his findings.”
21.
I am not
persuaded from a reading of the evidence or a consideration of the
written arguments presented on behalf of the appellant
that the trial
court’s credibility finding was clearly wrong.
22.
The
trial court also correctly considered the probabilities against the
facts of the case in concluding that the state had proven
the guilt
of the appellant beyond a reasonable doubt. In this regard, see:
S
v Chabalala
2003
(1) SACR 134
(SCA) at para 15
[7]
and
S
v Phallo
&
Others
1999(2)
SACR 558 (SCA) at 562, para 10.
[8]
The learned magistrate considered the fact that that there was no
evidence to show that the complainant had ever before needed
to cover
up her alleged sexual engagements with the appellant and if she had
agreed to have consensual sexual intercourse with
the appellant on
the night of 15 June 2019, there is no plausible explanation for why
she returned therefrom so emotionally disturbed,
upset and
distressed. Accepting the undisputed evidence that she was in a
loving and intimate relationship with her boyfriend (Elias),
with
whom she lived at the time, and accepting her undisputed evidence
that such relationship with her boyfriend had never been
abusive or
threatening in the sense that he had never once assaulted her, the
only inference, consistent with the proven facts,
[9]
is that the injuries sustained by her were due to the fact that
sexual intercourse with the appellant was uninvited, non-consensual
and forcefully imposed upon her at a time when she was not aroused in
circumstances where it was non-consensual.
23.
Having regard
to the aforegoing, and for all the reasons given, I conclude that the
trial court correctly found that the State proved
the appellant’s
guilt beyond reasonable doubt. It is evident that the appellant was
correctly convicted and I would propose
that the appeal against
conviction be dismissed.
24.
In the result,
the following order is granted:
ORDER:
1.
The appeal is
dismissed.
A.
MAIER-FRAWLEY
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, JOHANNESBURG
I
agree:
S.
MIA
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, JOHANNESBURG
(This
judgment is h
anded
down electronically by circulation to the parties’ legal
representatives by email and uploaded to CaseLines and release
to
SAFLII. The date and time for hand-down is deemed to be 10h00 on 23
September 2021.)
Date
of hearing:
7 August 2021
Judgment
delivered
23 September 2021
APPEARANCES:
Counsel
for Appellant:
Adv. L Mosoang
c/o
Legal Aid South Africa
Johannesburg
Local Office..
Counsel
for Respondent:
Adv. R.M Kau
c/o
Office of the Director of Public Prosecutions
Gauteng
Local Division
[1]
The State alleged that on 15 June 2019, at Elandsvlei, the accused
committed an act of sexual penetration by unlawfully and
intentionally inserting his penis into the complainant’s
vagina without her consent.
[2]
The time given indicates that this occurred after the incident
involving the appellant.
The
complainant was cross-examined on this aspect during the trial. Her
evidence was that she did consent to having sexual intercourse
with
her boyfriend as she did not initially want to reveal to him that
she had been raped. During further questioning, she indicated
that
the act of sexual intercourse with her boyfriend was not completed
because he had been alerted to the earlier incident.
The issue was
not pursued further through questioning by the appellant’s
legal representative or clarified during re-examination
by the
State.
[3]
Criminal
Procedure Act 51 of 1977
, as amended.
[4]
S v Van
Der Meyden
1999(1)
SACR 447 (W) at 449J-450B, where the following was said:
‘
The
proper test is that an accused is bound to be convicted if the
evidence establishes his guilt beyond reasonable doubt, and
the
logical corollary is that he must be acquitted if it is reasonably
possible that he might be innocent. The process of reasoning
which
is appropriate to the application of that test in any particular
case will depend on the nature of the evidence which the
court has
before it. What must be borne in mind, however, is that the
conclusion which is reached (whether it be to convict or
to acquit)
must account for all the evidence. Some of the evidence might be
found to be false; some of it might be found to be
unreliable; and
some of it might be found to be only possibly false or unreliable;
but none of it may simply be ignored.
’
[5]
See
further
R
v Mlambo,
quoted in fn 7 below.
[6]
Pheripheral
issues included: (i) whether the complainant’s friend Lebo
would corroborate the complainant’s testimony
that she first
had reported the rape to her on the night in question. In this
regard, the undisputed evidence was that Lebo was
drunk (i.e., under
the influence of alcohol) on the night in question. There was no
suggestion by the defence that Lebo would
nonetheless have been in a
position to remember the events, let alone the impact of the events
of 15 June 2019 upon the complainant;
(ii) whether the complainant’s
boyfriend would corroborate the appellant’s counsel’s
speculative suggestion
that he (the complainant’s boyfriend)
had assaulted the complainant after the rape – the appellant’s
evidence
was, after all, that he had no idea who assaulted the
complainant prior to 16 June 2019 and therefore the evidence by the
complainant
that she was
not
assaulted by her boyfriend remained undisputed; and (iii) whether
Tefo had accompanied the appellant to the house of the complainant’s
in-laws, a factor that in my view was immaterial in the grand scheme
of events. The complainant’s evidence that she had
a
discussion with Tefo about certain Puma shoes that he was marketing
for sale, and the outcome of such discussion. was likewise
not in
dispute. There was no suggestion by the appellant that Tefo knew of
the alleged arrangement between himself and the complainant.
Tefo’s
evidence would therefore not have assisted in a determination of
whether or not sexual intercourse would have occurred
by consent or
not
[7]
There
the following was said: “
The
trial court's approach to the case was, however, holistic and in
this it was undoubtedly right: S v Van Aswegen
2001
(2) SACR 97
(SCA).
The correct approach is to weigh up all the elements which point
towards the guilt of the accused against all those which
are
indicative of his innocence, taking proper account of inherent
strengths and weaknesses, probabilities and improbabilities
on both
sides and, having done so, to decide whether the balance weighs so
heavily in favour of the State as to exclude any reasonable
doubt
about the accused's guilt. The result may prove that one scrap of
evidence or one defect in the case for either party (such
as the
failure to call a material witness concerning an identity parade)
was decisive but that can only be an ex post
facto determination and a trial court (and counsel) should
avoid the temptation to latch on to one (apparently) obvious aspect
without assessing it in the context of the full picture presented in
evidence...”
[8]
There the following was said: “…
In
our law, the classic decision is that of Malan JA in
R
v Mlambo
1957
(4) SA 727
(A).
The
learned Judge dealt, at 737F-H, with the argument that proof beyond
reasonable doubt requires the prosecution to eliminate
every
hypothesis which is inconsistent with the accused's guilt or which,
as it is also expressed, is consistent with his innocence.
Malan JA
rejected this approach, preferring to adhere to the approach which
'at one time found almost universal favour and which
has served the
purpose so successfully for generations' (at 738A). This approach
was then formulated by the learned Judge as
follows (at 738A- C):
'In
my opinion, there is no obligation upon the Crown to close every
avenue of escape which may be said to be open to an accused.
It is
sufficient for the Crown to produce evidence by means of which such
a high degree of probability is raised that the ordinary
reasonable
man, after mature consideration, comes to the conclusion that there
exists no reasonable doubt that an accused has
committed the crime
charged. He must, in other words, be morally certain of the guilt of
the accused.
’…”
[9]
The approach to be adopted in dealing with circumstantial evidence
in criminal cases was formulated by Watermeyer JA
R
V Blom
1939 AD 288
at 302-3 as follows: “(a) The inference sought to
be drawn must be consistent with all the proved facts. If it is not,
then the inference cannot be drawn. (b) The true facts should be
such that they exclude every reasonable inference from them save
the
one sought to be drawn. If they do not exclude other reasonable
inferences, then there must be doubt whether the inference
sought to
be drawn is correct.”