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[2021] ZAKZPHC 78
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M.J.S v S (AR659/2018) [2021] ZAKZPHC 78 (21 May 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: AR 659/2018
In
the matter between:
M[…]
J[…]
S[…] APPELLANT
and
THE
STATE RESPONDENT
ORDER
On
appeal from:
Ladysmith Regional Court
(sitting as court of first instance):
The appeal against
conviction is allowed and is set aside.
JUDGMENT
Mossop
AJ:
Introduction
[1]
This
is an appeal against the appellant’s conviction on a charge of
the rape of his daughter. The appellant stood trial in
the Ladysmith
Regional Court and was convicted on a charge of rape, allegedly
committed during February 2014 and June 2014 and
was sentenced to 18
years’ imprisonment. He sought leave to appeal against his
conviction and sentence from the court a quo,
but his application was
refused. He then petitioned the Judge President of this division for
leave to appeal against his conviction
only, which was granted on 20
August 2019.
The
basis of the appeal
[2]
The
appeal is predicated on two main criticisms of the proceedings in the
regional court by the appellant. Firstly, the appellant
contends that
the trial court did not approach his evidence on an impartial basis
and, secondly, he contends that the trial court
failed to properly
consider the inconsistencies and contradictions between the evidence
of the complainant and the evidence of
other witnesses called by the
State. In due course, these contentions will be considered in some
detail, but it is perhaps prudent
at this juncture to briefly set out
the evidence that led to the appellant’s conviction.
The
evidence
[3]
The
appellant has worked for the past 20 years in Johannesburg but has
his home at Ekuvukeni in the Nazareth area near Ladysmith.
He returns
to his home on certain defined occasions, namely Good Friday,
Christmas and when he takes his annual leave which, according
to him,
is in August of each year. He may also return for important ad hoc
family events and emergencies. He is married and has
three children,
all of whom are girls, one of whom is the complainant. At the
relevant time and according to the charge sheet,
the complainant was
12 years old.
[4]
The
complainant testified that she resided with her grandmother but that
when the appellant returned home, he would call for her
and take her
to his homestead which is situated near her grandmother’s
homestead. She alleged that during February 2014,
the appellant had
returned home and taken her from her grandmother’s homestead to
his homestead. She slept with him in a
room and shared a bed with
him. During an evening in February 2014, the precise date of which
was never disclosed, whilst she was
on his bed, the appellant turned
her over, undressed her and climbed on top of her. He then inserted
his penis into her vagina
and had intercourse with her. After he was
finished, they both dressed, and the complainant went back to sleep.
She did not report
what had happened to anyone as she was afraid that
if she disclosed it, that person would inform her father who might
then hit
her.
[5]
The
complainant testified that these events were repeated in June 2014
when the appellant again returned home. The exact date of
the second
offence was not mentioned either. She was taken from her
grandmother’s homestead to the appellant’s homestead.
When she realised that she was to accompany the appellant to his
homestead, she cried as she thought that he would again have
intercourse with her. Her fears were well-placed as the appellant
again undressed her and inserted his penis into her vagina. The
next
day she returned to her grandmother’s homestead and reported
what had happened to her aunt, Ms P[…] S[…]
(Ms S[…]).
Her explanation for reporting what had happened to Ms S[…] and
no-one else was that she knew her aunt
was not on good terms with her
father and believed therefore that her aunt would not inform her
father of what she had been told
by the complainant.
[6]
Ms
S[…] is the sister of the appellant. She testified that the
complainant confided what had happened to her at the hands
of the
appellant in October 2014. This came about because Ms S[…]
discerned that the complainant was reluctant to visit
her at the
place where she stays. When she tried to ascertain why this was the
case, the complainant said that her father was at
home and then
revealed the rapes to her.
[7]
Ms
S[…] testified that she never had a problem with her brother,
the appellant, but did concede that he had dismissed her
from the
family homestead. Under cross-examination, the witness conceded that
she had waited several weeks before taking action
after being
informed of the rapes by the complainant. That action consisted of
reporting the matter to certain social workers and
not to the police.
Her explanation for this was that she was still discussing the
incident with her younger aunt. She also stated
that she herself had
been raped and knew that if there was a long gap between the rape and
the date when it was reported, the police
could not do much. In
response to a question from the appellant’s legal
representative as to whether the complainant told
Ms S[…] how
many times or occasions she was raped by her father, Ms S[…]
answered as follows:
‘
I
asked her, since from when and for how long. She said she cannot
recall but she recalled that by the time that she was staying
in the
neighbour’s house, which is 2011 and by that time I was at the
college.’
[8]
Under
cross-examination, the following further exchange occurred:
‘
MR
SHABANGU
Okay, are there other occasions that she was raped other than 2011?
--- She said to me, he
started during that time. Every time when he
had come back he used to take her from the grandmother’s house
and take her
home.’
[9]
Ms
S[…] confirmed that the appellant only returned home during
Easter and when he took his leave in August and in December.
She
denied that she had put the complainant up to laying false charges
against the appellant, but she did admit the existence of
a dispute
between herself and the appellant and that at the time she gave her
evidence, she was not speaking to the appellant.
[10]
On
2 January 2015, the social workers to whom Ms S[…] had
reported the matter, took action and the complainant was taken
to a
clinic where she was examined by a doctor, to whom she narrated what
had happened. The complainant indicated in her oral evidence
that she
told the doctor that she had been raped by her father twice, in
February 2014 and in June 2014.
[11]
The
doctor who examined the complainant was Dr Kranzi, who was employed
at the Ladysmith Provincial Hospital. He found tears of
the
complainant’s hymen at the three and nine o’clock
positions (the positions being identified by reference to a clock
face). The transverse opening of the vulva was found to be six
millimetres wide and the vertical opening four millimetres wide,
which the doctor found to be abnormal. He completed a J88 document
and recorded the following under the heading ‘Relevant
medical
history and medication’:
‘
Abuse
by father on February (2) times on June (3) times.’
[12]
The
doctor concluded the J88 with the following words:
‘
Sexually
abuse by father on February and June 2014.’
[13]
The
appellant denied that he was guilty of what his daughter alleged and
suggested that his estranged sister, Ms S[…], had
prevailed
upon the complainant to falsely accuse him. He testified that he
would only return home on Good Friday, in August during
his leave and
in December. He indicated that he had gone home at Easter in 2014 but
could not remember when Good Friday fell that
year. He explained that
Good Friday was usually in April or March. He testified that the
complainant did not come to his homestead
during Easter. He did take
his leave in August 2014, as usual, and returned to his homestead. He
ultimately testified that the
complainant had come to his homestead
in August 2014 and slept in the same room as him, but he indicated
that on that occasion
his erstwhile girlfriend was with him. The
complainant slept at his homestead on two occasions in August 2014.
In December 2014,
he returned home for a family ceremony. The
complainant was not present at the ceremony and was left in the care
of her aunts at
her grandmother’s homestead. As to why his
sister would use his daughter to falsely accuse him, the appellant
alleged that
his sister had apparently spent his money when she was
not supposed to do so, disposed of some thatch belonging to the
appellant,
sold his bricks and spent the proceeds that she derived
from such sale. He and his sister were not speaking to each other as
a
result, and this had been the situation since before 2014.
[14]
On
28 December 2014, while at home for a family ceremony, he had been
approached by social workers who had the complainant and various
other family members with them. He was advised of the allegations
that had been made against him. He then was permitted to ask
the
complainant a question. His evidence on this aspect was as follows:
‘
I
asked her and said Asanda did I ever sleep with you, she responded in
one word and said the aunt has said I should say I slept
with you.’
He
was later arrested on 2 January 2015.
[15]
The
appellant emphasised that his sister, Ms S[…], was not a
truthful person and was not a good example to the people and
the
children in the area. He denied that the complainant slept on his bed
as she had testified and said that the children in his
homestead
sleep on sponge mattresses, a fact referred to by the complainant. He
further testified that he continues to have an
intimate relationship
with the complainant’s mother. He described himself as a good
person with an unblemished employment
record. The appellant was
cross-examined by the prosecutor, and I shall revert to that
cross-examination later in this judgment.
[16]
The
appellant called Ms D[…] S[…] S[…] (the
grandmother) to testify on his behalf. The complainant resided
with
her. She described the appellant as being her husband’s
brother’s son. According to her, the appellant came to
fetch
his daughter twice during August 2014. The complainant did not
protest when she realised she had to go to her father’s
homestead, and nothing was disclosed to her on each occasion when she
returned to her homestead. She confirmed further that Ms
S[…]
and the appellant were not on good terms. She also confirmed that the
appellant came home at Easter, in December at
Christmas and when he
took his annual leave in August. She testified that the appellant had
informed her that Ms S[…] had
stolen his money and sold his
thatch. It was put to her by the prosecutor that the appellant had
testified that he had fetched
the complainant from her homestead on
Good Friday in 2014 and an attempt was made to get the grandmother to
agree to this proposition.
The witness was adamant that this had not
occurred. In fact, what was put to the grandmother was totally
incorrect: the appellant
had not testified to that fact, his version
being throughout that he did not call for the complainant at Easter
2014.
[17]
I
turn now to consider the two principal points raised by the defence
as to why the appellant’s conviction is unsound.
The
trial court was not impartial
[18]
The
appellant contends that the regional magistrate improperly descended
into the arena. In this regard, reference is made to the
fact that
the regional magistrate interacted with the appellant in isiZulu on a
number of occasions. When this happened, what was
said in isiZulu was
not recorded or translated. An example of this interaction occurs at
page 121 of the record:
‘
COURT
Thank you . . . [speaking in isiZulu 01:29] no, no, no, that is not
the issue. .
. [speaking in IsiZulu]. Let us proceed, ma’am.’
[19]
This
is not the only instance of that type of exchange occurring. It
occurred again at pages 126, 137 and 143 of the record. What
was said
on each occasion is unknown. It is difficult to conclude therefore
that the regional magistrate entered the arena as alleged
or said
anything improper or irregular. There may be a quite innocent
explanation for this type of conduct. Had anything improper
been
said, it is to be expected that the appellant’s legal
representative, Mr Shabangu, would have said something. He did
not.
However, it can be stated with some certainty that everything that is
said in a trial should be capable of being considered
by a court of
higher authority, if necessary. It is perhaps stating the obvious
that a record is of cardinal importance in appeal
matters. The record
forms the basis of the appeal court hearing. Where the record is
inadequate or there are parts of it not capable
of being transcribed
it may have consequences.
While the record need not be perfect, it must be adequate.
[1]
A judicial officer should ensure that when he or she addresses an
accused person, that what is said is capable of being translated
and
transcribed and should ensure that both occur. The problem does not
end there. Having recorded that the prosecutor, Mrs Singh,
was not
conversant in isiZulu, at page 126 of the record, the following
interaction occurs:
‘
COURT
Mr Prosecutor – Mr Interpreter,
please, may I?
INTERPRETER
Yes,
Your Worship.
COURT
Thank you. … [speaking in IsiZulu].
MR
SHABANGU
As the
Court pleases, Your Worship.
COURT
Is there anything you want to say?
MR SHABANGU
As
the Court pleases, Your Worship, nothing to add.
COURT
Nothing to add? Thank you.
Let us proceed. You were not in?
PROSECUTOR
Yes Your Worship.
COURT
Me and the accused were in
on this.
PROSECUTOR
As the Court pleases, Your Worship.’
[20]
Not
only does this court not know and understand what was said to the
appellant, but the prosecutor was also unaware of what the
regional
magistrate had said to him. There should never be an instance where
only a judicial officer and the accused are ‘
in
’
on any issue to the exclusion of the prosecutor.
[21]
Reference
is also made by the appellant to the fact that the regional
magistrate demonstrated a loss of objectivity and decorum.
This arose
from a number of utterances made by the regional magistrate to the
appellant. Such utterances included the following:
‘
Mkhulu
,
open eyes, eyes, eyes, no blindness here, open wide, wide open.’
[22]
While
these statements appear relatively innocuous, and may simply
constitute colourful local vernacular, there is the possibility
that
the appellant viewed matters in a different light after hearing such
types of admonishment. That this is a possibility is
revealed by the
following exchange between the court and the appellant:
‘
COURT
Please?
Mkhulu
, let us not play the blind games here. --- If I
can ask where have I done wrong now?’
[23]
The
impression created by this response from the appellant is that he
felt that whatever he said was incorrect and was annoying
the court.
A witness, including an accused person giving evidence in his own
trial, should not feel under attack from any one,
let alone the
court. A presiding officer is expected to display patience and
tolerance, especially with people who are not familiar
with how a
court operates, and should refrain from making utterances that may
cause a witness including, and especially, an accused
person, to
believe that his performance, demeanour and the value of his evidence
has already been negatively determined. This impression
may have been
created in the mind of the appellant arising from the following
exchange:
‘
PROSECUTOR
Your Worship, I do not think the accused is understanding my
questions.
COURT
No, he does understand your questions.
PROSECUTOR
He is just being evasive? As the Court pleases. Sir.’
The
inference was that the court believed that the appellant was being
evasive and was wilfully not answering questions put to him
and said
as much. That is certainly how the prosecutor understood the court’s
comment and there is no reason not to think
that the appellant also
derived the same meaning from those comments.
[24]
Witnesses
should be spoken to respectfully and should not be spoken down to, as
occurred in this instance. The appellant was a 48-year-old
man and
despite the use of the honorific title ‘
mkhulu
’,
he was spoke to as if he were a child. It was unbecoming of the
regional magistrate. Finally, on this score, the regional
magistrate
made a most unfortunate comment, as follows:
‘
COURT
Mkhulu
,
can I ask this of you? I have been observing you throughout your
testimony.
Mkhulu
, at all times I actually get the feeling
that you might actually even hurt the prosecutor, let us not get
physical about this.’
[25]
Such
comments should not be made. Indeed, at the commencement of the trial
the appellant’s legal representative drew it to
the court’s
attention that the appellant stuttered when he spoke, and when he
stuttered, his habit was to raise his hand
before he uttered any
further words. His legal representative went on to say:
‘
If he is saying
that he does not want to seem to be aggressive.’
There
was no evidence that indicated that the comment passed by the
regional magistrate was called for or justified. The statement
cannot
but have created the impression in the mind of the appellant that the
court did not view him and his version in a favourable
light.
[26]
The
further complaint of the appellant was the conduct of the regional
magistrate when the appellant’s legal representative
attempted
to prove the complainant’s witness statement. I have considered
that portion of the record and I can discern no
impropriety in what
occurred. It is the court’s function to ensure that statements
that are to be put to witnesses are properly
proved. The appellant’s
legal representative was informed that he had not properly proved the
statement and appears not to
have attempted to prove it properly
thereafter.
[27]
There
are unfortunate aspects to the manner in which proceedings were
conducted by the regional magistrate. After anxious consideration,
I
am not prepared to find that these on their own meant that the
appellant was denied a fair trial, however unsatisfactory the
regional magistrate’s conduct was.
Contradictions
not properly considered
[28]
This
is the second ground upon which the proceedings in the court a quo
was criticised by the appellant. Certain differences in
the evidence
tendered on behalf of the State were highlighted. On the issue of the
rape, in summary, the differences were:
(a) the
complainant testified that she was raped once in February 2014 and
once in June 2014;
(b) Dr
Kranzi testified that the complainant informed him that she had been
raped by her father twice
in February 2014 and three times in June
2014; and
(c) Ms
S[…]
testified that the complainant
informed her that the rapes had commenced in 2011.
[29]
In
addition, forming part of the record of proceedings, there are a
number of charge sheets. At page two of the record, there is
a typed
charge sheet which is the charge sheet that the court a quo relied
upon to convict the appellant. It mentions the months
of February
2014 and June 2014 as the dates when the complainant was allegedly
raped by the appellant. However, there are other
charge sheets that
form part of the record. There are three in all, each one being a
charge of rape. These appear to be earlier
iterations of the charge
sheet. They are also typed, but do not appear to have been formally
used to prosecute the appellant. They
appear at page 25, 26 and 27 of
the record respectively. The charge sheet at page 25 records the date
of the rape as being during
April 2014, the charge sheet at page 26
records the date of the rape as being February 2014 and the charge
sheet at page 27 records
the date of the rape as being February 2014.
These charge sheets do not accord with the evidence led. There was no
mention by the
complainant of a double rape in February 2014, nor was
there mention of a rape at all in April 2014. There must, however,
have
been some information that existed to warrant these charge
sheets being drawn up. At one stage in his evidence, the appellant
referred
to three allegations of rape, indicating that they were
alleged to have occurred in February 2014 (twice) and October 2014.
He
was incorrect about the October averment but he was correct that
the original charge sheets alleged three rapes. He was chastised
by
the prosecutor and later by the regional magistrate for saying so.
But for the incorrect month, he was correct.
[30]
These
are disturbing differences when one considers that the liberty of the
appellant is dependent on the court accepting the complainant’s
evidence as being correct.
[31]
There
were other notable discrepancies between the evidence of the
complainant and Ms
S[…]
. Ms
S[…]
,
as pointed out by Ms Franklin who appeared for the appellant, stated
that the complainant had informed her that she had not reported
the
occurrence of the rapes to any one as:
‘
Her father said if
she ever reports to anyone about what is happening there, her father
said he is going to kill her and leave her
in that room and go back
to Johannesburg, as no one stays in that house.’
This
must be compared with the following extract from the
cross-examination of the complainant:
‘
MR SHABANGU
As the Court please, Your Worship. The Court’s indulgence Your
Worship? Impelandle, after your father
did what you alleged he did to
you, did he threaten you? --- No
MR SHABANGU
Have you told anyone that your father threatened you? --- No.’
[32]
A
further inconsistency arose between the evidence of the complainant
and Ms
S[…]
when the complainant
testified that she informed Ms
S[…]
of
her rape. She indicated that this had occurred in June 2014. Ms
S[…]
testified that this only occurred in October 2014.
[33]
In
my view, there is merit in the submission that the regional
magistrate failed to consider these contradictions. It appears to
me
that the regional magistrate erred in concluding that the State
proved its case beyond a reasonable doubt. The differences in
the
evidence between the witnesses called by the State throws a
considerable shadow on the perceived strength of that case.
The
alibi
[34]
Even
if I am incorrect in the conclusion made above, there is another
basis
upon
which, in my view, the appeal must succeed. At the conclusion of her
judgment, the regional magistrate stated the following:
‘
The Court rejects
the version of the accused as not being reasonably, possibly true,
more especially his, if I may call it an alibi,
the story of the
fabrication for reasons that have also been mentioned and the
inherent improbabilities that are attached to it.’
[35]
The
regional magistrate recognised that the defence raised was an alibi,
although it was not formally pleaded as such. But it was
obvious to
all the participants in the trial that the appellant’s case was
that he only returned from Johannesburg at Easter,
when he took leave
in August and in December and when there was an emergency that
required his attendance back at home. If it was
the State’s
case that the rape happened at a time or times outside those dates,
then he could not be the rapist as he was
in Johannesburg.
[36]
It
is trite that there is no onus on an accused to establish his alibi.
If the alibi might reasonably be true, then the accused
must be
acquitted. Furthermore, the alibi does not have to be considered in
isolation from other evidence. The correct approach
is to consider
the alibi in the light of the totality of the evidence presented
before court. In
R v Hlongwane
, Holmes AJA stated as follows:
‘
At the conclusion
of the whole case the issues were (a) whether the alibi might
reasonably be true and (b) whether the denial of
complicity might
reasonably be true. An affirmative answer to either (a) or (b) would
mean that the Crown failed to prove beyond
reasonable doubt that the
accused was one of the robbers.’
[2]
[37]
That
would be true of the facts in this case. If it was established that
the complainant was raped at a time when the appellant
was not at
home, he could not be the rapist and the State would have failed to
prove its case beyond a reasonable doubt.
[38]
In
S v
Musiker,
[3]
the Supreme Court of Appeal held that once an alibi has been raised,
it has to be accepted, unless it can be proven that it is
false
beyond a reasonable doubt.
[39]
Where
the evidence demonstrates the existence of an alibi and there is a
reasonable possibility that such evidence is true, it follows
that
the trial court should find that there is a reasonable possibility
that the prosecution's evidence is mistaken or false. There
cannot be
a reasonable possibility that the two versions are both correct. This
reasoning is consistent with the approach to alibi
evidence laid down
by the Appellate Division nearly 70 years ago in
R
v Biya,
[4]
where
Greenberg JA said:
‘
If there is
evidence of an accused person's presence at a place and at a time
which makes it impossible for him to have committed
the crime
charged, then if on all the evidence there is a reasonable
possibility that this alibi evidence is true it means that
there is
the same possibility that he has not committed the crime.’
[5]
[40]
The
rule of evidence that the late disclosure of an alibi affects the
weight to be placed on the evidence supporting the alibi is
one which
is well recognized in our common law.
[6]
In considering the appellant’s alibi, I am mindful of the fact
that he did not plead the existence of such at the commencement
of
the trial. However, it emerged relatively early on in the proceedings
that the appellant’s version would be that he only
returned to
his home on certain defined occasions. It was put to the complainant
that the appellant had been at home in December
2013 and had next
come home on Good Friday in 2014. When Ms
S[…]
testified
she said that:
‘
He comes back home
during the Easter holidays, when he is on leave and in December and
sometimes when there is something that is
done at his homestead, he
comes back.’
The
appellant’s version was thus ever present.
[41]
The
difficulty for the State is that the regional magistrate acknowledged
the nature of the defence but then failed to take into
account the
fact that it was the State who bore the onus of negating the
appellant’s alibi. It does not appear that it made
any positive
attempts to do so. It could have called the appellant’s
employer to disprove when he took his annual leave or
to testify
about any other occasion when he took time off. It chose not to do
so. The prosecutor tried to cross-examine the appellant
but, in
truth, spent most of the time quarrelling with him. She tried to
elicit an admission from him that he came home at a time
other than
at Easter 2014, during August 2014 when he habitually took his leave
and at December 2014. No such admission was forthcoming
from the
appellant. The same was attempted with the grandmother, with the same
result. In effect, therefore, the regional magistrate
was faced with
two mutually destructive versions. There was, in my view, sufficient
reason to conclude that the appellant’s
version that he only
came home at Easter, during August when he took his annual leave and
during December was reasonably possibly
true. Given the
contradictions in the dates of the rape, I conclude that the
magistrate had no sound reason to prefer the evidence
of the
complainant to that of the appellant.
[7]
[42]
Finally,
there is the evidence of the appellant that the complainant confessed
that she had been told by Ms
S[…]
to
say that she had been raped by the appellant. Admittedly this was
only revealed by the appellant when he testified and not earlier.
But
given the acknowledged feud between him and his sister, it is weighty
evidence and worthy of consideration. The State could
have requested
leave to lead evidence in rebuttal of that statement but did not do
so.
Conclusion
[43]
On
a general conspectus of the evidence, I am of the view that it would
be unsafe to allow the conviction of the appellant to stand.
I
accordingly would propose that the appeal be allowed and that the
appellant’s conviction be set aside.
Mossop
AJ
I
agree and it is so ordered.
Madondo
J
Deputy Judge President
APPEARANCES
Counsel
for the appellant: Advocate
D. Franklin
Instructed
by:
Counsel for the
respondent: Advocate P. N. Ngcobo
Instructed
by: The
Director of Public Prosecutions
Pietermaritzburg
Date of
Hearing: 21
May 2021
Date of
Judgment: 21
May 2021
[1]
S
v Chabedi
2005
(1) SACR 415
(SCA) para 5.
[2]
R v
Hlongwane
1959
(3) SA 337
(A) at 339C-D.
[3]
S v
Musiker
2013
(1) SACR 517
(SCA) paras 15-16.
[4]
R v
Biya
1952
(4) SA 514 (A).
[5]
Ibid
at
521C-D.
[6]
R v
Mashelele and another
1944 AD 571.
[7]
Petersen
v S
[2006]
JOL 16082
(SCA) para 8.