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[2021] ZAKZPHC 31
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Ngubane v S (Leave to Appeal) (AR 228/2020) [2021] ZAKZPHC 31 (4 June 2021)
IN
THE HIGH COURT
OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION
,
PIETERMARITZBURG
Case
No
:
AR
228
/
2020
In
the matter between
:
KHULEKANINGUBANE
APPELLANT
And
THE
STATE
RESPONDENT
ORDER
On
appeal from:
Regional Court sitting
at Greytown
,
KwaZulu-Natal
(Magistrate C
.
F
.
Masikane):
1.
The appeal aga
i
nst
conv
i
ction
is upheld
.
2.
The convict
i
on
and sentence are set aside
.
3.
The verdict of the regional court is set
side and
i
t
i
s replaced
w
i
th the
following
:
'Found not guilty and discharged
'
.
APPEAL
JUDGMENT
Mngadi,J:
[1]
The appellant having been convicted and
sentenced to life imprisonment
by
a court of a regional division appeals against both conviction and
sentence.
[2]
The appellant was charged before the
regional court with one (1) count of rape in contravention
of s 3 of the Sexual Offences and
Related Matters Amendment Act No
.
32
of 2007
.
The
charge was read with the provisions of section 51(1) and Schedule 2
of the Criminal Law Amendment Act No
.
105 of 1997. It alleged that on or about
19 April 2019 the appellant did unlawfully and intentionally commit
an act of sexual penetration
with
T
...
N
...
(the
complainant
,
)aged
nineteen (19) years
,
by
inserting his penis into her vagina without the consent of the said
complainant.
[3]
The appellant who was legally
represented when the charge was put to him pleaded not guilty to the
charge. The appellant as the basis
of defense, in terms of
s 115
of
the
Criminal Procedure Act No. 51 of 1977
,
stated that he and the complainant had
been in a love relationship since 2013
and that on the night in question he engaged with the complainant in
two rounds of consensual
sexual intercourse
.
[4]
The State adduced evidence of three
(3)
witnesses
,
namely
;
the
complainant
,
Xolani
Hlela (the complainant's boyfriend) and Bhekukwenza Mbanjwa (the
police officer who arrested the appellant)
.
The State with the consent of the
defense handed
in
as
evidence the medical report (J88) relating to the medical examination
of the complainant. The appellant testified and he called
one witness
Philisani Nhlakanipho Ngubane (the appellant
'
s
brother).
[5]
The complainant testified as follows
.
She knew the
appellant from 2013 when they
were in the same school but in different
grades
.
The
appellant proposed love to her but she did not accept the proposal.
She told the appellant that she had a boyfriend but the appellant
continued to propose love to her whenever he saw her until 2016. In
2016
,
she
relocated to a school in another area
.
She thereafter did not see the appellant
until on
the
date of the incident.
[6]
She testified that on 21 April 2019 she
had been at her home
.
She
stayed with her
mother,
her sister and he
r
younger
siblings
.
She
left at about 19h30 to see her boyf
r
iend
Xolani Hlela (Xolani)
.
She
had Xolani
'
s
cellphone
,
which
she wanted to return to him
.
She took it from him the previous day
when she had visited him
.
She
walked to his place
,
which
was about 30 minutes
'
walk
away
.
She
was used to walking to his home around that time
.
Near a bus
/
pick-up
stop with a tavern nearby, she noticed the appellant following her.
He caught up with her and he walked w
i
th
her
.
They
were walking and the appellant said where has she been
,
he had not seen her sometime
.
She told him that
she had not been staying at her home
.
The appellant wanted to go with her to
his home. His home was in the same area about 20 m
i
nutes
'
walk away
.
She told him that she was going to her
boyfriend and that she could not go with h
i
m
.
The appellant pleaded with
her to go with him but she refused
.
[7]
She testified that they proceeded
walking and talking
.
They
reached a certa
i
n
spot above a certain homestead
.
The
appellant started hitting her
,
he
said he wanted to take her to his homestead by force
.
He hit her by slapping her
.
She fell on to the pavement. The
appellant pulled her by her hair
.
She
screamed. She then stopped resisting to stop the appellant from
assaulting her. She then went with him
.
There were lighted homes nearby but
there were no people on the
road
.
[8]
She testified that they arrived at his
home
.
He
took her to his structure
.
There
was another house
,
which was the main house. The lights
were on in the main house
i
ndicatin
g
that
there were people. They got into his roo
m
.
She sat on the bed and he sat on the
chair
.
She
did not scream for help in fear that the appellant would hit her
.
The
appellant
left her in the room and he went into the main house. He walked out
and he
said
he would come back
.
She sent a
'
please
call-me back
'
to
her boyfriend
'
s
sister
.
It
did not go through since her cellphone was off. She did not have
airtime on her cellphone
for
her to
make
a call.
She
did
not
open the door because it had been locked from outside
.
[9]
She test
i
fied
that the appellant came back into the room. He made her lie on the
bed by pushing her onto to the bed. He undressed her
.
She was wearing a jumpsuit pants
,
at-shirt, a jacket
,
boots and a panty. He undressed himself
.
He put on a
condom
.
He opened her legs
.
He inserted his penis into her vagina
and he had sexual intercourse with her. She was crying and she had
tears. She asked him to release
her to go to her boyfriend but he
refused
.
He
fin
i
shedhaving
sexual
intercourse
and
he sat with her
.
She
was asking him to release her but he
refused.
He then told her
to
get on to the bed
,
to kneel on it and face away from him
.
She did so and he inserted his penis
into
her
vagina from the bac
k
.
He had sexual intercourse
with her until he ejaculate
d
.
He then slept on his back
.
She also laid on the bed on her back.
She pleaded with him
to
let
her go but he refused. She then relaxed
.
She realized that he had fallen asleep.
She got up and dressed herself but she did not find her panty
.
She opened the door and she went out.
She closed the door with a
latc
h
from outside
.
[10]
She testified that she ran to
Xolani
'
s
home
.
She
arrived at
about
23h00.
She still had her cellphone with her
.
It
took
her
about 20 minutes to reach Xolani
'
s
home
.
She
found
that Xolani
was
not at home.
The
door to his room was open
.
She
entered and
she
waited for him
.
He
arrived after about
10
minutes.
He did not ask where she was
coming
from so late.
She
reported to him what happened to her and that
the
appellant
raped her
.
Xolani
phoned
the police
.
[11]
She testified that Xolani
had
gone to look for her
.
He had been expecting her
.
She had his cellphone and he would not
sleep without his cellphone
.
He
knew
that
she
was coming to his house that night. The
police came and they took her to
the
police
station
.
She was taken to hospital where the
doctor examined her
.
She
told the
doctor
what happened.
[12]
The
complainant
testified that she had never visited the
appellant before
.
The
appellant
used
to come to her home when he came to buy something
.
Her mother used to sell liquor but she
stopped
.
The
complainant under cross-examination testified
that
the
appellant
slappe
d
her
once and
she
fell
onto the pavement. She was soaked with rain. She said she did not go
to the main house at the appellant's residence to seek help
because
she did not know how they would react. She said she did not have
airtime
,
but
she did think of sending
'
please-call
me
'
to
Xolani's sister
.
She
denied that on the previous day
,
she
had arranged to meet with the appellant the following day
,
and that he met with her as arranged
.
She said she knew Philisani the
appellant's brother and she
knew
nothing about Philisani's evidence to be given that she and
the
appellant were in a love relationship
for a long time
.
She
denied that the appellant took her to her home at about 22h30
.
She said she was not angry with the
appellant for proposing love to her
sister because she did not know anything
about that.
[13]
Xolani Hlela testified that he was the
boyfriend of the complainant. He
testified
that the previous day he was with the
complainant and he left his
cellphone
with the complainant. He went from a
nearby tavern to look for her at her home but he did
not
find
her
.
He
used the
usual sign of knocking at her bedroom and she would come out and go
with him
.
She
was sneaking out with him. He first went to look for her at 20h00 and
again
at
22h00
.
He
could not phone
her
because
his cellphone was
with
her
.
He then went to his home. He found the
complainant in his room. She was crying
.
She screamed
out
to
him and she wanted to hit him
.
She accused him of causing her to be
raped whilst he was busy with other women
.
He stated that the arrangement was that
he
would go
and fetch the complainant from her home
.
He went to look for her because he did
not
know
that
she had left
.
He
used
his
cellphone to phone the police because her
cellphone
was switched off. He noticed that
her face was swollen
.
[14]
Bhekukwenza
Percival Mbanjwa testified that he was a
police officer
.
At
about
2am
he received a report
.
He
met with the complainant. He
received
a
report
from
the
complainant.
He
went
to
the place
of
the
appellant
with the
complaint.
He found
the
appellant
sleeping in
his
room
.
The
complainant confirmed to him
that
it was the
appellant
who
raped
her
.
He then arrested the appellant.
[15]
The appellant testified as follows. He
was
in
a
love
relationship
with
the complainant. He arranged with the complaint
on 20 April 2018 that she would visit
him on 21 April 2018
.
They arranged that he would fetch her at
the pick-up stop near her home at about 18h30
.
He met with her as arranged and he
walked with her to his home
.
They
went passed the councilor
'
s
house and other
houses.
They arrived at his room
.
She
asked him to charge for her the cellphone which he did
.
They started
kissing
and engaged in foreplay
.
They had sexual intercourse.
She asked him to put on a condom and he
did so
.
In
the second round
,
the condom burst. It was a cold day.
They slept and then she said she had to go to her home because she
stayed with small children
.
He
told
her
that he too; he had to wake up in the morning
in
order to go to work
.
He then accompanied her back
to
her home. He left her near the pick-up
stop.
In
the early hours of the
morning
to his surprise
,
she
came to his place with the
police
.
He was then arrested it being alleged
that he raped the complainant. He thought the complainant decided to
have him arrested because
she was angry that he proposed
love
to her sister who was seducing him.
(16]
The appellant testified that he knew Xolani Hlengwa but he did
not know that he was a boyfriend of the complainant.
In January
,
he proposed love to the complainan
'
ts
sister. The complainant questioned him about it and he apologized
.
He testified that he was not
communicating with the
complainant
by
cellphone.
He
knew that she did not have a
cellphone.
He would send for her and she would come
and meet with him
.
He
insisted that in March he met with complainant and they had sexual
intercourse. He did not see her in the whole of 2018
;
he thought he saw her once
in
2017 and saw her three times in 2016
.
He did not see her in
2014
and
in
2015. He said that due
to
the
nature
of his work he was not able to see the
complainant for long periods. His brother told him that
the complainant
came
to
his home looking for him
.
The
complainant
told him that she did
not have a
cellphone
.
[17]
Philisani Nhlakanipho Ngubane testified
that he was the brother of the appellant. He knew the complainant
from her visiting the appellant
at
their home because she was in a love relationship with the appellant.
He saw the complainant and the appellant as lovers on a number
of
occasions. He saw them arriving his home at about 18h30 on the day of
the incident. On the day of the incident it had been a while
when he
last saw them
.
Except
on
the day of the
incident
he
had never seen the complainant in his home
.
[18]
The medical report noted no injuries on
the complainant. It also did no record that the complainant told the
doctor that she was assaulted
and that she fell onto the pavement.
There were no physical signs of forceful vaginal penetration noted
.
(19]
The learned regional magistrate stated that the complainant
gave good impression
to
the court
.
She gave her evidence logically and in a
straight foreword manner.
He
found it unlikely that the complainant having arranged to visit her
boyfriend she would arrange to visit the appellant at the same
time.
He also reasoned that complainant having
accepted the appellant's apology for
proposing love to the complainant's sister she could not for the same
reason later accused the
appellant for raping her. He found that the
evidence of the appellant's brother was not consistent with the
evidence of the appellant.
He concluded that it was clear that the
appellant and the complainant
were
never in a love relationshi
p
.
[20]
In my view
,
although the evidence of the appellant
on whether he had a love relationship with the complainant was very
poor
,
except
if it was a loose form of a love
relationship it could be rejected as
false
.
However
,
both the appellant and the complainant
agreed that they knew each other over a long period and
they
had engaged in a love relationship talk
.
Philani in seeing the appellant
proposing
love
to
the complainant a number of occasions
,
he might have taken that as an
indication of the existence of a love relationship. Further
,
the complainan
'
ts
evidence was that when she walked into the room of the appellant she
was not resisting or
crying
.
If Philani saw her at that time
,
he could not have known that she was
doing so against her will
.
It is strange
that
the complainant did not tell Xolani and the police that she had to
escape and in doing
so,
she left her panty in the room of the appellant.
[21]
The State is required to prove the guilt
of the appellant beyond reasonable doubt. The issue was whether the
sexual intercourse took
place with or without the consent of the
complainant. The State relied on the evidence of the complainant. The
complainant's evidence as evidence of a
single witness was required to be clear and satisfactory in all
material respect. In
S
v Dyira
2010 (1) SACR 78 (E) at para 6
the court held
: '
In
our law
it
is possible for an accused person to be
convicted on the single evidence of a
competent
witness
(section
208
of the
Criminal Procedure Act 51 of
1977
)
.
The
requirement
in
such
a
case
i
s
,
as always
,
proof of guilt beyond reasonable
doubt
,
and
to assist the courts in determining
whether the onus is discharged
,
they have developed a rule of practice
that requires the evidence of a single
witness to be approached with special
caution
(Rex v
Mokoena
1956
(3)
SA 81
(AD
)
at 85-
86)
.
This means that the courts must be alive
to the danger of relying on the evidence of only
one witness because it cannot be checked
against other evidence
'.
[22]
The learned regional magistrate
overlooked that the State was relying on the evidence of a single
witness and that the court was required
to approach the evidence with
the necessary caution
.
There
is no indication on the record that the trial court noted
that the State was
relying
on the evidence of a single witness
,
that it warned itself of the danger of
relying on the evidence of a single witness or that it approached
the evidence
of
the complainant with caution
.
The
exercise of caution entails appreciating
the
danger
of
relying for a conviction on the evidence
,
approaching the evidence with
caution
by closely scrutinizing the evidence to
take note of its unsatisfactory features and seeking safeguards that
the evidence can safely
be relied upon
.
See S
v
ffrench-Beytagh
1972 (3) SA 430
(A)
at 446A.
[23]
In my view
,
there are unsatisfactory features in the
evidence of the complainant
,
namely
;
1.
The complainant
testified
that
the
appellant
slapped her
once.
This
took place on
the
road
when he wanted her to
go
with him
.
It
was still about 20 minutes
'
walk
to
the appellant's home
.
It is inexplicable
that such an isolated single assault
would cause the complainant
to
submit and put up no resistance after it.
2.
The complainant did not try to run away
or cry for help. Even in the room when the
sexual intercourse was about to take
place she put up no resistance at all.
3.
The appellant left the in the room
.
The complainant did not attempt to
leave
.
She
would not have known that the door was
locked from outside.
It
is unlike
l
y
that the room (a separate structure) would have no windows
.
4.
The complainant at all times had in her
possession two cellphones. Her cellphone
was working because she used it to send
a
'
please-call-me.
'
If Xolani
'
s
sister
'
s
phone
was
off, why did the complainant not send
'
please-call-me
'
to other persons? Xolani used his
cellphone from the complainant to call the police
.
There is no explanation
,
why the complainant did not use the same
cellphone to seek help
.
5.
The complainant if she was locked in the
room and she could not escape
,
it
would have been expected that she would tell the police and the
police would inspect the room whether one could escape from it
or
not.
6.
The complainant as the reason for
submitting mentioned the assault. There is no recording in the
medical report that she told the
doctor that she was assaulted
.
If her
face
was swollen because of the assault the doctor would have noted the
injury on the
medical
report
.
7.
The complainant
testified that after the appellant
had fallen asleep she left her panty in
the room when she escaped
.
However
,
there is no evidence that she told the
police
that
she left her panty in the room for the police to assist her to
retrieve it.
It
also would
have
shown that she left escaping held against her will
.
[24]
In S
v
Francis
1991 (1) SACR 198
(A) at
p204 it was reiterated that the powers of a court of appeal to
interfere with the findings of fact of a trial court are limited.
In
the absence
of
any misdirectio
n
,
the
trial
court's
conclusio
n
,
including
its
acceptance
of
a witness evidence
,
is
presumed to be correct. In order to succeed on appeal
,
the appellant
must therefore convince the court of
appeal on adequate grounds that the tria
l
court was wrong in accepting the
witness
'
s
evidence. However, a court of appeal would be at large to disregard
the trial court
'
s
findings where the record reveals material misdirection of
fact.
In
the absence of such misdirection
,
the appeal court will on
l
y
reverse the trial court
'
s
conclusion where it is convinced that it is wrong
.
In that case
,
the appeal court would be at large to
disregard the findings of fact
,
even
though based on credibility and come to its own
conclusion in
the
matter
.
See
R v
Dhlumayo and another
1948 (2) SA 677
(
A
)
at
706
.
[25]
The learned regional magistrate
,
in my view
,
failed to approach the evidence of the
complainant with the necessary caution. The evidence of complainant
approached with the necessary
caution exhibits some unsatisfactory
features. It is no sheer coincidenc
e
,
i
n my view
,
that despite the complainant having the
opportunity and the means to do so
,
there was no evidence of the
complainant's resistance to the appellant taking her to his
residence
;
that
there was no evidence of resistance by the complainant to the
appellant having sexual intercourse with her
;
that there was no evidence of an attempt
by the complainant to escape
.
These factors render the appellant
'
s
version that she consented to sexual intercourse to be reasonably
possible true
.
There are no safeguards
and it is not safe
,
in my view
,
to rely on the single witness evidence
of the complainant to conv
ic
t
the appellant. In the result
,
the
State fa
i
led
to prove the guilt of the appellan
t
beyond reasonable doubt.
[26]
I propose the following orde
r:
1.
The appeal against conv
i
ction
is upheld
.
2.
The conviction
and sentence are set aside
.
3.
The verdict of the regional court is set
side and it
is
replaced with the following
:
'
Foundnot
guilty and discharged
'.
Mngadi,
J
I
agree
,
and
it
is
so
ordered.
Radebe,
J
APPEARANCES
Case
Number AR
228
/
2020
For
the
appellant Ms
.
Andrews
Instructed
by Legal
Aid SA
Pietermaritzburg
For
the respondent
: Mr
.
Sokhela
Instructed
by
Deputy Director Publ
i
c
Prosecutions
Pietermar
i
tzburg
Matter
argued
on on
28 May 2021
Judgment
delivered on 04
June 2021