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[2021] ZAKZPHC 52
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Gambushe v S (AR38/2020) [2021] ZAKZPHC 52 (23 July 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: AR38/2020
In
the matter between:
PHUMLANI
AMOS
GAMBUSHE APPELLANT
And
THE
STATE RESPONDENT
ORDER
On
appeal from:
Regional Court sitting at Ezinqoleni, KwaZulu-Natal
(Magistrate L. Yengopal):
1. The
appeal against conviction is upheld.
2. The
conviction and sentence are set aside.
3. The
verdict of the regional court is set side and substituted thereof
with the following: 'Found
not guilty and discharged'.
JUDGMENT
Mngadi,J:
[1] The
appellant having been convicted and sentenced to life imprisonment by
a court of a regional division appeals
as of an automatic right
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 (count 1) and with
kidnapping(count 2) . The charge of rape was
read with the provisions
of subsections (1) and (2) of section 51 and Parts 1 of Schedule 2 of
the Criminal Law Amendment Act No.
105 of 1997 (CLM) on the basis
that the complainant was raped more than once by the accused, his
co-perpetrator or accomplice.
The charge alleged that on or about 5
September 2018 the appellant did unlawfully and intentionally commit
an act of sexual penetration
with L.M. (the complainant) a 20 year
old female without her consent. The charge of kidnapping alleged the
appellant deprived the
complainant in count 1 on the same date and
place as in count 1 by forcefully taking her into NPC bushes without
her consent and
keeping her for a while.
[3] The
appellant initially resisted the start of the trial without DNA
evidence. When the charges were put to
the appellant, who was legally
represented, he pleaded not guilty to the charges and he through his
legal representative elected
to remain silent.
[4] The
State adduced evidence of only two (2) witnesses, namely; the
complainant, and her mother M.M.X. The appellant
did not testify and
he did not call any defense witnesses. 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 learned regional
magistrate after hearing evidence
convicted the appellant as charged
on count 1. He acquitted the appellant on the charge of kidnapping
finding that it constituted
an impermissible duplication of charges
with count 1. The court found no substantial and compelling
circumstances for the court
to impose a sentence less than the
prescribed minimum sentenced and imposed on the appellant the
sentence of life imprisonment.
[5] The
complainant testified as follows. On 5 September 2018, she was in the
village of N[…] where she
resided. She at about 19h00 left her
place of residence and she proceeded to visit her then boyfriend. She
met with her boyfriend
and they stood on the side of the road
chatting. A young male person dark in complexion approached them. He
shined a cellphone
flashlight onto their faces. He then said the
complainant was his girlfriend. He instructed the complainant's
boyfriend to go away.
The complainant's boyfriend walked away. The
complainant told the unknown person that she did not know him and she
was not his
girlfriend. The person insisted that the complainant was
his girlfriend. He demanded that the complainant must go with him.
The
complainant refused. He grabbed the complainant around her neck
and the shoulder area. He grabbed her with her jacket and he pulled
her towards a forest. He assaulted her by slapping her on her face.
He took her deep into the forest. He instructed her to sit
down. He
pushed on to the ground. She fell onto her back. He sat down next to
her. He instructed her to take off the jacket she
was wearing. She
refused and he slapped her twice on her face. He instructed to take
off the pants she was wearing. She refused
and he started strangling
her until she coughed and started bleeding from her mouth and nose.
She took off her pants. He removed
her panty. He lowered his pants.
She asked him to use a condom. He took a condom out of his pants'
pocket and he put it on. He
had sexual intercourse with her. She
experienced pain in her private part. He finished and he sat next to
her. He then said they
must have sexual intercourse again. She told
him that she did not want to have sexual intercourse with him. He
proceeded to have
sexual intercourse with her without a condom until
he ejaculated. He deposited his sperms on her belly. He finished and
he moved
off her. He said he was apologetic for what he had done. The
complainant, due to fear, said she was forgiving him. He said if she
ever report what happened he would kill her and burn down her family
home. She told him that she would report to her uncle who
was a
police officer at l[…]. He said he was not afraid of him. He
accompanied her out of the forest. He wanted to accompany
her to her
home. He asked her to point to him her home. She pointed to him a
wrong house. He asked for her cell number and the
WhatsApp number.
She gave the number to him. He had seen that she was carrying a
cellphone. He then went away. She proceeded to
her home.
[6] The
complainant testified that after two days on a Saturday she was at
her home sleeping. She was sleeping
with N[…], A.1. and A.2.
People knocked on the door. N[…] asked who they were. They
responded that they were S[…]
and X[…]. She told N[…]
not to open the door. The people at the door threatened to kick down
the door. N[…]
opened the door. They entered the house and
they sat on the sofa. X[…] said he was looking for A.3. She
told X[…]
that A.3. was not around. S[…] said he had
come to see her. He said he wanted her to be in a love relationship
with him.
[7] She
testified that the person who accosted and raped her on Wednesday 5
September 2018 introduced himself as
S[…]. He introduced
himself when she said she was not his girlfriend and she did not know
him. He did not tell her his surname.
N[…] then called her
father. N[…]'s father said he would attend to them in the
morning. S[…] said he did not
care even if N[…] can
call her father or even if N[…]'s father had a big head, he
was not afraid of him. N[…]
went out to call M.X. from his
house behind the house in which they were. X[…] went out and
he ran away. A.2. too ran away.
S[…] hit the complainant with
an open hand. He pushed her from the bed to the floor. He said he
wanted to kill her and he
asked for a knife. She told him to go and
look for it in the cupboard. She got an opportunity and she escaped.
M.X. and the community
members arrived and looked for him but he had
ran away. One of the person who arrived was M.M.X. The complainant
told her that
S[…] raped her on Wednesday. M.M.X. stayed with
them until it was in the morning. S[…]'s mother came to her
and she
said she was apologizing to her for what her son had done.
N[…]'s father arrived and he advised her to report the matter
to the police. X[…] told her that S[…] was Amos
Gambushe.
[8] The
complainant testified under cross-examination as follows. No other
people came to where on the road she
was standing with her boyfriend.
There were houses nearby. Her boyfriend ran away. The unknown person
chased him away. Her boyfriend
saw that she was in danger but he did
not seek help for her. She never saw him after that night. It was
dark where the unknown
person accosted her. She did not know that
person and she was not able to identify him or his clothing since it
was dark. She after
the rape went to her home. She did not report to
any person that he raped her. She only told M.M.X. on Saturday
morning. She said
she was not mistaken that the appellant is the
person who raped because when he came with X[…] he said he was
S[…]
and he said that he wanted her to be his girlfriend, the
same thing said by the person who raped her. She said S[…]
said
'even on Wednesday I told you that I wanted you to be my
girlfriend'. When told that the appellant denied that he was the
person
who accosted and raped her on Wednesday, she said it was he.
She agreed that the appellant went to her house with X[…] for
X[…] to see his girlfriend A.3. She said when the appellant
came to the house he had been drinking and he caused trouble.
She
said the appellant assaulted her and that is when N[…] left
and went to call the neighbors. The complainant said the
appellant's
mother told her that the appellant reported to her that they had
caused chaos in the complainant's house and she came
to apologize for
that. She also agreed that when her mother came to apologize, she
came with the appellant. She said the appellant
arrived after she had
told his mother what he did. She said X[…] showed the
appellant her house. She said when the appellant
came to her house
with X[…] he ought to have seen that she was the person he
raped on Wednesday because he had shined the
flashlight onto her
face. She said it is unlikely that her assailant on Wednesday would
say he is S[…], assault her and
the appellant on Saturday say,
and do the same, if it was not the same person. She said those are
her only reasons that it was
the same person on both occasions. She
said she did not say that the other reason was because the appellant
said on Saturday that
'he said on Wednesday he wanted her to his
girlfriend' because she thought the court wanted a different reason.
She said she did
not report the rape before Saturday because she did
not know the person who raped her, she did not know where he came
from, where
he stayed and she had not identified him.
[9] M.M.X
testified as follows. She knew both the appellant and the
complainant. The appellant was the child of
the area. On 7 September
2018, she heard a quarrel and children crying. N[…] then
knocked on her door. She told her that
X[…] and the appellant
were in their house. She went to the house of N[…]. They found
that X[…] and the appellant
had ran away. She sat with the
children until their father arrived in the morning. The complainant
told her that Phumlani raped
her on Wednesday. She told her that he
raped her when they met at a tavern at k[…]. She told her
whilst she was with Gago
K[…]. She said she was with S.S, S.S.
would be known to Phumlani. He is S.S. The complainant said she was
walking with S.S.
and Phumlani hit her with an open hand. She said
whilst she was with Gogo K[…] the appellant's mother
apologized and she
said the appellant did what he did due to alcohol.
She said she was apologizing that the appellant and X[…] went
to the
complainant's place at night. The appellant also arrived and
he said he was apologizing it was due to alcohol for them to go to
the complainant's place. She heard the appellant apologizing to the
complainant for the commotion they caused and the complainant
did not
say anything.
[10] The
State closed its case. The appellant applied for a discharge in terms
of s174 of the
Criminal Procedure Act No. 51 of 1977
. The regional
magistrate refused the application for a discharge. The appellant
closed the defence case.
[11] The
learned regional magistrate stated that the onus was on the State to
prove the guilt of an accused. The
evidence of the complainant was
that of a single witness to be approached with caution. However, so
reasoned the court, the cautionary
rule was not something special, it
is not there to absent common sense. The court stated that it was
very impressed with the way
the complainant testified. She came forth
as a person who did not deliberately lie to make her case stronger.
The court found that
when the appellant said: 'I am repeating what I
said to you on 5 September' the only inference is that he was the
person with the
complainant on 5 September 2018, and that when the
appellant elected not to testify that
prima facie
evidence
catapulted into evidence beyond reasonable doubt.
[12] The
learned magistrate is not correct in saying that it was not denied
that the appellant on Saturday said
to the complainant: 'I am
repeating what I said to you on 5 Wednesday 'or words to that effect.
The State was aware before it closed
its case that the defence was
denying making the said statement. Nevertheless, the State chose not
to call any of the other persons
who were with the complainant and
the appellant in the room when the said statement was allegedly said.
The complainant in her
evidence in chief did not say that the
appellant said the said statement. The complainant said the only
reasons she concluded that
the appellant was the person who raped her
on Wednesday was because he said on Saturday he was S[…] and
he assaulted her.
The same things said and done by the person who
raped her on Saturday. Further, the complainant in the presence of
the appellant's
mother and Ms. M.M.X. did not accuse the appellant of
raping her on Wednesday (5 September) and demand an apology. The
complainant
also did not tell Ms. M.M.X. that the appellant admitted
to her that he raped her on 5 September.
[13] In
my view, the evidence that the appellant admitted on Saturday to the
complainant that he raped her on Wednesday
is very poor. It is so
poor that the appellant's decision not to testify was fully
justified. It did not establish a
prima facie
case calling for
an answer. The regional magistrate correctly appreciated the fact
that on Saturday the appellant said he was S[…]
and that he
said he wanted the complainant to have a love relationship with did
not implicate the appellant to the incident on
5 September 2018.
[14] The
State bears the onus to prove the guilt of the appellant beyond
reasonable doubt. Furthermore, the accused's
version cannot be
rejected solely on the basis that it is improbable, but once the
trial court has found on credible evidence that
the accused's version
is false beyond reasonable doubt (S
v V
2000(1) SACR 453 (SCA)
at 4558).
[15] It
was only the complainant that testified that the appellant said 'he
was with the complainant on Wednesday
5 September'. 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 is, 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'.
[16] 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. In S
v Sauls
1981 4 All SA 182
(a) it was held that the
court will not rely on such evidence where the witness has made a
previous inconsistent statement; where
the witness has not had a
sufficient opportunity for observation and where there are material
contradictions in the evidence of
the witness.
[17] In
my view, there are unsatisfactory features in the evidence of the
complainant, as pointed out above.
[18] 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
misdirection, the trial court's conclusion, 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 trial 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 only 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.
[19] 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
material unsatisfactory features. It falls
short in proving the guilt
of the appellant beyond reasonable doubt.
[20] I
propose the following order:
1. The
appeal against conviction is upheld.
2. The
conviction and sentence are set aside.
3. The
verdict of the regional court is set side and substituted thereof
with the following: 'Found
not guilty and discharged'.
Mngadi,
J
I
agree
Bezuidenhout,
J
APPEARANCES
Case
Number: AR
38/2020
For
the appellant: Mr.
X. Sindane
Instructed
by: Legal
Aid SA
PIETERMARITZBURG
For
the respondent: Ms.
K. Essack
Instructed
by: Deputy
Director Public Prosecutions
PIETERMARITZBURG
With
the consent of the parties, disposed of without oral arguments
Judgment
delivered on