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South Africa: Kwazulu-Natal High Court, Pietermaritzburg
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[2021] ZAKZPHC 57
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Mjwara v S (AR80/15) [2021] ZAKZPHC 57 (3 September 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU
-NATAL DIVISION, PIETERMARITZBURG
AR
No:
80/15
In
the matter between:
SCELO
EMMANUEL
MJWARA APPELLANT
and
THE
STATE RESPONDENT
ORDER
On
appeal from:
The Regional Court, Durban (M.
Hlophe sitting as a court of first instance)
1. The
entire proceedings in State vs Scelo Emmanuela Mjwara, Durban
Regional Court, Case No:
41/303/2012 are, due to a fatal
irregularity, declared to be a nullity.
2. The
conviction and sentence are set aside.
JUDGMENT
Mngadi,
J (Mlaba AJ concurring)
[1] The
appellant, with leave of the trial court, appeals against conviction.
The State charged the appellant with
one (1) count of rape in
contravention of
Section 3
of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007
, read with the provisions
of s 51 of the Criminal Law Amendment Act 105 pf 1997.
[2] The
appellant faced a charge of rape before the regional court sitting in
Durban. The charge against the appellant
alleged that on or about 24
December 2011 and at or near Botanical Gardens, Durban the appellant
did unlawfully ad intentionally
commit an act of sexual penetration
with [S...Z...M...] the complainant by inserting his penis into her
vagina without the consent
of the complainant. The appellant, who was
legally represented, when the charge was put to him, pleaded not
guilty. As basis of
defence through his legal representative he
stated that he had sexual intercourse with the complainant with her
consent. The learned
regional magistrate after hearing evidence
convicted the appellant as charged. The court sentenced the appellant
to eight (8) years
imprisonment.
[3] The
complainant testified that she was with five friends. They were out
for a night visiting night clubs. The
appellant who was unknown to
them joined them in the last night club they visited. In the early
hours of the morning they left
the night club which was closing. The
appellant invited them to his place promising them more alcohol. They
proceeded to the appellant's
flat by a taxi and the appellant paid
the taxi fare for all of them at the request of Zandi.
[4] The
complainant testified that they arrived at the appellant's flat. The
appellant offered them places where
to sleep, others slept on the
sponges on the floor. She and one Anele went upstairs. Anele slept on
a bed in another room. The
appellant showed her a bedroom with a
double bed on which to sleep. She took off her leggings and she
loosened her bra. She had
no underwear. She slept wearing a short
dress. She fell asleep. She woke up when she felt the appellant on
top of her and he was
having sexual intercourse with her. She
struggled with the appellant pushing him off her. He placed his hand
over her mouth stopping
her from screaming. She managed to escape.
She ran out to the balcony. She screamed for help. The appellant
grabbed her and he
pushed her back to the bedroom. There was a knock
on the door. The appellant put on shorts and underwear. He picked up
a condom
and he opened it. He opened the door and he met her cousin
Sthe. He told her that he was sorry, he did not know that the
complainant
did not want to have sexual intercourse without a condom.
The complainant reported to Sthe what happened. She then went and she
reported the matter to the police.
[5] The
complainant under cross-examination testified that she slept in a
double bed. The appellant during the
course of the evening talked to
her by sending messages through others, in particular, through Zandi.
She did not know why he did
that. She did not think of locking the
door of the bedroom before she went to sleep. Some of her friends she
was with were males.
It was three females and two males. Sthembiso
Mkhize slept with Zandi, although it was their first time to meet.
Sthembiso and
Zandi did not have sexual intercourse with each other.
She normally did not wear underwear because it caused rash on her.
She did
not see whether the appellant was wearing a condom or not
when she woke up. She did not know how much alcohol they consumed
that
night but it was a lot. She admitted that she was under the
influence of alcohol since all of them had drank alcohol. Zandi told
him to pay for them. She denied that she went to the appellant's
place because there was a romantic relationship between them.
Zondi
passed messages between her and the appellant at the club. She did
not directly consent tot eh appellant to a relationship.
She first
refused that they go to the appellant's place for more alcohol but
Zandi continued begging her until she agreed. It was
early in the
morning when she went to sleep because they had not slept for the
whole night. She argued with the appellant about
taking and opening a
condom before opening the door, and about him closing her mouth with
his hand.
[6] Sthembiso
Mkhize testified. He stated that when he went to the bedroom, after
hearing the complainant screaming,
she was saying 'you are trying to
rape me. I am going to get you arrested for what you are trying to
do.' He entered the bedroom
and the appellant was in his underpants.
The complainant had a broken mirror in her hand and she was
threatening to stab the appellant
if he came closer. The complainant
told him that the appellant wanted to rape her but he did not succeed
to rape her, he failed
to rape her.
[7] The
State as a last witness called a Dr Singh. He testified that he
examined the complainant and he completed
a medical examination
report (J88). He found on the complainant a creamish discharge in her
vagina.
[8] The
appellant testified for the defence and he did not call any witness.
He testified that he met the complainant
and her friends at the
nightclub. He danced with her and he proposed love to her. Zandi one
of the complainant's friends assisted
him to talk to the complainant.
The complainant did not show that she was rejecting his proposal. She
told him that she was with
her friends. It was then agreed that they
would all go to his place. He paid the taxi fare for all of them. At
his place, it was
agreed that they would sleep first. He showed all
the others where to sleep. The complainant went with him to his
bedroom upstairs.
He took out the condom. The complainant opened the
condom and she put it on his penis. He started having sexual
intercourse with
the complainant. All of a sudden the complainant
started screaming. There was a knock at the door. He went and opened
the door
for her brother. The complainant told her brother who saw a
condom on the floor that they did not do anything. The behaviour of
the complainant confused him.
[9] The
learned regional magistrate stated that the incident took place at 7
am by then the complainant was not
under the influence of alcohol. He
found that it is not consistent with a person who consented to sexual
intercourse to scream
during sex. The court said that there were two
scenes. The first scene is when the complainant woke up and the
appellant was on
top of her having sexual intercourse with her. The
second scene is when she the complainant was brought back to the
bedroom and
an attempt made to rape her. The complainant, found the
court, in her first report reported the second scene and she did not
report
the first scene. The court found that the appellant was not a
good witness. He contradicted himself and he made his case as the
time went along and he did not show any confidence in his version. He
stated that the complainant maintained that the door was
locked.
[10]
It
is not correct that the incident took place at 7am. The complainant
told the doctor that it took place at 1am. The club closed
at 4am and
the taxi took about 45 minutes to the place of the appellant. They
may have gone to sleep at about 5am. If they were
consuming alcohol
for the whole night, the complainant was still under the influence of
alcohol at 5am. The complainant admitted
that when she went to sleep
she was still under the influence of alcohol. It does not make sense
that the complainant would report
to her her the attempt to rape her
but not report the actual rape although both happened in as single
continuous incident by the
same perpetrator. In fact, Sthe testified
that the complainant told him that the appellant did not succeed to
rape her.
[11] The
complainant wanted the court to believe that she did not agree to a
romantic relationship with the appellant
but she admits that the
appellant wanted her to go with him to his place because he was
interested in her. She stated that she
initially refused but the
appellant through Zandi persuaded her to go to his place. She went to
sleep in the appellant's bedroom
whilst her companions slept in the
other room. She slept on a double bed aware that the appellant was
around. She had no underwear,
she took her leggings off, and she
loosened her bra. She slept in a short dress. She did not ensure
before going to sleep that
the door to the bedroom was locked. If she
did not actually consent to sleep with the appellant, she created an
opportunity for
the appellant to sleep with her. Once the appellant
took the opportunity to sleep with her, sexual intercourse would
follow as
a matter of cause excerpt if she objected to it. There is
no evidence that before the appellant engaged in sexual intercourse
with
her she told him that she did not want to have sexual
intercourse with him. It is correct that her screaming in the
circumstances
was out of context. It simple conveyed that she did not
want to have further sexual intercourse with the appellant. There was
no
evidence that the appellant proceeded to have sexual intercourse
despite her screaming.
[12] The
circumstances do not show that before the appellant started to have
sexual intercourse with the complainant
he knew that she had not
consented to sexual intercourse. There is no such finding by the
learned regional magistrate and there
were no factual grounds for
such a finding. The conviction of the appellant, as a result, is not
sustainable and it falls to be
set aside. The onus is on the State to
prove the guilt of the appellant beyond reasonable doubt. Where the
appellant raises consent
the onus is on the State to negate consent.
The appellant has no onus to convince the court of his version, if
his version is reasonable
possible true he is entitled to an
acquittal. If there is doubt, an accused person is entitled to the
benefit of the doubt. See
S
v V
2000(1) SACR 453 (SCA) at
455B.
[13] The
appellant's counsel as a
point in limine
contends that the
person Sizwe Sphiwe Cele who legally represented the appellant during
the trial had no right nor authority to
represent a person in a
criminal trial before the regional court at the relevant time. The
trial commenced before the regional
court on 9 May 2013 and it was
finalised on 28 October 2013. The record of the proceedings shows
that in the application for leave
to appeal heard on 4 November 2013
and in the application for release on bail, pending outcome of the
appeal finalised on 4 November
2013 the same Mr Cele represented the
appellant.
[14] The
KwaZul-Natal Provincial Office of Legal Practice Council, the
successor to the Kwazulu Natal Law Society,
has furnished an
affidavit made by Mr. Cele in his application to this court for
admission and enrolment as an attorney, which
was supported by an
affidavit of Thembalakhe Benedict Mbili. Mr. Cele in the affidavit
stated that he served under a contract of
service of articles to Mr
Mbili from 15 March 2009 to 15 March 2011. Therefore, it shows that
when Mr. Cele represented the appellant
he had completed serving of
articled and he had not been admitted and enrolled as attorney. A
letter dated 22 November 2017 by
the Kwazulu-Natal Law Society
indicates that Mr. Cele was admitted as an attorney on 17 January
2017.
[15] The
abovementioned affidavit by Mr. Cele (supported by the Mr. Mbili)
stated that during the period 15 March
2011 to 30 September 2016 Mr
Cele was employed by Thembalakhe Mbili attorneys as an administrator.
In
S v Mkhize, S v Mosia, S vs Jones, S v Roux
1988 (2) SA 868
(A) it was held that a defence in a criminal trial in the high court
can only be undertaken by a person who has been admitted to
practise
as an advocate in terms of the Act . Further, it was held the lack of
such authorization must be regarded as so fundamental
an irregularity
as to nullify the entire trial proceedings. In my view, the same
parity of reasoning applies to legal representation
in the regional
court.
[16] The
actions of Mr. Cele and Mr. Mbili would appear to be fraud to the
appellant (supposing that he paid for
the services of Mr. Cele).
Further, they may constitute statutory contraventions and the crime
of defeating the ends of justice
as well as unprofessional conduct.
The Deputy Director of Public prosecution KwaZulu-Natal is urged to
investigate the matter and
consider constituting the necessary
prosecutions. The KwaZulu-Natal Provincial Office of Legal Practice
Counsel is also urged to
investigate the matter with a view to take
the necessary action, in particular, against those admitted as
officers of this court.
[17] In
the result, I proposed the following order:
1. The
entire proceedings in State vs Scelo Emmanuela Mjwara, Durban
Regional Court, Case No:
41/303/2012 are, due to a fatal
irregularity, found to be a nullity.
2. The
conviction and sentence are set aside.
Mngadi
j
I
agree, it so ordered.
Mlaba
AJ
APPEARANCES
Case
Number: AR
80/15
For
the Appellant: E.M.
Chiliza
Instructed
by: Legal
Aid South Africa DURBAN
For
the respondent: S.I.
Sokhela
Instructed
by: Deputy
Director of Public Prosecutions PIETERMARITZBURG
Heard
on: 20
August 2021
Judgment
delivered on: 03 September 2021