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[2020] ZALMPPHC 91
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Modimolla v S (A20/2019) [2020] ZALMPPHC 91 (26 October 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
(1)
REPORTABLE:
NO/
YES
(2)
OF
INTEREST TO OTHER JUDGES
:
NO/
YES
(3)
REVISED.
CASE
NO: A20/2019
In
the matter between:
JOHN
NKOMAPE MODIMOLLA
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
NAUDE
AJ:
[1]
The Appellant was convicted in the Modimolle Regional Court on 9
March 2015 on two
counts, the first count being attempted murder in
that on 12 October 2013 at Phomolong, Limpopo, the Appellant
unlawfully and intentionally
attempted to kill the Complainant by
stabbing her with broken glass, pouring paraffin over her body,
breaking her hand and also
by hitting her with a walking stick
("kierie"). The second count, being rape in that the
Appellant on 12 October 2013
at Phomolong, Limpopo, unlawfully and
intentionally committed an act of sexual penetration with the
complainant by inserting his
fingers inside her vagina.
[2]
The Appellant was sentenced in the
Regional Court Modimolle on 9 March 2015 as follows:
(i)
Count
1 - Attempted Murder - sentenced to 7 years imprisonment;
(ii)
Count
2 - Rape - sentenced to 5 years imprisonment.
(iii)
2
years imprisonment on Count 2, to run concurrently with the sentence
on Count 1.
[3]
This
is an appeal against the conviction and sentences on both charges of
attempted murder and rape read with the provisions of
Section 51(1)
of the General Amendment Act 105 of 1997 and the sentence of 10 years
direct imprisonment imposed on the Appellant
by the Regional Court
Magistrate in the Regional Court Modimolle. This appeal is with leave
of the High Court Polokwane.
[4]
The charges arose from an incident that
occurred on 12 October 2013. Mrs. R[….] M[….], the
complainant in counts 1
and 2, and the Appellant at the time of the
incident were in a relationship for approximately 2 years. The
complainant was at home,
after work. Around 18h30 on 12 October 2013
the complainant noticed the Appellant outside her house with a 5
liter empty bottle
and a "kierie".
[5]
After the complainant bathed, she heard
a window breaking. She noticed the Appellant entering her house
through the broken window.
The complainant asked the Appellant what
was wrong, where after he hit her with the "kierie" on her
neck area, over her
left shoulder. The Appellant wanted to know if
there was anybody else with her in the house. Whilst the Appellant
went through
the house looking for somebody else the complainant
opened the door and went outside. She ran to the house next door.
[6]
The Appellant followed her with the
"kierie" in his hands. At the neighbour's house the
complainant managed with help
of the neighbour to enter the house.
She closed the door and locked it. The Appellant convinced the
neighbour to open the door
as he found the complainant with another
person in her house. The neighbour opened the door whereafter the
Appellant entered the
house and started to hit the complainant
further and continuously. The Appellant hit the complainant all over
her body, her hands
and her head. The complainant attempted to flee
from the Appellant, but the Appellant followed her and continued to
hit her with
the kierie. The Appellant attempted to strangle her with
an object around her neck. The Appellant then proceeded to hit her
with
his fists. He pulled her to the outside of the neighbour's house
and dragged her back to her house.
[7]
Back at the complainant's house, the
Appellant shoved her against the wall and her head hit the wall. The
Appellant took a piece
of the broken glass of the window and started
to stab her head and her hands with it. He then dragged her over to
the Appellant's
erstwhlie co-accused's house by her nightwear around
her neck. Her lower body was nakedly exposed.
[8]
At the Appellant's erstwhile
co-accused's house, the Appellant took another kierie which was in
the co-accused's house and started
to hit the complainant
continuously again all over her body and her backside. The Appellant
asked the erstwhile co accused
for petrol, but she did not have
any petrol and only paraffin. The complaint asked for water to drink,
whereafter she was given
water to drink by the Appellant's erstwhile
co accused. The Appellant then took a bucket of water and told
the complainant
to drink the entire bucket. Whilst drinking water,
the Appellant threw the water over the complainant and then proceeded
to throw
the paraffin over the complainant. The Appellant went
looking for matches. He took out a match and lit it, but it didn't
ignite
as his hands were wet. The Appellant then continued to hit the
complainant with the kierie. In the early hours of the morning the
Appellant stopped hitting the complainant and then asked his
erstwhile co-accused for a basin and started to wash her. The
Appellant
asked the erstwhile co-accused for blankets whereafter he
wrapped the complainant's body with 2 blankets and took her outside
to
the gate. He left the complainant there and told her that they
(the Appellant and erstwhile co-accused) were going to look for
transport to take her to the hospital. They returned without
transport.
[9]
Allegedly the Appellant and his
erstwhile co-accused accused the complainant of having a sexual
relationship with another man without
a condom and then wanted to
know if the complainant was pregnant. The Appellant allegedly
penetrated the complainant's vagina with
his hand, whereafter,
together with the Appellant the erstwhile co-accused also inserted
her hand into the complainant's vagina.
They allegedly then stated
that she was pregnant. Only after the complainant assured the
Appellant that she would not tell the
police that it was the
Appellant that assaulted her, but other persons, the Appellant and
his erstwhile co-accused went to the
police. Shortly thereafter they
returned with the police. An ambulance came and took the complainant
to hospital. She lost consciousness.
The complainant was admitted in
FH Odendaal Hospital and was then transferred to Mankweng Hospital in
Polokwane where she stayed
for one month and three weeks.
[10] As
stated here above, leave to appeal was granted in respect of the
conviction and sentences on both
counts. The Appellant's version is
that he acted in self-defense. During the hearing of the Appeal, the
Appellant's counsel conceded
that the Appellant exceeded the bounds
of self-defense. In this court's view, the trial court did not commit
any misdirection in
respect of the conviction or sentence imposed on
Count 1.
[11]
A court of appeal is hesitant to
interfere with the factual findings and evaluation of the evidence by
a trial court.
(R v Dhlumayo and
Another
1948 (2) SA 677
(A)) In S v Francis
1991 (1) SACR 198
(A) at
198j to 199a
the approach of an
appeal court to findings of fact by a trial court was crisply
summarized as follows:
"The powers of a court of
appeal to interfere with the findings of fact of a trial court are
limited. In the absence of a witness'
evidence, is presumed to be
correct. In order to succeed on appeal, the applicant must therefore
convince the Court of Appeal on
adequate grounds that the trial court
was wrong in accepting the witness' evidence
-
reasonable doubt
will not suffice to justify interference with its findings. Bearing
in mind the advantage which a trial court
has
seeing, hearing
and appraising a witness, it is only in exceptional
cases
that the court of
appeal will be entitled to interfere with a trial court's evaluation
of oral testimony."
And
in
S v Hadebe and Others
1997 (2) SACR 641
(SCA),
the court
held:
"..
.the
credibility findings and findings of fact of the trial court cannot
be disturbed unless the recorded evidence shows them to
be clearly
wrong. In assessing whether or not such is the case, the approach
which commended itself in
Moshephi
and Others v R
(1980-1984)
LA C 57
at 59 F
-
H
seems
appropriate in the particular circumstances of the matter:
"The question for
determination is whether, in the light of all the evidence adduced at
the trial, the guilt of the Appellants
was established beyond
reasonable doubt. The breaking down of
a
body of evidence
into its component parts is obviously
a
useful aid to a
proper understanding and evaluation of it. But, in doing so, one must
guard against a tendency to focus too intently
upon the separate and
individual parts of what is, after all,
a
mosaic of proof
Doubts about one aspect of the evidence led in a trial may arise when
that aspect is viewed in isolation. Those
doubts may be set at rest
when it is evaluated again together with all the other available
evidence. That is not to say that
a
broad and
indulgent approach is appropriate when evaluating evidence. Far from
it. There is no substitute for a detailed and critical
examination of
each and every component in a body of evidence. But, once that has
been done, it is necessary to step back a pace
and consider the
mosaic
as
a
whole. If that is not done, one may fail to
see
the wood for the
trees."
[12]
In respect of Count 2, the trial court
committed material misdirections that justify interference by this
court. The trial court
found the Appellant guilty on the charge of
rape. The rape count was not proved in this court's view, beyond
reasonable doubt.
The court only had the complainant's testimony in
respect of the count of rape. The J88 submitted does not state any
alleged sexual
offence neither did Dr. Vincent Ramaroka who examined
the complainant give evidence in respect of any sexual offence
committed.
Dr. Vincent Ramaroka in his evidence in chief confirmed
that he did not examine her private parts. In cross-examination Dr.
Vincent
Ramaroka testified that there was no complaints by the
complainant that she was sexually assaulted. Dr. Vincent Ramaroka
confirmed
that his findings were that the injuries sustained by the
complainant were in accordance to what the complainant explained to
him.
Dr. Vincent Ramaroka further confirmed that one would expect a
woman to have sustained severe injuries to her private parts if a
person's whole hand is inserted in her vagina. He further confirmed
that if a person complained of injuries to her private parts,
he
would have examined it. As stated here above, the J88 is silent in
respect of any sexual offence.
[13]
The trial court rejected the evidence of
the complainant that the appellant's erstwhile co-accused put her
hand in the complainant’s
vagina and thereby giving the
co-accused the benefit of the doubt, but found on the same facts and
evidence that the appellant
indeed put his hand in the complainant's
vagina. In this regard the Magistrate erred and does the Magistrate's
findings of fact
construe a serious misdirection.
[14]
The complainant was a single witness in
the matter on both charges, and especially in a matter with a sexual
nature. The cautionary
rules are applicable and should have been
applied. In terms of Section 208 of the Criminal Procedure Act, Act
51 of 1977, an accused
may be convicted of any offence, on the single
evidence of a competent witness. This evidence however should be
approached with
caution.
[15]
In
S
v Sauls and Others
1981 (3)
SA 170(A)
Diemont JA
explained how
the rule should be applied by trial courts. The learned Judge said
(at 180E):
'There is no rule of thumb test
or formula to apply when it comes to
a
consideration of
the credibility of the single witness (see the remarks of
Pumpff
JA in S v Webber
1971 (3) SA 754(A)
at 758).
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.
'
[16]
This rule applies to evidence of single
witnesses regardless of their gender. It is not the cautionary rule
that was confined to
sexual offences only and which was discarded by
the Supreme Court of Appeal in
S v
Jackson
1998 (1) SACR 470
(SCA).
Having rejected the latter
rule Olivier JA, however, acknowledged that in cases such as the
present the evidence led may warrant
a cautionary approach. The
learned Judge said
(at 476F):
'In my view, the cautionary
rule in sexual assault cases is based on an irrational and out-dated
perception. It unjustly stereotypes
complainants in sexual assault
cases
(overwhelmingly
women)
as
particularly
unreliable. In our
system
of law, the
burden
is
on
the State to prove the guilt of an accused beyond reasonable doubt
-
no more and no
Jess.
The
evidence in
a
particular case
may call for
a
cautionary
approach, but that
is
a far cry from
the application of
a
general
cautionary rule.'
[17]
It is trite that there is no obligation
upon an accused person, where the State bears the onus, "to
convince the court".
If his version is reasonably possibly true
he is entitled to his acquittal even though his explanation is
improbable. It is against
this background that this court evaluates
the evidence of the complaint. It is improbable that the Appellant's
hand was inserted
into her vagina, together with the Appellant's
erstwhile co accused, at the instruction of the Appellant, to
examine if she
is pregnant or not without the complainant having
sustained any vaginal injuries. The state did not prove all the
elements of the
offence and in this case one of the essential
elements of this particular offence of rape is penetration by hands.
[18] The
Magistrate erred in his conclusion that there was penetration by hand
by the Appellant. The Magistrate
should have been vigilant in his
assessment and evaluation of the evidence in order to eliminate the
risk of conviction on the
basis of insufficient evidence,
particularly where the offence carries a heavy punishment.
(See S
v K
2008 (1) SACR 84
(C) at p 85 par 4.)
In this court's view,
the Magistrate erred in not applying the cautionary rule and
convicting the Appellant on Count 2. The charge
of rape lacks support
from the facts and the law and the State did not discharge the onus
beyond reasonable doubt that the Appellant
is guilty of the offence
in Count 2. The Magistrate misdirected himself in this regard as
well.
[19]
In light of the misdirections, the
conviction and sentence on Count 2 by the trial court, stand to be
set aside. In the result the
appeal against the conviction and
sentence on count 1, attempted murder, should fail, but the appeal
against the conviction and
sentence on count 2, rape, should succeed.
[20]
This court therefore makes the following
order:-
1.
The appeal against the conviction and
sentence on Count 1, attempted murder, is dismissed.
2.
The Appeal against the conviction and
sentence on Count 2, Rape, is upheld.
3.
The conviction and sentence on Count 2
is set aside.
M.
NAUDE
ACTING
JUDGE
THE
HIGH COURT
I
AGREE:
M.F.
KGANYAGO
JUDGE OF THE
HIGH COURT
APPEARANCES:
HEARD
ON:
4
SEPTEMBER 2020
JUDGMENT
DELIVERED ON: 26 OCTOBER 2020
For
the Appellant:
Mr. L.M Mantzini
Instructed
by:
Legal Aid South Africa
For
the Respondent:
Adv. Jacobs
Instructed
by:
The Director of Public Prosecutions