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[2020] ZALMPPHC 98
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Shitlhangu v S (A26/2019) [2020] ZALMPPHC 98 (3 December 2020)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NUMBER: A26/2019
In
the matter between:
JOHN
SHITLHANGU
APPELLANT
And
THE
STATE
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
On the 3
rd
October 2020 and upon hearing the appeal, the court pronounced an
order that the appeal against conviction and sentence is upheld.
The
conviction and sentence was set-aside and it was ordered that the
appellant be immediately released from prison. What follows
are the
reasons for the order.
[2]
The appellant appeared in the Regional Court Nkowankowa before
Kganyago MT on two counts of rape
read with the provisions of section
51(1) and Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
.
He was found guilty as charged on both counts and sentenced to serve
an effective term of 20 years’ imprisonment after the
court
a
quo
found substantial and compelling circumstances to exist which
justify a deviation from the prescribed minimum sentences. The
appellant
has appealed against both conviction and sentence. The
appeal is with the leave of the trial court.
[3]
The backgrounds facts are as follows. As per the charge sheet it is
alleged that the appellant
had raped the complainant who was 12
years’ of age as at the 6
th
January 2015 and 16
March 2015. The first State witness to testify was P[….] N[….]
M[….] the complainant’s
aunt. She proved the age of the
complainant by handing in the complainant’s birth certificate.
[4]
She testified that on 16
th
March 2015 Precious who was of
the same age as the complainant reported to her grandmother that
whilst at school the complainant
was in possession of money. The
grandmother reported that to their neighbour. After that the
grandmother and the neighbour called
the police. Before the police
could arrive, the grandmother asked the complainant where she got the
money and she denied ever having
money whilst at school. The mother
of the complainant then told her that she was going to call the
police if she did not tell them
where he got the money. The
complainant told her grandmother that if her mother was going to call
the police, she will tell them
where she got the money. She then told
them that she was given money by the appellant who was working at
their school as a security
guard.
[5]
They asked the complainant how it happened that the appellant gave
her money and she told them
that she was followed by the appellant as
she was going to school. As she was passing the bushes, the appellant
grabbed her. She
fought with the appellant, but the appellant
overpowered her and raped her. After raping her he gave her R30-00.
The appellant
when he saw a herd boy coming to their direction left
the complainant. After that the complainant went to school. The
complainant
only started explaining to them how she got the R30-00
after they threatened her that they were going to call the police.
That
the complainant further told them that it was not the first time
that such an incident happened to her by the appellant, and that
it
started in January.
[6]
S[….] M[….] was the State second witness to testify.
She testified that she is the
complainant’s neighbour. On 16
th
March 2015 she was called to the complainant’s homestead. When
they called her, she thought they wanted her to assist them
in
phoning an ambulance as the complainant’s mother was very sick.
On arrival at the complainant’s homestead she found
the
complainant’s mother and grandmother seated under a tree. The
complainant’s mother told her that she saw the complainant
having R20-00 and she suspect that the complainant was being abused.
The complainant’s mother further told her that when
she asks
the complainant where she got the money, she did not respond to them.
The complainant’s mother requested her to
call the police so
that the police can interrogate her. The complainant was present when
her mother made a report to her and also
requested her to call the
police.
[7]
The complainant was the third witness to testify for the State. She
testified that she was 15
years old and staying with her grandmother.
On the 16
th
March 2015 she was walking to school. As she
was walking the appellant called her but she did not accede to his
demand. The appellant
followed her and chased her. The appellant
caught her in the bushes where he tripped her and she fell to the
ground. After falling
the appellant pulled her by the school bag
which she was carrying on her back. He then laid her by her back. The
appellant pulled
her panty and inserted his penis into her vagina.
She started kicking the appellant and also crying loud. The appellant
told her
that if she tells anyone, he will cut off her head and throw
it into a toilet. After he had finished raping her, the appellant
gave her R20-00. She used that R20-00 to buy food at school.
[8]
She walked to school even though she could not walk properly. She
arrived late at school. She
did not tell anyone about what had
happened to her as the appellant had threatened her.
[9]
On arrival at home Precious reported to her grandmother that she was
having money at school. When
her mother asked her about the money she
did not respond. Her mother started crying. Her grandmother pretended
to be calling the
police on her cell phone, and that is when she told
them that she was raped. Her grandmother requested their neighbour to
call
the police.
[10]
It was not for the first time that the appellant raped her. The first
time was in January 2015 and she was
coming from drawing water. On
the first occasion the appellant pulled her into the bushes where he
forced her to lie on the ground
by tripping her, took off her panty
and raped her. After raping her, he gave her R30-00.
[11]
Under cross examination it was put to the complainant that it was
impossible for her to have met the appellant
at his place of
employment around 8h00 as that night he had worked night shift and
had knocked off at 6h00 and at 8h00 he was at
his home with Flora
Mafumo. The complainant conceded that she was not willing to
tell her mother and grandmother where she
got the money, and only did
so after being threatened with the calling of the police. She further
conceded that the reason why
she told her mother and grandmother that
it was the appellant who gave her money, was that she did not want
them to call the police.
[12]
The State called Monene Homu as its fourth witness. She testified
that she is forensic nurse who had examined
the complainant. After
examining the complainant, she completed a J88. Her observation and
conclusion was that there was an old
cleft at 3 O’clock
position of the hymen and a bump at 5 O’clock position of the
hymen supporting history given of
sexual assault. She had examined
the complainant on 17
th
March 2015 at 10h30. She took the
forensic specimen and handed them to the policeman. Under cross
examination she conceded that
the injuries that she had observed on
the complainant were no longer fresh but old.
[13]
The appellant testified and denied raping the complainant. On the
first count he stated that he did not remember
anything about January
2015. With regard to the second count he testified that on 15
th
March 2015 he was working night shift and he knocked off in the
morning of the 16
th
March 2015 at 6h00. After knocking off
he went home. On arrival at his homestead, his neighbour Flora Mafumo
came to his homestead
and requested him to insert a sim card into her
cell phone. After inserting the sim card, it showed on the screen
that there was
no sim card inserted. He then started cleaning the
cell phone, but it still did not function. His neighbour then told
him that
he had tried and should hand her back her cell phone. That
exercise took him a long time and he finished doing that after 8h00.
He testified further that blood was taken from him for DNA testing.
[14]
The appellant called Flora Mafumo as his witness. She testified that
there was no bad blood between her,
the complainant and the
complainant’s family. The appellant is her neighbour. On the
16
th
March 2016 from 6h30 to 8h00 in the morning she was
at the appellant’s homestead. She went to the appellant’s
homestead
so that he can assist her by inserting a sim card into her
phone.
[15]
The issue in this appeal is whether the appellant had raped the
complainant in both counts. The complainant
in both counts in
relation to the actual rape was a single witness. It is trite that
the court must apply the cautionary rule on
the evidence of a single
witness. Further the evidence of a single witness should be clear,
reliable and satisfactory. (See
S
v Sauls and Others
[1]
).
It is also trite that the State bears the onus of establishing the
guilt of the accused beyond reasonable doubt. An accused is
entitled
to be acquitted if there is a reasonable possibility that he might be
innocent. (See
S
v Van Answagen
[2]
)
.
[16]
In convicting the appellant on both counts, the trial court found
that the evidence of the State witnesses
was clear, coherent and
straight forward. It also found that the evidence of the complainant
to a certain extent has been corroborated
by medical or forensic
evidence. The trial court concluded that logic dictates that the
injuries observed by the forensic nurse
could not have been sustained
on 16
th
March 2015 and that they were as a result of prior
rape by the appellant on the complainant. The trial court found that
despite
the complainant having only disclosed that she was raped by
the appellant after her grandmother had threatened to call the
police,
it was never suggested to the complainant to say she was
given the money by the appellant.
[17]
The trial court in concluding that the complainant could not have
sustained her injuries on her vagina on
16
th
March 2015
and that the injuries were consistent with the complainant’s
evidence that she was previously raped by the appellant,
overlooked
the evidence of the incident of 16
th
March 2015 by the
complainant that after she was raped, she was injured, could not walk
properly and was walking with her legs
apart. By walking with legs
apart means she was seriously injured. However, when the complainant
was examined by the forensic nurse
on 17
th
March 2015 the
forensic nurse observed only old injuries. This piece of evidence
defies logic and leaves the suspicion that the
complainant was not
telling the truth.
[18]
The trial court in concluding that the complainant despite disclosing
that she was raped by the appellant
only after she was threatened
with calling of the police, and that it was never suggested to her to
say that she was given money
by the appellant, overlooked the fact
that the complainant under cross examination has stated that the
reason why she had told
her mother and grandmother that it was the
appellant who gave her money was that she did not want them to call
the police.
[19]
In
S
v GS
[3]
Leach
JA said:
“
[24]
Precisely how she had come to make the report was not explored in the
evidence, but the fact remains that the complainant’s
allegation of rape appears only to have emerged after a confrontation
with her mother about her having been at a hotel on a school
night.
In the circumstances that prevailed, there is a very real suspicion
that the complainant’s report of rape was made
in an attempt to
deflect her mother’s anger.
“
[25] In the
light of all these factors, I have grave reservations about the
credibility of the complainant and in turn her reliability.
I am thus
not persuaded that the state discharged the onus of proving beyond a
reasonable doubt that the appellant’s version
of the material
events was false”.
[20]
The complainant at no stage reported the alleged rapes of January
2015 and 16
th
March 2015. It was only after she was
threatened with the calling of the police that she implicated the
appellant. Even out of
her own volition she has testified that she
had implicated the appellant as she did not want her mother and
grandmother to call
the police. That in my view affect the
credibility and reliability of the complainant’s evidence. It
cannot be said that
her evidence was clear, coherent and straight
forward as found by the trial court.
[21]
The appellant on the other hand has raised a defence of
alibi
.
However, the trial court has found that defence to be false and
rejected it. The basis of rejecting it was that the person who
was
supposed to have corroborated the appellant was Mr Manabe and not Ms
Mafumo, as Mr Manabe was the person who had allegedly
relieved the
appellant from night shift at 6h00. The trial court found that Ms
Mafumo was not an independent witness as she could
not explain
succinctly why she checked time on arrival at the appellant’s
homestead and also when she left, but failed to
check the time when
she left her homestead.
[22]
The appellant has raised his
alibi
defence
from the beginning of the trial. It is trite that once an accused
raises the
alibi
defence, that
alibi
has to be accepted unless it was proved to be false beyond reasonable
doubt
(See
S v Musiker
[4]
).
In my view there was no basis for the trial court to have found that
it was only Mr Manabe and not Ms Mafumo who could have corroborated
the appellant on his
alibi
defence. There were no inconsistencies between the evidence of the
appellant and his witness Ms Mafumo. In my view the State has
failed
to prove that the appellant’s
alibi
was
false beyond reasonable doubt.
[23]
Taking into consideration that the complainant disclosed that she was
raped in January 2015 and 16
th
March 2015 after being
threatened with the calling of the police and that the forensic nurse
on examining the complainant on 17
th
March 2015 found old
injuries despite the complainant having testified that she was
seriously injured and was walking with her
legs apart, I am thus not
satisfied that the guilt of the appellant was proved beyond
reasonable doubt. The evidence of the State
witnesses was
unsatisfactory and unreliable. The appeal must be upheld and the
appellant must be acquitted.
[24]
In the result I make the following order.
24.1
The appeal is upheld
24.2
The appellant’s conviction and sentence is set aside and
substituted with the following.
“
The
accused is found not guilty and discharged”.
MF.
KGANYAGO J
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
I
agree
E.M
MAKGOBA JP
JUDGE
PRESIDENT OF THE HIGH COURT
OF
SOUTH AFRICA, LIMPOPO DIVISION, POLOKWANE
APPEARENCES
FOR
THE APPELLANT
: MR MANZINI LM
BRIEFED
BY
: POLOKWANE JUSTICE CENTRE
FOR
THE RESPONDENT
: ADV KOTZE JJ
BRIEFED
BY
: DPP POLOKWANE
DATE
OF HEARING :
23
RD
OCTOBER 2020
DATE
OF JUDGMENT
: 3
RD
DECEMBER 2020
[1]
1981(3) SA 172 (A)
[2]
[2001] ZASCA 61
(17 May 2001)
[3]
2010(2) SACR 467(SCA) paras 24 & 25
[4]
2013(1) SACR 517 (SCA) at para 15