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[2019] ZAGPPHC 24
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Ngwato v S (A13/17) [2019] ZAGPPHC 24 (31 January 2019)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NUMBER: A13/17
DATE: 31 January 2019
JULIUS
NGWATO
Appellant
V
THE
STATE
Respondent
JUDGMENT
MABUSE
J:
(Mokose
J, concurring)
[1]
This
is an appeal against both conviction and sentence. That the appeal is
against both conviction and sentence is clear from the
notice of
appeal dated 23 December 2016 filed by the appellant at Rooigrond
Correctional Services. We will deal with the grounds
of appeal later
in the judgment.
[2]
On
28 August 2018 the appellant appeared before a regional court
magistrate at Ventersdorp arraigned on three counts of contravention
of section 3 read with certain sections of the Criminal Law Amendment
Act 32 of 2007 read also with certain sections of the Criminal
Procedure Act 31 of 1977 ("the CPA"). The said counts were
furthermore read subject to the provisions of sections 51
and 5 and
Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
as amended
as well as
sections 92(2)
and
94
of the CPA
[3]
The
allegations against the appellant were, in each of the three counts,
that on or about 6, and 7 March 2012 and at or near Tshing,
Ventersdorp, in the regional division of North West he did unlawfully
and intentionally commit an act of sexual penetration with
a female,
namely S M, 32 years of age, by inserting his penis inside her vagina
and also inside her anus.
[4]
Having
confirmed that he understood the three charges against him, the
appellant pleaded not guilty to all three of them. Through
his then
legal representative, a certain Mr I Kruger, the appellant chose to
remain silent. He therefore did not, as enjoined by
the provisions of
s 115
of the CPA, make any statement in which he disclosed the basis
of his defence. That he had chosen to remain silent was confirmed
by
the appellant. Despite his plea of not guilty, he was convicted
accordingly on all three counts and was, upon conviction, sentenced,
in respect of all three convictions, to one term of life
imprisonment. It is therefore the said convictions and sentence that
are the subject of this appeal. Leave so to appeal having been
granted by the trial court.
[5]
In
his application for leave to appeal against his conviction, the
appellant has set out good grounds on the basis of which he
challenges his conviction by the trial court. I do not deem it
necessary to set such grounds out. It is however sufficient to
observe
that at the heart of such ground is a belief by the appellant
that the court
a quo
erred
in finding that the State had proved its case beyond reasonable
doubt.
[6]
The
charges against the appellant have their origin from the following
circumstances. On 6 March 2012 the complainant, S M ("M"),
was at her place of residence when she received a cell phone call
from a friend of hers, a certain M S ("S"), who invited
her
to come over to a tavern. She accepted the invitation and immediately
went there. While they were there she and S induldged
in drinks.
While sitting there, S called a certain Big John and his cousin on
her cellular phone. This Big John was in fact the
appellant and the
cousin was a certain A.
[7]
After
22h00 she told S that she wanted to go home. S then asked the
appellant to take her home. The appellant was known to her as
S's
younger brother and a friend to her. She had known him since 2008.
The appellant took her up to her gate.
[8]
When
they reached her gate, she told the appellant that, seeing that she
had reached her gate safely, the appellant could go back.
But the
appellant told her that he wanted to see to it that she got into the
house safely and that he would only go back only after
he had
satisfied himself that she was safe in the house. Reluctantly she
allowed him to take her up to the door of her house.
[9]
Upon
reaching her house she unlocked the door, got into the house,
switched on the lights and closed the curtains and the windows.
The
appellant followed her into the house. After closing the windows and
curtains she told him once again to leave seeing that
she was safe in
the house.
[10]
After
she had told him that she was safe in the house and that he could go,
the appellant surprisingly told her that she was crazy.
He asked her
why he should leave. He instantly walked to the door, closed it and
locked it with a latch.
[11]
She
asked the appellant why he had labelled her as crazy and secondly why
he locked the door. Instead of responding to the questions,
the
appellant became aggressive. For inexplicable reasons he hit her
several times with both open hands on the side of the face.
She tried
to fight back but the appellant continued unabated to hit her. The
appellant pulled her to the bedroom. Once they were
inside the
bedroom he ordered her to undress. She refused. The appellant hit her
again with both hands. He instructed her once
more to undress and
threatened to kill her if he were to undress her himself. Under
pressure she undressed herself. He was very
aggressive.
[12]
He
ordered her to get unto the bed. She refused. The appellant hit her
again with open hands in the face. She then obliged and got
into the
bed. The appellant instructed her to lie on her back. He then removed
his clothes by pulling them down up to his knees.
He ordered her to
put his penis inside her vagina. She tried to but was too slow. When
he realised that she was too slow in doing
what he had asked her to
do he took over himself. He put his penis inside her vagina.
[13]
She asked him why he did what he was
doing and even tried to push him away. He warned her against asking
him too many questions.
He told her that she had always wanted to
have sexual intercourse with him. She tried to scream while the
appellant was on top
of her and having sexual intercourse with her.
[14]
The
appellant warned her against screaming as that would have alerted
people in the street as to what was going on in the house.
He ended
up ejaculating into her vagina.
[15]
After
ejaculating the appellant got off her and lay on the bed next to her.
She was crying. He ordered her to stop crying or making
noise. She
got out of the bed and went to drink water in the kitchen. Gingerly
she walked to the door, unlocked and opened it,
walked out and ran
away into the street. She was still naked. The appellant ran after
her, caught up with her, grabbed her and
pulled her back to the yard.
Once inside the yard he tried to pull her into the house. She held
onto the door frame. When he realised
that he could not pull her into
the house he grabbed her by her legs and thereby managed to pull her
into the house.
[16]
As
soon as he had succeeded in pulling her into the house, he ordered
her to lie on the floor between a sofa and a coffee table.
While she
was tying there he again pulled his trousers and underwear up to his
knees and took out his penis and inserted it into
her vagina.
[17]
He
took her to the bedroom. In the bedroom he ordered her to bend over
and to hold on to the bed. She refused. He hit her with open
hands.
He then put his penis inside her anus and had anal sexual intercourse
with her. She asked him to stop so they could talk.
The appellant
told her that as she was not his sibling, he did not care. He
ejaculated into her anus. Once more he told her he
did what he had
always wanted to do. He told her that if she reported the incident to
the police he would kill her.
[18]
The
appellant then climbed on the bed in order to sleep. He invited her
to join him on the bed. She refused. He told her that whether
or not
she liked it she would join him on the bed. Much against her will she
then climbed on the bed. She was crying. He warned
her against crying
and told her that she was making noise.
[19]
While
they were still lying on the bed there was a knock on the window. It
was M, a friend of hers and N who were knocking on the
window. There
were also T and B. M kept on screaming "M are you okay?"
while she continued knocking at the window. She
rose from the bed,
got into her pajamas, tiptoed to the door and opened it. As soon as
she was outside the door she screamed, while
at the same time she was
pointing to her house. She ran off to T's parents' house. As she was
running away her friends, who were
knocking at her door, followed
her.
[20]
She
was taken into the house where she told the people in there that Big
John had sexual intercourse with her against her will.
T then called
the police. Later she accompanied the police to the police station
where in the charge office she saw the appellant.
The police took
down her statement whereafter they released her and asked her to come
back in the morning at 08h00.
[21]
She
went back to the police station the same day at 08h00. The police
took her to the local hospital where she was examined medically
by a
medical doctor, a certain Dr Kofi Kwan Asante ("Dr Kofi").
She also went to consult a Dr Steyn at Potchefstroom
Hospital the day
after she had been medically examined by Dr Kofi.
[22]
She
has not been well since the incident. She has nightmares, and above
that does not sleep well. Her left ear was painful. She
has bad
memories of the incident. She has lost trust in men. She is still
afraid that the appellant may carry out his threat of
killing her.
[23]
Her
left eye and left foot were swollen. She could not walk properly. She
was injured on her left foot and left side of her head
and had
bruises on her thighs. She was swollen on the left side of her head.
The inside of her thighs were black and blue. These
injuries were
caused by the appellant when he forcefully tried to opened her
thighs. She also had injuries at her vagina and anus.
EVIDENCE
OF TSELOFELO MARTHA BIYANA
[24]
T
M B ("B"), a 24 year old female at the time, stayed at
house number [….]. She was the complainant's neighbour.
She
told the court that the night of 6 March 2012 and the morning of 7
March 2012 she was sitting in her boyfriend's motor vehicle
with her
boyfriend. Her boyfriend dropped her at home and she was about to
enter her house when she saw M, in other words, the
complainant, in
the street. At that time she was being assaulted and dragged by a
male person. The assault was with open hands
and clenched fists. She
walked to the house and woke up her sister. She told her sister about
the assault.
[25]
The
sister woke up. Both of them stood at the window of their house and
through the window looked outside. When they were looking
outside the
window they saw the complainant and the male person still in the
street. That male person was still assaulting the
complainant. They
saw him pick the complainant up and go to the door of the
complainant's house. During the said assault, the complainant
was
screaming and crying.
[26]
She
saw the complainant holding onto the door frame while the male person
tried to push her into the house. She confirmed, after
an objection
by the appellant's legal representative, that the person who
assaulted the complainant and pulled her and pushed her
was the
appellant. The appellant managed to push the complainant into the
house. Thereafter the door was closed and the lights
were switched
off.
[27]
Both
of them decided to go and wake up a certain L M ("L"),
their neighbour and the complainant's friend. Upon their arrival
there, she explained the assault that she had just witnessed upon the
complainant by the appellant to L. All three of them decided
to go to
the complainant's house. L woke up her father and he accompanied them
to the complainant's house. At the time, the complainant
was staying
alone. She, the witness, knew it. Upon arriving at the complainant's
house they knocked at the door. There was no response.
They knocked
again. The complainant responded in a subdued voice. One of them then
screamed to the complainant to open the door.
Eventually the door
opened. When it opened the complainant came out running and pointing
to the house that there was someone in
there. She ran into her
parent's yard and into the house. They followed her. She was crying
and screaming. In the house she told
them that someone had raped her
twice.
[28]
Only
after the arrival of the police did she say that it was Big John who
had raped her. The police were called. The complainant
told them that
the appellant was in her house. The police went there, found the
appellant and arrested him.
EVIDENCE
OF LENAH MOKGOTSI
[29]
Save
for testifying that to her knowledge the complainant did not have any
love relationship with the appellant, her evidence confirmed,
in many
respects, the evidence of B.
EVIDENCE
OF PULE TOTSE ("TOTSE")
[30] He
testified that she was a member of the South African Police Services
for 19 years. At the time he
was the investigating officer of this
case. He was a police officer stationed at Potchefstroom and held the
position of a warrant
officer.
[31] On 7
March 2012 and at the police station he noticed that the complainant
was not walking properly.
After receiving the case dossier, he
perused the medico-legal examination report (J88) contained in the
case dossier. He also noted
that the complainant had a blue eye. The
eye itself was red. He then asked the complainant what happened. The
complainant made
a report to him. The complainant told him
furthermore that she had other injuries on her body which she
sustained while she was
being assaulted by the appellant. To his
surprise those injuries were not reflected in the J88 in the case
docket. This was the
J88 that had been completed by Dr Kofi. He then
called a certain Dr Francois Rossouw Steyn ("Dr Steyn") and
made arrangements
with him to examine the complainant. At that time
Dr Steyn was working at Potchefstroom Hospital. He explained to Dr
Steyn that
he had a rape victim and furthermore that he was not
satisfied with the J88 that had been completed by a certain doctor at
Ventersdorp
Hospital. They arranged that he should bring the
concerned victim to Potchefstroom Hospital the following day i.e. 8
March 2012.
He did not go there himself. The complainant was taken to
Potchefstroom Hospital by her relatives that had come from
Potchefstroom
and who undertook to do so after he had made
arrangements with them to stay. He only received a telephone call
from the complainant
after she had gone through Dr Steyn's
examination that she had finished. He then travelled to Potchefstroom
Hospital to collect
the J88 that had been completed by Dr Steyn.
[32] The
reason for taking the complainant to Dr Steyn was that Dr Steyn was a
specialist in sexual offence
cases. He was a medical doctor they were
using in Potchefstroom for such cases. Dr Steyn was a medical doctor
that was used for
a period of four years around Potchefstroom.
EVIDENCE OF DR FRANCOIS
PETRUS ROSSOUW STEYN ("DR STEYN")
[33] He
testified that he was a medical doctor. He qualified on 1 October
2007 as a medical doctor. He did
his internship at Ventersdorp, and
Potchefstroom hospitals. After placing his qualifications, which were
not in dispute, on record
he was given the J88 that he had completed
on 8 March 2012.
[34]
He testified that he consulted with a
victim, the complainant, S M, on a March 2012 at 11h00. The
complainant told him at the outset
that she had been assaulted and
raped on 6 March 2012.
[35]
He
then testified from the J88 and told the Court that on examination
the complainant had suffered the following injuries:
35.1
a swollen left eye;
35.2
a left skull bruising and tenderness;
35.3 six penny
bruises on the side of the thighs. He explained that a penny bruise
is what a victim suffers if
someone forcefully presses the legs
apart. A penny bruising is a round bruising. As a consequence of such
penny bruising and the
tenderness she was limping as she walked into
the investigation room.
[36]
He
came to a conclusion that the complainant was most likely hit with a
blunt object on the left eye, skull and leg and that the
legs were
most likely forcefully opened.
[37]
Furthermore,
the complainant had:
37.1
a
swollen urethra orifice:
37.2
a
bruise on the fossa naviqularis at 6 o'clock;
37.3
the
hymen appears multiparous which means that she had delivered many
times and more than once at least. She had no fresh tear on
her
hymen. He passed the speculum and found a white discharge with
mucosal tears;
37.4
there
was a blue spot on the cervix. This is caused by forceful
penetration. He came to a conclusion that forceful penetration had
taken place. He explained that the fossa naviqularis is the opening
between the lips of the vagina or the labia before you get
to the
hymen and it is also called the landing spot. The reason why women
get bruises there at the fossa naviqularis is that they
are
forcefully penetrated. In normal sexual intercourse where you get two
consenting partners a woman gets aroused and gives off
some
lubrication from the Bartholin's cyst which are sitting on both sides
next to the vagina. This makes the vagina wet to facilitate
penetration by a male organ.
[38]
He
continued examining the anus of the complainant. There he found that
the complainant had a fissure at 6 o'clock. He testified
that the
complainant had redness around the anus. On further examination of
the orifice he noted that the fissure kept on going
into the orifices
at6 o'clock. She had reflex dilation with absent winking or
twitching. He explained that this is usual if you
examined a normal
anus and you pull it apart. It closes as a reflex. He continued with
his explanation that if it has been forcefully
penetrated the reflex
is absent for a time. He noticed furthermore that the complainant had
a thickening of the rim and finally
funmelling and a discharge. His
conclusion was that the fissure at 6 o'clock at the bottom also
indicated that she was most likely
anally penetrated from her back
like somebody bending forward and being penetrated from behind. The
first point the penis touches
as it penetrates the anus is the
perineum and then it moves in. The damage the penis causes is again
at the back before it slides
in. So if you got the penis coming
forward and there is no lubrication the woman will try to close her
external sphincter and that
is where usually the damage comes from.
The anus got two sphincters. The internal sphincter which is the one
that you cannot control
and the outer one, the external sphincter,
that is the one that you can control if feel you need to go to the
toilet. You can keep
your anus and you can still run two minutes and
get to the toilet. But if you do not get there in time you will then
make a mess
in your pants. He testified that, as a doctor, you could
only say whether a forceful penetration took place or not.
[39]
The
appellant testified in his defence and called one witness, a doctor
Kofi Kwan Asante, to testify on his behalf. The appellant
testified
that on the evening of 6 March 2012 he and the complainant were at a
certain tavern where they were drinking alcohol.
From the said tavern
he and the complainant ended up at the complainant’s house. He
testified furthermore that when he was
about to go home the
complainant asked him not to leave but to take her home. When they
reached the complainant's gate, he wanted
to turn back but the
complainant asked him not to leave but to make sure that she was safe
in the house.
[40]
At
that stage he and the complainant already had an agreement. He and
the complainant were having an affair secretly. It is for
this reason
that she did not want him to leave. They had agreed that they would
spend the night together. After they had had sexual
intercourse he
told her that it was time for him to go to his girlfriend. He denied
that he had sexual intercourse with the complainant
against her will.
The complainant had consented to the sexual intercourse, so he
testified.
[41]
He
denied that at a certain stage the complainant ran out of the house;
that he grabbed her outside on the street, and that he assaulted
her
and took her back into the house. He testified that it did not
happen. He admitted that he had sexual intercourse with her
thrice.
He testified furthermore that he hit the complainant once with a flat
hand following a verbal argument. He used both hands.
He denied that
he assaulted the complainant in any other manner. He denied that the
complainant sustained any other injuries as
a result of the sexual
intercourse or the assault with both hands. He was woken up by the
police.
[42]
He
did not know nor could he find any reason why the complainant could
have accused him of having raped and assaulted her.
DR KOFI KWAN ASANTE
[43]
He
testified that he was a qualified medical doctor. He had obtained his
degree at Tukkies University, that is the University of
Pretoria, in
2009. At the time of completing the J88 in question he was practising
medicine at Ventersdorp as a district surgeon.
He told the Court in
his testimony that on 7 March 2012 at about 11h00 a woman was brought
to his consulting room. This woman's
name was S M. He examined her
and having done so completed the J88. The document was given to him.
He was able to identify it.
From paragraph 8 thereof he read
the following:
"Alleged history of sexual
assault without any physical obvious injuries."
He confirmed that when he
completed the J88 a medical doctor fills in what he sees on the
victim and that if there are any complaints
from the victim he
records such complaints in the J88.
[44]
The
complainant , according to him, had no visible injuries at all. At
the material time of the examination he took all the necessary
steps
to look all over the victim's body to see if there were any
noticeable injuries. In his professional assessment of the
complainant
she did not appear as if she had been raped thrice. He
told the court that when he wanted to leave and go to his girlfriend
the
complainant told him that he would not leave, but they had agreed
to spend the night together. This evidence concluded the evidence
of
the appellant.
[45]
The
State argued that the witnesses that it had called were very credible
witnesses. The prosecutor singled out the complainant
as a credible
witness. They all gave evidence. He labelled the complainant's
evidence as false and asked that it be rejected. He
submitted that
the injuries seen on the complainant and recorded on the J88
corroborated the complainant's version.
[46]
He
argued furthermore that Totse testified that immediately after the
complainant had returned from the hospital he viewed the medico-legal
report filled in by Dr Kofi. He went through it and as a layman in
the medical field started to have doubts in it. He immediately
went
to see the complainant. The complainant noticeably walked with an
impaired gait. She was noticeably in pain. She also complained
to him
that the observations he made were not recorded in the J88. He
expected it to be so recorded and captured. For these reasons
he was
unhappy about the manner in which Dr Kofi had completed the J88. So
he decided that the complainant needed to be examined
by another
medical doctor.
[47]
Mr Kruger argued that:
"The chain of custody has
been broken.
"
Whatever this chain is and what
role it played in the whole matter could not be explained . He argued
furthermore that if the Court
were to admit and accept the J88 signed
by Dr Steyn there was no way in the world that we could say that
there was nothing that
happened to the complainant from the time that
she left the presence of the appellant until the time that she was
examined by Dr
Steyn.
[48]
With
the greatest of respect to Mr Kruger, this observation is devoid of
any merit and, in my view, surreal. In the first place
the version in
his argument was that the Court, in its assessment and evaluation of
the evidence, should engage in conjectures
and speculation. In other
words, because the medico-legal examination report completed by Dr
Kofi, the first doctor who examined
the plaintiff, did not record the
injuries on the complainant while the J88 completed by Dr Steyn, the
second doctor who medically
examined the complainant, recorded
serious injuries, the court must speculate about the source of the
injuries observed by Dr Steyn.
The appellant should have laid a
foundation for a
novus actus
intervenience
or it must have come
to the fore as a reasonable possibility from the State's evidence. A
Court should refrain from indulging in
speculations and conjectures.
Secondly, it was never put to the complainant, as a reasonable
possibility, that she sustained those
injuries after having been
examined by Dr Kofi Asante but before she was examined by Dr Steyn.
Any suggestion, in my view, that
she might have suffered those
injuries in between the examinations amounts to faulty reasoning.
[49]
This
being an Appeal Court, this Court, sitting as it was, was guided by
the principles according to which a Court of Appeal should
consider
an appeal as set out in R v Dhlumayo
1948
(2)
SA
677
(A),
696. When an appeal is lodged
against a trial court's findings, the Appeal Court, like the present
one, takes into account the fact
that the trial court was in a more
favourable position than itself to form a judgment, because it, the
trial court, was able to
observe the witnesses during their
questioning and was absorbed in the atmosphere of the trial from the
beginning to the end. Initially,
therefore, the Appeal Court must
assume that the trial court's findings are correct. Under normal
circumstances a Court of Appeal
will accept those findings unless
there is some indication that a mistake was made. See S v
Tshoko
1988
(1)
SA
139
(A).
[50]
The
court
a quo
was
aware that the duty lay on the State to prove its case beyond
reasonable doubt. It was aware, furthermore, that no duty lay
on the
appellant to prove his case. It accepted the principle that it was
enough if his version was reasonably possibly true.
[51]
It
is quite clear that the court
a quo,
and quite correctly so, accepted the
evidence of the State witnesses. In my view, there existed valid
grounds for doing so.
[52] The
appellant's legal representative did not challenge Dr Steyn's
findings and his reasons for such
findings. He did not ask Dr Steyn
to juxtapose those findings against the findings of Dr Kofi and
express his opinion why there
was a marked difference. In my view, he
should have placed the J88 completed by Dr Kofi before Dr Steyn and
asked him to comment.
The state and the defence could still have
asked the two doctors to speak to each other, compare notes and draw
joint minutes for
the benefit of the Court. It must always be
remembered that the purpose of the expert witness is to assist the
Court. No party
owns any witness.
[53]
Having failed to challenge the findings of Dr Steyn it was unfair for
Mr Kruger to argue that he should
not be believed. It is unfair to
leave the evidence of a witness unchallenged and then later argue
that such a witness should be
disbelieved. A party who has called
such a witness is entitled to accept that such a witness has told the
truth. In Small v Smith
1954 (3)
SA 434
SWA at 438
the Court
had the following to say:
"It is, in my opinion,
elementary and standard practice for a party to put to each opposing
witness so much of his own case
or defence as concerns that witness
and if need be to inform him, if he has not been given notice
thereof, that other witnesses
will contradict him, so as to give him
fair warning and an opportunity of explaining the contradiction and
defending his own character.
It is grossly unfair and improper to let
a witness’s evidence unchallenged in cross-examination and
afterwards argue that
it should be disbelieved
Once a witness’s evidence
on a point in dispute has been deliberately left unchallenged in
cross-examination and particularly
by a legal practitioner, the party
calling that witness is normally entitled to assume in the absence of
notice to the contrary
that the witness’s testimony is accepted
as correct. More particularly is this the case if the witness is
corroborated by
several others, unless the testimony is so manifestly
absurd, fantastic or of so romancing a character that no reasonable
person
can attach any credence to it whatsoever.
"
[54]
Failure to cross-examine a witness on any aspect of his evidence may
accordingly prevent a party from
later disputing the truth of its
evidence. A party who calls a witness is entitled, in the absence of
any challenge to his evidence,
to assume that a witness's testimony
has been accepted as correct. See in this regard
Browne v Dunn
(1893) 6R 67
( HL. )
[55]
When
one analysis the cross-examination of the witness by the appellant's
legal representative it becomes as clear as crystal that
he failed
to:
55.1
put the appellant's case to Dr Steyn;
55.2
put the appellant's defence to Dr Steyn;
55.3
put it to him that the appellant and Or
Kofi will contradict his evidence;
55.4
put the J88 completed by Dr Kofi before
Dr Steyn and invite him to comment particularly with regard to the
difference.
See also The President of the
Republic of South Africa v South African Rugby Football Union 2000(1)
SA 1 CC at pp 61 to 76 where
the court had the following to say:
"[61] The institution of
cross-examination not only constitutes a right, it also imposes
certain obligations. As a general
rule it is essential, when it is
intended to suggest that a witness is not speaking the truth on a
particular point, to direct
the w11ness's attention to the fact by
questions put in cross-examination showing that the imputation is
intended to be made and
to afford the witness an opportunity, while
still in the witness box, of giving any explanation open to the
witness and of
defending his or her character. If a point in dispute
is left unchallenged in cross-examination, the party calling the
witness
is entitled to assume that the unchallenged witness's
testimony is accepted as correct. This rule was enunciated by the
House of
Lords in Brownev Dunn and has been adopted and consistently
followed by our courts."
[56]
Finally,
in my view, the trial court was entitled in the absence of any
challenge to his evidence to accept the evidence of Dr Steyn
as the
truth. The opinion of Dr Steyn was founded in logical reasoning. An
opinion to be acceptable must have a logical basis.
See Michael and
another v Linksfield Park Clinic Pty Ltd and Another
2001 (3) SA 1188
(SC A.) Apart from the fact that the evidence was unchallenged during
cross examination there were other cogent considerations
why the
court a quo accepted the evidence of Dr Steyn. The evidence was
founded as logical reasoning.
THE EVIDENCE OF THE
COMPLAINANT
[57]
No
part of the complainant's evidence was challenged. Her credibility as
a witness was never called into question. It was never
put to her
that she was inconsistent and that she did not tell the truth. She
denied all the statements that were put to her. It
was put to her
that she drank more than nine bottles of Brutal Fruit. She disputed
this statement. Furthermore, it was put to her
that the appellant
would also testify that she asked him to take her home. She denied
that she asked the appellant to take her
home. It was furthermore put
to her that there at her house she invited him to come in. This she
disputed. In my view, the evidence
of the complainant was beyond
reproach. Her evidence that she had sustained some visible physical
injuries was corroborated by
both Dr Steyn and Totse. Her evidence
that she fled into the street, chased by the appellant who caught up
with her and assaulted
her in the street was corroborated by T and L.
THE EVIDENCE OF PULE TOTSE
[58]
During
cross examination of this witness a strange statement was put to him
by the appellant's legal representative. The following
question was
put to him :
"Did any stage came up in
your mind that between the time the victim saw Kofi and the time that
you saw her she could have
been injured.
"
I find this question somewhat
opaque in the light of the following factors. Firstly, it was never
the complainant's evidence that
she sustained any injuries between
the two medical examinations. Secondly, it was never put to her that
she lied. Thirdly, it was
never put to her by the appellant that she
sustained any further injuries between the two medical examinations.
Fourthly, and as
pointed out by Ms Harmzen, the evidence of Totse
corroborates the complainant's evidence insofar as it related to
certain injuries.
[59]
No question to justify his
dissatisfaction with the report by Dr Steyn was put to him. No
question asked through doubt on his assessment
of Dr Steyn's
expertise in the completion of the J88. The fact that, according to
him, the J88 had not been correctly completed
already threw a devious
light on Dr Kofi Kwan Asante's expertise.
THE
EVIDENCE OF T M A AND L M
[60]
The evidence of these two witnesses is
beyond reproach. An impression was created by Mr Kruger that there
was inconsistency in respect
of whether the knocking was at the door
or at the window. This was fully explained by the witnesses. I find
nothing wrong in their
evidence as to where they knocked at the
complainant's house. At any rate if that is regarded as an
inconsistency, it is an immaterial
one. They corroborated the
complainant that the appellant assaulted her in the street; that he
dragged her back to the house and
that he forcefully pulled her into
the house.
[61]
I
agree with the court
a quo's
finding
that the appellant's version of events was not reasonably possibly
true. In a few words, the appellant's version is a pure
fabrication.
He lied to the trial court. The court
a
quo
was correct in rejecting his
version. Examples of the lies that he told the court are as follows.
He testified that at the time
he wanted to leave the tavern the
complainant stopped him from doing so and asked him to take her home.
Later he testified that
he and the complainant had an agreement to
spend the night together. If his evidence carries any weight, why
would he want to leave
when he had an agreement to spend the night
with the complainant. He testified furthermore that when they reached
the complainant's
gate he wanted to go away but it was the
complainant who stopped him from leaving and asked him to make sure
that she was safe
in the house. This statement cannot be true. Why
would he want to turn back at the gate if he had any agreement with
the complainant
to spend the night with her. He told the court that
after sexual intercourse with the complainant, he told her that he
would leave
and go to his girlfriend but the complainant refused. Why
would he go to his girlfriend after they had agreed to spend a night
together. His version that he had a special affair with the
complainant was a fabrication. It was never put to the complainant
that they had an affair. The evidence of L M that there was no love
relationship between him and the complainant was never disputed.
The
appellant was evasive. He told the court that the complainant was the
one who inserted his penis into her vagina. The question
was whether
the complainant was correct in testifying that he had anal sex with
her. The question was not answered. When he was
pressed for a direct
answer he said that he did not know what happened on the day. He was
steadfast that it was the complainant
who inserted his penis into her
vagina. This statement was not even put to the complainant and the
appellant admitted that. He
denied that he ever assaulted the
complainant.
EVIDENCE
OF DR KOFI KWAN ASANTE
[62]
At the outset I must point out that Dr
Kofi did not furnish any reasons for his opinion as contained in the
J88. In the first place
it must be recalled that the issue is whether
a witness has proof of sexual intercourse and whether she presented
any physical
injuries. If the evidence shows that there was sexual
intercourse irrespective of the presence or absence of the injuries
the complainant's
evidence is corroborated on the aspect of sexual
intercourse. Whether there was any rape is a matter from the evidence
of the complainant.
During cross examination the Dr Kofi admitted
that dealing with rape victims was not his speciality. In other
words, he was a tyro
with regard to this field. The case of the
complainant was the third or the fourth case that he dealt with. But
in training he
testified that they are exposed to a set of rape
victims. It is understandable why he did not complete the J88
properly. It is
because he was inexperienced. On his examination of
the complainant he could not find any evidence that supported the
history that
the complainant had given him. This evidence was, in my
view, strange and fiction considering that even the appellant had
testified
and admitted that he had had sexual intercourse with the
complainant thrice. It must be recalled that in examining the
complainant
the medical doctor's duty is to establish as to whether
such sexual intercourse took place. In his conclusion there was no
such
sexual intercourse.
[63]
Paragraph 22 of the J88 had recorded a
normal anus without any tears or abnormalities. He continued with his
evidence and stated
that he had observed a normal anus. According to
him, if there were any penetration of the anus the complainant would
have been
able to visualise signs like anal tracks or fissures or
there might be evidence of bleeding. On a the complainant he
testified
that he did not find any abnormalities. He did not find
anything to support anal sexual intercourse. On a statement to him by
the
court that both the complainant and the appellant had told the
court that they had sexual intercourse twice he testified that there
was no prove of it. He continued and testified that where a victim
had sexual intercourse before it becomes very difficult to establish
that. According to him that there was sexual intercourse can only be
established through the presence of semen or trauma to the
sexual
genitals or blood or cracks in the anus or vaginal walls. He also
testified that he did not smell liquor. This, despite
the evidence of
the appellant that the complainant was drunk. According to him at the
time he examined the complainant she did
not have any blue eye. He
would have seen it as a blue eye would have constituted hard clinical
evidence and he could not miss
it. He spent three hours with the
patient. If there was anything visible in the face he would have been
able to see it. He could
not comment on the observations made by
warrant officer Totse that he saw the complainant walking with some
difficulty the same
day after he had examined her. I accept the
finding of the trail court that Dr Kofi Asante was not a credible and
reliable witness.
He was correct in his observation that the doctor
did not apply his mind to what he was doing. His evidence generated
an opprobrium,
in my view, quite correctly so, on the part of the
court
a quo.
[64]
In his heads of argument counsel for the
appellant stated that the trial court erred in not attaching
sufficient weight to the evidence
of Dr Kofi. It was argued
furthermore by the appellant's counsel that Dr Kofi's J88
corroborates the version of the appellant.
This argument, in my view,
lacks merit. I already have dealt with the evidence of Dr Kofi
somewhere
supra.
The
case of Coopers {South Africa Limited) v Deutsche Gesellschaft which
the evidence of an expert should be assessed. It had the
following to
say:
"As I see it, an expert's
opinion represents his reasoned conclusion based on certain facts or
data, which are either common
cause, or established by his own
evidence or that of some other competent witness. Except possibly
where it is not controverted,
an expert's bald statement of its
opinion is not of any real assistance. Proper evaluation of his
opinion can only be undertaken
if the process of reasoning which led
to conclusion, including the premises from which the reasoning
proceeds, are disclosed by
the expert. Even bearing in mind that the
addressee of the summary is probably also an expert, I am of opinion
that the addressee
may not be able to evaluate the opinion, so as to
enable him to advise the party consulting him thereon, if he is not
informed
in the summary of "the reasons" for the opinion.
Having regard to the above meaning of the word "reasons" in
the context of the sub-rule as a whole and the purpose thereof, I am
of the opinion that the summary must at least state the sum
and
substance of the facts and data which lead to the reasoned conclusion
(i.e., the opinion). Where the process of reasoning is
not simply a
matter of ordinary logic, but involves, for example, the application
of scientific principles, it will ordinarily
also be necessary to set
out the reasoning process in summarised form. The addressee should
then be in a position to evaluate the
opinion, and be in a position
to advise the party consulting him whether the opinion can be
controverted and, if so, what evidence
is required to do so."
See also Michael and Another v
Linksfield Park Clinic (Pty) Ltd and Another
2001 (3) SA
1188
SCA.
[65]
In my view, the appeal against
conviction cannot succeed.
[66]
The
appellant's appeal against sentence is predicated on the fact that
the court
a quo
erred
in finding that there are not substantial and compelling
circumstances.
[67]
I
now turn to the appeal against sentence. The record contains the
address on sentence by both the State and the appellant's legal
representatives. At the same time the court imposed a life sentence
on the appellant. This means that the court
a
quo
was not persuaded by what was
placed before it to enable it to deviate from imposing life sentence.
The court
a quo
did
not find any substantial and compelling circumstances on the factors
placed before it. Accordingly, the duty of this Court is,
by looking
at the said address, to decide whether the court
a
quo
erred in finding no substantial
and compelling circumstances or to put it otherwise, whether the
court
a quo
should
have found substantial and compelling circumstances.
[68]
The
charges against the appellant were read subject to the provisions of
the Criminal Law Amendment Act 105 of 1997 ("the Minimum
Sentence Act"). This means that the sentence was prescribed and
that if the appellant were convicted accordingly the prescribed
sentence would be imposed on him unless the court
a
quo
was satisfied that substantial
and compelling circumstances were present which militated against the
imposition of an ordained sentence.
[69]
The
appellant's personal circumstances were placed on the record by his
legal representative. He told the court that the appellant:
69.1 was born in 1979 and
that he would turn 33 years of age in December 2013;
69.2 was not married;
69.3
had two minor children that he
maintained; and
69.4
was unemployed.
Then the appellant's legal
representative submitted that the appellant's charges were "not
an extreme one". Presumably
he wanted to submit that the charges
against the appellant were not one of the worst ones. He then
referred the Court to a few
authorities in support of his submission.
It must be recorded that each case is dealt with on its own merits
and furthermore that
no two cases are ever the same.
[70]
On
the other hand the public prosecutor urged the court to consider the
seriousness of the offences the appellant had been convicted
of; the
prevalence of such offences in that area; I must pause here and
recall the words of the Court in
R v
Mapumulo and Others
1920 AD 56
, 57
where the Court said that:
"The infliction of
punishment is pre-eminently a matter for the discretion of the trial
Court. It can better appreciate the
atmosphere of the case and can
better estimate the circumstances of the locality and the need for a
heavy or light sentence than
an appellate tribunal. And we should be
slow to interfere with its discretion.
"
In addition the public prosecutor
urged the court to take into account the fact that the appellant and
the complainant knew each
other. Life would be difficult for the
complainant seeing that despite the fact that he and the complainant
knew each other and
also stayed in the same area. Furthermore, the
public prosecutor urged the court to consider the manner in which the
offences were
committed. The fact that the appellant was not a first
offender.
[71]
The court
a
quo
was aware that in imposing
sentence on the appellant it had to have regard to the triad as
expressed in S v Zinn 1969(2) 537 (A).
Indeed it took into account
the personal circumstances of the appellant, the seriousness of the
offence, lack of penitence by the
appellant, weighed them, according
each one of them equal weight, and found no substantial and
compelling circumstances. It was
aware, as had been pointed out by
the public prosecutor, that the special sentences were not to be
departed from lightly and for
flimsy reasons that could not withstand
scrutiny. Although there is no definition of "substantial and
compelling circumstances",
and furthermore although one factor
or a combination of factors may amount to substantial and compelling
circumstances , the court
a quo
found
no such circumstances in what was placed before it.
[72]
Ms
Van Wyk, counsel for the appellant, submitted in her heads of
argument that the trial court failed to bear in mind that a sentence
of life imprisonment was the ultimate sentence that the court could
impose. Before us she argued furthermore that even if the trial
court
did not find substantial and compelling circumstances it must still
ask itself whether it is justified to impose the prescribed
sentence
given the specific circumstances of a particular case. The law
prescribes a sentence and details the circumstances in
which the
prescribed sentences may be diverted from.
[73]
On
the other hand, Ms Harmzen, counsel for the respondent submitted that
the offence of which the appellant was convicted was a
serious
offence. She furnished reasons why, in her consideration, the offence
was serious. This was in keeping with S v Banda and
Others 1991(2) SA
352 BGD, at page 355 I - 356 C where the court had the following to
say:
"(d) The crime. In passing
sentence the trial court must take into account the moral and ethical
nature of the crime, and the
gravity of the offence. It is accepted
and is indeed logical that a more serious crime will carry with it a
greater moral blameworthiness
than a minor or less serious offence.
This involves a moral and value judgment A process of arid
intellectualism is insufficient.
Mere theorising is not sufficient.
What matters finally is how the Court views the crime on its own
merits, and all the relevant
proven facts and circumstances must be
carefully considered and assessed. Merely to find that a crime is by
itself serious without
regard to its setting and its factual context,
and thereby concluding that the crime committed by the offender is
therefore also
serious, is not appropriate, and may result in a
serious misdirection. The Court does not and cannot rely on a
catalogue of crimes.
To do so would result in a purely mechanistic
approach, whereby the Court, in its judicial discretion, would fail
to pay due regard
to the facts and circumstances of the particular
crime. Conjoined to the nature of the crime are also the consequences
of the crime.
If the consequences are serious or indeed incalculable,
the aggravating circumstances will be viewed more seriously by the
Court.
On the other hand, if there were no serious consequences or
results flowing from the crime, the aggravating circumstances recede.
The sentence therefore must be commensurate with the gravity or
otherwise of the crime, and is a necessary concomitant of punishment
See Du Toit Straf in Suid Afrika at 89-91; S v Zinn (supra); S v
Haasbroek
1969 (1) SA 356
(E)."
She submitted furthermore in her
heads of argument that the court
aquo
did
not misdirected itself or did not commit any irregularity in its
assessment of the relevant factors with regards to sentence.
Before
us she submitted that the court
a quo
was
correct in finding that there were no substantial and compelling
circumstances. I agree with her. Accordingly the appeal against
sentence cannot succeed.
[74]
Accordingly we make the following order:
1.
The appellant's appeal against both
conviction and sentence is hereby dismissed.
2.
The
conviction of the appellant by the court a quo and the sentence
imposed on him are hereby confirmed.
PM MABUSE
JUDGE OF THE HIGH COURT
SNI MOKOSE
JUDGE OF THE HIGH COURT
Appearances
:
Counsel
for the Appellant:
Adv LA van Wyk
Instructed
by:
Legal Aid South Africa
Counsel
for the Respondent:
Adv GP Harmzen
Instructed
by:
Director of Public Prosecutions
Date
Heard:
28 January 2019
Date
of Judgment:
31 January 2019