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[2019] ZAFSHC 179
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Kaibe v S (A94/2019) [2019] ZAFSHC 179 (3 October 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal No: A94/2019
In
the appeal between:-
MONNAPULE
GILBERT KAIBE
APPELLANT
and
THE
STATE
RESPONDENT
CORAM:
MHLAMBI, J
et
MOLITSOANE, J
JUDGMENT
BY
:
MOLITSOANE, J
HEARD
ON:
9 SEPTEMBER 2019
DELIVERED
ON:
3
OCTOBER 2019
[1]
The appellant was
convicted in the Regional Court: Bloemfontein on a charge of rape
read with the provisions
s51
(1) of the
Criminal Law Amendment Act
105 of 1997
. He was sentenced to life imprisonment. He has an
automatic right of appeal and this appeal is against the conviction
and sentence.
[2]
The facts of this
case are briefly as follows: The complainant was 15 years old at the
time of this incident. The appellant is related
to her by marriage.
On the day of this incident, a Friday, the complainant went to the
appellant’s place. The purpose was
to go and look for the
children of the appellant. Upon arrival she found that the
appellant’s wife and the children were
not present. The
appellant was, however, present. She could not return to her home due
to the fact that there were gang fights
outside and the situation was
dangerous. At the suggestion of the appellant she decided to sleep
over. The appellant gave her a
gown belonging to his wife. During the
night the appellant came into her bed where she was sleeping, told
her that she smelled
like her wife, he kissed her on the neck,
undressed her and penetrated her vaginally without her consent.
[3] The
following day, on Saturday, she went home. Upon confrontation by her
grandmother as to where she had slept,
she said that she had slept at
the appellant’s place. She did not indicate that the appellant
also had sexual intercourse
with her without her consent. She had a
key to the house of the appellant when she returned home in the
morning. She only
reported the rape about six days later.
[4] The
onus is on the state to prove its case beyond a reasonable doubt. On
the other hand, what is expected
of an accused is to give a version
which is reasonably possibly true. Where there is doubt, the scale
will weigh in favour of the
accused. The court in
S
v Chabalala
[1]
set out the approach in the evaluation of evidence as follows:
“
The
correct approach is to weigh up all the elements which point to the
guilt of the accused against all those which are indicative
of his
innocence, taking proper account of inherent strengths and
weaknesses, probabilities and improbabilities on both sides and,
having done so, to decide whether the balance weighs so heavily in
favour of the state as to exclude any reasonable doubt to the
accused’s guilt. The result may prove that one scrap of
evidence or one defect in the case for either party (such as the
failure to call a material witness concerning an identity parade) was
decisive but that can only be on an
ex
post facto
and the trial
court (and counsel) should avoid the temptation to latch on to one
(apparently) obvious aspect without assessing
it in the context of
the full picture in evidence.”
[5]
The grounds on
which the appellant relies on in this appeal are briefly set out as
follows:
AD CONVICTION
(a)
The Court
erred in finding that the State had proven its case
beyond a reasonable
doubt;
(b) The Court
erred in finding that the complainant and the state witnesses were
credible witnesses;
(c) The Court
erred in not accepting the version of the Appellant and drew a
negative inference against him.
[6]
The complainant is
a single witness with regard to the act of rape itself. Section 208
of the Criminal Procedure Act provides that
a conviction may follow
on the evidence of a single competent witness. It is trite that the
evidence of a single witness must be
approached with caution. Over
and above the cautionary rule in respect of single witnesses the
complainant in this case was a child.
This also called for a further
cautionary approach to her testimony. In
Woji
v Santam Insurance Co Ltd
[2]
the
court said the following with regard to the evidence of children:
“
Trustworthiness….depends
on factors such as the child’s power of observation, his power
of recollection and his power
of narration on the specific matter to
be testified….His capacity of observation will depend on
whether he appears ‘intelligent
enough to observe’.
Whether he had the capacity of recollection will depend again on
whether he has sufficient years of discretion
‘to remember what
occurs’ while the capacity of narration or communication raises
the question whether the child has
capacity to understand the
questions put, and to frame and express intelligent answers.
”
[7] It
bears mentioning at the beginning that the court a
quo
made certain favourable credibility findings in respect of the
complainant. This court is bound by the credibility findings of
the
trial court unless such findings are clearly wrong. - See
J
v S
[3]
[8]
As alluded above, in order to convict an accused person on the basis
of the evidence of a single witness,
not only must such evidence be
credible but it must also be reliable. When the complainant was
confronted by her grandmother
as to where she had slept the previous
night she confirmed that she slept at the appellant’s place.
When her grandmother
further asked where the children she was
supposed to have fetched were, she lied to her and said that their
mother left with them
to Freedom [Square] on the morning of that
Saturday
[4]
. She thus gave an
impression to the grandmother that she and the other children slept
together. Her undisputed testimony which
is corroborated by the
appellant was that when she arrived at the appellant’s place
and until she left the following morning
the children were not there.
[9] In
her testimony complainant testified that at the time of this incident
she was staying with her father
and stepmother while the grandmother
testified that the complainant was staying with her at the time.
[5]
It
is not clear why she insisted that she was staying with her father
while the grandmother is adamant that she had been staying
with her
since her birth. The complainant testified that when she left the
appellant’s house in the morning, she went to
her father’s
house where she went to sleep. According to her she only met her
grandmother at about 13h00
[6]
.
This differs materially with the testimony of the grandmother that
the complainant arrived at home after 8h00, giving an impression
that
from the appellant’s house the complainant went straight home.
At no stage did she also tell her grandmother that from
the
appellant’s place she also went to her father’s place to
sleep. The credibility findings by the trial court cannot
be
supported in light of these discrepancies.
[10]
The
court
a
quo
correctly found that there were two versions which were diametrically
opposed to each other in this case. The said court in its
judgment
said the following
[7]
:
“
In
this instance it is a very difficult situation, it is actually at the
end the word of the 15 year old complainant against the
word of a
42year old accused person.”
[11]
It would seem to
me that the court
a
quo
accepted the version of the complainant mainly because the appellant
gave the complainant her wife’s gown. The appellant
does not
deny that he gave the complainant the sleeping gown of his wife. This
in my view does not prove that the appellant had
sexual intercourse
with the complainant. This fact must be weighed together with all
other factors. Section 59 of the Act 32 of
2007 provides as follows:
“
In
criminal proceedings involving the alleged commission of a
sexual offence, the court may not draw any inference
only
(
my
emphasis)
from the length
of any delay between the alleged commission of such offence and the
reporting thereof.”
[12]
In
my view, section 59 above was promulgated for the simple reason of
precluding an inference being drawn solely based on the period
of
delay between the commission of the offence and the reporting
thereof. This is understandable in view of the nature of this
type of
offence. Victims may at times have been threatened. At times they may
keep quiet for fear of being humiliated or ridiculed.
At times they
may feel unworthy and shy to come in the open and report their cases.
In other words, section 59 precludes
an inference being drawn
only on the basis of the ‘delay’ standing in isolation.
This section does not, in my view,
preclude that a ‘delay’
be taken into account together with any other relevant factors in the
evaluation of the evidence
of alleged commission of a sexual offence.
[13]
The
evidence of the complainant was not honest and reliable. There were
contradictions in her testimony and that of the first report,
her
grandmother. It is her testimony that when she went home she had the
keys of the house of the appellant. She did not explain
what she was
going to do with the keys. What is clear to me is that she only
changed her version about what actually happened when
she was
confronted by her stepmother about the alleged affair with the
appellant that she suddenly decided to implicate the appellant
with
this rape. The fact that she only reported this incident six days
after its alleged commission should be weighed together
with the fact
that she only reported it after being confronted by the stepmother.
One even wonders if she would have reported this
incident had she not
been confronted by the stepmother. The evidence does not show that
she was even threatened in any way by the
appellant except that she
said that the appellant said that the elderly people would not
believe her and that his wife would beat
her up.
[14]
The
evidence of the complainant is not supported by any DNA. The medico
legal report does not support her evidence. I hasten to
add that lack
of corroboration of medical or scientific evidence does not
necessarily imply that sexual intercourse did not take
place. In this
case, it fortifies doubt that the appellant had sexual intercourse
with the complainant as alleged.
[15]
At
the end of the day I agree with the sentiments expressed by the trial
court that it is easy to put up a defence of a bare denial.
That,
however, does not necessarily prove guilt. As to what happened
in that bedroom between the parties only differs when
it comes on
whether sexual intercourse took place or not. In my view the version
of the appellant is not far-fetched and it is
reasonably possibly
true. In view of the testimony of the complainant there is doubt that
the complainant was raped. It is trite
that where there are two
versions as also pointed out by the trial court and where there is
doubt, the scales should tip in favour
of the appellant. It is not
necessary to reject the version of the complainant as the main issue
is whether the evidence of the
appellant is reasonably possibly true.
In my view the trial court should have found in favour of the
appellant and acquitted him.
This conviction can thus not stand. It
stands to reason that if the conviction is set aside the sentence
cannot stand. I
propose the following orders:
ORDER
(a)
The appeal
against the conviction and sentence is upheld.
(b)
The
conviction and the sentence are set aside
PE MOLITSOANE
I
agree
JJ MHLAMBI
For
the Appellant: Mr PL Van der
Merwe
Instructed
by:
Legal Aid South Africa
BLOEMFONTEIN
For
the Respondent: Adv L Rathaba
Instructed
by:
Deputy Director of Public Prosecutions
BLOEMFONTEIN
[1]
2003(1) SACR 134 (SCA) at 140 a-b
[2]
1981(1) SA 1021(A) 1028 B-D
[3]
All SA 267(A) 271 C
[4]
See page 12 lines11-20 of the record.
[5]
See pages 8 and 48 of the record
[6]
See pages 54 -55 lines 21
et seq
of the record
[7]
See page 132lines 16-18 of the record