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2019
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[2019] ZAFSHC 208
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Nunwana v S (A112/2019) [2019] ZAFSHC 208 (7 November 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Appeal No.: A112/2019
In the matter between:-
ZUKILE
NUNWANA
Appellant
And
THE
STATE
Respondent
JUDGMENT
BY:
C. J.
MUSI, JP
et
N.M. MBHELE, J
HEARD
ON:
4
NOVEMBER 2019
DELIVERED
ON:
7
NOVEMBER 2019
[1]
The appellant was convicted by the Regional Magistrate, Bloemfontein,
of raping the
complainant more than once, whilst she was 16 years
old, and sentenced to life imprisonment. He appeals against
conviction and
sentence.
[2]
The complainant is the appellant’s stepdaughter. During October
2014 the complainant’s
mother was hospitalized. She stayed with
the appellant and her grandmother, whilst her mother was in hospital.
[3]
On the evening of 2 October 2014, the complainant was sleeping on a
couch in the living
room. Her grandmother was sleeping in one of the
bedrooms and the appellant in the other bedroom. In the course of the
evening
the appellant approached her and asked her to sleep with him
in the bedroom. She refused. During the course of the evening the
appellant approached her and undressed her. She asked him what he was
doing and he told her not to scream or tell anyone and if
she does he
would kill everyone in the house. He had sexual intercourse with her
without her consent.
[4]
The next day she went to school as if nothing happened. The evening
she prepared food
for the family whereafter they went to bed. The
appellant approached her again and had sexual intercourse with her.
Approximately
one week after this incident the appellant asked her
whether she wanted to sleep with him and she said no. On another
occasion
the appellant was wielding a knife and threatened to kill
her if she reported to her grandmother that he had sexual intercourse
with her. She could not recall how many times he had sexual
intercourse with her.
[5]
Her mother was discharged from hospital and asked her who was abusing
her, she said
no one. Her mother told her that someone called her and
informed her that she is being abused. Her grandmother told her not
to
say anything until all the family members were there. When her
family members arrived her grandmother asked her what happened. She
said nothing happened. Her grandmother told her to speak the truth
and she then reported that her stepfather raped her.
[6]
The complainant’s grandmother testified that while her daughter
was in hospital
the complainant made a report to her about the fact
that the appellant was having sexual intercourse with her, without
her consent.
Complainant informed her that this happened on three
occasions. The complainant informed her that she screamed but that
the appellant
threatened to kill her. She called Bongiwe and the
complainant’s mother and requested the complainant to repeat
what she
told her. The complainant was crying while she told them
about the incidents. She reported the matter to the police.
[7]
The complainant was examined by a forensic nurse and no visual or
genital injuries
were noted.
[8]
The appellant testified and denied the allegations against him.
According to him the
probable motive behind the charge is that he
wanted the children to relocate to the Eastern Cape. He further
testified that he
and the complainant got along very well and during
2013 the complainant kissed him on his penis. According to him, he
slept in
the outside room whilst the complainant’s mother was
hospitalized. He did not sleep in the house during that time.
[9]
It is trite that a Court of Appeal will not easily interfere with the
trial court’s
factual findings unless such findings are clearly
wrong. It is also trite that the State must prove the guilt of the
appellant
beyond reasonable doubt.
[10]
Mr. Steyn initially supported the trial court’s factual
findings but he was constrained to concede
that those factual
findings are not supported by the evidence.
[11]
The Regional Magistrate paid lip service to the cautionary rule
relating to evaluating the evidence
of a single witness.
Although he stated that he must look at all the evidence, he clearly
did not do that.
[12]
He found that the contradictions between the complainant’s
testimony and her statement were not
material. In the statement she
stated that on the morning of 3 October 2014, the appellant touched
her breasts and she told him
that she was going to tell her mother.
In her statement she stated that she tried to scream but the
appellant closed her mouth.
She did not mention this whilst
testifying. She did not mention that he threatened her with a knife.
She also did not mention,
in her statement, that he promised to give
her money. These are indeed material contradictions.
[13]
The Regional Magistrate found that it is unlikely that the
complainant would “consistently repeat
a fabricated story”.
There was no consistency at all, as the discrepancies between her
testimony and her statement clearly
show.
[14]
He found that her recollection of the events was good. Unfortunately
the complainant, who was 18 years
old when she testified, could not
remember on how many occasions the incidents happened and mentioned
as an afterthought that the
appellant had a knife at one stage.
[15]
The Regional Magistrate also found that the complainant is
“corroborated in the fact that she
indeed reported the incident
to her grandmother and that at the time of reporting she was
emotionally disturbed, crying and shivering”.
First, the report
is not a first report. It was not done voluntarily at the first
reasonable opportunity. When the complainant
was asked by her mother
she denied that anything happened. Second the “first report
evidence” does not serve as corroboration
but is indicative
consistency. That is the true purpose of the “first report
evidence”.
[16]
In fact it is not clear when and to whom the first report was made.
According to the complainant her
mother confronted her with the
allegation that she was being abused. During cross-examination, her
grandmother testified that the
complainant tried to tell her what
happened but did not do so until her mother was discharged from
hospital. The evidence relating
to the first report is, at best,
confusing. The Regional Magistrate misdirected himself and did not
give proper consideration to
the evidence.
[17]
The appellant was not a good witness. The Regional Magistrate
justifiably criticized his version. His
version that the complainant
kissed his penis was not put to the complainant. Likewise the version
about his intention to send
the children to the Eastern Cape and his
mother-in-law’s objection thereto was not put to the State
witnesses.
[18]
Regardless of the demerits of the appellant’s version, the
State must still prove its case beyond
reasonable doubt. I am not
convinced that the appellant’s guilt has been proven beyond
reasonable doubt.
[19]
I accordingly make the following order:
1.
The appeal is upheld.
2.
The conviction and sentence are set aside.
C.J. MUSI, JP
I concur.
N.M. MBHELE, J
Appearances:
For the
Appellant:
Ms V. Abrahams
Legal Aid South Africa
Bloemfontein
For the
Respondent:
Adv C.F. Steyn
Director Public
Prosecutions
Bloemfontein