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[2019] ZANCHC 57
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Kgosiencho v S (CA&R 46/2019) [2019] ZANCHC 57 (8 November 2019)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE HIGH COURT, KIMBERLEY)
Case
no: CA&R 46/2019
HEARD
ON: 09-09-2019
DELIVERED:
08-11-2019
In
the matter between:
Pako
Kgosiencho
Appellant
And
The
State
Respondent
CORAM:
WILLIAMS ADJP et Vuma AJ
J
U D G M E N T
Williams
ADJP
1.
The
appellant was convicted of sexual assault (a contravention of sec 5
of Act 32 of 2007) in the Regional Court, Galeshewe and
was sentenced
to 4 years imprisonment, wholly suspended for a period of 5 years on
certain conditions.
He now appeals against
the conviction.
2.
The
grounds of appeal are simply that the court
a
quo
erred in accepting the evidence of the complainant who was a single
witness and not finding the version of the appellant to be
reasonably
possibly true.
3.
The
common cause facts are briefly as follows:
3.1 The
complainant and the appellant were both students at the Sol Plaatje
University and knew each other.
3.2 On
that particular night the students were congregating in groups in the
quadrangle on campus awaiting the
results of the Student
Representative Council election which took place during the course of
the day. The atmosphere was
festive with music and alcoholic
beverages being consumed.
3.3 At
one stage the appellant, who lived off-campus, asked the complainant
whether he could leave his speaker
in her room at a residence on
campus. She agreed and gave him her room keys. While in
the complainants room he decided
to charge his cell phone there as
well.
3.4
Later that same night he asked for her key again to retrieve his cell
phone. The appellant returned
the key to the complainant on
both occasions.
3.5
After the election results were announced, the complainant who was
feeling a bit tipsy by then, left the group
for her room with the
appellant following her.
3.6 The
appellant got delayed along the way but eventually entered the room
of the complainant which was unlocked
and lied down next to her on
her bed.
3.7 At
one stage the complainant left the room and returned after some
time. She asked him to leave her
room.
3.8
Soon after the appellant got out of bed a friend of the complainant
knocked on her door. When the complainant
opened the door, she
ran out of the room crying.
4.
The
complainant testified that the appellant had offered to walk her half
way to her residence after she had decided to call it
a night.
Although she declined the offer, the appellant nonetheless followed
her. Halfway to the residence, he was
approached by a fellow
student and while he remained to chat, she proceeded to her room.
She left the door unlocked since
she expected her sister to collect
her key, which was with the complainant, later on. The
complainant stated that she did
not expect the appellant to follow
her into her room since she had been under the impression that he had
been banned from the residence
at some prior stage.
5.
The
complainant testified that she fell asleep while still fully clothed
and woke up when she felt someone putting his arms across
her waist.
When she turned around she saw that it was the appellant who was
lying next to her in bed. Upon enquiring
what he was doing in
her room, the appellant told the complainant that he just wanted to
cuddle. She refused but felt that
the appellant had an
erection. When she looked down she saw his clothes on the floor
and realised that he was naked.
6.
She
stated further that the appellant started dry humping her –
which she describes as having sex with ones clothes on, although
in
this instance she was the one fully clothed.
7.
The
appellant refused to stop when she asked him to whereafter she then,
while still lying next to the appellant used her laptop
to contact
her boyfriend, one M[….] on Facebook. She texted her
boyfriend that someone was in her room and that he
did not want to
leave. She also asked her boyfriend to contact her sister or
one of her friends about her situation. M[….]
told her
to scream but the appellant said she should not scream.
8.
After
a while she left the room to go to the bathroom which was situated
down the passage. According to the complainant she
sat there
for about twenty minutes before she returned to her room. She
had hoped that the appellant would have left by then.
9.
When
she asked him to leave he got out of bed but did not start getting
dressed. There was a knock on the door and the appellant
moved
towards the door. When the complainant started moving towards
the door the appellant told her not to open and went
to stand behind
the door.
10.
The
person at the door was her friend N[….] who had been alerted
to the situation by the complainant’s boyfriend M[….].
In any event the complainant rushed past the appellant and unlocked
the door, which she testified must have been locked by the
appellant. She opened the door and ran past her friend to the
toilet. When she ventured to her bedroom later on the
appellant
had left.
11.
Ms
F[….] M[….] (N[….]) testified that she had
knocked on the complainant’s door for a while without any
response. She was about to leave when M[….] urged her to
try again since the complainant had told him that there was
someone
in the room who did not want to leave. When she knocked again
the complainant opened the door and ran past her crying.
The
appellant was standing at the bed dressed in boxer shorts and a
t-shirt and was busy putting on his pants.
12.
Mr M[….]
M[….] testified that he recieved a text message from the
complainant on the night in question telling
him that she was drunk
and that a guy had followed her to her room and refused to leave.
She asked him to get hold of her
friend N[….]. While he
was trying to get hold of the friend’s number the complainant
told him that the guy was
getting undressed and was touching her.
He then told her to scream. The complainant then told him that
the guy said
that he will beat her if she screams. He
eventually got hold of N[….] and told her to check on the
complainant.
While waiting for a return call from Nonthlantla
the complainant texted him again to say that the guy was forcing her
onto the
bed.
13.
The
appellant’s version is that he was approached by the
complainant, while they were waiting for the SRC election results,
to
sit with her group of friends since he had music. When the
battery of his speaker went flat it was the complainant who
suggested
that he take her key and leave the speaker in her room for
safekeeping. By the time the election results were announced
it
was already late and since his residence was about 4 kilometres away
he asked the complainant if he could sleep over at her
place.
She agreed but added that he would have to wake up very early to go
to his own place. When they got to her residence,
she signed
the security register and proceeded to her room, whereafter he signed
the register and followed her.
14.
When
he got to the complainant’s room, he knocked and entered.
He saw the complainant lying in bed busy on her laptop.
He took
of his shoes and lied on his stomach on the bed where he fell
asleep. The appellant testified that he woke up when
the
complainant got out of bed and left the room. He then waited
for her for a long time to return so that he could go home.
He
stated that he did not want to leave before she got back.
15.
When
the complainant eventually returned to her room she closed the door
and asked him to leave. He had no problem with that,
since it
was his intention to go. As he was about to leave – he
only had to put on his shoes – there was a knock
on the door.
The complainant surprised him by telling him to keep quiet. The
knocking continued and the person was
calling her name before
eventually the complainant opened the door and ran out of the room
and Nonthlantla entered.
16.
The
appellant testified that he was standing at the desk next to the bed
at the time. He denies that he was pulling up his
pants as
testified to by N[….]. In fact at that stage he had
already put on his shoes and was fully dressed.
He denies
having threatened or sexually assaulted the complainant.
17.
S208
of the
Criminal Procedure Act 51 of 1977
permits a conviction on
the single evidence of any competent witness. Such evidence
should however be substantially satisfactory
in every material
respect or there should be corroboration.
18.
In
casu
the trial court was aware of and acknowledged the dangers
inherent in accepting the evidence of a single witness without
exercising
the necessary caution. It appears from a reading of
the judgment however that the trial court justified the
inconsistencies
and improbabilities in the version of the complainant
by ascribing it to:
(i)
The fact that this was not the normal sexual assault situation;
(ii)
The fact that the appellant was a friend and fellow student of the
complainant; and
(iii)
That one should therefore not impute stereotypical responses to the
complainant.
19. In
following through on this line of reasoning, the trial court accepted
as reasonable the complainant’s
explanation for going to the
bathroom instead of alerting the campus/residence security to the
presence of an unwelcome naked man
in her room – i.e. that she
had given the appellant the benefit of the doubt that he would leave
her room as she had requested
of him.
20.
Whilst the fact that they knew each other may explain why the
complainant elected to give the appellant an
opportunity to leave of
his own accord, it does not explain why, when she returned to her
room and discovered that he had not left,
the complainant nonetheless
entered the room and in fact closed the door behind her. This
must be so since the door was closed
when N[….] arrived
shortly after the complainant had returned to her room and found the
door closed.
21. Mr
Steynberg for the appellant highlighted during argument many more
inconsistencies and improbalities in
the state case. Amongst
these are:
21.1 The fact that
the complainant would not want the appellant to accompany her to her
residence when it was common cause
that his speaker was still in her
room;
21.2 The fact that
the complainant could have thought that the appellant had been banned
from the residence (and therefore
would not be able to gain entry)
when he had been to her room on two prior occasions during the course
of that night without any
problem;
21.3 The fact that
the complainant had left her door open whilst being aware that the
appellant was following her;
21.4 The fact that
the complainant was able to have sent multiple text messages via
Facebook while, on her version, being
sexually assaulted by the
appellant;
21.5 The
inconsistencies between the complainant’s evidence as to what
she had texted M[….] and M[….]’s
testimony in
this regard; and
21.6 The
inconsistency between the complainant’s evidence as to the
appellant’s position in her room and his state
of undress when
N[….] entered the room and that of N[….].
22.
Despite the discrepancies, the trial court found that the complainant
had maintained her version throughout,
was honest, credible and
satisfactory and that there was no reason not to believe the
complainant. Corroboration for the
complainant’s distress
was found in the evidence of N[….] and M[….]. The
trial court found further that
“
the state witnesses
corroborated each other on material aspects of the evidence.
The corroboratian for the complainant by
the witnesses is on material
aspects of this case, thereby completing the puzzle.”
In addition the trial
court held that the evidence of the appellant corroborated the
version of the complainant to a large extent.
23. I
have already pointed out the contradictions and improbabilities in
the evidence of the complainant.
Her evidence on its own could
therefore not have been found to be substantially satisfactory or
reliable. Corroboration for
her evidence thus becomes important
before a conviction can follow.
The corroboration which
the trial court alluded to is rather vague and presents with at least
two problems. Firstly, the fact
of the complainant’s
distress when she opened the door for N[….] and thereafter has
not been placed in dispute.
The evidence of N[….] and
M[….], who arrived on the scene later, can therefore not be
considered as corroboration
of her distress. In
S vs Gentle
2005(1) SACR 420 (SCA) at paragraph 18 thereof Cloete JA said the
following:
“
It
must be emphasized immediately that by corroboration is meant other
evidence which supports the evidence of the complainant,
and which
renders the evidence of the accused less probable, on the issues
in dispute (cf R v W
1949
(3) SA 772
(A)
at 778-9). If the evidence of the complainant differs in significant
detail from the evidence of other State witnesses, the
court must
critically examine the differences with a view to establishing
whether the complainant’s evidence is reliable.
But the fact
that the complainant’s evidence accords with the evidence of
other State witnesses on issues not in dispute
does not provide
corroboration.”
24.
Secondly, in as far as it was found that the state witnesses
corroborated each other on material aspects,
the trial court failed
to elucidate these material aspects and in addition failed to have
regard to the glaring inconsistencies
in the different versions.
25. It
is of no avail in these circumstances so seek corroboration for the
complainant’s version in the
evidence of the appellant.
The trial court found the appellant’s version to be improbable,
but such evidence cannot
be rejected merely because it is improbable
but only if it can be said to be so improbable that it cannot be
reasonably possibly
true. In
S v Schackell
2001(2) SACR
185 (SCA) at paragraph 30 thereof Brand AJA, as he then was, held
that:
“
It
is a trite principle that in criminal proceedings the prosecution
must prove its case beyond reasonable doubt and that a mere
preponderance of probabilities is not enough. Equally trite is the
observation that, in view of this standard of proof in a criminal
case, a court does not have to be convinced that every detail of an
accused's version it true. If the accused's version is reasonably
possibly true in substance the court must decide the matter on the
acceptance of that version. Of course it is permissible to test
the
accused's version against the inherent probabilities. But it cannot
be rejected merely because it is improbable; it can only
be rejected
on the basis of inherent probabilities if it can be said to be so
improbable that it cannot reasonably possibly be
true.”
26. In
any event, the appellant’s version in the circumstances of the
events of that evening and specifically
the fact that the witnesses,
with the possible exception of M[….], had all partaken in
alcoholic beverages cannot in my
view be rejected as not being
reasonably possibly true.
27. Mr
Mxabo who appeared for the state in my view correctly conceded that
in all the circumstances of this matter,
the state had failed to
prove the offence beyond a reasonable doubt and that the appeal
should succeed.
In the premises, the
following order is made:
a)
The appeal succeeds.
b)
The conviction and sentence are set aside.
CC
WILLIAMS
JUDGE
I
concur
L
VUMA
ACTING
JUDGE
For
Appellant:
Mr H Steynberg
Legal Aid South Africa
For
Respondent:
Adv NA Mxabo
Office of the DPP