About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2019
>>
[2019] ZAKZPHC 81
|
|
Khulu v S (AR 9/2019) [2019] ZAKZPHC 81 (6 December 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
KWAZULU-NATAL
LOCAL DIVISION, PIETERMARITZBURG
AR
9/2019
THULANI
KHULU
APPLICANT
and
THE
STATE
RESPONDENT
ORDER
I make the
following order herein:
1.
The appeal against conviction is dismissed.
APPEAL JUDGMENT
Delivered on: 6 December 2019
GOVINDASAMY
AJ:
[1]
The appellant, a 29 year old male, is charged with the one count of
rape in terms
of
section 3
of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007
, read with the provisions
of
section 51(1)
of Schedule 2 of the
Criminal Law Amendment Act 105
of 1997
, in that on or about 19 July 2015 and at Mondlo in the
Regional Division of KwaZulu-Natal, he did unlawfully and
intentionally
commit an act of sexual penetration with the
complainant, N[....] Mn[....] , by inserting his penis into her
vagina without
her consent; and that he raped the complainant more
than once.
[2]
At the commencement of the trial the minimum sentences were explained
to the appellant,
who was legally represented. The appellant
confirmed that he understood both the charges and minimum sentencing
regime applicable
to him, in the event of him being convicted of rape
in terms of the charges proffered against him. The competent verdicts
were
also explained to him by the magistrate.
[3]
The appellant pleaded not guilty to the charge of rape. He denied
that he had sexual
intercourse with the complainant. On 26 January
2018, the appellant was convicted of rape and was sentenced to eight
years imprisonment.
[4]
The appellant appeals against his conviction, leave to appeal having
been granted
by the learned magistrate, Mr E N Ntaka.
[5]
The issue on this appeal is whether the evidence presented on behalf
of the State
was reliable enough to sustain a conviction on the
charge of rape. In other words, was the evidence of a single witness,
implicating
the appellant, sufficiently reliable for proof beyond a
reasonable doubt?
[6]
The following facts are common cause or not seriously in dispute:
6.1
Prior to the date of the alleged incident the complainant and the
appellant knew each other and resided in the same neighbourhood.
They
went to the same church. Significantly, the complainant referred to
the appellant by the name of T[….].
6.2
On the day of the alleged incident of rape both the complainant and
the appellant met in the vicinity of the local shop when
the
complainant was on her way to work.
6.3
The appellant had approached the complainant, greeted her, and
requested that he accompany her to her place of employment.
6.4
Prior to and up to the date of the incident both the complainant and
the appellant were not involved in any intimate relationship.
6.5
On the very same evening the complainant ended up in the appellant’s
outside room close to the main house of the appellant’s
homestead.
6.6
When the appellant and the complainant arrived at the appellant’s
homestead, T[….] X[….], the sister of
the appellant was
inside the main house.
6.7
When the complainant was inside the appellant’s room she had at
some stage screamed and cried, the sister of the appellant,
and his
mother went to the appellant’s room to find out what was
happening.
[7]
What is in dispute is, firstly, whether the complainant was accosted
by the appellant
by force and at knifepoint when she was on her way
to work; and secondly, whether at the time when the complainant was
in the room
with the appellant, he had sexual intercourse with her
without her consent.
[8]
In finding the answers to the two areas of dispute, the learned
magistrate, considered
the evidence that was tendered by the State,
through the evidence of the complainant; Ms T[….] B[….]
N[....] , the
mother of the complainant; Ms T[….] X[….],
the biological sister of the appellant; and finally Dr Buthelezi, the
supervisor and medical manager of Vryheid Hospital, where the
complainant was examined after the incident. It needs to be said that
a J88, medical legal report, completed by Dr T[....] Z[….],
was handed in after the testimony of Dr Buthelezi. Dr Zulu could
not
be found and therefore his expert testimony relating to the J88
medical legal report could not be obtained. The appellant’s
evidence was also thoroughly analysed by the learned magistrate.
[9]
Counsel for the appellant, Ms Marais, in her heads of argument,
submitted that the
learned magistrate erred in rejecting the
appellant’s version as being improbable and inherently false.
She however, did
not advance any reasons for her submission, which is
baffling. Usually the foundation for any submission, such as the one
made
by Ms Marais should be built on a painstaking examination of the
minutiae of the evidence for the State with a view to accessing
as
many inconsistencies and contradictions as could be found, in support
of any real doubt in respect of the State’s case
and so lead to
the acquittal of the appellant.
[1]
[10]
The complainant, who is a single witness, testified that when both
she and the appellant entered
the appellant’s room, the
appellant told her that he wanted to sleep with her. He undressed
himself and instructed her to
undress herself. When she refused, he
took out a knife and undressed her by force. She was crying during
the sexual encounter.
At that stage she heard voices of people who
were outside and they asked what was going on. At that time the
appellant was with
her inside the room. He then got up from her and
gave her, her cell phone and handbag. When the people who were
outside had gone
and were no longer outside, the appellant opened the
door for her. She left the appellant’s room and proceeded to
the main
house. Inside the main house she found the appellant’s
mother and the appellant’s sister who was known to her. She
told them that the appellant has grabbed her and slept with her by
force. The complainant contacted her mother who came to fetch
her
from the appellant’s homestead. At the appellant’s
homestead, she told her mother that the appellant had slept
with her
by force. A case was opened the very same evening. She was thereafter
taken to Vryheid Hospital where she was medically
examined and
cleaned.
[11]
In cross-examination the complainant went on to describe how the
appellant was having sexual
intercourse with her as follows:
[2]
‘
According
to your statement and according to the charge sheet which is
confirmed according to your statement the appellant had sexual
intercourse twice? Yes.
According
to your statement you are saying that he put the condom first and had
sexual intercourse with you and thereafter he again
he put another
condom and had sexual intercourse with you? – Yes, he did have
sexual intercourse with me but I did not see
him putting on a condom.
COURT
Did
he sleep with you twice, in other words, were there breaks because
you were given a chance to testify in chief in respect of
that, so
now the Court wants to know whether he had sex with you, stopped at
some stage and then after some time again had another
round of sex
with you? – There were two rounds.
MS
MAVIMBELA
Ma’am
in your evidence-in-chief you told the Court that he had sex with
you, he ejaculated and thereafter he continued, which
is different
from what you are telling in your statement? – Yes.
COURT
So
if that is your evidence-in-chief, I’m just trying to clarify
that, he only had sex with you once and it was a continuous
transaction so to say or it was a continuous act.
At
no stage did he have to pull out from inside your vagina and then
again insert his penis for the next round? – He took
his penis
out and he inserted it again.
6.
What was he doing when he took it out, did you see what he was doing
when he took it again …. He was inserting it
and taking
it out and inserting it again.
What
was he doing when he took it out, did you see what he was doing when
he took it again… He was inserting it and taking
it out and
inserting it again.
INTERPRETER
…
the
witness is even making movements.
COURT
So
he was taking it out at the time when he was making those movements
during the action? – He was making movements of putting
it in
and out.
I
see, and he didn’t take long breaks, so for instance to go
somewhere else, put in a condom and then come back, it was during
that act when he was moving up and down that his penis would happen
to come out of your vagina? … He was still moving.’
[12]
In so far as the sexual act is concerned what is evident is that the
appellant was making continuous
movements, with his penis which
sometimes slipped out of her vagina. I accept that the magistrate was
in the best position to observe
the complainant as she gave her
evidence and that there was no break or disruption in the chain of a
single act of sexual intercourse
as demonstrated by the complainant.
Therefore the allegations in the charge sheet that the appellant had
allegedly raped the appellant
more than once cannot be sustained.
[13]
The evidence of Ms B[….] T[….] N[....] corroborated
the complainant’s
version. What is striking is that she had to
leave her home to go to the appellant’s homestead, after she
was telephoned
by her daughter, the complainant, who was then in the
company of the appellant’s mother and sister. When she arrived
at the
homestead, the complainant reported that the appellant had
sexual intercourse with her, without her consent. There and then the
appellant’s mother suggested that the incident be reported to
the police.
[14]
The biological sister of the appellant, Ms T[….] X[….],
also corroborated the version
of the complainant. She heard the
complainant crying and went to investigate. When the appellant
refused to open the door to his
room, she left to go back to the main
house with her mother. Surely, something must have been going on in
the appellant’s
room, for the complainant to be heard crying?
[15]
The evidence of Dr Buthelezi is clear. The complainant, according to
the medical legal report,
was sexually penetrated.
[16]
It is trite that the evidence of a single witness must be approached
with caution. In
Haarhoff
and another v Director of Public Prosecutions, Eastern Cape
,
[3]
Molemela JA, said that:
‘
The
court has to satisfy itself that the evidence given by the witness is
clear and substantially satisfactory in material respects.
The
court is to look for features, in the evidence, which bear the
hallmarks of trustworthiness to substantially reduce the risk
of
wrong reliance upon the evidence of a single witness. The judgment of
the trial court demonstrates that it was alive to the
application of
the cautionary rule on account of the complainant being a single
witness to the rape.’
[17]
The evidence of the complainant is not without flaws. There are minor
inconsistencies between
her oral evidence and some aspects of her
written statement made to the police. She adequately explained these
minor inconsistencies.
Otherwise her evidence is clear and
satisfactory in every material respect.
[18]
In addition, the following was also stated by Diemont JA in
S
v Sauls
and others:
[4]
‘
There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness (see
the
remarks of RUMPFF JA in
S
v Webber
1971
(3) SA 754
(A) at 758). The trial Judge will weigh his evidence,
will consider its merits and demerits and, having done so, will
decide
whether it is trustworthy and whether, despite the fact that
there are shortcomings or defects or contradictions in the testimony,
he is satisfied that the truth has been told. The cautionary rule
referred to by DE VILLIERS JP in 1932 may be a guide to a right
decision but it does not mean
"that
the appeal must succeed if any criticism, however slender, of the
witnesses' evidence were well founded".’
[19]
The appellant’s version is that of a bare denial. What is clear
however is that he was
the only male person to be seen or heard in
the company of the complainant on the evening in question. The
appellant’s brother
was not at home. The complainant said that
it was the appellant who had forceful sexual intercourse with her.
She does not point
to anyone else. If, as he explained, he wanted to
assist the complainant to provide shelter for her, why did he not
take her to
his mother and sister who were in the main home. He was
unable to explain his conduct in this regard. In addition, if he
proposed
love to her, as he had done in the past, why did he simply
go to bed, after the alleged incident, ignoring the complainant who
he wanted to help and to whom he showed an interest. This is not the
conduct of a person, who was bent on protecting a woman who
was in
need of accommodation for the evening and to whom he took a fancy or
liking. The appellant’s conduct leaves much to
be desired. At
the end of the day, he took advantage of an innocent woman, who he
followed from the shop to the river, in pursuance
of an ulterior
motive. I pause to mention that his denial of putting a knife to the
back of the complainant, causing her to become
fearful of him, in the
vicinity of the river, is rejected as improbable. The only plausible
explanation for her to have gone to
the appellant’s homestead,
is that she was threatened with a knife by the appellant. The
complainant’s home was a mere
500 metres from his homestead. He
could have easily taken her to her home, from the prying eye of thugs
in the area, as he wanted
the trial court to believe. It is baffling
to me, when he said in evidence that his mother was at the water tank
outside his home
and the question which arises, is why he not
immediately introduced the complainant to his mother so that his
mother could attend
to the accommodation needs of the complainant. In
regards to how his room got locked with the complainant inside, I
too, like the
magistrate, cannot make sense of what he was trying to
convey. His explanation is found wanting and highly unsatisfactory.
His
story just does not make sense and is rejected as false. It
cannot be reasonably possibly true.
[20]
It would be appropriate, to re-iterate what Marais JA said in
S
v Hadebe
[5]
that:-
‘
there
are well-established principles governing the hearing of appeals
against findings of fact. In short, in the absence of
demonstrable
and material misdirection by the trial Court, its findings of fact
are presumed to be correct and will only be disregarded
if the
recorded evidence shows them to be clearly wrong. The reasons why
this deference is shown by appellate Courts to factual findings
of the trial court are so well known that restatement is
unnecessary
.’
[21]
After a comprehensive analysis of all the evidence, the court a quo
concluded that the evidence
against the appellant was so compelling,
and appellant’s own evidence so improbable and unimpressive
that his conviction
for the rape of the complainant was justified.
[22]
In my view, the trial court correctly rejected the appellant’s
version as it could not
be reasonable possibly true. Any weaknesses
in the complainant’s evidence has to be considered against the
totality of the
evidence. She was correctly described as an honest,
reliable and credible witness. It is also significant that many
aspects of
the complainant’s evidence are either undisputed,
corroborated by objective facts and the appellant’s own
version,
despite his denial that he had sexual intercourse with the
complainant.
[23]
In the circumstances, I am satisfied that the State has proved its
case beyond a reasonable doubt
and accordingly the appeal against the
appellant’s conviction is dismissed.
[24]
There is no appeal against sentence. In any event, I am satisfied
that the trial court correctly
applied the principles of sentencing
and it does not call for the court to interfere,
mero motu
with the punishment meted out to the appellant. The sentence of the
appellant stands.
I make the
following order herein:
1.
The appeal against conviction is dismissed.
GOVINDASAMY
AJ
I agree, and it
is so ordered.
NKOSI J
DATE
OF HEARING: 6
December 2019
DATE
OF JUDGMENT: 6 December 2019
FOR
THE APPLICANT: Ms L Marais
Instructed by
PMB Justice Centre
183 Church Street
PIETERMARITZBURG
FOR
THE RESPONDENT: Mr M Mlotswa
Instructed by
The Director of Public Prosecutions
PIETERMARITZBURG
[1]
S v Hadebe & others
1997 (2) SACR 641
(SCA) at 645.
[2]
Record at page 68 line 2 to page 69
line 11.
[3]
Haarhoff and another v Director of
Public Prosecutions, Eastern Cape
2019
(1) SACR 371
(SCA) para 37.
[4]
S v Sauls
&
others
1981
(3) SA 172
(A) at 180E–G.
[5]
S v Hadebe & others
1997 (2) SACR 645E-F.