About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2018
>>
[2018] ZAGPPHC 716
|
|
Daniel v S (A888/16) [2018] ZAGPPHC 716 (12 March 2018)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
NOT
REPORTABLE
(2)
NOT OF
INTEREST TO OTHER JUDGES
(3)
REVISED.
CASE NO: A888/16
12/3/2018
In
the matter between:
SITHOLE DANIEL
and
THE
STATE
JUDGMENT
MTATI
AJ:
INTRODUCTION
[1]
Appellant
was convicted on two counts of rape in the Regional Court at
Vereeniging. Both counts emanate from an incident that took
place on
13 October 2013 at Orange Farm where Appellant allegedly raped the
victim on two occasions . Appellant was initially also
charged on a
count of sexual assault but was acquitted on this charge . He was
legally represented.
[2]
Leave
to appeal against conviction and sentence was refused by the trial
court and same was granted by two judges in chambers on
petition.
This appeal relates to both conviction and sentence against
Appellant.
BACKGROUND
[3]
The
State called two witnesses being the complainant and her boyfriend.
Complainant testified that she visited the premises of the
Appellant,
who is a traditional healer, for treatment of her womb. She does not
remember whether the whole process of healing and
application of
medicine was explained to her. Appellant requested her to undress
herself and sit at a place within the consulting
rooms where she
would steam herself with some boiling water with medicine therein.
[4]
She
was also given a foreign object referred to on the record as an
"artificial penis" that had medicine applied thereon
and
this object she had to insert in her genitalia. After this process
she was then called to lie on a bed and at this moment Appellant
inserted this foreign object again inside her genitalia .
[5]
Whilst
lying on the bed Appellant touched her breasts and inserted his penis
whilst touching her breasts. She did not see if Appellant
inserted
his penis but came to that conclusion since both his hands were
touching her breasts. She also testified that she reprimanded
Appellant from inserting his penis inside her and to this reprimand
Appellant stated that that is how he works and she will be
healed.
She also could not tell if Appellant ejaculated inside her private
part because she was a bit dizzy as a result of the
medicine that was
applied on her.
[6]
She
was then directed to take a bath and she left to the car where her
boyfriend was waiting. She reported to the boyfriend that
she was
raped later on the same day when they got home in Pretoria. She could
not relate the story earlier because she felt embarrassed
and they
were also with a child and the boyfriend 's brother inside the
vehicle
en route
to
Pretoria.
[7]
The
boyfriend was also called to testify and his testimony was that the
Appellant is known to him as he has in the past brought
people who
needed medical attention . On this day the Appellant explained to
them the process that was to be followed in healing
the complainant.
He went inside the consulting room with the complainant and after she
undressed herself he then left as he wanted
to attend to some errands
at Orange Farm.
[8]
According
to his testimony he was called by complainant when she was finished
with Appellant. It should be mentioned that complainant
testified
that she never called her boyfriend but went straight to the car. He
testified further that, on arrival at home, his
girlfriend started
crying and it is only then that he was informed of the rape incident.
Complainant was then taken to the police
to lodge a charge of rape.
[9]
A
photo of the "artificial penis" as well as a report by the
medical practitioner (J88) who examined the complainant were
handed
in as exhibits.
[10] In
cross examination of the complainant, the following testimony came to
the fore:
a.
Her inference that she was raped was as
a result of a hard object that she felt entering her private part;
b.
She in fact consented to the insertion
of the foreign object because she wanted to be healed ;
c.
She initially testified that she was
only penetrated inside her private part but upon .being confronted
with the J88 which mentioned
penetration through her anus, she
relented and confirmed that the penetration was also through her anus
;
d.
She did not scream for help or push the
Appellant because she wanted to be healed.
e.
On being asked if she felt any movement
from Appellant upon penetrating her with his penis the response to
this question was that
she cannot remember.
[12] The
Appellant also testified and his testimony is that upon arrival of
the complainant he
explained the procedure to be followed in the
presence of her boyfriend. He denied that he penetrated the
complainant with his
penis. His evidence is confirmed by the
complainant 's boyfriend to the extent of the procedure to be
followed.
[11]
The
State conceded in the proceedings before this court that count 2
being penetration of complainant with a foreign object cannot
stand
as clearly consent was given by the complainant as part of the
healing process.
[12]
The
court is then left with count 3 being the penetration with Appellants
penis. It is so t
hat the
complainant was a single witness to the act of rape inside the
consulting room of the Appellant. Her boyfriend left the
room soon
after she undressed herself.
ISSUES FOR DETERMINATION
[13]
In my view the main issues to be decided
by the court are the following:
a.
If the complainant satisfied the court
as a single witness in all material respects ;
b.
If there was consent on any of the two
charges of rape; and ;
c.
If
the State has proved beyond reasonable doubt that Appellant committed
the offence of rape by inserting his penis to the private
part of
complainan
t.
APPLICABLE LAW
[14]
Section 208
of the
Criminal Procedure Act 51 of 1977
provides:
" An accused may be
convicted of any offence on the single evidence of any competent
witness."
It is indeed so that the trial
court was best placed to determine the credibility of the evidence by
witnesses including that of
the Appellant. However, in my view , it
is not sufficient to merely cite the application or relevance of
section 208
of CPA without actually evaluating the evidence of a
single witness and satisfying oneself that it meets the minimum
required threshold.
The trial court on page 82
[1]
of the transcribed record, appear to only mention that
"
section
208
of the
Criminal Procedure Act states
clearly that [if] the court
is satisfied that the uncorroborated evidence of a single witness is
clear and satisfactory in all
material respects and that the truth
has been told despite [the], it having
some
shortcomings or
imperfections the court may convict on the evidence of such single
witness.
Now when applying this
principle to the complainants evidence , I
am
satisfied that
the complainant 's evidence is trustworthy and that the truth has
been told."
[15] It
does not appear to me that the court evaluated the contradictions
emanating from the evidence of
the complainant and her boyfriend. The
question of whether or not the complainant was informed of the
ensuing procedure is material
for if she was informed , then she
shall have consented to the insertion of the foreign object inside
her genitalia.
[15]
In
the matter of
S
v
Sauls & Others
[2]
it was noted that the absence of the
word "credible " (in
section 208)
is of no significance;
the single witness must still be credible. In
S
v Chabalala
[3]
it was pointed out that the ".
.
.correct approach in determining
the guilt of an accused is , to weigh up all the elements which
points towards the guilt of the
accused against all that 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 about the accused's guilt.”
[16]
The evidence of the State must prove the
guilt of the Appellant beyond reasonable doubt. If on the other hand
the explanation is
reasonably possibly true, then he is entitled to
an acquittal. This follows the burden resting on the State to prove
the guilt
of the accused beyond reasonable doubt. See
S
v M
[4]
; S v Kubheka
[5]
;
and,
S
v Makobe
[6]
.
[17]
The complainant 's boyfriend confirmed
that he knows the Appellant very well and has in the past also
brought people to Appellant
who required healing on their private
parts. It is noteworthy that the complainant does not say she was not
told of the procedure
to be followed but that she does not remember
being informed . The confirmation of this explanation being done from
the complainant
's boyfriend leads me to believe that the explanation
was indeed given to the complainant.
[18]
If the explanation was indeed provided
it then means there was consent to use the foreign object and
Appellant should be acquitted
on count 2.
[19]
In determining the circumstances
surrounding count 3 the court should take into account the evidence
of the complainant when she
testified that she did not see the
Appellant actually inserting his penis into her private part. She
also mentioned that she was
dizzy. Further, it came up on the
testimony of her boyfriend that when he arrived the complainant had
finished with Appellant and
was sitting with the wife of the
Appellant when the complainant herself testified that she went
straight to the car.
[20] In
my view the complainant may have been dizzy through use of the
medication and as such
not remembering what all took place . This is
also corroborated by her statement to the Doctor who examined her on
the same day
when the alleged offence took place where she said the
foreign object was inserted in her anus. The Appellant's version in
my view
is reasonably possibly true and the State has failed to prove
its case beyond reasonable doubt.
[21]
I accordingly propose the
following order:
ORDER
1.
The
Appeal is upheld; and ,
2.
The
conviction and sentence on the two charges of rape by the Regional
court are dismissed and set aside.
V.T. MTATI
ACTING JUDGE OF THE HIGH COURT
I
concur, and it is so ordered .
J.W. LOUW
JUDGE OF THE HIGH COURT
Appearances:
On
behalf of the appellant: Adv
: R VANWYK
Instructed by:
BMH ATTORNEYS
VEREENIGING
On
behalf of the respondent: Adv: AP
WILSENACH
Instructed by:
DIRECTOR OF PUBLIC PROSECUTIONS
Presidential Building
28 Church Square
PRETORIA 0001
[1]
Page 82 line 4
[2]
1981 (3) SA 172 (A) 180H
[3]
2003(1) SACR 134 (SCA) 139i-j to 140a
[4]
1946 AD 1023
[5]
1982 (1) SA 534 (W)
[6]
1991 (2) SACR 456
(W)