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[2018] ZANCHC 25
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Makhubela v S (A320/2017) [2018] ZANCHC 25 (9 May 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: A320/2017
In
the application between:
ZAKARIA
MAKHUBELA
Appellant
and
THE
STATE
Respondent
CORAM
:
NM
MBHELE, J
et
S BENADE, AJ
JUDGMENT
BY
:
BENADE,
AJ
DELIVERED
ON:
09 MAY 2018
JUDGMENT
[1]
The essential function of an appeal court is to determine whether
court below came to a correct conclusion. (
Quartermark
Investments v Mkhwanazi
2014 (3) SA 96
SCA at 103B and
Sarrahwitz
v Maritz
2015 (4) SA 4
SA 491 CC at 505I).
[2]
The issues for determination in this case are firstly, whether the
accused was correctly found guilty of rape, and secondly,
if not so,
whether the accused should be found guilty in terms of
section
261(1)(g)
of the
Criminal Procedure Act, 1977
of the competent
verdict of statutory rape of a child contained in section 15 of the
Criminal Law (Sexual Offences and Related
Matters) Amendment Act,
2007 (Act 32 of 2007).
[3]
The accused was charged with the crime of contravening the provisions
of
section 3
of the
Criminal Law (Sexual Offences and Related
Matters) Amendment Act, 2007
it being alleged by the state that on or
about the night of the 3
rd
to the 4
th
April 2016 and at Thabong in the district of Welkom the said
appellant did unlawfully and intentionally rape the complainant.
The aforementioned date was the Saturday night/Sunday morning and the
accused was arrested the Tuesday night at his home in Thabong.
His first appearance was on 22 June 2016 and he remained in custody
until his trial started in the regional court of Welkom on
9 March
2017. He pleaded not guilty but after the testimony of the
complainant (who was born on […] 2001 and was 16
years old at
the trial) and her mother (for the State) as well as the accused for
the defence, was heard, he was found guilty on
3 May 2017 as
charged. He was sentenced on 3 May 2017 in terms of
section
276(1)(b)
of the
Criminal Procedure Act, 1977
, to 10 years
imprisonment.
[4]
At the date of the appeal the accused has been incarcerated for some
20 months.
[5]
The accused was 23 years old at the time of the trial.
[6]
On the abovementioned first issue for determination the main question
is whether there is, on the complainant’s version,
any
reasonable doubt about the guilt of the appellant. What makes
the case difficult is the defence of consensual sex.
The
complainant and the appellant are in agreement that sexual
intercourse occurred between them at the appellant’s dwelling
on the night of 3/4 April 2016 (with two other persons namely the
complainant’s friend M. and her boyfriend P. sleeping in
the
same room) but the complainant alleges that the sexual intercourse
was without her consent and the appellant contending that
it was
consensual sex.
[7]
The salient facts, for current purposes (as based on the complainants
own version) are the following: The complainant,
who was still
in grade 9 at school, with the concurrence of her mother (with whom
she normally stays) went to her father’s
home for the Easter of
2016 (to be back in time for the school opening). When she
arrived at her father’s home, he
was not around, so (on her own
version) she took it upon herself to spend the rest of the Easter
holidays at other people.
That was at the house of the sister
of one of her close friends, M.. She went there (instead of to
her father’s house)
without consulting her father or mother
about it. She stayed there for a week and a few days.
[8]
According to the complainant, she stayed at M.’s sister’s
house because she wanted her boyfriend (one S.) to have
access in
visiting her. M.’s sister worked night shift. On
the evening of Sunday 3 April 2016, the complainant
and M. were
initially at Aida’s Tavern. They arrived there with their
own drinks already at hand. M. had her
boyfriend P. with her,
so they were three. At Aida’s Tavern they met (“found”)
the accused. P. was
the one that bought the drinks at the
tavern. The four of them then proceeded to Puleng’s
Tavern. When Puleng’s
Tavern was about to be closed
around past three in the morning of the 4
th
,
they went to the appellant’s home to fetch a jersey, before
they would have gone back to the place they stayed at M.’s
sister’s home. Appellant’s house was a shack.
[9]
According to the complainant the accused offered them bread.
Thereafter her friend M. lay down on a mattress. At
that stage
the accused also wanted her to get inside the blankets but she
refused. She then exited the shack and ran away
to the house of
M.’s sister. At a certain corner, the accused came from
the front. He then forced her back to
the shack.
[10]
When the complainant and the appellant reached the shack they found
M. and P. sleeping on the floor of the shack. The
appellant
then raped her (using a condom) on the bed in the shack.
[11]
Around 05:00 o’clock the Sunday morning 4 April 2016, she left
(leaving the appellant, P. and her friend M. at the shack)
and went
to M.’s sister’s house. When she arrived there she
bathed and went to sleep. M.’s sister
did ask her (on
complainant’s arrival) about arriving home alone and where M.
was. She then lied to the sister that
she left M. at Puleng’s
place. M. arrived there at half past 10 the Sunday morning of the 4
April 2016. According to
the complainant she told P. during the
Sunday morning about the rape “but he took it as a joke”.
[12]
The complainant was supposed to go back to her mother (coming from
her father’s place) by Monday night to be in time
for school
which started the Tuesday. Yet she went home to her mother on
Tuesday afternoon around five o’clock, resulting
in her missing
school on Tuesday as Monday was a holiday.[13] When the complainant
arrived at her mother’s place she initially
did not tell her of
the rape. Her mother was furious and beat her for 30 minutes
(apparently for being late back for school).
Then the
complainant told her of the rape, where after they called the police.
[14]
The mother testified and corroborated the beating, yet claiming that
a cousin did the beating. According to the mother
she came back
after the schools had already opened. Upon arrival the
complainant did not upfront tell her mother of the rape
but initially
went inside her bedroom. Then after she spoke to her, and the
cousin beat her, did she tell of the rape.
[15]
The accused testified and in broad terms, confirmed the version of
the complainent, in the sense that the four of them initially
were at
taverns where after they went to his house. At his house he and
his girlfriend (the complainant) had sexual intercourse
while his
friend P. and his girlfriend (M.) were in the same shack. On
numerous aspects there were differences, like his
version that P., M.
and the complainant left his home the following morning at 09:00AM.
The sexual intercourse according
to him occurred the Saturday/Sunday
morning, they left the Sunday morning and he was arrested the Tuesday
evening around 24h00.
[16]
His central version as to why she would accuse him of rape was in the
following words:
“
According
to me by the look of things for her to open the rape charge against
me she did not have a valid reason to tell her parent
where was she
all along.”
[17]
His basic version was:
“
I
did not rape her I slept with her.”
[18]
It would not be worthwhile or helpful to set out and tabulate the
differences in version between the complainant and her mother,
or
between the complainant and the appellant, or between the mother and
the appellant. They are numerous. The basic story is the
same (the
complainant not staying with her father, having been at a tavern with
P. and M., having met the accused, they going to
his house, they
leaving the Sunday morning (although when whom left are in
contention), that she went to her mother either the
Monday evening or
the Tuesday evening and there at her mother only telling the mother
of the rape after a beating.)
[19]
I prefer under these circumstances of a basic ring of truth amongst
them of the salient story, but acute differences on pertinent
parts,
to adjudicate the appeal on the basis of the complainant’s
version. In so doing the complainant is given the
inside
track. I thus decide whether the case was proven beyond
reasonable doubt upon the complainant’s version. (See
S vs
Ipeleng 1993(2) SACR 185 T at 190 F) without it being contaminated by
competing versions or differing versions from her mother
or the
accused.
[20]
To my judgment the following aspects cast doubt on the state’s
case and cause the accused’s version (of consensual
intercourse) to be reasonable possibly true (S v Van Der Meyden
1999
(2) SA 79
WLD at 82C):
1.
Her standing, as a mere Grade 9 schoolgirl, is tainted as she was
supposed to stay with her father but
she took it upon her (without
any parental permission) to stay for more than a week at her friends’
sister’s home –
in other words where her parents did not
know where she was. This she did to get easier access to her
boyfriend S..
2.
When she initially tried to flee from the shack and the accused
accosted her from the front she did not
scream or call for help when
he allegedly forced her back to the shack.
3.
When the rape took place M. (one of her best friends) and her
boyfriend P. was in the very same shack
on the floor. Why could
they not help her? On her version her best friend M. would have
ignored her pleas or was simply
asleep.
4.
After she left the shack and walked to M.’s sister’s home
that following morning (the Monday
morning) she did not tell that
sister about the rape. In fact, on her version the sister
enquired from her where M. is and
she told her where she was, but
never told her of the rape. Her only excuse therefore was
“because we are not related”.
In other words, in
the presence of an older person, and actually a woman, and
furthermore the sister of her best friend, she still
did not tell
about the rape.
5.
Although her father’s house apparently was nearby, she also did
not go to him. She also told
or complained to no neighbours and
also did not go on her own to the police. In effect then, a
whole day went past without
her complaining to anybody (except for
having told P.).
6.
She arrived home at her mother’s place late on Tuesday.
Later than she should have and also
late for school. She thus
was in trouble from the start coming back home.
7.
When she arrived at her own mother’s home she did not initially
tell her mother of the rape.
Only after she was beaten for some
30 minutes did she then tell her mother. Her mother does not
deny the beating, but claims
that the beating was done by her
cousin. That she thus was beaten, and thereafter told the rape
version, is corroborated.
8.
Her mother, on her part and in her testimony, was also not honest
about the beating of the complainant.
It was only in
cross-examination that she confessed to the beating and then said
that it was actually the cousin. She was evasive
as to how long the
beating lasted.
9.
The state did not call M.. In other words, the complainant’s
best friend whom one would have
expected would carry the interest of
the complainant at heart and could have corroborated her, was simply
not called. And
furthermore, M. was one of the persons who was
in the shack and apparently very nearby when this rape would have
taken place.
10. Even M.’s
boyfriend, P. who was also in the shack when the alleged rape took
place, was not called. He is
also the person of so-called
“first report” as the complainant testified that she told
him the following morning about
the rape but he did not take her
seriously.
[21]
As debated during argument with Mr Botha, the question is when does
reasonable doubt come to the fore? As Mr Botha argued
the test
is not beyond all doubt. According to the correct test there
may not exist “reasonable doubt” about
the state’s
case. The proof afforded must be beyond reasonable doubt, which
means beyond all reasonable doubts.
When the above
disconcerting aspects of the complainants version are considered and
weighed, there exist in my judgment reasonable
doubt about the
state’s case.
[22]
In the light of the above the second of the two main aspects for
consideration needs to be dealt with. According to
section
261
(1)(g) of the
Criminal Procedure Act, 1977
a guilty verdict under
section 15
of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act 2007
is a competent verdict when a charge of rape is
not proved. The complainant was still a child within the
definition of the
aforementioned act when the sexual intercourse took
place. The problem though is that on the record there is no
indication
that the appellant knew that the complainant was under
sixteen years of age. There is only one passage in the
testimony where
he was asked as follows:
“
Now
did you know her age? … What she told me she said she is
nineteen years old or she was nineteen years old.”
[23]
There are no other indications as to the appellant’s state of
mind regarding her age. During argument, Mr Botha
also
indicated that he does not seek such competent verdict to be
entered.
[24]
Accordingly, the appeal succeeds and the court
a
quo
judgment and verdict is substituted for a verdict of not guilty.
__________________
BENADE,
AJ
I
concur
_________________
HM
MBHELE, J
On
behalf of the Appellant:
________________________
Instructed by:
Bloemfontein Justice
Centre
BLOEMFONTEIN
On
behalf of the Respondent:
________________________
Instructed by:
Director of Public
Prosecutions
BLOEMFONTEIN