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[2018] ZANCHC 36
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Bambiso v S (CA&R85/2017) [2018] ZANCHC 36 (29 June 2018)
SAFLII
Note: Certain personal/private details of parties or witnesses
have been redacted from this document in compliance
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and
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Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
CASE
NO:
CA&R
85/2017
DATE
HEARD:
25
JUNE 2018
DATE
DELIVERED:
29
JUNE 2018
In
the matter between:
BAMBISO,
MOOKETSI
CHEVRON
Appellant
and
THE
STATE
Respondent
Coram:
Olivier
J
et
Coetzee AJ
JUDGMENT
Olivier
J:
[1.]
The
appellant, Mr MC Bambiso, was convicted in the Regional Court on two
counts of having raped the female complainant
[1]
,
by penetrating her vaginally (Count 2) and anally (Count 3) with his
penis. It was found that, in terms of section 51(1)
of the
Criminal
Law Amendment Act
[2]
,
read with the provisions of Part I of Schedule 2 of that Act, the
prescribed sentence of life imprisonment was applicable on the
basis
that the complainant had been raped more than once by the appellant
and a co-perpetrator, acting “
in
the execution or furtherance of a common purpose
”
[3]
,
and that the complainant was “
a
person who
(was)
mentally
disabled as contemplated in
section 1
of the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act, 2007
”
[4]
.
After finding that there were no substantial and compelling
circumstances which would justify a lesser sentence, the Regional
Magistrate imposed sentences of life imprisonment on each of the two
counts, but ordered them to be served concurrently
[5]
.
These sentences, having been imposed by a Regional Court, entitle the
appellant to appeal against his convictions and sentences
[6]
.
[2.]
The case
for the prosecution was that the complainant had been walking home
along a footpath when she was grabbed by the appellant
and a
co-perpetrator, was forced into bushes and was raped by both, and
both vaginally and anally. She reported the rapes
and was then
medically examined by Dr Haarhoff, who compiled a report (J88) which
was handed in as an exhibit.
[3.]
The
appellant’s version, as contained in his plea-explanation and
in his evidence, was very briefly that a police officer
by the name
of Burksten
[7]
and another
person had approached him at a scrapyard where he was going to sell
scrap metal. They took him with them, apparently
on the false
pretence that they would show him where to find more scrap metal.
At one point, when the three of them were
outside Warrenton and in
bushes, he heard a woman crying. Two other men then appeared.
They were holding the complainant,
whose clothes were soiled and who
had blood on her face. Burksten then instructed him to have
intercourse with the complainant
and, when he refused, forced him to
do so by holding a firearm to his head. According to the
appellant he only penetrated
the complainant vaginally, and never
anally. He further testified that, while he was having
intercourse with the complainant,
the two men who had brought her
there, trampled on his back. The appellant went on to testify
that, after he had completed
the sexual intercourse with the
complainant, Burksten examined his penis to confirm that he had
ejaculated. He was then tied
to a tree, half naked, and the men
left with the complainant. When he later heard a vehicle and
shouted for help, two young
men came to his rescue by untying him,
but they then chased him away. The appellant testified that
Burksten did this to him
because he had once witnessed how Burksten
beat a boy to death. He testified, finally, that he had
reported the rape incident
to a detective by the name of Eksteen.
[4.]
That the
complainant had not consented to sexual intercourse with the
appellant was, at the very least, implicit in his own version.
[5.]
As far as
the convictions are concerned he issues to be decided in this appeal
are:
5.1
whether the finding by the Regional Magistrate that the complainant
was a competent
witness, was correct;
5.2
whether anal penetration had taken place;
5.3
whether not only the appellant, but also a co-perpetrator, had sexual
intercourse
with the complainant; and
5.4
whether the appellant had been coerced to have sexual intercourse
with the complainant.
COMPETENCY
OF COMPLAINANT AS A WITNESS
[6.]
As part
of the state case the prosecutor presented the evidence of Dr
Piotrowski, a psychiatrist who had evaluated the complainant
and who
actually knew her as a patient. His evidence, very briefly, was
that the complainant was mildly to moderately mentally
retarded and
that, although an adult, she had the cognitive ability of a child
between the ages of approximately 7 and 9 years
old.
[7.]
Dr
Piotrowski testified that, although the complainant found it
difficult to verbalise answers and was shy, susceptible to
intimidation
and quick to withdraw under such circumstances, she
could distinguish between truth and falsehood and “
should
be able to tell the story
”.
[8.]
Dr
Piotrowski furthermore testified that the complainant sometimes would
suffer psychotic episodes, during which she would suffer
from
hallucinations, but it is clear that Dr Piotrowski was of the view
that the complainant was not psychotic at that stage, and
also not at
the time of the incident, as she had conveyed to him detail about the
incident that was consistent with certain objective
facts, and in a
consistent way.
[9.]
At a
later stage of the proceedings, just before the complainant herself
testified, the Regional Magistrate questioned her on her
ability to
distinguish between truth and falsehoods.
[10.]
When
regard is had to the heads of argument on behalf of the appellant,
the challenge in this regard appears not to be aimed at
the finding
that the complainant was a competent witness, in the sense envisaged
in sections 192 to 194 of the
Criminal
Procedure Act
[8]
.
It has not been argued that the Regional Magistrate should, on the
evidence of Dr Piotrowski and the answers of the complainant
during
the questioning, have decided that the complainant was someone who
was, because of “
mental
illness … deprived of the proper use of
(her)
reason
”,
as envisaged in section 194 of the
Criminal
Procedure Act
.
[11.]
What has
been submitted, purely on the basis of the exchange between the
Regional Magistrate and the complainant prior to her being
admonished, was that it could not “
safely
be said that the complainant understood what it meant to speak the
truth
”.
In making this submission the appellant’s legal representative
quoted extracts from the Regional Magistrate’s
questioning of
the complainant. Although some of the answers reflected in
these passages were not very convincing, it appears
from even these
passages that the complainant did at least understand that it would
be wrong to tell lies and right to tell the
truth.
[12.]
The
passages quoted should, however, not be viewed in isolation.
When regard is had to the whole of the exchange between the
Regional
Magistrate and the complainant, it appears that she knew:
12.1
that she had been married, what her husband’s name was and that
he was the one who
divorced her, what her married surname was and
what her maiden surname was;
12.2
where she stayed;
13.3
that she had children and what their names were;
12.4
that she was a member of the ZCC Church and that the surname of her
pastor was M.; and
12.5
that she suffered from a mental ailment that she took medicine for,
which she got at the
clinic in Windsorton.
[13.]
In my
view there is no basis for interfering with the Regional Magistrate’s
finding that the complainant was a competent witness
and was able to
distinguish between what was true and what was not true.
CREDIBILITY
[14.]
It is
trite that a court of appeal should not readily interfere with the
factual findings of a trial court
[9]
.
However, it will, and in fact should, be done where such findings are
clearly wrong
[10]
; All the
more so where such findings are premised on the recorded evidence,
rather than on demeanour
[11]
.
[15.]
The
complainant was a single witness as regards the rape incident
itself. As a result of the fact that her cognitive functioning
was that of a young child, her evidence should also in view of the
evidence of Dr Piotrowski have been regarded as that of a child
of
approximately 8 years old. For both these reasons the evidence
of the complainant should have been approached with caution
and
should only have been accepted as a basis for any finding if
“
substantially
satisfactory in every material respect, or if there is
corroboration
”
[12]
.
[16.]
For
evidence to serve as corroboration it would have to pertain to the
issue/s in dispute
[13]
.
[17.]
In a case
such as this “
It
is trite that the state must prove its case beyond reasonable doubt
and that an accused person is not obliged to give a version
of
events. However, if and when he does give a version, it must be
reasonably possibly true for it to be accepted by the
court.
The trial court must, of course, examine the totality of the
particular facts, and any inferences to be drawn, in
considering its
verdict
”
[14]
.
ANAL
PENETRATION
[18.]
It
appears from the transcribed evidence of the complainant that she
made use of gestures, by indicating to her backside, to explain
that
she had also been penetrated anally.
[19.]
In
Haarhoff
and another v S
[15]
the Court was concerned with a 24 year old complainant who had the
mental capability of a 10 year old child. It was found
[16]
that the “
childlike
manner
”
in which that complainant had testified was “
consistent
with that of the mind of a 10 year old
”.
In my view the complainant’s evidence regarding this issue
should also be seen in this context.
[20.]
The fact
that the ability of the present complainant to “
appreciate
the nature and reasonable foreseeable consequences of a sexual act as
well as her ability to express her unwillingness
to participate in
any such act
”
was according to Dr Piotrowski diminished, unlike the complainant in
the
Haarhoff
matter, is of no consequence. It was never the case of the
appellant that the complainant had consented to any form of sexual
intercourse with him, be it vaginally or anally.
[21.]
It was
submitted on behalf of the appellant that Dr Haarhoff had only found
that there was “
a
mere possibility
”
that the complainant had been penetrated anally, which did not
sufficiently corroborate the complainant about anal penetration
having taken place.
[22.]
It is
clear from the record that Dr Haarhoff had more than once, in
response to questions about whether there had been anal penetration,
not been prepared to go any further than to say that it was
possible. He based this opinion on the presence of an “
abrasion
anterior to the opening of the anus which was red and swollen
”.
Dr Haarhoff was, h, never asked whether the abrasion could have been
caused by something else, and just how strong
the “
possibility
”
was of it having been caused by anal penetration was never examined.
His evidence did not therefore exclude the reasonable
possibility
that anal penetration had not taken place. This Mr Kgatwe,
counsel for the respondent, correctly conceded. He
also conceded that
the uncorroborated evidence of the complainant was, as will also
appear from what follows, insufficient to prove
beyond reasonable
doubt that there had been anal penetration, let alone by specifically
the appellant. It follows that the
appeal against the
conviction should be upheld.
WAS
THERE A CO-PERPETRATOR?
[23.]
There was
no independent corroboration for the complainant’s evidence
that there had been a co-perpetrator with the appellant
.
[24.]
Although
the complainant remained steadfast in her version that she had been
raped by the appellant and a co-perpetrator, there
were material
inconsistencies in her evidence that were also relevant to this
issue.
[25.]
The
appellant was convicted on the factual basis that he and his
co-perpetrator had taken turns to rape the complainant. In
her
evidence-in-chief, when the complainant was describing how the
appellant had penetrated her anus, she was asked: “
When
the Accused before the Court was raping you as you described, what
was the other one doing who is not at Court?
”.
Her answer to this question was “
He
was also doing it. He also got on top of me
”.
[26.]
When the
prosecutor, clearly surprised by this answer, asked “
At
the same time?
”,
the complainant answered “
Yes,
when the other one gets off the other one would get on
”
[27.]
In her
statement to the police the complainant supplied a version in terms
of which the two rapists had penetrated her simultaneously,
the one
vaginally and the other anally, and therefore a version that is
completely inconsistent with the two rapists having taken
turns to
rape her. She admitted this inconsistency in
cross-examination. Her answers when asked to explain this were
far from clear and satisfactory, as appears from the following
exchanges between her and the appellant’s legal representative:
“
So what you told the Police is at some stage
these two men had sex – or sorry, these two men had their penis
inside you at
the same time, one in the anus and one in the vagina.
=== Yes.
You understand that? So which is different from
what you told the Court because you say to the Court the one was
having sex
and then it was the other one. That’s not the
same story you told the Police. So please tell us why is there
a difference in your story. === It is only now that I remember.
I forgot. It’s only now that I explain.
…
What is it that you forgot, the story of the Police
that that is the real story, or the story that you are telling the
Court that
that is the real story? What did you forget? === I
forgot to tell the Court the manner in which they did it to me.
But you did tell the Court the manner in which they
did it to you. So what I want to know, is the story that you
were telling
the Court is that the true story or is the story that
you told the Police is that a true story? === It’s today’s
one.”
And later:
“
Okay, so now it is the second time you say
that to the Police but you didn’t say that to the Court today.
That’s
not how you explained it. So which story do you
want us to accept, the one you told to the Police or the one here at
the
Court? === Yes.
Yes to what Mam? Do you want us to accept what
you told the Police or do you want us to accept what you told the
Court? ===
Yes.
Do you not understand what I’m trying to ask
you? === No.
You don’t understand. Okay, so you told
the Police one story right, as to what happened to you which I’m
saying
is not the same story that you are telling – or that you
told the Court. Okay, so we are sitting with … === I’m
saying they assisted.
COURT:
They
what? === They assisted me.
They assist? === Assisted me.
…
Who assisted you? === That woman.
Is it the Police lady that took the statement?
=== Yes.
And when you say assisted, what does that mean? ===
By writing the statement.
Yes, we know that. She also told us she wrote
the statement. Okay. But she didn’t tell you what
to say in
this statement, correct? === No.
Okay, so we know, we’ve covered that now more
than once that this is your story, this is your words. So now
what I’m
saying is what you told the Police is very different
than what you are telling the Court today. So which story do
you want
us to accept, the one you told the Police or the one that
you were telling today? Or do you want us to accept both
stories,
that is how things happened? === Yes.
”
[28.]
The
complainant also did not initially in her evidence make any mention
of an interruption in the attack on her, until she was confronted
with the fact that, according to her statement, there had been an
interruption of as long as approximately 30 minutes after the
initial
rapes, when the attackers told her to sleep, before they then each
raped her again. It was only when she was in cross-examination
confronted with this part of her statement that the complainant said
that it was true and that she had forgotten about it until
then.
[29.]
In these
circumstances the complainant’s evidence on the issue of
whether she was raped by more than one person should in
my view not
have been accepted as credible without independent corroboration on
this issue, which there was not.
[30.]
It
appears from the evidence that Dr Haarhoff had taken a sample, by
using a swab, of the white discharge that he had observed in
the
vagina and that he had suspected to be semen.
[31.]
The
prosecutor presented only evidence that the appellant’s DNA was
found on the complainant’s panty, and the report
to this effect
was also handed in as an exhibit. No evidence was presented as
regards the outcome of DNA analysis (if it
was in fact done) on the
swab sample. If it appeared that the appellant had also been
the donor of that sample, it would
have meant that no unknown DNA was
found, which would arguably have substantiated the appellant’s
version that the complainant
had not been raped by another person
during the same incident. Conversely, if the DNA of an unknown
donor was found on the
swab, it would have gone a long way towards
corroborating the complainant’s version.
[32.]
In the
circumstances I am of the view of that it was not proved, beyond
reasonable doubt, that there had been a co-perpetrator who
had acted
with the appellant in the execution of a common purpose and had also
raped the complainant.
WAS
THE APPELLANT COERCED?
[33.]
In
S
v Van der Linde
[17]
it was confirmed, with reference to cases like
S
v Trainor
[18]
,
S v
Van der Meyden
[19]
and
S
v Van Aswegen
[20]
,
that “
it
is trite that the onus rests upon the State to prove the guilt of the
accused beyond reasonable doubt, after weighing up all
the evidence
before Court and in a holistic manner.
”
[21]
.
[34.]
On this
issue the complainant’s evidence remained consistent
throughout. She persisted in her denial that the appellant
had
been forced to have intercourse with her, and in her denial of the
appellant’s version in this regard, and her evidence
in this
regard was not in any way shaken in cross-examination.
[35.]
The
appellant, on the other hand, was an exceptionally poor witness,
especially on this issue, and there is no basis whatsoever
for
interfering in the Regional Magistrate’s rejection thereof.
The appellant’s evidence as regards the alleged
coercion was
riddled with contradictions, inconsistencies and improbabilities.
[36.]
The
appellant’s evidence about witnessing an assault committed by
Burksten contradicted his earlier evidence that he had,
before the
incident, only seen Burksten when he was driving around in police
vehicles.
[37.]
In
cross-examination the appellant said that he had told Eksteen the
name of the person who had held the gun, in other words on
his
version Burksten. In his evidence-in-chief he testified,
however, that he had not known the name of the particular person
at
the time of the incident.
[38.]
It is
also difficult to understand why Burksten would have thought that
forcing the appellant to rape the complainant would keep
him quiet on
the issue of the assault on the boy.
[39.]
If the
appellant had in the past often gone to Eksteen with complaints, as
he claimed, why had he not told Eksteen about the assault
on the boy
before, or even after the rape?
[40.]
Sergeant
Fourie and Sergeant K Mogwerane, who were both police officers that
were stationed in Warrenton, did not know any police
officer by the
name of Burksten. In fact, Sergeant Fourie had grown up
Warrenton.
[41.]
It
appears from the record that Eksteen had, at least by the time of the
trial, already passed away. No evidence was unfortunately
presented as to when he passed away and whether he had still been
alive at the time of the incident, and in other words at the
time
when the appellant claimed to have reported the rape incident to him.
[42.]
In
cross-examination the appellant said that he told Eksteen about the
rape incident at Eksteen’s office, which contradicted
his
evidence-in-chief that he had told Eksteen about that at the
scrapyard.
[43.]
In
cross-examination the appellant also testified that Eksteen had then
promised to investigate the incident, which contradicted
his
evidence-in-chief that Eksteen had said “
there
is nothing that I have with me that he can use
”.
[44.]
Why would
the complainant, with the cognitive functioning of a very young
child, have wanted to protect people who, on the appellant’s
version, had been the whole cause of her trauma? Especially the
presence of a person with a gun would have made a lasting
impression
on her.
[45.]
Why would
men who had just come to the rescue of the appellant and had found
him half naked and tied to a tree, chase him away and
not at the very
least ask him what had happened?
SENTENCE
[46.]
Even
without the co-perpetrator findings the prescribed sentence for the
rape in count 2 would have remained life imprisonment,
because of the
complainant’s mental condition. Mr Steynberg, who
appeared on behalf of the appellant, conceded that
he could not
responsibly argue the appeal against any of the sentences.
[47.]
The
appellant attacked the complainant in broad daylight. He never
showed even a hint of remorse and this, seen with the fact
that this
rape was preceded by a rape in 2008 and followed by a rape in 2009,
militate against any real possibility of rehabilitation.
The
fact that he was only convicted of those rapes after he had committed
the present rape does not mean that those rapes and convictions
should be disregarded as aggravating factors
[22]
.
[48.]
Even if
it could be said that the setting aside of the conviction on count 3
and the absence of a co-perpetrator would constitute
a substantially
different factual matrix than the one upon which the Regional
Magistrate had considered sentence, there would still
in my view not
be a basis upon which the sentence imposed on count 2 could be
interfered with. The absence of serious injuries
would not in
itself justify it.
CONCLUSION
[49.]
In the
premises the following orders are made:
1.
The
appeal against the conviction on count 3 is upheld and the conviction
and the sentence imposed on count 3 are set aside.
2.
The
appeal against the conviction and the sentence of life imprisonment
on count 2 is dismissed and both the conviction and sentence
on count
2 are confirmed.
______________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
I
concur.
_____________________________
W
J COETZEE
ACTING
JUDGE
NORTHERN
CAPE DIVISION
For the
appellant:
Mr H
STEYNBERG
(
Legal
Aid South Africa, Kimberley
)
For the respondent:
ADV K M KGATWE
(Office of
The
Director of Public Prosecutions
)
[1]
In contravention of the provisions of
section 3
of the
Criminal
Law (Sexual Offences and Related Matters) Amendment Act
>, 32 of
2007
[2]
105 of 1997
[3]
Paragraph (a)(i) and (ii) of the definition of rape in
Part I
of
Schedule 2
[4]
Paragraph (b)(iii) of the definition of rape in
Part I
of Schedule 2
[5]
Somewhat superfluously, in view of the provisions of section
39(2)(a)(ii) of the
Correctional Services Act
, 111 of 1998
[6]
See the proviso to section 309(1)(a) of the
Criminal Procedure
Act
, 51 of 1977.
[7]
This is the spelling of the name in the transcription of the
evidence, although it was spelt “
Braxton
” in the
transcription of the judgment.
[8]
"
192
Every witness competent and compellable unless expressly excluded
Every
person not expressly excluded by this Act from giving evidence
shall, subject to the provisions of section 206, be competent
and
compellable to give evidence in criminal proceedings.
193 Court to decide upon
competency of witness
The
court in which criminal proceedings are conducted shall decide any
question concerning the competency or compellability of
any witness
to give evidence.
194 Incompetency due to state of mind
No
person appearing or proved to be afflicted with mental illness or to
be labouring under any imbecility of mind due to intoxication
or
drugs or the like, and who is thereby deprived of the proper use of
his reason, shall be competent to give evidence while
so afflicted
or disabled."
[9]
Compare
Kebana v S
[2010] 1 All SA 310
(SCA) para [12]
[10]
Compare
S v M
2006 (1) SACR 135
(SCA) para [40]
[11]
Compare
S v Crossberg
[2008] ZASCA 13
;
2008 (2) SACR 317
(SCA) para [149]
[12]
S v Mahlangu and Another
2011 (2) SACR 164
(SCA) para [21];
See also
S v ML
2016 (2) SACR 160
(SCA) para [7], where it
was held that the evidence of a complainant who was a very young
child and a single witness should “
not only be treated with
caution, but a degree of corroboration is required to reduce the
danger of relying solely upon her evidence
to convict …
”
[13]
Compare
S v Scott-Crossley
2008 (1) SACR 223
(SCA) para [8]
[14]
S v Makgatho
2013 (2) SACR 13
(SCA) para [8]
[15]
[2017] 4 All SA 446 (ECG)
[16]
Ibid
, para [32]
[17]
2016 (2) SACR 377
(GJ) para [96]
[18]
2003 (1) SACR 35
(SCA) (Also reported at [2003] 1 All SA 435)
[19]
1999 (1) SACR 447
(W) (Also reported at 1999 (2) SA 79 (W))
[20]
2001 (2) SACR 97 (SCA)
[21]
See also
S v Vilakazi
2016 (2) SACR 365
(SCA) para [17]
[22]
Compare
S v Ngidi and Others
1991
(1) SACR 589
(A) at 596 D;
S v S
1988 (1) SA 120
(A) at 123 G-H