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[2018] ZAECBHC 4
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Franki v S (CA&R20/2017) [2018] ZAECBHC 4 (27 June 2018)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, BHISHO)
CASE
NO: CA&R 20/2017
NOT
REPORTABLE
In
the matter between
YANGA
FANKI
Appellant
and
THE
STATE
Respondent
APPEAL
JUDGMENT
HARTLE
J
[1]
The appellant appeals against both his conviction on one count of
rape and the consequent sentence of life imprisonment imposed by the
Regional Court, Zwelitsha, sitting at Peddie. The premise
for
the sentence of life imprisonment is that the rape involved the
infliction of grievous bodily harm.
[2]
The challenge against the conviction is that the trial court erred
in
finding that the identification evidence adduced at the hearing was
beyond reproach or that the state had established beyond
reasonable
doubt that it was the appellant who had perpetrated an attack upon
the complainant and thereafter raped her. The
further ground
that since the state had simply relied on the J88 medical report to
establish the fact of an occurrence of rape
without adducing the
evidence of the examining doctor, which somehow called this finding
into question despite the fact that the
report was admitted by
consent, was not pressed upon at the hearing of the appeal.
Although as a standalone ground it was
correctly without any merit
because of the concession by the defence, the absence of the doctor’s
oral testimony and professional
opinion does have some bearing on the
overall assessment of the circumstantial evidence which formed the
basis for the catenate
inferential reasoning culminating in the
conviction of the appellant. I discuss this below.
[3]
The appellant pleaded not guilty to the charge of rape and raised
an
alibi defence.
[4]
The difficulty for the state in proving its case at the trial is
that
the complainant, unbeknown to her, had supposedly been raped whilst
in a state of unconsciousness after an attack upon her
on the night
of 7 January 2012. She only learnt later from the doctor at the
hospital who examined her, once she had properly
regained her senses,
that she had been sexually assaulted in addition to being subjected
to a physical assault. The state
therefore had to rely largely
on circumstantial evidence and the trial court on inferential
reasoning to sustain the conviction.
[5]
At the
outset of the trial, the state handed in the relevant J88 report
together with the customary affidavit in terms of section
212 (4) of
the Criminal Procedure Act, No. 51 of 1977 (“CPA”).
Not surprisingly, there was no objection from
the defence given that
the appellant’s defence was one of an alibi. The report
records the doctor’s professional
conclusion that the
complainant had been sexually assaulted. “Fresh”
bruises to her labia minora at 2 o’clock
and 6 o’clock
positions were in evidence. The doctor also noted a “yellowish,
purulent and offensive” vaginal
discharge. In addition,
the complainant had suffered three lacerations to the forehead, one
to her scalp and above her right
ear and bruising to her upper and
lower lips. She was noted to be “slightly confused”
still upon examination
at 10h15 on the day after the attack upon
her. Swabs were taken for forensic analysis although the nature
of these was not
disclosed in the J88 report.
[1]
[6]
The complainant testified that the appellant has been known to her
for a long time since they both reside in the same area albeit at
least a kilometer and a half apart. She knew where he lived
in
Maganishe. They had at least greeted one another upon sight
before. On the night of 7 January 2012, she had been
sent by
her mother to look for a seven-year-old missing child at “past
ten”. She found the child (she didn’t
say when
exactly) and proceeded home carrying him on her back. As she
was about to reach her home near a stream someone approached
her from
behind and told her to stop. She turned to look behind her and
asked who it was. He said it was “Yanga,”
which is
the appellant’s name. She waited for him until he came
closer and he then faced her, standing in front of
her. He
asked her whose child it was she was carrying on her back. She
said it was hers. He argued with her that
she does not have a
child, but she insisted that it was hers. He then pulled the
child off her back and threw him to the
side. They became
engaged in a physical struggle. He asked her if she wanted to
die. She fell and when she made
a move toward the child to
respond to his crying, he picked up something and hit her with it on
the back of her head. At
this point she lost consciousness,
only coming to her senses at the Cecila Makiwane Hospital the
following day. She could
conclusively say it was Yanga Fanki,
the appellant, who had engaged with her in a fight and who had
assaulted her. She also
assumed that it must have been him who
had raped her. She had had an opportunity in the moonlight to
get a good visual of
him. He was shirtless but had worn a shirt
draped over his shoulder. She also recognized his voice.
[7]
She claimed that at the time of this confrontation and fight they
were alone, except for the presence of the child.
[8]
She clarified that she had last had consensual sexual intercourse
before the rape on 28 November 2011. She was not drawn on the
issue of the vaginal discharge.
[9]
Next the state adduced the evidence of the complainant’s
sister,
M G. She claimed to have known the appellant from
residing and schooling in the same area as him. In fact, they
were
classmates in standard one. The complainant had schooled
there as well, although she was in a different class.
[10]
Vitally,
she did not refer to any times in giving her account of the night’s
events. She and the complainant had attended
a circumcision
ceremony earlier at Makasi’s homestead. Afterwards they
“took a shortcut” via a shebeen.
She was drinking
alcohol, but not the complainant. She did not say when they
left, under what circumstances or in whose company
they had been.
[2]
They arrived home (seemingly together) and she herself went to
sleep. Later she was awoken by one Bongani who came
to tell her
that she should come and fetch the complainant. She arrived at
a place (she did not explain where in relation
to their home) where
she discovered her sister lying, covered in blood. The tights
and panties which she had been wearing
were off her lower body and
lying next to her.
[11]
The complaint was in a state of confusion and although she spoke, she
did not make any
sense. She privately arranged for her to get
to the hospital, because neither the police nor the ambulance came
when called.
The time of her arrival at the hospital was not
stated. Evidently she was first taken to Nompumelelo Hospital
and later transferred
to the Cecilia Makiwane Hospital.
[12]
The complainant told her about four days later at the hospital that
it was “Yanga”
who did this to her.
[13]
Bongani
Nonqulo testified that he had encountered the appellant earlier at
the same initiation ceremony where he, the complainant
and her sister
were at Makasi’s homestead. They had been sitting there
and drinking together. (Notably neither
the complainant nor her
sister related seeing the appellant.)
[3]
He personally left the ceremony at “past ten”. The
complainant and her sister left before he did.
The appellant
followed and seemingly he left last.
[4]
On his way home, he heard “a scream” coming from down at
the stream.
[5]
He
shouted: “What is it?”, but nobody responded.
He then picked up two stones and ran down the stream
toward the place
where he discerned the sounds had emanated from. He found the
complainant lying there on the ground.
She was bleeding and had
been assaulted. He noticed her tights and sandals lying beneath
her feet. He decided not to
touch her but to call her relatives
instead, which he did. Her sister, M, returned with him to the
scene.
[14]
Asked under cross examination if he had seen anyone else around at
the time he mentioned
the name of one Xolisa Maneli who he saw there
“standing next to (his) friends”. (This revelation
that even more
people other than Xolisa were present near the rape
scene was not taken further.) He had pertinently asked him what
he was
doing there. The response elicited was that he was
coming from his girlfriend. He refuted the assertion put to him
on behalf of the appellant that the latter had not been at Makasi’s
homestead where the circumcision ceremony had been held
until the
following day, that is on the 8
th
.
[15]
Probed by the trial court about the presence of Xolisa in relation to
where the complainant
was found he explained that he had observed him
about twenty metres away standing outside a yard (next to the
complainant’s
home) near a fence. He had seen him on his
way to report to the complainant’s relatives
after
finding
her lying there. He claimed to have asked Xolisa where he was
coming from as there was “somebody injured down
there”,
suggesting thereby that Xolisa ought to have known something about
what had happened to the complainant. Xolisa
was not called
upon to testify.
[16]
The state placed on record that nothing of significance had come from
forensic material
“that was removed” linking any person
to the commission of the offence. It is not clear if the
prosecutor meant
taken only at the time of the medical examination,
or at the crime scene as well. The latter placed on record
that:
“
Your Worship, the
material that was removed was presumabl(y) hair (that) has been
removed from the face. No hair has been
detected on the
facecloth and panty. Presumabl(y) blood has been detected on
(swabs), blood stripings. (sic) No semen
has been detected on
the cervical or (swab) vaginal (vault swab) (indistinct). I
would assume that many of the other things
that were taken were in
fact the victim’s, Your Worship, and not necessarily linking
any person to the commission of the
offence.”
[17]
Given the assumptions made by the prosecutor, the state’s case
was left lacking in
any real explanation as to why no DNA result
could avail. How the facecloth featured was not given any
context in the evidence
at all. If it was found at the crime
scene, one would have expected it to have been accounted for in the
evidence, but it
was not.
[18]
The state
having been alerted to the exact nature of the appellant’s
supposed alibi defence in his plea explanation next called
the three
witnesses who the appellant claimed would vouch for him being
elsewhere at “the time” of the alleged rape
drinking
together with him.
[6]
One
“Khusta” at whose home a traditional ceremony had been
held (it was not clarified if this was the same ceremony
held at
Makasi’s homestead) confirmed that he had seen the appellant,
but said that he had left around 5pm when everyone
else did and
returned later around 8pm. He had informed the appellant that
the people were already asleep, and he consequently
left.
Another witness, “Ace,” confirmed seeing him at the same
ceremony while he himself was there, but this
was during the day.
Finally, the last witness, “Sitandwa,’ also confirmed
having seen the appellant at the ceremony,
but only during the day.
[19]
When the
appellant himself testified, he surprisingly confirmed Khusta’s
testimony that everyone had left the traditional
ceremony at the
latter’s home around 5pm and that when he arrived around 8pm he
was told that the people are sleeping and
left.
[7]
He claimed not to know the complainant at all and denied raping her.
Under cross examination by the state he persisted
with his alibi that
he had been drinking together with the last three state witnesses.
[20]
In its judgment the trial court indicated its satisfaction that the
identity evidence was
reliable because the complainant knew her
aggressor reasonably well. The magistrate reasoned that she had
had an opportunity
to clearly see him. She had conversed and indeed
argued with and assaulted him in retaliation when he grappled with
her. She
recognized his voice, and the appellant had also
identified himself by name.
[21]
Taken in
isolation, the magistrate cannot be criticized in his evaluation of
her testimony in these respects. The witness was even
astute to have
noticed the oddity about the appellant being shirtless, the way he
carried his shirt draped over his shoulder and
the fact that it had
fallen off at some stage. He was probably also justified in
remarking that the appellant’s alibi
(on the assumption that it
was known
when
the complainant was raped) had not been supported because the people
who he claimed to be drinking with until the early hours of
the
morning plainly refuted this. The matter was however far more
complex than this and the question whether each “fact”
excluded all other inferences save the one sought to be drawn could
not be considered in a piecemeal fashion.
[8]
The state still bore the burden of proving its case beyond reasonable
doubt against the entire network of facts, unfortunately
mostly all
circumstantial, before the court could make the leap which it did to
find that the only reasonable inference which could
be drawn in all
the circumstances is that the person who attacked the complainant is
the one who raped her, and that that was the
appellant.
[22]
Because the
complainant seemingly “reliably” identified the appellant
as the person with whom she had an argument and
a scuffle that night,
it does not necessarily follow that it was he who had raped her
in-between losing consciousness and later
being discovered in the
state in which she was found, especially for the reasons which I
highlight below. It may well have
appeared to the trial court
to be
alone
a reasonable inference, but against the background of the entire
spectrum of facts, it was in my view not the
only
reasonable inference to be drawn.
[9]
[23]
The trial court appeared to consider as a relevant feature that there
was no prior argument
or quarrel between the complainant and the
appellant when they met on that day in question (as if to suggest
that he must then
have had an ulterior motive in assaulting her),
asking itself:
“
When the accused
said and he took the child from the complainant’s back and
threw it away, why did he do that? What
did he have in mind?
What did he want to do to the complainant?”
[24]
This consideration was however clearly unhelpful in rendering
the complainant’s
testimony, or assumption that the appellant
(assuming the identity evidence itself to be reliable) raped her
after attacking her,
in any way more compelling.
[25]
The court also considered whether it was “reasonably possible”
that the appellant
would hit the complainant on the head “just
for fun” and then “just walk away” after she had
fallen and
lost consciousness, but this question presupposes that he
did not walk away to justify the inference that he had sexually
assaulted
her afterwards.
[26]
Without interrogating Bongani’s evidence at all, the court used
this as the basis
for concatenating that whoever or whatever was
making the complainant scream was interrupted and that Bongani must
have come upon
the scene immediately afterwards.
[27]
Apart from the fact that the evidence was devoid of exact or even
probably certain times
of when the relevant events happened that
night, the court appeared to ignore the fact that Xolani was also on
the scene with friends
in the immediate vicinity of where the
complainant was found lying in the manner Bongani claimed to have
came upon her, asking
itself the following rhetorical question:
“
Is it reasonably
possible that then a person, another person who was just walking by,
saw the complainant lying there badly injured
and decided to rape
her?”
[28]
This without further ado led the court to the conclusion that the
only reasonable inference
to be drawn is that the appellant was the
perpetrator, whereas the question immediately begs itself why the
complaint could not
have been assailed by one of the other persons on
the scene while she lay there after losing consciousness and until
her presence
was later discovered there by Bongani.
[29]
The trial court on the basis of this reasoning accepted the few
speculative conclusions
drawn above as proven facts on the basis of
which it sought to justify the ultimate fact that it was the
appellant who raped her
without critically examining the primary
facts which formed the starting point in the inferential chain.
[30]
In this respect there was much lacking in the state’s case when
considered holistically.
In the first instance, although time
was of the essence, the state was reckless in establishing a seamless
timeline. The
complainant said she left at “past ten”
to look for the child, but it is unclear how long she took before
encountering
the appellant on her version. Her sister gave no
times of any critical events. Bongani’s evidence (apart
from
not being confirmed by the complainant, her sister and the
appellant concerning their all drinking together before the rape)
does
not make sense concerning the time they all dispersed from
Makasi’s homestead.
[31]
Morevoer, if the two sisters left shortly before Bongani did, how
does one account for
their visit to the shebeen before going home?
Further how was Bongani able to come upon the complainant shortly
thereafter
(post attack) if she had after visiting the shebeen
returned home before going out to run the errand for her mother which
in itself
must have taken some time? Bongani did not indicate
what time he found the complainant, neither did her sister give an
indication
of what the time was when she returned with Bongani to the
rape scene or what time it was when they reached the hospital, if it
was on the 7
th
at all. All of this makes a red
herring of the appellant’s alibi being refuted by the witnesses
who would supposedly
have confirmed it because it is by no means
clear what time the complainant must have been raped.
[32]
There is further merit in Mr. Gigwa’s submission that if one
accepts that the complainant
was rendered unconscious when a blow to
her head was delivered, it is most unlikely that she could have
screamed more than once,
if at all. But if she did, and Bongani
had come on the scene shortly thereafter, there would not have been
time for the appellant
to have raped her on his account. Also,
if he had come on the scene immediately upon hearing the complainant
scream, he would
have encountered the seven-year-old boy who by the
complainant’s account was crying when he was thrown to the
side, but his
narrative revealed nothing about the presence of such a
child. If Bongani immediately after the “scream”
had
gone to report, again where was the young boy even on the
sister’s account?
[33]
It was also curious in my view that Bongani only mentioned the
presence of other persons
on the scene under cross examination.
Their presence there in itself should have scuttled the single
assault and rape perpetrator
theory adopted by the court in coming to
its conclusion that it must have been the appellant and no one else
who raped the complainant.
[34]
In my view the court too hastily accepted a factual premise that was
somewhat questionable
and used this as its foundation upon which to
infer the ultimate fact which it did.
[35]
I add to the mix that the complainant’s evidence, apart from
not being reconcilable
with her sister’s and Bongani’s in
material respects, is dubious if regard is had to her description of
how she was
hit with something from behind, whereas the injuries
noted by the doctor were to the front of her face and head. She
also
did not attribute any of the injuries to the scuffle between her
and the appellant or the fact that she fell down. In addition
she regained consciousness quite a while after the event, which
suggests significant trauma to her head. Nowhere in her account
did she relate the earlier events of that night which appeared to be
common cause as far as everyone else’s testimony was
concerned
and, conversely, no one else related the story of the presence of a
child. In this respect the doctor’s opinion
might have
been of some assistance regarding the complainant’s ability to
reliably recall the events of that night.
It is significant in
my view that it was only four days later before she suggested to her
sister who the supposed perpetrator was.
[36]
Whilst on the subject of the doctor, his/her opinion might helpfully
have established a
clear picture (absent from the complainant’s
account) of the possible timing of the rape. It would
incidentally also
have been useful to ask him/her about the
discharge. Was it a pus discharge from the complainant’s
vagina, or was it
likely ejaculation. A description of what
forensic evidence was collected during the examination might possibly
have clarified
why according to the prosecutor there was a lack of
DNA evidence pointing to the responsible perpetrator? In a situation
like this
where it is possible that the complainant lay vulnerably
exposed for a perhaps inordinate length of time at the scene where
she
was found, and could have been assailed by just about anyone, the
absence of a positive DNA result pointing to the appellant as
the
perpetrator certainly excuplates him where DNA donor material was
indeed collected and available for forensic analysis.
[37]
In my view when all the evidence is considered as a whole the
inference that the appellant
raped the complainant is not the only
inference that could reasonably have been drawn in all the
circumstances. Even though
the appellant’s alibi did not
check out, a neutral factor as I have indicated above, his denial
that he raped (or assaulted
the complainant for that matter) appears
to me to be reasonably possibly true and he should have been given
the benefit of the
doubt.
[38]
In the result the appeal against the conviction must succeed and the
sentence imposed falls
away as a necessary consequence.
[39]
I issue the following order:
1. The
appeal against both conviction and sentence is upheld.
2. The
magistrate’s finding is substituted with an order that: “The
accused is acquitted on the charge
of rape”.
B
HARTLE
JUDGE
OF THE HIGH COURT
I
AGREE
N
NTLAMA
ACTING
JUDGE OF THE HIGH COURT
DATE
OF APPEAL: 8 June 2018
DATE
OF JUDGMENT: 27 June 2018
Appearances:
For
the Appellant:
Mr.
A Giqwa
Instructed
by
the
Legal Aid Board,
King
William’s Town.
For
the Respondent:
Ms.
C Monis,
National
Director of Public Prosecutions,
Bhisho.
[1]
Usually
the collection of forensic evidence from a patient of sexual assault
is completed by a doctor using the standard sexual
offences
collection kit. The collection is recorded on a template form
and entails a collection from either clothing (usually
a panty),
head or pubic hair, skin or from the anus or genital organ of the
complainant. In the case of a female patient,
separate swabs
are collected from the vulva, vestibule, vaginal vault or cervical
os.
[2]
Notably
the complainant did not mention these preceding events at all.
[3]
T
he
complainant failed to relate at all that she had been at a
traditional ceremony before the attack or in her sister’s
company at a shebeen before going out again on her own to look for
the child. Significantly, if they had kept company with
the
appellant one would have expected her to have mentioned this in her
testimony especially to assure the trial court that she
was
satisfied that he was her aggressor later on that night because she
had seen him earlier.
[4]
It
is not altogether clear from the record whether he or the appellant
left first.
[5]
Perhaps
something was lost in translation because it is not clear if there
was screaming (as in more than one scream) or a single
scream.
[6]
The
relevant time of the rape was never established with any certainty.
[7]
Interestingly,
if the complainant, her sister and Bongani had been at the same
ceremony, Bongani at least said that he had left
there at “past
ten”, which does not accord with Khusta, Ace and Sitandwa’s
evidence.
[8]
See
R v De Villiers
1944 AD 493
at 508.
[9]
See
R v Sole
2004 (2) SACR 599
at 666 g – i