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[2017] ZAGPPHC 269
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Matabane v S (A157/2013) [2017] ZAGPPHC 269 (12 April 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION. PRETORIA)
CASE
NO: A157/2013
DATE:
14/4/2017
IN
THE MATTER BETWEEN:
WILLIAM
RANGATHE
MATABANE Appellant
And
THESTATE
Respondent
JUDGMENT
KOLLAPEN
J:
1.
The appellant
was convicted of two counts of rape in the Regional Court of
Mpumalanga, sitting at KwaMhlanga on the 13th of October
2011
and on the same day was
sentenced to
20
years'
imprisonment, the Court taking both charges together for the purpose
of sentence. Leave to appeal against conviction
only was
granted by the court
a
quo.
The
duration of the proceedings in the Court a quo
2.
Before dealing
with the merits of the appeal, we are obliged to record our concern
with regard to the long delay that has characterised
this matter. The
incidents upon which the prosecution was based occurred during late
2005 and early 2006. The appellant's first
appearance was on the 10th
of October 2016 but the trial in this matter only commenced a year
later in October 2007 when the complainant
began her testimony. The
evidence of the complainant was only concluded in February 2011,
almost 3-and-a-halfyears after it started.
The trial was finally
concluded in October 2011 - 5 years after the appellant's first
appearance and 6 years after the incident.
3.
The various delays
were attributable to a number of factors including the availability
of counsel, witnesses and the presiding magistrate
and it is
difficult from the record to apportion responsibility for what can
only be described as an inordinate delay, however
we think it
warrants the attention of the Director of Public Prosecutions to
ensure an avoidance of this in the future. The administration
of justice as well as the
interests of accused persons, victims and witnesses and the public at
large are not well served when the
machinery of justice grinds along
as slowly as it did in this matter.
The
merits
4.
The conviction of
the appellant arises out of the following factual matrix:
i)
The appellant is a
traditional healer and the mother and family of the complainant
sought his assistance in order to deal with a
health issue the
complainant was experiencing in the form of epilepsy as well as to
prepare her for her attendance at initiation
school.
It
appears that she started
consulting the appellant in about September 2005. An
incident occurred during
December
2005
along the bank of a river close to where the appellant lived and
which gave rise to the charge of indecent assault of which
the
appellant was acquitted in the court
a quo.
The complainant
however testified that as a result of this incident she feared the
appellant.
ii)
During February
2006 she was required to consult the Appellant again and on the
evening of the 26th of February 2006 she was required
to stay the
night at the appellant's home. Her evidence was that the appellant
proposed love to her as he previously did
in December 2005. He
prepared a basin for her bath, which was part of the healing ritual,
and requested her to undress and have
a bath. This she did but was
informed not to dress again - she covered herself with a blanket. She
testified that the appellant
then came to her while dressed only in a
cloth covering the lower part of his body, removed the blanket which
was covering her
and proceeded to have sex with her against her
will and without her consent. She resisted without success and was
crying throughout
the ordeal. The alleged rape took place on a sofa
in the same room where she had a bath
iii)
She says the
appellant left her lying on the sofa but came back about an hour
later, tied her hands and raped her for a second
time after
which he gave her a Nokia cell-phone and his bank card and said she
could withdraw money from his account using the
bank card. In the
morning he took back the cell-phone, prepared a bath for her and
after bathing she dressed and left. She reported
what had happened to
her to her mother and police were then
approached.
5.
During
cross-examination however she testified that prior to the rape she
was wearing track-suit pants and a panty and that there
was a
struggle when the appellant tried to remove her clothes. She says he
then tied her hands behind her back while she was lying
on the sofa
and proceeded to undress her. He removed her pants but her panty was
only half-removed. There followed some detailed
cross-examination as
to how if her panty was half removed and she was on the sofa
with her legs together it was possible
for the appellant to penetrate
her . Her response was that she did not know how it happened
but that penetration did
in fact take place.
6.
During further
cross-examination she denied that she had testified that the
appellant had removed her track-suit pants and had half-removed
her
panty, while in re-examination she reverted to her original evidence
that she had taken a bath and had undressed herself and
was only
covered with a blanket just prior to the alleged rape taking place.
7.
The state also
called the mother of the appellant and her testimony largely
confirmed that the appellant was engaged as a traditional
healer to
assist the complainant and that on the night of the 26th of February
2006, the complainant spent the night at the appellant's
home. She
testified that the following morning the complainant made a report to
her about being raped and the matter was then reported
to the police.
8.
The evidence of
the medical doctor who examined the complainant, Dr Bakabama was that
after his physical examination of the complainant
he was unable to
conclude whether any penetration had taken place and that the
gynaecological examination revealed that the vagina
was normal. He
did report on the existence of a bruise on the urethra which was
located away from the vagina.
9.
The appellant
denied raping the complainant and while he admitted that we was
engaged by her family to treat her, he persisted that
he did not have
any sexual intercourse with her.
The
appeal
10.
The appellant in
advancing the argument for the intervention of this Court on the
conviction, contends that the complainant was
a single witness in
respect of the rape.
Section 208
of the
Criminal Procedure Act 51 of
1977
provides that 'an accused may be convicted of any offence on the
single evidence of any competent witness'.
11.
In
S
v
SAULS
AND OTHERS
1981
(3) SA 172
at 180B-G
the following was said:
'There is no rule of thumb test or
formula to apply when it comes to a consideration of the credibility
of the single witness...
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 his
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.. .It has been said more than once that the
exercise of caution must not be allowed to displace the exercise of
common
sense'.
12.
In
WOJI
v
SANTAM
INSURANCE CO. LTD
1981
(1) SA 1020
(AD)
DIEMONT
JA provided a helpful guide to approaching the evidence of young
children. The guide highlighted as the focal point, the
trustworthiness of evidence. At 1028A-E of the judgment the learned
Judge said:
'The question which the trial court
must ask itself is whether the young witness' evidence is
trustworthy. Trustworthiness, as is
pointed out by Wigmore in his
Code of evidence para 568 at 128, depends on factors such as the
child's power of observation, his
power of recollection, and his
power of narration on the specific
matter to be testified.
In each
instance
the capacity of the particular child is to be investigated. His
capacity of observation will depend on whether he appears
'intelligent enough to observe'. Whether he has the capacity of
recollection will depend again on whether he has sufficient years
of
discretion to 'remember what occurs' while the capacity of narration
or communication raises the question whether the child
has 'the
capacity to understand the questions put, and to frame and express
intelligent answers (Wigmore on
Evidence
vol
II para 506 at 596). There are other factors as well which the court
will take into account in assessing the child's trustworthiness
in
the witness-box. Does he appear to be honest - is there a
consciousness of the duty to speak the truth? Then also 'the nature
of the evidence given by the child may be of a simple kind and may
relate to a subject-matter clearly within the field of its
understanding and interest and the circumstances may be such as
practically to exclude the risks arising from suggestibility (per
Schreiner JA in
R v Manda).
At
the same time the danger of believing a child where evidence stands
alone must not be underrated.'
13.
Clearly the
existence of deficiencies in the evidence of a single witness cannot
automatically result in its exclusion. What is
called for in each
case is for the Court to consider the merits and demerits of the
evidence proffered and determine notwithstanding
any shortcomings
that it is satisfied that the truth has been told. In undertaking
this exercise one must be mindful both of the
long and protracted
time it took for the evidence of the complainant to be led and
completed, as well as her relative youthfulness
(she was 16 when the
incident occurred in 2006 and would have been about 17 when she
commenced her testimony, concluding it when
she was 20 years old). At
the same time the evidentiary burden of proving the appellant's guilt
beyond reasonable doubt rests firmly
with the State and at the end of
the day the Court must be satisfied that the State has discharged
this duty. If there is reasonable
doubt or if the version of the
Appellant can be said to be reasonably possibly true, then he would
be entitled to his
acquittal.
14.
In
R
v DIFFORD
1937
AD 370
(at 373) the
following remarks of the trial court were approved by the
Appellate Division:
'It
is not disputed on behalf of the defence that in the absence
of some explanation the Court would be entitled to convict the
accused.
It
is not
a question of throwing any onus on the accused, but in these
circumstances it would be a conclusion which the Court
could
draw if no explanation were given.
It
is equally clear that no onus rests on the accused to convince
the Court of the truth of any explanation he gives. If he gives an
explanation, even if that explanation be improbable, the Court is not
entitled to convict unless it is satisfied, not only that
the
explanation is improbable, but that beyond any reasonable doubt it is
false. If there is any reasonable possibility of his
explanation
being true, then he is entitled to his acquittal... '
15.
NUGENT
J
in
S
v
VAN
DER MEYDEN
1999
(1) SA SACR 447
(W)
elaborated
as follows (at 448f-g):
'The onus of proof in a criminal case
is discharged by the State if the evidence establishes the guilt of
the accused beyond reasonable
doubt. The corollary is that he is
entitled to be acquitted if it is reasonably possible that he might
be innocent... these are
not separate and independent tests, but the
expression of the same test viewed from the opposite perspectives. In
order to convict,
the evidence must establish the guilt of the
accused beyond reasonable doubt, which will be so only if there is at
the same
time no reasonable possibility that an innocent explanation
which has been put forward may be true. The two are inseparable, each
being the logical corollary of the other.. .in whichever form the
test is expressed, it must be satisfied upon consideration of
all the
evidence. A court does not look at the evidence implicating the
accused in isolation in order to determine whether there
is proof
beyond reasonable doubt, and so ttoo does it not look at the
exculpatory evidence in isolation in order to determine
whether
it is reasonably possible that it might be true... '
16.
Applying those
principles to the matter on hand and even if one factors into the
assessment the passage of time during which the
evidence of the
complainant was received as well as the fact that she would have been
about 17 when she first testified, then it
could hardly be said that
the criticism of her evidence could be described as insignificant and
immaterial.
17.
She offered a
particular and relatively precise version in her evidence in chief
with regard to how it came that she was naked just
prior to the rape
- she had
bathed,
removed her own clothes and was then told by the appellant not to
dress again. In cross-examination there is just not a
change to this
version but an entirely new version is put forward - namely that
there was a struggle, that she was tied and that
the appellant then
removed her pants and her panty halfway. However in re-examination
she distanced herself from the second version
of events and reverted
to the first version and in doing so denied her own evidence as
contained in the second version of the rape.
18.
There is also some
indication that her own recollection of the incident was not clear
where she indicates at some point during cross-examination
that she
may be able to regain her memories. She comes across as being
confused and unclear. This is hardly suggestive of a lying
witness
and I would be slow and reluctant to call the complainant a liar.
However what I am concerned about is the reliability
of her evidence.
Her different versions of the events leading up to the rape and the
clear impression of confusion and uncertainty
on her part certainly
point in the direction that her reliability and her ability to
properly recall and testify to the events
relevant to the charges is
called into question.
19.
In his assessment
of the complainant's evidence the learned Magistrate concluded that
he found her to be a credible witness and
that the contradictions in
her evidence were not material. While it is so that a trial court is
often best placed to make a determination
of credibility, I find it
remarkable that the court
a
quo
elected to
describe the contradictions in the evidence of the complainant as
being not
material.
20.
For the reasons
already given the different versions offered and the movement from
the one to the other without explanation and
her own recanting of her
evidence must place the contradictions in the category of being
material. It goes to a vital part
of the State's case against
the appellant. In my view the learned Magistrate misdirected himself
on this aspect.
21.
When I have regard
to the totality of the evidence and in particular the evidence of the
single witness, namely the complainant,
then it must follow that it
cannot be said that the State had proved the guilt of the Appellant
beyond reasonable doubt or that
the version of the Appellant could
not be reasonably possibly
true.
22.
Under these
circumstances this court would be entitled to intervene and set aside
the conviction and sentence imposed.
ORDER
23.
The appeal against
conviction is upheld and the conviction and sentence imposed upon the
Appellant is set aside.
____________________
N
KOLLAPEN
JUDGE
OF THE HIGHT COURT
I
AGREE,
____________________
S
S MPAHLELE
JUDGE
OF THE HIGHT COURT
A157/2013
HEARD
ON: 20 February 2017
DATE
OF JUDGMENT:
APPEARANCES:
FOR
THE APPELLANT:
Adv. R Kriel
INSTRUCTED
BY:
Mabena Attorneys
______________________
FOR
THE RESPONDENT:
Adv. J J Kotze
INSTRUCTED
BY:
The Director of Public Prosecutions