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[2017] ZAFSHC 47
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Moerane and Another v S (A188/2016) [2017] ZAFSHC 47 (28 February 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A188/2016
In
the appeal between:
MOEKETSI
JOHN MOERANE
First
Appellant
MOKHOEPHA
FRANK MPHANYA
Second
Appellant
and
THE
STATE
Respondent
CORAM:
REINDERS,J
et
NICHOLSON, AJ
JUDGEMENT:
REINDERS,
J
HEARD
ON:
6
FEBRUARY 2017
DELIVERED
ON:
28
FEBRUARY 2017
[1]
The Appellants, who were legally represented, appeared before the
Regional Court at Phuthaditjaba on a charge of rape, it being
alleged
that on or about 28 July 2012 they unlawfully and intentionally
committed an act of sexual penetration with Mothankie Thomas
by
penetrating her vagina with their penises without her consent.
[2]
The Appellants pleaded not guilty and tendered no plea explanation.
On 7 May 2013 they were convicted as charged and sentenced
to
imprisonment for life. Appellants now exercise their automatic
right of appeal against both the conviction and sentence.
[3]
In argument by Ms Smith on behalf of the Appellants and on the papers
before us (drafted by Mr S.S. Kambi) it was contented
that the trial
court erred in finding that there was proof beyond reasonable doubt
that the Appellants raped the complainant and
by rejecting the
Appellants’ versions as false beyond reasonable doubt. It is
further contended for the Appellants that the
trial court misdirected
itself by not approaching the evidence of the complainant with
caution, and that the sentence of life imprisonment
was shockingly
inappropriate and harsh.
[4]
Ms Moroka on behalf of the State, supported both the conviction and
the sentence on the papers and in argument before us. She
contended
that the trial court did not misdirect itself in any way.
[5]
The State’s version, as accepted by the trial court, was to the
effect that on 28 July 2012 the complainant left
her home at
past 20h00 (I will return to this aspect later again). Upon her
arrival at a tavern in a shopping complex she met with
the First
Appellant, who is her [n.] and well known to her. He told her that
they should leave the tavern together as they are
[n.]s. One T., an
acquaintance of hers, joined her and offered her an alcoholic drink.
She did not finish drinking it as she heard
people screaming outside.
Upon her arrival outside she was advised that First Appellant had
stabbed somebody. T. suggested that
they should leave. Not far from
the tavern First Appellant joined them, whereupon T. stayed behind
and made no attempt to prohibit
the First Appellant from leaving with
the complainant.
Along
the way they met with Second Appellant, one T. and one S.. First
Appellant had a knife in his possession and along the way
instructed
her to turn left at a corner. She informed him that it was not the
direction to their homes. When she objected, he told
her to keep
quiet and that he “wants to show me I am not clever because I
think I am clever.” They proceeded to the
house of one of First
Appellant’s friends, one P. where they arrived at 03h30. P. was
at his house and the party of the two
Appellants, T., S. and the
complainant started drinking. She drank only half a glass of beer as
it was not her intention to drink.
First
Appellant instructed her to go to the bedroom. She was stubborn and
tried to fight back, but was afraid as he had a knife.
Hereafter he
raped her, and upon completion called Second Appellant to the room.
As she was resisting the Second Appellant a fight
ensued and she
sustained a 2cm injury below her left eye. Second Appellant hereafter
raped her. Hereupon first appellant instructed
P. to provide her with
water in another bedroom. She only washed her face. She pleaded with
P. to help her escape, and on her own
accord she escaped through the
window of the bedroom. As she ran up the street, First Appellant
emerged and she informed him that
she was going to the police. Along
the way she met with two police officers in a vehicle and they took
her to the police station.
The police accompanied her to P.’s
residence and on their way there they met up with P. and S.. They
found no one at P.’s
house.
The
complainant was taken to Elizabeth Ross Hospital where she underwent
a clinical examination. Findings were recorded by the medical
practitioner, Dr MP Setlaba (hereafter “the doctor”).
This document (hereafter the “J88”) was handed in
as
Exhibit “B” and recorded a laceration of +-3cm on the
right cheek and an abrasion on the inner lip. It is evident
from the
J88 that a gynaecological examination was conducted, indicating no
swelling, fresh tears or bruising of the vagina but
a whitish
discharge. The conclusion was reflected as: “as above”.
The prosecution did not call the doctor as
a witness.
[6]
During cross examination the complainant testified that First
Appellant might not have said that she thinks she is clever, but
he
used to tell ladies in their village that they think they are clever.
He never said that to her directly because she was always
at work.
She admitted that she was not forced to drink liquor at P.’s
house. Although she fought off both Appellants and
sustained injuries
under her eye and inner lip, she did not sustain any injuries to her
genitalia but only “emotional pain”.
She admitted that,
when the Appellants, T. and S. left the tavern, they were also
accompanied by two ladies called N. and T. (hereafter
“the two
ladies”). She can recall that when the police emerged,
one of the girls ran to the police. She was prevented
from also
running to the police for assistance as First Appellant was guarding
her by walking behind her. She admitted that
she did not
mention that she and S. stopped at the latter’s uncle to buy
some liquor on the way to P.’s house. The
complainant denied
that she had an agreement with First Appellant to leave the tavern
together, indicating that she did not answer
him when he told her
that they should leave together.
[7]
The state called Warrant Officer Thabo Steven Lephondo who testified
that he arrested the two appellants on 28 July 2012 between
09:00 and
10:00 that morning. According to him, the First Appellant gave chase
as he attempted to arrest him. He denied firing
any shots.
[8]
Both Appellants testified in implication of their defence and Mr
Thabiso Makoena was called as a witness by First Appellant.
In brief,
First Appellant denied that he had sexual intercourse with the
complainant either by consent or without consent. According
to him,
the complainant was involved in a fight with some ladies at the
complex and he observed the injuries to her face. It was
not disputed
that they met with the complainant on the night in question and left
for P.’s house where they consumed liquor.
According to him the
complainant left with the group, and she went home the following
morning as she indicated she had to go to
Johannesburg.
[9]
Mr Thabiso Mokoena was called by the First Appellant as a witness.
His evidence entailed that complainant had a fight with a
group of
girls and sustained the injuries depicted in the J88. He did not see
a knife in the possession of the First Appellant.
He also went to
P.’s place.
[10]
The upshot of the Second Appellant’s testimony was that he saw
the complainant fighting at the shopping complex and that
he saw that
she had sustained injuries on the left side of her face. The group
left the tavern together, whilst the two ladies
ran back when the
police emerged, the complainant followed the appellants. It was an
agreement between complainant, himself and
his co-accused that they
would leave the tavern together. The appellant was asked why the
complainant would falsely implicate him,
and he answered that he does
not know where she gets the guts to do so, evil spirits got hold of
her. He denied that he assaulted
or raped the complainant.
[11]
It is trite that factual findings of the trial court and its
acceptance of oral evidence are presumed to be correct unless
and
until they are demonstrably or, on adequate grounds, shown to be
wrong.
See
S v Francis and Others
1991(1) SACR 198 (A).
[12]
On returning the guilty verdict the trial court effectively rejected,
as not reasonably possibly true, the Appellants’
versions.
[13]
The doctor who supposedly examined the complainant, was not called to
testify
viva
voce
regarding the medical findings. The magistrate was therefore left to
speculate what the report meant. The only injuries it shows
are a
laceration on the left side of the complainant’s face and an
injury to the upper lip. The court was deprived of the
privilege of
hearing the expert’s opinion on whether the laceration could
have been caused by a clenched fist or otherwise.
Be that as it may,
the laceration could very well have been caused in the fashion
described by the Appellants, namely that the
complainant was involved
in a fight with other ladies. The said injuries themselves, in no way
prove a rape but are certainly more
attributable to a fight than a
rape. Nowhere in the J88 does the doctor conclude that the
complainant might have been raped, let
alone that the complainant had
in fact been raped.
[14]
No mention was made by the magistrate of the fact that the findings
by the doctor who examined the complainant did not corroborate
the
complainant’s version that she was raped. Even though she
testified that fights and even injuries preceded the rape,
she could
not explain how no swelling, bruising or bleeding was noted on her
private parts. One would have expected the doctor
to have noted that
complainant averred that she had been raped and record specific
clinical notes to that effect. The upshot hereof
is that the medical
evidence did not corroborate or support the complainant’s
version and was at best, neutral evidence.
If any, it proffered
support for the Appellants’ versions. A further worrying aspect
is that the J88 is dated the 28
th
July 2012 which counters the complainants’ evidence.
[15]
It is clear from the recorded evidence that the complainant was a
single witness as to the alleged rape. The cautionary
rule was,
as such, applicable to her evidence in that regard as correctly
submitted for the Appellants.
[16]
An application of the cautionary rule to the evidence of a single
witness in essence requires the court to satisfy itself that
despite
the defects, shortcomings and contradictions in such evidence the
truth has been told and that the complainant’s
evidence is
trustworthy.
See:
S
v Sauls
1981
(3) SA 180
(A).
[17]
No mention was made by the trial court that the complainant was a
single witness and that he applied the cautionary rule in
respect of
her evidence. The only remark by the learned magistrate is
encapsulated in one sentence that reads as follow:
“
I
am of the view that the complainant testified to this honourable
court well, she was clear and satisfactory in every material
respect,
yes I know that there were discrepancies or bits of her evidence that
did not make sense yet these bits were not of such
nature which
discredited her, I was in fact impressed by her evidence as being
clear and satisfactory in every material respect.”
[18]
The magistrate did not deal with the specifics of the discrepancies
and shortcomings of the complainant’s evidence to
enable me to
follow his precise reasoning. On a reading of the record, I am not so
sure that he is correct in this finding and/or
that he could find any
corroboration for the complainant’s evidence. It seriously
concerned me that complainant mentioned
for the first time in cross
examination that on the way from the tavern they went to S.’s
uncle’s place to buy liquor.
This happened at the time when she
was already, if her version is to be believed, forced against her
will to accompany the Appellants.
This coupled with her version that
the two other ladies who initially accompanied the party were allowed
earlier to run away. Having
testified in chief, the prosecutor
referred her to the doctor’s report. It was put to her that
according to the doctor she
had an injury on the inner lip. Her
response was as follows:
“
I
remember now, that is the time when accused two was assaulting me
with a clenched fist and I bit my lip.”
It
is difficult to fathom why she needed to be reminded of the injuries
she sustained during the ordeal. In evidence in chief (as
correctly
found by the magistrate) she testified that she left her house on the
28
th
July 2012 at 20:00. She was raped in the early hours of the following
morning. If this evidence is correct, the doctor could not
have
brought out a report dated the 28
th
July 2012 indicating the starting time of the medical examination as
being 23:00. This evidence might merely be a slip of the tongue.
However it remains her testimony under oath and the magistrate
wrongly accepted this to be correct. This aspect casts serious doubt
on the magistrate’s conclusions regarding her reliability.
[19]
According to the complainant’s evidence there were various
other witnesses who could have corroborated her version. None
of them
were called to testify. Nor was the investigating officer called to
explain what happened to the witnesses. The end result
is that,
objectively speaking, the medical evidence did not support the
complainant about the rape, nor did any other witness.
There were
serious concerns about the evidence itself of the complainant. No
evidence about any first report of the rape was tendered.
So seen,
there was no corroboration for the complainants’ evidence or
testimony.
[20]
Both Appellants’ versions were rejected as the court a quo was
of the view that they could not satisfactorily explain
why
complainant would falsely incriminate them. Our courts have often
warned against such an approach. To approach the matter on
this basis
is to expect of an accused to give an explanation which might not
fall within his personal knowledge. He might think
that the witness
falsely implicated him for totally the wrong reason, leading to the
rejection of his version, whilst the witness
might have had a
completely different reason unknown to the accused. It is dangerous
to place such an onus on an accused.
See:
S
v Lesito
1996
(2) SACR 682
(O) at 687i-j.
[21]
I therefore come to the conclusion that the appeal of both Appellants
against their convictions should succeed as the State
did not cross
the minimum threshold of standard of proof of the accused’s
guilt, which is proof beyond a reasonable doubt.
[22] I
would therefore make the following orders:
1.
The
appeal of both Appellants succeeds.
2.
The
conviction and sentence in respect of First Appellant and Second
Appellant are set aside.
______________
C.
REINDERS, J
I
concur and it is so ordered.
_________________
C.
NICHOLSON, AJ
On
behalf of the Appellants:
Adv. L. Smith
Instructed
by:
Justice
Centre
BLOEMFONTEIN
On
behalf of the Respondent: Ms. Moroko
Instructed
by:
Director:
Public Prosecutions
BLOEMFONTEIN