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[2017] ZAFSHC 49
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Langeberg v S (A221/2016) [2017] ZAFSHC 49 (16 March 2017)
SAFLII
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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
Appeal
No.: A221/2016
In
the appeal between:-
WALTER
VAN
LANGEBERG
Appellant
and
THE
STATE
Respondent
CORAM:
MUSI, AJP
et
VAN ZYL, J
HEARD
ON:
6 MARCH 2017
JUDGMENT
BY:
MUSI, AJP
DELIVERED
ON:
16 MARCH 2017
[1]
The appellant was convicted by the regional magistrate Bloemfontein,
on one count of rape and one count of assault. He was sentenced
to
life imprisonment for rape and to 3 years’ imprisonment for
assault. Both convictions arose out of a single incident.
He
now appeals against both the convictions and sentences.
[2]
The complainant, a 40 year old lady, testified that on 14 March 2009
she went to Pelonomie Hospital, Bloemfontein to visit her
niece’s
child. At approximately 20h30 she walked from the hospital to
Twin City where she boarded a Toyota Hi-ace Siyaya
minibus taxi which
was driven by the appellant. She told the appellant that she is
going to Bergman Square. She was the only
passenger. The
appellant drove in the direction of Bergman Square and he started
fondling her breasts. She asked him
what he is doing; he just
remained quiet. He then put his hand in her trousers and
started touching her vagina. She
again asked him what he was
doing and he said she can see what he is doing. He took his hand from
her trousers and started fondling
her breasts again. When the
taxi reached her destination the appellant accelerated. She
tried to open the door but
the appellant locked it whilst driving.
[3]
The appellant drove to small holdings
where
he stopped the vehicle. She was seated in the front passenger
seat. The appellant moved over to her side, and
unbuttoned her
trousers and pulled it down, to above her knees. He then got on
top of her and had sexual intercourse with.
She tried to push
him from her, without success. She opened the door and fell out
of the car. It was raining
on that particular day and the
surface on which she fell was muddy. She stood up and ran in
the direction of houses that
she saw at a distance. The
appellant chased her, got hold of her and took her back to the
vehicle. He pushed her against
the vehicle and he hit her once
with his clenched fist behind her left ear. He instructed her
to get into the car so that
he could take her home. She got
into the vehicle because she did not know where she was or where to
go.
[4]
The appellant said that he is not satisfied. She requested him
to take her home. Whilst they were driving back he
requested
her to play with his penis, she obliged. He also touched her
vagina and inserted his finger in it. The appellant
drove to
her house, she got out of the taxi. When he drove away she took
the registration number of the vehicle. She
went to her
neighbour, P., and told her and M. what happened to her. The
police were called; they arrived and took her to
the police station
where a statement was taken. She later went with a police officer to
the taxi rank where she pointed out the
appellant.
[5]
Ms Lenkoe testified that she is a forensic nurse stationed at Tsepong
Crisis Centre. On 15 March 2009, she examined the
complainant.
She did not present any genital injuries. She saw a
bruise at the back of the complainant’s ear.
During cross
examination she was asked whether the complainant presented any other
injuries except the bruise behind her
ear; she answered that she did
not see any other injuries.
[6]
The appellant testified that on that particular evening he was on his
way to Bergman Square to see his driver. He saw
the complainant
standing in the rain and decided to give her a lift. He stopped
at a tuckshop where he bought cold drinks
and airtime. He went
back to the vehicle and she showed him keys and said that they can go
and drink the cold drinks at her
sister’s house. She
asked him whether he has any condoms in the vehicle. He went
back to the tuckshop to buy
condoms because he did not have any in
his vehicle. He drove to Sand City where he stopped the
vehicle, got out and climbed
into the passenger’s seat.
The complainant undressed herself and he had sexual intercourse
with her. He
had money in his shirt’s pocket; she removed
the money and put it between her breasts. He tried to remove it
and a
struggle ensued. After he retrieved the money he went
back to the driver’s seat and drove the vehicle. The
complainant
asked him for money and he gave her R50.
[7]
It is trite that the State bears the onus to prove the guilt of the
appellant beyond reasonable doubt. The state must
prove each
and every element of the offence. There is no duty on the
appellant to prove his innocence. Where, after
considering all
the evidence of the case, there is doubt as to the guilt of the
appellant he must get the benefit of such doubt.
[8]
Mr Simpson on behalf of the respondent argued that the trial court’s
conclusion in relation to both conviction and sentence
is without
blemish. The heads of argument on behalf of the appellant were
drawn by Mr Tshabalala but Mr Van der Merwe appeared
before us on his
behalf. He contended that the appellant should have been found
guilty of one rape.
[9]
The regional magistrate found that the complainant’s evidence
is more credible than the appellant’s evidence. I
disagree. The appellant’s case is improbable but so too
is the respondent’s case. The regional magistrate,
in
trying to portray the respondent’s case in a very good light
even went so far as to take judicial notice of matters medical.
He
did not discuss the elephant in the room. He made unsustainable
assumptions. He ignored glaring contradictions
in the
respondent’s case and accepted the respondent’s case
without any reservation. He accepted the complainant’s
version in its totality.
[10]
The regional magistrate indeed pointed out some incongruities in the
complainant’s version. He said the following:
“
Kortliks gaan ek
die volgende net uitlig, die eerste een was gewees oor die
hoeveelheid sitplekke, sy het gesê daar is drie,
daar is net in
werklikheid twee. Die ander aspek het gegaan oor of beskuldigde
toe hy die knoppie afgedruk het eers bestuur
het, later het sy gesê
dat hy eers bestuur het en toe dat die voertuig reeds stilgestaan
het. ‘n Ander aspek
wat ek in haar getuienis ook uitgelig
het was die vraag waar beskuldigde was toe hy haar broek sou afgetrek
het langs haar of voor
haar, sy het verskillend daaroor getuig, en
laastens die vraag of wat die posisie met betrekking tot die sitplek
was, in getuienis
in hoof het sy gesê nee dit was nie afgeslaan
nie en in kruisondervraging gesê het ja, die feitlike situasie
is dit
kan in elk geval nie platslaan nie. Nou dit is die
meeste kritiek was ek kan inbring teen die klaagster se getuienis.”
[11]
Unfortunately that is not the sum total of the criticism that one can
level at the complainant’s version. There
are many
contradictions and improbabilities which I will presently point out.
The regional magistrate found that the complainant’s
evidence is corroborated in that the form J 88 shows that “haar
hele lyf seer was”. That is incorrect. In fact,
the only
injury on the form J 88 is the bruise behind her ear. He went
further to try and explain the absence of any injuries.
He took
judicial notice of the fact that the complainant’s skin colour
and the relative short duration of the examination
relative to the
time that the injuries were sustained explained why the complainant
did not present any injuries. He said:
“‘
n Ander
aspek wat ons deeglik hier moet verreken is die kort tydsverloop, ook
die velkleur van die klaagster relatief donker, aan
die anderkant so
‘n kort tydsverloop dat sy nog nie kans gehad het om behoorlik
gekneus en donker te raak nie teen die tyd
was alreeds by die
ondersoek was.(sic)”
[12]
The respondent did not call P. or M. to testify. No reason was
given why these very important witnesses were not called
to testify.
They could have corroborated the complainant’s version as
to her physical and emotional state when she
informed them about the
incident. They could have corroborated her evidence as to the
state of her clothing when she arrived
there. The police
officer or officers who found the complainant at P.’s house
were also not called to testify. The
regional magistrate did
not criticize the respondent for not calling any of those witnesses.
He did not have regard to the
fact that, depending on the
circumstances of the case, a negative inference can be made against a
party who does not call an available
witness. See
S v
Teixeira
1980 (3) SA 755
(AD) at 763F to 764C. In my view the
regional magistrate should at least have referred to the reason why
these potential witnesses
were not called and the import of such
failure. In the absence of any explanation the only reasonable
inference to make is
that these witnesses would have contradicted the
complainant’s evidence. She could therefore not be
classified as a
single witness whose evidence should be accepted
without reservation.
[13]
The complainant also embellished her testimony. When she was
asked during cross-examination how the appellant could have
sexual
intercourse with her on the front seat while she was sitting with her
trousers at her knees; she could not give a satisfactory
answer. She
then said that he reclined the seat. An inspection
in
loco
was held and it was found that that make and model vehicle’s
seat cannot recline.
[14]
In the absence of any corroborating evidence the regional magistrate
made a very prejudicial assumption without any factual
basis. He
assumed that the sooner a complaint is laid the more veracity there
is to the allegations. He put it thus:
“
Ek wil van die
veronderstelling uitgaan hoe vinniger die klagte gemaak word hoe
minder is die kans dat dit gekook kan wees, met
ander woorde hoe meer
spontaan begin ‘n klagte raak.”
Does
this mean that the longer a complainant takes to report a rape the
more the chance is that she/he is not truthful?
[15]
The complainant testified as if she had no prior knowledge of the
appellant. During cross-examination, however, it transpired
that she had used the appellant’s taxi on numerous occasions to
commute to and from work. The regional magistrate found
that
the complainant made interpretative mistakes which are excusable
because of the passage of time. He unfortunately does
not
explain or give examples of what he means by interpretative mistakes.
[16]
The appellant, as the regional magistrate correctly points out, was
also not a model witness. The regional magistrate
correctly
pointed out that it is improbable that the complainant who had no
previous history with the appellant would act in the
manner that she
did. He also pointed out that it is improbable that the
complainant who wanted to have sexual intercourse
with the appellant
would make such a serious allegation against him. The regional
magistrate misdirected himself with regard
to the injury sustained by
the complainant. The appellant gave a plausible explanation.
The appellant’s version
is that he wrestled with the
complainant in order to get his money back and that she could have
sustained the injury during this
process.
[17]
The appellant was initially represented by Mr Kramer. He
contradicted what Mr Kramer put to the complainant. The
regional magistrate found that the contradictions were as a result of
the fact that the appellant forgot what his instructions
were to his
legal representative.
[18]
On the totality of the evidence before the regional magistrate,
bearing in mind the incidence of the onus, he could not come
to the
conclusion that the State proved its case beyond a reasonable doubt.
The regional magistrate did not consider that
the State had to
prove the guilt of the appellant beyond reasonable doubt. By
purely looking at the two versions in isolation
and finding that the
one is more probable than the other is to unconsciously place a
burden on an accused. The proper manner
is to look at all the
evidence and then to ask whether the guilt of the accused has been
proved beyond reasonable doubt.
[18]
In
S v Janse van Rensburg
2009 (2) SACR 216
(C) at para
8 it was said:
“
Logic
dictates that, where there are two conflicting versions or two
mutually destructive stories, both cannot be true. Only one
can be
true. Consequently the other must be false. However, the dictates of
logic do not displace the standard of proof required
either in a
civil or criminal matter. In order to determine the objective truth
of the one version and the falsity of the other,
it is important to
consider not only the credibility of the witnesses, but also the
reliability of such witnesses. Evidence that
is reliable should be
weighed against the evidence that is found to be false and in the
process measured against the probabilities.
In the final analysis the
court must determine whether the State has mustered the requisite
threshold – in this case proof
beyond reasonable doubt. (See:
S
v Saban
&
ʼn Ander
1992
(1) SACR 199
(A)
at 203j to 204a-b;
S
v Van der Meyden
1999
(1) SACR 447
(W)
at 449g-j – 450a-b and
S
v Trainor
2003
(1) SACR 35
(SCA)
at para [9].)”
[19]
It is trite that in assessing two conflicting versions all the
evidence should be considered and none should be ignored. In
S
v M
2006 (1) SACR 135
(SCA) at paragraph 189 Cameron
JA, as he then was, stated the proper approach to adopt succinctly as
follows:
“
The
point is that the totality of the evidence must be measured, not in
isolation, but by assessing properly whether in the light
of the
inherent strengths, weaknesses, probabilities and improbabilities on
both sides the balance weighs so heavily in favour
of the state that
any reasonable doubt about the accused’s guilt is excluded.”
[20]
Having considered all the evidence in this matter and the absence of
a reason why some of the available witnesses were not
called I have
doubt as to the guilt of the accused. In my view it cannot be
said that the State proved the appellant’s
guilt beyond
reasonable doubt.
[21]
I accordingly make the following order:
(i)
The appeal
is upheld.
(ii)
The
convictions and sentences are set aside.
________________
C.J. MUSI, AJP
I
agree.
________________
C. VAN ZYL, J
On
behalf of Appellant:
Mr.
P van der Merwe
Instructed by
Legal Aid SA
BLOEMFONTEIN
On
behalf of Respondent:
Adv. A. Simpson
Instructed by
Director Public
Prosecutions
BLOEMFONTEIN