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[2017] ZAFSHC 92
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Makakudi v S (A185/2016) [2017] ZAFSHC 92 (25 May 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE
DIVISION,
BLOEMFONTEIN
Appeal
No.: A
185/2016
In
the appeal between:-
MANDLA
VICTOR
MAKAKUDI
Appellant
and
THE
STATE
Respondent
CORAM:
MUSI, AJP
et
RAMPAI, J
et
SNELLENBURG, AJ
HEARD
ON:
15 MAY 2017
JUDGMENT
BY:
MUSI, AJP
DELIVERED
ON:
25 MAY 2017
[1]
The appellant was convicted of rape and sentenced to 8 years’
imprisonment, by a single judge of this division. He
now
appeals against the conviction, with the leave of the trial court.
Although the trial court granted leave to appeal against
conviction and sentence, Ms Smit, on behalf of the appellant,
informed us that the appeal is aimed against the conviction only.
She further informed us that the appellant applied for leave to
appeal against the conviction only. It is not clear
why the
trial court granted leave to appeal against conviction and sentence.
The grounds of appeal as well as the heads of
argument of both
the appellant and the respondent were limited to the conviction
only. My conclusion with regard to the conviction
takes care of
this controversy.
[2]
The complainant testified that on 15 December 2012, between 13:00 and
14:00, she, her younger sister and their friend went to
her elder
sister’s house at Lusaka, Phuthaditjhaba, to attend a party.
They consumed alcohol at the party. At
approximately
20:00 she and her younger sister left the party en route to their
parental home. She walked in front of her
sister. While
she was walking, the appellant and an unknown male approached her and
grabbed her. The one was on her
left and the other on her
right. She thought that they were taking her home. She
requested them to leave her, but they
refused. When they
grabbed her, her sister decided to go to a tavern called M.’s
tavern (tavern). The complainant
screamed, but nobody came to
her rescue.
[3]
They took her to the appellant’s house. He unlocked the
door, they took her to a bedroom where they undressed her
and pushed
her on a bed. She cried. The appellant had sexual
intercourse with her and thereafter his friend also had
sexual
intercourse with her. After they had sexual intercourse with
her they instructed her to get dressed. After she
dressed they
grabbed her and they left the appellant’s house. After
walking for a while, she sat down and refused to
walk any further.
She screamed for help to no avail. The other person
slapped her and ordered her to stand up. She
refused.
[4]
An unknown male person arrived at the scene, as a result of which the
appellant and his friend ran away. She went home.
Her
mother asked her why her jeans were dirty and she informed her that
she was raped.
[5]
She went to police the next day to report the matter. She was
examined by a medical doctor, on 16 December 2012, who noted that
her
labia minora, labia majora, posterior fourchette and fossa
navicularis were bruised. She also presented a fresh tear at the
6
o’clock position of the vagina. The content of the medical
report was admitted. The doctor did not testify. The content
of a DNA
report was also admitted. In terms of the latter report the
appellant’s DNA was found on a cervical swab that was
taken
from the complainant. The other person’s DNA did not match that
on the cervical swab.
[6]
A few days after the incident the police brought the appellant and
his friend to her, and she pointed them out whilst they were
sitting
in a police vehicle.
[7]
The complainant’s mother testified that on 15 December 2012 she
was at home when her daughter arrived. Her daughter informed
her that
she was raped by two men. This witness’ testimony was
totally incoherent. She could not give coherent
answers during
her evidence-in-chief as well as during cross-examination.
[8]
Sergeant Mofoke testified that on 19 December 2012 he arrested the
appellant and the other person at their respective parental
homes.
He took them to the complainant’s home where she
identified both as the persons who raped her. He arrested
both
of them for rape.
[9]
The appellant testified that he had sexual intercourse with the
complainant during 2012, prior to the date of the alleged rape.
He
testified that on 15 December 2012 he was on his way to the tavern
when he met the complainant and her two friends. The
complainant asked him to buy her three beers. He told her that
there is nothing for free and that he will give her R50 in
exchange
for sexual intercourse. She left her friends and they walked
together to his parental home. They went to his
mother’s
bedroom where he had sexual intercourse with her where after he gave
her R50. He promised to meet her at the
tavern later that same
evening. She did not believe him. He gave her his
cellular phone in order to reassure her that
he would indeed meet her
at the tavern. She left. He later went to the tavern but
she was not there. He drank
the whole night at the tavern. The
following morning he went to his brother’s house at Bluegum
Bush. He denied
that he was ever involved in a romantic
relationship with the complainant.
[10]
The trial court rejected the appellant’s version and by
implication accepted the complainant’s version. The
trial
court however did not make any finding with regard to whether the
complainant was raped by the other person.
[11]
A Court of Appeal does not overturn a trial court’s factual
findings unless they are shown to be tainted by material
misdirection
or are shown by the record to be wrong. See
S
v Naidoo
2003 (1) SACR 347
(SCA) at [26] and
Rex
v Dhlumayo
1948 (2) SA 677
(AD) at 702 to 703.
[12]
The trial court made credibility findings in favor of the complainant
without a proper assessment of her testimony and without
giving
proper reasons for such findings. The trial court said the
following:
“
the
court has to decide whether the witness was truthful and accurate,
the quality of the testimony of the witness (sic). It might
be that
the incident happened to years ago, there the complainant was not
logic in her testimony, but she insisted that she was
raped on 15
December 2012 and insisted that it was by 2 men (sic)... The court is
of the view that even though the complainant
could not logically
recall some events, the consistency on the retailing of the
incidence, what happened of the night of 15 December
2012, remains
truthful (sic).”
[13]
The trial court did not consider the nature of the inconsistencies,
discrepancies and contradictions in the complainant’s
testimony. It also did not consider the impact of the
inconsistencies, discrepancies and contradictions on the credibility
of the complainant. There was also no proper assessment done of
the credibility and reliability of the complainant’s
testimony
in light of the totality of the evidence.
[14]
The complainant admitted that she consumed alcohol on the day. The
appellant alleged that she was under the influence
of alcohol when
they met. The trial court did not deal with this aspect.
[15]
The trial court attached undue weight to neutral evidentially
material. The trial court said the following in relation to the
DNA
evidence and the medical examination:
“
In
this matter the DNA result obtained, in my view, and the vaginal
injuries is corroborated and the fact that the complainant was
able
to identify the accused against the accused bare denial cannot stand
and I therefore reject it (sic).”
[16]
It was not in dispute that the complainant and the appellant knew
each other. Likewise it was not in dispute that the
appellant
had sexual intercourse with the complainant on 15 December 2012. The
appellant’s version was not a bare denial.
The only dispute was
whether he had consensual sexual intercourse with the complainant.
The doctor’s opinion is also inconclusive.
The doctor
said the following:
“
Above
features indicated sexual intercourse. Sexual assault can’t be
ruled out since patient has delivered before and is sexually
active.”
[17]
Every accused person has the right to a fair trial which includes the
right to be presumed innocent. See section 35(3)(h)
of the
Constitution of the Republic of South Africa, 1996. The
presumption of innocence means that everyone charged with
a crime
must be presumed innocent until proven guilty. This presumption
is deeply embedded in our criminal justice system.
The
presumption may be rebutted by presenting evidence that proves beyond
reasonable doubt that the accused has committed
the crime. The
proof beyond reasonable doubt standard is the lowest permissible
standard to rebut the presumption of innocence.
Anything below
reasonable doubt is totally insufficient to displace the presumption.
Proof beyond reasonable doubt is however
not proof that overcomes
every possible doubt.
[18]
If after an assessment of all the evidence it cannot be said that the
state has proved beyond reasonable doubt that the accused
has
committed the crime then the accused should be acquitted. Similarly
if on a conspectus of all the evidence it is clear
that the accused’s
version is reasonably possibly true then the accused should be
acquitted. The state therefore carries
the burden to prove
beyond reasonable doubt that the accused committed the offence. If
there is any doubt about the guilt of the
accused he or she must get
the benefit of that doubt.
[19]
The complainant was in my view an unsatisfactory witness. It is
clear that her faculties were impaired by the alcohol
that she
consumed. She testified that the appellant and his friend
grabbed her in the street and “walked with her to
a strange
street”. She initially thought it is the street in which
her parental home was situated. She only realized
that it is
not the street in which she lives because she saw the streetlights.
Why she could not see that they were walking
in a street other
than the street in which she lives was not explained. It was also not
explained why she thought that the appellant
and his friend wanted to
take her home.
[20]
Initially she testified that her sister was walking behind her when
she was grabbed by the appellant and his friend. When
she was
asked why her sister could not see that she was being accosted, she
said that her sister went to the tavern. Later she
testified that her
sister told her the following day that she did not see what happened
between her and the appellant. It
was put to her that in her
affidavit she stated that she was alone when she was grabbed by the
appellant. She could not explain
this discrepancy. It was also
put to her that it is strange that her sister would abandon her in
the street without saying
a word. When she was asked whether
she screamed while she was with her sister she stated that her sister
turned back and
went away.
[21]
During cross-examination it was put to her that she was with her
sister and another lady when the appellant met them. She
initially conceded that they were three persons when they met him.
When she was asked whether she confirms that they were three
she said
the following: “we were three but I did not see a third person,
I only saw my sibling.”
[22]
It was put to her that the appellant alleges that they had sexual
intercourse prior to 15 December 2012, she initially denied
it but
when she was pressed in cross- examination she conceded that they had
sexual intercourse on one occasion only. Towards
the end of her
cross-examination she was again asked about the previous sexual
encounter with the appellant and she testified that
she cannot
remember or she had forgotten. During re-examination she
categorically stated that she did not have sexual intercourse
with
the appellant before 15 December 2012.
[23]
She did not inform the police that the appellant gave her his
cellular phone. It was only during cross-examination that
she
made mention of the cellular phone. She however said that the
appellant gave her the cellular phone in order for her
to withdraw
the matter. She then testified as follows:
“
did
you take the cellphone? --- Yes
why
would you now take the cell phone Miss if you had no intention of not
opening a case?--- It was a cheap cellphone, it was not
an expensive
one.
So
why would you take the cell phone on your own version of the person
who have raped you, or asked you not to make a case, why
would you
take the cell phone? --- He forced me.
He
forced you to take something? --- He put it inside my hand I was
reluctant.
Why
did you not just drop it? --- I was afraid.”
[24]
The complainant’s testimony in relation to the reason why and
under what circumstances she took the cellphone is improbable.
She
did not proffer any reason why she did not tell the police that the
appellant gave her the cellphone in order for her
to withdraw the
charge against him.
[25]
The complainant’s mother’s evidence was of no assistance.
An extract from her testimony during cross- examination
illustrates this conclusion.
“
Ma’am
can you remember the time when M arrived there at the house, was it
late at night, early at night, when was it, can
you recall? ---
Sometimes she went to school, there went to school the children, when
they arrived I do not know what time it was
but it was at night that
she comes.
Just
listen to the question Miss. You told the pulleys your story, is that
correct, you gave them a version and then rolled it down?
--- Yes
And
in that version did you tell the police that she arrived at midnight,
is that correct? --- They were coming from the walk stall,
they were
walking in the night. They said that they must not walk in the night,
they said they must walk during the day.
Just
listen to the question. Did you tell the police that when M, the
night that she was raped, when she came to the house and knocked
on
the door whatever, when she arrived there it was midnight, 12 o’
clock?--- She came back from work it was still early
when she went
away party.
I
am not asking when she went to the party, I am asking when she came
back?--- When she took the children to the party sometimes
I sent the
other woman to go and look for her…”
Nothing
more needs to be said about this witness’ testimony.
[26]
The appellant’s testimony on the other hand is also replete
with inconsistencies and improbabilities. His testimony
that he
had sexual intercourse with the complainant on a previous occasion
without any prior agreement or without saying anything
to her other
than her saying that they must go somewhere, is improbable. He
did not give any consideration for the sexual
intercourse on that
occasion. On 15 December 2012 he gave her R50. She did
not lodge a rape complaint on the previous
occasion but she does so
on the occasion that he gave her consideration for the sexual act.
[27]
He gave her his cellular phone as assurance that he would meet her at
the tavern. He did not meet her at the tavern,
but strangely,
he does not go and look for her or his cellular phone the following
day.
[28]
The complainant testified that she and the appellant were involved in
a romantic relationship two years prior to 15 December
2012. Her
testimony was not disputed. The appellant testified that there
was never any romantic relationship between
him and the complainant,
they only had sexual intercourse on two occasions during 2012.
[29]
In
S
v M
2006
(1) SACR 135
(SCA) at paragraph 189 it was said that:
“
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.”
After
assessing all the evidence, including the fact that the complainant
was a single witness, it is clear that it cannot be said
that
reasonable doubt about the appellant’s guilt had been excluded.
He should have been acquitted. The appeal should succeed.
[30]
I therefore make the following order:
(i)
The appeal is upheld.
(ii)
The conviction and sentence are set aside.
______________
C.J. MUSI, AJP
I
agree.
______________
M.H. RAMPAI, J
I
agree.
___________________
N. SNELLENBURG, AJ
On
behalf of Applicant: Ms. L. Smit
Instructed
by
Legal
Aid SA
BLOEMFONTEIN
On
behalf of Respondent:
Adv. D. W. Bontes
Instructed
by
Director
Public Prosecutions
BLOEMFONTEIN