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Gumede v S (AR545/2016) [2017] ZAKZPHC 29 (7 March 2017)

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Criminal Law
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Brief Summary

Criminal Law — Rape — Appeal against conviction — Inadequate trial record — Appellant convicted of multiple counts of rape; trial record missing key evidence — Appellant's conviction set aside due to inability to properly assess the evidence without a complete record — Single witness testimony corroborated by medical evidence insufficient to uphold conviction in absence of complete trial record.

Comprehensive Summary

Summary of Judgment


1. Introduction


This was an appeal in the KwaZulu-Natal Division of the High Court, Pietermaritzburg, arising from criminal proceedings in the Regional Court, Ingwavuma. The appellant, Clement Thomas Gumede, appealed against his conviction for rape, while the respondent was the State.


The appellant had been tried in the regional court on a charge of rape allegedly committed on 10 May 2007 at the Makhonyeni area, with the charge-sheet further alleging that the rape occurred on multiple occasions and expressly referencing the minimum-sentence regime under section 51(1) of the Criminal Law Amendment Act 105 of 1997. He pleaded not guilty, but admitted sexual intercourse with the complainant, contending that it was consensual.


On 3 February 2009, the regional magistrate convicted the appellant and, finding no substantial and compelling circumstances, imposed life imprisonment. Leave to appeal against conviction was granted by the trial court. Although leave to appeal against sentence had been refused, the High Court noted that an automatic right of appeal in respect of sentence arose because the regional court had imposed life imprisonment.


A significant procedural complication was that the appeal record was materially incomplete due to a recording failure: the record did not contain the complainant’s evidence nor the appellant’s evidence-in-chief. The appeal therefore concerned both the effect of an incomplete record on appellate scrutiny and the merits of conviction and sentence as they could be evaluated from what remained.


2. Material Facts


It was common cause that the appellant and the complainant had sexual intercourse; the dispute at trial and on appeal concerned whether the intercourse was consensual. The complainant’s version (as summarised in the judgment) was that she had not known the appellant before 9 May 2007, when he arrived at the homestead where she was present with her friend T M (referred to as her “sister”) and another person B. The appellant introduced himself and made romantic advances which she did not accept.


On the complainant’s account, during the day the appellant gave her child money to buy airtime, which was then loaded onto her phone. She stated that she later communicated, in the presence of T M, that she did not reciprocate his feelings. She further described an earlier incident in which the appellant allegedly pulled her by the arm in an attempt to persuade her to go with him, and that T M intervened, assisted her into the house, and they locked the door when the appellant tried to force it open.


The complainant’s account continued that the appellant returned at approximately 20h00, claimed she had made promises to him, and left after she denied this. Later that night, at approximately 23h00, she went to a kitchen situated about 30 metres from the house and was allegedly attacked by the appellant, dragged away, and forced to walk to his home where he raped her on at least four occasions. She returned to her residence in the early hours, informed T M, and the police were called; she was then taken to Bethesda Hospital.


The medical evidence admitted in the form of a J88 was described as supporting the complainant’s version to a limited extent. The part relied upon was the doctor’s recording, by diagram, of bruising on the complainant’s right elbow and left knee.


From the appellant’s side (as reflected in the available record and the judgment’s discussion), he accepted that he first met the complainant on the day in question. His defence was that the intercourse occurred with consent and that the complainant fabricated a rape allegation. The judgment recorded that his explanation for the complaint was that the complainant did not want others to learn of the intercourse because it might reach the ears of “other lovers”.


A key factual feature of the appeal was that parts of the trial record were missing due to mechanical or administrative failure. The complainant’s evidence and the appellant’s evidence-in-chief were not transcribed. The High Court accepted that reconstruction was extremely unlikely, given the time elapsed and the unavailability of the magistrate, and proceeded on the basis of the material that remained in the record together with the content of the trial court’s judgment as it related to the evidence.


3. Legal Issues


The appeal raised two central questions.


The first was a procedural and fairness issue involving the adequacy of the record for purposes of appeal. This concerned the application of law to procedural facts: whether the defects in the record were so serious that a proper consideration of the appeal was not possible, and whether that should result in the conviction being set aside.


The second was a merits-based issue: whether, on the remaining record and the trial court’s stated reasoning, the State had proved lack of consent beyond reasonable doubt. This involved an assessment that combined fact, credibility and probabilities, and the application of legal standards relevant to evaluating single-witness evidence and corroboration.


A further issue arose in relation to sentence: whether the regional magistrate properly applied the minimum-sentence framework and, in particular, whether there had been a proper enquiry into substantial and compelling circumstances, and whether any misdirection entitled the High Court to interfere. This was primarily an issue of sentencing discretion, and whether the trial court’s approach constituted a misdirection rendering the appellate court “at large” to reconsider sentence.


4. Court’s Reasoning


On the incomplete record, the High Court applied the approach articulated in S v Chabedi 2005(1) SACR 415 (SCA): the record must be adequate for proper consideration of the appeal, not perfect, and whether deficiencies are fatal depends on the nature of the defects and the issues to be decided. The court accepted that reconstruction would be futile given the elapsed time and the circumstances described to it. It therefore proceeded to determine whether guilt had been established on what remained available.


In evaluating conviction, the court noted that the complainant was effectively a single witness on the act of rape, although the magistrate had regarded certain aspects as corroborated by T M (based on what the trial court recorded of that evidence). The High Court observed that the trial magistrate’s judgment gave little explicit treatment of witness credibility, aside from clearly rejecting parts of the appellant’s evidence, but the magistrate had shown awareness of the single-witness position by setting out what he regarded as corroborative material.


The High Court then assessed the evidence it could consider: the complainant’s version as reflected in the judgment, the J88 (noting the bruising), and the available cross-examination of the appellant. The court reasoned that the appellant’s version contained inconsistencies and improbabilities, including his suggestion that the complainant could have fallen in love with him “in a week” despite both versions indicating that he had first met her on the relevant day. The court also relied on the appellant’s acknowledgement that the complainant had stated in front of T M that she was not in love with him, which the court considered inconsistent with a narrative of consensual intimacy developing immediately thereafter.


The court further attached significance to the fact that a version had been put to T M suggesting she agreed to phone the appellant’s brother for an appointment later that day, a proposition denied by the witness; yet the appellant’s brother was not called to testify on what the court characterised as a crucial aspect, and there was no explanation recorded for his absence. This formed part of the court’s broader improbability assessment of the defence version.


In contrast, the court found the complainant’s account more probable. It reasoned that it was “wholly improbable” that the complainant would accept a proposal of love from a stranger met for the first time that day, especially in circumstances where she had rejected advances earlier and required assistance from T M to avoid the appellant’s intentions. The court regarded the bruising recorded in the J88 as corroborative of the complainant’s version that force and assault occurred, and concluded there was no reason to reject her evidence. The court rejected the appellant’s explanation for the rape complaint—namely, that the complainant wished to conceal intercourse from other lovers—as insufficiently plausible in the circumstances.


On sentence, the High Court held that the trial magistrate did not appear to consider the concept of substantial and compelling circumstances in a meaningful way and did not make an effort to ascertain the appellant’s personal circumstances, despite the State seeking the maximum sentence. The court considered both the defence representative’s approach and the magistrate’s approach inadequate on the sentencing enquiry, and treated this as a misdirection, entitling it to interfere and reconsider sentence.


The court also evaluated the “multiple rapes” allegation and concluded that the evidence was not entirely clear as to a series of separate and distinct rapes over time. It accepted that the complainant attempted to fight off the appellant and that the events appeared to be interrupted and resumed, leading the court to treat the conduct as one act of rape interrupted briefly, rather than multiple separate rapes for sentencing purposes. Taking these considerations together, the court substituted the life sentence with a determinate sentence.


5. Outcome and Relief


The High Court dismissed the appeal against conviction and confirmed the conviction for rape.


It set aside the sentence of life imprisonment and replaced it with twenty (20) years’ imprisonment, antedated to 3 February 2009. The judgment as provided did not record a separate costs order, which is consistent with the criminal appellate context in which costs orders are not routinely made.


Cases Cited


S v Chabedi 2005(1) SACR 415 (SCA)


S v Collier 1976(2) SA 378 (C)


S v S 1995(2) SACR 420 (T)


Legislation Cited


Criminal Law Amendment Act 105 of 1997, section 51(1)


Criminal Procedure Act 51 of 1977, section 309(1)(a) (first proviso)


Criminal Procedure Act 51 of 1977, section 304(4)


Rules of Court Cited


No rules of court were cited in the judgment.


Held


The record of the trial proceedings was materially incomplete due to missing transcriptions of the complainant’s evidence and the appellant’s evidence-in-chief. Reconstruction was regarded as futile on the facts placed before the court. Applying the standard that a record must be adequate rather than perfect, the High Court proceeded to determine the appeal on the material available.


On the merits, the High Court held that the complainant’s evidence, though that of a single witness, was sufficiently supported by the bruising recorded in the J88 and by the inherent probabilities, while the appellant’s version was improbable and undermined by inconsistencies. The conviction for rape was therefore confirmed.


On sentence, the High Court held that the regional magistrate misdirected himself by failing to conduct an adequate enquiry into substantial and compelling circumstances and by failing to properly ascertain the appellant’s personal circumstances in a case where the State sought the most severe sentence. Treating the conduct as one act of rape interrupted rather than multiple distinct rapes for sentencing purposes, the court substituted the life sentence with twenty years’ imprisonment, antedated to 3 February 2009.


LEGAL PRINCIPLES


The adequacy of an appeal record is assessed by whether it permits a proper consideration of the appeal, not whether it is a perfect record of everything said at trial; whether defects are fatal depends on the nature of the defects and the issues on appeal, as articulated in S v Chabedi 2005(1) SACR 415 (SCA) (with reference to S v Collier 1976(2) SA 378 (C) and S v S 1995(2) SACR 420 (T)).


Where a trial court materially misdirects itself in sentencing—particularly by failing to undertake an adequate enquiry into substantial and compelling circumstances and the offender’s personal circumstances in the context of prescribed minimum sentences—an appellate court may be at large to interfere with the sentence and substitute an appropriate sentence.


In evaluating a rape case that effectively turns on consent and credibility, the court may assess the evidence through probabilities and internal consistency, and may take into account limited medical corroboration (such as bruising recorded on a J88) together with the implausibility of the accused’s explanation for the complainant’s report to the police, while remaining mindful of the position that the complainant may be a single witness on the central incident.

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[2017] ZAKZPHC 29
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Gumede v S (AR545/2016) [2017] ZAKZPHC 29 (7 March 2017)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
PIETERMARITZBURG
KWAZULU
NATAL DIVISION, PIETERMARITZBURG
Case
No. AR 545/2016
In
the matter between:
Clement
Thomas
Gumede                                                                                      Appellant
and
The
State                                                                                                            Respondent
Judgment
Lopes
J
[1]
The appellant in this matter was charged in the regional court at
Ingwavuma of one count of rape, in that on the 10
th
May 2007 and at the Makhonyeni area he unlawfully had sexual
intercourse with A M without her consent. The charge sheet further

alleged that this had occurred on multiple occasions, and the charge
sheet referred to the provisions of
s 51(1)
of the
Criminal Law
Amendment Act 1997
.
[2]
Mr Gumede pleaded not guilty at the outset of the trial and his
attorney, Mr Sithole, recorded that Mr Gumede admitted having
sexual
intercourse with Miss M, but that it was consensual.
[3]
The matter was heard before Mr S H Mundree. On the 3
rd
February 2009 he convicted Mr Gumede as charged, and, finding that
there were no substantial and compelling circumstances which
would
have entitled him to impose a lesser sentence, he sentenced Mr Gumede
to life imprisonment.
[4]
The matter comes before us by way of leave to appeal against the
conviction, granted by the learned magistrate. During the conduct
of
the trial:
(a) Miss M gave evidence.
(b) In her evidence she
referred to the presence of her friend, whom she referred to as her
sister, one T M, who was present on
the day, and who witnessed some
of the interchanges between Miss M and Mr Gumede.
(c) The evidence of Ms M
was apparently given on the 29
th
January 2009. After she
had testified and was cross-examined, Mr Gumede testified in chief.
(d) Due to some
administrative or mechanical problem, the evidence of Miss M and the
evidence in chief of Mr Gumede are not contained
in the record.
[5]
Counsel before us were
ad
idem
that it was unlikely in the extreme that the record could be
reconstructed. Mr Marimuthu, who appeared for Mr Gumede, informed
the
court that Mr Mundree had left the employment of the state,
apparently after charges were preferred against him. Given that
the
incident had occurred almost 10 years ago on the 10
th
May 2007 and the witnesses had testified in 2009, counsel were of the
view that it would be futile to seek to reconstruct the record.
Mr
Marimuthu submitted that because of the omissions of the record the
conviction fell to be set aside and, because a technical
irregularity
had occurred, the state could reinstitute the charges.
[6]
Mr Marimuthu submitted that although it was unlikely that the
evidence of Ms Mahlaba would have in any way assisted Mr Gumede’s

case, there was always the possibility that there was something in
her evidence that would assist him. It is evident from the record

that the learned magistrate was alive to the mechanical problem of
the recording. This is evident because the prosecutor referred
to the
fact that the questions and answers that he had previously posed to
Mr Gumede had not been recorded and asked the magistrate
whether he
should start afresh, and the magistrate instructed him to do so.
[7]
We were referred to
S v Chabedi 2005(1) SACR 415 (SCA)
in
which Brand JA stated in paragraphs 5 and 6:
‘
On appeal, the
record of the proceedings in the trial court is of cardinal
importance. After all, that record forms the whole basis
of the
re-hearing by the Court of appeal. If the record is inadequate for a
proper consideration of the appeal, it will, as a rule,
lead to the
conviction and sentence being set aside. However, the requirement is
that the record must be adequate for a proper
consideration of the
appeal; not that it must be a perfect recording of everything said at
the trial. As has been pointed out in
previous cases, records of
proceedings are often still kept by hand in which event a verbatim
record is impossible (see e.g.
S
v Collier 1976(2) SA 378 (C) at 379 A-D and S v
S 1995(2)
SACR 420
(T) at 423 b-f
.
The question whether
defects in a record are so serious that a proper consideration of the
appeal is not possible, cannot be answered
in the abstract. It
depends, inter alia, on the nature of the defects in the particular
record and on the nature of the issues
to be decided on appeal.’
[8]
Mr Paver, who appeared for the state, submitted that:
(a) The question was
whether the remaining evidence was sufficient to show that the sexual
intercourse was not consensual.
(b) Without the evidence
of Ms M, the complainant was a single witness to the alleged rape. As
Mr Gumede was the only witness for
the defence, what this court has
to decide is whether the magistrate had analysed the evidence and
shown that the appellant was
unreliable.
[9]
In my view there is no point in referring the matter back to the
learned magistrate for reconstruction, because it seems on
the facts
before us that such a reconstruction will not be able to be made. It
is necessary to determine whether the guilt of the
appellant has been
established.
[10]
The learned magistrate in his judgment gave no indication of the
credibility of any of the witnesses who testified before him,
save
that he clearly rejected some of the evidence of Mr Gumede. The
magistrate was clearly aware that Ms M was a single witness
because
he made a point of setting out the evidence of Ms M which
corroborated the evidence of the complainant.
[11]
In the circumstances what remains is the evidence of the complainant
and the contents of the J88 document which was admitted
in evidence,
and the cross-examination of Mr Gumede. The only part of the J88
document which is supportive of the complainant’s
version is
the indication by the doctor of the diagram of bruising on the
complainant’s right elbow and her left knee.
[12]
In assessing the evidence of Mr Gumede, there are a number of
inconsistencies and improbabilities.
(a) at page 24 lines 13
to 14 of the record Mr Gumede confirms that the first time he saw the
complainant was on the day in question.
This is confirmed in the
evidence of Ms M. When cross-examined Mr Gumede suggested, wholly
improbably, that the complainant had
fallen in love with him ‘in
a week’
(b) Mr Gumede admitted in
cross-examination that the complainant had said in front of Ms M that
she was not in love with him. Mr
Gumede admitted that he had left the
complainant’s premises after this, but denied that he was
unhappy, saying that he was
simply not laughing. He then suggested
that the complainant said that he should return to her household in
the afternoon.
(c) In cross examination
of Ms M, Mr Gumede’s attorney put to her that she had agreed
with Mr Gumede that she would phone
his brother on his brother’s
cellphone for an appointment for later in the day. That was denied by
Miss M and she also denied
that Mr Gumede’s brother ever
received a call from her. Mr Gumede’s brother was not called to
testify on this crucial
aspect and there was no explanation at the
end of Mr Gumede’s evidence by his legal representative
indicating that Mr Gumede’s
brother was not available.
[13]
The evidence of the complainant was basically as follows:
(a) On the 9
th
May 2007 she was at the Khumalo homestead with Ms M and one B and;
(b) Mr Gumede arrived,
introduced himself as Thomas and started proposing love to her;
(c) She had never seen
him prior to that day;
(d) When her child
returned from school Mr Gumede gave the child money and the child
went to buy airtime which Mr Gumede then loaded
onto the
complainant’s cellphone. The complainant then had a discussion
with Mr Gumede in the presence of Ms M and indicated
to Mr Gumede
that she did not reciprocate the feelings which were expressed
towards her;
(e) Mr Gumede returned
later at approximately 8pm and suggested to Ms M that the complainant
had made promises to him. The complainant
denied that he had done so,
and he left.
(f) At about 11pm that
night the complainant left the house and went to the kitchen which is
about 30 metres from the house. Whilst
she was in the kitchen she was
attacked by Mr Gumede who dragged her and forced her to walk to his
home where he raped her on at
least four occasions.
(g) During the assault
upon her the complainant sustained bruising to her arm. The
altercation between the complainant and Mr Gumede
earlier in the day
had involved him pulling her by the arm in order to persuade her to
go with him, and he was stopped from doing
so by Ms M. Ms M then
helped her into the house and shut the door. Mr Gumede tried to open
the door forceably, but they locked
it.
(h) When the complainant
returned to her place of residence in the early hours of the next
morning she told Ms M what had happened,
and the police were called
and then took the complainant to Bethesda Hospital.
[14]
It seems wholly improbable that the complainant would have accepted a
proposal of love from a complete stranger whom she had
met for the
first time on the day in question when he arrived at their homestead.
This improbability is increased when considering
that the complainant
rejected the advances of Mr Gumede and had to be assisted by Ms M in
extracting herself from his intentions
and being able to go inside.
Mr Gumede admits that the complainant initially rejected his advances
in the presence of Ms M.
[15]
The only reason advanced by Mr Gumede as to why the complainant
complained to the police about his conduct (when the intercourse
had
been consensual),  was that she did not want others to know that
she had had intercourse with Mr Gumede because that could
have got to
the ears of her other lovers.
[16]
In my view, although the complainant was a single witness, her
evidence is corroborated by the bruises recorded on the J88.
There is
no reason to reject her evidence. The evidence of Mr Gumede on the
other hand seems wholly improbable, and I would reject
it.
[17]
Leave to appeal was granted on Mr Gumede’s conviction but
refused on the question of sentence. However, Mr Gumede would
have an
automatic right to appeal against sentence because the sentence
imposed upon him was life imprisonment in the Regional
court. (See
the first proviso to
s 309
(1)(a) of the
Criminal Procedure Act,
1977
.
[18]
In his judgment on sentence the learned magistrate did not appear to
consider the concept of substantial and compelling circumstances

which would have entitled him to have imposed a sentence of less than
the minimum prescribed of life imprisonment for  a multiple

rape. The circumstances of Mr Gumede are that he was 28 years old,
unmarried and with a one-year old child. He lived with his parents
in
the Mkonyeni area and had been educated up to the level of standard
7. He was employed as a cane-cutter earning approximately
R25 per
day.
[19]
The learned magistrate made no effort to ascertain the personal
circumstances of Mr Gumede, and his legal representative did
not more
than request the court to consider his special circumstances. In my
view that approach was wholly inadequate on the part
of Mr Gumede’s
legal representative and on the part of the learned magistrate. The
sentence which the state wanted the court
to impose was the maximum
sentence permissible in law. In those circumstances some
investigation should have been carried out into
the personal
circumstances of Mr Gumede. In those circumstances I am of the view
that the learned magistrate misdirected himself
and this court is at
large with regard to sentence.
[20]
Alternatively then, this court is also accordingly entitled to invoke
its review powers with regard to the sentence imposed
upon Mr Gumede.
(See
s 304
(4) of the
Criminal Procedure Act, 1977
). The evidence of
the multiple rapes is not entirely clear inasmuch as it appears that
the complainant attempted to fight off Mr
Gumede during the rape
process and it was interrupted and started again. This does not
appear to have been a series of separate
and distinct rapes committed
over a period of time.
[21]
In all the circumstances I would be inclined to treat the multiple
rapes as one act of rape which was interrupted for brief
periods of
time when the complainant sought to extricate herself from the
clutches of Mr Gumede.
[22]
In the premises I would make the following order:
(a)
The
conviction of Mr Gumede in the Regional court on one count of rape is
confirmed, and his appeal against that conviction is dismissed.
(b)
The
sentence of life imprisonment is set aside and replaced with the
following:
‘
The accused is
sentenced to twenty (20) years imprisonment.’
(c)
The
sentence is antedated to the 3
rd
February 2009.
_________________
Lopes
J
I
agree.
_________________
Hadebe
AJ
Counsel
for the appellant: Mr P Mkumbuzi
Instructed
by: Justice Centre
333
Smith Street
Durban
Counsel
for the respondent: Mr D A Paver
Instructed
by: Director of Public Prosecutions
3
rd
Floor High Court Building
Church
Street
Pietermaritzburg
Date
of hearing: 20 February 2017
Date
of Judgment: 7 March 2017

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