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[2017] ZAKZPHC 31
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Madlala v S (VRC433/14) [2017] ZAKZPHC 31 (5 May 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Appeal
Court Case no: AR No: 251/16
Case
no: VRC 433/14
In
the matter between:
Ayanda
Madlala Appellant
and
The
State Respondent
Judgment
Lopes,
J
[1]
The appellant in this matter is Ayanda Madlala, a 29 year old male,
who was convicted in the Verulam Regional Court on the 11
September
2015 of having contravened the provisions of
s 3
of the
Criminal Law (Sexual Offences and Related Matters Amendment Act),
2007
on more than one occasion on the 2
nd
of September 2014. The learned magistrate found that there were
no substantial and compelling circumstances which would have
entitled
her to impose a lesser sentence than that prescribed in the
Criminal
Law Amendment Act, 1997
, and Mr Madlala was sentenced to undergo life
imprisonment.
[2]
This matter comes before us by way of the automatic right of appeal
available to Mr Madlala in terms of the Judicial Matters
Amendment
Act, 2013. The appeal was noted on the 20
th
April 2016.
[3]
The state relied upon the evidence of two witnesses. The first
of those was the complainant. Her evidence may be
summarised as
follows:-
a)
On the 2
nd
of September 2014 she was
a student teacher. On the way to deliver some money to her
sister in Magwaveni she stopped off at
a butchery where she was
accustomed to buy drinks and meat.
b)
At the butchery she met Mr
Madlala and several other persons who were drinking whisky.
Knowing that the complainant consumed
alcohol at home with her
boyfriend, they offered her some to drink. She declined on the
basis that she had classes and practicals
the next day.
c)
The owner of the butchery, who
knew the complainant, then poured her a glass of beer. She was
also offered vodka by Mr Madlala,
but declined his offer.
d) The complainant then received a
phone call from her boyfriend who asked her to go to her home to look
for some documents for
him. The complainant had one sip of the
beer which have been poured for her and left for her home. She
left behind
her electronic tablet, having asked those present to look
after it for her.
e)
When the complainant returned
to the butchery, Mr Madlala said that he wished to speak to her,
addressing her by name. She
indicated that she was about to
leave and return to the table, and as she sat down her phone rang.
It was Mr Madlala on the
phone and she asked him how he had got her
number. He indicated that he had taken the number whilst she was
away. He also
said that he had loaded R10 Cell C airtime onto
her phone so that they could chat.
f)
The complainant realised that
it was then after 5:00pm and her boyfriend was about to return from
work. She indicated to those
present that she had to go to
Hambanathi to collect some files that she needed to sort out.
They told her that Mr Madlala
was going there, and suggested she get
a lift with him.
g) She duly accompanied Mr Madlala in
his vehicle, having insisted that she sits in the back because she
had not previously travelled
with him. On the way he stopped at
Chelmsford and went into a bottle store, returning with a six pack of
Heineken.
He then drove on, driving increasingly more fast as
they proceeded. It was starting to get dark and the complainant
asked
Mr Madlala to drop her off near the school that she wished to
go to.
h) Mr Madlala drove faster, and did
not stop at stop streets, ensuring that the complainant could not
alight from the vehicle. Eventually
they arrived at the home of Mr
Madlala. He told her to accompany him and she alighted from the
vehicle, following him as
he went up to the house. She was
considering whether to run away or try to escape, when he came back
and spoke to her, calling
her by name and assuring her that he would
take her back. She suggested she would walk home but he
insisted that he would
rush into the house, obtain what he needed,
and return. They climbed back into the vehicle and he drove
off, again driving
very fast. He indicated that he wished to
buy some drink at Steers which was on the way to her home. As
they entered
the road where Steers is situated, he turned off onto a
gravel road driving past the sugar cane and stopping near a river.
The complainant was afraid and tried to get out of the vehicle but
the doors were locked.
i)
The appellant then produced a
firearm in order to compel her to alight from the vehicle and take
off her clothing. He then
proceeded to rape her. After doing
so, he compelled her to get back into the vehicle and he then forced
her to perform oral sex
on him. Thereafter he again raped her
in the motor vehicle.
j)
The complainant’s
cellphone then rang. The complainant told him that it was her
boyfriend, and Mr Madlala said that he was
silly and this was not a
time for him. The complainant was then forced to exit the motor
vehicle, bend over and was penetrated
anally by Mr Madlala. As
Mr Madlala had finished, the complainant’s cellphone again
rang, it was her boyfriend. As
she was crying Mr Madlala pointed his
firearm at her, told her to stop crying and not to indicate anything
out of the ordinary
to her boyfriend. She spoke to her
boyfriend and said she was on her way home.
k)
Mr Madlala then drove her back
to her home, driving very fast. When they arrived at the stop
street next to the home of the
complainant, Mr Madlala told her not
to tell anyone about what had happened because she was grown up
enough to know what they were
doing. As she alighted from the
vehicle there was a vehicle coming in the opposite direction which
stopped and Mr Madlala
drove off. The persons in the other
motor vehicle asked her why Mr Madlala had pointed a firearm at her
in the vehicle.
They had evidently seen this as they were
pulling up opposite his vehicle. One of the two persons in the other
vehicle, who had
been at school with the complainant, was informed by
her that she had been raped by Mr Madlala. One of those persons
initially
said that she was lying, but then later said it may have
been true.
l)
The complainant then went into
a nearby house to a woman who was one of her neighbours, and whom she
knew. She told her that
she had been raped and, coincidently,
during the conversation, Mr Madlala was walking outside the
complainant’s premises
and was seen by both the elderly lady
and the complainant.
m)
A certain ex-councillor then
arrived at the house and was informed of what had happened by the
elderly lady, (who turned out to
be Ms Ndlovu). He had also
witnessed Mr Madlala outside the house.
n)
As they were about to leave for
the police station in the ex-councillor’s vehicle, her uncles
arrived on the scene.
They had previously arranged to meet the
complainant at her home in order to resolve an ongoing dispute which
she was having with
her current boyfriend. The ex-councillor
explained to them what had happened and they all accompanied the
complainant to
the police station. Thereafter the complainant
was taken to Mahatma Gandhi hospital where she was examined by a
doctor.
[4]
It was suggested to the complainant in cross-examination that she had
been in a sexual relationship with Mr Madlala from approximately
October of 2013. She emphatically denied that was so. She emphasised
that Mr Madlala did not know her in the sense of knowing her
name or
the details of her family.
[5]
It was also suggested to the complainant that she had given Mr
Madlala her cellphone number, which she denied. She stated
that
she knew Mr Madlala (apparently by sight), but they had only ever
greeted one another in passing.
[6]
The remainder of the cross-examination related to the version of Mr
Madlala which was basically that he and the complainant
had had
consensual sex on the night in question. This was also
effectively denied by the complainant.
[7]
The complainant also testified that Mr Madlala had phoned her the
next day and offered to pay her R5 000.00 in compensation
for the
damages which she had sustained as a result of what he did to her.
She had made an arrangement for him to pay the
money in order that
the police could arrest Mr Madlala. That is what in fact
occurred. The complainant also testified
that Mr Madlala’s
parents, together with his wife, had approached her after his arrest
and offered to pay her damages in
the form of a cow.
[8]
It was suggested to the complainant that her motive for laying a
charge against Mr Madlala was that he had caused her to arrive
home
late, and would have been questioned by her boyfriend had she not
alleged that she had been raped.
[9]
It was put to the complainant that Mr Madlala had phoned her to
apologise because he had got her into trouble by making her
late. He
denied that he had done so in order to give her money. His
parents had made an offer to the complainant because
their son had
been arrested, and they wished to assist him.
[10]
Ms Sibongile Nomusa Ndlovu also testified. She told the court
that she was at home on the night of the 2
nd
of September 2014 when the complainant had knocked and entered her
house. She then started crying and alleged that she had
been
raped. The ex-councillor, Mr Mphemba then arrived at the house and Ms
Ndlovu conveyed to him what the complainant had said.
Ms Ndlovu
then saw Mr Madlala outside the premises and the complainant
confirmed that he was the person who had raped her.
That was
the state case.
[11]
Two witnesses testified for the defence, namely Mr Madlala and his
friend Mr Ngubane. The evidence of Mr Madlala included
the
following:-
a)
On the day in question he was
at Magwaveni in BB’s butchery when the complainant arrived. She
was happy to see him because
they had previously been in a love
relationship, and she questioned him as to why he had desisted from
contacting her. He
explained that he had lost her cellphone
number.
b)
Mr Madlala denied having loaded
any Cell C airtime onto the complainant’s phone and averred
that she had given him her number.
They had then agreed that
she would go and spend the night at his home. They had then
left the butchery, and on the way to
his home stopped off at the Fair
Breeze Hotel, where he had purchased a six pack of Heineken beer. The
complainant had accompanied
him into the bottle store. They did not
go anywhere near the Chelmsford Hotel.
c)
They had driven to his home
where they had gone into an outhouse in which he lived. In the
outhouse they had started having
sexual intercourse, but had stopped
because Mr Madlala was unhappy with the passionate noises which the
complainant was making.
They had then left his home and gone to
Steers Tavern. However the gate was closed and Mr Madlala was unable
to drive into the
premises, so he stopped on the road. The
complainant wanted to get out of the vehicle and consume her liquor.
Mr Madlala
indicated that the tavern would not allow her to do so and
he did not want to be seen drinking on the road. At the suggestion of
the complainant they had then driven to the place described by the
complainant in her evidence. The complainant then started
performing oral sex on him in the vehicle. Thereafter they
started having sexual intercourse in the motor vehicle.
The
complainant’s cellphone rang and Mr Madlala expressed
irritation at the interruption. Because Mr Madlala was unable
to satisfy himself they had then alighted from the vehicle where he
penetrated her anally with her consent.
d)
He then took her home in his
vehicle because the complainant indicated that she needed to return
to her house because she had the
key to the house, and her boyfriend
would have not been able to enter without it. Mr Madlala had driven
very fast at the request
of the complainant. When they arrived
near her home the complainant indicated to Mr Madlala that she wished
him to give her
money. He indicated he had none because he had
probably inadvertently left his wallet at his home. In fact his
wallet
was in his back pocket but the complainant did not detect it.
When she alighted the complainant ran off, apparently irritated
with
Mr Madlala.
e)
Mr Madlala waited for her for
approximately 15 minutes and went into a home of a friend of his who
lived nearby. His friend
had also been present at the
butchery. He told his friend that he had been waiting for the
complainant. They then decided
to walk to the butchery.
On the way his friend pointed out to Mr Madlala where the complainant
lived. He then saw Ms Ndlovu
and Mr Mphemba. He did not see the
complainant again that night.
[12]
Mr Madlala stated in cross-examination that he had phoned the
complainant the next day and asked her why she had made a fool
of him
by making him wait outside the house. She said that he had
placed her in a difficult position, but did not explain
to him that
she had opened a charge against him. The only time the matter of
damages and money had been raised was when his parents
went to offer
her the payment of a cow for damages after Mr Madlala had been
incarcerated in Westville prison. He admitted
having apologised
to her telephonically but said that he only did so because she had
alleged that he created a problem for her.
[13]
Mr Ngubane testified that he had been employed together with Mr
Madlala during the period from 2012 until the end of 2013.
During
that time he had met Mr Madlala’s girlfriend whose name was
Nombuso (the complainant). He had seen them kissing on
a number of
occasions. Mr Ngubane also testified as to a relationship which
he had had with the complainant but it is neither
necessary nor
desirable to deal with that aspect.
[14]
Mr
Matthews
,
who appeared for Mr Madlala criticised the state evidence. He
pointed in particular to the following:
a)
None of the persons who were
present at the butchery, and who were known to the complainant, were
called to give evidence.
b)
None of the persons who the
complainant alleged had seen the firearm carried by Mr Madlala were
called to give evidence, in spite
of the fact that at least one of
them was known to the complainant, having been a former school pupil.
c)
The evidence of Ms Ndlovu, even
if true, provided no corroboration for the complainant’s
evidence of the actual commission
of the crime. In this regard Mr
Matthews
emphasised the need for corroboration of a single witness’s
evidence. Even the fact that the complainant had been crying
or
clearly upset in the eyes of Ms Ndlovu, was no corroboration for the
allegations of a lack of consent on the part of the complainant.
[15]
When pressed on the improbability that the complainant would have
agreed to go and spend the night at the home of Mr Madlala,
when:-
a)
she was in a relationship with
her boyfriend, with whom she was living; and
b)
she had made an arrangement to
meet her uncles at her home that evening in order to help resolve a
dispute with her boyfriend;
Mr
Matthews
submitted
that if one considered the amount of alcohol which Mr Madlala alleged
the complainant had consumed (more than three double
whiskies and
approximately five cans of beer) it could come as no surprise that
she may have behaved in a manner which was inconsistent
with her
normal mode of behaviour or in a manner which was improbable.
[16]
Mr
Matthews e
mphasised
the fact that whatever the credibility accorded to the complainant,
and however much her evidence maybe regarded as probable,
the court
was required to assess the evidence of Mr Madlala, and in the event
that it was found to be reasonably possibly true,
he had to be
acquitted. In this regard the evidence of Mr Madlala followed
very closely to that of the complainant with regard
to a large
portion of the time which they spent together. The essential
deviation was the question of consent. No firearm had been
found in
the possession of Mr Madlala when he was arrested.
[17]
It is indeed unfortunate that the prosecutor in the court a quo did
not deal with the missing witnesses referred to above.
Had he done
so, or had he explained why they could not be found, or indeed had
he even made them available to the defence,
the trial may have had a
more certain result. Indeed, it is puzzling why the learned
magistrate did not seek to enquire from the
state as to whether the
witnesses were going to be called or not. This could have
provided the learned magistrate with the
opportunity to ensure that
they were called, if they were available. The learned magistrate
would have had the power to do this
because, in my view, the evidence
of those witnesses may well have been essential to a just decision in
this case.
See:
s 167
of the
Criminal Procedure Act,
1977
.
[18]
The failure of the state to ensure that these issues before the court
were properly ventilated leaves one with what may be
described as ‘a
sense of disquiet’. Had the learned magistrate been alerted to
the reasons for the non-appearance of
those witnesses, or enquired
herself in order to ascertain why that was the case, the result of
the case would have been preferable,
whichever way it went.
[19]
In all circumstances, and not withstanding what I would regard as a
seemingly coherent and probable version of events as testified
to by
the complainant, it would be unsafe to convict Mr Madlala, given that
his evidence should be viewed as reasonably possibly
true.
[20]
Mr
Nel
who appeared for the state, submitted that he had explored the record
three times, but had been unable to come to the conclusion
that the
evidence of Mr Madlala could be dismissed as false. He considered
that the appeal should succeed and that the conviction
and sentence
could not stand.
[21]
In all the circumstances I make the following order:
a)
The appeals against both
conviction and sentence succeed.
b)
The order of the learned
magistrate is set aside and replaced with the following;
“
The
accused is found not guilty”
______________
G.
Lopes J
I
agree.
______________
T.
Poyo-Dlwati J
I
agree.
______________
P.
Koen J
Date
of hearing: 21
st
April 2017
Date
of Judgment: 5
th
May 2017
Counsel
for the Appellant: Mr S
Matthews
(Instructed by Vasantha Naidoo and Associates)
Counsel
for the Respondent: Mr C
Nel
(Office of the
Attorney General)