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[2017] ZAKZPHC 33
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Nzimande v S (AR21/2017) [2017] ZAKZPHC 33 (29 August 2017)
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IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL DIVISION,
PIETERMARITZBURG
JUDGMENT
NOT
REPORTABLE
CASE
NO: AR21/2017
In
the matter between:
NELSON SANELE
NZIMANDE APPELLANT
and
THE
STATE RESPONDENT
Coram : Seegobin J et
Chili J
Heard : 22 August 2017
Delivered
: 29 August 2017
ORDER
On
appeal from the Regional Court, Pietermaritzburg (sitting as a court
of first instance):
The
appeal is upheld and the conviction and sentence are set aside.
SEEGOBIN
J:
[1]
The appellant, a 29 year old male, was convicted in the regional
court, Pietermaritzburg, of the rape of a young girl who was
11 years
old at the time. The charge sheet alleged that the complainant
was raped more than once by the appellant during
October 2012.
The provisions of section 51(1) Part 1 of Schedule 2 of the
Criminal
Law Amendment Act 105 of 1997
applied and the appellant was sentenced
to life imprisonment. The present appeal is against conviction
and sentence.
[2]
The appellant was legally represented throughout the trial. He
pleaded not guilty and while alleging that he knew the
complainant by
sight, he denied the allegations of rape against him.
[3]
The State’s case rested on the evidence of the young
complainant, her young brother who was 16 years old when he
testified,
their aunt
S D (‘D’)
who resided close by and the doctor who
examined the complainant later on and compiled the J88 medical form.
The accused testified
in his defence and closed his case without
calling any witnesses. In addition to all this evidence, the
court
mero motu
called
two other witnesses in order to clarify certain issues which arose in
the course of the trial. The first witness was
a
Miss
Z M
who was allegedly a friend of the
accused and who he visited from time to time and, the second witness
was the mother of the complainant.
The complainant’s
mother confirmed that both she and Ms M were friends of the accused
and that he did visit their homesteads
on occasion.
[4]
On the evidence it became common cause that the complainant and the
appellant knew each other and that the appellant was accustomed
to
visiting her mother and a neighbour in the area. It was also
common cause that the complainant was penetrated vaginally
and that
she had sustained an internal injury to her hymen at the 7 o’clock
position. The only real dispute was whether
the appellant was
the culprit.
[5]
The complainant testified that on two occasions in October 2012, the
appellant who she referred to as ‘Masa’ (the
appellant
did not deny that he was known by this name) came to her house on the
pretext of looking for her mother. He would
then chase her
around until he caught her. On the first occasion he raped her
near a rondavel. To prevent her from
screaming out, he placed a
towel over her mouth. When the complainant returned to her home
after the incident, she noticed
blood on her panties and on the pair
of jeans she wore. Fearing that her mother will notice the
blood on her clothing, the
complainant proceeded to dispose of these
items in the toilet pit.
[6]
A similar incident occurred on the second occasion. On this day
as well the appellant arrived at the complainant’s
home looking
for her mother. He then started chasing the complainant who
tried to flee from him. After catching hold
of the complainant,
the appellant once again proceeded to rape her. The second
incident took place near the toilet.
When he finished he
informed the complainant that if she told anyone about what had
happened he would shoot her. On returning
home, the complainant
again noticed blood on her clothing. She once again disposed of
the clothes in the toilet pit.
She testified that she did not
tell her mother anything for fear that the appellant would carry out
his threat.
[7]
The complainant had testified that on the first occasion her brother
T
was at
home and she believes that he saw what happened to her because at a
later stage he informed her accordingly. In his
evidence,
however, T did not confirm that he witnessed the appellant raping the
complainant. He does confirm, however, that
he saw the
appellant chasing after the complainant and that they disappeared
towards the opening in the fence. The complainant
re-emerged
about 30 minutes later. It was not clear from his evidence
which incident he was really referring to. It
is also not clear
from T’s evidence that he did in fact inform the complainant
that he saw what happened to her, in other
words, that he saw the
appellant raping her.
[8]
As correctly submitted by Mr
Ngubane
on behalf of the appellant, there are material contradictions in the
evidence of the complainant and her brother. Additionally
the
complainant has contradicted herself in certain respects. For
instance, she testified that on the first incident no one
was at home
except for herself and no one witnessed that rape incident. On
the second occasion her brother was present and
had witnessed the
incident. However, under cross-examination she stated that in
fact on the second occasion her brother was
not there and that he did
not witness the second incident of rape but only the first. It was
submitted on behalf of the appellant
that these contradictions give
rise to reasonable doubt as to which incident of rape was actually
witnessed by T, if indeed he
witnessed anything at all, and whether
sexual intercourse had taken place as alleged by the complainant.
[9] Despite the
contradictions and self-contradictions in the evidence, the learned
magistrate concluded that the evidence of the
complainant was given
‘in the most clear and satisfactory manner in all material
respect and the evidence was not self-contradictory’.
She
further found that the complainant’s evidence was corroborated
by that of her brother.
[10]
In my view, the contradictions in the evidence are glaring and no
attempt was made either by prosecutor or the court to clarify
the
evidence. Had the learned magistrate analysed all the evidence
carefully she would have found that the evidence was unreliable
for a
safe conviction. In any matter in which contradictions and
inconsistencies arise, the aim is not to establish which
of the
versions is correct but rather to satisfy oneself that the witness
could err, either because of a defective recollection
or because of
dishonesty. In
S
v Mafaladiso and Others
[1]
,
Oliver JA set out the approach to be followed when a court is faced
with evidence of this nature. The following approach
to
contradictions between two witnesses and contradictions between the
versions of the same witnesses (such as,
inter
alia
,
between his/her
viva
voce
evidence and a previous statement), is identical.
Firstly,
it must be carefully determined what the witnesses actually meant to
say on each occasion, in order to determine whether
there is an
actual contradiction and what is the precise nature thereof. In this
regard the adjudicator of fact must keep in mind
that a previous
statement is not taken down by means of cross-examination, that there
may be language and cultural differences
between the witness and the
person taking down the statement which can stand in the way of what
precisely was meant, and that the
person giving the statement is
seldom, if ever, asked by the police officer to explain their
statement in detail.
Secondly,
it must be kept in mind that not every error by a witness and not
every contradiction or deviation affects the credibility
of a
witness. Non-material deviations are not necessarily relevant.
Thirdly,
the contradictory versions must be considered and evaluated on a
holistic basis. The circumstances under which the versions
were made,
the proven reasons for the contradictions, the actual effect of the
contradictions with regard to the reliability and
credibility of the
witness, the question whether the witness was given a sufficient
opportunity to explain the contradictions -
and the quality of the
explanations - and the connection between the contradictions and the
rest of the witness' evidence, amongst
other factors, to be taken
into consideration and weighed up.
Lastly,
there is the final task of the trial Judge, namely to weigh up the
previous statement against the
viva voce
evidence, to consider all the evidence and to decide whether it is
reliable or not and to decide whether the truth has been told,
despite any shortcomings.
[11] In the present
matter I consider that the evidence of the complainant and her
brother was adduced in a most haphazard and unsatisfactory
manner,
the witnesses not only contradicted themselves but also each other
and no effort whatsoever was made to clarify the issues
as they
arose. The contradictions were material and affected the
overall credibility of the witnesses. The learned
magistrate’s
finding that the evidence was clear and satisfactory in all material
respects was arrived at without conducting
a careful assessment of
all the evidence before her. In this regard I consider that she
misdirected herself. In my
view, the learned magistrate ought
to have entertained serious doubts about the guilt of the appellant
having regard to the material
contradictions which arose in the
evidence before her. It follows, in my view, that the
conviction cannot stand and must
be set aside.
ORDER
[12] The order I propose
is the following:
“
The
appeal is upheld and the conviction and sentence are set aside.”
_______________
_______________ I
agree
CHILI J
Date of Hearing : 22
August 2017
Date of Judgment : 29
August 2017
Counsel for Appellant : A
Ngubane
Instructed by : MN
Mbanjwa Attorneys
Counsel for Respondent :
Mr Truter
Instructed by : Director
of Public Prosecutions, Pietermaritzburg
[1]
2003(1) SACR 583 (SCA).