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[2017] ZAKZDHC 40
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Ngwazi v S (AR686/2016) [2017] ZAKZDHC 40 (1 September 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
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO: AR686/2016
In
the matter between:
HENRY
SANDILE
NGWAZI
Appellant
versus
THE
STATE
Respondent
APPEAL
JUDGMENT
Delivered on: 01
September 2017
ABRAHAM
AJ
[1]
The appellant was charged with one count of kidnapping and one count
of Rape. In respect of the kidnapping charge it was
alleged by
the state that on or about 19 August 2011 and at or near Umlazi
Township in the Regional Division of KwaZulu Natal,
the appellant
unlawfully and intentionally deprived N N of her liberty by taking
her by force to his house and keeping her captive.
In respect
of the Rape charge which was read with the provisions of section
51(1) and schedule 2 of the
Criminal Law Amendment Act 105 of 1997
as
amended it was alleged that on the same date and at the same place
the appellant unlawfully and intentionally committed an act
of sexual
penetration with the complainant by inserting his penis into her
vagina without her consent and that in doing so he inflicted
grievous
bodily harm on her.
[2]
The state called the evidence of three witnesses; N N who is the
complainant (“the complainant”); Mrs Nt N, the
mother of
the complainant and the first report (“the mother”); and
three Dr Sunthrie Sagen Naidoo (“Dr Naidoo”),
a full time
medical officer and district surgeon in the employ of Department of
Health conducted who a medical examination of the
complainant on 20
August 2011.
[3]
The facts which are common cause or not seriously disputed can be
briefly summarised as follows:
·
The
complainant and the appellant were known to each other.
·
There
had being an dispute involving three CD’s which the complainant
had borrowed from the appellant and subsequently lost
but this issue
had being resolved after the intervention of the complainant’s
mother who, during July 2011 offered to compensate
the appellant for
the CD’s but the appellant declined to accept payment.
·
On
19 August 2011 and at about 7pm the complainant left her home and met
the appellant.
·
She
thereafter accompanied him to his home.
·
At
the home of the appellant:-
I.
The complainant and the
appellant had sexual intercourse on at least one occasion;
II.
The appellant assaulted the
complainant inflicting various injuries upon her.
·
They
spent the night together and the complainant departed on foot early
the next morning and returned to her home.
·
Upon
her arrival at home the complaint made a report to her mother.
·
Later
that day on 20 August 2011;
I.
A report was made to the South
African Police;
II.
At about 11h30 the complainant
was medically examined by Dr Naidoo.
[4]
The appellant said he and the complainant had being lovers since
2010. He had met her when she was employed has a domestic
worker at a neighbouring property.
[5]
The complainant had borrowed and lost three of his CD’s but
this dispute had being resolved prior to the incident.
[6]
On 19 August 2011 the appellant telephoned the complainant expressing
the wish to meet with her and they agreed to meet that
evening.
[7]
That the evening the complainant left her home and they met nearby at
a river after which they walked to appellant’s residence
where:-
·
They
watched television;
·
The
complainant had something to eat;
·
They
then retired to the appellant’s bedroom;
·
They
had sexual intercourse;
·
The
complainant’s condition made the appellant suspicious;
·
Upon
questioning the complainant about his suspicions, the complainant
admitted having had sexual intercourse with another man earlier
that
same day;
·
The
appellant became incensed and assaulted the complainant, inter alia
with a mental aerial inflicting upon her the injuries which
Dr
Naidoo, upon his examination found on the complainant and recorded on
the form J88; and
·
The
complainant nevertheless spend the night and left early the next
morning.
[8]
The next time the appellant saw the complainant was when she arrived
with the South African Police and the aerial used in the
assault
confiscated.
[9]
The appellant was subsequently;
·
Charged
with and pleaded guilty to assault with intent to cause grievous
bodily harm;
and;
·
For
reasons which remain unclear, in addition separately charged with
kidnapping and rape.
[10]
The appellant denied that;
·
He
kidnapped the complainant and;
·
That
he raped her when he had sexual intercourse with her during the
evening of 19 August 2011.
[11]
The complainant was a single witness.
[12]
Her evidence does not read well and is open to criticism in the
following respects.
[13]
After the appellant slabbed the appellant twice, she accompanied him
to his home because she was scared and unsure as to what
would happen
if she had refused to do so. Under cross examination she
contradicted this by saying that she accompanied the
appellant to his
home because he said he would throw her into the river if she refused
to accompany him.
[14]
At the home of the appellant the complainant said that while they
were in the kitchen the appellant picked up a knife “from
somewhere close” and pointed it at her but that the knife was
left behind in the kitchen when they entered the bedroom.
Under
cross examination the complainant said that the knife was lying on a
table and when asked what exactly the appellant did
the knife; the
complainant replied that he held the knife and added the appellant
said that “he is going to hurt me”.
The knife was
however in fact not used to hurt the complainant and was left in the
kitchen.
[15]
The complainant was also asked to demonstrate how the appellant
pointed the knife at her but she declined saying she did not
have the
knife in Court to do so thereby creating the impression that she was
uncooperative or casting doubt upon whether in fact
she was
threatened with a knife at all.
[16]
Following the assault and alleged rape, the appellant went to sleep.
When asked why she did not raise the alarm or make
good her escape,
the complainant said that she told the appellant she wanted to go
home but he would not accept that until the
next morning. This
is contradicted by the complainant herself later on when she went
onto say that upon telling the appellant
she wanted to go home, the
appellant did not say anything and in addition to this the
complainant also has an afterthought said
that the door was locked.
She claimed that she only knew that the appellant had closed the door
but was sure whether it was
locked or not. She went on to say
that she was too scared to check whether the kitchen door was
unlocked and that she just
lay there without moving. The
complainant conceded that whilst the appellant was asleep she could
have left or summoned help
via her cellular telephone and that the
appellant did not in any way hinder her escape.
[17]
Following the rape the complainant said that the appellant turned off
the light and went to sleep but that she herself was
unable to
sleep. However later under cross examination she said that she
also fell asleep and that they both slept until
approximately 6am the
next morning and they both slept naked until that morning. At
approximately 6am she got up, dressed
and the appellant let her out
and she walked home. On the way home she telephoned her mother
but did not say anything.
She cried and then terminated the
call. There was no explanation why the complainant did speak to
her mother. Upon
her arrival at home, the complainant said that
she told her mother what had happened.
[18]
Her mother contradicted this version in that the mother said she was
concerned about the complainant staying away at night
and, lacking
airtime sent her a series of “call me back” messages but
received no response. The mother made no
mention of the
complainant telephoning her the next morning before returning home.
She said that when the complainant arrived
home, her cousin opened
the house for her and announced that the complainant was crying.
[19]
The mother then asked the complainant what had happened and in
response to this the complainant tendered an explanation which
differed from the complainant’s evidence in that the appellant
had called her and asked to meet in which they did whereafter
the
appellant then said that they should go to his home to discuss “the
matter” and they then went. At the appellant’s
home
they entered and the appellant asked where his “movies”
were to which the complainant replied that they were lost.
The
appellant then assaulted her and thereafter raped her. The
mother could not say whether she were raped more than once
because
she said that she did not ask this of the complainant.
[20]
Accordingly the evidence of the mother differed from that of the
complainant as to whether the complainant was assaulted and
forced to
accompany the appellant to his home which undermines the
complainant’s claim that she was kidnapped, assaulted
by the
appellant in order to subdue her will with the object of raping her
as oppose to
punishing her for losing the dvd’s and that the complainant was
raped twice.
[21]
The evidence of Dr Naidoo also contradicted the evidence of the
complainant’s in that he said that the complainant informed
him
that she had previously being raped by the appellant on 14 August
2011 and she had previously given birth to a child who had
died at
two months old of age. This contradicted the evidence of the
complainant who denied any previous sexual experience
with the
appellant and said her child was alive and well and approximately
four years of age. Under cross examination the
complainant said
that she was unable to recall telling the doctor that the appellant
had previously raped her on 14 August 2011
and that she did recall
telling Dr Naidoo that the baby had died. The complainant
claimed she was so traumatised that she
was unable to recall most of
the interview which she had with Dr Naidoo. This contradicts
the evidence of Dr Naidoo who concluded
that the complainant was calm
and composed at the time of his examination of her in that he
recorded on the form J88 which he confirmed
as correct that at the
time of the examination carried out by him on the complainant, she
was “fully conscious, cooperative
and orientated”.
[22]
In the result there is no explanation for the contradictions for the
evidence of the Dr Naidoo and the complainant. It
is unlikely
that Dr Naidoo was mistaken because he meticulously recorded the
details of his examination on the form J88 and said
that he had no
communication difficulties and further that a translator was
available in the case of such being required.
These
contradictions are material and impact adversely on the quality of
the complainant’s evidence.
[23]
Of further significance in the evidence of Dr Naidoo was that he did
not record any significant injuries during the course
of his genital
examination which were indicative of forceful penetration or
non-consensual intercourse. The injuries which
were recorded
are all consistent with the assault perpetrated upon the complainant
by the appellant and which was common cause.
[24]
The improbabilities in the evidence of the complainant are that
whilst the denial that she and the appellant had ever being
lovers or
more than casual acquaintances, the complainant was unable to explain
how it came about that the appellant had her telephone
number, why
she left home unannounced to meet with the appellant in the dark near
the bridge of after he phoned her and why it
did not occur to her to
tell her mother she was going out to meet with the appellant.
[25]
According to the complainant the reason for the meeting with the
appellant was to discuss the missing CD’s but it is
improbable
that the appellant would have enquired from the complainant on 19
August 2011 about the whereabouts of the CD’s
when previously
on the evidence of both the complainant and her mother the dispute
about the lost CD’s had being resolved
during July 2011. After
the complainant’s mother offered to pay for the CD’s the
appellant declined to accept
compensation and effectively said that
the matter was settled.
[25]
The Magistrate delivered a lengthy, ramblingly judgment which fails
to acknowledge that the complainant was a single witness,
that there
were unsatisfactory feathers attaching to her evidence, that a
cautionary approach was called for or that the Magistrate
sought to
apply any caution when it came to the acceptability of the evidence
of the complainant. In the judgment the Magistrate
acknowledged
that the Court was faced with two mutually conflicting and
irreconcilable versions and sought to resolve this conflict
with
resort to the probabilities emerging from the evidence before her.
[26]
In terms of
section 208
of the
Criminal Procedure Act 51 of 1977
a
Court is entitled to convict upon the single evidence of any
competent witness.
[27]
However has was illustrated in the case of
S
v Crossley
2008 (1) SACR
223
(SCA) at page 229 (e), a cautionary rule of practice applies to
such a witness. A cautionary rule has its origins in
Rex
v Mokoena
1932 OPD 79
at 80
where De Villiers JP said the
following of the corresponding
section 284
of Act 31 of 1917:
‘
In
my opinion that section should only be relied on where the evidence
of the single witness is clear and satisfactory in every
material
respect. Thus the section ought not to be invoked where, for
instance, the witness has an interest or bias averse
to the accused,
where he has made a previous inconsistent statement, where he
contradicts himself in the witness box, where he
has been found
guilty of an offence involving dishonesty, where he has not had
proper opportunities for observation etc.’
[28]
In
R V Mokoena
1956 (3) SA 81
(A)
Fagan
JA observed at page 86 D-E that:
‘
The
learned Judge President was enumerating the factors in which the
Court should direct its mind when weighing the cogency of
incriminating evidence, and uttering what may well be a useful
warning that the right to convict on the evidence of a single
credible
witness, stated without qualifying words in the section,
should not be regarded as putting the evidence of one witness on the
same
footing in regards to cogency as the evidence of than one.’
[29]
In S v Hlapezula
1965 (4) SA 439
(A) Holmes JA explained at page 440
F-H that what evolved was a:-
‘
Cautionary
rule of practice requiring: (a) recognition by the trial Court of the
foregoing dangers, and (b) the safe guard of some
factor reducing the
risk of a wrong conviction, such corroboration implicating the
accused in the commission of the offence, or
the absence of the
gainsaying evidence from him, or his mendacity as a witness, or the
implication by the accomplice of someone
near and dear to
him…satisfaction of the cautionary rule does not necessarily
warrant a conviction, for the ultimate requirement
is proved beyond
reasonable doubt, and this depends upon an appraisal of all the
evidence and the degree of the safeguard aforementioned.’
[30]
Corroboration was described in
S
v Gentle
2005 (1) SACR 420
(SCA) at 430 J - 431 A as follows:
‘
It
must be emphasised immediately that by corroboration is meant other
evidence which support the evidence of the complainant, and
which
renders the evidence of the accused less probable, on the issue in
dispute.’
[31]
Then followed a passage which is particularly apt for consideration
for the present matter, namely-
‘
If the evidence of the
complainant differs in significant detail from the evidence of the
other state witnesses, the Court must
critically examine the
differences with a view to establishing whether the complainant’s
evidence is reliable. But
the fact that the complainant’s
evidence accords with other state witnesses on issues that are not in
dispute does not provide
corroboration. Thus, in the present
matter, for example, evidence that the appellant had sexual
intercourse with the complainant
does not provide corroboration with
her version that she was raped, as the fact of sexual intercourse is
common cause. What
is required is credible evidence which
renders the complainant’s version more likely that the sexual
intercourse took place
without her consent, and the appellant’s
version less likely that it did not.’
[32]
Here the Magistrate failed to properly consider or even to recognise
the contradictions and improbabilities emerging from the
complainant’s version, or the contradictions between her
evidence and those of the mother and Dr Naidoo. The fact that
the complainant was assaulted and party to sexual intercourse are
common cause. The question the Magistrate failed to consider
was whether the appellant’s explanation for the sexual
intercourse and then the assault (in that order) could reasonably
and
possible be true. Underlying that version is whether or not the
complainant and the appellant could have been romantically
linked
prior to 19 August 2011. Here the complainant failed to explain
why the appellant had her telephone number, was prepared
to go out
into the night to meet with him at his telephonic request, left
unannounced, made no attempt to get dressed after the
alleged
rape(s), stayed in bed with the appellant throughout the night, made
no attempt to leave whilst the appellant was asleep
and why she did
not attempt to seek assistance by using her cell phone if not to make
a call then at least to transmit a message
saying where she was.
These all detract from the credibility of the evidence.
[33]
Conversely, the same questions tend to strengthen or support the
version of the appellant that he or the complainant were romantically
involved, that they met and retired to his homestead for this
purpose; that they indulged in consensual sexual intercourse; that
a
quarrel occurred by a reason of her alleged unfaithfulness which
culminated in the admitted assault by the appellant upon the
complainant whereafter they apparently made their peace and the
appellant apologised and treated her injuries and the complainant
stayed the night.
[34]
Arguably the complainant could have falsely alleged kidnapping and
rape by way of explanation for her absence from home overnight
and or
because she was upset with the appellant for assaulting her and
wanting to exact retribution. In
S
v BM
2014 (2) SACR 23
(SCA)
at paragraph 23 the Court held that there is no duty upon an accused
person to explain why a state witness would dishonestly
and falsely
implicate him in a crime.
[35]
Credible evidence needs to be determined not only by the quality of
the presentation of a witness but more importantly by consideration
of the probabilities in the light of the content of such evidence.
Inferences
can be drawn only once there is a credible body of evidence before
the Court.
[36]
In the final analysis the approach of the Magistrate called for a
balanced consideration to be given to the evidence as a whole
as set
out in
S v Chabalala
2003 (1) SACR 134
(SCA) at paragraph 15. In the process the
Magistrate omitted relevant considerations and included irrelevant
considerations.
The Magistrate’s reasoning was muddled,
unconvincing, at times plain confusing and legally flawed.
[37]
Generally the Magistrate’s views of the probabilities are open
to criticism and dissent.
[38]
There are numerous misdirections contained in the Magistrate’s
judgment but for the present purposes it suffices to merely
identify
the fact the Magistrate
·
failed
to give any let alone adequate consideration to the fact that the
complainant presented both as a single witness as well
as a witness
whose evidence displayed material imperfections;
·
failed
to warn herself of the dangers of reliance of such evidence or sought
apply a cautionary approach;
·
gave
no or at the very least inadequate consideration to any cooperation
or indeed any other safeguard to reinforce the evidence
of the
complainant; and
·
in
effect failed to adequately consider the evidence of the appellant.
[39]
The Magistrate employed a circuitous approach of reasoning in
rejecting the appellant’s evidence and in this regard the
case
S v Abrahams
1979 (1) SA 203
(A) is instructive.
[40]
In the circumstances we are at liberty to interfere. In my view
the state’s evidence is open to serious doubt and
neither count
was established with the requisite degree of certainty. The
Magistrate ought to have found that the state had
failed to discharge
the onus and should have acquitted the appellant on both counts.
[41]
I would propose:
·
The
appeal against conviction succeeds.
·
The
convictions of the appellant on both counts one and two as well as
the sentence imposed by the Magistrate are set aside.
·
A
verdict is entered that;
‘
The accused is found not guilty
and discharged on both counts one and two’.
________________________
ABRAHAM AJ
________________________
VAN ZÝL J
I
agree, and it is so ordered