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[2016] ZAFSHC 221
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Thobela v S (A48/2014) [2016] ZAFSHC 221 (20 October 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal number:
A48/2014
In
the matter between:
TEFO
JACKSON THOBELA
Appellant
and
THE
STATE
Respondent
CORAM:
Van Zyl et Moloi JJ concurring; Daffue J dissenting
HEARD
ON:
2 NOVEMBER 2015
DELIVERED
ON:
20 OCTOBER 2016
DAFFUE
J (dissenting)
I
INTRODUCTION
[1]
On 1 June 2002 the appellant was convicted in the Regional Court,
Bloemfontein on a charge of raping a 10 year old female complainant
whereupon the matter was referred to the High Court for sentencing.
On 15 August 2002 Kruger J confirmed the conviction and
imposed a
sentence of life imprisonment. An application for leave to
appeal was dismissed, but leave to appeal was granted
many years
later by the Supreme Court of Appeal. The features of this
appeal are quite unusual and the factual matrix pertaining
to the
litigation will be dealt with
infra
.
It suffices to mention at this stage that we are presently confronted
with an appeal against the appellant’s conviction
and sentence.
[2]
This is a minority judgment. At the time of writing hereof I
was not in the privileged position to have read and considered
the
majority judgment, which as I understand, has not been finalised yet.
II
THE FACTUAL MATRIX PERTAINING TO THE LITIGATION
[3]
As mentioned appellant was convicted in the Regional Court on 1 June
2002 and sentenced to life imprisonment in the High Court
on 15
August 2002.
[4]
Mr Moeti who appeared for the appellant in the High Court during the
sentencing proceedings confirmed that in his opinion the
conviction
was in order whereupon Kruger J confirmed the conviction and
subsequently sentenced appellant as mentioned, having found
no
compelling and substantial circumstances.
[5]
A year later, on 5 September 2003, appellant applied for leave to
appeal which application was dismissed by Kruger J.
[6]
During October 2011 a notice of motion directed to the Registrar of
the Supreme Court of Appeal was filed in terms whereof appellant
sought condonation as well as leave to appeal against both his
conviction and sentence. He apparently also applied for leave
to adduce further evidence, although it is not clear from the record
whether a formal application in this regard was ever filed.
I
accept that the judges of the Supreme Court of Appeal, Lewis and
Salduker JJA, who considered the application for leave to appeal,
were placed in possession of an affidavit of the complainant
disavowing her
viva
voce
evidence in the Regional Court.
[7]
On 28 January 2014 appellant was granted leave to appeal against his
conviction and sentence to the full court of the Free State
High
Court. Appellant was also given leave to adduce further
evidence on appeal unless the state objected within 21 days
of the
date of the order. No objection was apparently forthcoming.
[8]
On 23 February 2015 Rampai, Van Zyl and Moloi JJ, sitting as a full
court of this division, remitted the matter to the trial
court with
directions pertaining to the receipt of further evidence, to record
its findings and to thereafter refer the matter
back to the High
Court. In the meanwhile and at a date unknown to me, appellant
was granted bail pending finalisation of
the appeal.
[9]
On 29 April 2015 further evidence was indeed led in the Regional
Court. Complainant was the only witness called to testify.
The trial court thoroughly considered the new evidence, referred to
various improbabilities and found that the complainant’s
new
version could not be regarded as credible.
[10]
On 2 November 2015 the appeal was again heard by the full court of
this division, now consisting of Van Zyl, and Moloi JJ and
myself.
III
EVALUATION
OF THE COURT
A
QUO’S
JUDGMENT
[11]
It is an established principle that where an appeal is lodged against
a trial court’s findings of fact the court of appeal
must take
into account that that court was in a more favourable position than
itself to form a judgment. Even when inferences
from proven
facts are in issue the court
a
quo
may also be in a more favourable position than the court of appeal
because it is better able to judge what is probable or improbable
in
the light of its observations of witnesses who have appeared before
it. Therefore if there are no misdirections on fact
a court of
appeal assumes that the court
a
quo
’s
findings are correct and will accept these findings unless it is
convinced that these are wrong. See
R
v Dhlumayo and Another
1948
(2) SA 677
(AD) at 705 to 706. Therefore in order to interfere
with the court
a
quo’s
judgment it has to be established that there were misdirections of
fact, either where reasons on their face are unsatisfactory
or where
the record shows them to such. See also
S
v Monyane and Others
2008 (1) SACR 543
(SCA) at para [15] where the SCA stated that it is
only in exceptional cases that it would be entitled to interfere with
the trial
court’s evaluation of oral evidence.
[12]
I accept that the advantages which a trial court enjoys should not be
over-emphasised “
lest
the appellant’s right to appeal becomes illusionary
”
,
as mentioned in
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
2000 (1) SA 1
(CC) at para [79] and the CC continued to state that
the truthfulness or untruthfulness of a witness can rarely be
determined by
considering demeanour alone without regard to other
factors including, especially, the probabilities. The court
proceeded
as follows in the aforementioned paragraph
“…
A
further and closely related danger is the implicit assumption, in
deferring to the trier of fact's findings on demeanour, that
all
triers of fact have the ability to interpret correctly the behaviour
of a witness, notwithstanding that the witness may be
of a different
culture, class, race or gender and someone whose life experience
differs fundamentally from that of the trier of
fact.”
[13]
It is acceptable in evaluating the evidence in totality to consider
the inherent probabilities and the following
dictum
by Heher AJA as he then was in
S
v Chabalala
2003 (1) SACR 134
(SCA) at para [15] is apposite:
“
The
correct approach is to weigh up all the elements which point toward
the guilt of the accused against all those which are indicative
of
his innocence, taking proper account of inherent strenghts and
weaknesses, probabilities and improbabilities on both sides and,
having done so, to decide whether the balance weighs so heavily in
favour of the State as to exclude any reasonable doubt about
the
accused’s guilt.”
[14]
The accused’s version cannot be rejected merely because it is
improbable. It can only be rejected on the basis
of the
inherent probabilities if it can be said to be so improbable that it
cannot reasonably possibly be true. See
S
v Shackell
2001 (2) SACR 185
(SCA) at para [30] and
S
v Van der Meyden
1991 (1) SACR 447
(WLD) at 449J – 450B.
[15]
Section 208
of the
Criminal Procedure Act, 51 of 1977
provides that
an accused may be convicted of any offence on the single evidence of
any competent witness. When it comes to
the consideration of
the credibility of a single witness a trial court should weigh the
evidence of the single witness and consider
its merits and having
done so, should decide whether it is satisfied that the truth has
been told despite any shortcomings or defects
in the evidence.
See
S
v Sauls
1981
(3) SA 172
(AD) at 189E-G.
In
casu
the complainant is not only a single witness, but also a young
child. The power of suggestion by her mother must also be
considered carefully.
[16]
The legal and judicial process must always be child-sensitive and
courts are obliged to give consideration to the effect that
their
decisions will have on the rights and interests of the child.
See
Director
of Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development and Others
2009 (4) SA 222
(CC) at para [74]. This
dictum
does obviously not dictate that children’s evidence should
always be accepted in a court of law. In a recent judgment,
Mocumi
v The State
(323/2015)
[2015] ZASCA 201
(2 December 2015), Navsa JA, writing for
the majority, referred with approval in para [36] to
S
v Jackson
1998 (1) SACR 470
(SCA) at 475e-g wherein the SCA found that
the cautionary rule in sexual assault cases was based on an
irrational and out-dated
perception and particularly the following
dictum
:
“
The
evidence in a particular case may call for a cautionary approach, but
it is a far cry from the application of a general cautionary
rule”
.
Navsa JA continued at paragraph [37] of the judgment as follows:
“
One
must necessarily guard against being too readily critical of child
witnesses and, at the same time, avoid too readily excusing
material
shortcomings in the State’s case.”
Eventually
the majority found in
Mocumi
that there were material inconsistencies and contradictions that
impacted on the strength of the State’s case and concluded
in
paragraph [58] as follows:
“
I
am willing to accept that one or two shortcomings in the evidence of
the complainant might be expected and forgiven. However,
the
lengthy catalogue of materially unsatisfactory aspects referred to
above must redound to the benefit of the complainant.
They
cannot be replaced with the catalogue of excuses.”
[17]
The complainant was 10 years old when she was allegedly raped and
testified during the trial just after turning 11 years.
The
court
a
quo
dealt with the inconsistencies in her evidence but found that there
was sufficient objective evidence which corroborated her version.
Her version was not only supported by the evidence of her mother, but
also Dr de Wit who examined her the following day and even
the
witness of the accused, Mr Eric Louw. According to
the court
a
quo
the complainant had no reason to falsely fabricate her version that
she had been raped by the appellant, bearing in mind ample
proof
based on the probabilities that she had indeed been raped if the
evidence of the complainant’s mother and the medical
doctor are
accepted. The evidence of appellant, on the other hand, was
found to be not reasonably possibly true.
[18]
I am satisfied that the inconsistencies in the evidence of the
complainant pertaining to when the 70 cents was handed to her,
either
before or after the rape, and the manner in which appellant kept her
mouth closed with his hands, are indeed shortcomings
in her evidence
that might be expected and forgiven. Her evidence was not of
such a poor quality as that of the complainant
in
Mocumi
loc
cit
.
It is common cause that she was in the presence of appellant on
Sunday evening, 17 December 2000 and that shortly thereafter,
her
mother detected blood on her clothing and blood running down from her
private parts down her thigh. The mother confirmed
that she was
in possession of 70 cents which was handed to the SAPS.
Complainant was taken to the SAPS immediately that evening
after she
had admitted being raped by appellant. I accept that
complainant was threatened with arrest if she did not speak
the
truth, but even so, there was no reason for her to incriminate
appellant in circumstances where she might have merely replied
that
her rapist was unknown to her or could not be identified.
[19]
Complainant’s evidence that she was raped in the street is not
peculiar. It was already after sunset on the State’s
version which was not put in dispute when the State witnesses
testified and there is no evidence as to the nature of the area where
the incident occurred. There was never any uncertainty as to
the identity of the rapist as appellant is a close relative
and well
known to her. Appellant was the one that walked with her the
particular evening and the State’s version as
to from which
particular house is far more probable than the long-winded version
presented by appellant. The fact that
there might be
people around in the street is a neutral factor, bearing in mind the
lack of evidence pertaining to visibility,
the particular area and
the distance between such people and the appellant and the
complainant.
[20]
Dr De Wit examined complainant and appellant the next day. He
was convinced that appellant was suffering from gonorrhoea.
He
detected semen-like fluid in and around complainant’s private
parts of which he also took swaps. He noticed a fresh
tear at
the six o’ clock position of complainant’s vagina as well
as bruises and tenderness. He had no doubt
that recent vaginal
penetration had occurred.
[21]
The evidence of inspector Amanda van Wyk of the SAPS, a forensic
analyst specialising in DNA analises testified as well.
It is
clear from her evidence and the reports handed in as exhibits that no
male genetic material could be found on the samples
received and
examined by her. She mentioned several factors that could have
had an effect of the absence of male DNA, e.g.
insufficient
spermatozoa, dilution of spermatozoa by blood or vaginal fluids, or
the DNA could be broken down as a result
of bacterial diseases.
In this regard it should be mentioned that Dr De Wit was of the view
that appellant suffered from
a bacterial disease and that he had
infected complainant during sexual intercourse. The fact of the
matter is that the evidence
of the inspector is neutral.
[22]
Appellant was represented by an attorney during the trial until the
point where his mandate was terminated just after appellant’s
testimony. All State witnesses were thoroughly cross-examined
by the attorney. It was never put to complainant’s
mother
that she had a vendetta against appellant and that she had even
falsely accused him previously of trying to rape her in
a toilet.
This is a serious allegation and in my view appellant would have
informed his attorney about this when he instructed
him, and
furthermore, if such instructions were in fact given, the attorney
would in all probabilities put this version to the
mother.
Bearing in mind the case law referred to above I am satisfied that
the court
a
quo
properly considered the totality of the evidence, the probabilities
and the improbabilities, the onus of proof and the cautionary
rule.
It correctly came to the conclusion that the State had proven its
case beyond reasonable doubt.
[23]
I have considered the evidence of complainant some thirteen years
after the initial trial and at a stage when she was 23 years
old.
It is ironic that she never ever disavowed her evidence for more than
a decade. She had to be confronted by appellant
indirectly when
he was serving his sentence. It is also ironic that appellant
made his move only once complainant’s
mother had passed on.
Two social workers visited complainant on 18 December 2013 whereupon
“
(m)iss
M. (the complainant) wrote a statement confessing that
our
client
,
Jackson Thobela did not rape her as a child back in the years”
.
(emphasis added). It is also clear from the complainant’s
new version that appellant called her grandmother “(
a)sking
my grandmother to tell me to tell the truth that he had never raped
me.”
[24]
Complainant testified in 2015
“
that
nothing happened on that particular day.”
(17
December 2000 – the day of the incident)
.
When
confronted with the evidence of Dr de Wit about vaginal penetration
she testified as follows:
“
But
there was no one who had sexual intercourse with me.”
She
then came up with the following excuse when confronted with the
doctor’s version that he found evidence of a venereal
disease
at the time:
“
Maybe
it is when we are growing up, when we were busy playing pophuis ….
(According to possibly the interpreter who
intervened, pophuis is
when you are playing when we then live in small houses whereby you
(indistinct) there is the father and
there is a mother or playing
husband wife. That is the way of play.”
Later
on she said that they played “pophuis” a lot with
children of different ages and the following questions and answers
should be recorded as well:
“
Do
I understand you the playing of this house stopped long before your
mother told you to falsely implicate the applicant of rape?…
We didn’t play.”
Later
on the following is recorded relating to the absence of an
explanation in respect of the vaginal injuries:
“
Just
furthermore, it was fresh tears found, not old injuries, fresh
injuries – But the applicant didn’t do anything
to
me.
But
who then did it to you?
“
No
one. It was during the time when we were playing child games.”
In
2015 complainant accused her mother of lying about the 70 cents which
she had in her possession and she also disavowed her own
version that
she had obtained it from appellant. She blamed her mother who
had passed on since as the one who instigated
her to inform the
police that appellant gave her the money and that he raped her.
[25]
Having read the court
a
quo
’s
findings pertaining to the new evidence and having considered the old
and new evidence, I am satisfied that the court
a
quo
’s
findings are correct. Unlike the guarantees found in the form
of objective medical evidence corroborating complainant’s
initial version, her new evidence is highly improbable, far-fetched
and in direct contrast with the uncontested medical evidence.
The only reasonable deduction that can be made from the record is
that pressure was put on her by appellant indirectly, the two
social
workers that visited her on behalf of their so-called client, as well
as her grandmother in order to ensure that a close
relative was saved
from further incarceration. In the process a blame game had to
be played in order to incriminate complainant’s
deceased
mother.
[26]
The appeal against conviction should be dismissed.
IV
THE
SENTENCE OF LIFE IMPRISONMENT
[27]
The appellant was sentenced to life imprisonment in terms of the
provisions of
s 51(1)
read with
Part 1
of Schedule II of the
Criminal
Law Amendment Act, 105 of 1997
. The prescribed minimum sentence
for the rape of complainant, a ten year old girl at the time and thus
under the age of 16,
is life imprisonment. The appellant is not
complainant’s father, but apparently a close relative. It
might therefore
be argued that the judgment of the Supreme Court of
Appeal in
MDT v S
(548/2013)
[2014] ZASCA 15
(20 March
2014) at paragraph [6] where it found that there could be nothing
more heinous than the rape of a child by a father,
is not directly in
point. See also the remarks of Cameron JA in
S v Abrahams
2002 (1) SACR 116
(SCA) at paragraphs [17] – [23].
[28]
In
S
v PB
2013 (2) SACR 533
(SCA), the Supreme Court of Appeal emphasised in
paragraph [20] that prescribed minimum sentences should not be
departed from lightly
or for flimsy reasons. The court refused
to interfere with the sentence of life imprisonment imposed on a
father who had
raped his 12 year old daughter. As mentioned in
paragraph [7] of
MDT
loc
cit
“
child
rape is a national scourge that shames us as a nation.”
The
courts have a serious duty to prevent young children from being
abused. Sachs, J stated the following in a unanimous judgment
of the Constitutional Court in
Bothma
v Els
2010 (2) SA 622
(CC) at paragraph [47]:
“
Child
rape is an especially egregious form of personal violation ….
By its very nature it is frequently characterised by
secrecy and
denial. There is accordingly a special public interest in
taking action to discourage and prevent rape of children.
Because it often takes place behind closed doors and is committed by
a person in a position of authority over the child, the result
is the
silencing of the victim, coupled with difficulty in obtaining
eyewitness corroboration.”
[29]
The determination of a sentence in a criminal case is pre-eminently a
matter for the discretion of the trial court. In
exercising
this function the trial court has a wide discretion in deciding which
factors should be allowed to influence the court
in determining the
measure of punishment and in determining the value to attach to each
factor taken into account. A
mere misdirection is
not by itself sufficient to entitle a court of appeal to interfere
with the sentence as the misdirection must
be of such a degree of
seriousness that it shows that the court did not exercise its
discretion at all or exercise it improperly
or unreasonably.
See
S
v Kibido
1998 (2) SACR 213
(SCA) at 216g – j. In
casu
and in accordance with appropriate legislation at the time, the
Regional Court could not impose sentence and had to refer the matter
to the High Court, but the principles remain the same.
[30]
A court of appeal will not alter a sentence imposed by the trial
court, unless it is found that no reasonable person ought
to have
imposed such a sentence, or that the sentence is totally out of
proportion to the gravity or magnitude of the offence,
or that the
sentence evokes a feeling of shock or outrage, or that the sentence
is grossly excessive or insufficient, or that the
trial court has not
exercised its discretion properly. See
S v Fhetani
2007 (2) SACR 590
(SCA) at para [5],
Director of Public
Prosecutions KwaZulu Natal v P
2006 (1) SACR 243
(SCA) at
254c-f and
S v Boogaards
2013 (1) SACR 1
(CC) at para
[41].
[31]
Kruger J concluded pertaining to sentence as follows:
“
This
was a rape of a 10 year old girl who was traumatised and injured by a
person to whom she stood in a relationship of trust,
who was over the
age of 30, had previously clashed with the law and showed no remorse
at all. In my opinion there are no
substantial and compelling
circumstances to justify the imposition of a lesser sentence.”
[32]
In my view the court
a
quo
correctly found no substantial and compelling circumstances and
consequently the appeal against sentence should be dismissed as
well.
V
CONCLUSION
[33]
I would have made the following order:
1.
The
appellant’s appeal against conviction and sentence is
dismissed.
_____________
J.P.
DAFFUE, J
MOLOI
J, (Van Zyl J, concurring)
[1]
I had the privilege of reading the judgment of Daffue J and agree
with the factual matrix sketched by him and in part with the
evaluation of the trial court’s judgment. The extend to which I
do not agree with him will become clear hereunder.
[2]
Already on 23 February 2015 when this matter served before Rampai,
Van Zyl JJ and myself, I held the view that the facts on
which the
conviction was based were not correct and myself and Van Zyl, J held
the view that the appellant ought to succeed in
his appeal. Now
that new and further evidence has been led I am not persuaded to
change that stance.
[3]
The evidence of the complainant was that the appellant took her from
where she was playing with her sister. The appellant was
going to
look for change. She said the appellant was involved in a fight with
a certain woman. She did not go away but waited at
the scene. She was
even asked by some women why she was waiting there and told them she
was waiting for the appellant. The appellant
had given her 70c and
would still get a further amount of R1-00 for her and R5-00 for her
mother. It is not clear when the appellant
gave her the 70c i.e.
whether it was before or after she was sexually assaulted. At an
unclear stage the complainant was waiting
at Baby’s place and
did not run away homewards because the sexual assault had taken
place. She remained at Baby’s place
because she was not scared
as she did not think she could be sexually assaulted again. In the
next breath she remained there despite
her realisation she could
again be sexually assaulted. What stage was this is not clear. When
asked why she remained on the scene
she said she could not go home
because the appellant had warned her that her mother would fight with
him if she must go home without
him as something bad could happen to
her and he would be held responsible for that. Fact is, however, at a
stage she walked by
herself to the grandmother’s place.
[4]
The cautionary rule against the evidence of children is to guard
against the influence that may distort such evidence as a child
is
susceptible to manipulation by an adult. This, however, does not mean
that logic and the truth must be sacrificed:
Director
of Public Prosecutions, Transvaal v Minister of Justice and
Constitutional Development and Others
2009 (4) SA 222
(CC). It is true that the courts should sympathise
with a child witness but this should not be seen as a reason to
ignore “
material
shortcomings”
in the child’s evidence:
Mocumi
v The State
(323)/2015
[2015] ZASCA 201
(2 December 2015). The facts of the case
above are such that one cannot determine at which point the sexual
act with the complainant
took place and that is vital.
[5]
What happened when the complainant got to her grandmother’s
place is causing more problems in comprehending the complainant’s
evidence. When the complainant arrived, the first thing the
grandmother asked her was what had happened as she was crying. She
would not tell. Later the mother came and asked her the same
question. She still would not tell. The mother then saw a blood spot
at the back of her dress and some blood was running down her legs.
The grandmother did not tell about this. Sara Motseki and other
people were there. Only when a stranger, one Butinyana, threatened
the complainant with arrest, did she explain that the appellant
gave
her the 70c and warned her not to tell anyone failing which he
(appellant) would kill her. The complainant herself, did not
testify
about her crying nor the blood spot on the back of the dress nor the
blood running down her legs. There is no evidence
that the
grandmother who saw the complainant first noticed the blood on the
complainant’s dress nor on her legs.
[6]
The matter was reported to the police immediately i.e on the 17
th
December 2000. The following day the complainant was taken to Dr De
Witt for examination. The doctor took secretion from the
complainant’s
vagina which “
looked
like”
semen and noticed a tear in her hymen at 6’o’clock. The
semen was smelling of gonorrhea and was sent for DNA analysis,
Dr de
Witt examined the appellant as well and discovered he had gonorrhea
for which he treated him. Dr de Witt said nothing about
the
blood-stained dress nor the blood down the complainant’s legs.
Dr de Witt treated many cases of gonorrhea in that district.
Amanda
van Wyk attached to the police forensic laboratory analysed the
specimen taken by Dr de Witt. She could not find any male
DNA in it
and that could be attributable to various factors which she
enumerated. Only when asked by the court she said the presence
of
gonorrhea is definitely going to kill the spermatozoa in the sample.
This was not one of the nine (9) factors she mentioned
as possible
causes for the absence of male DNA in a sample. In addition Van Wyk
did not perform microscopic examination of the
sample to determine if
it contained semen.
[7]
It is settled law that the evidence of a child must be weighed with
caution not only because she is a child as in this case,
but
importantly because she was a single witness in as far as the sexual
assault is concerned:
R v Manda
1951 (3) SA 158
(A) at 163
C-E. It is trite that the State must prove its case beyond a
reasonable doubt to found a conviction. Brand AJA expressed
this
principle as follows in
S v Shackell
2001 (4) SA 1
(SCA) at
para. 30:
“
It
is a trite principle that in criminal proceedings the prosecution
must prove its case beyond reasonable doubt and that a mere
preponderance of probabilities is not enough. Equally trite is the
observation that, in view of this standard of proof in a criminal
case, a court does not have to be convinced that every detail of an
accused version is true. If the accused version is reasonably
possibly true in substance the court must decide the matter on the
acceptance of that version. Of course it is permissible to test
the
accused version against the inherent probabilities. But it cannot be
rejected merely because it is improbable; it can only
be rejected on
the basis of inherent probabilities if it can be said to be so
improbable that it cannot reasonably possibly be
true.”
[8]
In evaluating the case all the evidence must be considered as a unit:
S
v Trainor
2003 (1) SACR 35
(SCA) para 9. The complainant waited where she was
taken to by the appellant all by herself on numerous occasions –
when
the appellant was fighting a woman, and when the appellant was
at Baby’s place. At what stage and where was she raped by the
appellant remains a mystery. The complainant at a stage went alone to
her grandmother’s place. How she went there following
which
route, whether she met other people on route is unknown. When she got
to her grandmother’s place, no blood stain was
seen by her
grandmother, the first person she met. No evidence of blood running
down her legs was presented until the mother arrived
later. When the
complainant arrived at her grandmother’s place, she was crying
but would not tell what happened until she
was threatened with
arrest. Not the grandmother nor the mother inspected her to see where
the blood came from. The blood that stained
her dress and the blood
that ran down her legs was not seen by the doctor who examined her
and found “
semen
like”
stuff in her vagina, suggesting that she had not had a bath as the
matter was reported to the police the same night and she must
have
been advised not to wash herself before the doctor’s
examination. Whether the blood have flowed from the little tear
in
her hymen is not explained. When she was confronted at the
grandmother’s place the appellant was not present and could
not
kill her as she explained and she was crying. The appellant’s
version is denial of raping the complainant. The appellant
confirms
having taken the complainant along in his search for change and
confirms at times he was not in the presence of the complainant
and
cannot say what happened then. The appellant denied he had gonorrhoea
when examined by Dr de Witt. No gonorrhoea was found
or tested for
when the DNA tests were conducted. No positive DNA results emanated
from the testing of the samples analysed.
[9]
The trial court found it strange that the appellant could not state
who then raped the complainant. The court rejected the appellant’s
version on two grounds: firstly, the appellant could not explain why
the complainant would falsely incriminate him and states:
“
Die
beskuldigde kan egter geen rede hoegenaand verstrek waarom die
klaagster uit haarself vir hom, wie sy goed mee oor die weg gekom
het
en by wie sy dikwels geld gekry het, valslik sou wil inkrimineer
nie”… Voorts sou dit moet beteken dat sy opsetlik
vir
beskuldigde in die plek van ‘n ander impliseer. Die hof kan nie
aanvaar dat hierdie jong kind in staat sou wees tot so
‘n
fabrikasie. Daar is voorts ook geen rede vir haar daartoe nie. Die
beskuldigde se bewerings van ‘n fabrikasie is
dus nie net hoogs
onwaarskynlik nie, maar om die minste te se belaglik.” P.114 of
the record.
Secondly,
the court rejected the appellant’s version because it is not
reasonably possibly true and states at p 115-116
“
Die
hof vewerp ook die beskuldigde se weergawe as synde nie redelik
moontlik waar nie, in die lig van totaliteit van die getuienis
asook
die riglyne neergele in
S
v Van der Meyden
1991 (1) SASV 447 (W)”
[10]
In my view both the grounds for the rejection of the appellant’s
version were based on wrong interpretation of the principles
as set
out in Van der Meyden’s and several other decisions before and
after it. The starting point is that it is the appellant’s
case
that the complainant’s mother was the instigator of the
prosecution against him. In addition, there is no onus on the
accused
to point out who otherwise raped the complainant if not himself.
Nugent J, (as he then was) stated the following in Van
der Meyden at
448f-g:
“
The
onus of proof in a criminal case is discharged by the state if the
evidence established the guilt of the accused beyond reasonable
ground. The corollary is that he is entitled to be acquitted if it is
reasonably possible that he might be innocent. These are
not separate
and independent tests but the expression of the same test when viewed
from the opposite perspective.”
In
R
v Diffford
1937 AD 370
at 373 it was stated:
“…
no
onus rests on the accused to convince the court of the truth of any
explanation which he gives. If he gives an explanation, even
if that
explanation is improbable the court is not entitled to convict unless
it is satisfied, not only that explanation is improbable,
but that
beyond any reasonable doubt, it is false. If there is any reasonable
possibility of his explanation being true then he
is entitled to his
acquittal.”
See
S
v Shackell
above. In
R
v M
1946 AD 1023
at 1027 the following is found:
“…
the
court does not have to believe the defence story, still less does it
have to believe it in all its details, it is sufficient
if it thinks
that there is a reasonable possibility that it may be substantially
true.”
From
the above it is clear that both the grounds on which the trial court
rejected the appellant’s version were erroneously
applied. The
appellant had no onus to point out who must have raped the
complainant. It is clear also that he cannot be convicted
if his
version is not reasonably possibly true. His version must be false to
be rejected. If it is reasonably possibly true, then,
in that event,
he is entitled to be acquitted.
[11]
The new and further evidence totally recants the earlier evidence.
The complainant testified that her mother, who has since
passed away,
compelled her to incriminate the appellant. Her grandmother
exonerates the appellant totally from raping her because
her
grandmother asked her to go tell the truth. She denied every aspect
of her mother’s evidence in earlier proceedings.
She also
denied the evidence of the doctor who examined her a day after the
alleged rape. She was then 23 when she gave further
and new evidence.
The trial court found that the complainant evidence did not impress
and
“
…
casts
a shadow over her credibility”
.
My assessment of her latter evidence is that it is clear and direct
and contradicts her earlier evidence on the vast material
aspects of
the case, viz the alleged rape. In the light of what I said above I
find this new evidence to be neutral and I cannot
find that she
committed perjury at any stage.
R
v Van Heerden & Another
1956 (1) SA 366
(A) at 372 B.
[12]
My brother Daffue J found certain aspects of the complainant’s
evidence strange and on that score rejected her latter
evidence. He
found it strange for instance, that the social workers in the employ
of a government department when interviewing
the complainant before
the new evidence, referred to the appellant as a “
client
”,
and that there is a connotation that they favoured him. In many
instances I have heard social workers in government
service as well as other public servants referring to people they
serve as clients. The sense in which the word “
client”
is used in that context has no commercial connotations but simply
refers to the person on whose behalf a service is rendered e.g.
applying for a passport at Home Affairs or even receiving payment for
rates and taxes or other municipal services. My brother Daffue
J also
draws certain inferences as to putting pressure on the complainant to
save the appellant from incarceration by lying in
her subsequent
evidence. This is based on the grandmother asking the complainant to
go tell the truth in court. He also finds that
it was clandestinely
agreed to put all the blame for evidence leading to the appellant’s
conviction on the complainant’s
late mother as she now cannot
dispute that. I could, however, not find evidence on the strength of
which such inferences can be
based. It is trite that inferences can
justifiably be drawn but there must be evidence to support them. In
Caswell v Powell Duffry Associated Collieries Ltd
3 All E.R.
(1939) 722 at p733 the following was stated:
“
Inference
must be carefully distinguished from conjecture or speculation. There
can be no inference unless there are objective facts
from which to
infer the other facts which it is sought to establish… But if
there are no positive proved facts from which
the inference can be
made, the method of inference fails and what is left is mere
speculation or conjecture.”
See
also
R
v Blom
1939 AD 188
;
S
v Sauls and Others
1981(3) SA 172 (A) at 182 G-H;
S
v Reddy
1996 (2) SACR 1
(A).
[13]
In conclusion I would find that the appeal must succeed as the trial
court must have had a doubt whether the appellant’s
guilt was
proved beyond a reasonable. The principle is if there is a doubt as
to the guilt of the accused, never mind how slight,
the accused must
be given the benefit thereof and be acquitted.
[14]
I would consequently make the following order:
The
appeal succeeds and the conviction and sentence are set aside.
_______________
MOLOI, J
I
concur
_______________
MOLOI,
J
On
behalf of the appellant:
Adv. L. N. Tshabalala
Instructed
by:
Justice
Centre
BLOEMFONTEIN
On
behalf of the respondent:
Adv. R. Hoffman
Instructed
by:
Director:
Public Prosecution
BLOEMFONTEIN