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[2016] ZANCHC 57
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Louw v S (CA&R42/2013) [2016] ZANCHC 57 (26 February 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division, Kimberley)
Saakno / Case
number:
CA&R42/2013
Datum aangehoor /
Date heard:
22
/ 02 / 2016
Datum gelewer /
Date delivered:
26
/ 02 / 2016
In
the appeal of:
CURTIS
LOUW
Appellant
and
THE
STATE
Respondent
Coram:
Olivier, J
et
Erasmus,
AJ
JUDGMENT
ON APPEAL
ERASMUS,
AJ
[1]
On 9 February 2012 the appellant was convicted on a charge of
contravention of section 3 of Act 32 of 2007 (rape) in the Regional
Court held at Prieska. He was sentenced to 15 years
imprisonment. The appeal is against his conviction and
sentence.
[2]
The State’s case was based on the evidence of the complainant,
her father and the medical doctor who had examined the
complainant
the following day.
[3]
The complainant was a single witness in respect of the facts in
issue, namely whether the appellant had in fact had sexual
intercourse with her without her consent.
[4]
As she was a single witness, it was required of the Court
a
quo
to
treat her evidence with caution. Proper application of the
cautionary rule requires that a Court should consciously remind
itself to be careful in considering evidence which practice has
taught should be viewed with suspicion. Secondly, a Court
should seek some or other safeguard reducing the risk of a wrong
finding based on the suspect evidence.
[5]
Although a Court can convict on the evidence of a single witness, it
is subject thereto that the evidence is substantially satisfactory
in
every material respect and/or that there is sufficient
corroboration.
[6]
It
is trite that a Court of Appeal will not lightly interfere with the
factual findings of the trial Court and that it will only
interfere
if it is convinced that the findings were wrong.
[1]
Differently put, it is presumed
that
a trial Court's findings of fact are correct. If there is no
misdirection, the Court of Appeal will interfere only if
it is
convinced
that
such evaluation is wrong.
[2]
[7]
Mr. van Tonder, on behalf of the appellant, submitted that the
complainant was not a satisfactory witness. He pointed
out that
she had contradicted the police statement in several respects and
referred us to the numerous contradictions in this regard.
I
refer to a few of these contradictions.
7.1
The complainant testified that she drank with Mannetjie Re and his
friends. She became drunk and left
them. On her way home
she met the appellant and his friends. They approached from the
front and she met with them in
the vicinity of the heaps. She
accompanied them to an old church. In her statement to the
police she stated that it
was Mannetjie Re and his friends who had
left and that she had stayed behind, as she was drunk. The
appellant and his friends
then showed up while she was still at the
river. She did not know where they had come from.
7.2
She testified that the appellant cut her bra in two with a knife,
while she stated to the police that her
bra was torn.
7.3
She testified that the appellant threw her with a stone and
hit
her on the thigh. She did not mention this in her statement to
the police.
[8]
When the complainant was confronted with the contents of her
statement, she conceded that she could only remember parts of what
had happened on that particular day. On her own version she was
drunk on the day in question and had had trouble with her
memory
after receiving a blow to the head.
[9]
The complainant also contradicted herself. She testified that
the appellant and two of his friends dragged or pulled her
down, but
she later testified that it was only the appellant and one of his
friends who had done so.
[10]
Although it is common cause that the complainant was struck on the
head with a stone which was thrown by the appellant, her
father
testified that she had shown him the injury to her head and reported
to him that it had been caused by a knife.
[11]
Adv. Kgatwe, on behalf of the respondent, rightly conceded that the
complainant’s evidence was not satisfactory in every
material
respect.
[12]
Given the fact that the complainant’s evidence was not
substantially
satisfactory in every material respect it could not be accepted as
there was no corroboration for her version.
What is required in
respect of corroboration is set out in
S
v SCOTT-CROSSLEY
,
2008 (1) SACR 223
(SCA) at 230 a to b:
“
What
constitutes corroboration was set out in State v Gentle:
It
must be emphasized immediately that by corroboration is meant other
evidence which supports the evidence of the complainant,
and which
renders the evidence of the accused less probable,
on
the issues in dispute.
”
[13]
The Court
a quo
, in her evaluation of the evidence, referred
to numerous instances of corroboration.
13.1 The learned
magistrate found that the doctor had found semen in the vagina of the
complainant. The evidence of the doctor
was that he found something
which he thought might be semen and took a sample of it for DNA
analysis. No evidence in respect
of the DNA analysis was
presented by the State.
13.2
The doctor found no signs of penetration or attempted penetration.
He stated though that he could not exclude it.
The learned
magistrate found: ‘
To
a large material degree rape is committed ad exhibit A. Yes,
the doctor did not rule it out as a
possibility.
’
13.3
The learned magistrate found that the complainant’s testimony
that she was dragged down and that she lay on top
of stones, was
corroborated by the doctor’s observation that her top was
dirty. The doctor who had examined the complainant
the
following day referred to the condition of her top as “
dirty
and blood stained
”.
The complainant’s evidence in this regard was that the top
which she had worn during the rape was placed in
a plastic bag with
other items and was later handed to the investigating officer. It
thus appears that the top referred to by the
doctor was not the one
she had been wearing during the alleged rape.
[14]
The
Court
a
quo
did
not demonstrate by her treatment of the evidence that she heeded the
cautionary rule. The facts of this case demanded
that
the evidence of the complainant be properly evaluated.
Although I am mindful of the advantage which the trial Court
had in
observing the witnesses, the reasons for accepting the evidence of
the complainant in this matter are unsatisfactory.
I am
therefore at large to disregard the findings of the court.
[15]
The
evidence produced on behalf of the State should also be evaluated in
conjuction with the appellant’s version.
It
is trite that there is no
onus
on an accused to convince the Court that his version is true.
When
considering the evidence of the appellant,
it
is
not
a prerequisite for an acquittal that I should believe the innocent
account given by him; it is sufficient that it might be substantially
true.
An
accused is not required to prove his innocence.
In
R
v DIFFORD
[3]
it was said:
‘
...
It is equally clear that no onus rests on the accused to convince the
Court of the truth of any explanation he gives. If he
gives an
explanation, even if the explanation is improbable, the Court is not
entitled to convict unless it is satisfied, not only
that the
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 acquitta
l.
’
[16]
The appellant testified in his own defence and called three
witnesses. He clearly did not contradict himself on any material
aspect. Mr. van Tonder, quite rightly, pointed out that there
were no inherent improbabilities in the appellant’s version.
His witnesses corroborated him in all material respects.
Neither the appellant nor his witnesses were broken down during
cross-examination. It cannot be said that the accused’s version
in this instance is not reasonably
possibly
true.
[17]
If this is the position then he was entitled to an acquittal.
The conviction thus stands to be set aside. This
being so, I do not
deem it necessary to deal with the sentence imposed.
[18] The appeal
succeeds and the following order is made:
1. THE
CONVICTION AND SENTENCE ARE SET ASIDE.
2. THE
REGISTRAR IS DIRECTED TO INFORM THE RELEVANT PRISON AUTHORITIES OF
THE OUTCOME OF THIS APPEAL WITHOUT ANY FURTHER
DELAY.
__________________
SL
ERASMUS
ACTING
JUDGE
I
agree.
__________________
CJ
OLIVIER
JUDGE
On
behalf of the Appellant
:
Adv van Tonder (oio Legal Aid SA)
On
behalf of the Respondent
:
Adv. K. Kgatwe (oio The NDPP)
[1]
R v Dhlumayo
and Another
1948(2)
SA 677 (A) op 705 -706
[2]
S v Mlumbi en
'n Ander
1991
(1) SACR 235 (A)
;
S
v Hadebe and Others
1998
(1) SACR 422
(SCA)
;
S v Kekana
2013
(1) SACR 101 (SCA)
[3]
1937
AD 370
at
272; See also
S
v V
2000
(1) SACR 453 (SCA
);
S
v Pistorius
2014 (2) SACR 314
SCA at 319 (h) to (i)