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[2016] ZANCHC 29
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Gaborone v S (CA&R27/2016) [2016] ZANCHC 29 (3 June 2016)
SAFLII
Note:
Certain personal/private
details of parties or witnesses have been redacted from this
document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Reportable:
NO
Circulate
to Judges:
YES
Circulate
to Magistrates:
NO
Circulate
to Regional Magistrates:
NO
CASE
NO:
CA&R
27/2016
DATE
HEARD:
23/05/2016
DATE
DELIVERED:
03/06/2016
In
the matter between:
OLEBOGENG
GABORONE
Appellant
and
THE
STATE
Coram:
Olivier
J
et
Pakati J
JUDGMENT
Olivier
J:
[1.]
The
appellant was convicted in the Regional Court on two charges of rape
(counts 1 and 2), kidnapping (count 3) and robbery (count
4).
He was sentenced to 15 years imprisonment on each of the two counts
of rape, 2 years imprisonment on count 3 and 1 year
imprisonment on
count 4, but it was ordered that all the sentences be served
concurrently. This appeal is against the convictions
only.
[2.]
It
is trite that a court of appeal will not readily interfere with the
factual findings of a trial court. It will, however,
do so
where it is clear from the record, and therefore from the same
evidence that served before the court
a
quo
,
that those findings are wrong
[1]
.
It has to be kept in mind though “
that
an entirely uncritical approach to the factual findings of the trial
court will render appeals on fact illusory
”
[2]
.
[3.]
The
complainant testified that she had on the particular morning gone to
school to collect her report. On her way back, while
drinking
water in a park, she was accosted by the appellant. He told her
that he had on some earlier occasion bought her
liquor and he
demanded to have sexual intercourse with her. She denied
knowing him. He grabbed her by the hand.
He walked with
her to a soccer field, where he took her umbrella. She tried to
get away, but he held her by her right hand.
[4.]
It
was at that stage that she noticed the witness K. among a group of
school children who were passing nearby. She called
him and
asked him to tell the appellant to let go of her. When K.
wanted to talk, the appellant told him to stay out of his
business
and threatened to hit him with the umbrella. K. asked her
whether she knew the appellant, and she said no.
K. again
attempted to persuade the appellant to let her go, but eventually
left. This was at around 12 o’clock that
morning.
[5.]
The
appellant then took her to a spot in an open space near a school.
He tried to slap her, but missed. He then “
dropped
”
her to the ground, and removed her shoes and t-shirt. When he
wanted to remove her pants, she refused. He then
“
trampled
”
on her head. She told him that she would tell her mother.
When she screamed the appellant threatened to kill
her. She
said to him “
so
who are waiting for, why do you not just kill me right now
”.
When the appellant threatened to “
stab
”
her with a stick, she again asked him what he was waiting for.
He then slapped her, took off her pants and raped her.
When he
threatened to kill her she again challenged him to go ahead.
[6.]
“
After
he was done
”
the appellant kept her t-shirt, but ordered her to put her pants and
shoes back on. He then took her to a spot near
the hostels.
On the way there she was scratched by bushes, and the appellant
“
stabbed
”
her with a stick on her arm. Again she ducked when he tried to
slap her. He removed her pants and raped her
again.
[7.]
The
appellant then ordered her to put her pants back on and told her that
they were going to his maternal home so that he could
change
clothes. On their way there he held her hand.
[8.]
At
the particular house the appellant’s “
grandmother
or mother
”
opened the gate for them. She asked the complainant who she was
and where she stayed, and the complainant answered
both questions.
[9.]
When
they left there the appellant told her that they were going to the
so-called Chisanyama, apparently a place people frequent
to
barbeque. She refused to go there and demanded her umbrella.
The appellant returned her umbrella and told her that
they were
instead going to sit in a park.
[10.]
At
the park she told the appellant that she was going to buy airtime at
the shop. She then escaped through the premises of
other people
and went home. She felt a burning sensation in her private
parts.
[11.]
At
home she went to lie down, but her sister saw her and she was then
taken to her aunt, Mrs E. A.. She told Mrs A. what had
happened. The matter was then reported to the police and later
that day the complainant was examined by a nurse at the clinic.
Thereafter she accompanied police “
to
point out the scene to them
”,
and photographs were taken.
[12.]
She
also pointed out the house where the appellant had taken her.
They found an elderly lady there, but the appellant was
not present.
[13.]
When
the appellant was arrested about a week later, the police took the
complainant to the police station, where the appellant was
brought to
her and she was asked to identify him as the person who had attacked
her.
[14.]
In
the medical reports scratches, bruises and redness on an arm of the
complainant and a bruise on her ear were recorded, as well
as the
fact that she experienced tenderness on the right side of her head,
all of which would basically have been consistent with
the
complainant’s description of the assault on her.
[15.]
Furthermore,
it was recorded in the medical report that there was a tear at the 6
o’clock position of the posterior fourchette,
which
“
corresponds
with forceful vaginal penetration
”.
[16.]
The
witness K. confirmed having come across the complainant and the
appellant that day, and Mrs A. confirmed that the complainant
had
reported to her that she had been raped.
[17.]
The
appellant’s version was a denial of having come across the
complainant that day at all, and of knowing her.
[18.]
On
the evidence referred to up to this point one would have to say that
a strong case had been made out against the appellant.
Closer
scrutiny, however, creates substantial, and indeed reasonable, doubt
of the appellant’s guilt.
[19.]
The
issue was not really whether the complainant had been assaulted and
possibly also raped, but rather the identity of the person
responsible for that. The question was not whether the
complainant may have mistakenly identified the appellant as the
attacker.
The incident happened in broad daylight and, at least
on the complainant’s version, over a protracted period of time.
[20.]
The
issue was therefore not the reliability of the complainant’s
identification, but rather the credibility thereof, and on
a
conspectus of all available evidence one is unfortunately left with
an uneasy feeling that all was not as it appeared at first
blush.
[21.]
In
her police statement the complainant made no mention at all of K..
I am aware of the fact that police statements are notorious
for their
lack of detail, and for inaccuracies
[3]
.
However, having regard to the crucial role that K. had on the
complainant’s version played in the events of that day,
it is
rather strange that she would not immediately have told the police
about K., and of the fact that he could confirm the events,
at least
up to a point, and also the identity of the attacker.
[22.]
There
were material discrepancies and inconsistencies in the evidence of
the complainant and K., and between the evidence and the
statement of
K..
[23.]
In
his police statement K. claimed to have witnessed the appellant
slapping the complainant. On the complainant’s version
the appellant had never slapped her, or even attempted to do so, in
the presence of K.. In his evidence K. conceded that
his police
statement was wrong on this and that he had never seen the
complainant being slapped.
[24.]
In
fact, although K. confirmed that the complainant had asked him to
tell the appellant to let her go, everything appeared to him
to be
normal between the two of them. So much so that, when he asked
the complainant whether the appellant was her boyfriend,
she,
according to him, just smiled. There is furthermore no room in
K.’s evidence and version for the appellant to
have threatened
to hit him with an umbrella. According to K. he left the
appellant and the complainant behind, because he
noticed nothing
strange or alarming at that stage. K.’s version is
completely irreconcilable with the complainant’s
version of a
forceful kidnapping.
[25.]
K.
said the complainant and the appellant were in a busy street when he
came across them. This raises not only the question
why the
complainant had asked only him for help (as opposed to having
screamed for help), but also the question why the appellant
would
have been so brazen as to grab and kidnap the complainant in broad
daylight and in a busy street, for all to witness.
[26.]
Another
troubling aspect of K.’s evidence is that, although he agreed
that the events occurred at around noon that day, he
also testified
that he had in fact accompanied the complainant halfway to her school
that morning at around as early as 8 o’clock.
This is
simply irreconcilable with the complainant’s version, which
left the impression that she had collected her report
and was on her
way back when she was accosted by the appellant. There would on
the complainant’s version be no explanation
for her whereabouts
during that period.
[27.]
On
her own version the complainant had ample opportunity to scream for
help when the appellant took her to his house from the second
rape
scene. Initially her explanation for her failure to do so was
that she had been too scared to scream. This would
be difficult
to reconcile with the picture that she had painted of her repeatedly
challenging her attacker to carry out his threats.
Later in
cross-examination she testified that she had indeed tried to scream,
but had then kept quiet when the appellant threatened
to hit her.
[28.]
Why
would the appellant have taken her to his house, after having
violently assaulted and raped her, and allow the woman at his
maternal home to see the complainant, especially if she had at that
stage been without her t-shirt and with visible physical injuries?
The complainant significantly also failed to mention in her statement
that the appellant had taken her to his house.
[29.]
And
why did the complainant not ask the woman at the house for help?
Instead they seem to have had a normal conversation;
certainly not
the type of conversation one would expect between, on the one hand,
an elderly woman who is unexpectedly confronted
with the sight of a
strange half-clothed and injured woman on their premises and, on the
other hand, a young woman who had just
been kidnapped, beaten up and
raped twice. The complainant’s evidence that she was too
heartbroken to ask the woman for help,
makes no sense in
circumstances where she had on her own version had a conversation
with the woman.
[30.]
There
was furthermore no evidence by the investigating officer as to
whether any attempt had been made to obtain a statement from
the
woman the police met when the complainant pointed out the appellant’s
house to them. It is not clear whether that
woman was the same
person that the complainant had according to her spoken to earlier
but, if not, there was no evidence that attempts
had been made to
trace the woman the complainant had spoken to.
[31.]
Why
would the appellant, who had until then not tolerated any resistance
by the complainant, have been quite happy to forget about
going to
the Chisanyama?
[32.]
Why
would he have returned her umbrella, if he had intended to rob her of
her belongings? Why did the complainant not also
at that stage
ask for the return of her t-shirt?
[33.]
The
alleged report to Mrs A. is not really relevant, because the issue
never was whether the complainant had consented to sexual
intercourse, and it is trite that such a report cannot serve as
corroboration of a complainant’s evidence of rape
[4]
.
[34.]
Mrs
A.’s evidence in any event contradicted her police statement.
In the statement she said that she had never looked
at the
complainant’s clothes when the report was made to her, but in
her evidence she said that she had noticed that the
complainant’s
clothes were dirty. This too is a clear contradiction. It
cannot be dismissed as a mere inaccuracy,
and certainly not as an
issue of lack of detail.
[35.]
The
complainant never mentioned two rapes, at two different scenes, to
Mrs A. or to the police photographer; only one scene and,
therefore,
only one rape.
[36.]
Perhaps
the most concerning aspect though was the fact that the appellant was
excluded as the donor of the semen found in the complainant
and on
her panty. When confronted with this in cross-examination the
complainant testified that she had sexual intercourse
with her
boyfriend the night before. This was consistent with what she had
according to the medical report told the nurse who examined
her.
[37.]
The
problem is, however, that the prosecution failed to present evidence
that semen deposited during intercourse the previous night
would
still have been traceable in the complainant’s body the next
afternoon. It may indeed be the case, but a court
cannot make
such a finding in the absence of evidence to that effect.
[38.]
According
to the complainant the appellant had not used a condom, but she
maintained that he had never ejaculated inside her.
At that
stage of cross-examination there was a problem with the recording of
the evidence, but it appears as if the complainant
testified that she
had not felt the appellant ejaculating. If that had indeed been
her evidence, it would be difficult to
reconcile with the
complainant’s evidence-in-chief that the appellant had forced
her to the second rape scene “
After
he was done
”
at the first rape scene.
[39.]
Why
was the DNA-profile of the complainant’s boyfriend not compared
with that of the semen found in and on the complainant?
If it
was a match, it may have gone a long way towards corroborating the
complainant’s version, although there would still
have been the
problem that there was no evidence as to when the tear in the
posterior fourchette had been caused, leaving the possibility
open
that it may have been caused by the same person whose semen was
found. The judgment of the Regional Magistrate makes
no mention
of this issue, leaving one with the feeling that it may never have
been considered.
[40.]
While
there certainly is in my mind strong suspicion that it is the
appellant that had attacked and raped the complainant, be it
once or
twice, the plethora of discrepancies and improbabilities leave one
with the distinct feeling that there may have been more
to this
matter than meets the eye; as does the failure on the part of the
police and the prosecution to address the issues referred
to above.
[41.]
It
left open,
inter
alia
,
the reasonable possibility that the appellant had not been the one
who caused the tear in the posterior fourchette of the complainant.
[42.]
There
was in any event no evidence that the presence of a tear in that
position of the posterior fourchette would be indicative
of forceful
intercourse. The medical report was handed in after the
appellant’s representative indicated that there
was no
objection to it being handed in. The nurse who had examined the
complainant was never called to testify to explain about
when the
tear could have been sustained, and to motivate and explain the
conclusion of forceful vaginal penetration. This procedure
has often
before been criticised
[5]
and
courts have repeatedly been warned not to make inferences from such
findings without proper expert evidence
[6]
.
The unsubstantiated and unexplained conclusion of the nurse did not
constitute such evidence, simply because, in the
absence of an
explanation of the grounds and reasons for that conclusion, it
remained just that; an unsubstantiated opinion which
the Regional
Magistrate was not entitled to accept without more in the
circumstances
[7]
.
[43.]
“…
in
the search for truth it is better that guilty men should go free than
that an innocent man should be punished. … If then
the police
do not fully and properly investigate crimes, …, as a result
of which insufficient evidence is made available
to the prosecution
and in consequence put before the Court, guilty men will go free, not
because of the existence of the rule to
which I have referred, but
simply because cases have been inadequately investigated
”
[8]
.
[44.]
In
my view the appeal should succeed and the following order is
therefore made:
THE
CONVICTIONS AND SENTENCES ON ALL FOUR COUNTS ARE SET ASIDE.
______________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
I
concur.
______________________
B
M PAKATI
JUDGE
NORTHERN
CAPE DIVISION
For the
appellant:
ADV V N MAYISELA
Instructed
by:
JOB ATTORNEYS, KIMBERLEY
For the
respondent:
ADV R MAKHAGA
OFFICE
OF THE DIRECTOR OF PUBLIC PROSECUTIONS, NC
[1]
S v Monyane and Others
2008 (1) SACR 543
(SCA) para
[15]
[2]
RH v DE
2014 (6) SA 436
(SCA) para
[5]
[3]
Compare
S
v Rautenbach
2014
(1) SACR 1
(GSJ) para [128]
[4]
Compare
S
v Gentle
2005 (1)
SACR 420
(SCA) para [19];
S
v Hammond
2004 (2)
SACR 303 (SCA)
[5]
Compare
S
v MM
2012 (2) SACR
18 (SCA)
[6]
Compare
S v Melrose
1985 (1) SA 720 (ZS)
[7]
Compare
S
v Baleka and Others (3)
1986 (4) SA 1005
(T);
Stacey
v Kent
1995 (3) SA
344
(E) at 350G;
Van
Pletzen v Van Pletzen
1998 (4) SA 95
(O) at 100F
[8]
S v Kubeka
1982 (1) SA 534
(W) at 538H