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[2016] ZANCHC 58
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Manong v S (CA&R29/2016) [2016] ZANCHC 58 (25 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division, Kimberley)
Saakno / Case
number:
CA
& R 29 / 2016
Datum
aangehoor / Date heard:
31
/ 10 / 2016
Datum
beskikbaar/Date available:
25
/ 11 / 2016
In
the matter between:
LUCAS
MONNAPULE
MANONG
Appellant
and
THE
STATE
Respondent
Coram:
Williams, J
et
Erasmus, AJ
JUDGMENT
ON APPEAL
ERASMUS,
AJ
[1]
The appellant, a 24 year old male, was convicted in the Regional
Court Kimberley on three counts of rape (counts 1, 2 and 4),
i.e. a
contravention of
section 3
of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act, No. 32 of 2007
and the further
charges of assault and assault with intent to cause grievous bodily
harm (counts 3 and 5). He was acquitted
on count 6. The
appellant was sentenced to an effective period of 30 years
imprisonment. The appeal was directed at
the convictions only,
having been granted leave to appeal by the court
a quo.
[2]
In respect of counts 1, 2 and 3 it was alleged that the crimes had
been committed on 29 and 30 November 2009 respectively.
In
respect of count 4 and 5 it was alleged that the crimes had been
committed on 7 August 2010.
[3]
Adv. Van Zyl Nel, on behalf of the appellant, conceded (and correctly
so in our view) that the court
a
quo
had
not misdirected himself in respect of the convictions on counts 4 and
5 pertaining to the events of 7 August 2010. The
complainant’s
evidence in respect of these crimes was corroborated in all material
aspects by three other witnesses.
[5]
It is common cause that the appellant and the complainant had been
involved in a long term relationship and that a daughter
had been
born therefrom. The complainant had ended the relationship
earlier during the week preceding the events of 29 and
30 November
2009. The appellant wanted to reconcile and had approached the
complainant with a view to rekindle their relationship.
Whether
she had indeed agreed to such reconciliation remained at the core of
the matter before us.
[6]
According to the complainant she had refused to reconcile but agreed
to be friends with the appellant for the sake of their
child.
On 29 November 2009 they had agreed to have a cold drink together and
had played a game of pool. Having informed
him later that
evening that she no longer loved him, the appellant began to swear at
her, made threats towards her and slapped
her. They eventually
ended up at the appellant’s residence. He insisted that
she and the child sleep over and
she only agreed because she was
fearful of him. The appellant then had sexual intercourse with
her against her will; once
during the evening of 29 November and
again the following morning. All three of them went to her
parental home. Here she
washed the child before the appellant took
the child to the crèche. When she complained to her
brother in law about
the appellant’s abusive behaviour, he
suggested she report it to the police and having told the police that
the appellant
had raped her he was subsequently arrested. She
underwent a medical examination. The nurse who had conducted
the examination
noted a tear at the 6 o’ clock position on the
posterior fourchette and concluded that the injury corresponded with
forceful
vaginal penetration.
[7]
The appellant’s version was that the complainant had agreed to
the reconciliation and that they had had consensual sexual
intercourse during the evening of 29 November 2009. He had
insisted on having sexual intercourse as he wanted to be sure
that
the complainant had been sincere in agreeing to reconcile. She
consented to sleep at his residence and voluntarily spent the
night.
He denied either assaulting or threatening her.
[8]
The learned Regional Magistrate, Mr. Hole, found that the
complainant’s supposed agreement to reconcile and consent to
sexual intercourse was as a result of the appellant’s
intimidation. The complainant neither intended to reconcile nor
consent to sexual intercourse. The appellant, on his version,
had doubted the sincerity of the complainant and he wanted
to have
intercourse with her as proof or assurance of her sincerity.
The learned Regional Magistrate further found that the
appellant, who
had created a situation of fear and terror, could not later claim the
benefit of having been led to believe that
consent was present.
[9]
In respect of the convictions which relate to the incidents of 29 and
30 November 2009, Mr. Nel submitted that the convictions
and
sentences stand to be set aside as the court
a
quo
had
misdirected himself in that he:
9.1
failed to take into account that the complainant was a single witness
whose evidence warranted a cautionary
approach;
9.2
failed to identify and critically evaluate the numerous
improbabilities inherent to her version and
that this resulted in an
unqualified acceptance of her improbable and uncorroborated evidence;
and
9.3
found that the appellant’s inability to provide a reason why
the complainant would falsely incriminate
him, strengthened her
version and negated his.
[10]
Adv. Mxabo, on behalf of the respondent, agreed with the concessions
of Mr. Nel in respect of counts 4 and 5. He however
submitted
that the appeal against the convictions on count 1, 2 and 3 should be
dismissed. He submitted that the sexual intercourse
could not
have been consensual as the complainant had been intimidated and
threatened because the appellant had had some doubt
as to whether the
complainant had been sincere and therefore insisted on having sexual
intercourse with her. Mr. Mxabo also
submitted that the injury
which the complainant had sustained during the intercourse
corroborated her version of non-consensual
intercourse.
[11]
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
do so if it
is convinced that the findings were wrong.
[1]
In
S
v Monyane and Others
[2]
Ponnan
JA stated:
'This
court's powers to interfere on appeal with the findings of fact of a
trial court are limited. It has not been suggested that
the trial
court misdirected itself in any respect. In the absence of
demonstrable and material misdirection by the trial court,
its
findings of fact are presumed to be correct and will only be
disregarded if the recorded evidence shows them to be clearly
wrong
(S v Hadebe and Others
1997
(2) SACR 641 (SCA)
at 645e – f)…”
[12]
When considering the evaluation of the evidence by the trial Court,
it should be kept in mind that there is no
onus
on an accused to convince the Court that his version is true.
I
t
is
not
a prerequisite for an acquittal that a court should believe the
innocent account given by him; it is sufficient if his version
might
be substantially true.
He
is not required to prove his innocence.
[3]
In
S
v V
[4]
Zulman JA remarked as follows:
“…
It
is trite that there is no obligation upon an accused person, where
the State bears the onus, 'to convince the court'. If his
version is
reasonably possibly true he is entitled to his acquittal even though
his explanation is improbable. A 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.
It is
permissible to look at the probabilities of the case to determine
whether the accused's version is reasonably possibly true
but whether
one subjectively believes him is not the test. As pointed out in many
judgments of this Court and other courts the
test is whether there is
a reasonable possibility that the accused's evidence may be
true…
.”
[13]
We agree with the submission of Mr. Nel that the complainant’s
uncorroborated evidence was inconsistent with the
probabilities and
not materially satisfactory.
13.1
From the evidence it appears that the complainant had neither sought
assistance from other people, nor attempted to leave
his company at
any stage during her interaction with the appellant on 29 November
2009. It would have been expected of her
to seek help or to
leave his company given the fact that the appellant had become
abusive while they were playing pool and this
abusive conduct and
threats had escalated thereafter. As pointed out by Mr. Nel,
she had opportunity to do so.
13.2
The complainant had accompanied him to his bedroom and did not, after
the first sexual encounter leave the appellant
while he was asleep.
She had remained in his presence until the next morning, when they
had left his residence together.
13.3
The complainant and appellant proceeded to her parental home
together. She did not report the incident to her parents.
She also did not report the alleged rape to her brother in law.
No evidence of any emotional distress had been adduced.
[14]
Although we are mindful of the advantages which the trial Court had
had in observing the complainant and appellant, the
learned Regional
Magistrate’s reasons for rejecting the appellant’s
version and accepting the evidence of the complainant
in this matter
are unsatisfactory. We have already referred to the
improbabilities
in the version of the complainant. The version of the appellant
is not inherently improbable. The complainant’s
concession
that
the appellant would not have known that she had not consented to the
sexual intercourse,
should
have been considered in the context of all the evidence and the
probabilities.
It
appears from the judgment of the Court
a
quo
as if this concession by the complainant, was not attributed
sufficient weight during the evaluation of the evidence.
[15]
We
are satisfied that the Court
a
quo
was
wrong in finding that the appellant’s version in respect of the
charges pertaining to 29 and 30 November 2009 was not
reasonably
possibly true. The appeal in respect of counts 1, 2 and 3
should
therefor succeed.
[16]
It has already been conceded that the appeal against the convictions
on counts 4 and 5 should be dismissed.
We
therefor make the following order:
1.
THE
APPEAL AGAINST THE CONVICTIONS ON COUNTS 1, 2 AND 3 SUCCEEDS AND THE
CONVICTIONS AND SENTENCES IN RESPECT THEREOF ARE SET ASIDE.
2.
THE
APPEAL AGAINST THE CONVICTIONS ON COUNTS 4 AND 5 IS DISMISSED.
_______________
SL
ERASMUS
ACTING
JUDGE
I
agree.
__________________
CC
WILLIAMS
JUDGE
On
behalf of Appellant:
Adv.
v.Z Nel (oio Legal Aid SA)
On
behalf of Respondent:
Adv.
Mxabu (oio The NDPP)
[1]
R v Dhlumayo
and Another
1948(2)
SA 677 (A) op 705 -706
[2]
2008
(1) SACR 543
(SCA)
para 15; See also
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]
R v Difford
1937
AD 370
at 272;
S v Pistorius
2014 (2) SACR 314
SCA at 319 (h) to (i)
[4]
2000 (1) SACR 453
(SCA) at para [3]