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[2016] ZAKZPHC 23
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Mthethwa v S (AR773/2014) [2016] ZAKZPHC 23 (23 February 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
JUDGMENT
CASE
NO: AR773/2014
DATE:
23 FEBRUARY 2016
NOT
REPORTABLE
In
the matter between:
DUMISANI
MTHETHWA
...............................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
Coram
: Koen et Seegobin JJ
Heard
: 18 February 2016
Delivered
: 23 February 2016
ORDER
On
appeal from the Regional Court, Stanger (sitting as a court of first
instance):
The
appeal is upheld and the conviction and sentence are set aside.
JUDGMENT
SEEGOBIN
J (Koen J concurring):
[1]
This is one of those appeal records that fills one with a sense of
disquiet on a reading of it. It is an appeal
which emanates
from the Regional Court, Stanger. The appellant, a 42 year old
male, was arraigned in that court on a charge
of rape. The
allegation was that the appellant had unlawfully and intentionally
committed an act of sexual penetration with
the 22 year old
complainant by inserting his penis into her vagina without her
consent. The offence was alleged to have been
committed on 16
April 2009 at [N…..] [G…….], in the regional
division of KwaZulu-Natal. The offence
was to be read subject
to the relevant provisions of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007
as well as with the
provisions of
s51
and/or 52 and Schedule 2 of the
Criminal Law
Amendment Act 105 of 1997
, as amended.
[2]
The appellant, who was legally represented, pleaded not guilty and
elected to remain silent. The State’s
case rested on the
evidence of the complainant who was 22 years old by the time the
trial commenced on 23 April 2013,
Mrs [
C…….]
[N…….]
who is the complainant’s aunt and with
whom the complainant resided, and Constable
Gladys Ndlozi
who
recorded a statement from the complainant and thereafter referred the
matter to a special unit which attends to all investigations
concerning child and family abuse and other sexual offences.
Apart from this evidence, the medical report (J88) was admitted
by
agreement. The doctor who completed the report was never called as a
witness. I will return to the medical report and
to the
doctor’s findings later.
[3]
The appellant testified in his defence and called his wife, Miss
[
D……]
, to testify on his behalf. At the
conclusion of all the evidence the appellant was convicted.
Having found no substantial
and compelling circumstances present, the
trial court sentenced the appellant to 15 years imprisonment.
The present appeal
against conviction and sentence comes before this
court pursuant to a petition which was granted by this court on 6
February 2015.
[4]
The following facts were common cause:
(a)
The complainant is the biological daughter of the appellant;
(b)
for some time prior to the incident in question the complainant and
her sister [
Z…….]
resided with their aunt, Mrs
[N……], at [M……..] while their father, the
appellant, resided at [N…..]
[G……] with his
second wife, Miss [D…….];
(c)
a few months prior to the date in question, the complainant and her
sister left their aunt’s
place and went to live with their
father;
(d)
[Z….] stayed there for a short while and then left while the
complainant continued to live with
the appellant;
(e)
The offence in question was alleged to have been committed by the
appellant on 16 April 2009 but
was only reported by the complainant
about a month later in May 2009;
(f)
The complainant was examined by Dr MA
Deysel
at Kwa-Dukuza on
22 May 2009; and
(g)
Dr Deysel’s clinical findings as recorded in the J88 medical
report (Exhibit ‘A’)
suggested that the “appearance
of the complainant’s hymen was consistent with having had
sexual intercourse in the
past”.
[5]
The complainant was a single witness to the alleged offence and
therefore her evidence was required to be approached
with caution.
In terms of
s208
of the
Criminal Procedure Act 51 of 1977
an accused
can be convicted of any offence on the single evidence of any
competent witness. It is, however, a well-established
judicial
practice that the evidence of a single witness should be approached
with caution, his or her merits as a witness being
weighed against
factors which militate against his or her credibility
[1]
.
The correct approach to the application of the cautionary rule was
set out by Diemont JA in
S
v Sauls and Others
[2]
,
as follows:
“
There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness
(see the
remarks of Rumpff JA in
S v Webber
1971(1)
3 SA 754
(A)). The trial judge will weigh his evidence, will
consider its merits and demerits and, having done so, will decide
whether it
is trustworthy and whether, despite the fact that there
are shortcomings or defects or contradictions in the testimony, he is
satisfied
that the truth has been told. The cautionary rule referred
to by De Villiers JP in 1932 [in
R v
Mokoena
1932 OPD 79
at 80] may be a
guide to a right decision but it does not mean
'that
the appeal must succeed if any criticism, however slender, of
the witnesses' evidence were well-founded'
(per
Schreiner JA in
R v Nhlapo
(AD 10 November 1952) quoted in
R v
Bellingham
1955 (2) SA 566
(A) at
569.) It has been said more than once that the exercise of caution
must not be allowed to displace the exercise of common
sense.”
[6]
In
S
v Stevens
[3]
,
the SCA cautioned:
“
Courts
in civil or criminal cases faced with the legitimate complaints of
persons who are victims of sexually inappropriate behaviour
are
obliged in terms of the Constitution to respond in a manner that
affords the appropriate redress and protection. Vulnerable
sections of the community, who often fall prey to such behaviour, are
entitled to expect no less from the judiciary. However, in
considering whether or not claims are justified, care should be taken
to ensure that evidentiary rules and procedural safeguards
are
properly applied and adhered to.”
[7]
In light of the principles set out above, it becomes necessary to
examine the judgment of the trial court in order
to see whether it
was justified in concluding that the guilt of the appellant had been
proved beyond reasonable doubt. The
first
observation is
that the judgment is fairly short being only four pages. This
is indeed remarkable considering that the record
is 174 pages long
with the evidence itself taking up about 119 pages.
Secondly
,
a reading of the judgment reveals that the learned magistrate simply
failed to conduct a proper and thorough analysis of the evidence
presented on both sides before rejecting the appellant’s
version as being false beyond a reasonable doubt. Additionally,
she failed to provide cogent reasons for concluding that the evidence
had established the guilt of the appellant beyond a reasonable
doubt. Bearing in mind that the complainant was a single
witness to the rape, the learned magistrate failed to demonstrate
in
her judgment that she exercised the requisite caution when examining
such evidence. In fact, the learned magistrate did
not even pay
lip service to the cautionary rule and its application to the matter
before her. She made no credibility findings,
she did not
consider the merits and demerits of both the State and defence
witnesses and simply rejected the appellants version
out of hand
without providing any reasons therefor. As I will endeavor to
show hereunder the judgment of the learned magistrate
is thoroughly
unsatisfactory and raises serious doubts concerning the complainant’s
version of what transpired.
[8]
It is perhaps convenient at this stage to summarise briefly certain
established principles which govern how evidence
in a criminal trial
is to be evaluated. The following cases illustrate the point.
The list is by no means exhaustive.
[8.1]
Navsa JA in
S
v Trainor
[4]
referred (with approval) to the following passage by Nugent J (as he
then was) in the matter of
S
v Van der Meyden
[5]
:
“
It
is difficult to see how a defence can possibly be true if at the same
time the State's case with which it is irreconcilable is
''completely
acceptable and unshaken''. The passage seems to suggest that the
evidence is to be separated into compartments,
and the ''defence
case'' examined in isolation, to determine whether it is so
internally contradictory or improbable as to be beyond
the realm of
reasonable possibility, failing which the accused is entitled to be
acquitted. If that is what was meant, it is not
correct. A court does
not base its conclusion, whether it be to convict or to acquit, on
only part of the evidence. The conclusion
which it arrives at must
account for all the evidence. . . . The proper test is that an
accused is bound to be convicted
if the evidence establishes his
guilt beyond reasonable doubt, and the logical corollary is that he
must be acquitted if it is
reasonably possible that he might be
innocent. The process of reasoning which is appropriate to the
application of that test in
any particular case will depend on the
nature of the evidence which the court has before it. What must be
borne in mind, however,
is that the conclusion which is reached
(whether it be to convict or to acquit) must account for all the
evidence. Some
of the evidence might be found to be false; some of it
might be found to be unreliable; and some of it might be found to be
only
possibly false or unreliable; but none of it may simply be
ignored.”
[8.2]
In para [9] of
S v Trainor
, Navsa JA went on to say the
following:
“
[9]
A conspectus of all the evidence is required. Evidence that is
reliable should be weighed alongside such evidence as may be
found to
be false. Independently verifiable evidence, if any, should be
weighed to see if it supports any of the evidence
tendered. In
considering whether evidence is reliable, the quality of that
evidence must of necessity be evaluated, as must corroborative
evidence, if any. Evidence, of course, must be evaluated against the
onus
on any particular issue or in respect of the case in its
entirety. The compartmentalised and fragmented approach of the
magistrate
is illogical and wrong.”
[8.3]
Heher JA in
S
v Chabalala
[6]
said the following:
“
[15]
The trial court's approach to the case was, however, holistic and in
this it was undoubtedly right:
S v Van Aswegen
2001 (2)
SACR 97
(SCA). The correct approach is to weigh up all the
elements which point towards the guilt of the accused against all
those
which are indicative of his innocence, taking proper account of
inherent strengths 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. The result may prove
that one scrap of evidence or one defect in the case for
either
party (such as the failure to call a material witness concerning an
identity parade) was decisive but that can only be an
ex post
facto
determination and a trial court (and counsel) should avoid
the temptation to latch on to one (apparently) obvious aspect without
assessing it in the context of the full picture presented in
evidence. Once that approach is applied to the evidence in the
present matter the solution becomes clear.”
[8.4]
In
S
v Bhengu
[7]
,
Broome DJP quoted with approval the following passage from the
judgment of Leon J in
S
v Singh
[8]
in which it was said that:
“
The
proper approach in a case such as this is for the Court to apply its
mind not only to the merits and the demerits of the State
and defence
witnesses but also to the probabilities of the case. It is only after
so applying its mind that a court would be justified
in reaching a
conclusion as to whether the guilt of an accused has been established
beyond all reasonable doubt. The best
indication that a court has
applied its mind in the proper manner in the abovementioned example
is to be found in its reasons for
judgment including its reasons for
the acceptance and the rejection of the respective witnesses.”
[8.5]
On the importance of judicial officers to give reasons for their
decisions, the SCA in
S
v Mokela
[9]
had regard to what was stated by the Right Honourable Sir Harry
Gibbs, GCMG, AC, KBE, the former Chief Justice of the High Court
of
Australia, in the
1993 (67A) Australian Law Journal 494
where at 494
he said:
“
'The
citizens of a modern democracy — at any rate in Australia —
are not prepared to accept a decision simply because
it has been
pronounced, but rather are inclined to question and criticise
any exercise of authority, judicial or otherwise.
In such a
society it is of particular importance that the parties to litigation
— and the public — should be convinced
that justice has
been done, or at least that an honest, careful and conscientious
effort has been made to do justice, in any particular
case, and that
the delivery of reasons is part of the process which has that end in
view … ”
[9]
In light of all of the above, I consider that had the learned
magistrate applied her mind properly to the evidence
and conducted a
thorough evaluation thereof, she would have concluded that there were
serious discrepancies and shortcomings in
the State case. I
proceed to highlight some of these hereunder.
[9.1]
the first relates to the date when the complainant made a report of
the alleged incident. She averred that the incident
occurred on
16 April 2009 yet she only saw it fit to make a report to her aunt
sometime in May 2009, almost a month after the incident.
As
explanation for this delay, she averred that she felt brave to tell
her aunt because she was now away from her father (the appellant)
who
had earlier threatened her. She was no longer afraid of him.
However, under cross-examination she admitted that
she never told the
police that her father had threatened to kill her if she told anyone
about the incident.
[9.2]
In her evidence-in-chief- she averred that she told her stepmother,
Miss [D……], that very evening about
the rape but Miss
[D…..] did not believe her. Under cross-examination she
maintained that she never informed her stepmother
because she did not
think that her stepmother would believe her.
[9.3]
She initially testified that her father had threatened her with a
firearm, however, according to the J88 medical report
(Exhibit ‘A’),
she told the doctor that she was threatened with a knife. When
she was asked to explain this discrepancy,
she said that she was
confused. She further admitted that she never mentioned in her
statement to the police that her father
had threatened her with a
firearm. She maintained that she was confused when she made the
statement.
[9.4]
While she initially maintained in her evidence that she only made one
statement to the police, it transpired that she
had in fact made
three statements in 2009. It was for this very reason that she
was recalled by the defence to explain the
numerous discrepancies
which appeared in these statements and her evidence in court.
She was simply unable to provide a plausible
explanation for any of
them. She continued to maintain that she was confused.
[9.5]
The complainant’s medical examination was done five weeks after
the alleged incident. The medical report
was neutral in
providing any corroboration for the rape. The doctor merely
concluded “that the appearance of the hymen
was consistent with
having had sexual intercourse in the past”. If one has
regard to Miss D…..’s evidence,
the complainant had
informed her that she had a boyfriend in [D…….].
According to Miss [D……]
the complainant often came home
late from school and when questioned about this, she would say that
she needed to see her boyfriend
in [D……]. In
these circumstances it would have been reasonable for the court to
conclude that the complainant
was sexually active and that the
doctor’s findings were consistent with this.
[9.6]
As far as the first report is concerned, it is not clear on the
evidence whether the report was first made to the police
(according
to Constable
Ndlozi
) and thereafter to the social workers or
whether it was first made to her aunt who thereafter reported it to
the police and the
social workers. The complainant seemed to
suggest that she had already been to the police station prior to
making a report
to her aunt. This evidence was never
clarified. The complainant was attending school at that stage
and she had every
opportunity of making a report at the earliest
opportunity either to her class teacher or to her friend/s but she
simply failed
to do so.
[10]
These discrepancies aside, there are certain findings made by the
learned magistrate which are not borne out by
the evidence. For
instance, she found as a fact that the appellant persisted with his
conduct “until he was satisfied”.
However,
according to the complainant’s evidence, when she cried out and
told him that it was painful, he released her immediately
and told
her to have a bath. The learned magistrate also found that the
complainant went the very next day and reported the
incident to her
aunt, Mrs [N……], whereas according to the complainant
(and as I pointed out earlier) she made a report
to her aunt only in
May 2009. These findings once again demonstrate that the
learned magistrate simply failed to carefully
consider the evidence
before her.
[11]
In my view, had the learned magistrate analysed all the evidence
carefully, she would have found that the complainant
was a most
unsatisfactory witness whose evidence did not have the ring of truth
about it. She would have been justified in
concluding that the
evidence could not be relied upon for a safe conviction. Her
failure to conduct a proper evaluation of
the evidence amounts, in my
view, to a serious misdirection on her part.
[12]
The appellant denied raping the complainant on the day in question.
He also denied owning a firearm.
A close reading of his
evidence and that of Miss [D….] suggests that the complainant
and her sister [Z……]
were not happy about their father
leaving their mother and marrying Miss [D…..]. According
to Miss [D……]
the complainant often remarked that she
wanted her father to resume his relationship with their mother.
Both the complainant
and [Z……] seemed to dislike Miss
[D…..] intensely. All this would have found reason on
the part of the
complainant to falsely implicate her father as a way
of getting back at him for marrying Miss [D…….].
In my
view, neither the appellant nor Mis [D…..] were bad
witnesses. If anything, they seemed to be far more consistent
in their evidence compared to the complainant. All in all, I am
not persuaded that the guilt of the appellant was proved beyond
a
reasonable doubt. It follows that the conviction cannot stand.
ORDER
[13]
The order I make is the following:
The
appeal is upheld and the conviction and sentence are set aside.
I
agree
KOEN
J
Date
of Hearing : 18 February 2016
Date
of Judgment : 23 February 2016
Counsel
for Appellant : TP Pillay
Instructed
by : Justice Centre, Pietermaritzburg
Counsel
for Respondent : Z Dyasi
Instructed
by : The Director of Public Prosecutions, Pietermaritzburg
[1]
See,
for example, S v Webber 1971(3) SA 754 (A) at 758 G-H.
[2]
1981(3)
SA 172 (A) at 180 E-G.
[3]
[2005]
1 All SA 1
(SCA).
[4]
2003(1)
SACR 35 SCA at page 40, para [8]; see also: S v Mathonsi 2012(1)
SACR 335 (KZP).
[5]
1999(1)
SACR 447 (W) at 449h-450b.
[6]
2003(1)
SACR 134 (SCA) at p.139, para [15].
[7]
1998(2)
SACR 231 N
[8]
1975(1)
SA 227 (N) at 228 G-H.
[9]
2012(1)
SACR.