About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2016
>>
[2016] ZAKZPHC 65
|
|
Jali v S (AR507/2014) [2016] ZAKZPHC 65 (2 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
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
JUDGMENT
CASE
NO: AR507/2014
DATE:
02 JUNE 2016
NOT
REPORTABLE
In
the matter between:
THANDISIZWE
JALI
......................................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
Coram
: Seegobin, Poyo Dlwati JJ et Hemraj AJ
Heard
: 27 May 2016
Delivered
: 02 June 2016
ORDER
On
appeal from the Regional Court, UMzimkhulu (before Mr Sihlahla,
sitting as a court of first instance) it is ordered that:
The
appeal is upheld and the conviction and sentence are set aside.
JUDGMENT
SEEGOBIN J:
[1]
This is an appeal against conviction and sentence. The appellant, a
33 year old male, was convicted on 6 December 2010 in the
UMzimkhulu
Regional Court, KwaZulu-Natal, of two counts of rape committed on two
different dates in respect of a 14 year old girl.
He was
sentenced to life imprisonment after both counts were taken as one
for the purpose of sentence.
[2]
This appeal first came before the Full Bench (
Lopes J and V Naidoo
AJ
) on 19 May 2015. In view of the fact that the learned
Judges were unable to reach any consensus on the outcome of the
appeal
the matter was referred to this Court.
[3]
The appellant, who was legally represented, pleaded not guilty in the
court
a quo
. His defence was a bare denial.
[4]
The charge sheet alleged that the two incidents of rape occurred on
28 September 2009 and 3 October 2009 respectively.
The State’s
case rested on the evidence of the complainant who was 15 years old
by the time the trial commenced on 4 August
2010, as well as on the
evidence of the witness
M N
to whom the first report was
allegedly made, and the complainant’s mother
Z D
.
[5]
The J88 medical report (Exhibit B) was admitted by agreement.
Dr Reddy who completed the report was never called as a
witness.
The report indicates that the young complainant was examined by Dr
Reddy on 7 October 2010 at the Rietvlei Hospital.
Her general
history was recorded as follows: “Patient allegedly raped on
3.10/9. Presents now on 7/10/9 for evidence
collection.
Allegedly raped by same man this year August”. Below the
heading ‘CONCLUSIONS’ on the
form Dr Reddy placed a
question mark before the word rape as follows: “? Rape”.
[6]
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
person 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.”
[7]
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.”
[8]
In light of the above principles and for the reasons setout
hereunder, I entertain serious doubt as to whether the guilt of
the
appellant was proved beyond a reasonable doubt. I start with
the evidence of the complainant:
[8.1]
She testified that at about 16h30 on 28 September 2009 she was
returning from a friend’s place when she met up
with the
appellant who she referred to as
T
. The place where she
met up with the appellant was along a passage where there was grass.
After greeting the complainant
the appellant grabbed her by her
hand. He pulled her towards him and pushed her to the ground
and covered her mouth.
He thereafter lifted her skirt and
removed her panty but not completely. He merely moved it to one
side of her leg.
He thereafter lowered his trouser and
proceeded to rape her. She described the rape as being painful
and that she bled from
her vagina. After the incident the
appellant offered her R150 which she refused to accept.
[8.2]
she testified that the appellant threatened to kill her if she told
anyone about what had happened. It was for this
reason that she
decided to keep quiet. However, by 5 October 2009 when she
failed to get her periods, she decided that she
was not going to keep
quiet any longer. At this point in her evidence she was
specifically asked by the prosecutor whether
there was any similar
incident to the one of the 28 September 2009 that occurred to her and
her reply was “No, your Worship,
no incident”.
[8.3]
The complainant went on to testify that on 5 October 2009 she
requested the witness M N to lend her her phone so that she
could
phone her mother. When M asked her what happened the
complainant informed her that she will tell her once she had spoken
to her mother. She then phoned her mother. She testified
that thereafter she told Mampofana about the incident of 28
September
2009.
[8.4]
To a leading question from the prosecutor as to whether she told M
about any other incident she then said that on one
day the appellant
called her saying that he wanted to take her somewhere. This,
according to the complainant, occurred on
3 October 2009. She
testified that on this occasion the appellant called her from her
home saying that he wanted to send
her somewhere. When she went
to his house he asked her to come inside and get the money. She
entered his house.
The appellant asked her to take the money
which she did. He then closed the door. He then grabbed
her and pushed her
onto the bed. He proceeded to rape her in
the same manner as on the first occasion.
[8.5]
She went on to testify that after he finished he tried to give her
some money which she refused to accept. She
then dressed and left.
Once again the appellant threatened that he would kill her if she
made a report to her mother.
When she made the report to her
mother and M on 5 October 2009, her mother came home. M then
examined the complainant.
She reported that there was
‘something that had happened there’. The
complainant was taken to the doctor on 6
October 2009 to be examined.
[8.6]
The witness M testified that the complainant had reported to
her that one day the appellant had raped her. The
complainant
provided her with details of what happened only after her mother
arrived. Initially in her evidence the witness
was adamant that
the complainant mentioned only one incident of rape. When the
prosecutor questioned her further on this
aspect, she then said that
she was not sure. However, when the court questioned her she
maintained that the complainant informed
her that the appellant had
raped her for the second time. When the witness was cross-examined by
the appellant’s legal representative,
she created the distinct
impression that she was experienced in inspecting girls to determine
whether they were still virgins and/or
whether something was amiss.
As far as the complainant was concerned she concluded (from the
inspection) that something had
taken place on more than two
occasions.
[8.7]
The evidence of the complainant’s mother was only relevant in
order to prove the complainant’s date of birth which
was 15
September 1994.
[9]
The appellant testified and also called
Inspector Caluza
as a
witness in his defence. The appellant denied raping the
complainant as alleged. He denied meeting the complainant
on 28
September 2009 or calling her to his house on 5 October 2009.
He agreed that he was known to the complainant as they
are
neighbours. He suggested that the complainant probably had
sexual intercourse with someone else and was now implicating
him.
He further said that the complainant was engaged in a love
relationship with boys and that she would spend the night
at their
place.
[10]
Inspector Caluza was the first investigating officer in the matter.
The gist of his evidence was that the complainant
had told him that
she made a mistake when she mentioned that she was raped twice when
it was only once. Inspector Caluza
thereafter interviewed the
witness M who confirmed that the complainant reported only one
incident of rape to her. Inspector
Caluza testified that he
entertained some doubt about the complainant’s version.
Inspector Caluza’s written statement
was handed in as Exhibit
“C” at the commencement of the trial. In that
statement he records that he had information
to the effect that the
appellant was not at home on 3 October 2009 which was a Saturday.
He records that the complainant
then told him that she was not raped
by the appellant on that Saturday. She stated that she made a
mistake because she was
disturbed in her mind. In his oral
testimony Inspector Caluza stated that the complainant had indicated
that she was confused.
[11]
It becomes patently obvious from the evidence that I recounted above,
that there are certain serious discrepancies and shortcomings
in the
State case which tend to create some doubt as to the veracity of the
complainant’s version and her credibility as
a witness. I
set out some of these hereunder:
[11.1]
The
first
is that she was adamant that the appellant only
raped her once. It was only when she was prompted by the
prosecutor through
a leading question that she then testified about a
second incident. Even the witness M was sure that only one
incident was
mentioned. She later said that she was not sure
whether the complainant had mentioned another incident. It was
only
when she was questioned by the court did she say that two
incidents were mentioned. Even Inspector Caluza, whose
credibility
was never questioned, was doubtful whether there were two
incidents or not. In my view, and bearing in mind that these
incidents
were alleged to have been committed within days of each
other, there’s no conceivable reason why the complainant would
be
unsure of the number of incidents unless of course she was
fabricating her version which seems more likely.
[11.2]
The
second
relates to the date when she went to hospital.
She maintained that she went on the 5
th
and 6
th
of October 2009 whereas the J88 medical report (Exhibit “A”)
recorded that she was examined on 7 October 2009.
[11.3]
The
third
relates to the general history recorded by Dr Reddy
which suggests that she was raped on 3 October 2009 and by the same
man in
August. There was no reference whatsoever to the month
of August in the evidence, whether by the complainant or by any other
witness.
[11.4]
The
fourth
is that even Dr Reddy seems to have entertained
some doubt about the rape/s having regard to what he wrote under the
heading ‘CONCLUSIONS’.
In my view, Dr Reddy ought
to have been called as a witness to explain why he placed a question
mark before the word ‘rape’
in the report. Bearing
in mind the tender age of the complainant and the fact that the
second incident allegedly occurred
about four days before she was
examined by Dr Reddy it seems highly unlikely that no injuries would
be found by him.
[11.5]
The
fifth
relates to the first report and whether this was in
fact made to the witness M or to the complainant’s mother.
M maintained
that the complainant initially only told her that she
was grabbed by Gege, referring to the appellant. M only heard
of the
alleged rape once the complainant’s mother arrived.
In these circumstances it can hardly be suggested that the first
report was made to M. However, a crucial aspect of M’s
evidence is that when she inspected the complainant she concluded
that something had taken place on more than two occasions. This
seems to suggest that the complainant was far more sexually
active
than she would have anyone believe.
[11.6]
The
sixth
relates to why the complainant would willingly go to
the appellant on the 3 October 2009 knowing that he was the one who
had raped
her barely five days before. The appellant did not
reside in the same house as the complainant and she could have made
some
excuse or the other not to go to him when he called her.
In my view, no rape victim would want to be in the company of someone
who has just committed the most despicable act on them. The
complainant’s version in this regard just does not have
the
ring of truth about it.
[12]
Having regard to the serious deficiencies in the State case, it is
more probable, in my view, that the complainant had engaged
in sexual
intercourse with her boyfriend and for reasons known only to herself
she decided to implicate the appellant. Inasmuch
as the crime
of rape has reached endemic proportions in the country, there is now
an even greater need for judicial officers to
be vigilant about the
matters that come before them. A greater scrutiny of the
evidence is required to ensure a safe conviction.
A rape
conviction should only follow upon the clearest of evidence.
This must include all the evidence including the medical
evidence
that is available. A failure to properly consider and apply all
the procedural safeguards could result in a failure
of justice as
happened in this matter.
[13]
In light of all of the above I am not persuaded that the guilt of the
appellant was proved beyond a reasonable doubt. It follows
that the
conviction cannot stand.
ORDER
[14]
The order I make is the following:
The
appeal is upheld and the conviction and sentence are set aside.
POYO
DLWATI J
I
agree
HEMRAJ
AJ
Date of
Hearing : 27 May 2016
Date of
Judgment : 02 June 2016
Counsel for
Appellant : I Khan
Instructed by
: Justice Centre, Pietermaritzburg
Counsel for
Respondent : A Watt
Instructed by
: Director 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).