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[2016] ZAECMHC 6
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Nohaji v S (CA&R 72/14) [2016] ZAECMHC 6 (24 March 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
CASE
NO: CA&R 72/14
DATE:
24 MARCH 2016
In
the matter between:
AYANDA
NOHAJI
....................................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
MAKAULA
J
:
Date
Heard: 16 October 2015
Delivered
On: 24 March 2016
A.
Introduction
:
[1]
This is an appeal against a conviction and sentence by the regional
court for the Eastern Cape Division sitting at Mthatha.
The appeal is
before us with the leave of this court on petition. The appellant was
convicted of rape and sentenced to undergo
20 years imprisonment, two
years of which was conditionally suspended for a period of five
years. I should mention upfront that
when the matter was argued
before us, Mr Pangwa for the appellant, correctly in my view,
abandoned the appeal against sentence.
[2]
The grounds of appeal are as follows:
“
1.
The Learned Magistrate erred and misdirected Herself to find that the
State has discharged its onus beyond reasonable doubt in
the said
matter.
2.
The Learned Magistrate erred in rejecting the version of the
appellant which was never contradicted by the state and which is
probably true. (sic)
3.
The Learned Magistrate erred in finding that the evidence of the
second state witness was corroborating the evidence of the
complainant for the (sic) of the appellant.
4.
The Learned Magistrate ought to have found that the evidence of the
State was one of a single witness as a result thereof a cautionary
rule applied.
5.
The Learned Magistrate erred and misdirected Herself in finding that
the conclusion in J88 form was corroborating the evidence
of the
complainant.
6.
The Learned Magistrate erred and misdirected Herself in impending the
appellant from launching application in terms of Section
174 of the
Criminal Procedure Act of 1977.” (sic)
[3]
I shall not deal with the grounds in respect of sentence for the
reason aforesaid.
B.
The facts
[4]
The magistrate relied on the evidence of two witnesses and the
medical report in convicting the appellant. The complainant
is
[L……] [N…...] who testified that on 9 September
2013 she was at her home at [L…..]. She is
married with
one child. The complainant testified that it was about 23h00
that the appellant came inside her house through
a window. The
complainant testified that whilst the appellant was entering through
the window she had an opportunity of phoning
her husband and
informing him that the appellant was breaking into her house. On
entering, the appellant demanded money from her.
She told him
that she did not have money. The appellant then ordered her to
undress telling her that he wanted to have sex with
her as he had
long been longing for her. She refused.
[5]
The appellant held her by her neck and forcefully removed her panty
and had sexual intercourse with her without her consent.
During
the sexual intercourse the appellant ordered her not to scream lest
he would kill her. The appellant had sexual intercourse
with
her several times until about 3h00. At about that time her
child started to cry. The appellant asked why was the
child
crying. She told the Appellant that the child probably wanted
to relieve himself. The appellant then ordered
the complainant
to take the child outside, which she did. She managed to escape
to [N…..’s] house leaving the
child behind.
[6]
She informed [N…….] of what had happened. [N…….]
suggested that they should go to another man’s
house to report
because she was afraid to go to complainant’s house alone.
As they were still inside [N…..’s]
house, they saw the
appellant walking past the house.
[8]
She and [N…….] went to her house to fetch the child.
Under cross-examination she testified that she could not
scream nor
do anything because the appellant threatened to kill her. She was
afraid of the appellant. She testified as follows:
“
I
told him, and I wanted to fight back, beat him but he said he would
kill me if I fought . . .he kept on putting his hand into
his pocket,
and it was as if he was going to take something out, but I did not
see what it was.”
[9]
She denied the version of the appellant as put to her. She admitted
that she was surprised by the conduct of the appellant of
remaining
inside the house when he knew that he had raped her. Other than
that nothing turns on her cross-examination.
[10]
The next witness called was [N…….] [T…….]
([N……])
who testified that she knew both
appellant and the complainant because they stayed in the same
locality. She testified that
on the day in question, early in
the morning, she heard a hard knock on her door. After the
person identified herself she
asked a child to go and open the door
for her. It was the complainant. The complainant stayed
about three houses away
from her house. The complainant ‘
was
crying, hysterical and also rubbing her hands against each other
holding her skirt’
. She reported that the appellant
was at her house and had raped her.
[11]
They left her house and on the way to complainant’s house she
suggested that they should go and report to a certain homestead
where
there was a man. As they were going to that homestead, she saw
the appellant leaving the complainant’s house.
She
instructed her children to go and fetch complainant’s child who
had remained alone in complainant’s house.
Nothing turns
on the cross-examination of this witness.
[12]
The medical certificate was handed up by consent. The doctor
who examined the complainant made the following clinical
findings:
“
Vaginal
examination: tears on the vaginal opening at 6 O’clock,
yellowing vaginal discharge, no bleeding observed.”
The
conclusions were:
“
Penetration
with a blunt object probable.”
[13]
Mr Pangwa, appearing on behalf of the appellant in the court
a
quo
, made an application in terms of Section 174 of the Criminal
Procedure Act 51 of 1977
(the Act)
which in my view was
correctly refused by the magistrate.
[14]
The appellant testified that he knew the complainant very well as
they were staying in the same locality. He testified
that on 9
September 2013 he met with the complainant. At the time he was
hitch-hiking to [L……] village.
He asked where she
was going and she told him that she was going to the shop. He
asked the complaint to buy him a lose cigarette.
She came back
with the cigarette. They chatted. During their
conversation the complainant said to him ‘
people were
talking about us, saying that we are just handsome, and yet we don’t
have girlfriends or partners.’
On hearing that, he decided
to propose love to her. They exchanged cellphone numbers.
[15]
The appellant went to [L……..] village and came back.
He attended a party that was hosted in a certain homestead.
The
complainant phoned to say she had accepted his love proposal.
She further invited him to her house. He turned down
the
invitation. She again phoned later on in the evening asking
whether he was coming to visit her. He told her that
he was not
coming. At about 23h00 the complainant again phoned him
inviting him to her house. It is then that he decided
to go to
complainant’s house because the complainant was pestering him.
[16]
On arrival at complainant’s place, the complainant opened for
him and he got inside the house. The complainant
invited him to
her bed. He complied and they started kissing and caressing
each other. That led to them having sexual
intercourse.
He had sexual intercourse with her for about three times in
intervals. In between the sexual intervals,
they would
converse. He eventually fell asleep. He woke up on
hearing the child cry. It was in the early hours
of the morning
round about 4h00. He enquired as to why the child was crying.
She told him perhaps the child was hungry.
She tried to feed
the child but the child continued to cry. She then went outside
with the child saying that the child
wanted to relieve himself.
He remained sleeping on the bed. Whilst still asleep he heard
the child crying outside.
He went to investigate and discovered
that the child was alone and the complainant was not there. He
took the child inside
the house. Because it was already in the
morning he decided to go to his home leaving the child alone.
[17]
As he was walking home he heard people talking in a certain
homestead. When he got to his home, he saw people standing
in
front of a certain house talking to his aunt. He did not hear
what they were talking about. He went to the toilet.
Whilst in the toilet, he heard her aunt talking to those people
saying the appellant had been involved in a rape incident.
He
testified that he left his home the following morning because he
learnt that the complainant’s husband was coming back
from
Johannesburg to kill him. He did not report at his home that he
was leaving. He was arrested two months thereafter.
[18]
Under cross-examination the appellant conceded that he did not tell
anybody about the fact the complainant had approached him
and that
they were in love. He further testified that he did not tell
people that it was the complainant who had phoned him.
He said
that there was proof on his phone that he had been phoned by the
complainant. But he did not show anybody. He further
testified
that he did not think of going to the police to report the threats by
the complainant’s husband. He denied
that he raped the
complainant. The sexual intercourse with her was consensual.
The appellant did not call any witnesses.
[19]
Mr Pangwa, for the appellant, argued inter alia in his heads of
argument that the magistrate erred in finding that the injuries
reflected on the medical report
(J88)
corroborated the
evidence of the complainant in that sexual intercourse was not
consensual. He argued
'the tear could have been caused by
the length of the time between having and not having sexual
intercourse by the complainant which
is the period between January
2013 and September 2013, meaning that the vagina might be narrowed
during the said period that is
why after a long period of time there
was a tear on the vaginal opening.’
(Sic)
He further argued that the size of the penis of the appellant may
also cause such a tear. Mr Pangwa even
argued as follows in his
heads:
“
The
explanation from the doctor to explain how the labia looks like after
sexual intercourse and what caused same to be reddish
was
necessary.” (Sic)
[20]
He further criticized the medical report stating that there was no
tear on the posterior foschette and that was not explained
by the
doctor. The argument by Mr Pangwa was that there should have
been a tear on the posterior foschette. Mr Pangwa
referred us
to
S
v MM
[1]
where
Wallies JA said:
“
It
means that there is no opportunity for the doctor to explain the
frequently subtle complexities and nuances of the report, to
clarify
points of uncertainty and to amplify upon its implications and the
reasons for any opinions expressed in the report.
There may be
the difference between a conviction and acquittal or perhaps a
conviction on a lesser charge. Depending on the
areas of where
there is lack of clarity, the lack of clarification either benefit or
prejudice an accused. Neither result
is desirable.
Magistrate and Judges who confronted with these reports without
explanation do not have the requisite medical
knowledge to flash out
their full implications.”
[21]
I agree with the statement expressed by the Honourable Judge.
[22]
The facts in
S v MM (supra)
fly in the face of the argument of
Mr Pangwa for the reason that it is only in cases where there is
uncertainty and clarification
is needed where a doctor needs to be
called. In the instant matter there was absolutely no need to
call the doctor because
sexual intercourse is not in issue.
Furthermore, the doctor did not formulate an opinion as to how
injuries were sustained.
He/she merely recorded what he/she
observed when examining the complainant. The submissions made
by Mr Pangwa in paragraph
19 above are outrageous and opinionated.
All the J88 report says is that penetration had occurred, a fact
which is not disputed
by the appellant. However, I agree with
his submission that the magistrate erred in finding that the J88
report corroborated
the evidence of the complainant.
[23]
Mr Pangwa argued that the complainant is a single witness and the
evidence of [N…….] does not in any way corroborate
her
evidence with regards to the rape itself. It is correct that
the evidence of [N……] does not prove that
the appellant
raped the complainant.
[24]
The evidence of [N…….] is significant because it
confirms that the complainant went to her house, that she saw
the
appellant leaving the house of the complainant and further that the
complainant had left her 2 year old child alone at 3h00.
The
evidence of [N……] in other words corroborates the
complainant in this regard.
[25]
Nothing turns on Mr Pangwa’s argument regarding how he expected
the minor child to react or on the Appellant’s
failure to call
the police or her neighbours.
[26]
It is inconceivable that the complainant for no apparent reason, can
seduce and invite the appellant to her home only to leave
him lying
on the bed and lie about what had happened to her to [N…….].
The report by the complainant to [N…..]
at around 3h00 that
she had been raped by the appellant and the sudden emerging of the
appellant from complainant's home, is too
strange a coincidence.
It is further strange for the complainant to suddenly leave a person
who she desperately wanted to
make love to at 03h00. It is much
so, for the appellant, who had a pleasurable night with the
complainant, to just leave
her house without ascertaining where she
was and why she left the child alone at around 03h00 to leave her
house and the child
alone. At that stage, the appellant did not
know where the complainant was. It would, under the
circumstances, have
been, reasonable for the appellant to at least
have phoned the complainant and verify where she was before leaving
the child alone.
I am unable to find fault with the reasoning
of the magistrate in arriving at the conclusion she did. The
magistrate concluded
that the complainant was a credible witness.
In fact the magistrate commented as follows about how the complainant
gave her
evidence:
“
The
witness called by the state was impressive, and her evidence was
beyond reproach. I really could not find fault in her
evidence,
because her evidence there was consistency of her evidence with of
the witness to whom she reported.” (Sic)
[27]
In
R
v Dlumayo
[2]
the
court held:
“
The court of
appeal must bear in mind that the trial court saw the witnesses in
person and could assess their demeanour. If
there was no
misdirection of facts by the trial court, the point of departure is
that its conclusion was correct. The court
of appeal will only
reject the trial court’s assessment of the evidence if it is
convinced that the assessment is wrong.”
[28]
I am unable to find any misdirection on the part of the magistrate.
There is no justification to interfere with her credibility
findings.
She correctly found that the state had discharged the onus resting
upon it to establish the guilt of the Appellant beyond
a reasonable
doubt.
Consequently,
I make the following order.
(a)
The appeal is dismissed.
M
MAKAULA
JUDGE
OF THE HIGH COURT
I
agree and it is so ordered.
F
DAWOOD
JUDGE
OF THE HIGH COURT
Appearances:
Appellant:
Mr Pangwa
instructed by
Caps
Pangwa & Associates
Suite
202, First Floor
City
Centre Complex
York
Road
MTHATHA
Respondent:
Adv Van Wyk
instructed by
The
National Director of Public Prosecutions
Lower
Sission Street
Fortgale
MTHATHA
[1]
2012 (2) SACR 18
[2]
1948 (2) SA 677
(A)