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[2016] ZAGPPHC 63
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Mpotle and Another v S (A97/2015) [2016] ZAGPPHC 63 (1 February 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO:
A97/2015
1/2/2016
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
SOLOMONVUSI
MPOTLE FIRST
APPELLANT
THULANE
THOMAS
NHLAPO SECOND
APPELLANT
AND
THE
STATE RESPONDENT
JUDGMENT
THOBANE
AJ,
[1]
This appeal, which is brought against the conviction only, is with
leave of the court below. The charges that the appellants
faced in
the Regional Magistrate held at Sebokeng, were as follows;
1.1. Kidnapping,
1.2. Rape, (read with the
provisions of 51(1) of Act 105 of 1997), and,
1.3. Robbery with
aggravating circumstances (read with the provisions of 51(2) of Act
105 of 1997).
[2]
The appellants, who enjoyed legal representation during the trial
proceedings, pleaded not guilty to all the charges. They admitted
intercourse with the complainant but averred that it was consensual.
Nevertheless, they were found guilty of kidnapping and rape
and in
respect of the robbery with aggravating circumstances charge, they
were discharged in terms of section 174 of the Criminal
Procedure
Act. The two convictions attracted an effective term of imprisonment
of 20 years.
[3]
The salient facts that gave rise to the appellants' conviction are
that in the early hours of the 14th September 2013 the complainant
and the appellants were at a tavern known as Transkei, in Evaton. I
pause to indicate that when the appeal was launched the appellants'
legal representative had only been acting as counsel on behalf of the
first appellant. At the hearing hereof leave was applied
for and
granted, that counsel move the appeal on behalf of both appellants.
[4]
The complainant L. P. testified that as the tavern was closing and
everyone leaving in the early hours of the 14th September
2013, he
was grabbed by both appellants and led away. He was later pulled
inside a dark shack. While inside he was undressed and
made to lie on
his stomach on the floor. The first appellant placed a condom on his
penis while the second appellant held his hands
and closed his mouth.
He tried to alert them to the fact that they were causing him injury.
Such an alert went unanswered. The
first appellant then penetrated
the complainant's anus with his penis. He thereafter penetrated the
complainant's mouth. The complainant
pleaded that he should not
insert it, in his mouth, with a condom, whereupon first appellant
removed the condom and penetrated
the complainant in his mouth,
without a condom. By this time the second appellant had also
penetrated the complainant in his anus
with his penis. When he
finished, the complainant indicated that he wanted to urinate. His
thinking, so he testified, being that
if allowed to go outside he
would run away. He was however given a bucket and made to urinate in
it. The second appellant indicated
that he wanted to leave and
proceeded to do so leaving the door slightly open. The complainant,
was approached by the first appellant
with his trouser around his
knees demanding to have more sex with him. He ceased the opportunity
and ran out into the yard and
eventually onto the street.
[5]
While walking on the street he heard footsteps and before he could
establish where they were coming from, he was hit on the
head and he
fell to the ground. While on the ground he was assaulted and robbed
of his cellphone as well as his wallet which had
R640-00 inside. The
robber who had covered his head and wore a hat, ran away. The
complainant was unable to identify him. He lay
on the road for a
while because it was difficult to stand due to the injuries inflicted
on him. Eventually he got up and left.
On the way he met a person he
believed had robbed him earlier and proceeded to ask him about the
items robbed from him. This person
disappeared. The complainant
proceeded to the first appellant's home where on arrival he
confronted him about those items. The
first appellant chased him with
a "knobkierie". He ran and knocked at the door of the main
house where three people appeared,
words were uttered in his
direction and the door was shut in his face. He proceeded to a
friend's place, L, to whom he reported
the rape.
[6]
He was later examined at the Vereeniging Kopanong Hospital. The photo
album as well as the J88 Medical Report were admitted
into evidence
by consent without any objection from the defence. L M, the first
report witness, was called to testify and she confirmed
that the
complainant reported to her that he had been raped, assaulted and
robbed.
[7]
Solomon Vusi Mpotle, first appellant, testified that from the tavern,
the complainant is the one who offered to go with them.
They were
headed to a night vigil and the complainant indicated that he was
going there as well. They together went to the night
vigil and on
arrival found that there were no people. They decided to go and sleep
and the complainant again said he was leaving
with them. On the way
they were singing songs. On reaching the first appellant's home, he
opened the door and the three of them
went in. All three of them then
exited to go urinate behind the house. On returning into the room the
complainant said to them
they were young and that they could not do
anything to him, he said so while moving towards the bed. The first
appellant prepared
a sponge for them to sleep on the floor and the
complainant then proceeded to take off his pants. He called the first
appellant
to have sex with him. The first appellant took out a condom
and inserted it on his penis and proceed to penetrate the complainant
in his anus at which point the complainant called upon the second
appellant to join in but instructed him to take off the condom.
The
complainant was penetrated anally as well as in his mouth at the same
time. After ejaculating the first appellant withdrew
his penis and
lay next to the complainant who then told the second appellant that
it was his turn. The second appellant inserted
a condom on his penis
and then penetrated the complainant in his anus. When he finished he
left the complainant and the first appellant
in the room. The
complainant left the room momentarily to go and urinate behind the
house but came back into the room again. He
thereafter left as well.
[8]
Thulani Thomas Nhlapho testified that when the tavern shut for the
evening, the complainant offered to accompany them. They
all went to
the place where there was to be a night vigil but eventually ended
inside the first appellant's room. The complainant
alone went outside
momentarily to go urinate leaving the appellants in the room. On his
return he indicated that the appellants
were young and that they can
not do anything to him. He proceeded to undress and went to the
sponge which had been prepared on
the floor. He was joined by the
first appellant who put on a condom and thereafter penetrated the
complainant in his anus with
his penis. The second appellant was
instructed to join in so that the complainant can give him a "blow
job". He had put
on a condom but was told to take it off. The
complainant then proceeded to perform oral sex on him at the same
time as the first
appellant had penetrated him in his anus. When the
first appellant was done, he also put on a condom and penetrated the
complainant
in his anus and had sexual intercourse with him. When he
was done he left.
[10]
The magistrate found that the complainant was a good witness and that
his evidence was honest and reliable. He rejected the
defence of
consent of the appellants as not being reasonably possibly true and
in fact found that it was false beyond a reasonable
doubt. He found
that the complainant had been kidnapped and that he was raped more
than once by both appellants and convicted the
appellants as
aforesaid.
[11]
Counsel for the appellants is taking issue with the following on
appeal; firstly, that the magistrate misdirected himself when
he made
certain comments about what happens in places like New York and that
as a result he allowed his personal views, about sex
to cloud his
judgment. Secondly, that the report witness did not corroborate the
rape and further that the magistrate committed
an irregularity in not
allowing the report witness to give details of what she was told by
the complainant. Thirdly, that the evidence
of the complainant as a
single witness was not approached with caution. Fourthly, that the
magistrate failed have regard to certain
improbabilities and
inconsistencies in the complainant's testimony. Finally, that the
magistrate erred in rejecting the contention
that the complainant had
a motive to falsely implicate the appellants. In this regard, it was
submitted that complainant made the
rape allegations against
appellants because he had been robbed.
[12]
It is trite that a criminal trial is not a game. The presiding
officer's position is not merely that of an umpire to see that
the
rules of the game are observed by both sides. The presiding officer
is the administrator of justice, he is not merely a figure
head, he
has not only to direct and control the proceedings according to
recognised rules of procedure but to see that justice
is done. See
R
v Hepworth
1928 AD 265
at 277.
When a presiding officer
falters in this role, failure of justice may result.
[13]
The role that the presiding officer plays in a criminal trial,
inter
alia,
is to give meaning to the right to a fair trial as
enshrined in the constitution. In
S v Zuma and Others
[1995] ZACC 1
;
1995 (1)
SACR 568
(CC) at para 16,
Kentridge AJ said:
"The right to a
fair trial conferred by that provision (section 25(3) of the Interim
Constitution) is broader than the list
of
specific rights set
out in paras (a) to (j) of the subsection. It embraces
a
concept
of substantive fairness which is not to be equated with what might
have passed muster in our criminal Courts before the
Constitution
came into force
..."
In
S v Rudman and Another
;
S v Mthwana
1992 (1) SA 343
(A)
the
Appellate Division, while not decrying the importance of fairness in
criminal proceedings, held that the function of
a
Court of
criminal appeal in South Africa was to
enquire:
"Whether there has been an irregularity or
illegality, that is
a
departure from the formalities, rules
and principles of procedure according to which our law requires
a
criminal trial to be initiated or conducted." A Court of
Appeal, it was said (at
377) "does not enquire whether
the trial was fair in accordance with 'notions of basic fairness and
justice', or with the 'ideas
underlying the concept of justice which
are the basis of all civilised systems of criminal administration.'.
That was an authoritative
statement of the law before 27 April 1994.
Since
that date section 25(3) has required criminal trials to
be conducted in accordance with those 'notions of basic fairness and
justice'.
It is now for all Courts hearing criminal trials or
criminal appeals to give content to those notions."
[14]
The first ground of appeal, to the effect that there was a
misdirection as to the nature of the alleged sexual activity, has
four legs to it. Namely, the magistrate's conservative views which he
expressed when he granted leave to appeal the conviction;
his failure
to consider evidence to the effect that the complainant requested the
first appellant to remove the condom before oral
sex; his view that
it was improbable to have consensual sex as testified to by the
appellants and finally his view about what happens
in places like New
York, in relation to the rape.
[15]
The record reflects that the magistrate in his judgment granting
leave to appeal said the following;
"There are
a
lot of developments in our country, as
a
first year student
I never thought that one day in this country there will be somebody,
a
man who is convicted for raping another man.
As
a
student of law I never thought that one day
a
man will be
convicted for raping another man.
Even Justice M'dam in
the Constitutional Court passed a
judgment allowing this for
the first time in this country, I thought
she was being
academic Justice M'dam of the Constitutional Court. I had
a
similar case of anus to the mouth, which was set aside by the High
Court.
…
..
So,
I do not
want to confine myself in this matter to my conservative views. That
the applicants perhaps may have the benefit of some
liberal views".
[16] The record further
reflects that the magistrate when delivering judgment said the
following:
"it is improbable
that he could have consented to mouth andanus sex at the same time.
Even to prostitutes you will be insulting
them to say,
a
prostitute one man is penetrating the man and the other one is
penetrating the vagina at the same time.
Even in centers where
these things are practiced in New York where you have got
a
big
building gays are there, prostitutes are in another building. You do
not take two gays to one man.
You do not take two men to one
prostitute at the same time".
[17]
It was argued before us on behalf of the appellants, that the
comments by the magistrate point to a misdirection on his part.
Counsel for the respondent states that the record does not point to
any misdirection when the statements are viewed in context.
It must
be mentioned from the onset that the comments by the magistrate were
unnecessary. The context is however crucial. When
the magistrate
commented as aforesaid, during leave to appeal proceedings, he was
highlighting the fact that it is current law
that a man can be raped
by another man. He also highlighted that he had one of his judgments
set aside by the High Court. He did
not give details of such judgment
save to say it was a case of
"anus
to the mouth".
Lastly,
he indicated that he had conservative views and that perhaps a
liberal approach, before another court may yield a different
outcome.
[18]
I am of the view that the comments alluded to were not proper.
However, they did not impact on the fairness of the trial nor
did
they vitiate the trial. The testimony of the complainant is that the
first appellant penetrated him anally while second appellant
held his
hands. When he was done penetrating him, he then proceeded to hold
his hands and also inserted his penis, which he had
withdrawn from
the anus and which was still covered in a condom, into the mouth of
the complainant, at which point the complainant
asked him to remove
the condom. This request by the complainant, it is argued on behalf
of the appellants, is indicative of consent.
I disagree. I do not
find it to be unreasonable nor is it indicative of consent if the
complainant requests that the condom that
had just penetrated his
anus and had been withdrawn therefrom, be removed before oral sex is
performed.
[19]
The second line of attack against the conviction is premised on
the submission that there was no corroboration of the
rape by the
report witness. The argument before us is that in not allowing the
report witness to testify in detail, the magistrate
committed an
irregularity. The record reflects this exchange, on which reliance is
placed in making the aforementioned submission;
……………
PROSECUTOR
:
Did he tell you in detail how he was raped?
COURT
:
No, that will waste our time. The rape has been reported that
is all that is required.
The
exchange, it is contended by appellants, evidences an irregularity in
that had the report witness not been cut short, further
discrepancies
may have been uncovered. The latter contention is obviously
speculative. The principle as enunciated in S
v
DE
VILLIERS AND ANOTHER
1999 (1) SACR 297
(OPD)
is
that a complainant in a sexual case ought to make her complaint at
the first opportunity that it could reasonably be expected
of her to
do so.
[20]
/
n casu,
the complainant testified that he did not, in
reporting to the first report witness, disclose details of the rape,
robbery and assault.
He simply reported that he was raped and
assaulted. The magistrate intervened when the prosecutor asked the
report witness
"did he tell you in detail how he was
raped".
I therefore do not share the same view that in
not allowing details to be disclosed, which details the complainant
testified were
never disclosed, constitutes an irregularity. I am
satisfied that the magistrate correctly disallowed the question. I
agree with
the submission by appellants' counsel that her testimony
was of limited evidential value, however, it is sufficient for
purposes
of reporting at the first available opportunity, that the
rape occurred. In this regard, I am of the view that there is such
sufficient
corroboration.
[21]
The testimony of the complainant is to the effect that after the
robbery on the street, he proceeded to the first appellant's
home to
confront him. He was however chased with a "knobkierie" and
he went to knock on the door of the the main house.
His evidence is
further that three people emerged from the house after knocking on
the door. They uttered some words and shut the
door. The appellants
contend that the rape ought to have been reported then. The
complainant, on his version, had just been raped
in these premises
from which he ran away. He had also just been robbed of his cellphone
and wallet in the street. Finally, he had
just been chased with a
"knobkierrie" by the first appellant in the same premises.
I do not find it odd that the complainant
failed to report the
incident to the first appellant's parents, in these circumstances,
who seemed totally unperturbed and therefore
unconcerned at what was
taking place in their yard. I hold the view that it wasn't opportune
to report the rape in these circumstances,
and therefore that the
complainant can not be faulted.
[22]
The complainant was a single witness as to the kidnapping and the
rape. For this reason his evidence ought to have been approached
with
a measure of caution. The purpose of the cautionary rule, as stated
by
DT Zeffert in The South African Law of Evidence 2nd ed at
p961,
is to assist the court in deciding whether or not guilt
has been proved beyond reasonable doubt. Appellants contend that the
trial
court failed to approach the evidence of the complainant with
the requisite caution.
[23]
The court a
quo's
judgment and reasons therefor constitute the
best tool to make a determination as to whether caution was indeed
applied. In
S v
AVON BOTTLE STORE (PTY)
LTD AND OTHERS
1963 (2) SA 389
(A)
it was stated that the
best indication that there was proper appreciation of the risks is
naturally to be found in the reasons furnished
by the trial court.
The trial court must demonstrate that the warning was heeded and that
the dangers of a wrongful conviction
occupied its mind in the
analysis of evidence. See also
R v MANDA
1951 (3)
SA
158
(AD).
[24]
From the record it is clear that in relation to the rape and the
kidnapping, the evidence of the complainant in my view is
clear and
satisfactory in all material respects. The cautionary rule requires
that the court having warned itself of the danger
inherent in the
acceptance of such evidence, it must look for some safeguards like
corroboration in order to reduce the risk of
a wrong conviction.
In
casu
the magistrate examined the finding by the doctor who
completed the J88 Medical Report to the effect that there were tears
in the
anal area, as well as the evidence of the complainant to the
effect that owing to the nonconsensual anal penetration, his anus was
not relaxed enough as to avert injuries. The contention that the
injuries could have been caused by the robbery falls to be rejected.
The complainant did not testify that he was assaulted during the
rape. His evidence was to the effect that he was held very tightly.
The record does not reflect that this resulted in injury. The
magistrate, in a further endeavour to be cautious, looked for
corroboration
in the testimony of the report witness. In this regard
he made reference to
S
v NAUDE
2005 (2) SACR 218
(WLD)
at page 221 J.
I am satisfied that the magistrate was alive
to the fact that caution was called for and in my view did in fact
approach the evidence
of the complainant with the requisite caution.
[25]
The trial court also considered the probabilities of both the State's
evidence and the defence's evidence.
S
v SINGH
1975 (1)
SA 227
NPD at 228.
It rejected as false the defence of
consent which was raised by appellants and also rejected the evidence
of the appellants as being
not reasonably possibly true. Such an
exercise would have entailed the examination of both versions. The
complainant testified
that on entering the first appellant's room he
was made to lie on his stomach on the floor. He never went out of the
room until
after the rape when he escaped. Even when he wanted to
urinate, he was made to do so in a bucket. The first appellant's
version
is that on entering the room all three went outside
momentarily to urinate, before returning and engaging in consensual
sexual
intercourse. The second appellant's version is that the
complainant went alone outside to urinate then came back. Further,
the
complainant testified that the first appellant penetrated him
anally and thereafter he penetrated his mouth and that second
appellant
proceeded to penetrate him anally. The version of both
appellants is to the effect that after first appellant had penetrated
the
complainant anally, the complainant called second appellant to
perform oral intercourse. The trial court in the end rejected the
versions of both appellants. It was, in my view, entitled to do so,
on the basis of the strong evidence of the complainant that
the
prosecution had placed before court and also in considering the
conspectus, the contradictory nature of the appellants' version.
[26]
I am of the view that the trial court correctly convicted the
appellants on both counts.
[27]
I would therefore propose the following order;
27.1. The appeal is
dismissed.
_________________________
SA
THOBANE
ACTING
JUDGE OF THE HIGH COURT
I
agree and It Is so ordered
___________________
M
J TEFFO
JUDGE
OF THE HIGH COURT
APPEARANCES
For
Appellant: DJ.A. Botha
Instructed
by: Pretoria Justice Center
For
Respondent: L.A. More
Instructed
by: Director of Public Prosecutions, Pretoria