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[2016] ZAGPPHC 345
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Losper v S (A100/15) [2016] ZAGPPHC 345 (5 February 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
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: A100/15
DATE:
5 FEBRUARY 2016
In the matter
between:
ANDREW
LOSPER
..........................................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT
KEKANA
AJ:
[1]
The Appellant was charged and convicted of rape, convicted and
sentenced to 7 years imprisonment.
[2]
The Appellant appeals against the conviction leave to appeal
having been granted by the court a
quo.
[3]
The appellant contends that the State failed to prove its case
beyond reasonable doubt. The appeal court has to determine whether
the court a quo misdirected itself in the evaluation of evidence.
[4]
The Complainant testified that the Appellant raped her on the
02
nd
January 2011. She testified that there was a braai at
her house and friends and families were invited and the appellant
also attended.
Later that evening her husband asked everybody to
leave. The appellant slept in one of the bedrooms. She locked the
door after
the last guest [S……] left. She went to the
bedroom and she and her husband engaged in sexual intercourse in
various
rooms in the house and went to sleep in their bedroom. Later
that evening, she felt someone on top of her and a penis in her
vagina.
She thought it was her husband. She realized that it was not
her husband when her hand touched her husband's chest. She pushed the
person away and realized it was the Appellant. The Appellant pulled
up his pants and left the room. Complainant then woke up her
husband
and asked him to open the door for the Appellant. Upon the husband’s
return, she reported to him that the Appellant
had raped her.
[5]
Complainant’s husband, Mr. [B…..] [P……]
testified that after everybody left the party, he and Complainant
engaged in sexual intercourse. The Complainant woke him up later to
open the door which was locked for Appellant. Upon his return
to the
bedroom the
Complainant was crying and reported to him that the Appellant
raped her.
[6]
The Appellant’s testimony was that on the 2
nd
January 2011 he attended a party the residence of the Complainant. He
was drunk and laid down on the lawn when the Complainant
told him to
sleep in one of the bedrooms in the house. Appellant later woke up
and asked for food from the Complainant. He ate
and went back to
sleep in the same room. The Complainant later came into the bedroom
he was sleeping in and asked Appellant to
have sexual intercourse
with her. The Appellant was concerned about the Complainant’s
husband but the Complainant assured
him that her husband was asleep.
They had sexual intercourse and thereafter the Complainant went to
the bedroom to wake up her
husband to open the door for the
Appellant. Some days later, he was informed by Police Officer
Mashabela that the Complainant had
laid a charge of rape against him.
[7]
The learned Magistrate found that the evidence of the
Complainant had no improbabilities in it and that the larger part of
her evidence
was corroborated by the accused himself. He rejected the
Appellant’s evidence as being untruthful.
[8]
Appellant’s Counsel, Advocate F J Van der Merwe
submitted that the trial court was faced with mutually destructive
versions
and ought to have considered the inherent probabilities and
improbabilities of each version, the contradictions and the general
strengths and weakness of each version.
[9]
In Monageng v S
[2009] 1 All
SA 237
(SCA) the court described proof beyond a reasonable doubt as
“
evidence
with such high degree of probability that the ordinary reasonable
man, after mature consideration, comes to the conclusion
that there
exists no reasonable doubt that the accused has committed the crime
charged. An accused’s evidence therefore can
be rejected on the
basis of probabilities only if found to be so improbable that it
cannot be reasonably true
1
’
[10]
On my reading of the judgement, the learned Magistrate’s
reasoning lacks this final and crucial step. Notwithstanding certain
improbabilities in the Appellant’s version, the reasonable
possibility remains that the substance thereof may be true. This
conclusion is strengthened by the absence of any apparent reason why
the complainant did not alert his husband of the appellant
in their
bedroom who was raping her. On the complainant’s version, after
the appellant left the bedroom, she woke her husband
and asked him to
go and open the door for the very appellant who had raped her.
Complainant testified that after the appellant
had been let to go,
she accompanied her husband to go and look for the appellant.
[11]
Although the learned Magistrate referred to the existence of
the cautionary rule of a single witness, he did not properly apply it
to the evidence of the complainant.
[12]
The learned Magistrate in his judgement also acknowledged that
the State must prove the accused’s guilty beyond reasonable
doubt. He also acknowledged that if the appellant’s evidence
was considered in isolation, there can be no real criticism
levelled
against his evidence.
[13]
The approach manifested by a court of appeal in considering an
appeal against the findings of fact of a trial court is
authoritatively
summed up in R v Dhlumayo & another 1948(2) SA
677 (a) 705
[14]
The court a
quo
sees and hears the witnesses and is steeped in the atmosphere of the
trial. In addition the trial judge is in a position to take
into
account a witness’s appearance, demeanour and personality. For
these reasons a court of appeal would not be inclined
to reject the
trial judge’s findings of fact.
(S v Robinson & others 1968(1) SA 666 (a) 6759-H)
[15]
Although, courts of appeal are slow to disturb findings of
credibility, they generally have greater liberty to do so where a
finding
of fact does not essentially depend on the personal
impression made by the witness’s demeanour, but predominantly
upon inferences
and other facts and upon probabilities ( Minister of
Safety and Security (SCA) & others v Craig & others NNO
2011(1) SACR
419
[16]
It is therefore to be determined whether or not the
complainant’s evidence that she had not consented to sexual
intercourse
with the appellant could be accepted as true and beyond
reasonable doubt.
[17]
It was conceded by the respondent’s counsel Advocate J J
Kotze that there remains to be doubt in the complainant’s
evidence.
[18]
I therefore find that it is unlikely that the appellant would
rape the complainant on the same bed with her husband sleeping next
to her. Her behaviour after she pushed the appellant away also casts
doubt on her evidence that she was raped.
[19]
The court a quo misdirected itself in finding that the
complainant’s evidence proved the appellant’s guilt
beyond reasonable
doubt.
[20]
In the result, I make the following orders:
20.1 The appeal is upheld: and the
conviction is set aside.
ACTING JUDGE OF THE HIGH COURT
S.T.
KEKANA
I agree, and it is so ordered
JUDGE OF THE HIGH COURT
MOLEFE DS
APPEARANCES
Heard
on 04 February 2016
For
Appellant Adv JJ Kotze
Chris Liebenberg Attorneys
For Respondent Adv K Germishuis
Instructed by State attorney Pretoria