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[2016] ZAGPPHC 242
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Mtsweni v S (A896/14) [2016] ZAGPPHC 242 (18 April 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE NO: A896/14
18/4/2016
Not reportable
Not of interest to other judges
Revised
In the matter between:
BEDNOCK PETRUS
MTSWENI
Appellant
and
THE
STATE
Respondent
JUDGMENT
Baqwa J
[1] This is an appeal against the
judgment of the Regional Court Evander before which the appellant was
charged on four counts of
pointing a firearm, intimidation, rape and
arson.
[2] The appellant pleaded not guilty
to all the charges and at the closure of the State case after an
application in terms of
Section 174
of The
Criminal Procedure Act 51
of 1977
the State's case was dismissed in respects of counts 1, 2 and
4 with only the rape count remaining for further prosecution.
[3] The matter proceeded and the
appellant was convicted on the rape charge and sentenced to 13 years
imprisonment.
[4] An application for leave to appeal
was made orally immediately after conviction and upon a reading of
the record it is evident
that the appellant's legal representative
only addresses the application against conviction and he makes no
submissions regarding
sentence.
Background
[5] The background to the matter is
briefly as follows. The appellant and the complainant were lovers and
from the evidence theirs
appears to have been a stormy relationship
which even involved the issuing of a protection order against the
appellant.
[6] According to the complainant, she
was abducted by two unknown persons on the evening of the day in
question and surrendered
to the appellant whose vehicle was parked a
short distance from the place of abduction.
[7] She was placed in the back seat of
the appellant's vehicle and her hands were tied to the front seat of
the appellant's vehicle.
The appellant was in the driving seat.
[8] The vehicle proceeded to a point
which is known as gate 8 whereupon the two individuals alighted from
the motor vehicle. The
vehicle proceeded further to a lover's lane
where the appellant tried to gas the complainant in the motor vehicle
by attaching
a pipe to the exhaust pipe and leading it into the
interior of the vehicle and sealing the windows with the complainant
inside.
[9] The complainant appears to have
lost consciousness after smelling the fumes which flowed into the
interior of the vehicle.
[10] After a while she found herself
partially naked outside the vehicle dazed or semi-conscious. The
appellant, who according to
her was still present, suffocated her
nostrils and covered her head with a plastic bag as a result of which
she was unable to breathe
and again lost consciousness.
[11] The appellant denied the events
as testified to by the complainant but admitted to having been with
her at the lover's lane.
He testified that they had a quarrel after
which the complainant exited the vehicle and refused to come back
despite his pleas
for her to do so. He then left her on that spot.
[12] There are two issues which the
court has to determine: firstly whether the complainant was in fact
raped and secondly the identity
of the rapist.
[13] It is quite apparent from the
evidence of the complainant that she does not know whether she was
raped or not as she makes
no such allegation in her testimony. She
seems to have gathered the notion that she had been raped when she,
together with the
police, came upon a blood-stained condom at the
scene of the alleged rape the day after the incident occurred.
[14] This is confirmed in the judgment
of the court
a quo
where it is stated:
"She never
testified that the accused had sexual intercourse with her."
[15] The fact that the complainant had
no idea at all about having been raped is confirmed by the
'first
report
account given by her aunt Sedudla Madonsela to whom she
mentioned nothing about having been raped.
[16] This is however contrary to the
evidence of Sister Malaza, the forensic nurse who examined the
complainant who testified that
the complainant said she had been
raped and thereafter lost consciousness. When confronted about the
complainant's own evidence
she could not explain the contradiction.
[17] From the J88 form which was
submitted by Sister Malaza there seems to be a strong suggestion from
the injuries recorded that
the complainant was at some stage
subjected to non-consensual sexual intercourse.
[18] As part of the evidence tendered
by the State there was also pointing out evidence presented by the
police. This evidence was
correctly declared inadmissible by the
court
a quo
as it was not obtained in a procedurally correct
manner.
[19] The appellant submits and I
accept that the J88 medical report which was confirmed by Sister
Malaza contradicts the evidence
of the complainant. I also accept
that the complainant misinformed the forensic nurse which had the
potential of influencing the
outcome of the medical examination.
[20] The blood sample found on the
condom also confirmed the DNA of the complainant but not that of the
appellant.
[21] Based on the misinformation
provided to the forensic nurse and the complainant's evidence that
she has no recollection of being
raped, the medical evidence
presented by the State cannot be said to be conclusive. Stated
differently, there is a critical link
missing between the evidence of
the complainant and the medical evidence. Neither is that link cured
by the DNA evidence which
also does not link the appellant to the
rape incident.
[22] The court can also not draw an
inference from the blood stained condom that the complainant was
raped by the appellant.
[23] With regard to drawing
inferences, the cardinal rules of logic were set out in
R v Blom
1939 AD 188
at 202 - 203 where Watermeyer JA stated as follows:
"[1] The inference sought to
be drawn ought to be consistent with all the proven facts. If it is
not, then the inference cannot
be drawn.
[2] The proved facts should be such
that they exclude every reasonable inference from them save the one
sought to be drawn. If they
do not exclude other reasonable
inferences, then there must be a doubt whether the inference sought
to be drawn
is
correct."
[24] In
casu,
the complainant
lost consciousness twice during her ordeal. She was semi-naked when
she regained consciousness on both occasions.
She was not aware that
anybody had raped her. She was lying in the open veldt in an area
frequented by lovers. This raises a number
of possibilities and the
inferences that could be drawn are myriad.
[25] It is also true that the versions
presented by the appellant and the complainant are mutually
destructive. In
S v Janse van Rensburg and Another
2009 (2)
SACR 216
(c) the court said the following:
"[8] Logic dictates that where
there are two conflicting versions or two mutually destructive
stories, both cannot be true.
Only one can be true. Consequently the
other must be false. However, the dictates of logic do not displace
the standard of proof
required either in a civil or criminal matter.
In order to determine the objective truth of the one version and the
falsity of
the other, it is important to consider not only the
credibility of the witnesses, but also the reliability of such
witnesses. Evidence
that is reliable should be weighed against the
evidence that is found to be false and in the process measure against
the probabilities.
In the final analysis the court must determine
whether the State has mustered the requisite threshold
-
in
this case proof beyond reasonable doubt.
(Vide: S v Saban en 'n Ander
1992
(1) SACR 199
(A) at 203 j
-
204 b; S v Van der Meyden
1999 (1)
SACR 447
(w)
(1999 (2) SA 79)
at 449 g
-
450 b;
and
S
v Trainor
2003 (1) SACR 35
(SCA) ([2003]
1 All SA 435)
at para 9)"
[26] In
casu,
it does not
appear that the court
a quo
applied the requisite standard of
proof when it stated as follows:
"The accused version does not
explain to the court how the complainant sustained all these injuries
and the things that happened
to her. The court is therefore satisfied
that the accused's version
is
not reasonably possibly true.
And the court rejects his version as far as it differs from the
State's case."
[Record page 209 line 14 - 19]
[27] There was no onus on the
appellant to explain how the complainant sustained her injuries and
what happened to her. I accordingly
find that it was a misdirection
for the court
a quo
to approach the evaluation of the
appellant's evidence as it did.
[28] In the result I propose that the
following order be made:
28.1. The appeal against conviction is
upheld.
28.2. The conviction of the appellant
for rape is set aside.
It is so ordered.
_____________________________
S. A. M. BAQWA
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
I agree.
______________________________
E. M. KUBUSHI
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
Heard on
: 18 April 2016
For the Appellant
: Advocate F.
van As
For the Respondent
: Advocate J.
J. Jacobs