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[2016] ZAGPPHC 566
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Rakgoale v S (A 568/2011) [2016] ZAGPPHC 566 (17 May 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case
number: A 568/2011
MATJATJA PATRICK
RAKGOALE
.............................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT
TOLMAY, J:
INTRODUCTION
[1]
The appellant was charged with one count
of rape of a girl of 13 years old. He was found guilty on 13 January
2011 and sentenced
to life imprisonment.
[2]
The appellant was granted leave on
petition to appeal against the conviction and sentence.
THE
EVIDENCE
[3]
Three witnesses testified for the state,
namely, the mother of the complainant, the complainant and the doctor
who examined the
complainant.
[4]
The mother
of the complainant, Ms
S
, testified that the complainant was born on
11 August 1996. On 26 May 2008, (later it would seem that the correct
date was actually
25 May 2008) a Sunday morning at about 10:00 she
noticed blood
in the chamber pot. Ms S
was not menstruating at the time and apparently did not understand
the presence of the blood and asked the complainant whether
she was
experiencing any pain. Complainant then told her that she was indeed
experiencing some stomach pain and told her mother
that the
appellant, who was her mother’s boyfriend and the
father
of her mother’s son D
had raped her.
[5]
She said the complainant told her the
incident occurred on a Tuesday when she came from school. The
evidence of this witness indicates
that the complainant told the
witness that the rape took place some 5 days before it was reported
to the witness. The complainant
told her that the appellant grabbed
her by the legs, pushed paper into her mouth to prevent her from
screaming and then raped her.
She stopped the complainant from
telling her the rest of the story and said she must rather tell the
police. After this report
she waited for the appellant to arrive,
which he did at 15:00. She confronted him with the complainant’s
allegation that
he raped her. The appellant got very angry and they
started fighting. The complainant got scared and went to fetch the
police.
When the complainant came back with the police, the appellan
t
had already left. Ms S
then told the police
that she and the appellant fought because of the allegation that he
raped complainant. She and the complainant
were then taken to the
police station. The police told them that the complainant had to go
to the hospital for an examination by
a doctor, bu
t because
her younger child D
was at home, she had to go
home. She told the police that they would come back the following day
to lay charges and to take the
complainant to the hospital. She asked
the police to accompany them home so that she could talk to the
appellant in the presence
of the police. She said she told the police
that she wanted to ask the appellant for forgiveness. She wanted to
do this so that
they could sleep at home.
[6]
I find this evidence improbable for
various reasons. One would not expect the witness to ask for
forgiveness if appellant did indeed
rape her child nor would one
expect of her to want to stay in the same house as the appellant. It
is also interesting to note that
the appellant did not live with her
and he left before the police arrived there. Under these
circumstances there existed no reason
for her to try to appease the
appellant so that she could sleep at home.
[7]
When they did not find the appellant at
her home she and the complainant went with the police to the
appellant’s parents’
home where he lived. He was not
arrested despite the fact that appellant allegedly told the police
that he w
as accused of rape. Ms S
did go
to the police the following day, 26 May 2008, and did lay charges
against the appellant and he was arrested on the same
day. The
complainant was also taken to the hospital for the necessary medical
examination. She said she terminated the relationship
with appellant
on that day because of the alleged rape.
[8]
The complainant initially testified that
on 20 May 2008 when she returned home she saw appellant at their
neighbours’ home
and was about to wash the dishes when
appellant entered the room. He grabbed her by her feet and dragged
her to the room where
he pushed paper into her mouth to prevent her
from screaming and proceeded to rape her. He told her he would kill
her and her family
if she told anyone. After the incident he left.
[9]
Contrary to her initial evidence that
the incident occurred on 20 May 2008, she later testified that she
told her mother about the
rape approximately a month after the
incident occurred. She testified that the rape occurred on a Monday.
This contradicts her
mother’s evidence that she told her it
took place on a Tuesday. They also contradicted each other pertaining
to how long
ago the incident occurred.
[10] The complainant said she was
not yet menstruating when this incident occurred. She testified that
she started bleeding after
the incident and continued to bleed up to
the date that the incident was reported. This evidence must be seen
in the light of the
fact that she said the incident occurred a month
before she reported it to her mother. If that is true she must have
been bleeding
for a month, which I find improbable in the light of
the medical evidence with which I deal later on. She confirmed that
she went
to the police because of the fight between the appellant and
her mother and not to report the rape. She confirmed her mother’s
evidence pertaining to the laying of the charge and the visit to the
hospital.
[11] Dr Chiane Mbuyi, the doctor
who examined the complainant, found that the hymen was torn. He
however did not find any fresh
injuries. The tears in the hymen,
according to him, occurred a long time ago. He noted no bleeding nor
was he told of any bleeding
pursuant to the visit. The consultation
with him took place on 26 May 2008. The evidence of the doctor did
not supp
ort the evidence of Ms S
. If the
complainant was still bleeding the day prior to the examination by
the doctor one would have expected some explanation
for the bleeding.
The doctor also testified that he was not informed about any
bleeding. The J 88 refers to the date of the rape
as 20 May 2008 and
suggests that the doctor was told that this was not the first time
that the complainant had been raped by the
appellant. The complainant
did not suggest any prior incident in her evidence, and she had two
different versions pertaining to
when the rape occurred.
[12] The appellant testified that
he started dating the complainant’s mother in 2005 and the
relationship was terminated by
him on 26 May 2008. They quarrelled on
that day about a cell phone call she had from another man, whom she
had arranged to meet.
The appellant said he was angry as he suspected
she was cheating on him and he assaulted her. She then sent the
complainant to
the police. He left and at 13:00 the complainant and
her mother came with the police to his home. The p
olice told
him that Ms S
said he assaulted her. He
admitted that he assaulted her and told the police about the phone
call and that he thought she was cheating
on him.
[13] The police then left. He
testified as to his whereabouts on 20 May 2008, but we know that
according to the complainant she
waited a month before she told her
mother about the incident, consequently 20 May 2008 became
irrelevant. According to appellant
the complainant was influenced by
her mother to lay charges because of the fight they had. He said he
ended the relationship becaus
e he suspected that Ms S
was cheating on him.
[14] The
appellant’s
mother Mr R
testified for the defence about his
whereabouts on 8 May 2008 she said he returned 23:00 and was at home
until the following morning.
Her evidence did not assist at all as
the date of 8 May 2008 was never put to any of the state witnesses.
Accordingly, the whereabouts
of the appellant on that day are
irrelevant for purposes of this case.
CONCLUSION
[15] It is trite that the state
carries the onus to prove the appellant’s guilt beyond a
reasonable doubt. In this instance
the version of the complainant’s
mother that she saw blood in the chamber pot and that this led to the
report of the rape
is improbable for the reasons already alluded to.
The medical evidence did not reveal any indication
of a recent
injury which could have caused the bleeding nor were
there any signs of fresh injuries. I have already alluded to t
he
improbability of Ms S
’s evidence
pertaining to the report to the police. The contradiction in the
evidence also creates a problem for the state
as it reflects on the
credibility of the version of the complainant. The police who m
ight
have confirmed Ms S
’s version were not
called to testify.
[16] It is trite that one should
approach the evidence of a single witness with caution. In this
instance, where the evidence pertaining
to the rape raises so many
questions one cannot, in my view, find that it was proven beyond a
reasonable doubt. The improbability
of the complainant’s
version of events is illustrated by the contradictions as well as the
lack of medical evidence.
[17] In my view the appellant’s
version is reasonably possibly true. In S v Schackwell 2001(2) SACR
185 (SCA) the following
was said:
"It
is a trite principle that in criminal proceedings the prosecution
must prove its case beyond reasonable doubt and that
a mere
preponderance of probabilities is not enough. Equally there is the
observation that, in my view of this standard of proof
in a criminal
case, a court does not have to be convinced that every detail of an
accused’s version is true. If the accused’s
version is
reasonably possibly true in substance the court must decide the
matter on the acceptance of that version. Of course
it is permissible
to test the accused’s version against the inherent
probabilities. It cannot be rejected merely it can be
said to be so
improbable that it cannot reasonably possibly be true”.
[18]
I am of the view that appellant’s version that he and the
complainant’s mother got into a fight because of her
suspected
cheating on him and that complainant was prompted by her mother to
make these allegations is reasonably possibly true.
I am of the view
that the state did not succeed in proving the appellant’s guilt
beyond a reasonable doubt. The learned magistrate
clearly misdirected
herself when she found to the contrary.
[19] I am of the view that the
appeal must consequently be upheld.
[20] I make the following order:
20.1
The appeal is upheld; and
20.2
The conviction and sentence is set aside.
R G TOLMAY
JUDGE OF THE HIGH COURT
I agree:
N TUCHTEN
JUDGE OF THE HIGH COURT
I agree:
TAN MAKHUBELA
ACTING JUDGE OF THE HIGH COURT