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[2016] ZAGPPHC 1120
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Papo v S (A650/2015) [2016] ZAGPPHC 1120 (9 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
9/11/2016
CASE
NO: A650/2015
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
DAVID
PAPO
Appellant
and
THE
STATE
Respondent
JUDGEMENT
DU PLESSIS, AJ
1.
The
appellant was convicted in the Regional Court of Gauteng, held at
Pretoria on one count of contravening Section 3 of Act 32
of 2007 -
rape. He was subsequently sentenced to 20 years imprisonment.
2.
The
appellant applied for leave to appeal his conviction and sentence,
which leave was subsequently refused on 26 June 2014. The
appellant
directed a petition to the Judge President of the Gauteng High Court,
Pretoria, for leave to be granted to appeal his
conviction and
sentence. His petition was successful and he was granted leave to
appeal against his conviction and sentence.
3.
It
is alleged that the appellant raped a six-year-old girl to whom I
shall refer as "G". On 5 December 2010, the appellant
a
38-year old male attended a cleansing ceremony at his house in
Mamelodi, Pretoria. The child "G" also attended the
ceremony with her grandmother.
4.
It
is common cause that the appellant's sister at some stage saw the
appellant and "G" together in the backyard of the
house. I
shall refer to her as "L".
5.
Her
evidence was that when she saw the appellant and "G", the
appellant was pushing "G" into a passage behind
the house.
She did not see, nor did she allege that the appellant raped "G"
at any stage. The high-water mark of her
evidence was that she saw
the appellant push "G" into the passage with his penis
hanging out of his trousers. The child
was not crying or screaming.
The witness however called out to the appellant and asked him what he
was doing. When she approached
him and got hold of his arm, his penis
was no longer hanging out. She called her sister to come and assist.
The two older sisters
then took the appellant and "G" into
the house where the older woman were.
6.
Once
inside the house, the grandmother alleges that "L" screamed
at the appellant and told the grandmother that the appellant
raped
"G". The grandmother's evidence was
"she said my
brother is
a
rapist, and I said who is he raping, and she said
he is raping
a
child."
7.
"L"
denied that she ever said anything of the sort. The best she was
willing to say: "...
caught him, I found him with
a
kid
at the back of the house".
"L" admitted that she
never saw the appellant rape the child.
8.
In
cross-examination, "L" conceded that the appellant was also
standing next to the toilet. The appellant himself alleged
that he
went to the toilet to urinate and that he had just finished urinating
when "L" saw him.
9.
"L"
also admitted that there is a peach tree next to the toilet where the
appellant was standing and that the children
including "G"
were playing there.
10.
When
confronted with the appellant's version that he had just finished
urinating in the outside toilet, "L" admitted that
the
appellant was standing at the toilet with his penis out and her
answer was: "/
cannot comment, because I did not see him
urinating".
11.
The
child was not particularly upset but only started crying when "L",
according to the grandmother started screaming
in the house.
12.
When
confronted with the grandmother's allegation that she told everybody
that the appellant is a rapist, "L" vehemently
denied this
and her reason been: "/
said I found my brother with a kid at
the back of the house. I cannot say he is a rapist because I did not
see him raping the kid."
13.
"L"'
s sister also gave evidence and alleged that when she was called to
the back of the house by "L", she found
"L" and
the appellant and the child at the back of the house. She said that
she saw the appellant with his pants unzipped
and with an erect
penis. "L" however said that when her sister came to the
scene, the appellant's penis was no longer
outside his pants.
14.
Both
sisters alleged that "G" had no panties on when they
arrived at the scene. "G" only had her dress on. "G's"
own evidence was that the appellant took her panties and had put it
in his pocket. "G" however did not tell anybody that
the
appellant took her panties. This only came out when she gave
evidence. This was denied by the appellant and he alleged that
when
the police came, they did look for the panties but nobody could find
it. This evidence remains unchallenged.
15.
"G's"
evidence was presented through an intermediary. She said that she
came to Court to tell the Court what her mother
told her to say. She
said that the appellant put his penis in her vagina while she was
standing. The prosecutor, realizing the
difficulty with this version,
suggested to the child that the appellant might have been sitting
down when he put his penis in her
vagina. She however said, he was
also standing and that they were facing one another. She said that
they were caught by "L",
and that she screamed when the
appellant put his penis in her vagina.
16.
This
evidence is however not corroborated by either "L" or the
sister.
17.
"G"
was taken to the doctor for an examination. The doctor gave evidence
and handed in a J88 form evidencing the results
of her assessment of
the child. There were no signs at all of any penetration nor of any
injuries. She did find some redness on
the outside but attributed
this to
"fiddling".
18.
The
appellant denied that he ever raped or sexually assaulted the child.
He referred to the fact that the grandmother herself
"checked"
the child before the police came to determine whether she was
raped or not. This evidence similarly remains unchallenged.
19.
Although
the grandmother's allegation that "L" alleged rape this was
denied by "L" and the sister. The appellant's
evidence
that: ".
..because the panty was nowhere to be found"
similarly remains unchallenged.
20.
"G"
told the Court that the appellant was having intercourse with her
when they were caught by "L". "L"
however saw
nothing of the sort, and the doctor confirmed that no penetration
took place. Apart from the child's evidence, there
is no
circumstantial evidence corroborating that of the child. The child
herself never told any of the elders, including the grandmother,
that
she was raped.
21.
The
court a quo submitted in the judgement that the evidence was that:
"she (G) indicated as and when she was been sexually
assaulted by the appellant, "L", whom she called, saw this
and
raised alarm."
This was indeed the evidence of "G"
, but was denied by the state witness "L".
22.
In
cross-examination "G" indicated that she told the Court
that the appellant raped her,
"because her mother told her to
say so".
This should be considered with caution. The
complainant was only six years old. The Magistrate however did ask
questions to clarify
this but the child's answer was simply in
"it
happened."
23.
The
court a quo incorrectly summarized the evidence of "L" and
of the sister on important aspects. He accepted that "L"
saw the appellant with an erect penis while this was not her
evidence. He said when she got to the child, she was crying,
"and
her eyes welling with tears",
which was not her evidence or
that of the child or of the sister. The contradiction between the
sister alleging that the appellant's
penis was outside his pants and
erect when she arrived on the scene and "L" submitting that
his penis was inside his
pants" no longer hanging outside"
and no erection was not considered by the court a quo.
24
.
The
Magistrate accepted incorrectly so, that the doctor found
"according
to the nature of her injuries, or whatever examination she, the
result of her examination, this child was indeed
sexually assaulted."
The doctors' observation however, was
that "the hymen was
intact but that did not exclude penetration".
When asked to
explain this apparent contradiction in cross examination, the
doctor answered
"fiddling around genitalia, i.e. redness
suggest fiddling".
This is no confirmation of sexual assault
or of penetration.
25.
There
is no evidence as to what caused the redness. The court a quo
referred to a suggestion of the doctor
"that this was only
indecent assault..."
but then makes a conclusion that is
entirely unsupported by the evidence when the court a quo submits
that "...
because the rape as defined now, is wide. If you
put anything into the child's vagina, you are committing an act of
penetration".
The Magistrate then incorrectly concludes that
"L" saw the appellant with an erect penis protruding from
his trousers
and pushing the child into the passage. This in turn
leads to the court a quo concluding that some form of penetration
must have
occurred.
26.
Rejecting
the evidence of the appellant, the court a quo finds the appellant
guilty of rape.
27.
It
serves little purpose that the Court a quo approached the evidence of
the child with caution and warned himself to apply the
principles of
a single witness and corroboration if this is based on the wrong
factual conclusions. The incorrect facts no doubt
convinced the court
a quo that the appellant is guilty.
28.
Most
telling is the court a quo's approach to the appellant's evidence.
When asked by his Attorney to respond to the evidence that
he
"attempted to rape
"G"" the court a quo
remarked:
"he must lead evidence to rebut, to rebut charges,
not what the people are saying here."
This is of course an
incorrect approach and could have influenced the Court's approach to
evaluating the evidence of the appellant.
29.
I
am mindful that the court a quo was in a far better position than
this Court to take account of not only the child's evidence,
but also
her appearance, demeanor and personality. The same applies to the
witnesses that gave evidence. I am similarly mindful
that the Court
of Appeal would not likely upset the trial Magistrate's findings of a
fact.
30.
I
am however satisfied that the examples referred to above,
demonstrates a material misdirection by the trial Court in its
findings
of fact as these findings of fact were presumed to be
correct despite the actual evidence as recorded showed them to be
clearly
wrong.
31.
This
Court is mindful of the approach to findings of fact by a trial Court
in
S v Hadebe and Others
1997 (2) SACR 64
(SCA) 645 (E - F) and
426 (A-B)
where the Court emphasized that the Court of Appeal
should, in assessing whether a trial Court's findings of fact were
wrong, be
careful not to focus too intently on the separate parts,
losing sight of the fact that the whole body of evidence might shred
valuable
light on the evidential value of its component parts.
32.
Although
I am mindful that the trial Magistrate is in a position to judge what
is probable and what is improbable in regard to particular
persons
whom he observed at the trial, he would also be in a better position
to draw inferences than the Court of Appeal. However,
the inferences
that were drawn by the trial Magistrate as demonstrated above are
patently wrong and no reason exist why this Court
is not in an
equally favorable position as the trial Magistrate to consider the
evidence presented.
33.
"G"
was not only a single witness regarding the rape but also a child
witness. In this regard
5 v Dyira
2010 (1) SACR 78
(ECG)
reiterated the approach to a single child witness. Although the
Magistrate did articulate the warning in the judgement, an
examination
of the evidence of the child in order to satisfy himself
that the evidence given by the witness is clear and substantially
satisfactory
in all material respects fell short of the standard to
entitle the Court a quo to accept her evidence. The child's evidence
regarding
penetration as described by herself is simply incorrect.
The doctor's assessment and the results thereof dismissed this
evidence
as incorrect. For the Court a quo to then make the
assumption that she could have been penetrated by anything else
because of the
doctors' reference to
"fiddling"
is
simply not supported by any corroborating evidence. Corroboration is
not a pre-requisite for a conviction, but in this matter
some form of
corroboration that implicates the appellant had to be present before
the appellant could have been convicted beyond
reasonable doubt. Not
only was there no corroboration of any penetration and/or any
indication of rape but was there the evidence
of the sisters that on
close scrutiny, did not actually see anything other than the
appellant standing next to the toilet with
his penis hanging out and
the child in close proximity. The child was not crying, nor screaming
as she alleged in her own evidence.
The child's evidence as to how
the rape took place with her standing and the appellant standing
could have been a mistake by the
child but even when assisted by the
prosecutor, the whole act of the rape became even more improbable.
34.
Even
when applying the alternative approach as suggested in
S v Artman,
1968 (3) SA 339
(A) at 340 (H)
that failing corroboration, a
Court will look for some feature in the evidence which gives the
implication by a single child witness
enough of a hallmark of
trustworthiness to reduce substantially the risk of a wrong reliance
upon her evidence, none could be found.
On the contrary, the evidence
of the appellant that the grandmother
"checked"
the
child for any evidence of rape when the police came to arrest him,
and that everybody was looking for the child's panty but
could not
find it, remained unchallenged. The appellant's attorney's suggestion
that the fiddling that might have caused redness
as suggested by the
doctor, could have been the grandmother's fiddling or checking, is
not improbable.
35.
"G"
is a very young child and she remains the only witness implicating
the appellant. Even accepting that she as a young
child had been
subjected to a traumatic experience and would not necessarily come to
Court to lie, she remains the only witness
that implicates the
appellant and her evidence must be treated with caution. A degree of
corroboration is required and this Court
reminds itself of the danger
of relying solely on her evidence to convict the appellant. In the
absence of any form of corroboration
and the improbabilities as is
evidenced by not only her version but also the contradictions between
the State witnesses, and the
absence of any medical evidence taken
immediately after the incident, suggesting either penetration or
injuries , it cannot be
said that the State proved its case beyond
reasonable doubt. Although the evidence as a whole may be considered
and judged and
although the Court does not have to be convinced that
every detail of the appellant version is true, there can be no doubt
that
the appellant's version is reasonably possibly true. Even when
tested against the inherent probabilities, the appellant version
cannot be rejected given the improbabilities of the evidence of the
child and as considered with the differences between the State
witnesses. It cannot be said that the appellant's version is so
improbable that it cannot be reasonably possibly true.
36.
Under
these circumstances we find that it has not been proven that the
appellant is guilty of rape as charged or of any of the competent
verdicts. As a result the following order is made:
36.1 The appeal against
the conviction is upheld;
36.2 The conviction and
sentence is set aside;
36.3 The accused is found
not guilty.
______________________
PRETORIUS
J
I
agree
For
the Appellant:
H
Steynberg
Instructed
by Legal Aid SA
For
the Respondent: Adv BE Mahoke
Instructed
by the Office of the Director of Public Prosecutions, Pretoria