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[2016] ZAGPPHC 951
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Nkabinde v S (A498/15) [2016] ZAGPPHC 951 (21 November 2016)
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REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
DIVISION, PRETORIA
21/11/16
CASE NO: A498/15
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
NKABINDE
XOLANI
CYPRIAN
Appellant
and
THE
STATE
Respondent
JUDGMENT
TEFFO,
J:
[1]
The appellant was convicted in the regional court, Bethal, of one
count of rape of a 25 year old female person. He was sentenced
to 10
years imprisonment. He now appeals against his conviction with leave
having been granted by the trial court.
[2]The
issues raised in the appeal were that the trial court erred in
finding that the state proved the guilt of the appellant beyond
a
reasonable doubt while attaching insufficient weight to the fact that
the complainant was a single witness with regard to the
incident of
rape and that her evidence was to be treated with caution. It was
submitted that the trial court did not approach the
complainant's
evidence with caution. Her evidence that the appellant used a stick
which he pressed against her neck with his one
hand while he used his
other hand to take off her skirt, tight, panties also lowering his
pants and penetrating her, was criticised
as not being probable.
There were also criticisms to her evidence to the effect that
although she testified that she sustained
bruises on her neck caused
by the strangulation, she did not mention the injuries to the doctor
who examined her after the rape
and the injuries thereof were not
mentioned on the J88 medical report. It was argued that she testified
that her mother also saw
the bruises on her neck but her mother's
evidence was that she did not observe any bruises on her neck. It was
therefore pointed
out that her evidence was not credible. It was also
submitted that the trial court erred in convicting the appellant,
rejecting
his evidence as not being reasonably possibly true without
laying any basis thereof and accepting that such evidence
corroborated
the complainant's version in certain aspects.
[3]
The state disagreed with the submissions on behalf of the appellant
and argued that he was correctly convicted.
THE
EVIDENCE
[4]
The state presented the evidence of two witnesses, namely, Ms G. J.
M. (the complainant) and Ms P. B. Z. (the complainant's
mother) in
support of its case while the appellant testified on his own without
calling witnesses. It is common cause between the
parties that the
complainant and the appellant worked for the same employer at one
place at the time of the incident where she
was employed as a
domestic worker and the appellant as a gardener. It is also common
cause that on the day of the incident both
the complainant and the
appellant were at their place of work and they had sexual
intercourse. The appellant contended that the
complainant consented
to have sexual intercourse with him while the complainant disagreed.
The complainant testified that on Friday
31 January 2014 while their
employer was out of the house to the shops, the appellant entered the
house and as she was busy with
her duties collecting a duvet from one
of the bedrooms, he approached her from behind, pulled her with her
long hair at the time,
to another room where he put a curtain stick
on her neck, throttled her, pulled her skirt, took off her tights and
panties on one
leg, lowered his pants after pushing her to the bed
and had sexual intercourse with her without her consent. After
ejaculating,
he stopped and when she asked him what was he doing, he
said he was playing with her. The appellant requested her not to tell
their
employer what happened. She tried to go to the neighbours to
seek assistance but the appellant pleaded with her not to go and
promised
to give her his whole salary. He then left and the
complainant telephoned her mother after realising that the sim-card
that she
had at the time, did not have the telephone numbers of her
employer. As she was talking to her mother on the phone, her mother
gave her employer the phone as she was screaming telling her what the
complainant was saying to her. Her mother and her employer
came to
her place of work. They checked and observed her. They advised her
not to change her clothes as they were calling the police.
She was
vomiting and powerless at the time. Her employer also arrived. They
did not find the appellant as he had long left the
place. She told
them what happened and they called the police. Eventually the police
arrived, asked her what happened and she told
them. They took a
statement from her. She did not sustain any injuries as a result of
what happened in the house. She was later
taken to the hospital. She
did not know how the appellant was arrested.
[6]
She denied that the sexual intercourse was with her consent and
maintained that if it was with her consent she would not have
reported the incident to her mother and/or her employer. When asked
as to why did she listen to the appellant when he pleaded with
her
when she wanted to go to the neighbours and ended up not going, she
said she did go but she did not find anyone. She testified
that she
was still working for the same employer and that the appellant did
not return to his place of work after the incident.
She also stated
that the incident happened in the morning although she did not check
the time.
[7]
Under cross-examination she testified that she did not see the
appellant coming to her at the time of the incident. She only
saw him
when he was already behind her. He pushed her while he was grabbing
her with her hair and she fell on her back to the bed.
After she fell
on the bed, he took off her tights and panties only on one leg and
inserted his penis inside her thereby raping
her. He was at the time
throttling her with a stick which he got on the headboard in the
bedroom where the incident took place.
She did not resist because she
was scared and shocked. The stick was about 35 centimetres long and
its thickness was 5 cm in diameter.
The appellant was pressing the
stick against her throat. He kept on pressing it for some time while
he was busy raping her and
she felt pain. She did not try to escape
as she was scared. She sustained bruises as a result of the
strangling. Her voice was
not well after the incident. She told the
doctor or nurse who examined her at the hospital that she was raped
but said nothing
about being strangled as she was scared. She showed
her mother where she felt pain as a result of the throttling. After
returning
from the neighbours, she phoned her mother 15 minutes
thereafter to inform her about the rape and also requested her to
phone her
employer. At that time the appellant, who was not near her,
was calling her. He initially left, went out of the gate and returned
in order to apologise for what he did. He returned after she came
back from the neighbours and after she had phoned her mother.
She did
not phone any other person except her mother on that day after the
incident.
[8]
She disputed that D. who worked in the vicinity was her boyfriend and
that she has kids with him. The appellant left the stick
he pressed
against her throat in the bedroom where the incident took place on
the bed and she showed it to her mother. From the
bedroom she went to
the kitchen to get some water but she vomited in the presence of the
appellant who was at the time pleading
with her not to tell her
employer what happened. She was also crying at the time. She disputed
that she and the appellant occasionally
had sexual intercourse at
their place of work and/or after work. She also denied that she was
at the time of the incident having
sexual intercourse with him for
the third time. She conceded that the appellant pleaded with her to
stop crying. She denied that
after the intercourse she made tea, she
and the appellant went to sit outside, her phone rang, she took the
phone and moved away
from the appellant and suddenly she was swearing
at someone on the phone. She also denied that after answering her
phone she went
to the appellant and accused him of taking her for a
fool as he sleeps with her and goes around with other girlfriends.
Further
to this she also disputed that she was angry because of the
call she received from the appellant's girlfriend and reiterated that
nobody called on her phone after the incident. She maintained that
she only called her mother for help after she did not find any
one in
the neighbourhood. She also denied telling the appellant that she was
going to tell D. that he raped her. She denied
ever phoning D.
on that day.
[9]
The complainant's mother corroborated her evidence with regard to the
phone call she made to her, what she told her about the
rape, that
she was crying, the fact that she gave her employer the phone when
she was speaking to her, that she and her employer
eventually went to
her place of work where they found her crying and did not find the
appellant. She testified that the complainant
told her that the
appellant fled after the incident. She testified that upon their
arrival at her place of work, they found her
outside. She went with
her inside the house where she showed her the footprints of the
appellant on the corridor. The complainant
was crying and she opened
her legs when she was walking. She was able to see the vomit in the
kitchen and the stick the appellant
used to throttle her in the
bedroom where the incident took place. She did not see where she was
injured on her body save to say
that she noticed that her t-shirt was
creased at the back. When told under cross examination that the
complainant testified
that she showed her bruises on her neck caused
by the strangulation, she stated that she only noticed the t-shirt
and that even
though she could have shown her the injuries, she did
not notice them because she was shocked.
[10]
Under cross-examination she testified that she saw mud and/or sand in
the house which ended on the corridor towards one of
the bedrooms.
[11]
The appellant also testified. His evidence was briefly as follows:
He had a love relationship with the complainant and
that on the
day of the incident he arrived at work where he found the complainant
and greeted her. He asked her about the whereabouts
of their
employer. After he was told that their employer was not there, he
requested to have sexual intercourse with the complainant.
She
accepted the proposal, they started to hug each other, kissed and
eventually went to one of the bedrooms where they had sexual
intercourse. When they were done, they proceeded to the kitchen where
he requested her to make tea for him. The complainant made
tea for
both of them and they went out of the house where they sat together
and drank the tea. She later left him and told him
that she was going
to put the washing in the machine. Subsequently, his girlfriend
phoned on the complainant's phone and requested
to speak to him. The
complainant asked her who she was and his girlfriend informed her
that she was his girlfriend. The two started
swearing at each other
over the phone.
[12]
When asked as to how did it come that his girlfriend phoned him on
the complainant's phone, he said he gave her the complainant's
numbers as he had intended to go and buy himself a phone that
afternoon. At that time his phone was broken and the complainant
had
left her phone with him a day prior to the incident as she wanted her
employer to buy her a new phone.
[13]
After the phone call from his girlfriend, the complainant came to him
and accused him of undermining her. She also asked him
as to why did
he give his girlfriend her phone numbers. He told her that that was
not something that should make her angry because
she also had a
boyfriend who was also working in the neighbourhood and that both of
them were helping each other. He was giving
her money and she allowed
him to have sexual intercourse with her occasionally. He left her and
continued with his duties. At some
stage he approached her again. He
found her crying. He asked her two times as to why was she crying.
She did not respond. She took
out her phone and called her boyfriend,
D. and told him that he raped her. When he heard her saying
that on the phone, he
told her that she was going to cause problems
between him and D. as they walked together home every time
after knocking off.
The complainant continued crying and informed him
that she was going to tell their employer about the incident. He
pleaded
with her not to tell their employer about the incident
because she was going to fire him. Eventually he told her that he was
leaving
because there were going to be problems between her and their
employer when she returned. He ultimately left.
[14]
He met his employer in town and she asked him why was he there at
that time. He informed her that he was sick and asked some
money from
her. He did not tell her about the incident. His employer trusted
him. He was scared that if he informed her about the
incident, she
was going to ask him where did they have sexual intercourse. After
the incident he got another job. He never returned
to the place where
he used to work with the complainant. He was later arrested.
[15]
He denied that he raped the complainant, strangled her with a stick
on her neck, took off her skirt, tights and panties.
[16]
Under cross-examination he testified that he did not know where his
girlfriend who phoned him on the complainant's phone on
the day of
the incident, resided. He also did not have her cellphone numbers. He
further testified that the love relationship that
he had with the
complainant, was only at their place of work because she also had a
boyfriend with whom she had a child and the
two had sexual
intercourse three times prior to the incident. He denied that there
was a curtain stick in the room where the incident
took place and
that the complainant telephoned her mother after the incident. He was
adamant that she telephoned her boyfriend.
He also denied that the
last time he saw the complainant was on the day of the incident and
said he met her in town prior to his
arrest. He conceded that the day
of the incident was his last day at work as he never returned after
the incident. He denied that
he left his place of work after the
incident because he raped the complainant and said he was afraid that
his employer was either
going to shoot him or call the police the
minute he told her that they used to have sexual intercourse on her
bed in her house.
He maintained that there were no problems between
him and the complainant after the incident until her phone rang when
his girlfriend
requested to speak to him. He testified that he used
to give the complainant money.
[17]
Section 208 of Act 51 of 1977
(" the Criminal Procedure Acf'
)
provides that an accused person may be convicted of any offence
on the single evidence of a competent witness. It is, however, a
well-established judicial principle that the evidence of a single
witness should be approached with caution, his or her merits
as a
witness being weighed against factors which militate against his or
her credibility (S
v Stevens
2005 (1) All SA (1) SCA).
[18]
The correct approach to the application of the so-called
'
cautionary rule'
was set out by Diemont JA in
S v Sauls and
Another
1981 (3) SA 172
(A) at 180E-G where he said the
following:
" There is no
rule of thumb test or formula to apply when it comes to a
consideration of the credibility of a single witness
...
The trial judge will weigh his evidence will
consider its merits and demerits and, having done so will decide
whether it is trustworthy
and whether, despite the fact that there
are shortcomings or defects or contradictions in the testimony, he is
satisfied that the
truth had been told. The cautionary
rule referred to by De Villiers JP in R v
Mokoena
1932 OPD 79
at 80, may be a guide to a right decision but it
does not mean that 'the appeal must succeed if any criticism however
slender,
of the witnesses' evidence were well founded
...
'
It has been said more than once that the
exercise of caution must not be allowed to displace the exercise of
common sense."
[19]
The evidence about the rape is that of a single witness. The evidence
was short and clear and the trial court found that the
complainant's
evidence was credible and could be relied upon after it was
corroborated by her mother and her conduct after the
incident which
was in my view consistent with the conduct of a person who was raped.
The complainant's mother testified that when
she spoke to her over
the phone, she was crying, she also found her crying outside at her
place of work and she was walking with
her legs open. This evidence
that she was crying after the incident was corroborated even by the
appellant himself who testified
that he asked her why was she crying
on two occasions and she did not respond. Coupled with this evidence,
there was also evidence
that the complainant also tried to seek help
from the neighbours unfortunately she did not find anyone at the
neighbours. She then
phoned her mother and made the first report to
her. Her mother and her employer went to her place of work and she
saw the vomit
in the kitchen that the complainant spoke about and the
curtain stick in the bedroom where the rape took place which the
appellant
pressed against the complainant's neck when he was raping
her.
[20]
It was argued that the complainant did not tell the doctor or nurse
who examined her at the hospital after the rape that she
had bruises
on her neck which were caused by the strangulation, that the bruises
were not mentioned on the J88, that she testified
that she even
showed her mother the bruises on her neck but when her mother
testified she stated that she did not observe any injuries
on her
neck. It is important to note that a stick could have been a blunt
object. The way it was pressed against the complainant's
neck
according to the evidence, could not have caused an open injury. At
the least depending on the amount of force used, it could
have caused
a bruise on the neck. The amount of force used, can only determine
the extent of the bruise. In her evidence-in-chief,
the complainant
testified that she did not sustain any injuries as a result of what
happened to her in the house (record, page
36 line 24-25). Under
cross-examination (record, page 42 line 16-18) the following has been
recorded:
" Question: Did
you maybe get bruises from the strangling on your neck?
Response: Court:
Response:
Yes on the day my
voice was waned a bit. Listen madam, bruises
...
Yes there were
bruises."
In
my view the manner in which these questions were asked, was leading
and/or suggestive of an answer. This is demonstrated by the
manner in
which the complainant answered. She just said
" Yes' .
[21]
Her mother's evidence was that she did not see where she was injured
on her body save to say that she noticed that her t-shirt
was creased
at the back. Under cross-examination she testified that even though
the complainant could have shown her the injuries,
she did not
observe/notice them because she was shocked. In my view if the
complainant had sustained a bruise which was visible,
her mother
could not have observed/noticed it because according to her evidence
she was shocked about the rape itself. Sight should
not be lost of
the fact that the complainant testified on her own that she did not
sustain injuries as a result of what happened
to her in the house.
She further testified that she did not tell the doctor or nurse who
examined her after the rape about the
bruises on her neck. No J88
medical report was handed in to form part of the record. To complain
that the injuries were not mentioned
on the J88 is misleading. The
prosecutor at the court
a quo
was asked if he was going to
hand in the J88 medical report. He said he was not going to because
the intercourse was admitted (record,
page 58 line 21, line 25 to
page 59 line 1).
[22]
There is no reason why the complainant can just out of the blue,
implicate the appellant. According to the evidence there were
no
problems between the two of them prior to the incident. In fact the
appellant wanted the trial court to accept that there was
nothing
wrong between him and the complainant even after the incident up
until her phone rang. I will deal with his evidence later
in the
judgment. In my view the trial court correctly accepted the single
evidence of the complainant as credible and satisfactory
in all
material respects. There is overwhelming evidence that the appellant
raped the complainant. In any event the fact that a
witness lied
about one thing in her evidence does not mean that the whole of her
evidence is a lie (
S v Mkohle
1990 (2) SACR 95
(A)).
[23]
I only found minor discrepancies in the complainant's evidence, which
I did not find material, relating to whether she went
to the
neighbours and also phoned her mother when the appellant was still at
their place of work or not. In her evidence-in-chief
she testified
that after the appellant had left she went to the neighbours to seek
assistance and because she could not find anyone,
she decided to
telephone her mother after realising that she did not have her
employer's phone numbers on the sim-card she was
using. Under cross
examination her evidence was that she tried to go to the neighbours,
the appellant pleaded with her not
to go but she ultimately went. The
appellant, who left the premises, came back and when she was phoning
her mother he was in the
premises although far from where she was,
and he was calling her.
[24]
The version of the appellant to a large extent corroborated that of
the complainant. The fact that he pleaded with her not
to tell her
neighbours and their employer about the incident, and that she was
crying after the incident. If his version that the
sexual intercourse
was with consent and that he and the complainant used to have sexual
intercourse at their place of work was
correct, why would the
complainant behave the way she did on the day of the incident while
she never behaved the same way previously.
The appellant is not
saying on the day in question, they had sexual intercourse and he did
not give her money. In my view the court
a quo
correctly
rejected his version that the complainant was angered by the
telephone call from his girlfriend. It surely did not make
sense as
to how he could give his girlfriend the cellphone number of the
complainant. I am satisfied under the circumstances that
the trial
court correctly rejected the appellant's evidence as not being
reasonably possibly true and accepted the complainant's
evidence
which had some corroboration as discussed above. The trial court
correctly found that the state proved its case beyond
a reasonable
doubt against him and convicted him of rape. I therefore cannot find
any misdirection on the part of the court
a quo.
Accordingly
the appeal against conviction falls to fail.
[25]
In the result I propose the following order:
25.1 The appeal against
conviction is dismissed.
_________________________
M
J TEFFO
JUDGE OF THE HIGH COURT
OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
I
agree:
_________________________
N J KOLLAPEN
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
APPEARANCES
For
the Appellant
M M P Masethe
Instructed
by
The Pretoria Justice Centre
For
the Respondent
H A Thenga
Instructed
by
The Director of Public Prosecutions
Date
of Judgment
21 November 2016