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[2015] ZAGPPHC 101
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Mbetha v S (A962/2013) [2015] ZAGPPHC 101 (10 March 2015)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NUMBER:
A962/2013
DATE: 10 MARCH 2015
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
KHANYISO
MBETHA
....................................................................................................
Appellant
V
THE
STATE
..................................................................................................................
Respondent
JUDGMENT
THOBANE AJ,
[1] The appellant,
who was legally represented throughout the trial proceedings, was on
the 1st February 2012 convicted of contravening
the provisions of
section 3 of the Sexual Offences Act, Act 32 of 1997, in the Regional
Court held at Klerksdorp. He was sentenced
to 20 years imprisonment.
[2] He appeals
against conviction and sentence pursuant to a petition granted on the
15th May 2013.
[3]
The grounds of appeal are that the court
a
quo
erred
in many respects; (i) in accepting the evidence of the complainant
whereas there were many contradictions between her testimony
and that
of two other witnesses, in particular, her testimony that she did not
know the appellant whereas two witnesses testified
that she knew him.
That as a result of this contradiction her evidence can not be true
and reliable; (i) her refusal to acknowledge
knowing the appellant
and that she sat next to him at the tavern, points to her intention
to mislead and that was an indication
that the sexual intercourse was
consensual; (iii) the explanation by the appellant to the effect that
the intercourse was consensual,
was reasonably possibly true; (iv)
the reason for going to the tavern was a factor that should not have
been overlooked in view
of the fact that the testimony of the
complainant, in that regard, differed to that of the witnesses; (v)
the fact that the testimony
of the complainant, to the effect that
she did not report the rape to her friend N[...], points to her
untruthfulness; (vi) the
complainant's failure to report the rape to
her parents raises questions and that her explanation about such
failure was not convincing;
(vii) her failure to scream whereas there
was a person at the scene of the rape, is a factor that should count
in favour of the
appellant. Finally, that the magistrate was biased
in that he uttered the following words;
"Further
more this tendency is I think this is what happened of the young
people going to the taverns buy drinks for the girls
hoping that
after buying these drinks they will get favours. Okay you can do it,
but if the lady says no must not think that because
you bought liquor
I must get something from her".
[4] The Notice of
Application for leave to Appeal dated the 18th April 2012 indicates
that the application for leave is in respect
of conviction only.
Equally, the grounds of appeal are aimed at attacking the conviction
only. Finally, the Heads of Argument filed
on behalf of the appellant
point to the fact that the appellant is aggrieved at the conviction
only, as no points were raised in
respect of the sentence. Before us
counsel for the appellant indicated that their approach was simply
that should appeal succeed
then automatically the sentence will be
set aside, hence the focus on conviction despite the petition order
being in respect of
both conviction and sentence.
[5] The appeal is
opposed by the state on the following grounds; (i) intercourse is not
in dispute as the appellant proffered a
defence of consent; (ii) the
credibility of witnesses is a matter best left to the trial court;
(iii) evidence of a single witness
was handled properly by the trial
court; (iv) the rape was corroborated by a witness who testified that
she was slapped by the
appellant when she tried to intervene; (v)
there was corroboration of the rape by an independent person i.e. the
Doctor that carried
out the medico legal examination of the
complainant and completed the J88 medical report.
[6] The crisp issue
for determination is whether the appellant committed an act of sexual
penetration on the complainant by having
intercourse with her without
her consent. Simply put, whether the appellant raped the complainant.
THE EVIDENCE
[7] A[...] T[...],
the complainant, testified that on the 30th January 2010 she went to
a tavern together with her friends with
the intention of fetching a
key from her sister. While walking there, a person approached from
the opposite direction and came
towards them. They entered the tavern
and the same person also entered. On exiting the premises, later on,
that person grabbed
her forearm. N[...], her friend, tried to pull
her away but was slapped with an open hand. While being held on her
arm, she was
walked to the appellant's parental home. She tried to
break lose but could no succeed. She was pulled inside the house and
the
door was locked. She was then raped by the appellant. She was
given her clothes to wear only for the appellant to again undress
her
and rape her the second time. She was thereafter allowed to leave.
[8] Boitumelo
Seitumeng testified that she went to the tavern and observed that the
complainant was seated next to the appellant
drinking liquor. Later
she observed the appellant exiting the tavern and the complainant
also went outside. Soon thereafter she
also went out only to see the
appellant hitting N[...] with an open hand
1
.
She went back inside the tavern to call someone so that they could
leave.
[9] N[...] M[...]
gave evidence that she went to a tavern in the company of friends
that included the complainant. She indicated
that they had gone to
the tavern to drink. At the tavern she had been sitting with some
people that included the appellant. She
was called to come sit with
them as she was seated far from them, which she then did. The
complainant went outside the tavern apparently
because the appellant
had called her. She was called outside to come and see what was
happening. She then went outside and saw
the appellant holding the
complainant restraining her from leaving. He was pulling her forcibly
while the complainant was crying.
When she tried to intervene, she
was slapped by the appellant on her right cheek. She observed the
appellant pulling the complainant
in the direction of his home while
the complainant was trying to resist being pulled. She then left the
tavern and went home.
[10] Dr. Mapheka
testified that he conducted a medico legal examination of the
complainant and thereafter completed the J88 form.
He observed the
following injuries in the vaginal area; tears, bruises, tears around
the hymen and as well as blood stained vaginal
discharge. He
concluded that indeed the complainant had been raped. He readily
conceded that while it was possible to have tearing
during consensual
intercourse, the injuries that the complainant sustained cumulatively
pointed to a sexual assault.
[11] The appellant
closed his case without leading any evidence, whereafter the parties
addressed the magistrate as to what verdict
the trial court should
return.
THE LAW
[13]
It is settled that a court of appeal will not interfere with a
finding of fact and credibility made by the trial court. The
reason
for this is simply that the trial court sees and hears the witnesses
and is steeped in the atmosphere of the trial. It is
in a position to
take into account a witness’ appearance, demeanour and
personality. In the absence of factual error or misdirection
on the
part of the trial court, its finding is presumed to be correct.
Rex
v Dhlumayo & Another 1948(2) SA 677(A) 705-6.
[14]
As a consequence of the aforementioned, the ambit for the
interference by the appeal court on a finding of fact and credibility
is restricted to few instances. It is only allowed in instances where
there is a demonstrable and material misdirection by the
trial court
where the recorded evidence shows that the finding is clearly wrong.
Factual errors may be errors where the reasons
which the trial judge
provides are unsatisfactory or where he/she overlooks facts or
improbabilities. Also, where the finding on
fact is not dependent on
the personal impression made by a witnesses’ demeanour, but
predominantly upon inferences and other
facts, and upon
probabilities. The appeal court is also in an equal position to the
trial court regarding the facts that are found
to be correct by the
trial court.
S v
Hadebe and Others
1997 (2) SACR 641
(SCA) t 645e- f. S v Bailey
2007
(2) SACR 1
(C)
[15]
When evaluating or assessing evidence, it is imperative to evaluate
all the evidence, and not to be selective in determining
what
evidence to consider. See
S
v Van der Meyden
1999 (1) SACR 447
(W) stated at 450:
“
What
must be borne in mind, however, is that the conclusion which is
reached (whether it be to convict or to acquit) must account
for all
the evidence. Some of the evidence might be found to be false, some
of it might be found to be unreliable, and some of
it might be found
to be only possibly false or unreliable, but none of it may simply be
ignored.
”
JUDGMENT OF THE
MAGISTRATE
[16]
[16.1] The magistrate summarized the evidence tendered before him. He
noted that the appellant had a Constitutional right to
remain silent
if he wished to exercise it. He also observed that there was no
version to evaluate on the side of the appellant
as he had tendered
no evidence. He was quick to add that the fact that the appellant
chose not to testify did not mean that the
evidence of the state was
to be accepted as it was, it still had to be evaluated. Finally, the
magistrate was alive to the fact
that the evidence he was confronted
with was that of a single witness and that he needed to approach it
with a measure of caution.
In this regard he referred to
S
v Sauls
1981 (3) SA 172(A)
,
and
quoted therefrom.
[16.2]
He further dealt with the contradictions in the testimony of the
complainant in so far as it related to having sat with the
appellant
inside the tavern. The magistrate found that the complainant was not
a truthful witness in that regard in that two witnesses
gave a
different account. He thereafter looked at
S
v Mkohle
1990 (1) SACR 95
(A),
in
an endevour to adopt an approach to the contradictions that he
highlighted on the testimony of the complainant. He further made
reference to
R v
Abdoorham
1954 (3) SA 163
(NPD)
in
explaining his approach towards the unsatisfactoriness of the
complainant's testimony.
[16.3] In the end
the magistrate considered the totality of the evidence tendered prior
to pronouncing his finding. Such exercise
included consideration of
the fact that the appellant chose not to testify, also the weight
that ought to be given to the version
that was put to state
witnesses.
[16.4] In the end,
he found that the guilt of the appellant had been established beyond
a reasonable doubt and convicted the appellant.
ANALYSIS
[17]
The approach to the evaluation of evidence was authoritatively stated
by Navsa
JA
in
S v Trainor
2003
(1) SACR 35
(SCA) at 41, in paragraph 9
as
follows:
'‘[9] A
conspectus of all the evidence is required. Evidence that is reliable
should be weighed alongside such evidence as
may be found to be
false. Independently verifiable evidence, if any, should be weighed
to see if it supports any of the evidence
tendered. In considering
whether evidence is reliable, the quality of that evidence must of
necessity be evaluated, as must corroborative
evidence, if any.
Evidence, of course, must be evaluated against the onus on any
particular issue or in respect of the case in
its entirety.”
[18] In my view the
magistrate's approach to the evaluation of evidence, though at times
lacking in detail, was correct. He accounted
for all the evidence
which was led in the trial, paying particular attention to the
complainant’s evidence. He applied the
cautionary rule to her
evidence when such application was warranted.
[19]
The complainant related in satisfactory and in my view compelling
terms what happened to her. Even though she was a single
witness to
the actual rape incident, she was corroborated on a material aspect
of her evidence, namely that the appellant in the
process of taking
her to his parental home, slapped N[...] who tried to intervene and
also that she did not accompany the appellant
to his home voluntarily
and without any struggle. In
S
v Banana
2000 (2) SACR 1
(ZSC) on page 8C,
which
dicta the magistrate correctly relied upon, Gubbay CJ (delivering the
judgement of the majority of that court) stated the
following:
“
Where
the evidence of the single witness is corroborated in any way which
tends to indicate that the whole story was not concocted,
the caution
enjoined may be overcome and acceptance facilitated. But
corroboration is not essential. Any other feature which increases
the
confidence of the court in the reliability of the single witness may
also overcome the caution.”
[20] I am satisfied
that the magistrate satisfactorily dealt with the the contradiction
relating to the knowledge of the appellant
by the complainant.
However there were other contradictions that were raised during the
trial that need to be mentioned as they
were not dealt with by the
trial court;
[20.1] The
complainant testified that the purpose for going to the tavern was to
get the house keys from her sister as she did not
want to wake up
people at her home should she get home late. Her friend Boitumelo
however testified that the purpose of going to
the tavern was to go
and drink. It has been argued that by seeking to conceal the true
purpose of going to the tavern, the complainant
misled the trial
court. I do not agree with this submission. The testimony of the
complainant is to the effect that although she
went there to get the
key, they ended up sitting at the tavern for some thirty minutes and
drank liquor
2
.
I do not find this to be a deviation from her evidence in chief. The
submission therefore that the complainant sought to conceal
the fact
that they were drinking liquor is not correct.
[20.2] Boitumelo and
N[...] both testified that at some point the complainant was seated
with the appellant in the tavern. The complainant
disputed this. It
has been argued on behalf of the appellant that by seeking to conceal
the fact that they were seated together
at some point, the
complainant wanted to mislead the court and hide the fact that the
sexual intercourse was consensual. I do not
agree with the
conclusion. Even if one were to accept that the complainant and the
appellant were seated together at the tavern,
it does not necessarily
imply that the intercourse was consensual as has been argued. It was
further argued, that the fact that
the complainant and the appellant
were at some stage seen talking, meant that the intercourse was
consensual. I do not agree with
that inference for they could have
been discussing anything. They could even have been simply exchanging
greetings. The state submitted,
with which submission I agree, that
it was difficult for people who had been drinking at a tavern to
relate similar observations.
It was therefore expected that there
could be differences in their perceptions of the events on the day.
[20.3] It is clear
that the complainant did not leave with the appellant from the tavern
free from duress. Firstly, the version
of the appellant is that she
was grabbed on her arm by the appellant. N[...] tried to intervene by
pulling her away from the appellant.
She was thereafter slapped on
her cheek by the appellant. She further testified that although the
appellant did not pull her as
they walked away, she tried to break
lose from the appellant's grip
3
.
Boitumelo's observation was that she went out and saw the appellant
assault N[...] with an open hand
4
.
She did not observe the appellant holding the complainant. N[...]
testified that when she went outside she observed the appellant
holding the complainant and forbidding her to go
5
.
She observed that the appellant held the complainant's wrist and was
pulling her in a rough manner or by force
6
.
At that stage the complainant was crying saying that N[...] should
help her. She tried to intervene, as a result, she was slapped
on her
cheek. She walked away but was able to observe that the appellant was
pulling the complainant who was resisting being pulled,
in the
direction of the appellant's home. I find the corroboration as to the
involuntary departure of the complainant, and the
accompanying
violence meted out by the appellant, very compelling, and so did the
trial court, rightly in my view.
[20.4] Much has been
made about the failure of the appellant to report the incident
immediately. The first person that the complainant
would have been
able to report to but did not, was her father who opened the door for
her when she reached her home after the rape.
Early in her testimony
the complainant testified that her parents did not approve of her
being away from home at night. That by
the way is also the reason why
she claimed to have gone to the tavern to look for her sister so as
to secure the house keys as
she did not want anyone to open the door
for her late at night. It is understandable therefore why she would
find it difficult
to report to her father when she arrived at home at
night having been to a tavern. Her failure to report to the first
available
person, i.e. her father, viewed in this context, is
understandable.
[20.5] The
submission that the complainant's report to her friend N[...], that
the appellant had sex with her and not telling her
that she was
raped, is pure obfuscation. It is true that the words used by the
complainant were to the effect that the appellant
had had "sexual
intercourse"with her. The recorded evidence however, looked at
holistically particularly in the context
of the complainant and her
friend having parted the night before in the most unusual manner,
points to the fact that the appellant
and N[...], were in fact
referring to rape, for the simple reason that after the complainant
had informed N[...] about the "sexual
intercourse", she
wanted to know if the complainant had told her parents, to which she
replied that she had not. This, in
my view, does not point to
untruthfulness on the part of the complainant, nor does it support
the appellant's contention that the
intercourse was consensual. One
shudders to think that the complainant would have been expected, by
her friend, to report "consensual
sexual intercourse" to
her parents. The explanation given by the complainant for not having
reported the rape to her parents
i.e. that she was afraid because she
had been out at night, without their knowledge, is in my view
plausible.
[20.6]
It was argued that that the complainant should have screamed when she
went into the appellant's home, more so after she knew
that there was
a person there. I have various problems with this submission.
Firstly, the complainant details how events unfolded
at the
appellant's house. How she was kissed and taken to the bedroom. Her
evidence was that she tried to resist by looking away
and also by
pushing away the complainant using her hand
7
.
Her passiveness however is explained by her when she says she was so
shocked when the appellant took off her clothes, "she
could
hardly speak"
8
.
Secondly, the recorded evidence shows that the complainant testified
that at first she was raped, then the appellant gave her
her clothes
only to take them off and rape her again
9
.
She was thereafter given her clothes. Only then did she start running
inside the house. While so running the appellant's brother,
so she
testified, emerged from one of the rooms and pushed her towards the
appellant. The appellant took her to the bedroom where
they sat and
she told him that she wanted to go home
10
.
Given this chronology of events, the interpretation that the
appellant's brother emerged between the first and second rape, is
clearly wrong. Despite being misled during cross examination by the
legal representative on behalf of the appellant, the complainant
was
able to stand by her story that the complainant’s younger
brother only came to the picture after the second rape had
taken
place
11
.
In my view the expectation that the complainant should have screamed
in between the first and second rape is premised on the wrong
set of
facts, being the assumption that the complainant ran after the first
incident of rape but before the second. Further more,
surely the
complainant could not have been expected to seek help from the person
that pushed her towards her assailant when she
tried to run away.
[20.7] In my view
the contradiction that emerged as to whether Boitumelo went with the
complainant to the tavern or whether she
was already at the tavern
when the complainant arrived, was not and still is not material to
the issues to be decided. So is the
contention that the complainant
knew the appellant by name or by sight before the day in question.
[20.8] It has been
submitted that the comments by the magistrate, namely;
"Further
more this tendency is I think this is what happened of the young
people going to the taverns buy drinks for girls
hoping that after
buying these drinks they will get favours. Okay you can do it, but if
the lady says no must not think that because
you bought liquor I must
get something from her.",
are indicative of
bias towards the appellant, and that the appellant was prejudiced
thereby thus depriving him of a fair trial as
guaranteed in the
Constitution. A fair trial is at the centre of our judicial system.
For that reason, that a trial was unfair,
should not be an easy
submission to make. The above statement by the magistrate being a
ground of appeal based in bias, should
be examined thoroughly to
dispel, in my view, the notion that the trial was unfair.
The
legal position with regard to the role and importance of a presiding
officer is encapsulated in the following
dictum
by
Schoeman AJA, quoting extensively from case law, in the SCA judgment
of
Leon Smith v The
State (595/2012)
[2013] ZASCA 38
(28th March 2013),
"Unfair
trial
[13]
Even before the present constitutional dispensation, it has been a
principle of our law that an accused person is entitled
to a fair
trial and this ‘necessarily presupposes that the judicial
officer who tries him is fair and unbiased and conducts
the trial in
accordance with those rules and principles or the procedure which the
law requires.
’
[14]
Every accused has the right to a fair trial in terms of s 35(3) of
the Constitution. What exactly that right encompasses has
not been
circumscribed. In
S v Dzukuda ; S
v
Tshilo
12
it was set out as follows.
‘
It
would be imprudent, even if it were possible, in a particular case
concerning
the right to a fair trial, to attempt a comprehensive exposition
thereo
f. In what follows, no more is intended to be said about this
particular
right
than is necessary to decide the case at hand. At the heart of the
right to a
fair
criminal trial and what infuses its purpose, is for justice to be
done and
also
to be seen to be done. But the concept of justice itself is a broad
and
protean
concept. In considering what, for purposes of this case, lies at the
heart
of a fair trial in the field of criminal justice, one should bear in
mind that
dignity,
freedom and equality are the foundational values of our Constitution.
’
[15]
In
S v le
Grange
13
it was stressed that it is
essential that a judicial officer who presides should not ask
questions during the trial in a manner
that does not subjectively and
objectively demonstrates his impartiality:
'It
must never be forgotten that an impartial judge is a fundamental
prerequisite for a fair trial. The integrity of the justice
system is
anchored in the impartiality of the judiciary. As a matter ofpolicy
it is important that the public should have confidence
in the courts.
Upon this social order and security depend. Fairness and impartiality
must be both subjectively present and objectively
demonstrated to the
informed and reasonable observer.
’
And at para 13:
'Where the
offending questioning sustains the inference that in fact the
presiding judge was not open-minded, impartial or fair
during the
trial, this court will intervene and grant appropriate relief. ... In
such a case the court will declare the proceedings
invalid without
considering the merits.'
And at para 27:
‘
In
the end the only guarantee of impartiality on the part of the courts
is conspicuous impartiality.
’
[16]
In
S v
May
14
Lewis JA discussed the role of a
presiding officer and the effect, if any, of an irregularity:
‘
Judicial
officers are not umpires. Their role is to ensure that the parties'
cases are presented fully and fairly, and that the
truth is
established. They are not required to be passive observers of a
trial; they are required to ensure fairness and justice,
and if that
requires intervention then it is fully justifiable. It is only when
prejudice is caused to an accused that intervention
will become an
irregularity. ’
[17]
In S v
Rail
15
Trollip AJ A set out the
standards expected of a presiding officer when he or she poses
questions of witnesses. The most important
aspect is that justice
must be done. Blit, it must also be seen to be done:
'He should
therefore so conduct the trial that his open-mindedness, his
impartiality and his fairness are manifest to all those
who are
concerned in the trial and its outcome, especially
[20.9] I have quoted
case law extensively for completeness. Otherwise there is no merit in
the submission that the right to a fair
trial was violated. The
transcribed record does not point to any bias on the part of the
presiding officer. The magistrate intervened
only where necessary and
whenever such intervention was justified. Counsel for the appellant
reluctantly agreed that there was
no recorded bias but nonetheless
argued before us, that the absence of any bias from the recorded
evidence is because the magistrate
bottled it up only to blurt it out
at the end of proceedings during sentencing proceedings. I disagree
with such characterization
of the magistrates comments, simply
because the magistrate was commenting about the state of crime and
our society before imposing
sentence. Most importantly however, there
was no prejudice to the appellant.
[21] Lastly, the
rape was independently corroborated by the evidence of Dr. Mapheka.
The J88 Medical Report was accepted into evidence
without any
objection. The injuries depicted therein were consistent with sexual
assault. The postulation that anything could have
happened to the
complainant after she left the appellant's home is just pure
speculation.
[22] The defence
proffered by the appellant viewed on a conspectus of the evidence of
the state as a whole particularly in the face
of corroboration of the
complainant’s evidence by both N[...] and Boitumelo as to
N[...]'s assault, coupled with the findings
of the medico-legal
examination recorded in the J88, cannot be said to be a reasonably
possibly true version. I am accordingly
satisfied that the State had
proved its case against the appellant beyond reasonable doubt and
that he was correctly found guilty
of rape.
[23]
In the present case, the appellant has failed to advance any cogent
reasons for the rejection of the evidence of the complaint.
I am
satisfied that the court
a
quo
adopted
the approach in the Sauls matter. I am further satisfied that the
evidence pointed to the guilt of the appellant. In the
circumstances
appeal must fail.
[24] I would
therefore propose the following order:
1. The appeal is
dismissed, his conviction is confirmed and his sentence stands.
S. A. THOBANE
ACTING JUDGE OF
THE HIGH COURT
I AGREE, AND IT
IS SO ORDERED
S. POTTERILL
JUDGE OF THE HIGH
COURT
1
Page
151 para 19-20
2
Page
134 para 13 to 19
3
Page
116 para 5
4
Page
151 paara 20
5
Page
160 para 14
6
Page
160 para 23
7
Page
117 para 20-24
8
Page
118 para 9
9
Page
129 para 11-19
10
Page
121 para 11,21; page 122 para 1 & 2
11
Page
129 para 8 to page 130 para 14
12
S
v Dzukuda ; S v Tshilo
[2000] ZACC 16
;
2000 (2) SACR 443
(CC) para 11.
13
S
v Le Grange
[2008] ZASCA 102
;
2009 (1) SACR 125
(SCA) para 21.
14
S
v May
2005 (2) SACR 331
(SCA) paras 28-29
15
S
v Rall
1982 (1) SA 828
(A) at 832A-833A