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[2007] ZASCA 76
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S v Vhengani (444/2006) [2007] ZASCA 76; [2007] SCA 76 (RSA) (31 May 2007)
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THE
SUPREME COURT OF APPEAL
OF SOUTH
AFRICA
Not Reportable
CASE NO 444/2006
In
the matter between
N E VHENGANI
...............................
Appellant
and
THE STATE
...............................
Respondent
Coram: Nugent, Jafta
JJA
and Snyders AJA
Heard: 21 MAY 2007
Delivered:
31 MAY 2007
Summary:
Evidence – cautionary approach applicable to evidence of a
single witness.
Neutral
citation: This judgment may be referred to as
Vhengani
v The State
[2007] SCA 76 (RSA)
___________________________________________________________
JUDGMENT
___________________________________________________________
JAFTA JA
[1] The central
issues in this appeal are credibility and reliability of a single
witness. The appellant was convicted of rape in
the Venda High Court
(Lukoto J) and sentenced to 20 years’ imprisonment. With the
leave of this court he now appeals against
the conviction.
[2] The facts giving
rise to the appellant’s conviction and sentence were the
following. The complainant testified that on 29
March 2001 she was
returning home after visiting a homestead which was a kilometre away
from her home at Tshivhambe village in Venda.
She was walking alone
on a footpath through an orchard when she encountered four men. One
of them blocked her way and gagged her
with a white cloth. He
undressed and felled her on the ground. He unzipped his trousers,
came on top and raped her. At that stage
his companions were no
longer at the scene. It is not clear at what stage they had left. She
was not able to identify them but she
identified her assailant as the
appellant whom she claimed to have known by sight and that his name
was Emmanuel of Tshisaulu village.
[3] She escaped from
her assailant after he had permitted her to go to urinate. She then
ran away and her assailant did not pursue
her. It was already 22h00
when she arrived at her home but found that the gate was locked. She
went to a neighbour’s homestead
where she slept. Upon arrival
she told Miss Takalani Mukwevho at that homestead that she was being
chased by a boy, which was a lie.
On the following morning she did
not go home but proceeded to another homestead with the view of
asking the owner (Ms Phumudzo Mapeta)
to accompany her to her
mother’s place of work. Her mother had already left for work as
she normally left home at 6h00. On
meeting her Ms Mapeta asked why
she was dirty and she replied by telling her that she had been raped
by one Emmanuel whom she described
as short and dark in complexion.
[4] Ms Mapeta
accompanied her to her mother’s place of work. She reported the
rape to her mother who took her home. On the advice
of her father,
they went to lay a charge at a local police station. From there they
proceeded to hospital where she was examined
by a doctor who
completed a report setting out her findings. The medical report,
which was handed in at the trial, revealed that
there was sexual
penetration. In her oral evidence the doctor explained that the
bruises she observed on the complainant’s
private parts were of
the nature that could occur during consensual intercourse.
[5] In
her testimony Ms Mapeta stated that she saw the complainant seated
next to her gate on the morning of 29 March at 08h00. But
the other
evidence indicates that the witness was mistaken, it was the 30
th
on that day. Upon asking why she was seated there, the
complainant informed her that she had been raped. The witness
observed that
the complainant was dirty and she was also crying. When
the complainant described the person who raped her, she also thought
it was
the present appellant.
[6] The appellant
disputed the allegations against him and raised an alibi as his
defence. He stated that in the evening in question
he was at home
with his mother. In her testimony his mother confirmed the
appellant’s alibi. The trial court, however, rejected
the
defence version on the basis of probabilities. Although the reasons
given by the trial court for this finding are, in my view
not
convincing, for purposes of this judgment I shall assume that the
defence was properly rejected.
[7] As to the actual
rape and the identity of her assailant, the complainant was a single
witness whose evidence called for the cautionary
approach. Although
the trial court appreciated this, it failed to apply the rule in its
judgment. On this issue the learned Judge
merely said:
‘
Now,
let us look at the evidence of the complainant as a single witness.
Does it comply with the requirements as laid down in
R
v Mokoena
the 1932
case, is she a credible and a reliable witness? The impression I got
is that she is a reliable and credible witness.’
[8] In
S v Sauls and Others
1981
(3) SA 170(A)
Diemont JA explained how the rule should be applied by
trial courts. The learned Judge said (at 180E):
‘
There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness (see
the
remarks of Pumpff JA in
S
v Webber
1971 (3)
SA 754(A)
at 758). 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 has been told.’
[9]
This rule applies to evidence of single witnesses regardless of their
gender. It is not the cautionary rule that was confined
to sexual
offences only and which was discarded by this court in
S
v Jackson
1998 (1) SACR 470
(SCA). Having
rejected the latter rule Olivier JA, however, acknowledged that in
cases such as the present the evidence led may warrant
a cautionary
approach. The learned Judge said (at 476F):
‘
In
my view, the cautionary rule in sexual assault cases is based on an
irrational and out-dated perception. It unjustly stereotypes
complainants in sexual assault cases (overwhelmingly women) as
particularly unreliable. In our system of law, the burden is on the
State to prove the guilt of an accused beyond reasonable doubt –
no more and no less. The evidence in a particular case may
call for a
cautionary approach, but that is a far cry from the application of a
general cautionary rule.’
[10] It is against
this background that I now turn to consider the complainant’s
evidence. She was 15 years old at the time
of the alleged rape. In my
view her evidence was unsatisfactory in a number of respects. She
alleged that she was attacked at 19h30
and she reached her home at
22h00 without explaining what happened during the intermediate period
of two and half hours. The complainant
stated that the appellant’s
companions did not touch her but later changed to say they had held
her before the appellant undressed
and raped her. When asked why she
lied about having been chased by a boy she said she wanted Miss
Mukwevho to open the door for her.
But in her evidence – in –
chief she said the latter ‘opened for me and upon getting
inside the house I told her
that I am being chased by a certain boy’.
[11] When the
complainant was questioned about not reporting to Miss Mukwevho
that she was raped, she gave inconsistent answers.
Her evidence
proceeded as follows:
‘
And
did you inform Takalani as to what had happened to you?
– – –
No
Why didn’t you tell her? – –
– It is because she never asked me.
I see. So why then when you said to her
that somebody or there are some guys who are chasing you, what really
made you to explain
to her that there are some guys who were chasing
you? – – – I am the one who volunteered that
information. I told
her that I am requesting her to open for me since
there is a boy who is chasing me.
So were you telling her the truth? –
– – No, it wasn’t.
Why then did you decide to lie to
Takalani Mukwevho? – – – I realised that she is too
talkative and that she can
rumour that around in no time.
I see. After you had approached Takalani,
why then didn’t you request her to accompany you to your
homestead during the very
same night? – – – She
wouldn’t have agreed because she was already asleep.
Did you ever request her? – –
– No, I didn’t.’
[12] The complainant
had earlier on stated that when she arrived at her home, she found
the gate locked but she did not shout for
her parents to open it
because they could not have heard her. One would have expected her to
furnish this as the reason why she did
not ask Miss Mukwevho to
accompany her. By seating near Ms Mapeta’s gate, the
complainant also acted in a manner inconsistent
with her stated
objective. She had said she went there to ask Ms Mapeta to accompany
her to her mother’s place of work. She
could also not give a
plausible explanation for not going home before her mother left for
work as she knew that she leaves at 6h00.
Her reply to this question
was: ‘That never crossed my mind’. Judging from her
conduct, she was not anxious to report
the alleged rape to her
parents.
[13] It is clear
from what is set out above that there were serious shortcomings in
the complainant’s evidence which diminish
her credibility as a
witness. It follows that the trial court fell into error in making
the finding that she was a credible witness
without first having
analysed her evidence and took account of all these shortcomings. I
have serious reservations about whether
she told the truth. Moreover,
she was the only witness on whom the trial court relied for the
identification of the appellant. This
also called for a careful
scrutiny of her testimony relating to the appellant’s
identification in order to determine its reliability
over and above
her credibility.
[14]
Due to human fallibility this court has in the past emphasised that
the reliability of the observation made by the identifying
witness
must be tested (see
R v Dladla and Others
1962 (1) SA 307(A)
and
S v
Mthetwa
1972 (3) SA 766(A)).
In a case such
as the present where the witness says that she knew the accused by
sight there must be an enquiry directed at establishing
the degree of
prior knowledge in addition to the opportunity for correct
identification when the circumstances in which it was made
are taken
into consideration. In
S v Mehlape
1963 (2) SA 29(A)
this court said (at 33B-D):
‘
In
the circumstances of the present case there were three important
facets of the evidence of the single witness, the complainant,
as to
the identity of the appellant as one of the three persons who robbed
him. In the first place he said he had often seen the
appellant
before. The value of this alleged prior knowledge of the man he
subsequently recognised at the robbery remained entirely
un-investigated. The court did not know how often he had seen this
man, or when he had last seen him, or whether he had ever seen
him
close by or had ever spoken to him or anything at all about the
opportunities of accurate observation of the appellant’s
face
afforded on the prior occasions; he said that he recognised him by
his face. The magistrate may of course have seen that the
appellant’s
face was of the type which was easy to remember and later to
recognise, but he made no finding in that regard.’
See
also
S v Zitha
1993
(1) SACR 718(A).
[15] In this case
the complainant said the rape was committed at about 19h30. At that
time visibility was not good as it was slightly
dark, to the extent
that she could not tell the colour of the appellant’s attire,
but she claims to have identified him by
his voice and face. However
she disputed that the appellant had spoken to her prior to the
evening in question. Instead she said
she had heard his voice when he
was conversing with his friends on the occasion she saw him in her
village. The trial court did not
investigate how far she was from the
appellant and his friends when she saw and heard him speak on that
occasion. Nor did it investigate
whether she saw his face as the
evidence does not show whether this was the position or not. The
complainant’s evidence does
not show what time of the day it
was when she saw the appellant and the trial court did not inquire
into this issue. Consequently
it cannot be said that on that occasion
she had an opportunity to make an accurate observation of his face or
voice.
[16] According to
the complainant she again saw him at Bob’s soccer ground during
day time. But her evidence in this regard
was highly unsatisfactory.
Her evidence-in-chief went as follows:
‘
And
where else did you see him?
- - - I again saw him at Bob’s
soccer ground.
Now where is this Bob’s soccer
ground? - - - That is at Tshisaulu next to Tshilidzini hospital.
Do you know his name? - - - Yes, I knew
his name.
Can you tell this Court his name if you
know? - - - He is Emmanuel.
When did you start to know that he is
Emmanuel? - - - During the year 2000.
Yes, what was happening when you knew him
that he is known as Emmanuel?
- - - There was a fight. People were
chasing each other and it was said that amongst those that were
fighting Emmanuel was one of
them.’
[17] The
complainant’s cross-examination elicited answers which were
equally unsatisfactory, she said:
‘
How
did you know that the accused person was also part of that fight?
– – –
I
heard it from people who said that Emmanuel was part of it, more so
because those people who were fighting were also stabbing each
other
with bottles.
So how far were you from those people who
were stabbing each other with bottles? – – –I was
nearer to them but when
I realised that they were even stabbing each
other with bottles I left.
What time of the day was it? Was it
during the day, was it during the night?
– – –
It
was during the day.
How did you manage to identify the
accused person? – – –I heard from people who said
Emmanuel was part of it and
when I asked who Emmanuel was, the people
pointed at him.’
[18] It is clear
from the extract quoted above that the complainant’s knowledge
about the appellant’s involvement in the
alleged fight was
based on hearsay information even though she claims to have been
close to the people who were fighting. Even on
this occasion she does
not say she saw the appellant’s face. In these circumstances
her alleged prior knowledge of him could
not reliably be used in
identifying the appellant.
[19] What remains
for consideration is the question whether circumstances at the time
of the alleged rape were such that a proper
and reliable observation
of the assailant could be made. As stated above, the complainant
testified that it was slightly dark. When
asked about the appellant’s
attire, she said:
‘
Can
you tell this court if you have ever identified the nature of the
clothes which the accused person was wearing on that date of
the
incident? – – – No, I could not.
I see. What made you not identify his
clothes? – – – I did not bother to check how he was
clothed, more so because
it was slightly dark.’
[20] Once again, the
trial court failed to investigate the issue of visibility which was
clearly less than ideal for a proper observation.
For reasons
unexplained the complainant was unable to identify her assailant’s
companions even though she had claimed that
they had held her before
she was raped. Nor was an enquiry made as to time within which the
rape occurred. All we know is that she
was raped at 19h30 and that
after escaping, she reached her home at 22h00 although it was less
than a kilometre from the scene. Under
these circumstances it is
doubtful that she could accurately observe her assailant’s
complexion. I do not think that the complainant’s
evidence can
be said to exclude all reasonable doubt as to the alleged attack and
reliability of her account of what happened on
the night in question.
[21] Cumulatively
all these defects in the complainant’s evidence ineluctably
lead to the conclusion that her evidence did not
measure up to the
requisite standard both in relation to credibility and reliability.
Therefore a reasonable doubt and the risk of
a mistaken identity
exist in the present case and as a result the appellant should have
been acquitted.
[22] The appeal is
upheld and the conviction and sentence are set aside.
____________________
C
N JAFTA
JUDGE
OF APPEAL
CONCUR
) NUGENT JA
)
SNYDERS AJA