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[2015] ZAGPPHC 966
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Tsotetsi v S (A 193/2014) [2015] ZAGPPHC 966 (7 August 2015)
REPUBLIC OF SOUTH
AFRICA
GAUTENG DIVISION
PRETORIA
(REPUBLIC OF SOUTH
AFRICA)
CASE NO: A 193/2014
DATE: 7 AUGUST 2015
In the matter between:
TEBOGO DAVID
TSOTETSI
..........................................................................................
APPELLANT
AND
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT
MAKUME J sitting with MALULEKE AJ
[1] The Appellant was convicted on a
charge of rape on the 26th March 2( and sentenced to 10 years
imprisonment. Leave to appeal
again conviction and sentence was
granted by the trial court bail was extended pending the outcome of
this appeal.
[2] It is not disputed that the
complainant was sexually molested on the 14 January 2007 whilst alone
in her home at about 19h30.
The medico- legal examination report
conducted on the 24th January 2007 is of no assistance for purposes
of this judgment. What
is in dispute is who raped the complainant.
The Appellant denies that it was him.
[3] The Appellant’s alibi
evidence was rejected by the court a quo and correctly saw in view of
serious contradictions which
have a bearing on the case. However this
necessarily does not mean that he may be the person who raped the
complainant. There is
a duty on the state to prove beyond reasonable
doubt that the Appellant is the person who on that evening of the
14th January 2007
entered the home of the complainant and raped her.
[4] The trial court in dealing with the
credibility of the Appellant’s alibi evidence summarized it as
follows:
“Initially it was put to the
complainant in cross examination that on the day in question the
accused had been at work. In
cross examination he stated that he had
been on leave from the 7th until 22ndJanuary at Frankfort where his
sister stays. He admitted
and then denied that he had left on the 7th
January. He was again asked whether he was sure that when he had left
for Frankfort
which he replied that on the 7th yet the time sheet
admitted by the court as evidence shows that only from the 25 January
was the
accused on leave and that in fact on 14 and 15 January 2007
had been a weekend. Now that must obviously raise a question mark as
regard the credibility of the accused and that the inference to be
drawn is that the accused was attempting to create an alibi
for
himself by placing him somewhere else other than at the scene where
the crime was committed”.
[5] That approach is clearly wrong and
the courts have warned on several occasions against such an approach.
The rejection of the
Appellant’s evidence does not necessarily
mean that the complainant’s version should be accepted. There
still lies
an onus on the state to prove beyond reasonable doubt that
the complainant’s evidence on identity is unassailable. In the
matter of S v M
2006 (1) SACR 135
SCA at paragraph 64 Streicher JA
cited the decision of S v Mntweni
1985 (1) SA 590
at 593 (1) to 594
(1) and said the following:
“By die beoordeling van hierdie
vraag is die feit dat die appellant leuenagtige getuienis gegee het
‘n faktor ten gunste
van die Staatsaak. Hierdie Hof het egter
al herhaaldelik gewaarsku dat daarteen gewaak moet word om nie
oormartige gewig aan hierdie
faktor te gee nie. Die korrekte
benadering is soos volg uiteengesit deur Smalberger Wn AR in S v
Mtsweni
1985 (1) SA 590
(1) op 5931 - 594D:
(64) “ Terwyl die leuenagtige
getuienis of ontkenning van ‘n beskuldigde van belang is
wanneer dit by die aflei van
gevolgtrekkings en die bepaling van
skuld kom, moet daar teen gewaak word om oormartige gewig daaraan te
verleen. Veral moet daar
gewaak word teen ‘n afleiding dat,
omdat ‘n beskuldigde ‘n leuenaar is, hy daarom
waarskynlik skulding is. Leuenagtige
getuienis of ‘n valse
verklaring regverdig nie altyd die uiterste afleiding nie. Die gewig
wat daaraan verleen word, moet
met die omstandighede van elke geval
verband hou. ”
[6] The evidence of the complainant
seen together with her conduct after the incident raises serious
concerns which has nothing
to do with her credibility. She testified
that on the 14th January 2007 she was alone in the home having a bath
when she heard
a knock at the door. At first she thought it was her
younger brother Sipho. It was in the evening at around 19h20. The
only light
that was in the room was a paraffin light which was only
enough to illuminate the whole room.
[7] When she heard the knock on her
bedroom door she told the person to come in thinking that it was her
brother. She had covered
her body with a towel. She then says that a
person whom she was seeing for the first time entered and pushed her
against the wardrobe,
she grabbed a mirror and tried to use it to
protect herself, and could not succeed. This person whom she says was
the Appellant
grabbed her she was tripped and when she fell down the
Appellant took off his trouser and raped her. She tried to scream but
Appellant
covered her mouth with his hand.
[8] She testified further that the
Appellant did his thing very fast then stood up cleaned himself and
got out of the room whilst
she was still lying on the floor. The
Appellant wore nothing on his head. She saw his face as she
concentrated on him during the
ordeal.
[9] She went to sleep crying and when
her younger brother came she did not tell him what had happened to
her. The Appellant was
wearing a brown trouser and a cream white T-
shirt. The next morning when she was on her way to school she saw the
Appellant seated
at the shops and when the Appellant saw her he
ducked and walked away. He was wearing a short trouser and the same T
shirt.
[10] When she arrived at school she
spoke to her school teacher. In her discussion she did not say to the
school teacher Miss Mofokeng
that she had been raped instead she
posed a question to the teacher as to where a person who has been
raped must go.
[11] Ms Busisiwe Mirriam Mofokeng
testified that she is the Deputy Principal at the school where the
complainant is a scholar. She
also holds a position in the Child Care
Unit. All learners who have problems come to her. She is like a
mother to all learners
at her school. She knows the complainant
Lillian Mngomezulu very well. She and her younger brother are orphans
and are being assisted
with food by an organisation called Katlego
Home Based Care Group. The complainant herself also sells ice pops
from her home to
make money.
[12] The complainant came to her on the
18 January 2007 and not on the 15th January 2007 and asked her what a
person who has been
raped should do. She then asked the complainant
who has been raped, the complainant did not tell her. She then told
her that such
a person must go to the Police Station to report. Four
days later on the 22 January 2007 the complainant only then told her
that
she is the person that was raped. She then accompanied the
complainant to the Police Station where they both made statements.
The
complainant told her that she had seen her attacker at the shops.
[13] On the 24 January 2007 the
complainant was examined by a medical practitioner who found that the
hymen was not intact and that
there was no visible bruises or tear
marks.
[14] Inspector Solomon Masinga
testified that he was the investigating officer in the matter and
confirmed that the Appellant was
arrested on the 22nd September 2007.
The prosecutor asked him why it took so long to arrest the Appellant
Masinga replied that
it is because the complainant told him that she
does not know the accused and further that she does not know where he
stays. The
complainant told him that if it can happen that she sees
the person she will be able to identify him.
[15] Masinga testified that on a
Saturday morning the complainant reported to him that she saw the
person who raped her and that
person is seated at the shops.He was
wearing a brownish trouser and a white T-shirt and was listening to
the radio with earphones.
Masinga then went alone to the shops at
Bodile Store as directed by the complainant he did not find that
person he then walked
further and at a nearby comer next to Bodile
Store he found a person standing who fitted a description given by
the complainant.
He says that he called the person and asked his name
and then informed him that he is a suspect in a rape case. He took
the Appellant
to the complainant and the complainant confirmed that
it is the person who raped her. The Appellant was then placed under
arrest
after his rights had been explained. He says that the
Appellant denied having done anything to the complainant. He told
Masinga
that He does not know the complainant.
[ 16] Under cross examination Masinga
said that he arrested a person wearing a T shirt which was yellowish
and whitish in colour.
It must be remembered that in his evidence in
chief he said that the complainant said the Appellant was at the
shops wearing a
whitish colour T shirt. Nothing was said about the
yellowish colour. The complainant herself had under cross examination
told the
court that on the day of the arrest the Appellant was
wearing a yellowish T shirt. The question that comes to thefore is
did Masinga
arrest the correct person according to the description
given to him. In my view there is doubt that he arrested the person
befitting
the described clothes.
[17] The general rule on caution
regarding evidence of a single witness in sexual offences espoused in
the matter of S v Jackson
1998 (1) SACR 470
A has over the years
developed into totality abolishing the notion of exercising caution.
In short it will not totally be difficult
for a court to insists on
caution and at the same time observe the limits of Section 60 of the
Criminal Law (Sexual Offence and
Related Matters) Amendment Act 32
of2007
[18] In S v Van der Ross
2002 (2) SACR
362
( C) the court after warning that S v Jackson does not allow a
trial court to convict in an indiscriminate and reckless manner where
the charge is of a sexual nature pointed out that the demise of the
general, immutable cautionary rule in that case did not mean
that
caution should not be exercised if the evidence in a particular case
called for such an approach.
[19] In S v Jones
2004 (1) SACR 420
(C)
Van Reenen J found that the complainant was a single witness and
because there were unusual features in her evidence which
in the
court’s view cried out for the exercise of caution.
[20] There is in my view unacceptable
explanation in the evidence of the complainant which places doubt on
whether she was able
to properly identify her attacker. It cannot be
denied that what happened to her was traumatic; the incident took
place quickly
in a room illuminated by paraffin light. She was seeing
the person this for the first time and could only describe him by his
clothing.
[21] Section 58 and 59 of the Criminal
Law (Sexual Offence and Related Matter Amendment Act 32 of 2007)
protects evidence of late
reporting by victims in sexual offences.
However in this matter I find it strange is that the complainant says
she did not deem
it necessary to report to her younger brother and
worse still to her neighbours she is contradicted by her teacher as
to when she
made the report, she says it was the following day the 18
January 2007 four days after the incident.
[22] Perhaps what counts heavily
against the evidence presented by the state is the time it took to
arrest the Appellant. There
is no evidence that he was evading
arrest. The state has not presented any acceptable evidence what was
happening between 22 January
2007 and the 22 September 2007 and when
Inspector Msimang arrested the Appellant the description of that
person he arrested was
not at the place described. Secondly that
person was wearing different colour material that person was wearing
a whitish/yellow
T shirt not a yellow T shirt.
[23] The Witness Ms Mofokeng says to
the court that the complainant told her that her attacker was tall
and had a scar, that description
was not given to the Police. The
learned Magistrate recalled the complainant and questioned her about
the scar the complainant
was adamant and said her attacker did not
have a scar and when the Magistrate repeated the question she then
answered that she
cannot remember that the person had a scar or not.
[24] Our Courts have over here a long
period repeatedly warned about the dangers of fallibility of human
observation. It it said
that an average witness ability to recognise
faces is poor. On a question of identity the
confidence and sincerity of the witness
are not enough as William J A said in S v Mehlape
1963 (2) SA 29
A as
follows:
“The often patent honesty,
sincerely and conviction of an identifying witness remain however
ever a snare to the Judicial
Officer who does not constantly remind
himself of the necessity of dissipating any danger of error in such
evidence
[25] I have no doubt that the
complainant in her mind is convinced that it was the Appellant who
attacked and raped her. The Appellant
denies this. The possibility
that she may be mistaken looms large in my mind and this entitles the
Appellant to the benefit of
the doubt. In my view the state has not
proven beyond reasonable doubt that it was the Appellant that the
complainant saw on that
fateful night.
[26] I accordingly make the following
order:
(i) The Appeal is upheld
(ii) The conviction and sentence passed
on the 26th March 2008 is set aside and substituted with an order of:
NOT GUILTY AND DISCHARGED.
Dated at Pretoria on the 7th day of
August 2015.
MAKUME A.M.
(JUDGE OF THE HIGH COURT)
I agree
MALULEKE J.
(ACTING JUDGE OF THE HIGH COURT)