About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 887
|
|
Koetsi v S (A806/2014) [2015] ZAGPPHC 887 (14 August 2015)
IN THE HIGH
COURT OF SOUTH AFRICA
GAUTENG
DIVISION. PRETORIA
Case
number: A806/2014
DATE:
14 AUGUST 2015
In
the matter between:
TEBOGO
KOETSI
...................................................................................................................
Appellant
And
THE
STATE
...........................................................................................................................
Respondent
Heard: 15 June 2015 Delivered:
JUDGMENT
A.A.LOUW
J
Introduction
[1]
The appellant was charged with one count
of rape of a girl under the age of 16 years. It was alleged that the
complainant was raped
more than once. The appellant was legally
represented during the trial. On 13 November 2013 the appellant
pleaded not guilty and
offered no plea explanation. The appellant was
found guilty as charged and life imprisonment was imposed. The
appellant appeals
against the conviction and sentence in terms of his
automatic right of appeal because a life sentence was imposed.
[2]
At the outset I mention that the State
failed to prove that the complainant was raped more than once. In any
event section 51(1)(a)
of Act 105 of 1997 is applicable because the
complainant was under the age of 16 years. When she was allegedly
raped she was 11
and when she testified 14 years old.
Summary of evidence
[3]
Mohammed Rawat testified that he is a
medical doctor. On 14 December 2010 he examined the complainant.
During the gynaecological
examination he found redness, swelling and
tenderness. It was also noted that the hymen was perforated
previously and the information
he received was that the complainant
was raped approximately a year prior to the incident. During cross
examination the witness
very reluctantly admitted that the symptoms
could also have been caused by an infection. He however maintained
that his finding
was correct and that there were clear indications of
penetration.
[4]
Dr Rawat was extremely argumentative and
repetitive in again and again saying that the complainant was raped
although there were
no physical symptoms from which one could
conclusively make the inference that she was raped.
[5]
From his evidence it is abundantly clear
that he stuck to a version of rape simply because it was so reported
to him. His notes
in para 5 of exhibit “B” read “raped
by one man on 3 December 2010 - was also raped ± one year
ago.”
What here is also disturbing is that in the paragraph
dealing with conclusions he equivocally states that “rape did
occurred”.
It is extremely rare that a medical practitioner,
that is a doctor or a qualified nurse, makes such a finding. The
normal conclusion
is that the injuries seem are consistent with a
rape. Under these circumstances his evidence is unacceptable.
[6]
The aunt of the complainant was the
second witness Ms. Motoane. She was called as “a first report
witness”.
[7]
In her evidence in chief she testified
that the appellant was her boyfriend at the time, but failed to
mention that thereafter she
married the appellant and at the time of
the trial was divorcing him. This only came out during cross
examination. The complainant
stayed with them. On 3 December 2010 she
went to town to do shopping. She left the complainant at home with
the other children
and the appellant agreed to look after the
children. When she returned home she found the complainant busy
cleaning the floors.
When Ms Motoane placed the plastic bags on the
table the complainant helped her to unpack the groceries. She
instructed the complainant
to take a bath whereafter she and the
appellant went to her cousin. They did not stay long before returning
home. The appellant
went to buy beer and Ms Motoane found the
complainant watching television. The complainant still did not clean
herself and Ms Motoane
confronted her. The complainant did not answer
at first but when Ms Motoane threatened to hit her with a belt, the
complainant
told Ms Motoane that she was raped by the appellant. When
the appellant arrived home she confronted him with the allegations
made
by the complainant. The appellant initially denied the
allegations but later admitted that he raped the complainant and that
it
was not the first time.
[8]
When the confrontation of the appellant
first occurred there were several individuals present namely the
witness, her cousin Portia,
the husband of her cousin and four of
accused’s friends.
[9]
In the presence of all these people the
appellant did not admit the rape but after Ms Motoane had sent all
the other people out,
and they were alone, he did admit to raping the
complainant.
[10]
The cousin, Portia, was phoned by Ms
Motoane. When she arrived they examined the complainant, undressed
her and looked at her private
parts. This witness was adamant that
she saw some sperms.
[11]
The complainant testified with the help
of an intermediary after being admonished. The complainant confirmed
that she was staying
with Ms Motoane and the appellant. She did not
like the appellant due to the “funny things” he did to
her. When the
appellant did the funny things to her, Ms Motoane was
in town. The complainant was busy scrubbing floors when the appellant
came
into the house and told her that they must go to the bedroom.
The complainant refused and the appellant then dragged her to the
bedroom where he put her on the bed. He undressed the complainant as
well as himself whereafter he penetrated her vagina with his
penis.
[12]
When Ms Motoane arrived home she asked
the complainant why she was sitting with a broken heart. The
complainant would not answer
Ms Motoane immediately. Only after Ms
Motoane threatened to hit the complainant with a belt, did she tell
Ms Motoane that the appellant
had raped her. When the complainant
told Ms Motoane that the appellant raped her, the appellant was also
present. The complainant
testified that the appellant raped her more
than five times. After the appellant had raped her, the appellant
continued to stay
with them and he raped her three more times. Her
explanation that she thought she would not be believed is rejected.
Ms Motoane
believed her in regard to this alleged rape. The
complainant testified as follows:
“Why not? —
/
was
afraid to tell her because I thought that she
will not believe me.
Ja and why would she not believe you
because when you told her the first time she believed you. He took
you to the doctor, she took
you to the police. ”
[13]
The evidence of the appellant is that
the complainant was a disobedient and disrespectful child. On 3
December 2010 while Ms Motoane
was in town, he asked the complainant
to bring him a beer. The complainant ignored him. The appellant went
into the house and confronted
the complainant. He pushed her against
a cupboard and told her that she could not act like a grown woman. He
further told her should
she not behave she will go back where she
came from. That is a reference to her previous place of residence
where she said that
she was also raped. This was at Gannalaagte where
she stayed with other family members.
[14]
He denied that he raped the complainant.
He further testified that even after the allegation of rape was made
against him, Ms Motoane
married him but that they were in the process
of getting a divorce.
The evaluation of the evidence of a singe
witness
[15]
Section 208 of the CPA states that an
accused may be convicted of any offence on the single evidence of any
competent witness.
[16]
In their discussion the authors of
Commentary on the Criminal Procedure Act state the following:
Who is a single witness?
Where two or more witnesses are called
by the State, but only one witness gives evidence that tends to
incriminate the accused,
so that the conviction rests solely on his
testimony, then such witness should be regarded as a single witness
and the cautionary
rule should be applied
(R
v Mokoena
1956 (3)
SA
81
(A)
at 85F-G). In
S
v Lotter
2008 (2) SACR 595
(C)
the complainant in a
rape case was held to be a single witness where her mother's evidence
did no more than fill in some background
and the evidence of other
State witnesses
was
not corroborative of the complainant on any of the
essential issues. A single witness to the making of a confession by
the accused
must be treated in the same way (S
v
Letsedi
1963 (2) SA 471
(A)
at 473F-G). Furthermore, caution must be exercised where two
witnesses are called who recite identical versions of the facts in
issue (R
v
Vlok and Vlok
1954 (1) SA 203
(SWA))
. However, a
witness will not be regarded as a single witness where another
witness gives evidence which, although not directly
corroborative or
incriminating, inferentially establishes one of the facts in issue
(S
v Snyman
1968 (2) SA 582
(A)
at 586-7).
Failure to call further witnesses
Where the State fails to call a
witness whose name appears on the list of witnesses furnished by the
Director of Public
Prosecutions to the accused in terms
of s 144(3)(a) of the Act, and who is clearly in a position to
corroborate the evidence of
the single witness, an adverse inference
may justifiably be drawn (S
v
Teixeira
1980 (3) SA 755
(A))
. The court may infer that
in the opinion of counsel the evidence may possibly give rise to
contradictions which could reflect adversely
on the credibility or
reliability of the single witness (at 764A). In
S
v Kubeka
1982 (1) SA 534
(W),
however, the court
refused to draw an adverse inference where it was not known whether
any attempts had been made by the State
to find other witnesses. ”
[1]
Evaluation of the evidence
[17]
The cautionary rule referred to in the
quote above is that the evidence of a single witness must be clear
and satisfactory in every
material respect.
[2]
[18]
I am not satisfied that the evidence of
the complainant meets this standard. The probabilities also come into
play in this process
of evaluation. There is a material contradiction
between her evidence and that of Ms Motoane. The latter testified
that when the
appellant admitted the rape only she and the appellant
was present. On the other hand, the complainant testified that the
appellant
was also present when that confession was made.
[19]
What is also unsatisfactory about her
evidence and has the effect that her evidence has to be treated with
caution are the following:
(a)
She
only told Ms Motoane about the rape after she was repeatedly
questioned as to what was wrong. The report was only made to Ms
Motoane after this questioning and after Ms Motoane had threatened to
give her a hiding with a belt.
(b)
She
testified that after this incident she was raped again by the
appellant on three occasions. From her evidence it appears that
the
first subsequent rape was on the very next day. She testified that
all these rapes occurred in the period 3 to 15 December
2010. She did
not report any of these rapes to Ms Motoane. Furthermore the
appellant was in custody during this period.
(c)
Ms
Motoane says that she and Portia saw sperm. It is very doubtful to me
that she could distinguish between a discharge as a result
of an
infection and sperm.
(d)
It
is also unsatisfactory that Portia did not testify. She is the cousin
of Ms Motoane, living close by, and it must be accepted
that she was
available. In this regard I refer to the passage regarding the
failure to call further witnesses which I have quoted
above.
Conclusion
[20]
I find that there exists reasonable
doubt and that the appellant’s version is reasonably possibly
true. He should therefore
have been acquitted.
Order
[21]
The appeal succeeds and the conviction
and sentence are set aside
A.A.
LOUW Judge of the High Court
I
agree
H.K.
KOOVERJIE Acting Judge of the High Court
For
the Appellant: Adv. L Augustyn
Instructed
by Legal Aid South Africa
For
the First Respondent Adv. S.D. Ngobeni
Instructed
by The DPP
Du Toit et
al (Loose-leaf edition) p24-3 - 24-4
[2]
R v Mokoena
!932(OPD) p79 at 80