Mofokeng v S (A170/2013) [2015] ZAFSHC 13 (5 February 2015)

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[2015] ZAFSHC 13
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Mofokeng v S (A170/2013) [2015] ZAFSHC 13 (5 February 2015)

FREE
STATE
HIGH COURT,
BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No. : A170/2013
In
matter between:
BOESMAN
MOTLALENTWA MOFOKENG
…......................................................
Appellant
and
THE
STATE
…..........................................................................................................
Respondent
CORAM
:
LEKALE, J
et
MOTLOUNG, AJ
HEARD
ON
: 25 AUGUST 2014
DELIVERED
ON
: 5 FEBRUARY 2014
JUDGMENT
BY
: MOTLOUNG, AJ
Introduction
[1]
This is an appeal against both convictions and sentences imposed by
the Bethlehem regional court on the 2 October 2012. The
appellant was
convicted of two counts of rape of two young girls aged 11 years and
twelve years respectively, and sentenced to
life imprisonment in
respect of each count, and the court ordered the said sentences to
run concurrently. The court also ordered
that the appellant’s
name be included in the register of sexual offenders, and he was
automatically declared unfit to possess
a firearm. The appellant
approaches this court on appeal with leave of the court
a
quo.
Representation
of the parties and their respective submissions on appeal
[2]
Mr Nel appeared for the appellant whilst Mr Hiemstra appeared for the
state.
[3]
Both in his heads of argument and in his oral submissions Mr Nel
submitted the following:
3.1.
The magistrate failed to apply the
necessary caution to the evidence of both complainants. Caution
should have been applied due
to the fact that the complainants were
young children, and the special circumstances of this case warranted
that.
3.2.
The magistrate was not impartial in the
conduct of the trial. He posed questions not limited to elucidation
or clarification of
evidence, but meant to favour the state case. The
magistrate erred in failing to draw a negative inference from the
contradictions
between the state witnesses’oral evidence in
court and their statements to the police, and in finding that the
deviations
between the two were not material.
3.3.
The magistrate erred in failing to find
that the version of the complainants was improbable.
3.4.
The complainants failed to report the
alleged rape at the first available opportunity, and their
explanation for the delay in reporting
it is unconvincing.
3.5.
The evidence of Dr Radebe was not
satisfactory, especially when viewed together with that of Dr van
Schalkwyk who testified for
the defence.
3.6.
The magistrate erred in finding that the
state succeeded in proving its case beyond reasonable doubt, and that
that the version
of the appellant was not reasonably possibly true
but false beyond reasonable doubt.
3.7.
On sentence, the magistrate erred in
finding that there were no substantial and compelling circumstances
justifying a departure
from the prescribed minimum sentence of life
imprisonment. If the appeal on the merits is not successful, a
sentence of between
15 and 18 years would be more appropriate.
[4]
On the other hand, Mr Hiemstra submitted the following in his heads
of argument and oral submissions:
4.1.
The magistrate’s judgment was
comprehensive and well-considered. Amongst others, the court was
alive to and in fact applied
the necessary caution.
4.2.
The magistrate properly considered the
delay in reporting the rape. At any rate, there has recently been
examples of complaints
of sexual abuse being raised decades later,
and even then, by complainants far more sophisticated than the
complainants in this
case.
4.3.
The magistrate properly considered the
contradictions between the oral evidence of the state witnesses and
their written statements
to the police. Furthermore, our courts have
recognized the poor quality of police statements and the dangers
associated with placing
too much emphasis on contradictions in
evidence.
4.4.
It is trite law that a court of appeal will
not lightly interfere with the credibility findings of the trial
court, and in this
case the magistrate found that the state witnesses
left him with a favourable impression.
4.5.
Although the evidence of Dr Radebe is
inconclusive, it is consistent with the version of the complainants.
4.6.
The accused’s defence of jealousy and
ill-feeling towards him is inherently improbable.
4.7.
The questions of the magistrate were
reasonable and necessary in the circumstances of the case.
4.8.
The magistrate was correct in finding that
the accused’s version was not only improbable, but a
fabrication to be rejected
as false beyond reasonable doubt.
4.9.
On sentence: The minimum sentence of life
imprisonment is applicable, and the magistrate was correct in finding
that there existed
no substantial and compelling circumstances
justifying a departure from the said sentence. However, during
argument he submitted
that if the conviction is upheld, a sentence of
between 18 and 20 years would be appropriate.
Issues
to be decided
[5]
This court has to determine, as a court of appeal, whether the
appellant was correctly convicted and / or sentenced in respect
of
each conviction and / or sentence.
Approach
by a court of appeal
[6]
It is trite law that a court of appeal will not interfere with or
temper with the trial court’s judgment or decision regarding

either conviction or sentence unless it (court of appeal) finds that
the trial court misdirected itself as regards its findings
of facts
or the law. See
R
v Dhlumayo & Another
1948
(2) SA 677
(A).
The
principle was
also
restated in
S v
Mlumbi
1991 (1) SACR 235
(SCA)
at
247g,
as follows:
“
Dit
is gevestigde reg dat indien daar geen wanvoorligting op die feite is
nie, die vermoede bestaan dat die verhoorhof se evaluering
van die
getuienis korrek is, en dat ‘n Hof van appel alleenlik darmee
sal inmeng indien dit oortuig is dat daardie evaluasie
verkeerd is”.
[7]
If the trial court misdirected itself either on the facts or the law,
a court of appeal will be at large to interfere and deal
with the
matter as it deems fit, including substituting its own order or
decision for that of the trial court, which may include
an order for
the setting aside of a conviction or the altering of the sentence.
This was aptly amplified by Msizi AJ in the recent
(unreported)
decision of
Booi v State, in the Eastern
Cape Division
– a decision that
was delivered on the 12 August 2014 under case number CA & R
393/13 – as follows:
“…
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. See S v Hadebe and Others
1997 (2) SACR 641
(SCA) t
645e- f.  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 witness’
demeanour, but predominantly upon inferences and other facts, and
upon probabilities. The appeal court is also
in an equal position to
the trial court”.
[8]
Where there is an appeal against both conviction and sentence, and
the court of appeal sets the conviction aside, ordinarily
that would
be the end of the matter, as there would be no need to examine
whether the sentence imposed would have been appropriate.
[9]
When evaluating or assessing evidence, it is imperative to evaluate
all the evidence, and not to be selective in determining
what
evidence to consider. As Nugent J (as he then was) in
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.
”
[10]
T
he facts found to be proven and the
reasons for the judgment of the trial court must appear in the
judgment of the trial court.
If there was evidence led during the
trial, but such evidence is not referred to in any way in the
judgment, it is safe for a court
of appeal to assume that such
evidence was either disregarded or not properly weighed or even
forgotten about at the time of delivering
the judgment.
As
was stated in
S
v Singh
1975
(1) SA 227
(N)
at
228:
“
The
best indication that a court has applied its mind in the proper
manner …is to be found in its reasons for judgment including

its reasons for the acceptance and the rejection of the respective
witnesses”
.
[11]
I must, however, make it clear that by requiring the trial court to
consider and weigh all evidence is not meant that the judgment
of the
trial court must also include a complete embodiment of all evidence
led, as if it comprises a transcript of the proceedings.
All it means
is that the summary of the evidence led must indeed entail a complete
embodiment of all the material evidence led.
[12]
In order to apply the above-mentioned legal principles to the facts
of this case, this court must determine, as regards the
convictions
in the first place, what the evidence of the state witnesses was, as
understood within the totality of the evidence
led, including
evidence led on the part of the accused or defence, and compare it to
the factual findings made by the trial court
in relation to that
evidence, and then determine whether the trial court applied the law
or applicable legal principles correctly
to the said facts in coming
to its decisions / findings or judgment.
In
other words, this court must consider whether the magistrate
considered all the evidence, weighed it correctly and correctly

applied the law or legal principles to it in arriving at his judgment
in respect of both the convictions and sentences. This exercise

necessarily entails a close scrutiny of the evidence of each witness
within the context of the totality of evidence, and what the
trial
court’s findings were in relation to such evidence.
[13]
Stated differently, in order to determine whether there is any merit
in any of the submissions made by the respective parties
mentioned
above, this court must consider the evidence led in the trial court,
juxtapose it against the judgment by the trial court,
and finally
determine whether there is any basis for interfering with the said
judgment.
[14]
In my view, this means that if a court of appeal is of the view that
a particular fact is so material that it should have been
dealt with
in the judgment, but such fact is completely absent from the judgment
or merely referred to without being dealt with
when it should have,
this will amount to a misdirection on the part of the trial court.
The appeal court must then consider whether
the said misdirection,
viewed either on its own or cumulatively together with any other
misdirections, is so material as to affect
the judgment, in the sense
that it justifies interference by the court of appeal.
The
judgment by the magistrate and his reasons therefore
[15]
The state called a total of seven witnesses, being the two
complainants (MLM and NMN), the mother of MLM by the name of LAM,
the
grandmother of MLM by the name of Papadi, the arresting officer by
the name of Constable Modupi, the investigating officer
by the name
of Warrant officer Nel, and Dr Radebe who examined the two
complainants. On the other hand, the defence called a total
of four
witnesses; being the appellant himself, his bother-in-law called RA
Mojane, his wife by the name of MJ Masakaneng and Dr
van Schalkwyk.
[16]
Having correctly reiterated that at the end of a criminal trial the
court must make a finding on the totality of the evidence
as stated
in S v Chabalala
2003 (1) SACR 134
(SCA),
and
having referred to the cautionary rules applicable to the evidence of
young children, and further having recognized that there
was a number
of discrepancies or contradictions between the evidence of the state
witnesses (including the two complainants) in
their written
statements made to the police compared to their evidence in court,
the magistrate
found that:
16.1.
The versions of the two complainants
corroborate each other with regard to the substantial parts of their
evidence, and although
there were contradictions or inconsistencies
in their evidence, the said contradictions were minor and immaterial,
and consequently
not justifying any negative inference against any of
the state witnesses (including the two complainants),
16.2.
The state witnesses had no motive to
falsely implicate the appellant, and
16.3.
There were no improbabilities in the
evidence of the two complainants.
[17]
On the other hand, the magistrate found that, as regards the
testimony of the appellant, the crux of his defence was that there

was a conspiracy amongst the state witnesses to falsely implicate
him, and that the said conspiracy is not only improbable, but
that it
is a fabrication, untruthful and that it can be safely rejected as
false beyond reasonable doubt.
[18]
The magistrate concluded by finding that the state succeeded in
proving its case beyond reasonable doubt.
[19]
I have looked at the number, nature and extent of the inconsistencies
or contradictions in the evidence of the complainants,
and I am
convinced that in the light of the appellant’s defence such
contradictions and inconsistencies impact negatively
on their
credibility, regard being had to the appellant’s suspicion that
the state witnesses conspired to incriminate him
falsely.
[20]
I, however, agree with Mr Hiemstra’s submission
that
this court should not lightly interfere with the magistrate’s
finding that
the
inconsistencies or contradictions that found expression during the
trial were minor and not material – in the sense that
they did
not bear direct relevance to the issues to be determined and decided
upon, although they had a bearing on the probabilities.
[21]
I, nevertheless, feel constrained to express my serious reservations
regarding the magistrate’s comments (in relation
to the
approach to be taken by a trial court in relation to inconsistencies
or contradictions between witnesses’ statements
to the police
and their oral testimony in court) to the effect that:
“
I
sit in the criminal court every day of my life. I have never come
across a police officer who will concede that a statement was
never
read back. I have never come across a police officer who conceded
that there was a misunderstanding with the witness when
the statement
was taken down.
And the reason
for that is that is simply not human nature to readily admit that you
did not perform your duties in a prudent way”
(my
emphasis).
I
do not share this sentiment, as I have come across some decent and
honest members of the police force, who would readily admit
to
mistakes on their part, if any, and I do not agree with the necessary
implication that it is only natural for one to lie in
a court of law
if one has not done one’s job or assignment diligently.
Therefore, the magistrate’s comments, whilst
they may be true
for some police officers, are too wide and constitute an unfair and
unwarranted generalization against all police
officers. That much for
the magistrate’s comments regarding how police officers obtain
statements from witnesses as compared
to how they subsequently
testify in court regarding that aspect.
[22]
Having found that there is no reason to interfere with the trial
court’s findings of fact, I am, however, in full agreement
with
Mr Nel’s submission that the trial court did not properly
consider and weigh the probabilities or improbabilities inherent
in
the circumstances or facts of this case.
[23]
I also agree with Mr Hiemstra’s observation and oral submission
that the two complainants were the two main state witnesses,
as they
were the only ones who could testify to what happened on the day in
question - the other state witnesses testified on issues
that were,
in the main, collateral.  In dealing with the probabilities or
improbabilities in relation to the evidence of the
complainants, the
magistrate stated the following:
“
To
my mind there were no real inherent improbabilities in their evidence
and both of them, over all, made a good impression despite
their
youthfulness”.
The
magistrate also concluded, in summing up his findings, that:
“…
there
is nothing improbable in the evidence of the complainants and that
they had no motive to falsely implicate him”.
I
deal below with this finding of the magistrate.
The
improbabilities that were never considered by the trial court in its
judgment
[24]
As stated in the
Booi
decision mentioned above, factual errors may be errors where the
reasons which the trial judge provides are unsatisfactory or where

he/she overlooks facts or improbabilities. In my view, the trial
court did not give due weight and consideration to the probabilities

or improbabilities inherent in the circumstances of this case. Even
in expressing the view that there were no improbabilities present
in
the version of the complainants, the magistrate only mentioned his
conclusion (that there were no improbabilities) without stating
a
factual basis for this finding. As stated in the decision of
Singh
mentioned above, t
he
best indication that a court has applied its mind in the proper
manner is to be found in its reasons for judgment.
[25]
I have been unable to find,
from a
reading of the judgment, the reasons why the trial court concluded
that there were no improbabilities present in the version
of the
complainants. The only reasonable inference to draw from the lack of
the factual basis for the said finding is that the
trial court failed
to consider the probabilities or improbabilities.
[26]
This being so, this court is at large to consider the presence or
otherwise of the inherent probabilities or improbabilities
- being
“
in an equal position to
the trial court”
as was stated in
the
Booi
decision
referred to above. I deal underneath with some of them:
26.1.
The probabilities of Papadi being told that a rope was used to tie
the hands of NMN and asking questions with regard thereto
and not
getting answers, and then doing nothing about the said allegation. It
seems to be highly improbable that Papadi would do
nothing to
investigate the allegation further, in order to determine exactly
what was going on or under what circumstances did
that happen. In my
view, Papadi’s testimony on this aspect is very suspect. I
really wonder as to what are the probabilities
of a parent or
grandparent being informed that a rope was used to tie up a young
child with a rope in circumstances that made her
so suspicious as to
consider it important to ask the question why was the child tied with
a rope in the first place, and secondly
take it for exhibition to NMN
during questioning, during which NMN confirmed she was indeed tied
with it but fails to answer why,
and also keep it for possible future
use (as evidence), but so meekly accept no explanation or answer from
NMN when probing why
she was tied with the said rope in the first
place – particularly after NMN has confirmed that she was tied
with the rope
and that it was the same rope that was used. I find
this extremely improbable.
26.2.
Furthermore, this would have meant that Papadi would be having two
young children confirming that their grandfather tied one
of them
with a rope, and upon enquiry as to why, both children strangely
refuse to give an answer or explanation. The refusal or
failure to
give an explanation of when and why NMN was tied with a rope by her
grandfather should have in and by itself further
fuelled Papadi’s
concerns and suspicions. Notwithstanding this, there is no evidence
that she did anything further about
the matter – not even
consulted with their parents or the police to share her mystery with
them and possibly hope they could
unravel it by providing answers or
questioning the complainants themselves with the hope of getting
answers.
26.3.
Furthermore, it seems improbable that MLM, if she intended to conceal
the story about the rape, would have disclosed only
the part
regarding the tying up of NMN by the accused with a rope – as
this could expose her to further enquiries that could
finally lead to
her telling the full story. The same applies to NMN in respect of
confirming that she was indeed tied up with a
rope by someone who is
supposed to be her grandfather.
26.4.
It also seems highly improbable that Papadi, who stayed on the same
premises with the complainants and their parents, would
not have, at
the very least, informed the parents of the complainants about the
report made to her by both complainants and her
concerns about such
reports, instead of just hiding the rope. At best, she could have
reported the matter to the police for further
investigation or
advice.
26.5.
There is also, in my mind, the question of why did Papadi actually
keep and hide the rope? For what future use did she keep
the rope in
the light of the fact that she took no further action regarding the
report received from both complainants?
26.6.
It also seems highly improbable that Papadi would have noticed,
according to her statement to the police, that every time
that the
appellant came to her place carrying his firearm the complainants
would not sit in the same room with the appellant and
other members
of the family, and Papadi would have done nothing about her
observation, which obviously worried her if her testimony
is anything
to go by. The same question remains valid even on the permutation
that it happened only once, on the 28 January 2011,
if her oral
testimony is anything to go by.
26.7.
It is even more improbable that Papadi would have noticed MLM running
away into the bedroom when the accused took his firearm
out in order
to clean it, and be so concerned about her observation as to ask her
(MLM) why she did that, and be content to leave
the matter at that
when she received no answer to her question. This the more so as the
mountain of concern and suspicion had obviously
started piling on the
previous occasion when she saw MLM jumping away as if seeing a snake
and then telling her that it was because
of seeing the rope that the
accused had tied NMN with.
26.8.
The magistrate does not seem to have considered the possibility that
the complainants were unduly influenced by someone to
falsely
incriminate the appellant - especially the possibility of Papadi,
whose cattle were stolen, in order to get even with the
accused who
was possibly suspected of having stolen Papadi’s cattle in
order to buy himself a motor from their proceeds.
26.9. The magistrate
does not seem to have considered the possibility of NMN having been
unduly influenced to confirm the report
of MLM by the fact that as a
young child she could have been shocked to be unexpectedly confronted
by the police with MLM’s
story, in the presence of MLM, and
consequently decided to play along. This is particularly important in
the light of the well-known
vulnerability and pliability of children.
The
power of suggestion inherent in that setting (in relation to a young
child) is potentially devastating in my view. Failure to
consider
this possibility was a misdirection in my view.
26.10.
Furthermore, Papadi testified that at the hospital the doctor who
attended to MLM told her that MLM had been raped, even
before MLM
could be interviewed by the social worker. No evidence was led as to
where the said doctor obtained the information
regarding the rape
from. Was it from his own examination of MLM or was it from a report
made by MLM to him? Neither LAM nor MLM
was asked to clarify this
aspect. Even the doctor was not called to shed more light on this
aspect. If the doctor had received
a report of rape from MLM, he
would then be the first person to whom the report was made and it
would have been important to know
from him how it came about for MLM
to make the said report. It is also unclear as to where MLM was at
the time that the doctor
made that claim.
26.11.
This is important to know as one cannot rule out the power of
suggestion that this could have had on MLM before she was interviewed

by the social worker, if the doctor had uttered the message (of rape)
in her presence. If MLM overheard the doctor’s claim,
and she
was then subsequently referred for an interview with the social
worker, it would mean that MLM already knew what the doctor’s

view was regarding her condition. The judgment makes no reference to
this aspect in order to indicate whether the court applied
its mind
to this possibility or not. In my view, this constituted a
misdirection on the part of the magistrate.
26.12.
In my view, it was very important for the court to know what actually
transpired after MLM was brought to hospital, finally
leading up to
her reporting the rape, especially because the report was made
approximately 4 months after the alleged rape (and
not immediately
thereafter or at the first available opportunity). Failure to examine
this aspect, as the judgment shows that the
magistrate failed to do,
was a misdirection in my view.
26.13.
It seems highly improbable that the accused would rape the two
complainants in broad daylight, with a door left open and
within a
hearing distance of the neighbouring houses.
26.14.
It seems improbable that the accused would rape NMN in the presence
of MLM, whilst the door has been left open, thus leaving
the
possibility of MLM escaping during the rape of NMN, and thus possibly
raising alarm.
26.15.
It seems to make for little sense as to why the accused would use a
rope to tie NMN only and not also MLM, and then commence
by raping
NMN who is tied up, whilst leaving MLM, who is untied, free to escape
through the open door if she decided to. It would
have made more
sense if the accused commenced by raping MLM, who was not tied,
whilst keeping NMN tied up in order to avoid her
escape or her
picking up the unattended firearm that was placed on the floor whilst
he was busy raping MLM.
26.16.
It seems highly improbable that the accused would have allowed NMN,
after raping her, and after she had cried, to simply
leave the house
through the open door, whilst approaching MLM in order to rape her,
seemingly indifferent to whether NMN has gone
away to raise alarm or
not from any of the nearby houses.
26.17.
It appears even more improbable that the accused would have allowed
NMN to escape to the outside naked, in broad daylight,
as this alone
had the potential to attract unwarranted attention from neighbours.
This is particularly so as by this stage the
appellant had not yet
threatened any of the complainants not to tell anyone or else he
would shoot or kill them. This would leave
the prospect of NMN
raising alarm from nearby houses looming large. In this context one
must bear in mind that NMN stated in her
first statement to the
police, and in contrast to her oral testimony, that the appellant
untied her before she left the house.
It is also worth noting in this
context that no complainant mentioned in any of the four statements
to the police (two statements
each) that MLM untied the hands of NMN
– to the contrary, NMN’s first statement states that it
was the appellant who
did that.
26.18.
It seems improbable that the appellant would be indifferent to
whether the neighbours heard the cries of NMN or not whilst
he was
raping her, before she left his house naked with both her hands tied
to her back, and then naively proceed to repeat his
crime by raping
MLM, who similarly cries, and again he remains indifferent to whether
the neighbours heard the cries or not, without
instructing them to
stop crying, and then naively, in broad daylight, openly throw the
clothes of the two naked complainants to
the outside whilst openly
making his threat to them not to talk. This created the possibility
of neighbours hearing and seeing
the naked and crying complainants
whilst the accused was throwing their clothes to the outside.
26.19.
It seems highly improbable that the appellant would be indifferent to
the prospects of two naked and crying children, with
one’s
hands tied to her back (which is the best possible way of attracting
anybody’s attention in broad daylight),
being seen outside his
house or leaving his house, attracting unwarranted attention.
26.20.
It seems improbable that the appellant would have allowed both
complainants to leave his house, after their rapes one by
one, before
warning them not to talk, as he could not have known that they would
not rush to raise alarm upon leaving his house
before he could
threaten them.
26.21.
It seems improbable that the appellant would let the complainants
leave his house before dressing up, in order to create
an impression
to unsuspecting passersby or watchers, that nothing is amiss, and
without warning them to stop crying and keep quiet.
The act of the
two naked complainants, aged approximately twelve years (and thus not
too young to go around naked in public) getting
dressed outside the
house could also attract unwarranted attention. Furthermore, the
question goes begging as to exactly how the
appellant managed to rape
NMN with both her hands tied to the back. No explanation appears from
the evidence as to how this happened.
Furthermore, it appears
improbable that the appellant would have pushed NMN to fall to the
floor, whilst both her hands were tied
to the back, and thus being
indifferent to whether NMN was hurt in the process or not. One must
also ask oneself as to how NMN
managed to stand up and leave the
house whilst both her hands were still tied to her back.
26.22.
It seems improbable that the complainants, who up to then seem to
have enjoyed a normal relationship with their “grandfather”

(the appellant) would allow him to do strange or nasty things things
to them without him or them saying a word and them remaining
quiet
until after being penetrated by the appellant, and only to cry after
being sexually penetrated.
26.23.
Finally, as a general proposition – rapists do not ordinarily
commit their nefarious act (of raping) in public and
in the presence
of witnesses. It is hard to imagine how the accused did not care that
there was at least one witness in respect
of each rape – being
each complainant in respect of the other’s rape.
Gaps
in the state’s case
[27]
There are several gaps in the evidence adduced by the state. It is
unfortunate that the state did not do the following:
27.1.
Although MLM testified that it was
only after serious interrogation, at the hospital, that she made the
allegation of rape, no evidence
was led at all to examine exactly
what is it that was done, by who, and under what circumstances, to
get MLM to make the allegation
of rape for the first time. The form
and nature of the interrogation should have been examined by the
court. This aspect
is particularly important as MLM did not
make a report of the alleged rape at the first available opportunity,
whilst on the other
hand the nurses had twice, on two different
occasions, diagnosed her sickness as a hygiene problem.
Notwithstanding all these circumstances,
the magistrate did not deal
with this aspect at all in his judgment. In my view, this was one of
the most serious misdirections
on the part of the magistrate as the
court had to satisfy itself that no undue influence was applied to
the complainants in order
to make them report the rape – once
again regard being had to the applicant’s suspicions.
27.2. Linked to this
aspect is the fact that even NMN had to be interrogated, after
initially denying the rape allegation, when
confronted by the police
in the presence of MLM. Again, no attempt was made to examine exactly
what kind of pressure, and by who,
was brought to bear on NMN to
change her denial of rape to an admission thereof. Furthermore, on
the evidence led, one cannot even
determine what role MLM played at
that stage - whether MLM was used or participated in the process of
interrogating NMN after she
initially denied the rape or not. All
that the evidence reflects is LAM stated that NMN only spoke when
interrogated by the police,
and Cst Modupi testified that NMN
initially denied the rape but spoke after interrogation.
And,
again, there is no mention or reference to this aspect in the
magistrate’s judgment. This, in my view, is a serious
misdirection on the part of the magistrate.
27.3.
I am also of the view that it was extremely undesirable of the
police, when dealing with a young child like NMN, to approach
NMN in
the manner they did – when she was on her way from school. I
can only imagine for myself what impression NMN was left
with when
she was confronted by the police in the presence of MLM. Did she
think that MLM was under arrest or what? Did she think
that she was
also going to be arrested like MLM? Worse still, what went through
her mind when she was confronted with the allegation
that MLM had
already told the story that both of them (herself involved) were
raped by the accused? It is obvious that the police
must have told
her at the outset that MLM had already told them what happened, and
all that they were seeking from her, was a confirmation
of the story.
In my view, the potential of the power of suggestion being
overwhelming (to NMN) in these circumstances is palpable.
I ask
myself why did the police not fetch NMN in a neutral atmosphere,
after school and from her home, and let the social worker
(preferably
a different one from the one that interviewed MLM) interview her –
without making her aware that MLM had already
made the allegation
that both of them wee raped, and by the same identified person who
happened to be the appellant. It is clear
that the magistrate did not
consider the possibility or probability of NMN being unduly
influenced by the setting stated above,
and this was a misdirection
in my view, as a court must always be on tenterhooks as regards the
possibility of the pliability of
young children, especially in the
light of the appellant’s defence.
27.4.
Neither the complainants nor Cst Modupi were asked to explain the
nature and extent of the interrogation. In my mind, it was
of crucial
importance for the court to know whether the force that was brought
to bear on the complainants, in both instances,
was undue or
legitimate. For an example, was there a threat to thrash or arrest
the complainants unless they told the truth? On
the available
evidence, this enquiry cannot be answered.
28.5.
I also ask myself as to why the mother of NMN was not called as a
witness, whilst the mother of MLM was called. There was
no evidence
or suggestion that she was not available to testify or make a
statement to the police. She surely could have shed more
light
regarding her observations in respect of the behaviour of the
complainants (especially in respect of her daughter, NMN) after
the
alleged rape. If she was not available, the father of NMN could
possibly have played this role. In this context one must bear
that
there existed a close familial relationship between the complainant
MLM, her mother LAM and Papadi, the grandmother of MLM
and
mother-in-law of LAM. This consideration finds more weight in my mind
in the light of the fact that the appellant suggested
a possible
motive for Papadi (and by extension those on her side of the family)
to falsely implicate him. The presence of independent
witnesses not
related to those on Papadi’s side of the family could possibly
lend more credence or weight to the state’s
case.
The
way the trial court dealt with the accused’s suggestion of a
possible motive to falsely implicate him
[28]
The magistrate found that relations between the appellant and members
of his family on the side of Papadi must have been good,
and that the
appellant’s suspicion that it was because of bad relations that
he was being wrongly accused of the rapes, was
not plausible. In my
view, the magistrate misdirected himself on this fact as Papadi
actually confirmed, by necessary implication,
that relations between
the two sides of the family were not good. She only challenged the
reason for the bad relations. According
to her, whereas the appellant
alleged that the bad relations started from her side after she
suspected him of having stolen her
cattle, the source of the bad
relations was the appellant himself. To borrow from her own words,
she stated that ““
Actually
it is the other way around. He is the one who is causing trouble or
problems for me”.
[29]
Therefore, there was nothing startling about the evidence of the
brother of the appellant’s wife that he fetched the
appellant’s
wife from Papadi’s place, as the magistrate found. The fact
that Papadi stayed with the appellant’s
wife notwithstanding
the existence of bad relations between the appellant and Papadi is
not an antithesis of the existence of bad
relations. Even the
appellant’s wife confirmed the existence of bad blood emanating
from the appellant buying himself a motor
vehicle after the alleged
theft of Papadi’s cattle’s and a suspicion that the
appellant was responsible for the said
theft.
[30]
Many people stay together despite not enjoying good relations.
Sometimes it is because of circumstances forcing them to do
so. For
an example, in many divorce hearings one comes to hear that the
parties (husband and wife) had been staying together for
years whilst
relations between them were very bad. In this case it was confirmed
by LAM that she even physically fought with the
appellant’s
wife. The appellant suggested that this contributed to the further
straining of relations, and I find nothing
wrong or improbable with
this suggestion.
[31]
To the contrary,
I
have tested the appellant’s version against the version of the
complainants and other state witnesses, and I am of the view
that the
trial court adopted a very simplistic method of evaluating the
evidence and I am of the view that the appellant’s
version (of
conspiracy and jealousy) cannot be rejected on the basis of the
improbability of Papadi hosting his wife against allegations
of bad
blood and jealousy between the two sides of the family. In my view,
his version cannot be rejected on the basis that it
is so
inherently
far-fetched or improbable, or so
improbable
that it cannot reasonably possibly be true,
as
to be dismissed as false beyond reasonable doubt.
[32]
Furthermore, Papadi confirmed that her cattle, which were being
herded by the appellant, strangely got lost in the sense that
only
hers were stolen, and this happened before the appellant could move
from the Coenan farm, and there is also the uncontroverted
evidence
of the appellant that it was against that background that he bought
himself a motor vehicle, and became the only person
to own a motor
vehicle on the farm. Furthermore, LAM confirmed that she even fought
physically with the appellant’s wife,
who consequently suffered
epileptic feats. Furthermore, the appellant’s wife’s
brother testified that although he sometimes
visited the appellant
and his sister (the appellant’s wife), he never went to
Papadi’s house, which is on the same
premises, and did not even
enter it (but waited outside in his car) on the day that he went with
his mother to fetch the sick appellant’s
wife. The record shows
that he repelled any subtle suggestions, when questioned by the
magistrate, that Papadi cared for his sister
before he could fetch
her. Whilst the record does not show why there seemed to be such a
distant and cold relationship between
Papadi and the appellant’s
brother-in-law, I have taken note of what appears to have been a
strange relationship between
them, in my view. In my view, these
undisputed facts are not inconsistent with the appellant’s
assertion of bad blood between
the two sides and, therefore, with his
suggestion of a possible motive to falsely implicate him.
[33]
Even if I am wrong in respect of my view regarding the appellant’s
suggestion of a possible motive to falsely implicate
him, and it were
to be found that his suggestion is so improbable as to be rejected
outrightly as false beyond reasonable doubt,
no adverse inference
should be drawn against him simply on this basis. In
S v Lesito
1996 (2) SACR 682
(O),
the accused said that the dagga found in
his house had been planted there by the police. He explicitly said
that he did not see
the police planting the dagga, but that he
inferred the planting of the dagga from other facts. In this regard
the court stated
(at 687h-i):
“
Sou
hy pertinent
beweer
het dat hy so iets sou gesien het en sou die hof kon bevind dat
daardie bewering vals was, dan sou die afleiding dat die
res van sy
getuienis ook vals was, waarskynlik geregverdig gewees het. Waar
slegs bewys word dat ‘n afleiding wat ‘n
persoon maak
verkeerd is, is daar nie dieselfde ruimte om al sy getuienis as vals
te verwerp nie”.
[34]
A distinction should be drawn between a situation where an accused is
proved by the totality of the evidence led to have lied
on the facts
– as distinct from being wrong on his suggestion or suspicion
of a possible motive. Where the court finds that
the accused is an
incredible liar - in circumstances where the surrounding
circumstances and probabilities excluded any reasonable
possibility
that someone other than the accused perpetrated the offence –
it may find that such proof (of the accused as
an incredible liar)
constitutes support for the state’s case. See
Mudau
v The State (764/12)
[2012] ZASCA 56
(9 May 2013)
and
Thebus and another
v S
[2002] 3 All SA 782
(SCA).
[35]
However, where the court finds that the motive suggested by the
accused as the possible reason why the state witnesses could
falsely
implicate him, is implausible, it becomes a neutral point that does
not disadvantage the accused or support the state’s
case. In
this case, even a total rejection of the accused’s suggestion
of a possible motive (not evidence on the merits or
the facts), does
not entitle the trial court to draw an adverse inference which
contributes to supporting the state’s case
against him.
[36]
In my view, the appellant’s
defence amounted to nothing more than a suggestion of a possible
motive as to why the state witnesses
would falsely implicate him in
the commission of the offences. This being so,
the
trial court was not entitled to draw an adverse inference against the
accused even if it found his suggestion of a possible
motive to be
implausible.
[37]
The magistrate clearly placed a lot of reliance on the rejection of
the appellant’s suggestion of a possible motive to
falsely
implicate him in order to find that the state had succeeded to prove
its case beyond reasonable doubt. In delivering the
judgment, the
magistrate stated the following in relation to his assessment of the
version of the appellant (viewed in the context
of the testimony of
his witness, the brother-in-law) as contrasted with that of his
sister, Papadi:
“
When
this witness [brother-in-law] was questioned by the court, he made
the following startling statement. He said that when he
went to fetch
his sister, she was at the house of Papadi. This confirms the version
of Papadi and raises serious doubt over the
whole conspiracy theory
of the defence. If the relations were so bad that Papadi or other
family members went so far as to orchestrate
false charges of rape,
what was the wife of the accused doing at Papadi’s house?”
[38]
Furthermore, in summing up his five findings that led him to conclude
and find that the state succeeded in proving its case
beyond
reasonable doubt, the magistrate listed his findings regarding the
appellant’s suggestion of conspiracy and lack of
possible
motive on the part of the state witnesses as his first two findings.
In my mind, this shows the level of importance that
the magistrate
attached to his findings in rejecting the appellant’s
suggestion of a possible motive – which constituted
a
misdirection in my view with reference to the
Lesito
decision mentioned above.
[39]
The SCA seemed to be worried by a similar approach which was adopted
by the trial court in the decision of
Mangoma
v S (155/13)
[2013] ZASCA 205
(02 December 2013
).
Salduker JA stated the following at paragraphs [12] and [13] in
expressing her worry at the comments or remarks made by the trial

court in assessing the evidence of an accused as contrasted with that
of the state witnesses closely related to him:
“
[12]
The evidence of the State
witnesses must be considered as against the common cause fact that
there was bad blood between the complainant’s
mother and the
appellant due to the fact that he wanted to bring his second wife
into their home. Despite their denial, this is
something that the
children could not have been unaware of.
[13]
“
It is troubling that the
trial judge made the following statement during the appellant’s
testimony: ‘Let me tell you
the court finds it very hard to
believe the story you are telling it, very hard, that your own blood
children could tell against
you and the one who is not your blood
child is the one you say is more reliable, it is more stranger than
fiction,
particularly the boy
who is named after you
(my emphasis)’
.
[40]
The magistrate’s finding on this point must also be viewed
against the background that he did not make any finding regarding

whether the appellant’s wife was still present on the farm in
September 2010 (the time of the alleged rape) or not. Therefore,
one
is unable to know whether he accepted or rejected the testimony of
the appellant’s wife and his brother-in-law, who both
testified
(like the appellant) that his wife was still present on the farm in
September 2010, and was only fetched by her brother
in December 2010
due to ill-health.
[41]
If the magistrate had reasons to dismiss their testimony on this
vital point, he should have done so in his judgment and also
stated
his reasons for dismissing it. He did none of the two. Even if one
was to assume that by convicting the appellant the magistrate,
by
necessary implication, rejected their testimony, one would have
expected the judgment to state his reasons for doing so –
which
it does not. This point is important as the magistrate must have
applied his mind to it in considering whether the accused’s

version (that his wife was still present in September 2010, and thus
there would have been no need, in the first place, for anyone,

including Papadi, to do his washing, which would have necessitated
sending the complainants to him in connection with the clothes)
was
possibly true or not. In my view, failure to consider this aspect was
another misdirection by the magistrate.
The
application of caution to the evidence of young children
[42]
In
S v Cele (AR48/2012) [2012] ZAKZPHC 42;
[2012] 4 All SA 182
(KZP) (17 July 2012)
the court stated the following at para [16]
regarding the pliability or vulnerability of children to the power of
suggestion or
undue influence:
“
[16]
The evidence of a young child has been said to be unreliable because
of the child’s inexperience, imaginativeness and
suggestibility
to influence. In S v Jackson case, supra, the court dispensed with
the cautionary rule in sexual cases on the ground
that the
application of the cautionary rule to sexual assault cases was based
on irrational and outdated perceptions. Therefore,
it follows that
the state is simply obliged to prove the accused’s guilt beyond
reasonable doubt.
However, a
particular case may call for a cautionary approach, for instance,
where imaginativeness and pliability of a young witness
is a
potential risk”
(my
emphasis).
[43]
As stated above, the trial court should have approached the evidence
of the complainants with caution. Firstly, in the case
of MLM, the
trial court should have examined when, how and to whom did she make
her first rape report. The court should have examined
the kind and
level of interrogation used to get her to make the said report. This
was not done. Secondly, in the case of NMN, the
trial court should
have examined the possibility of her being unduly influenced by being
confronted by the police together with
MLM with a version already
made by MLM – where the police clearly required her to confirm
a version already before them.
The court did not consider these
possibilities, in the light of the dangers of the pliability of
children or being vulnerable to
the power of suggestion.
[44]
The recent SCA decision of
Mangoma v S
(155/13)
[2013] ZASCA 205
(02 December 2013
)
seems to be on point in relation to this appeal in many respects. It
bears very striking similarities to the facts of this case.
The facts
of that case were briefly as follows: The appellant was convicted of
rape of his 13-year old daughter and sentenced to
life imprisonment
in the Limpopo High Court. He appealed to the SCA against both
conviction and sentence on the grounds that evidence
of the state
witneses was riddled with contradictions and inconsistencies, and the
admissibility and reliability of the medical
report relied upon by
the trial court was also challenged, and the trial court was also
criticized for having descended into the
arena, and it was contended
that the accused did not have a fair trial as a result thereof.
During the trial, the state’s
case rested on the testimony of
the complainant and her 12-year old brother. The complainant
testified that she was raped by her
father (the accused) when she
arrived home from the playground at 15h00 on the afternoon of 8
February 2001, and that the rape
was witnessed by her younger
brother. Her younger brother also testified that he indeed witnessed
the rape by looking into the
house through a window. The accused’s
defence, on the other hand, was one of alibi. He testified that he
was not at home
at the time the rape allegedly occurred as he had
been looking for employment in Sibasa, having left home around 8h00
and returned
later that same evening, and thus could not have
committed the alleged act of rape. He called two witnesses in his
defence, a taxi
marshall, his alibi witness, and his second wife.
[45]
The SCA also dealt with the assessment of the evidence of child
witnesses in rape cases in the matter. Salduker JA, writing
the
unanimous decision of the court, stated the following at paragraphs
[14] and [15]:
[14]
In any
event,
it appears to us that the appellant is entitled to an
order that his conviction and sentence is set aside because the state
failed
to discharge the onus resting on it.
The evidence of the
child witnesses was not carefully scrutinised.
The contradictions
and inconsistencies were not properly considered,
nor the
possibility that they might have been put up to it by their mother.
In this fundamental regard the trial court erred.
[15]
In the result the appeal against both the conviction and sentence is
upheld and the conviction and sentence are set aside”
(my
emphasis).
[46]
The appeal court did not even deem it necessary to consider the
merits or demerits of the accused’s defence of an alibi
before
setting his conviction aside, in the light of its finding regarding
how the child witnesses’ evidence was dealt with
by the trial
court – which it found to have been deficient and constituted a
fundamental misdirection.
[47]
In my view, the particular circumstances of this case, where there
was no corroboration of the complainants’ evidence
(for an
example, by way of medical evidence which is not neutral), call for a
cautionary approach. Although the magistrate referred
to the
cautionary rule, I am of the view that he did not apply sufficient
caution in approaching the evidence of the complainants
–
particularly in the light of the pliability of children and the
improbabilities I have referred to above. Therefore, in
my view, the
trial court misdirected itself on this aspect too.
The
way the magistrate conducted the trial and the applicable legal
principles
[48]
This brings me to the point raised by the appellant regarding the
manner in which the magistrate conducted the trial. The conduct

expected of a presiding officer has received the attention of the SCA
on a number of occasions. Fairly recently, in
Leon
Smith v The State (595/2012)
[2013] ZASCA 38
(28 March 2013)
,
Schoeman AJA, writing the unanimous decision of the court, stated the
following between paragraphs [13] and [17]:
“
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 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 thereof. 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 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 of policy it is important that the public should have
confidence in the courts.  S v Tyebela
1989 (2) SA 22
(A) at 29.
S v Dzukuda; S v Tshilo
[2000] ZACC 16
;
2000 (2) SACR 443
(CC) para 11. S v Le Grange
[2008] ZASCA 102
;
2009 (1) SACR 125
(SCA) para 21.  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.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 Rall Trollip AJA 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. But, 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 the accused.’S v May
2005 (2) SACR 331
(SCA) paras
28-29. S v Rall
1982 (1) SA 828
(A) at 832A—833A”.
[49]
In my view, the record of the proceedings is replete with instances
where the magistrate appears to have gone too far out of
his way to
underplay and weaken those aspects of the state’s case that
tended to support the appellant’s case. I will
only refer to a
few of them in order to demonstrate the point.
49.1.
When Mr Le Roux put it to NMN during cross-examination that if it was
true that the things she testified about happened, she
would have run
to one of the neighbouring houses to seek help, she said that “
I
could not. I was unable to”.
It
was put to her that “
Your feet
were not tied, it is only your hands [that were tied] according to
you”,
the magistrate interjected
and said the following, “
She
already explain also that she was naked at the time, Mr Le Roux. That
was the reason that she didn’t go. Carry on”.
It
was immediately thereafter put to her that the accused will say that
there were problems within the family, and before she could
answer,
the magistrate interjected and rephrased the question to “
Were
you aware of those, of any problems?”,
to which she said that she was not. In my view, the magistrate
intervened inappropriately, at a crucial stage of cross-examination,

on an important point regarding the improbability of the
complainant’s version, and did so not to clarify any point, but

did so to even provide an additional answer for the complainant. NMN
had only provided the reason for not seeking help from neighbours
as
being tied, but the magistrate topped that answer by adding that she
was, after all, also naked. This was clearly prejudicial
to the
appellant’s case, at least as a perception to a reasonable
observer – it tended to strengthen the reason why
not to find
NMN’s version to be improbable.
49.2.
When Mr Le Roux sought to cross-examine MLM by quoting from her
statements to the police, after she had stated that the signatures

appearing on both statements purporting to be hers are those of her
mother, and that the police never read the statements back
to her,
and she did not know the contents thereof, the magistrate immediately
weighed in to state that “
Mr Le
Roux, my problem is the following. It was not read back to her, she
never signed anything, she does not know what was written
down there.
So you will have to prove those statements. I will allow you to ask
her, but please do not get into semantics ….Like
pushing or
pulling or pressing down. That is just purely semantics. Thank you”.
The remarks of the magistrate again came at a crucial stage of
cross-examination regarding a crucial aspect of allegations or
statements allegedly previously made to the police, and whilst
allowing Mr Le Roux, correctly so, to provisionally ask questions

based on the contents of the statements, the remarks were concluded
in a manner that created the impression, be it correctly or

incorrectly so, but justifiably so in my view, that they were
designed to scare Mr Le Roux off his line of cross-examination, and

trivialise whatever questions he would pose based on the statements,
in advance. They also, in my view, created an impression that
the
magistrate had already made a credibility finding regarding the
complainant – to the effect that the contents of the

statements, which tended to show that she previously made
inconsistent or contradictory allegations to the police, could not be

held against her, thus weakening the appellant’s defence.
49.3.
After NMN stated under cross-examination that the appellant’s
wife was not there at that time, as she had gone to her
parental
home, and that was in September 2010, when it was put to her that the
appellant will say that  his wife was fetched
by her
brother-in-law a day before Christmas, she agreed thereto. When asked
why she earlier said she went away in September, she
insisted that
that was true (whilst this was clearly a contradictory statement), to
which the magistrate interjected and instructed
Mr Le Roux to carry
on – “
Carry on, Mr Le
Roux”
.  Mr Le Roux then
asked her, “
What is now the truth,
December or September?”,
to which
the witness said “
It was in
September”,
to which Mr Le Roux
asked her, “
So you lied to this
court when the court also asked you is it before Christmas?”,
and before she could answer the magistrate interjected and stated
that “
But she just conceded, Mr Le
Roux, I think it is a little bit unfair”.
In
my view, there was nothing unfair about the questioning by Mr Le Roux
– the question was perfectly legitimate and justified
in the
light of the witness’ obviously contradictory answers on the
same point.  The way the magistrate intervened created
an
impression that he wanted to take the steam out of the glaring
contradiction which had just been made by the witness, thus weakening

the appellant’s defence.
49.4
.
After the investigating officer W/O Nel
confirmed her earlier answer under cross-examination to the effect
that she was under the
impression that both children were tied with
the rope, the magistrate then referred to MLM’s statement which
read that “
Hy het vir NMN met ‘n
tou vasgemmak (haar hande) en toe myne”,
and
then pointed out to her that the words “
toe
myne”
had been scratched out, and
initialled for, and asked her why she did that, to which she conceded
to the magistrate’s suggestion
that MLM must have indicated
during questioning that she was not tied with the rope. The
magistrate then suggested to her that
she must have forgotten about
that when she answered Mr Le Roux (that she was always under the
impression that both complainants
alleged that they were both tied
with a rope) – by stating that “
Toe
u geantwoord het vir mnr Le Roux het u vergeet daarvan, ne?”
,
which she confirmed. In my view, the manner in which the magistrate
suggested an answer – to the effect that the witness
had
forgotten about the amendment – was inappropriate. The
magistrate could have, instead, asked the witness why she answered
Mr
Le Roux by stating that she was under the impression that both
complainants were tied, in the light of the amendment she had
brought
onto MLM’s statement – without actually suggesting an
answer to the witness.
The
way the magistrate dealt with this aspect could reasonably create an
impression that he had already created a favourable credidility

finding in favour of MLM in so far as the version of MLM was
concerned, thus conversely a negative finding against the appellant.
49.5.
After Cst Modupi had testified that he read back and interpreted the
statements to the complainants in Sesotho, the magistrate
intervened
to point out that he could not even correctly spell the words vagina
and semen, and said “
That is about
how good his English is”
. This
remark, made at a crucial stage of cross-examination regarding
whether the complainants and the police officer understood
each other
and whether the officer accurately recorded the allegations made by
the complainants, created an impression that the
magistrate did not
like the part of the evidence which tended to prove that the
complainants previously made inconsistent or contradictory

allegations to the police, as that would weaken the state’s
case and embolden the appellant’s case. It leaves an impression

that the magistrate had already made a credibility finding against
the witness, which would in turn strengthen the versions of
the
complainants, and conversely weaken the appellant’s case. This
impression would be perfectly legitimate in the light
of the
magistrate’s other remarks regarding the evidence of W/O Nel,
to the effect that he (magistrate) still had to meet
a police ifficer
who would be candid and truthful with the court and confess that he
or she had not done his or her job properly,
by not interpreting
and/or reading back a statement to a witness - effectively making a
general credibility finding against all
police officers that their
evidence on this aspect must be treated with the contempt it deserves
– as they will most likely
come and lie in court on this
aspect, although the court secretly knows that they are most likely
lying on that aspect .
49.6.
After Cst Modupi had testified about how he communicated with the
complainants in their own language of Sesotho, and that
he accurately
recorded their accounts in their statements, the magistrate went to
great lengths to make the point that Cst Modupi’s
testimony on
this point must be treated with caution at the very least, and not
unreservedly accepted,  by pointing out in
a  question
form, that he had to take the statements in either English or
Afrikaans due to historical reasons inherited in
this country, and if
he had a choice he would have preferred to take them down in Sesotho,
because Sesotho is his mother tongue
and he would be better in
Sesotho. The magistrate put it in these terms “
I
know what the problem is here. You are a Sotho man, having to work in
English and Afrikaans, am I right?”.
He
was asked whether the children were calm or upset at the time he took
their statements, and he said they were calm at that moment,
to which
the magistrate responded, “
They
were calm, alright. But they are young children”,
which the witness confirmed. In my view, the above-stated line of
questioning by the magistrate was not aimed at seeking clarity
on any
point, but geared at proving that the witness could not vouch for the
correctness of his recording of the complainants’
versions, and
that even if the complainants could be said to have been calm, there
still remained a problem of unreservedly accepting
that (because they
were calm) the recording was accurate as they were young children.
This created an impression that the magistrate
wanted to do
everything possible to ensure that he could finally dismiss whatever
inconsistencies or contradictions that would
emanate (as against
their oral testimony) as being unproven against them, or trivial. The
magistrate followed a similar line of
questioning with W/O Nel, in
order to make the point that there was room for miscommunication as
the complainants came from a different
cultural background to that of
W/O Nel. This approach, coupled with the magistrate’s remarks
about how a big fuss is always
made by the defence in criminal cases
around inconsistencies or contradictions between witnesses’
statements to the police
and their oral testimony in court, could
legitimately create an impression that the magistrate was not going
to seriously consider
whatever inconsistencies or contradictions
which could count in favour of the appellant’s case.
49.7.
I found that some of the questions posed by the magistrate, like
those posed to Cst Modupi and W/O Nel mentioned above, were
in
essence leading questions. The dangers of a presiding officer asking
leading questions, even in circumstances where justified,
in order to
seek clarification or complete a picture, have been alluded to in the
past – as a witness who realizes what a
preferred answer would
be from the manner a presiding officer poses a question, is less
likely to disappoint such a presiding officer
by giving an undesired
or undesirable answer. Questions that are inherently highly
suggestive of the desired answer from the bench
must, as a rule, be
discouraged, if not prohibited. A witness who realizes that a
presiding officer is likely to be impressed by
a certain answer that
he has already suggested in his question, is likely to agree with the
suggested answer – especially
with the answer coming from the
presiding officer – who is the person to make the final
decision on the matter.
[50]
In the
Smith
decision
mentioned above, the SCA found it inappropriate for a magistrate to
have made certain remarks during the trial. The court
stated the
following at paragraph [11]:
“
Mr
Omar attempted to show during cross-examination of one Mrs Tromp, an
employee of Bankfin, that Bankfin was not the owner of the
motor
vehicle at the time it was alleged to have been stolen. The
magistrate dismissed this line of cross-examination by saying:
‘
No
no let us not argue about those technicalities. If I say ownership
put it in averted commas.’
[51]
Similarly, in the
Mangoma
decision
referred to above, the Salduker JA remarked as follows at paragraph
[13]:
“
It
is troubling that the trial judge made the following statement during
the appellant’s testimony: ‘Let me tell you
the court
finds it very hard to believe the story you are telling it, very
hard, that your own blood children could tell against
you and the one
who is not your blood child is the one you say is more reliable, it
is more stranger than fiction,
particularly the boy who is named after you
(my
emphasis)’
.
[52]
In my view, the remarks made by the magistrate in this case go far
beyond those recently found inappropriate by the SCA in
the
Smith
and
Mangoma
decisions. I am thus of the view that Mr Nel’s submission that
the magistrate was not impartial in the conduct of the trial,
and
that he posed questions not limited to elucidation or clarification
of evidence, but had the effect of favouring the state’s
case,
is not entirely without merit.
Justification
for this court to interfere
[53]
In my view, the misdirection of the trial court in respect of not
considering the gaps in the state’s case, coupled with
the
failure to consider the number, nature and extent of the
improbabilities inherent in the circumstances of the case, and
failure
to exercise sufficient caution in approaching the evidence of
the complainants and other state witnesses (especially the
possibility
of Papadi and those on her side of the family to falsely
implicate the appellant), is such that they justify interference by
this
court. This means that this court is at large to consider this
matter as if it was a court of first instance, and substitute its
own
findings of fact and law if necessary.
[54]
Over and above the misdirections mentioned above, the manner in which
the magistrate conducted the proceedings left much to
be desired. Mr
Nel made it clear that, whereas the appellant is raising
irregularities in the way the magistrate conducted the
trial, it was
not the appellant’s case that the appellant did not receive a
fair trial. In my view, once this court is satisfied
that there were
irregularities during the trial, it is not bound by the views of
either party as regards whether such irregularities
amount to an
unfair trial or not, and the court is at large to make its own
finding in this respect. On the facts of this case,
I am of the view
that the number, nature and extent of the irregularities committed by
the magistrate in the trial, on their own,
amounted to the appellant
not receiving a fair trial, and that this fact alone, justifies
interference by this court. I, however,
am not of the view that the
irregularities are of such a nature as to set the conviction and
sentence aside without even delving
into and considering the merits
of the matter. I will only interfere to the extent of considering the
matter afresh on its merits.
Fresh
consideration of the charges, the accused’s plea, the evidence
led and application of the applicable law or legal principles
to the
said facts
[55]
In my view, the following is a proper evaluation and summary of the
evidence led by the respective parties, which culminated
in this
appeal: The state’s case rested on the testimony of the two
complainants who were aged 11 years and 12 years respectively
at the
time of the alleged rape. I agree with the concession rightly made by
Mr Hiemstra that Dr Radebe’s evidence can be
legitimately
ignored for purposes of this matter. I do so, not in the least
because it does not take this matter any further in
arriving at a
proper verdict. I take the same view of Dr van Schalkwyk’s
testimony.
[56]
The essence of the state’s case was that the complainants were
raped by the appellant in his house, during the day, after
they had
both simultaneously arrived at his house sometime in September 2010,
in order to deliver the accused’s clean clothes
which had been
washed by Papadi, to him. The appellant’s defence, on the other
hand, is that he disputes the allegations
against him, and he has no
idea what caused the complainants to falsely implicate him, but
suspects that it all had to do with
the bad blood between his side of
the family, on the one hand, and Papadi’s side of the family,
on the other hand. He also
contends that at the time he is alleged to
have raped the complainants, his wife was still present at his house
and, therefore,
Papadi had no reason to wash his clothes. In my mind,
his defence, by necessary implication, also extends to the contention
that
he could, consequently, not have been alone at the time of the
alleged offence, as his wife was present during September 2010. In

support of his defence, the accused called his wife and
brother-in-law, who both confirmed his version that the accused’s

wife only left the accused’s home in December 2010 (and not in
September 2010).
[57]
I am of the view that, just like the SCA did in the particular
circumstances in the
Mangoma
decision
referred to above, it is unnecessary, for purposes of this verdict,
to make any conclusive finding regarding the plausibility
or
reliability of the accused’s suggestion of a possible motive
for falsely implicating him, and I thus refrain from doing
so. The
reason I say so is that a proper verdict can be arrived at in this
matter without the necessity of a finding on the said
aspect, for the
reasons mentioned below in this judgment.
[58]
An analysis of the totality of the evidence led shows that the only
crucial evidence for the state’s case is that of
the two
complainants. They are the only witnesses to the alleged rape. I have
already alluded above to the reasons for discounting
Dr Radebe’s
evidence. The other state witnesses testified on collateral issues.
The evidence of the police witnesses and
the family members of the
complainants does not provide any corroboration of the complainants’
evidence.
[59]
I agree with Mr Hiemstra’s submission that this court may
safely ignore the medical evidence of Dr Radebe completely.
The main
reason for this, apart from the fact that it is inconclusive as
readily conceded by Mr Hiemstra, is that it is effectively
neutral as
it does not implicate the appellant. His evidence does not
corroborate the complainants’ version as it does not
connect or
link the appellant as the specific person who committed the rape - it
remains just neutral. There are also other good
reasons for ignoring
it – Dr Radebe’s testimony was not only unsatisfactory in
many respects, but also downright contradictory
in some material
respects.
[60]
The same principle applies to the evidence of members of the
complainants’ family in so far as they seek the court to
draw
certain adverse inferences against the appellant, and in support of
the state’s case against the appellant, from certain
conduct of
the complainants that in and by itself does not and cannot link the
appellant to the crime. For an example, the state
obviously wanted
the court to infer that when MLM jumped away when she saw the rope,
as if she was seeing a snake, this tends to
support the complainants’
version that it was used to tie NMN during the rape. This evidence,
even if it was to be accepted
– a point on which I find it
unnecessary to rule – would not be of any corroborative value
in that it cannot, on its
own and independent of the allegations made
by the complainants, provide corroboration of the fact that NMN was
indeed tied with
a rope, and also that it was nobody else but the
appellant that tied her with it. It would similarly not provide proof
that the
appellant (and nobody else) raped the complainants. Stated
differently, such evidence (of jumping away or the complainants
identifying
the rope) would, absent the allegations by the
complainants implicating the appellant, not have independently
provided corroboration
or support of any rape by nobody else but the
appellant. It only makes sense if you couple it up with the evidence
of the same
persons it is supposed to corroborate – the
complainants. It thus does not completely have a separate source, and
thus cannot
be of corroborative value to the evidence of the
complainants.
[61]
The same principle applies to the evidence of Cst Modupi that he
found the social worker busy interviewing MLM, who implicated
the
appellant in the alleged rape, and that NMN also ultimately confirmed
that the appellant raped them. It is not corroborative
of anything
against the appellant as the complainants cannot create corroborative
evidence against the appellant by repeating the
rape allegation to
other people. Furthermore, the rule applying to the exception to
inadmissibility of hearsay evidence in rape
cases is not applicable
to the testimony of Cst Modupi as he is not the so-called first
report – the person to whom the complainant
MLM first made the
report of rape. On the evidence before the court, that person would
have been either the social worker who interviewed
MLM or the doctor
who informed Papadi on Sunday, even before Papadi was given a
referral letter to take MLM for an interview with
the social worker
on the following day, Monday, depending on who MLM made the first
report to.
[62]
Since the state’s case rests mainly, and almost entirely on the
evidence of the two complainants only, it is indeed of
crucial
importance that the evidence of the complainants, which must in any
event be approached with caution as young children,
be satisfactory
in all material respects. The court must be satisfied, after taking
all evidence, and not only their oral testimony
in court, but
including their written statements to the police, which were admitted
as exhibits “D” and “E”,
that they both told
the truth, and that the said truth meets the requisite standard of
proof beyond reasonable doubt.
[63]
I have already found that there are so many improbabilities in the
circumstances surrounding the commission of the rape, like
raping
them in the presence of each other, with a door ajar in relative
close proximity of other neighbouring houses, and allowing
the
complainants to cry without any attempt to make them keep quiet,
allowing the tied and naked NMN to go out first crying with
both
hands bound at her back, the appellant throwing their clothes out in
broad daylight whilst they stood outside naked, why NMN
waited
outside whilst the accused went for MLM and still waited outside
after hearing MLM also cry inside the house, and not seek
help from
neighbours. The list goes on and on as mentioned above. I am of the
view that the number and quality of the improbabilities
that I find
inherent in the whole episode come down tumbling against the strength
of the state’s case.
[64]
On the other hand, I find that there were no material contradictions
between the appellant and his witnesses. His wife corroborated
his
version that there was bad blood between the two families after the
appellant was accused by Papadi of stealing her cattle
in order to
buy himself a motor vehicle, and that Papadi’s daughter-in-law
even physically assaulted her and caused her to
suffer epileptic
fits. As stated above, even Papadi confirmed that in her view the
appellant was the cause of bad relations between
the two families.
[65]
The appellant’s wife and his brother-in-law also corroborated
the appellant’s version that she (wife) was still
around in
September 2010 – the time it is alleged the offences were
committed in her absence, and I have not found any reason
to dismiss
their evidence on this crucial aspect.
[66]
Furthermore, even if the appellant’s supposition that the
complainants were falsely implicating him because of the bad

relations between the two families was to prove not tangible or
plausible, I may not draw an adverse inference against him simply

because I think that his suspicion is not plausible. It is clear that
the appellant’s defence was not that he knows it as
a fact that
the bad relations was the cause of the false implication, but the
essence of his so-called defence was that he had
no clue why he was
being falsely implicated, and that if he was to harzard a guess, he
could only think of the bad relations as
the possible reason. At the
trial the appellant pleaded not guilty to both charges and stated in
an explanation of his plea that
“
he
does not have any clue about the crimes [as] he was not involved”.
[67]
In
S v Shackell
2001 (4) SA 1
(SCA)
at
para 30, Brand AJA said the following regarding how to deal with the
accused’s version viewed against the probabilities:
“
It
is a trite principle that in criminal proceedings the prosecution
must prove its case beyond reasonable doubt and that a mere

preponderance of probabilities is not enough. Equally trite is the
observation that, in view of this standard of proof in a criminal

case, a court does not have to be convinced that every detail of an
accused’s version is true. If the accused’s version
is
reasonably possibly true in substance, the court must decide the
matter on the acceptance of that version. Of course it is permissible

to test the accused’s version against the inherent
probabilities. But it cannot be rejected merely because it is
improbable;
it can only be rejected on the basis of inherent
probabilities if it can be said to be so improbable that it cannot
reasonably
possibly be true. On my reading of the judgment of the
Court a quo its reasoning lacks this final and crucial step. On this
final
enquiry I consider the answer to be that, notwithstanding
certain improbabilities in the appellant’s version, the
reasonable
possibility remains that the substance thereof may be
true” (See also S v V 2000(1) SACR 453 (SCA) paragraph 3).
[68]
As far as the complainants are concerned, I also find that in my
application of the cautionary rule, I cannot exclude the possibility

that MLM could have been unduly influenced to lie against the accused
by anybody – including by Papadi and her family, in
order to
get even with the appellant whilst he thought he could enjoy the
fruits of his theft, in their view.
[69]
Furthermore, I cannot exclude the possibility that the first seeds of
the rape story or suspicion were planted in Papadi’s
mind from
the time she took the rope and put it in a plastic bag and hid it,
and then started wondering why the appellant always
carried his gun
on him when coming to her house (according to her statement to the
police), or suspicion arising from her seeing
the child standing up
to run into a bedroom when the appellant took his firearm out in
order to clean it (according to her oral
testimony).
[70]
I also cannot exclude the possibility that MLM could have heard the
doctor, whom the state failed to call – thus leaving
a gaping
hole regarding what was the source of his allegation (made to LAM) –
make the rape allegation and then decided to
go along with it, due to
the vulnerability and pliability of children. Even if one was to
accept that the first report of rape
was made by MLM to the social
worker, there similarly exists a gaping hole regarding what prompted
MLM to make the disclosure,
as the state did not call the social
worker to testify – in circumstances where I think more could
and should have been done
to procure her testimony – especially
in the light of the fact that it came approximately four months after
the date alleged
by the complainants.
[71]
NMN’s evidence must be viewed with increased suspicion as she
initially denied the report, in the presence of MLM and
the police,
and had obviously been told what MLM’s version was before she
could tell the so-called truth in front of the
police. After all,
both complainants were interviewed or interrogated together at the
police station before NMN could finally yield
to confirming MLM’s
version. In my view, although the complainants are two different
witnesses, they must, in the particular
circumstances of this case,
be deemed to be one witness, and thus their evidence be dealt with as
if it is that of a single witness
– which calls for more
caution on the basis that the evidence of a single witness must be
approached with caution.
[72]
I also can neither exclude the possibility that the complainant MLM
was merely suffering from a hygiene problem, as the nurses
had told
Papadi on two separate occasions, nor that whatever Dr Radebe’s
medical examination revealed, was the result of
something that
occurred after September 2010. The fact that neither Papadi nor MLM’s
mother (LAM) noticed anything wrong
with the complainants, and they
behaved normally immediately after the alleged rape
until
January 2011 when MLM was taken to hospital (which is approximately
four months later), militates against the rape allegations
as far as
the probabilities are concerned. It is hard to imagine how the
complainants – being two different children –
could
successfully put up such a façade over such a fairly extended
period of time, without their own parents or relatives
realizing
anything untoward in their behaviour.
[73]
The proper approach in assessing conflicting versions between the
state and the accused was stated as the following in
S
v Singh
1975 (1) SA
227
(N)
at
228:
“
Because
this is not the first time that one has been faced on appeal with
this kind of situation, it would perhaps be wise to repeat
once again
how a court ought to approach a criminal case on fact where there is
a conflict of fact between the evidence of the
State witness and that
of an accused.
It
is quite impermissible to approach such a case thus: because the
court is satisfied as to the reliability and the credibility
of the
State witnesses that, therefore, the defence witnesses, including the
accused, must be rejected.
The proper approach in a case such as this is for the court to apply
its mind not only to the merits and the demerits of the State
and the
defence witnesses but also the probabilities of the case. It is only
after so applying its mind that a court would be justified
in
reaching a conclusion as to whether the guilt of an accused has been
established beyond all reasonable doubt.
The
best indication that a court has applied its mind in the proper
manner in the abovementioned example is to be found in its reasons

for judgment including its reasons for the acceptance and the
rejection of the respective witnesses”
(my
emphasis).
[74]
In
S v V
2000(1) SACR 453(SCA)
at 455 a-b
Zulman JA said said the following:
“
It
is trite that there is no obligation upon an accused person, where
the State bears the onus, to convince the court. If his version
is
reasonably possibly true he is entitled to his acquittal although his
explanation is improbable. A court is not entitled to
convict unless
it is satisfied not only that the explanation is improbable but that
beyond reasonable doubt it is false. It is
permissible to look at the
probabilities of the case to determine whether the accused’s’
version is reasonably true
but one subjectively believes him is not
the test.”
[75]
I am of the view that the number of difficulties in the state’s
case is such that it cannot withstand scrutiny even if
it was to be
viewed on its own – as if the appellant had no version or
defence at all. Therefore, I need not even make any
definite finding
regarding the plausibility or otherwise of the appellant’s
suggestion of a possible motive for falsely implicating
him. Suffice
it to mention that I am of the view that there are no improbabilities
inherent in the motive the appellant seeks to
ascribe to the state
witnesses for falsely implicating him – especially with respect
to the complainants and their parents
(Papadi and LAM).
[76]
The state must prove its case by proving each and every element of
the offence beyond reasonable doubt, and there is no onus
on the
appellant to prove his innocence, and where the court is left in
doubt as regards any of the elements of the offence, the
benefit of
such doubt must accrue in favour of the appellant.
[77]
In my view, the state has not succeeded in proving its case beyond
reasonable doubt, especially in the light of the improbabilities

inherent in the circumstances of this case, the gaps existing in the
state’s case (including failure to call the other doctor
and
the social worker, and evidence regarding what form of interrogation
culminated in both complainants making the disclosure),
the lack of
corroborative evidence (which I would have sought in the light of the
particular circumstances of this case as a form
of guarantee), which
would have assisted me in my exercise of caution in relation to the
evidence of the complainants as young
children.
[78]
Accordingly, I am of the view that
the state did not discharge the onus of proving beyond reasonable
doubt that the appellant raped
the complainants
.
[79]
In the circumstances, I am of the view that the appeal should succeed
and the conviction accordingly be set aside.
[80]
In the premises, I propose the following order:
80.1.
The appeal is upheld.
80.
2.
The convictions and sentences are set aside.
_____________________
I.
MOTLOUNG,  AJ
I
agree and so it is ordered.
________________________
LEKALE,
J
For
appellant: Adv SJ Nel
Instructed
by: Honey & Partners
Bloemfontein
For
respondent: Adv HJ Hiemstra S.C
Instructed
by: Director of Public Prosecutions
Bloemfontein