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[2015] ZAFSHC 35
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Phakoe v S (A234/2014) [2015] ZAFSHC 35 (5 March 2015)
SAFLII
Note: Certain personal/private details of parties or witnesses
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FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No. : A234/2014
DATE:
05 MARCH 2015
In
the matter between:-
THULWANE
ISAAC
PHAKOE
...................................................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
CORAM:
MOCUMIE, J
et
SJ REINDERS, AJ
HEARD
ON:
23 FEBRUARY 2015
DELIVERED
ON
:
05 MARCH
2015
MOCUMIE,J
[1]
The appellant appeared in the regional court, Welkom, (Ms N…….)
on a charge of rape of a 12 year old girl, his
step daughter. He
pleaded not guilty, but despite his plea of not guilty, he was
convicted as charged and was sentenced to eighteen
years
imprisonment. The trial court refused leave to appeal. Leave to
appeal was granted by this court in respect of the conviction
only.
[2]
The question in this case is whether the State failed to prove its
case beyond reasonable doubt considering the discrepancies
in its
case.
[3]
When the complainant testified in 2014, she was 12 years of age. She
had been staying with her step father, the appellant, her
mother and
younger brother who was in grade 1 and 7 years of age at that time.
She testified that earlier that day the mother had
left her and her
younger brother at their aunt’s place. Later in the evening
they went home. Their mother did not return
home. By 20h00 or just
after, she went to sleep, leaving her step father and her younger
brother watching television. While she
was sleeping, she felt the
appellant on top of her raping her. He had removed her jeans and
underwear before he took off his own
pants. She screamed from pain as
the appellant penetrated her. Her younger brother called out the
appellant and he stopped to rape
her. As he left the room he told her
not to tell anyone as she will break up his marriage.
[4]
In its judgment, the trial court found the complainant to have been
consistent, credible and honest despite her age. Mr. Van
Rensburg, on
behalf of the appellant, could not point to any fault with the trial
court’s finding. We hold the same view.
[5]
In his defence the appellant denied that he raped the complainant. He
alleged that, based on the fresh injuries in her private
parts which
the medical doctor noted, she must have been raped by someone else
when he sent her to buy cigarettes for him at a
shop during the night
in question. He submitted that there were discrepancies in the
complainant’s aunt’s evidence-in-chief
and her statement
to the police which should have cast doubt in the trial court’s
mind. Furthermore, the State failed to
call the complainant’s
younger brother to corroborate her.
[6]
The trial court, however, rejected the appellant’s version on
the basis that it was highly improbable, particularly because
it was,
inexplicably, never put to the complainant or any of the state
witnesses, but introduced for the first time when the appellant
testified. Mr. Van Rensburg conceded that the version the appellant
relied on was never put to the complainant and any other state
witness.
[7]
Before us, Mr. Van Rensburg submitted that there were contradictions
in the evidence of the state. When pressed to highlight
them, he
could not because there were none except in the evidence of the
complainant’s aunt evidence-in-chief and her own
statement to
the police. These discrepancies the State readily conceded.
[8]
The full bench of this court recently had the opportunity to restate
the law regarding the differences between a police statement
and
evidence in
Teboho
Meje and Another.
[1]
The
court stated:
“
[7]
Before a witness can be discredited because of the differences
between a police statement and evidence ,there have to be material
discrepancies (
S v Bruinders en ‘n
Ander
1998(2) SACR 432 (SECLD) at
437g-j). In
S v Mafaladiso en Andere
2003(1) SACR 583 (SCA) at 593i-j Olivier JA points out that where
there are contradictions, the court should in the first place
determine what the witness really intended saying on each occasion.
Secondly, not every contradiction affects the credibility of
a
witness (594c-d). Thirdly, the contradictory versions must be
compared and evaluated holistically (594d-e). Lastly, the trial
judge
must weigh up the statement against
viva
voce
evidence of the witness
(594f-g).In
S v Govender and Others
2006 (1) SACR 322
(ECD) Nepgen J repeated the requirements listed in
Mafaladiso and added that regard must also be had to the type of
person the
witness is, and cultural differences (at 326c-j). Some
witnesses give ill-conceived and nonsensical answers when they find
themselves
in a perceived predicament (326e-f).”
[9]
The evidence-in-chief of the complainant’s aunt indeed differed
from her statement to the police. This, she readily admitted
in the
trial court. The State too conceded this before us. These
differences, however, go only as far as the appellant’s
alleged
confession to have raped the complaint when he was confronted by the
aunt, the grandmother his own brother after the complainant
had
reported the rape to them the next day. The aunt explained that she
did not tell the police about the confession the appellant
allegedly
made, but that the complainant told the police about the
confrontation which extracted the alleged confession. The explanation
suffices to the extent that it actually corroborates the consistency
of the complainant’s version that she reported the rape
to her
aunt and grandmother. The two and the appellant’s own brother
confronted the appellant.
[10]
In so far as the evidence of a second incident of rape that occurred
prior to the one before us; whilst the complainant and
her family
were staying in Pretoria is concerned, the less said the better. The
evidence is clearly hearsay that should not have
been admitted or
extracted as it was by the regional magistrate. The admission of
hearsay evidence is clearly set out under the
Law of Evidence
Amendment Act 45, 1988
[2]
. The
approach to such evidence has been authoritatively pronounced by the
Supreme Court of Appeal in
S
v Ndhlovu
[3]
and needs no repeat. We, in any event did not take it into account at
all because even without it, the complainant’s evidence
was
unassailable. She was consistent and unshaken in her evidence. She
was corroborated by her aunt and grandmother as far
as the report she
made the first opportunity she had the next day. Both the aunt and
grandmother saw what they believed was semen
coming out of her
private part. As much as the evidence of the doctor who examined the
complainant was not above board for a professional
in his field, the
fact remains that he noticed fresh tears in the complainant’s
posterior
fourchette
which the appellant could not refute but instead put the blame on
someone else, unknown.
[12]
Having said that, the fact that the state did not call the
complainant’s younger brother as a witness cannot be held
against the state in the face of the satisfactory evidence presented.
It is trite that once the state abandons a witness not because
the
witness will necessarily contradict the key witness, the defence is
entitled to call such witness if it deems it necessary
to cast doubt
on the state’s case. But not to prove the appellant’s
case. The younger brother would not
have made any difference in
the state’s case. In all probabilities, he did not witness
anything as he was in the other room
from where he called his father.
[13]
Bearing
all relevant
facts
in mind and when the evidence
is viewed as a whole, between the two versions, the complainant’s
version is more probable.
I am consequently satisfied that the state
proved its case beyond reasonable doubt. The appeal ought not to
stand.
ORDER
[14]
In the result, I make the following order.
The
appeal against conviction is dismissed.
B.
C. MOCUMIE, J
I
concur
S.
J. REINDERS, AJ
On
behalf of appellant: Adv. A. Coetzee
Instructed
by:
Rossouws
Attorneys
BLOEMFONTEIN
On
behalf of the respondent: Adv. Steyn
Instructed
by:
The
Director: Public Prosecution
BLOEMFONEIN
[1]
Teboho
Meje and Another v S
(A 264/2013) (delivered 29 May 2014) para 6-9.
[2]
Section 3
, which has revolutionalised the South African approach to
hearsay evidence.
[3]
S
v
Ndhlovu
and Others
2002
(2) SACR 325
(SCA),
2002 (6) SACR 305
(SCA).The Supreme court of
Appeal followed Cameron JA’s approach in
Mamushe
v S
[2007]4 All SA 972 (SCA).