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[2015] ZAKZPHC 2
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Ngobese v S (AR 562/2013) [2015] ZAKZPHC 2 (3 February 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL DIVISION,
PIETERMARITZBURG
CASE NO: AR 562/2013
DATE: 03 FEBRUARY 2015
In the matter between:
MUSA
NGOBESE
......................................................
Appellant
And
THE
STATE
............................................................
Respondent
JUDGMENT
NTSHANGASE J
[1] The appellant was convicted of rape
and sentenced to imprisonment for twenty years. The trial court
granted him leave to appeal
against conviction.
[2] The conviction is assailed on the
grounds that -
2.1 it followed upon a failed analysis
of the testimony of the complainant, a child and a single witness;
2.2 the complainant failed to report
at once on the first occasion which presented itself after the
incident to S……..
who, she said, is her ‘uncle’s
daughter;
2.3 the complainant’s statement
to the Police was in some respects at variance with her testimony in
court in that the complainant
said more in her evidence than she did
in her statement to the Police;
2.4 the version of the appellant was
reasonably possibly true and should have evoked a reasonable doubt.
[3] The trial magistrate appears to
have been alive to the gullibility of young children and their
susceptibility to influence.
In that regard his judgment reads:
‘It happens that young children
can be influenced to fabricate evidence against a person and evidence
of sexual matters are
difficult to rebut.’
[4] The Magistrate’s judgment
records the court’s appreciation of the need ‘to
determine whether there was any
danger of these persons – M……,
S…… and L……… giving false evidence
about
this matter.’ The judgment further records that ‘(t)he
court anxiously scrutinised the evidence of the complainant
to
establish whether there was any possibility of her being untruthful.’
In my view the Magistrate proceeded cautiously
in his evaluation of
the evidence and in assessing the credibility of the complainant and
other witnesses. Criticism of his conclusions
on the facts as being
a product of a failed analysis of the testimony of the complainant is
without merit.
[5] The second point of criticism of
the conviction questions why the complainant had not reported her
odious experience on the
first opportunity which presented itself and
it impugns the court’s failure to accord due consideration to
the complainant’s
failure in that regard.
[6] When she reached home after the
incident she found her aunt but did not at once report to her. On
this aspect the Magistrate
specifically questioned the complainant as
to why she had not at once reported to anyone about the appellant. It
appears that the
Magistrate found the complainant’s following
explanations to be efficient answers:
‘Because I was shocked and my
aunt was saddened.’
She also said –
‘Because she had just lost her
child and she was grieving for the child.’
For not reporting to S……….
she explaind as follows:
‘(T)he reason I did not tell S…….
soon after the incident is because the child that had passed away is
S…….’s
brother, so she was also sad about the
passing away of her brother.’
[7] L…… N…….
told the court that the complainant had worked in the appellant’s
tuck shop at the
request of the appellant. This was on the day of the
alleged rape. At midday he went to the appellant’s house to
call her.
When she emerged from the appellant’s house he saw
her wiping off tears. This dispatched a report of a preceding
saddening
event. This lends support to the complainant’s
evidence that while in his room the appellant had engaged in sexual
intercourse
with her without her consent. It appears that she was
traumatised.
[8] The essence of the criticism on
variance between the complainant’s statement to the Police and
her evidence in court finds
the following answer in the Magistrate’s
judgment:
‘It is a well known fact that
witnesses do not always give evidence entirely consistent with the
contents of statements recorded
by some officer in limited time, and
that not all the complainant’s evidence in court is recorded on
such statements.’
[9] In regard to the variance between a
witness’s evidence in court and his or her statement made to
the Police, the court
in S v Xaba 1983(3) SA 717(A) at 730B - C said
the following:
‘.. Police statements are, as a
matter of common experience, frequently not taken with the degree of
care, accuracy and completeness
which is desirable.’
[10] In S v Bruiners en ‘n Ander
1998(2) SACR 432 (SE) at 437h – i the court said the following:
‘Ek is van mening dat ten einde
‘n Staatsgetuie te diskrediteer sover dit sy getuieverklaring
betref, dit steeds ‘n
vereiste is dat daar ‘n wesenlike
afwyking deur die getuieverklaring moet wees alvorens ‘n
negatiewe afleiding gemaak
kan word.’
In the same passage the court states
that the statement of a witness to the Police is not a precursor to
that witness’s evidence
in court. In what follows the court
stated the obvious:
‘Dit is vergesog om van ‘n
getuie te verwag om in sy getuieverklaring reeeds presies dieselfde
weergawe te verskaf as
wat hy in die ope hof gaan getuig.’
[11] A reading of the record of
proceedings in this matter yields support for the Magistrate’s
conclusion that there were
no material discrepancies in the evidence
of the complainant. The court made credibility findings in which it
described the complainant’s
version as ‘trustworthy and
reliable.’ The court also found that ‘(S……….s)
demeanour enhanced
her credibility.’ Conversely the court
found that ‘(t)he (appellant) exposed himself to the court as
an untruthful,
unimpressive witness.’
[12] In the normal course the appellant
in a criminal appeal has to satisfy the appellate court that the
verdict was wrong. Where
there has been no misdirection by the trial
court the presumption is that its conclusion is correct (See S v
Dhlumayo 1948(2) SA
677 at 706). The trial court’s conclusion
was, in the present matter, in my view, correct.
[13] I make the following order:
The appeal against conviction is
dismissed.
NTSHANGASE J
I agree.
K PILLAY J
DATE OF HEARING: 6 November 2014
DATE OF JUDGMENT: 3 February 2015
FOR THE APPELLANT: Z Anastasiou
instructed by Legal Aid SA.
FOR THE RESPONDENT: N Ranbali
instructed by The Director of Public Prosecutions for KwaZulu-Natal.