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[2015] ZAECBHC 10
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Mngeni v S (CA&R 2/13) [2015] ZAECBHC 10 (15 May 2015)
SAFLII
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IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE LOCAL
DIVISION, BHISHO
CASE NO: CA&R 2/13
DATE: 15 MAY 2015
In the matter between:
SIMNIKIWE
MNGENI
............................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
Stretch J:
[1] The appellant was charged in the
regional court with rape committed in circumstances where the victim
was raped more than once.
He was legally represented and pleaded not
guilty, his defence being that the complainant (a 24 year old female
hereinafter referred
to as “M”) consented to him having
sexual intercourse with her (by inserting his penis into her vagina)
at his home
in Mdantsane on two occasions on 1 May 2011.
[2] He was convicted and sentenced to
life imprisonment in terms of the minimum sentencing legislation. He
appeals against the
conviction and the sentence imposed, having been
granted leave to do so by the trial court.
[3] At the commencement of his trial
the appellant formally admitted a forensic report, confirming that
his DNA was found in M’s
cervix.
[4] The complainant testified that she
had been at a tavern with her friends on the day in question. At
about 01h00 she went outside
to urinate. She was moderately drunk.
She was called by the appellant, whom she knows well. He was not
drunk. He told her that
the two of them must go to his home. When
she asked why, he slapped her and dragged her up a hill to a certain
veld. She admitted
that people were drinking outside and said that
she did not know whether they had seen the assault. She was of the
view that had
they witnessed the assault, they would have intervened.
On the way he continued to slap her and he also kicked her. She was
screaming
and crying but not very loudly as she does not have “a
bright or a sharp voice” and in any event, there was music
playing
in the tavern. As a result, nobody heard her.
[5] When they reached the veld he told
her to undress. She obeyed. He then raped her from behind while she
was on her hands and
knees. He did not use a condom.
[6] He then forced her to accompany him
to a shack. On the way there he continued to beat her. The shack
was occupied by A…..
and A……. A…….
openened the door. She told them that the appellant had raped her
whereupon the appellant
bumped her against the walls, assaulted her
with an Adidas “slop” and asked “am I raping you?”
When she
reported this to A……. and A……….
they did not say anything.
[7] A……… and the
appellant went outside and spoke. While they were outside, she again
reported to A………
that the appellant had raped
her. A……… came back inside. The appellant went
off and returned after about
ten minutes later with one of her shoes
and her cell phone which had been left behind in the veld where he
had raped her. He gave
her the phone and said that they must go to
his home. While the appellant was gone she did not make good her
escape because she
thought that A…. and A………
(Who were not her friends) would intervene on her behalf, or that
A…..
would go to her home and report what had happened to her.
[8] After they had left, she ran and
knocked at the door of a certain house, but there was no response.
He continued assaulting
her and threatened to kill her if she made a
noise, so she remained quiet.
[9] They entered his home. He closed
the door and he told her to undress because he was going to sleep
with her. She obeyed and
climbed onto the bed. There he raped her
for the second time. This time he used a condom because she asked
him to.
[10] While he was raping her his mother
phoned. He told the complainant not to make a noise (threatening to
kill her if she did)
and proceeded to engage in a telephone
conversation with his mother.
[11] After he had raped her for the
second time he “passed out, he slept”.
[12] She looked at the windows and the
door to see if she could escape but there were burglar bars on the
windows and a burglar
gate on the door. She tried to phone her
sisters and then sent cell phone messages to them saying that she was
being raped but
they did not respond because they were asleep. She
then went to sleep on another bed in the same room.
[13] She awoke at 06h00 the next
morning. When she told the appellant that she wanted to go home, he
offered to accompany her but
said that they would leave at about
08h00. She said that she wanted to go to church which starts at
09h00.
[14] She waited for the appellant until
08h00 and then told him that she needed her second shoe. He said
that he would look for
it. Thereafter he accompanied her to a
certain shop where she advised him that she was going to the police.
He did not respond.
[15] She went to the home of one M……
and told her that she had been raped by the appellant. She was
crying when she
made this report. M……… did not
ask many questions. She just said that she would escort M to her
home which
she did. From there her sisters accompanied her to the
police who in turn took her to the hospital where she was examined
and
a medical report was prepared. According to the report (the
contents of which was admitted) the appellant was dirty and her
clothing
was blood-stained and dirty and had grass and soil on it.
Her left ear was blood stained, her neck was scratched, and there
were
small cuts on her back. M explained that the cuts on her back
were sustained when the appellant had dragged her. According to
the
medical report she also had a bruise on the lower part of the
entrance to her vagina. The report stated that M had told the
doctor
that the appellant was in possession of a knife. The report further
stated that the doctor found “no clinical evidence
of drugs or
alcohol”. According to M, she also told the doctor that the
appellant had told her to wash and to wash her panties
after he had
raped her.
[16] M confirmed that at the time she
had a boyfriend, but that he was away. She said that before the
appellant raped her, he held
a grudge against her as a result of a
quarrel and a physical altercation which she had had previously at a
shebeen with the appellant’s
girlfriend a long time ago. M
testified that on that occasion the appellant had said “he is
going to kick me until I shit.”
She said that before this they
did not really talk to each other, and even after that incident it
was not as if they “were
not seeing eye to eye.”
[17] It was put to her on the
appellant’s behalf that he had engaged in a conversation with
her on the night in question after
she had called him over, and that
she had accepted his proposal that they should put the past (the
previous quarrel which I have
referred to) behind them and that she
had agreed to leave with him. On their way however, she brought up
the previous quarrel
again. As a result she and the appellant ended
up having a physical altercation which caused some of the injuries
which the doctor
had observed when she was examined. It was also
during this fight that she lost her cell phone and her shoes. The
route to the
appellant’s house is through a built up area, and
not through a veld as described by M.
[18] She disputed this, including the
appellant’s version that both of them were heavily intoxicated.
[19] It was further put to her that the
reason why they popped in at A……’s place was
because the appellant had
to collect his house keys there. At A……’
place she told the appellant that she could not find her shoes and
her phone so he left her there and went off to look for them. When
he returned they proceeded to his house where they engaged
in
consensual sexual intercourse twice, first without a condom, and on
the second occasion, with a condom, upon M’s insistence.
[20] During cross examination she
mentioned for the first time that the appellant was carrying a knife
while they were walking to
his home. Her explanation for not having
mentioned this before was the following:
‘It is because he was not in
possession of a knife when we were in bed.’
She also, for the first time mentioned
that she had searched for a key to the appellant’s door, but
could not find it.
[21] She also changed her version
regarding the failure of her sisters to respond to her calls and said
that her sisters (whom she
had phoned when the appellant was asleep)
were sober that night, that they had heard the phone ringing (which
on M’s version
would have been well after one in the morning),
but that they had chosen not to respond.
[22] It was put to her that the morning
before she left the appellant he had asked her about R50,00 which was
missing from her wallet.
According to the appellant, she initially
denied having taken the money, but before they left she gave it back
to him. It was
also put to her that when the two of them left
thereafter, she even carried a bucket for the appellant so that he
could get water
to wash himself at a nearby tap. The complainant
disputed this.
[23] M………
testified for the prosecutions. She confirmed that M had arrived at
her home after eight that morning
and had reported that the appellant
had raped her. She said that M was barefoot and dirty and that she
had blood next to her ear.
She was upset and crying. M……’s
evidence was not challenged.
[24] Thereafter the prosecutor was
constrained to apply for warrants for the arrest of the witnesses A……
and A……,
who had failed to attend the hearing despite
having been warned. The magistrate, after having authorised these
warrants to be
issued forthwith, refused an adjournment for the
warrants to be executed, resulting in the prosecutor having no choice
but to close
the State’s case.
[25] The appellant testified in his
defence. In essence he repeated the version which had been put to M
on his behalf. He described
in some detail how he had proposed a
love relationship to M at the shebeen and how she had hesitated as if
she needed time to consider
the proposal. He invited her to leave
with him and took one step away. She remained standing there. He
looked back at her. She
then walked towards him and the two of them
set off together. En route to his home, M kept on digging up the
past and referring
to the fight she had had with the appellant’s
erstwhile girlfriend, despite his assurances that this was something
of the
past. At one stage she said that she was not going home with
him, ostensibly because she had remembered how he had threatened
previously that he was going to “get” her. Then she
changed her mind, only to bring up the sensitive subject again
a few
minutes later. This eventually terminated in a heated quarrel with
the two of them physically assaulting each other.
[26] In describing what had transpired
at his home, the appellant again went into some detail about how he
had switched on the television
set when they arrived and how he then
undressed himself and got into bed. Thereafter M also undressed
herself and got into bed
with him. The key was left hanging in the
door. The house had no burglar bars or burglar gates.
[27] They had consensual sexual
intercourse twice and went to sleep. The next morning she woke him
up and said that he must accompany
her. He agreed, despite the fact
that he had a hangover and still wanted to sleep. He testified that
when he looked for a R50,00
note which had been left on the table to
buy electricity it was missing. M initially denied all knowledge of
this money. He put
it to her that she had been the only other person
in the house. She eventually produced a R50,00 note alleging that it
belonged
to a friend. This, despite the fact that she had told him
earlier on that she had no money. He reprimanded her and told her to
ask if she needed money. They left. Two people by the names of
M……. and L…… saw them. In particular,
they saw that M was carrying the bucket for the appellant to fetch
water to wash himself.
[28] They left the bucket next to the
tap and proceeded to the shop which the complainant had referred to
in her evidence. He bought
electricity and arranged with M to visit
her that afternoon. On his way back home, he filled the bucket with
water, went home
and took a bath. It was then that his sister phoned
saying that people were looking for him, saying that he had raped M.
[29] During cross-examination the
appellant admitted that he had previously threatened to “beat”
M if she laid a finger
on his girlfriend. He also admitted that his
mother had phoned while he and M were together at his home. When he
was asked to
describe the fight which he and M had had on the way to
A……..’s home, he said that she had bumped him
causing
him to fall down. He became angry and slapped her with an
open hand on the face which caused her to fall into a bushy area. He
helped her up and apologised, saying that he did not mean to slap her
but that anger got the better of him because she was persisting
in
bringing up the issue about his ex-girlfriend. At some stage she
also pushed him. For most of the way they had to hold onto
each
other because they were drunk and falling about.
[30] The appellant again described in
detail how he went back to look for M’s phone after she had
told him that it was lost.
He described how he first searched at the
spot where both of them had fallen down. When he could not find the
phone there, he
proceeded to the spot where M had fallen near A……’s
house. This was where he found the phone. It is significant
that the
appellant, having admitted that he looked for and found the phone,
denied that he also brought a shoe back. On the aspect
of M’s
shoes, he testified that he noticed for the first time in the morning
when he walked her home, that she only had one
shoe. When he asked
her about it she said that she had probably lost it on the way.
[31] The appellant did not call any
witnesses.
[32] The trial court, in convicting the
appellant, found that he was not a good witness, whereas the
complainant, whose version
it found to have been in line with the
inherent probabilities and the medical evidence, was a good witness.
The trial court was
particularly critical of the fact that it had not
been put to the complainant that the key to the appellant’s
house had been
hanging in the door before, during and after he had
had sexual intercourse with the complainant in his house. In this
regard,
the magistrate said the following:
‘The biggest problem in the
accused version however is the fact that he failed to mention to Mr
N……. that this
key was at all times available in the
door, complainant could have left anytime she wanted. … He
thought it necessary to
tell Mr N…… that she is lying
that there are burglar bars in his windows, but he did not think
about telling Mr N……
that she is lying about the key in
the door as well.”
[33] When the accused testified, the
trial magistrate put the following to him:
‘You see I am not trying to catch
you out but I just know that it will be argued at some stage that the
key, that the question
of the key being in the door is an
afterthought, I want to give you the opportunity now to explain
that.’
[34] It is contended on the appellant’s
behalf that the appellant’s failure to instruct his legal
representative about
the key, appears to have been the main reason
for his version having been rejected and for his ultimate conviction.
[35] I am inclined to agree that the
trial magistrate placed undue emphasis on the late introduction of
the whereabouts of the key
by the appellant, whilst simultaneously
ignoring similar afterthoughts in the complainant’s evidence.
For instance, the
complainant in her evidence in chief, specifically
referred to burglar bars on the door and the windows as the only
barriers to
her escape. It was only as a result of a direct question
about this key during cross-examination that she mentioned for the
first
time that she not only looked for the key but that she saw it
in the bed with the appellant the next morning.
[36] In my view the failure on the part
of both the complainant and the appellant to deal with the issue of
the key sooner rather
than later, is at best a neutral factor;
alternatively, a criticism that ought to have been levelled at both
the parties, particularly
when the onus is not on the appellant to
prove his innocence.
[37] It has also been contended that
the magistrate erred in not traversing the obvious improbabilities in
the complainant’s
version. I agree. These are:
a. Her evidence that no one came to her
rescue when she was dragged kicking and screaming from a crowded
tavern.
b. Her evidence that the appellant,
uninvited, went off to find her cell phone and her shoes in the
middle of the night (in a probable
state of intoxication), not only
empowering her to report his criminal conducts telephonically, but
thereafter, to rape her once
again.
c. Her evidence that she reported the
rape to A…. and A…… but that they showed no
reaction.
d. Her illogical evidence that she did
not make good her escape when the appellant was outside talking to
A….., or when the
appellant went off to look for her phone,
because she thought that A……. and A…….
would “intervene”
on her behalf (this, despite the fact
that they had shown no interest whatsoever in her revelation that the
appellant had raped
her in the veld).
[38] The magistrate in my view also
erred in not addressing any of the inconsistencies and glaring
contradictions in the complainant’s
evidence. The following
spring to mind, but the list is by no means exhaustive:
a. Her denial that he possessed a
weapon in her evidence in chief, contradicted by what she told the
doctor and by her evidence
during cross examination.
b. Her mentioning that she looked for
keys for the first time during cross-examination.
c. Her evidence in chief that her
sisters did not respond to her phone calls because they were asleep,
contradicted by her evidence
during cross examination that they did
hear the calls but chose to ignore them, compounded by the
improbability that her sisters,
if she had phoned them, would have
ignored her calls mindful of the disconcerting fact that she had not
yet arrived home in the
early hours of the morning.
[39] These contradictions and
inconsistencies aside, I am of the view that the trial court’s
refusal to allow an adjournment
for the presence of A….. And
A….. to be secured, is not only a misdirection but that it is
a material one which has
on its own had the fatal effect of vitiating
the conviction. I say so for the following reasons:
(a) It is the complainant’s
version that the appellant had assaulted her in the presence of these
people, that he had addressed
her in their presence using the words:
“Am I raping you?”, and that she had independently and
privately reported to
Avela that the appellant had raped her.
(b) It is common cause that these were
the first people whom the appellant and the complainant met up with
on their way to the appellant’s
house. Their evidence is, in
the circumstances, of vital importance in this matter. It goes
without saying that their confirmation
of the complainant’s
testimony would not only fortify it considerably, but would also be
strong support for a finding that
she had been consistent in her
version. Confirmation from an independent witness that the appellant
had indeed uttered the word
“Am I raping you?”, would, in
my view, have provided some guarantee that M, being single witness
was telling the truth
(see Swanepoel v S
[2008] ZASCA 8
;
[2008] 4 All SA 389
(SCA) at
[14]
). Conversely, their testimony may well have supported the
appellant’s version on these material aspects.
(c) There is nothing on record to
suggest that these witnesses were not available or that they could
not have been traced. In my
view, the magistrate’s refusal of
the prosecutor’s application to call them, is a miscarriage of
justice which has
resulted in a manifestly unfair trial, particularly
in view of the fact that M is a single witness.
[40] In the premises the conviction
falls to be set aside.
Order:
1. The appellant’s appeal against
his conviction and the sentence imposed is upheld.
2. The finding of the trial court is
set aside and is substituted with the following:
“The accused is found not guilty,
and he is discharged.”
I.T. STRETCH
15 May 2015
Judge of the High Court
I agree:
C. J. DIFFORD
Acting Judge of the High Court
Counsel for the appellant: Mr S V
Pango
Instructed by: Legal Aid South
Africa
King William’s Town
Counsel for the respondent: Ms N
Tokota
Instructed by: The Director of
Public Prosecutions
Bhisho