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[2015] ZAECBHC 24
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Mngeni v S (CA&R2/13) [2015] ZAECBHC 24 (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
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 […….] 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.s’ 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
Mziyanda and Lumka
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 Anele’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 Ntlonzi 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 Ntlonzi
that she
is lying that there are burglar bars in his windows, but he did not
think about telling Mr Ntlonzi 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 Avelo 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 A. 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