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[2015] ZAECMHC 50
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Solontsi v S (CA&R 23/12) [2015] ZAECMHC 50 (23 April 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION: MTHATHA)
CASE
NO: CA&R 23/12
In
the matter between:
THANDILE
SOLONTSI
...................................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
APPEAL
JUDGMENT
HINANA
AJ
[
1]
On 21 September 2011, the appellant was convicted of rape by the
Magistrate and sentenced to eight (8) years imprisonment.
In
convicting, the appellant the Magistrate
[1]
found that:-
(
a)
The complainant was a single witness and the court approached her
evidence with extreme caution.
(b)
The complainant appeared to be honest and was not discredited during
her cross examination
(c)
The complainant frequently cried and was extremely upset.
(d)
There was no evidence that she was falsely implicating the appellant.
(e)
She did not report the first rape
[2]
incident immediately.
(f)
She reported the second rape incident
[3]
to her friend, one O[…].
(g)
O[…], when called to testify, testified about the second rape
incident.
(f)
That the appellant forced the complainant to his house and raped
her
[4]
(i)
The second rape incident
[5]
was
never reported to the police and the appellant was not charged in
respect of this incident and
(j)
The appellant was found guilty of having raped the complainant during
the first rape incident.
[2]
Leave to appeal was granted on conviction only.
[3]
The appellant was charged with rape, having contravened the
provisions of section 3 of Act 82 of 2007, the charges
read with the
provision of section 51 of
Criminal Law Amendment Act 105 of 1997
, in
that on or about 2009 at or near Mputhi location in the Regional
Division of Eastern Cape, the said accused did unlawfully
and
intentionally commit an act of sexual penetration with the
complainant, to wit, Z[…] D[…] by inserting
his penis
into a vagina without the consent of the said complainant.
[4]
The grounds upon which the appeal is founded are as follows:
“
1.
The learned magistrate erred in finding that the State has proved the
guilt of the appellant on a charge of rape beyond a reasonable
doubt.
1.1
More particularly the learned magistrate erred in not having regard
to the evidence of Z[…] D[…], the complainant
which
shows that for all intents and purposes she had consented to the
sexual intercourse with the appellant on the day in question.
1.2
More particularly the learned magistrate erred in not having regard
to the fact that the complainant did not explain how she
was raped by
the appellant except by crying the word rape.
[2]
The learned magistrate was incorrect in not finding that the evidence
of the appellant that the complainant had consented to
the sexual
intercourse was a true version.
[3]
The learned magistrate erred in not taking the evidence of the
complainant with caution as a single witness who had not reported
the
alleged rape to anybody for flimsy reason.
[4]
The conviction is against evidence and weight of the evidence
.”
[5]
In deciding this appeal, it is, in my view, apposite that I should
refer to the relevant evidence of the complainant Z[…]
D[…]
(the complainant) when she testified before the magistrate. She
testified that she knew the appellant very well
as the appellant was
her neighbour. She started knowing the appellant ever since she
resided at Mputhi. On 13 June
2009 she was called by the
appellant by her name and she waited for the appellant. The
appellant asked the complaint whether
she had a love affair and she
said yes and that she was in love with on Tamsanqa. The
appellant testified that she was lying
by saying that she was in love
with Tamsanqa
[6]
. The
appellant asked the complaint to accompany her so that he (the
Appellant) can put some clothes and thereafter he will
go and collect
the livestock.
[6.1]
The appellant was accompanied by the complainant to the appellant’s
premises. On arrival, they found one Lungelwa
and the Appellant
did not put on clothes as he stated but instead he just sat down and
watched television. After 17h00 hours,
the complainant asked
Appellant to accompany her but he refused and informed the
complainant that she will not be leaving. Later,
the Appellant
accompanied the complainant.
[6.2]
As they were proceeding to the complainant’s premises, and in
between the gardens, the appellant asked the complainant
why she
wanted to go home and he further told the complainant they must have
a love relationship. She wanted to go but the
appellant told
her that if she wanted to leave, then she must first hug him
(appellant)
[6.3]
The complainant refused and this time it was raining. Seeing
that she was being delayed by the appellant, who was repeating
that
the complainant must hug her, she then decided to hug the appellant
because she wanted to leave.
[6.4]
The appellant was not happy with the way the complaint hugged her and
wanted the complainant to kiss him and indeed the complainant
kissed
him on his cheek. After having kissed the appellant, the appellant
refused her to let her go and he held the complaint saying
that they
must go back to his home.
[6.5]
They went to the appellant’s premises and leaned against the
wall.
[6.6]
The appellant then pulled the complainant as the complainant wanted
to leave and pulled her inside the hut. When the
complainant
was pulled by the appellant, Ongezwa came and the appellant said “we
must wait for Ongezwa”
[6.7]
The appellant pulled the complainant and at one stage the complainant
broke away and ran. She was chased by the appellant
and was
found next to the tank. The appellant again pulled the
complainant to the hut where they were sitting watching television.
As the appellant pulled the complainant, there were other people
being Lungelwa and Ongezwa sitting watching television.
The
complainant only heard their voices as they were talking. She
was pulled to the bedroom and at that time the complainant
was
refusing. Inside the bedroom it was dark and there was no light.
[6.8]
The complainant was asked to sit and she refused, nevertheless, the
appellant told the complainant she will not leave. She
was then put
on top of the bed, she stood up, and she was asked to sit down,
otherwise if she did not, the appellant would clap
her.
[7]
The complainant told the court a
quo
that the appellant
clapped her on her face and the she screamed. The appellant
called the complainant “my person”
and the complainant
rejected this. In the house, there was a radio that was on
loudly, as she screamed, nobody came to her
rescue. The
appellant threatened to stab the complainant and told her that he was
not afraid of the family members of the
complainant. The
complainant was asked to climb on the bed but she refused. She
was threatened to be clapped again
then she climbed on to the bed.
[8]
The appellant pulled the complainant’s pants and the
complainant got off the bed, she was put back by the appellant, and
the appellant raped her.
[9]
After being raped, she wanted to go but appellant refused to let her
to go.
[11]
The appellant went to the kitchen and the complainant tried to
escape. However, she met the appellant in the passage
and was
taken back to the room and was raped for the second time.
[12]
In the morning, the complainant wanted to go and was accompanied by
the appellant. At her home, she did not report this
incident
because she was afraid of the stigma attached to rape.
[13]
For the purposes of this judgment I need not to deal with the second
rape incident because the appellant was not charged with
it.
[14]
Under cross examination she maintained that the appellant raped her
and that she did not report the incident because she did
not want her
grandmother to quarrel with the appellant’s family.
[15]
She maintained that the sexual intercourse was not consensual.
[16]
O[…] M[…] (O[…]) was called to corroborate that
she was once told by the complainant that she was raped
by the
appellant on 13 June 2009 (the first alleged rape incident).
[17]
In her testimony she told the court that whilst they were at her home
she narrated her story that was worrying her to the complainant.
[18]
The complainant then cried and asked whether O[…] knew
Thandile (referring to the appellant).
[19]
The complainant told O[…] that the appellant raped her at her
home
[7]
[20]
On my understanding of the evidence before court, the reason why the
O[…] was called was to corroborate what was said
to her by the
complainant in respect of the first rape incident
[8]
.
However O[…] testified about the incident which, was not
before court and of which the appellant was not charged.
[21]
Under cross examination O[…] agreed that the first rape
incident was never reported to her by the complainant.
[22]
In my view, the complainant was hard done by the state specifically
about the second rape incident (in July 2009). This
court finds
it difficult to understand why the appellant was not charged of this
incident and instead have evidence led regarding
an incident which
was not before court.
[23]
Ms Van Zyl, counsel for the respondent very well conceded that the
second rape incident was not before court and that the state
failed
the complainant. However, she said the court should still
confirm the conviction with regard to the offence for which
the
appellant was charged.
[24]
The National Prosecuting Authority has an constitutional obligation
to prosecute cases. When the docket was presented to it
for a
decision, whoever looked at it did not apply his mind and this led to
an injustice to the complainant.
[25]
Having said that, the issue which is central in this appeal in my
view, is what effect does the failure by O[…] (who
was called
by the state), to corroborate the complainant’s evidence with
regard to the first rape incident has on the conviction
of the
appellant.
[26]
Put differently, can the court prefer the evidence of one state
witness over the other (state witness), taking into account
that this
was a state case.
[27]
In
S
v Agliotti
,
[9]
Kgomo J (as he then was) clarified what is on acceptable evidence and
had this to say “acceptable evidence in a criminal
trial is not
just the say so of a witness, i.e what the witness tells the court in
chief, it is that evidence as qualified and
coloured by cross
examination”
[10]
.
[28]
Nugent J (as he then was) in
S
v Mayden
[11]
held that:
“
A
court does not look at the evidence implicating the accused in
isolation in order to determine whether there is proof beyond
reasonable doubt and so, too, does it look at the exculpatory
evidence in isolation to determine whether it is reasonable possible
that it might be true. A court does not base its conclusion on
part of the evidence”.
[12]
[29]
Most recently, Majiki AJ (as she then was) dealt with a similar
matter in
Kuse
v the State
[13]
and found that the state was not only confronted with contradictions
in the state case, but there were other improbabilities.
The
conviction of the appellant was set aside.
[30]
In
Ex
Parte v Minister of Justice.
In
re
R
v Jacobson and Levy
[14]
,
Stratford
JA had this to say:
“
prima
facie evidence in its more usual sense, is used to mean prima facie
proof of an issue of the burden of proving which is upon
the party
giving that evidence. In the absence of further evidence from
the other side, the prima facie proof becomes conclusive
proof and
the party giving it discharges onus”
[15]
[31]
In
S
v Shackell
[16]
Brand AJA (as he was
then) had this to say:
“
It
is trite principle that in criminal proceedings the prosecution must
prove its case beyond reasonable doubt and …………
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 reasonable possible true in substance
the
court must decide the matter of acceptance of that version. Of
course it is precible to test the accused version against
the
inherent probabilities. But it cannot be rejected merely 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 be
reasonable possible be true.”
[17]
[32]
The Supreme Court of Appeal in
S
v Chabalala
[18]
held that:
“
the
correct approach is to way up all the elements which pass towards the
guilt of the accused against all those which are indicative
of his
innocence, taking proper account of inherence strengthens and
weaknesses probabilities and improbabilities on both side
and, having
done so to decide the balance weighs so heavily in favour of the
state as to exclude any reasonable doubt about the
accused’s
guilt. The result may prove that one scrap of evidence or one
defect for the case for either party (such
as a failure to call a
material witness concerning an identity parade) was decisive but that
can only be an ex post facto determination
and a trial court
(counsel) to afford termination to latch on to one (apparently)
obviously aspect without assessing it in context
of the full picture
presented in evidence”
[19]
[33]
Zulman JA in
S
v V
[20]
when it was :
“
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 reasonable possible true is entitled to his acquittal
if though he is explanation is improbable. A court
is not
entitled to convict unless it is satisfied not only that explanation
is improbable but that beyond any reasonable doubt
it is false.
It is permissible to look at the probabilities of the case to
determine whether the accused version is reasonable
possible true but
whether one subjectively believe him is not the test. As
pointed out in many judgments of this court and
other courts the test
is whether there is a reasonable possibility that the accused’s
version may not be true.”
[21]
[34]
In my view, the Magistrate misdirected himself in convicting the
appellant. The Magistrate considered the evidence of
the
complainant in isolation of the evidence of O[…]. . The court
of appeal can interfere with the decision of the lower
court where
the discretion exercised by the magistrate or the lower court was
unreasonable or capriciously arrived at. It
is either the
discretion was properly or reasonable exercised and if it was, the
court of appeal may interfere with that decision.
If it was
not, the Court of Appeal has no power to interfere with it,
S
v Kgosimore
[22]
.
[35]
The above dicta was applied and followed in the case
Mphela
v Haakdoornbult Boerdery CC
[23]
.
The Constitutional Court re iterated the principle laid down in
National
Collision for Gay and Lesbian Equality and others v Minister of Home
Affairs and others
,
[24]
where the following was
said:
“
that
the court of appeal will interfere where it is shown that the
discretion was not judicially exercised but that it had been
influenced by wrong principles or a misdirection on the facts, or
that it had reached a decision which in the result could not
reasonable had been made by a court properly directing itself to all
the relevant facts and principles.”
[36]
In the result the appeal against conviction succeeds.
[37]
The following order is made:
1.
The conviction and sentence of the Appellant is accordingly set
aside.
__________
M.N.
Hinana
ACTING
JUDGE OF THE HIGH COURT
I
concur
____________
B.
Majiki
JUDGE
OF THE HIGH COURT
For
the appellant : Mr Mgcotyelwa
Instructed
by : Legal aid
Mthatha
For
the respondent: Adv Van Zyl
Instructed
by : The National Director of Public Prosecution
Mthatha
Heard
on: 06 March 2015
Delivered
on: 23 April 2015
[1]
Page
60 line 13- page 61
[2]
Which
occurred during the night on 13 June 2009
[3]
Which
occurred on 07 July 2009
[4]
See
footnote 2 above
[5]
See
footnote 3 above
[6]
Page
4 line 11
[7]
Referring
to the second rape incident
[8]
Which
occurred on 13 June 2009
[9]
2011(2)
SACR 437 (GSJ)
[10]
At
par 32
[11]
1999(2)SA
79 (W)
[12]
At
page 81 par A
[13]
CA&R
307/2012 heard on 30 May 2012 and delivered in June 2012, with
Dambuza J (as she then was) concurring ,see also Mangoma
v State
case no: 155/13 ZASCA 205 delivered on 2 December 2005
[14]
1931
AD 466
[15]
At
478
[16]
2001(4)
SA 1 (SCA)
[17]
Par
30
[18]
2003
(1) SACR 134 (SCA)
[19]
At
par 15
[20]
2000
(1)SACR 453 (SCA)
[21]
At
par 3
[22]
1999(2)
SACR 238 (SCA) at 241 g
[23]
2008(4)
SA 488(CC)
[24]
2000(2)SA
1 (CC)