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[2014] ZAGPPHC 76
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Mphaphuli v S (A784/13) [2014] ZAGPPHC 76 (20 February 2014)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF
SOUTH AFRICA)
CASE
NO: A784/13
DATE:
20 FEBRUARY 2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
MPHAPHULI
.................................................................................................
Appellant
v
THE
STATE
................................................................................................
Respondent
Coram:
TLHAPI
J AND MALINDI AJ
JUDGMENT
MALINDI
AJ
INTRODUCTION
[1.]
The Appellant was convicted by the Regional Magistrate's Court of
Vereeniging for rape of a minor. He was sentenced to 20 years
imprisonment and it was ordered that his name be placed in the
Registrar for Sexual Offenders.
[2.]
He applied for and was granted leave to appeal against his conviction
by the Magistrate.
[3.]
When the grounds of appeal as set out in the application for leave to
appeal are considered, it is apparent that the appeal
is against the
whole judgment and therefore no attempt will be made to deal with the
grounds separately.
[4.]
It was common cause at the trial, or at least it was not disputed by
the Appellant, that the minor child had been raped. The
medical
examiner had found multiple, partially healed injuries on both sides
of the para-urethral folds of the vagina, measuring
0,5-10ml,
compatible with recent forceful penetration. The only question was
whether it was by the Appellant.
[5.]
The Magistrate found the minor child's evidence reliable in
the
following respects.
5.1.
She
pointed the Appellant out in court. (She gave evidence through the
intermediary room and was brought into court only for this
purpose).
5.2.
She
testified that she had never been raped before.
She
had never been driven to school by anyone else except the Appellant
during the relevant period.
[6.]
Regarding the mother's evidence the Magistrate took the
following
into account.
6.1.
When
the mother tried to give the child a bath the child "got
scared",
[p.
42, I 7-9]
6.2.
The
child was taken to school by the Appellant on that day. [p. 42, I
10-13]
6.3.
On
the day after school the child told the mother that the Appellant is
the person who raped her. [p. 42, I 14- 16]
6.4.
The
day on which the rape was reported to the police is inferred as being
26 August 2011 because the Medico- Legal Examination (J88)
was done
on 27 August 2011 at 4h30. [p. 42, I 17-22]
6.5.
On
a previous occasion the Appellant had delivered all the children
except the complainant. When the mother called the Appellant
his
excuse was that he had to return to the school with the complainant
and confirmed that she was still with him. He then dropped
the child
at the street corner and she had arrived home crying, [p. 43, I 7-16]
6.6.
It
was put to the mother that the laying of the rape charge was
motivated by her being angry with the Appellant for demanding payment
for the month of July. She denied this and stated that she did not
owe the Appellant at the time as payment for August was not
due. [p.
43, I 17-18]
[7.]
In considering the Appellant's evidence the Magistrate pointed the
following out:
7.1.
He
testified that he last transported the child on Wednesday, 3 August
2011 (because he had not been paid for July. [p. 43, I 22-24]
7.2.
On
5 August 2011 the mother called him to collect his money but instead
was refused entry into the house and then accused of touching
the
child, [p. 43 I 24-44,
I
5]
7.3.
He
received a call from the mother a week before his arrest informing
him that she was going to the police, [p. 44, I 6-10]
7.4.
When
he started transporting the child (in July) he was told to always
drop her at the gate because she had been raped before, [p.
44, I
11-13]
[8.]
The court then warned itself to the applicable legal principles,
including that the State bears the onus of proof and that
the
evidence of the complainant needs to be approached with caution, [p.
45, I 17 - p. 46, I 3]See S v Ambros
2005 (2) SACR 211
(C) at
215-216); S v Zuma
2006 (2) SACR 191
(W) at 210-211;
[9.]
The Magistrate found the Appellant's version not to be reasonably
possibly true for the reasons that:
9.1.
The
mother's motive could not have been about the money allegedly owed to
him because according to him he never demanded to be paid
after the
confrontation of 5 August 2011. Therefore it is improbable that the
issue could have led to a charge of rape being laid
only on 26 August
2011. [p. 48, I 1-16]
9.2.
The
Appellant's argument that the mother is protecting the real rapist
and using the rape that the Appellant was told about in order
to get
at him is highly improbable, [p. 47, I 16-23]
[10.]
For the rejection of an accused's version as not reasonably possibly
true Zulman JA, in S v V
2000 (1) SACR 453
(SCA) at 455A-C said the
following:
’
The
accused's failure to convince the court is a further guarantee of the
veracity of the evidence tendered by the State.'
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 reasonably possibiy true he is entitled to his acquittal even
though his explanation is improbable. A court is not entitled
to
convict unless it is satisfied not only that the 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's version is reasonably possibiy true
but whether
one subjectively believes him is not the test.
/\s
pointed out in many judgments of this Court and other courts the test
is whether there is a reasonable possibility that the
accused's
evidence may be true. I do not find it improbable (as the magistrate
did) that the complainants would conspire to fabricate
charges
against the appellant. The magistrate is incorrect when he states in
his judgment that
'no
evidence was forthcoming to this effect'.
[11.]
It is clear from the Magistrate's evaluation of the evidence above
that he rejected the Appellant's evidence as false and
therefore
applying the legal principle correctly.
[12.]
On the other hand, the complainant's and the mother's evidence was
found to be truthful, reliable and credible, [p. 48, I
17-25]
[13.]
It must be added to the Magistrate's reasons, if this does not appear
clearly therein, that the Appellant also lied about
when he last
transported the child. The mother testified that the Appellant had
continued to transport the child up to 26 August
2011 whereas the
Appellant says it was up to 3 August 2011. The mother's evidence is
clear that the child refused her mother to
touch her body while
bathing her on the Friday and that on the same Friday about 22h30 the
child told her that the Appellant raped
her. [p. 19, I 9 - p.20] It
was on the same Friday, 26 August 2011, that she reported the rape to
the police on the same day. [p.
21, I 16-19] Therefore, if the mother
and child's evidence is true, the Appellant lied on this aspect.
[14.]
Although the mother had agreed under cross examination that the
Appellant last transported the child on 3 August 2011 [p.
21, 1
14-15] this was clearly a mistake.
[15.]
The allegation that the mother owed transport money is improbable.
The mother denied that she owed money for July and was
adamant that
as August had not ended, the August payment was not due and payable,
[p. 25, I 19-22]; [p. 26, 1 4-17]
[16.]
The evidence of the complainant was the clearest that a 9 year old
could give. Except for not being able to give the date
or season of
the year when the rape took place, except that it was on a hot day,
she was clear that it was the Appellant who raped
her. She denied
under cross examination that she had ever been raped before and
narrated the incident itself clearly. There can
be no suggestion that
she was coached to give this evidence. The criticism by the
Appellant's counsel that there is a discrepancy
in the child's
evidence for having said that the Appellant only transported her once
is unfounded. It is clear that this was merely
a matter of
misunderstanding the question. In any event it is not the Appellant's
case that he transported the child only once.
[17.]
A further criticism of her evidence was that the complainant says
that she did not bleed and the mother did not notice any
blood or
strange movement or gait after a serious rape that led to the
injuries reported in the medical examination report. I suppose
counsel for the Appellant is submitting that the healed injuries are
consistent with a rape that might have happened before the
Appellant
started transporting the complainant. Otherwise if the rape had taken
place on 25 August 2011 the mother would have noticed
blood on the
complainant's underwear. This argument cannot be taken far because
the complainant says that she did not bleed.
[18.]
After considering all the evidence and the submissions of the
Appellant's counsel, both in his written submissions and oral
submissions, I find that the Magistrate properly assessed the
evidence and applied the legal principles correctly. His judgment
cannot be seriously attacked.
[19.]
The duty of this Court on appeal has been stated numerous times. In S
v Hadebe and Others
1998 (1) SACR 422
(SCA) at 426A-J, Marais JA
stated:
Before
considering these submissions it would be as well as to recafi yet
again that there are well-established principles governing
the
hearing of appeals against findings of facts. In short, in the
absence of demonstrable and material misdirection by the trial
Court,
its findings of fact are presumed to be correct and will only be
disregarded if the recorded evidence shows them to be clearly
wrong.
The reasons why this deference is shown by appellate Courts to
factual findings of the trial Court are so well known that
restatement is unnecessary.
One
looks in vain for any such misdirection on the part of the Court a
quo in this matter. The evidence given in the Court below
was fairly
and accurately summarized in the judgment. Attention was given to the
detailed criticism of the evidence of the witnesses
who testified for
the State. They were evaluated in the context of the entire body of
evidence before the Court and appropriate
weight assigned to them in
the light of all the evidence in the inherent probabilities and
improbabilities of the case. Where caution
was needed it was
exercised and the Court not infrequently preferred to place no
reliance upon evidence for the State which might
possibiy not be
accurate. That being the case, the credibility findings and findings
of fact of the trial Court cannot be disturbed
unless the recorded
evidence shown them to be clearly wrong. In assessing whether or not
such is the case, the approach which commended
itself in, Moshephi
and Others vs R
(1980-1984) LAC 57
at 59 F-H seems appropriate in the
particular circumstances of the matter:
’
The
question for determination is whether, in the light of all the
evidence adduced at the trial, the guilt of the appellants was
established beyond reasonable doubt. The breaking down of the body of
evidence into its component parts is obviously a useless
aid to a
proper understanding and evaluation of it. But, in doing so, one must
guard against tendency to focus too intently upon
the separate and
individual part of what is, after all, a mosaic of proof. Doubts
about one aspect of the evidence led in a trial
may arise when that
aspect is viewed in isolation. Those doubts may be set at rest when
it is evaluated again together with all
the other available evidence.
That is not to say that a broad and indulgent approach is appropriate
when evaluating evidence. Far
from it. There is no substitute for the
detailed and critical examination of each and every component in a
body of evidence. But,
once that has been done, it is necessary to
step back a pace and consider the mosaic as a whole. If that is not
done, one may fail
to see the wood for the trees.
’
It
is so that there are aspects of the evidence given by some of the
police witnesses which are not satisfactory but they relate
in the
main to peripheral issues and matters of details. They are certainly
not of a kind which point to the existence of a deliberate
conspiracy
to falsely implicate the appellants. Counsel for the appellants
frankly and correctly acknowledge that, absent any reasonable
possibility of such a conspiracy, the appeal against the conviction
has to fail. I consider that the recorded evidence amply justifies
the finding of the trial Court that there is no reasonable
possibility that such a conspiracy existed.
[20.]
In the circumstances, the appeal is dismissed and the conviction is
confirmed.
SIGNED
AT PRETORIA ON THIS 20
th
DAY OF FEBRUARY 2014.
Malindi
AJ
Acting
Judge of the High Court
I
agree
TLHAPI
J
Judge
of the High Court