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[2014] ZAGPPHC 252
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Dlamini v S (A886/13) [2014] ZAGPPHC 252 (3 April 2014)
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 NORTH GAUTENG HIGH COURT, PRETORIA)
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO:
A886/13
DATE:
3/4/2014
In
the matter
between:
ERNEST
DLAMINI
Appellant
AND
THE
STATE
Respondent
JUDGEMENT
TEFFO
J
[1]
The appellant appeared in the regional court sitting at Benoni on 3
September 2013 where he faced one count of rape. He pleaded
not
guilty but was ultimately convicted of rape and sentenced to a term
of 10 (ten) years imprisonment. He was also declared unfit
to possess
a firearm.
[2]
The charge against the appellant was that he did unlawfully and
intentionally commit an act of sexual penetration with a female
person, to wit, A. M. (…….. years) on 20 May 2013 by
inserting his penis into her vagina and had a sexual intercourse
with
her without her consent.
[3]
He appeals against his conviction and sentence leave to appeal having
been granted by the court
a quo
.
[4]
The evidence in this matter is as follows: On 20 May 2013 the
complainant attended her boyfriend, T ‘s 21
st
birthday party at B’s house. She spent the night with her
boyfriend at B’s house in one of the bedrooms after the party
while B. and the appellant occupied the other rooms in the house. In
the early hours of the morning of the following day at about
3:00 her
boyfriend, T., left B.’s house and went to his homestead to
prepare himself for school. She remained sleeping at
B.’s
house. The appellant who opened the door for her boyfriend, T., when
he left B.’s house, immediately joined the
complainant where
she was sleeping and had sexual intercourse with her. She alleged
that the sexual intercourse with him was without
her consent while
the appellant maintained that she had consented.
[5]
According to the complainant after the appellant had joined her in
bed he said to her “Don’t you want us to warm
each other
up?” She told him “no, T. was coming soon”. The
appellant started touching her all over her body.
She called out B.’s
name. The appellant covered her mouth with a pillow and said if she
continues making noise or screaming,
he will call B. and they will
both rape her. She then promised him money so that he could leave
her. He said no he was not dum,
he had already served a sentence and
that he was going to kill her. He kept on trying to pull her pants
down. She was crying and
he said he would have sexual intercourse
with her by force. She begged him to stop but he did not want to
stop. He kept on pulling
her pants down while she pushed him away. He
eventually managed to put her pants down, completely off, forcefully
took off her
panties and ordered her to open her thighs. He then took
off the boxer shorts he was wearing and raped her.
[6]
After raping her he went back to the dining room to sleep. He did not
use a condom. In the morning B. came to the bedroom where
she was
sleeping to put the blankets away. He asked her whether she was fine.
She told him no, she wanted to tell him something.
Subsequent thereto
B. and the appellant left to buy the fat cakes. When they came back
the appellant came to her in the bedroom
and told her that what he
did was a mistake. He requested her to forgive him. He asked her if
she had forgiven him and she did
not respond: The appellant then went
out to sit with B. in the dining room where she also joined them. B.
asked her if she wanted
to have the fat cakes and she refused. From
there the appellant requested B. to walk him out as he was going to
work. They both
left and B. locked her inside the house.
[7]
She managed to leave B.’s house through the kitchen door and
went to an outside room at the back where she reported the
incident
to Z. who has since passed on. The deceased, Z., phoned B. He came
and she told him what happened. She borrowed Z.’s
phone and
phoned her mother to come and fetch her. Her mother came and they
reported the matter to the police. She was taken to
Daveyton clinic
for medical examination where she was examined by a nursing sister,
one Nothando Mbatha who recorded her findings
in a J88 that was
handed to court and formed part of the record.
[8]
Nothando Mbatha corroborated the complainant’s evidence to the
effect that she examined her on 20 May 2013 at Daveyton
Clinic and
completed a J88 where she recorded her findings. She also
corroborated her evidence about what happened as she was told
by the
complainant when she examined her. She testified that she did not
find fresh injuries on the complainant when she examined
her. The
complainant was sexually active and she did not find any evidence of
anal penetration. She noted a slimy vaginal discharge.
She concluded
that the fact that there were no injuries did not mean that no rape
took place.
[9]
The complainant’s mother also testified and corroborated her
evidence that she phoned her and asked her to come and fetch
her
where she was. She indeed went to the place and the complainant told
her that she was raped.
[10]
The appellant’s version was that he was the person who opened
the door for the complainant’s boyfriend when he
left B.’s
house in the early hours of the morning. After the complainant’s
boyfriend had left, he conceded that he
went to the bedroom where the
complainant was sleeping. He had earlier on proposed love to the
complainant and she told him that
it was not possible for her to be
with him as her boyfriend was at the party. He went to her after her
boyfriend had left and proceeded
from where he had left earlier on.
He wanted to have sex with her and she agreed on condition that
nobody should know. They slept
together and had sexual intercourse.
He disputed that the sexual intercourse was without consent and
maintained that she agreed
and he could see that she was interested.
After this he left her in the bedroom and went back to the dining
room where he was sleeping
initially.
[11]
In the morning he woke up, went to his parental home to have a bath.
He then took some money, fetched B. and they went to buy
fat cakes
for breakfast. B. then woke the complainant up and she joined them
for breakfast. Everything was fine when they had breakfast.
They had
a chat. He then asked B. to walk him out on his way to work. While he
was at work, after an hour or so, he received a
call that the
complainant’s mother was making noise that he had raped her. He
requested to knock of early. He went to B.’s
house but did not
find anybody. He then went to his parental home where he was
subsequently arrested.
[12]
He conceded under cross examination that he took advantage of the
complainant’s boyfriend’s absence and stated
that it was
good sex as the complainant looked like somebody who was enjoying
what was happening.
[13]
B. M. (B.) admitted that there was a party at his house of his
nephew, T. There were a lot of people who were drinking on the
evening of the 19
th
of May 2013 going into the early hours of the 20
th
.
After the party most of the people left while only a few remained in
the house. The appellant slept in the dining room, he slept
in his
bedroom while the complainant and her boyfriend slept in another
bedroom. He was asleep when complainant’s boyfriend
left around
3:00. He knew that he was going to leave to prepare himself for
school.
[14]
He woke up in the morning, took the blankets that the appellant was
using and put them in the room where the complainant was
sleeping.
The complainant did not say anything to him. She was still asleep at
that time. He went to buy the fat cakes with the
appellant. They came
back, sat in the dining room and had breakfast with the complainant.
He then walked the appellant out to work
and when he came back he
found that the kitchen door was open. There was also nobody in the
house. He went to look at the back
and found the complainant with Z.
(the deceased). The complainant was crying. He asked her what
happened. She told him that the
appellant raped her. When he asked
her why did she not scream or say something at the time of the rape,
she said the appellant
had closed her mouth with a pillow. She then
told him that she was going to tell her mother. She called her mother
and she came.
[15]
The appellant challenges his conviction on the following grounds:-
15.1
That the trial court erred in concluding that the complainant’s
evidence who was a single witness with
regard to the allegations of
rape was satisfactory in all material respects.
15.2
He contends that another court might find that the complainant’s
actions were not consistent with the
actions of someone who had just
recently been raped.
15.3
B.’s evidence did not corroborate the complainant’s
version but instead corroborated the appellant’s
version.
15.4
The appellant’s version was in a large part corroborated by the
state witnesses. It could not have
been rejected as not being
reasonably possibly true.
[16]
As regards the sentence it was submitted that it was shockingly
inappropriate taking into account the personal circumstances
of the
appellant.
[17]
Section 208 of the Act 51 of 1977 (“the Criminal Procedure
Act”) provides that an accused person may be convicted
of any
offence on the single evidence of competent witness. It is, however,
a well-established judicial principle that the evidence
of a single
witness should be approached with caution, his or her merits as a
witness being weighed against factors which militate
against his or
her credibility (Stevens v S 2005 (1) ALL SA (1) SCA).
[18]
The correct approach to application of the so-called ‘cautionary
rule’ was set out by Diemont JA in S v Sauls and
Others
1981
(3) SA 172
A at 180 E-G where he said the following:
“
There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of a single witness….The
trial judge will weigh his evidence, will consider its merits and
demerits and, having done so will decide whether there are
shortcomings
or defects or contradictions in his testimony, he is
satisfied that the truth had been told. The cautionary rule referred
to by
De Villiers JP in
R v Mokoena
1932 OPD 79
at 80
, may be a guide to a
right decision but it does mean that ‘the appeal must succeed
if any criticism, however slender, of
the witnesses’ evidence
were well founded….’ It has been said more than once
that the exercise of caution must
not be allowed to displace the
exercise of common sense”.
[19]
Nugent J in S v Meyden
1999 (1) SACR 447
(W) at 449 C- 450 b said the
following:
“
Purely
as a matter of logic, the prosecution evidence does not need to be
rejected in order to conclude that there is a reasonable
possibility
that the accused might be innocent. But what is required in order to
reach that conclusion is at least the equivalent
possibility that the
incriminating evidence might not be true. Evidence that incriminates
the accused and evidence which exculpates
him cannot both be true the
one is possibility true only if there is an equivalent possibility
that the other is untrue.
…
.
The proper test is that an accused is bound to be convicted if the
evidence establishes his guilt beyond a reasonable doubt, and
the
logic corollary is that he must be acquitted if it is reasonably
possible that he might be innocent. The process of reasoning
which is
appropriate to the application of that test in any particular case
will depend on the nature of the evidence which
the court has before
it. What must be borne in mind, however, is that the conclusion which
is reached (whether to convict or acquit)
must account for all the
evidence. Some of the evidence might be found to be unreliable, and
some of it might be found to be only
possibly false or unreliable,
but none may simply be ignored.”.
[20]
In R v Mokoena referred to
supra
De
Villiers JP made the following remarks at 80:
“
Now
the uncorroborated evidence of a single competent and credible
witness is no doubt declared to be sufficient for a conviction
by
[the person], but in my opinion that section should only be relied on
where the evidence of a single witness is clear and satisfactory
in
every material respects. Thus the section ought not to be invoked
where, for instance, the witness has an interest or bias adverse
to
the accused, where he has made a previous inconsistent statement,
where he contradicts himself in the witness box, where he
has been
found guilty of an offence involving dishonesty, where he has not had
proper opportunities for observation, etc”.
[21]
In S v De Villiers and Another 1999 (1)SACR 297 the court said the
following:
“
The
principle was that a complainant in a sexual case ought to make her
complaint at the first opportunity that it could reasonably
be
expected of her to do so. The basis of the explanation offered for
the delay in casu, namely that the first appellant’s
alleged
threat with a fire arm, had been rejected when the first appellant
was acquitted on the charge of pointing a firearm. It
was in any
event in comprehensible that three young girls, who had been
threatened with a firearm, would thereafter on two further
occasions
leave the safety of their parental homes to expose themselves to such
an ordeal”.
[22]
In S v Hammond
2004 (2) SACR 303
SCA the court held as follows:
“
Evidence
of a complaint in a sexual misconduct case at the earliest reasonable
opportunity is exceptionally admitted only as evidence
of consistency
in the account given by the complainant claiming to have been
assaulted: That is to say, it is admitted as a matter
going to the
complainant’s credit. It is not corroborative. Evidence of the
complaint does not amount to evidence of lack
of consent, nor its
absence to evidence of consent. The complainant’s testimony is
evidence of lack of consent, and the complaint
does no more than
support the credibility of the complainant in so testifying.
[23]
It is clear from the evidence that the complainant after being
allegedly raped at around 3:00 was able to make the first report
to
the deceased, Z., at around 8h30. One of the requirements to validate
the first report is to show consistency. The complainant
in a sexual
misconduct case must report voluntarily at the earliest reasonable
opportunity. What may be the earliest reasonable
opportunity may not
be the same with another person. A complainant who comes across a
male person after the rape may not be comfortable
to report the
incident to him.
[24]
The evidence of the first report is admissible not to corroborate the
evidence of the complainant with regard to the incident
of rape but
to indicate that the complainant is consistent in her conduct (S v
Hammond referred to
supra
).
[25]
Let us look at the conduct of the complainant after the alleged rape.
It is common cause between the parties that the sexual
intercourse
between the appellant and the complainant took place around 3:00.
After the sexual intercourse the appellant returned
to the dining
room where he was sleeping and left the complainant sleeping in the
bedroom alone. She did nothing. She instead continued
to sleep.
During the rape and at the time the appellant was busy touching her
all over her body, trying to pull away her clothes,
she testified
that she called B.’s name. According to B.’s evidence he
heard no screaming nor any calling of his name
in the house at the
time. She testified that the appellant put a pillow on her mouth.
When she told B. about the rape B. asked
her as to why she did not
scream or do something to alert him that things were not right. She
does not tell B. that she called
his name. She only told him that the
appellant put a pillow on her mouth. There is no evidence that she
tried to run away from
the house especially if one takes into account
that the complainant was meeting the appellant and B. for the first
time at the
time. They were both strangers to her. No evidence was
adduced to the effect that the appellant threatened her with
something for
her to submit to the sexual intercourse.
[26]
It is strange also that after the rape when the appellant had left
the complainant where she was sleeping, she still did not
do
anything. She continued to sleep until the morning. It cannot
be explained as to why after the appellant left her and
returned to
the dining room, she did not try to run away or even woke B. up and
tell him what happened.
[27]
It is not in dispute that in the morning B. came to the bedroom where
the complainant was sleeping to put the blankets that
the appellant
used. Although according to B. the complainant did not speak to him,
the complainant testified that B. asked her
whether she was fine and
she told him she was not and that she wanted to tell him
something. She then said B. then said he
was coming back as he was
going to buy some fat cakes with the appellant. One would have
expected a victim of rape to speak spontaneously
more especially
because B. invited her to speak. As to why she did not use that
opportunity, is not clear. The complainant could
have stopped B.
there and then and told him the story.
[28]
Further to the above after B. and the appellant had left to buy the
fat cakes, she continued to sleep and did nothing. When
they
returned, B. woke her up and she joined him and the appellant in the
dining room where they had breakfast. She still did not
tell B.
anything. According to the appellant everything was normal. They were
chatting. After this B. walked the appellant out
as he was going to
work and locked the complainant inside the house. That was the time
when the complainant managed to leave B.’s
house through the
kitchen door. In her evidence the complainant does not say what
prevented her to run away or alert somebody about
the rape when she
had the opportunities referred to above to do so.
[29]
When the state was asked this question, counsel for the state
submitted that people do not react the same way to situations.
He
further submitted that the complainant found herself at B.’s
house with strangers whom she did not trust, more especially
because
when she called B.’s name at the time the appellant was trying
to rape her, the appellant told her that if she continues
to make
noise he will call B. and they will both rape her. I do not agree
with this submission because if that was the situation,
the
complainant would not have told B. that she was not fine when he
asked whether she was fine and she would also not have told
him that
she wanted to tell him something. Further to the above if that was
the case, there was just no reason why she did not
run away or open a
window and make noise so that people like Z., the deceased, who
stayed in a room outside the house could hear
her and come to her
rescue.
[30]
Although B. testified that he found the complainant with Z. as the
complainant had testified, there was no first report before
the trial
court as the record does not show that the state made an application
that the first report be admissible under section
3 of the Hearsay
Evidence Act.
[31]
According to the complainant after she had reported the alleged rape
to Z., Z. phoned B. and B. came to them. This evidence
differs from
B.’s evidence which was to the effect that when he came back
after walking the appellant out to work, he did
not find the
complainant in the house. He proceeded to the back of the house
outside and found the complainant with Z., crying
and that was when
she reported to him that she was raped.
[32]
The J88 does not advance the state’s case any further. The
complainant slept with her boyfriend a few minutes before
she slept
with the appellant. No DNA evidence was produced before court to
prove the allegations of rape.
[33]
The complainant’s conduct as referred to
supra
was not consistent with the conduct of a person who has just been
raped. There must be something to convince the court that there
is an
explanation for not reporting the alleged rape immediately.
[34]
The complainant herself testified that she consumed alcohol the whole
of Saturday and Sunday at the party. It is clear from
the evidence
that alcohol played a role. Because of the alcohol it is reasonably
possible that the complainant could have consented
to having sexual
intercourse with the appellant.
[35]
If one takes all the evidence in its entirety and the conduct of the
complainant after the alleged rape, it cannot be concluded
that her
evidence with regard to the alleged rape was clear and satisfactory
in all material respects.
[36]
I therefore find that the court
a quo
misdirected itself by concluding that the complainant’s
evidence was clear and satisfactory in all material respects and
therefore rejecting the evidence of the appellant as not being
reasonably possibly true. I further find that the court a quo erred
when it rejected the appellant’s evidence. The appellant’s
version could have been reasonably possibly true.
[37]
The court
a quo
should not have convicted the appellant on the single evidence of the
complainant.
[38]
In the result I propose the following order:
38.1
The appeal against the conviction and sentence of the appellant is
upheld.
38.2
The conviction and sentence of the appellant by the court a quo are
hereby set aside and replaced with the
following:
‘
The
appellant is found not guilty and discharged’
__
___________________________________
M
J TEFFO
JUDGE
OF NORTH GAUTENG HIGH COURT
PRETORIA
I
agree
_______________________________________
R
TOLMAY
JUDGE
OF THE NORTH GAUTENG HIGH COURT
PRETORIA
On
behalf of the Appellant:
K.P.
Tlouane
Instructed
by
Pretoria Justice Centre
On
behalf of the State:
K
M Mashile
Instructed
by
The Director of Public Prosecutions
DATE
OF HEARING
17
March 2014
DATE
OF JUDGEMENT
April
2014