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[2014] ZAGPPHC 163
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Semelane v S (A756/2013) [2014] ZAGPPHC 163 (4 April 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: A756/2013
DATE:
4 APRIL 2014
In
the matter between
SIBUSISI
VICTOR
SEMELANE
.......................................................................
APPELLANT
and
THE
STATE
....................................................................................................
RESPONDENT
JUDGMENT
Date
of Hearing: 25 MARCH 2014
Date
of Judgment: 4 APRIL 2014
KUBUSHI,
J
[1]
The
appellant a 27 year old man was arraigned in the regional court held
in Oberholzer of having raped a 47 year old woman. He pleaded
not
guilty and gave a plea explanation of intercourse with consent. The
trial court returned a verdict of guilty. During the plea
proceedings
the trial court confirmed that the prescribed minimum sentence
legislation was applicable in the circumstances of this
case.
However, having concluded that there were substantial and compelling
circumstances warranting deviation from the said prescribed
minimum
sentence, the trial court sentenced the appellant to imprisonment for
8 years and declared him unfit to possess a firearm.
The appellant is
before us leave to appeal having been granted against the conviction
and the sentence.
[2]
The
state's case is that the complainant was on the day in question
accosted by the appellant whilst taking clothes which she had
removed
from the washing line into the house. The appellant who was naked
identified himself to the complainant and then asked
her to keep
quiet and to undress herself. He then grabbed the complainant and a
struggle ensued, but eventually managed to undress
her and had sexual
intercourse with her without her consent. Immediately when the
appellant left, the complainant screamed and
a neighbour who heard
the scream rushed to her assistance. The matter was reported to the
police and the complainant was also examined
by a medical doctor.
With the consent of the defence the state handed in the DNA results
report and J88 medical examination report
[the J88 report].
[3]
The
appellant's version is that he had sexual intercourse with the
complainant with her consent. The complainant borrowed R50 from
him
to buy matches and candles and promised to repay her by having sexual
intercourse with her.
AD
CONVICTION
[4]
The
main ground of appeal is that the trial court erred in accepting the
version of the state and rejecting that of the appellant.
The
appellant's counsel contends that the trial court should not have
accepted the respondent's version which consisted of the
evidence of
the complainant who was a single witness. According to counsel the
complainant's evidence was not satisfactory in all
respects because
of the discrepancies in it and it was not corroborated. He referred
us to the following discrepancies in the evidence
which according to
him made the complainant an unreliable witness:
[5]
Firstly,
the information provided by the complainant to the doctor who
attended to her after the incident in paragraph D.10 of the
J88
report is that she had consensual sexual intercourse on the 15
October 2010 which was sixteen days before the current incident.
However, the DNA result report shows a mixed result with the
appellant being one of the donors. The counsel's contention is that
this information cannot be relied on because the semen would not have
lasted for long. In this regard he referred me to the judgment
in
S
v Maqhina
2001
[1] SACR 241 (T).
[6]
Secondly,
the complainant informed the doctor that the appellant threatened to
kill her if she did not stop making noise. This evidence
was not
tendered in court neither did the complainant inform the police that
the appellant threatened to kill her.
[7]
Lastly,
the complainant’s evidence is that she struggled with the
appellant and that the appellant strangled her with a T-shirt
during
the incident. Yet during examination the doctor did not note any
injury which is indicative of the struggle or of being
throttled.
[8]
The
crisp issue before us is whether or not the trial court was correct
to accept the respondent's version which was based on the
evidence of
the complainant as a single witness to the commission of the offence
and to reject that of the appellant as not reasonably
probably true.
[9]
The
state in proving its case relied on the evidence of the complainant
who the trial court, correctly so, considered a single witness.
The
appellant's contention is that the trial court should not have relied
on that evidence since it was not satisfactory in all
material
respects and was not corroborated.
[10]
It
is trite that an accused may be convicted on the evidence of a single
competent witness. The evidence of a single witness will
normally be
accepted if it is satisfactory in every material respects and is
corroborated. There is no rule of thumb test or formula
to apply when
it comes to the consideration of the credibility of such a witness.
The test in the final analysis is whether the
court after proper
consideration of the evidence with the caution required in law is
beyond all reasonable doubt satisfied that
the story told is
essentially true.
S
v Sauls & Others
1981 [3] SA 172 [A] at 180C - F and
S
v Miggel
2007 [1) SACR675 (C).
[11]
In
determining whether the evidence is satisfactory the trial court's
approach to such evidence is with caution. When applying the
cautionary rules courts should warn themselves of the dangers
inherent in such evidence and should look for safeguards like
corroboration
in the evidence reducing the risk of wrong conviction.
By corroboration is meant other evidence which supports the evidence
of
the complainant and which renders the evidence of the accused less
probable on the issues in dispute. The safeguard need not consist
of
corroboration, but, if corroboration is relied upon as a safeguard,
it must go the length of implicating the accused in the
commission of
the crime. See
S
v Avon Bottle Store (Pty) Ltd And Others
1963 [2] SA 389 [A] at 393F - G and
S
v Gentle
2005
(1] SACR 420
(A) para [18].
[12]
It
is common cause that the complainant in this instance was a single
witness in regard to the commission of the offence. The trial
court
had to treat her evidence with the required caution. The best
indication that there was proper appreciation of the risks
is
naturally to be found in the reasons furnished by the trial court.
The trial court must demonstrate that it heeded the warning
and that
it was well aware of the dangers of wrong conviction by its treatment
of the evidence. See
R
v Manda
1951 (3] SA 158
(AD] at 163 E - F.
[13]
It
is apparent from the trial court's reasons for judgment that it was
aware that it ought to approach the complainant's evidence
with
caution. It looked for safeguards in the form of corroboration in the
evidence of the complainant's neighbour and rightly
so, found none.
The trial court was correct to have concluded that the evidence of
the complainant was not corroborated by that
of her neighbour. The
complainant's evidence is that she screamed immediately the appellant
left the house. On the contrary, the
evidence of the neighbour is
that she heard a scream coming from the yard of the complainant and
she immediately went to investigate.
She found the complainant lying
near the door of her shack crying and she told her that Sibusiso
raped her. This evidence in my
view does not confirm the evidence of
the complainant that the appellant had sexual intercourse with her
without her consent. There
are some unexplained occurrences
surrounding this specific incident. It is not clear from the evidence
at what stage the complainant
screamed. According to her she screamed
immediately when the appellant left the house. If this is so, she
must have screamed whilst
still in the house. However, her neighbour
says that the scream came from the yard. She rushed to the
complainant's assistance
immediately she heard the scream and found
the complainant lying next to the door of her house. The evidence
does not say why the
complainant came to lie where her neighbour
found her nor is there an explanation why she was lying there. These
aspects were not
canvassed during trial. This testimony does not in
my view go the length of implicating the appellant in the commission
of the
crime.
[14]
The
trial court, however, wrongly so, accepted the complainant's evidence
on its conclusion that the neighbour's evidence can disprove
the
defence of consent. This conclusion, in my opinion, is factually
groundless. The complainant's neighbour testified that she
did not
see the act itself and did not know the circumstances surrounding the
rape and I have already ruled out the scream as evidence
implicating
the appellant in the commission of the crime. It was therefore
incorrect of the trial court to have accepted the respondent's
version based merely on this conclusion.
[15]
1
should also state that there was no evidence of injuries which could
have perhaps corroborated the evidence of the complainant
that the
sexual intercourse was without her consent. It is common cause that
according to the doctor's testimony and the J88 report,
no injuries
were noted when the complainant was examined. The complainant did not
sustain any physical injuries, defence type injuries
or genital
injuries. His evidence, therefore, does not confirm the complainant’s
case that there was a struggle between her
and the appellant or that
she was throttled or eventually raped. I have taken note and am in
agreement with the submission by the
respondent’s counsel, that
lack of injuries to the complainant's genitals is in the
circumstances of this case a neutral
factor - the complainant at 47
years is an adult and sexually active. However, genital injuries
would have provided the necessary
corroboration.
[16]
From
the record it is clear that the complainant’s evidence was not
satisfactory in every material respect. There are discrepancies
between the information noted in the J88 report read together with
the DNA results report and the evidence she tendered in court.
The
discrepancies were succinctly stated by the appellant's counsel and
appear in paragraph [5] to [7] of this judgment. I shall
therefore
not repeat them here.
[17]
The
J88 report was handed in court by the respondent. It should be
accepted therefore that the prosecutor admitted the correctness
of
what was stated therein. It is thus not open to the respondent's
counsel to challenge, as she sought to do during the hearing,
the
weight to be given to the contents of the J88 report at this late
stage. Any challenge to the contents of the report should
have been
taken up with the doctor at the time he tendered his testimony, but
it was not done. Even so this testimony was tendered
by the
respondent It is indeed so that the complainant must have been lying
by informing the doctor that she had consensual sexual
intercourse
sixteen days before this incident. If it was so, the DNA result
report would not have shown a mixed result. The semen
of the 15
October 2010 could not have lasted for that long in the complainant's
vagina. On this issue see the unreported judgment
in S
v
Tau
case number KS 3/2012 (Northern Cape High Court Kimberley] dated 11
September 2013 at para 26. Consequently, as it now stands,
the J88
report shows the complainant as an unreliable witness. This is a
serious discrepancy because the evidence was taken into
account
during trial when determining the reliability or otherwise of the
complainant’s evidence.
[18]
The
contradiction between the complainant's evidence and that of the
doctor who testified that the complainant told him that the
appellant
threatened to kill her if she did not stop making noise renders her
version unacceptable as well.
[19]
The
submission by the respondent's counsel that the discrepancies do not
exonerate the appellant or suggest that the complainant
is not
telling the truth does not take the respondent's case any further.
The onus
is
on the respondent to prove its case beyond reasonable doubt and that
burden in my view was not discharged. When compared with
that of the
appellant, the appellant's evidence is more satisfactory as there are
no discrepancies in his evidence.
[20]
The
probabilities favour the appellant as well. The complainant wants
this court to believe that she was raped by the appellant
yet there
are various unexplained occurrences in her story as I have already
stated in paragraph [13] of this judgment. Even though
it is
acceptable that it was at night when the incident occurred, however,
the story that the appellant approached the complainant
and also left
her house without any clothes on appears far-fetched. It seems
unlikely that the appellant would have
undressed
outside the house and also went to dress up outside. It also does not
make sense that the appellant, if he intended to
rape the
complainant, would have provided her with his correct name.
[21]
In
the antithesis the conduct and/or behaviour of the appellant after
the incident is not indicative of a person who committed an
offence.
He continues to go to work. He voluntarily contacted the police and
took positive steps to inform the Street Committee
about the
incident. His evidence, which is unchallenged, is that he first
learnt from one Sibi that he is wanted by the police
for the rape of
the complainant. He goes to Sibi's mother to confirm whether Sibi was
telling the truth. He requests Sibi's mother
to accompany him to the
complainant to go and verify the allegation. Sibi's mother advised
him to report the matter to the Street
Committee. He goes together
with Sibi's mother to report the incident. The first time they did
not find the Street Committee member
to whom he was to make the
report. The following day after work he goes to fetch Sibi's mother
and goes with her to the Street
Committee where he reported the
matter. He was at a later date summoned to the Street Committee where
he met the complainant and
was given the telephone number of the
detective who was handling the matter. He also received about five
messages on his cell phone
from someone he did not know who turned
out to be the police officer handling the complainant's case. He
phoned her back and made
arrangements to meet with her. He indeed
kept the appointment and that is when he was arrested.
[22]
The
contention by the respondent’s counsel that the appellant’s
version is suspect because he did not disclose his defence
to
Lieutenant Mashiane does not blemish his version at all. There is no
duty on the appellant to prove anything his version should
only be
reasonably probably true.
[23]
In
this instance, the probabilities are stacked in favour of the
appellant and he should in my view be given the benefit of the
doubt.
It is said that the natural sympathy which one has for a woman who
says she was raped cannot be allowed to play any role
in deciding
whether the onus
of
proof has been satisfied. In this instance it has not been satisfied
and the appeal ought to succeed.
[24]
Considering
the evidence on record as a whole, my view is that the trial court
misdirected itself in accepting the version of the
respondent and
rejecting that of the appellant. This misdirection is of a
sufficiently serious nature to constitute an irregularity
leaving
this court at large to reconsider the conviction afresh. And having
concluded that the complainant's evidence, on which
the respondent
based its case, is uncorroborated and is not satisfactory in all
material respects, it should be rejected. The guilt
of the appellant
was not proved beyond reasonable doubt and as a result the conviction
falls to be set aside.
[25]
I
therefore make the following order:
a.
The
appeal is upheld.
b.
The
conviction and sentence are set aside.
E.M.
KUBUSHI
JUDGE
OF THE HIGH
COURT
I
concur
P.L.C.
MASETI
ACTING
JUDGE OF
THE
HIGH COURT
APPEARANCES
On
behalf of the appellant: Mr J Van Rooyen
Instructed
by:
PRETORIA
LEGAL AID
2
nd
Floor, FNB Building
Church
Square
PRETORIA
0001
On
behalf of the respondent: Adv S D Ngobeni
Instructed
by:
DIRECTOR
OF PUBLIC PROSECUTIONS
Presidential
Building
28
Church Square
PRETORIA
0001