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[2014] ZAGPPHC 1068
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Duba v The State (A963/2013) [2014] ZAGPPHC 1068 (12 May 2014)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NO: A963/2013
DATE:12/5/2014
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
________________
__________________
DATE
JUDGE: AC BASSON
In
the matter between:
WISEMAN
BONGANI
DUBA
Appellant
vs
THE
STATE
Respondent
JUDGMENT
BASSON,
J:
[1]
The appellant was convicted in the Regional Court of Carolina,
Mpumalanga on one count of housebreaking with the intent to rape
and
rape, one count of robbery and one count of theft. He pleaded not
guilty on all charges. He was convicted and sentenced on
1 October
2012 and sent to thirteen years imprisonment on count one, and one
year imprisonment on count 2 and 3, The court ordered
that the
sentenced in respect of count 2 and 3 run concurrently with the
sentenced imposed in respect of count 1. The presiding
magistrate
granted leave to appeal against conviction and sentence.
[2]
I do not in tend to summarise the facts giving rise to the conviction
in detail and will suffice with a brief summary of the
evidence. The
complainant was a 43 year old female at the time of the incident. She
lived with her children and grandchildren at
home. She testified that
she was sleeping in one room with her daughter and two small
children. Her other son, A, was sleeping
elsewhere in the house. She
testified that they heard a noise in the house. During the night the
complainant woke her daughter
(B) to enquiry whether she had closed
the kitchen door. The complainant testified that she then called her
son A (who was in a
room in the house). A did not answer the phone
but they could hear A’s cell phone vibrate outside the room.
The complainant
thereafter phoned M M (the complainant’s
stepson who resided elsewhere) for help. The bedroom door opened and
the appellant
entered the room. B tried to hide under the bed. The
complainant was taken to the kitchen where she was raped. B had in
the interim
fled to the neighbours for help. The complainant
testified that the appellant told her that she must tell her children
to keep
quiet otherwise he was going to shoot all of them. When M
arrived he chased the appellant but was unable to catch him. M
confirmed
in his evidence that the complainant had phoned him and
that she had told him there was a noise in the house. He testified
that
he got up and ran to the house with a stick. He heard a noise in
the kitchen and saw a person running out of the kitchen. He testified
that he chased this person and tried to hit him with a stick but the
person had a knife in his hand.
[3]
It was not in dispute that the appellant had sexual intercourse with
the complainant in the kitchen. It was also not in dispute
the
appellant had the two cell phones that he had taken from the
complainants’ house and that the two cell phones were returned
the next day. It is further common cause that the complainant had
sustained injuries to her head.
[4]
The appellant’s version was that he and the complainant had a
relationship and that sexual intercourse was consensual.
He testified
that because the complainant was much older than him they had to keep
the relationship a secret as it was taboo in
their culture. He
testified that he often went to her place. This was vehemently denied
by the complainant who testified that she
has never seen the
appellant before this evening and that she did not have a
relationship with someone who was the same age of
some of her
children.
[5]
The appellant, however, had different and contradictory versions
about the events of the evening and about his relationship
with the
complainant. He gave,
inter alia
different versions about the
arrangements that were allegedly made earlier the day. At first he
stated that he walked past the complainant’s
house earlier the
day and that he told the complainant that he would come to her place
in the evening. Then he stated it was the
complainant who had invited
him to come over the evening. However, in cross-examination it was
put to the complainant that she
was the one that contacted him and
invited him over. He also testified that the complainant had told him
that when he comes over
he will find the door unlocked as usual. He
then found the door opened and walked to her bedroom. However, in his
plea explanation
the version is that it was the complainant who
opened the door for him when he arrived. The appellant also had a
farfetched version
that the complainant had told him that she was
pregnant. This evidence was not only denied by the complainant but
also supported
by other state witnesses who testified that this was
untrue.
Evaluation
of the merits of the appeal
[6]
It is trite
that the onus rests on the State to prove the guilt of an accused
beyond reasonable doubt. If the version of the accused
is reasonably
possibly true, the accused is entitled to an acquittal. It is also
trite that the mere fact that an accused lie in
Court or gives
contradictory evidence, it does not follow that the accused is guilty
or that the evidence of the complainant is
necessarily reliable and
true.
[1]
[7]
The Court has also taken into account that the complainant was a
single witness in respect of the rape incident. However, although
the
complainant was a single witness in respect of the incident,
important corroborative evidence was led by two of the complainant’s
children and her stepson as to the events prior and after the rape
which supports the contention of the complainant that she was
raped
and which cast serious doubt on the version of the accused that he
had a consensual sexual relationship with the complainant.
[8]
What is
required of a Court is to properly evaluate all the evidence bearing
in mind the fact that the complainant was a single
witness
(cautionary rule)
[2]
: I am also
mindful of what the Appellate Division (as it then was) said about
the application of the cautionary rule:
S
v Saults
1981(3) SA 172 (A):
“
There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness (see
the
remarks of RUMPFF JA in S v Webber1971 (3) SA 754 (A) at 758). The
trial Judge will weigh his evidence, will consider its merits
and
demerits and, having done so, will decide whether it
is
trustworthy and whether, despite the fact that there are shortcomings
or defects or contradictions in the testimony, he is satisfied
that
the truth has been told. The cautionary rule referred to by DE
VILLIERS JP in 1932 may be a guide to a right decision but
it does
not mean "that the appeal must succeed if any criticism, however
slender, of the witnesses' evidence were well founded"
(Per
SCHREINER JA in R v Nhlapo (AD 10 November 1952) quoted in R v
Bellingham
1955
(2) SA 566
(A)
at
569). It has been said more than once that the exercise of caution
must not be allowed to displace the exercise of common sense.”
[9]
It is clear from the judgment that the magistrate has evaluated the
evidence carefully as is evidenced by the detailed summary
of the
evidence. The presiding officer was also acutely alive to the need to
approach the evidence of the complainant with the
requisite caution
in circumstances where she was a single witness in a rape allegation.
[10]
The
magistrate also made significant credibility findings in favour of
the complainant. I am of the view that these credibility
findings
were justified despite some contradictions and inconsistencies in her
evidence. Furthermore in respect of the events before
and prior to
the rape incident, the complainant’s evidence was corroborated
in material aspects by her children. In respect
of the appellant the
magistrate stated in her judgment that the appellant made a
“
besondere
swak indruk op die hof as ‘n getuie
”.
In this regard the magistrate specifically referred to the various
contradictions in his evidence. The magistrate also
concluded that
the appellant’s version was highly unlikely and that could not
be reconciled with any form of logic, I am
of the view that this
credibility finding are not only justified but borne out by the
record. Furthermore, in the absence of demonstrable
and material
misdirection by the trial court, its finding of fact are presumed to
be correct and will only be disregarded if the
recorded evidence
shows them to be clearly wrong.
[3]
[11]
I can therefore find no reason to interfere with the conclusion
reached by the magistrate in respect of conviction.
[12]
In respect
of sentence I can equally find no reason to interfere with the
sentence imposed on the appellant. The magistrate took
into account
the fact that the complainant was assaulted and that she had
sustained injuries. The appellant raped the complainant
was she was
in her home and whilst her children was present. He also showed no
remorse but instead tried to embarrass her by averring
that they had
a secret love affair. The appellant also has a precious conviction of
theft. More importantly, this Court cannot
ignore the fact that the
complainant was raped. It is trite that this is a serious offence. In
this regard I am in full agreement
with the sentiments expressed by
the Supreme Court of Appeals in
S
v Chapman:
[4]
“
Rape
is a very serious offence, constituting as it does a humiliating,
degrading and brutal invasion of the privacy, the dignity
and the
person of the victim. The rights to dignity, to privacy and the
integrity of every person are basic to the ethos of the
Constitution
*
and
to any defensible civilisation. Women in this country are entitled to
the protection of these rights. They have
a
legitimate claim to walk peacefully on the streets, to enjoy their
shopping and their entertainment, to go and come from work,
and to
enjoy the peace and tranquillity of their homes without the fear, the
apprehension and the insecurity which constantly diminishes
the
quality and enjoyment of their lives.”
[13]
Although an
effective
sentence of 13 years' imprisonment is undoubtedly a severe sentence,
I am not persuaded that the magistrate misdirect
himself in any
relevant respect in imposing that sentence.
In this regard I am also in agreement with the sentiments expressed
in
S v
Chapman
[5]
“
The
Courts are under a duty to send a clear message to the accused, to
other potential rapists and to the community: We are determined
to
protect the equality, dignity and freedom of all women, and we shall
show no mercy to those who seek to invade those rights.”
[14]
In the event the appeal against conviction and sentence is dismissed.
__________________
AC
BASSON
JUDGE
OF THE HIGH COURT
I agree
__________________
W
HUGHES
JUDGE
OF THE HIGH COURT
[1]
See also
S
v MBULI
2003 (1) SACR 97
(SCA):
“
[57]
It is trite that the State bears the onus of establishing the guilt
of the appellant beyond reasonable doubt, and the converse
is that
he is entitled to be acquitted if there is a reasonable possibility
that he might be innocent (R v Difford
1937 AD 370
at 373, 383). In
S v Van der Meyden
1999 (2) SA 79
(W), which was adopted and
affirmed by this Court in S v Van Aswegen
2001 (2) SACR 97
(SCA), I
had occasion to reiterate that in whichever form the test is applied
it must be satisfied upon a consideration of all
the evidence. Just
as a court does not look at the evidence implicating the accused in
isolation to determine whether there is
proof beyond reasonable
doubt, so too does it not look at the exculpatory evidence in
isolation to determine whether it is reasonably
possible that it
might be true. In similar vein the following was said in Moshephi
and Others v R LAC (1980 - 1984) 57 at 59F
- H, which was cited with
approval in S v Hadebe and Others1998 (1) SACR 422 (SCA) at 426f -
h:
'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 a body of
evidence into its component parts is obviously a useful
aid to a
proper understanding and evaluation of it. But, in doing so, one
must guard against a 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 a 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.'”
[2]
See
S
v Jackson
1998 (1) SACR 470
(SCA at 476E – F where the Court held that
the cautionary rule does not have general application in sexual
assault cases:
“
In
my view, the cautionary rule in sexual assault cases is based on an
irrational and out-dated perception. It unjustly stereotypes
complainants in sexual assault cases (overwhelmingly women) as
particularly unreliable. In our system of law, the burden is on
the
State to prove the guilt of an accused beyond reasonable doubt - no
more and no less. The evidence in a particular case may
call for a
cautionary approach, but that is a far cry from the application of a
general cautionary rule”
[3]
S
v Hadebe and Others
1997 (2) SACR 641
(SCA) at 645G - H: “ …
..
the credibility findings and findings of fact of the trial Court
cannot be disturbed unless the recorded evidence shows them
to be
clearly wrong.
[4]
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA) at 354C – D.
[5]
Ibid at 345C – D.