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[2014] ZAGPPHC 287
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Masango v S (A855/2013) [2014] ZAGPPHC 287 (15 May 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION. PRETORIA)
Case
number: A855/2013
Date:
l5May 2014
In the matter
between:
PATRIC SBISISO
MASANGO
...............................................
Appellant
And
THE
STATE
.........................................................................
Respondent
JUDGMENT
PRETORIUS J.
[1] The appellant
was convicted of the crime of rape, read with the relevant provisions
of the
Criminal Law Amendment Act 105 of 1997
. He was sentenced to 10
years imprisonment by the magistrate at Siyabuswa Regional Court. He
was legally represented at the trial.
Leave to appeal to
the High Court was dismissed, but leave to appeal against conviction
was granted on petition to the High Court.
[2] The appeal court
has limited powers to interfere with a decision made by a magistrate.
Counsel for the appellant argues that
the magistrate misdirected
himself when finding that the state had proved its case beyond
reasonable doubt.
[3] In this case the
state relied on the evidence of a single witness, the complainant.
Her evidence was that she and her boyfriend
had both attended a party
on 2 October 2010. They went to sleep thereafter at the appellant’s
parents’ house. They
were both drunk when they went to bed.
They were both sleeping on the same bed.
[4] She subsequently
woke up and found the appellant lying on top of her and he was raping
her. Her evidence was that he had been
raping her for a period of 30
minutes, it could also have been for an hour. She took out her
cellphone and switched it on so that
she could see the perpetrator in
the light of the cellphone. She saw the appellant and asked him “what
are you doing”?
He got up, put on his trousers and ran away.
[5] Her boyfriend
then woke up and chased the accused. He had not noticed anything
before. He apprehended the appellant and assaulted
him. The defence
objected to the J88 form being handed up to court and the prosecutor
indicated that he would call the doctor, which
was never done. The
state chose not to call the boyfriend of the complainant, although he
could have corroborated the complainant’s
evidence and was
present at court. The state thus relied on the evidence of a single
witness.
[6] The defence
handed in the result of DNA tests, to which the state had no
objection. The conclusion by the Forensic Science Laboratory
was:
“The donor of
the reference blood sample “P Masango” (05D4BB8558MX) was
excluded as the donor of the DNA on the
exhibits (09D1AD5464XX).”
Thereby the appellant was excluded.
[7] The appellant
denied raping the complainant. In S v Sauls
1981 (3) SA 172
(A) at
180 E - G Diemont JA held:
“There is no
rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness.
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".
It has been said more than once that the exercise
of caution must not
be allowed to displace the exercise of common sense.’’
(Court’s emphasis)
[8] The appellant’s
evidence was that he had gone to sleep at his parental home, when the
complainant asked him what he was
doing. He went out of the room and
found the complainant and her boyfriend in the passage. The boyfriend
asked him what had he
done and assaulted him. The appellant denied
raping the complainant.
[9] In the judgment
the magistrate relied on the fact that the appellant confirmed that
the complainant had told her boyfriend of
the rape. The magistrate
did not make any adverse finding that the state failed to call the
boyfriend to corroborate her evidence
as to where and when the
boyfriend had seen the appellant the first time that night. The
finding that:
“To me she
appeared to be a credible witness who was straightforward, despite
being cross-examined she stuck to what she knows
and what happened. ”
is in contrast to what had taken place while she was giving evidence
where the magistrate, on more than
one occasion, had admonished her
not to “beat about the bush”and to “be specific, be
specific.”
[10] The finding
that the doctor, would only have been able to give evidence as to
whether there had been penetration cannot be
the reason for accepting
that it was not necessary to call the doctor. It is even more of a
problem where the DNA evidence is that
it was not the appellant’s
DNA which was sent to the forensic laboratory and further samples
from more people were requested.
[11] In S v Nyabo
2009 (2) All SA 271
(SCA) at paragraph 22 Heher JA held:
“A complainant
in a rape case who is a single identifying witness needs and deserves
close attention from police and prosecution.
Unless she is given it
her chances of obtaining due justice are diminished. In this case
both services failed her. Both lacked
insight into what was required
for a successful prosecution.” (Court’s emphasis)
[12] This dictum
applies in the present case. Here both the police and the prosecution
failed the complainant.
[13] It is common
cause that the complainant was drunk at the time of the incident.
According to her the appellant had raped her
continuously for 30
minutes. The court finds this highly improbable. It is also highly
improbable that her boyfriend did not notice
anything whilst she was
lying on the bed next to him, being raped for 30 minutes.
[14] There is no
indication on record that the magistrate had taken into consideration
that the complainant was a single witness
and that he had found her
evidence clear and satisfactory in all material respects. The
magistrate did not indicate that he was
dealing with a single witness
and that he was aware that he had to deal with a single witness with
caution. This court finds that
the magistrate evaluation of the
evidence was wrong and that the magistrate had misdirected himself
when finding that the state
had proved its case beyond a reasonable
doubt.
[15] In this
instance there was other evidence which should have been lead by the
state to corroborate the complainant’s evidence.
There are no
objective, corroborating facts to consider and to confirm the
complainant’s evidence. The evidence of her boyfriend
could
have corroborated her evidence as to where the accused was, the
assault on the boyfriend and the conditions in the bedroom.
It is
even more important where the DNA evidence did not link the appellant
to the rape at all.
[16] The court finds
that the state had not proved its case beyond a reasonable doubt.
[17] I propose that
the appeal be upheld.
[18] The following
order is made:
1. The appeal
against the conviction is upheld;
2. The conviction
and subsequently the sentence of the appellant is set aside.
Judge C Pretorius
I agree,
Judge NB Tuchten
Case
number :A855/2013
Heard on : 12 May
2014
For the
Appellant : Adv RS Matlapeng
Instructed by :
Legal Aid
For the
Respondent : Adv
Instructed by :
Director of Public Prosecutions
Date of
Judgment : 15 MAY 2014