S v Nonyane (256/05) [2006] ZASCA 21; [2006] SCA 23 (RSA) (20 March 2006)

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[2006] ZASCA 21
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S v Nonyane (256/05) [2006] ZASCA 21; [2006] SCA 23 (RSA) (20 March 2006)

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THE
SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case number : 256/05
Not reportable
In
the matter between :
N
P NONYANE APPELLANT
and
THE
STATE RESPONDENT
CORAM : SCOTT, CLOETE, VAN HEERDEN JJA
HEARD : 2 MARCH 2006
DELIVERED : 20 MARCH 2006
Summary: Rape ─ version of complainant not
corroborated ─ no reason to
reject appellant’s evidence and that of defence
witness ─ guilt not proved.
Neutral citation: This judgment may be referred to as
Nonyane v The State
[2006]
SCA 23 (RSA).
_________________________________________________________
JUDGMENT
CLOETE JA
/
CLOETE JA:
[1] After this appeal was heard and on the same day we
made an order allowing the appeal and setting the conviction and
sentence
aside. By then the appellant had been in custody for four
and a half years. These are the reasons for the order.
[2] The appellant, a teacher 39 years old at the time of
the trial, was convicted by the regional magistrate at Itsoseng of
raping
an 11 year old schoolgirl. The appellant was then committed
for sentence to the High Court of Bophuthatswana in terms of the
provisions
of s 52(1) of the
Criminal Law Amendment Act 105 of 1997
.
Friedman JP sentenced the appellant to life imprisonment. As Friedman
JP had retired, the application for leave to appeal came
before
Mogoeng JP, who refused it on 26 November 2004. Reasons for the order
were only furnished on 10 March 2005. They had been
requested in
November 2004. Despite reminders in January and February 2005, there
was a delay before the request was put before
the Judge President. It
appears from the reasons given by Mogoeng JP that the cause of the
delay is being investigated, and rightly
so. Leave to appeal was
granted by this court on 28 April 2005.
[3] The appellant’s version was that on the day in
question she was passing the house of the appellant on her way home
from school
and he sent her to purchase a cold drink. He thereafter
sent her to purchase four cigarettes. On her return she watched a
video.
She went to the toilet, after which the appellant forced her
into a bedroom and raped her. She said that she did not see Mr Thabo

Lethokwe, who was called as a defence witness, at all on the day in
question. Four months later she was taken to a clinic because
she was
suffering from a vaginal discharge. The cause of this condition was
not established and no attempt was made to link it
to the alleged
rape.
[4] The appellant denied having had sexual intercourse
with the complainant. He gave a different sequence of events. He said
that
he sent the complainant to buy a cold drink and on her return,
she ate what he had prepared for her and she watched a video. After

Lethokwe arrived, he sent her to the shop again to purchase four
cigarettes for Lethokwe whereafter she continued watching the
video.
She left before he (the appellant) and Lethokwe were collected from
the appellant’s house by a third person in his motor
vehicle. These
events, said the appellant, had happened on a Sunday.
[5] Lethokwe confirmed the sequence of events to which
the appellant testified, namely, that when he arrived, the
complainant was
eating and watching a video; that the appellant sent
the complainant to purchase cigarettes for him (Lethokwe); that on
her return,
the complainant continued watching the video; and that
she left and thereafter he and the appellant were collected by the
third
party in his motor vehicle. Lethokwe also confirmed that these
events had happened on a Sunday.
[6] The magistrate committed a number of misdirections
in his judgment convicting the appellant:
(1) The magistrate found that the only differences
between the version of the complainant and that of the appellant were
whether
sexual intercourse took place and whether the incident had
happened on a school day or on a Sunday. In making this finding the
magistrate completely overlooked the different versions as to the
sequence of those events and the conflicting evidence as to whether

Lethokwe was at the appellant’s house on the day in question. It
seems probable that the complainant was sent to the shop on
the
second occasion to purchase cigarettes for Lethokwe ─ otherwise the
appellant would have asked her to purchase cigarettes
when he asked
her to purchase the cold drink. For the same reason, it also seems
probable that Lethokwe did come to the appellant’s
house. It is
unlikely that the complainant was raped before Lethokwe arrived, as
he had ample opportunity to observe her and he
would surely have
noticed that she was upset, as she obviously would have been; and it
is even more unlikely that the appellant
would have raped her after
Lethokwe had arrived.
(2) The magistrate found corroboration for the
complainant’s version in the events which were common cause. This
court pointed
out in
S v Gentle
1
:
‘
The
representative of the State submitted on appeal that (I quote from
the heads of argument):
“
(T)here
was sufficient corroboration or ‘indicators’ to support the
occurrence of the rapes.”
It
must be emphasised immediately that 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
(cf
R v W
1949 (3) SA 772
(A) at 778-9). If the
evidence of the complainant differs in significant detail from the
evidence of other State witnesses, the
Court must critically examine
the differences with a view to establishing whether the complainant’s
evidence is reliable. But
the fact that the complainant’s evidence
accords with the evidence of other State witnesses on issues not in
dispute does not
provide corroboration. Thus, in the present matter,
for example, evidence that the appellant had sexual intercourse with
the complainant
does not provide corroboration of her version that
she was raped, as the fact of sexual intercourse is common cause.
What is required
is credible evidence which renders the complainant’s
version more likely that the sexual intercourse took place without
her consent,
and the appellant’s version less likely that it did
not.’
In this matter the evidence of the complainant was
entirely uncorroborated. There was not even medical evidence to show
that she
was no longer a virgin.
(3) The magistrate said that the appellant had not made
a good impression on him because:
(a) he was evasive in cross-examination; and
(b) he answered what had not been asked.
The record on appeal left much to be desired, but the
defence evidence was properly recorded and transcribed. Neither of
the criticisms
levelled by the magistrate at the appellant’s
evidence appear from the record, as the State’s counsel on appeal
was constrained
to concede.
(4) The magistrate entirely ignored the evidence of
Lethokwe, for two reasons. First, said the magistrate, he and the
appellant
were friends. That fact, of itself, did not justify the
approach of the magistrate. Second, said the magistrate, it was
surprising
that the witness could remember what the complainant was
eating when he arrived; the magistrate asked the rhetorical question:
‘What is it that makes him remember what the child was eating?’
The answer is: No-one knows, because the witness was not asked.

Cross-examination of Lethokwe was perfunctory and took up only one
page of the appeal record: the prosecutor merely put to him
the
complainant’s version that he was not there and that if the events
had happened on a weekday he would have been at work.
The magistrate
was not entitled to disregard Lekhotwe’s evidence. As Nugent J said
in
S v Van der Meyden
,
2
in a passage subsequently approved by this court in
S
v Van Aswegen
:
3
‘
What
must be borne in mind, however, is that the conclusion which is
reached (whether it be to convict or acquit) must account for
all the
evide
nce. Some of the evidence might be found to be false; some of
it might be found to be unreliable; and some of it might be found to

be only possibly false or unreliable; but none of it may simply be
ignored.’
(5) The
magistrate said that he could not find any reason why the complainant
would lie, nor could the appellant provide one. Such
an approach has
repeatedly being criticised by higher courts. Mahomed J said in S v
Ipeleng:
4
‘
Even
if the court believes the State witnesses, it does not automatically
follow that the appellant must be convicted. What still
needs to be
examined is whether there is a reasonable possibility that the
evidence of the appellant might be true. Even if the
evidence of the
State is not rejected, the accused is entitled to an acquittal if the
version of the accused is not proved to be
false beyond reasonable
doubt. (See S v Kubeka
1982 (1) SA 534
(W) at 537E; R v M
1946 AD
1023
at 1027.)
It
is dangerous to convict an accused person on the basis that he cannot
advance any reasons why the State witnesses would falsely
implicate
him. The accused has no onus to provide any such explanation. The
true reasons why a State witness seeks to give the
testimony he does
is often unknown to the accused and sometimes unknowable. Many
factors influence prosecution witnesses in insidious
ways. They often
seek to curry favour with their supervisors; they sometimes need to
placate and impress police officers, and on
other occasions they
nurse secret ambitions and grudges unknown to the accused. It is for
these reasons that the Courts have r
epeatedly warned against the
danger of the approach which asks: “Why should the State witnesses
have falsely implicated the accused?”
The case of
S v Makobe
1991 (2) SACR 456
(W) is
instructive on this point. At 459 of the judgment, reference is made
to certain earlier authorities. The learned Judge refers
to the case
of
R v Mtembu
1956 (4) SA 334
(T) at 335-6 where Dowling J
said the following:
“
The magistrate in his reasons for judgment obviously
takes the view that if the evidence of the traffic inspector is
accepted then
the accused was guilty of driving to the danger of the
public. In coming to the conclusion that that evidence is to be
accepted
he said that the inspector either saw the accused drive as
he says or he has come to court to commit perjury. That is not the
correct
approach. The remarks of the late Millin J in
Schulles
v Pretoria City Council
, a judgment delivered
on 8 June 1950, but not reported, are very pertinent to this point.
He says:
‘
It
is a wrong approach in a criminal case to say “Why should a witness
for the prosecution come here to commit perjury?” It
might equally
be asked: “Why does the accused come here to commit perjury?”
True, an accused is interested in not being convicted,
but it may be
that an inspector has an interest in securing a conviction. It is,
therefore, quite a wrong approach to say “I
ask myself whether this
man has come here to commit perjury, and I can see no reason why he
should have done that; therefore his
evidence must be true and the
accused must be convicted.” The question is whether the accused’s
evidence raises a doubt.’”
After
quoting from this passage the learned Judge in
Makobe’s
case
went on to say that “the remarks of Millin J in my view are
particularly apposite in regard to what the magistrate has stated
in
his judgment and the passages to which I have referred”.
In
the present case it is entirely unhelpful to speculate on what
prompted the complainants to give the evidence they did.’
The same reasoning applies with equal force in the
present appeal.
[7] Because of the misdirections to which I have
referred, this court is at large to disregard the magistrate’s
findings of fact,
even if based on credibility, and to come to its
own conclusion on the record as to whether the guilt of the appellant
was proved
beyond a reasonable doubt; and the onus accordingly
becomes all important:
R v Dhlumayo and
another
.
5
[8] Even accepting the magistrate’s finding that the
complainant was a good witness, there is simply no basis for
rejecting the
version of the appellant or the evidence of Lethokwe.
The appellant should accordingly have been acquitted by the
magistrate but
when he was not Friedman JP should have set the
conviction aside when the matter came before the High Court.
______________
T
D CLOETE
JUDGE
OF APPEAL
Concur: Scott JA
Van Heerden JA
1
2005 (1) SACR 420
(SCA) para
18.
2
1999 (2) SA 79
(W) at 82D-E.
3
2001 (2) SACR 97
(SCA) at 101e.
4
1993 (2) SACR 185
(T) at
189b-i.
5
1948 (2) SA 677
(A) at 705-6
paras 10, 12 and 13.