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[2014] ZAGPPHC 504
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Khumalo v S (A647/2012) [2014] ZAGPPHC 504 (3 June 2014)
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION. PRETORIA)
CASE NO:
A647/2012
DATE: 3 June 2014
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
IN
THE MATTER BETWEEN
:
KENNY KENNETH
KHUMALO
.............................................................................................
APPELLANT
AND
THE
STATE
.............................................................................................................................
RESPONDENT
JUDGMENT
KOLLAPEN J:
1. This is an appeal
against both conviction and sentence, following the conviction of the
accused on the 10
th
of February 2009 in the Regional Court
at Secunda on a charge of rape, and his subsequent sentencing to a
term of fifteen years'
imprisonment.
2.
Leave to appeal against conviction and sentence was granted on
petition by this Court on the 17
lh
of November 2011.
3.
In
the court
a quo
no
fewer than twelve witnesses testified and the learned Magistrate
probably correctly divided the evidence into two broad areas.
Firstly
there was evidence relevant to DNA and samples taken, and secondly
there was evidence with regard to the alleged incident
itself and the
events that followed it.
4
.
With
regard to the DNA evidence, it is common cause that there was no
evidence implicating the appellant from this perspective and,
in
particular, a sample of the discharge of semen from the complainant,
taken during the morning after the alleged rape, did not
match the
DNA of the accused.
What was not clear
however, and was not canvassed in evidence, was the question of whose
semen was found on the complainant. I will
return to this aspect
later.
5. The evidence for
the State was that of the complainant, Ms N[...] Z[...], her friend
Ms V[...] M[...], her aunt Ms J[...] S[...],
her uncle Mr E[...]
S[...] and neighbour Ms N[...] M[...].
6.
The
testimony of the complainant, in brief was that on the 21
st
of March 2008 she was at home with her friend Ms M[...] when the
appellant invited them to watch movies at his home nearby. They
went
with him to his house. From there the complainant went to her
boyfriend’s home after the appellant had asked her to
leave her
friend (Ms M[...]) with him. Whilst at her boyfriend’s home,
she claims that appellant came to call her, saying
that her uncle
wanted food. She left with the appellant to go back to her home and
when they arrived there, she claims that the
appellant assaulted her.
removed her panty and raped her. He used a condom. Her uncle was not
home at the time and she was alone
with the appellant.
7
.
She
reported the alleged rape to her friend. Ms M[...], on the same
evening and to her aunt Ms S[...] the next morning when the
latter
arrived home.
8. Her further
evidence was that following an intervention by her aunt, the
appellant and his girlfriend came to their home the
next morning and
he admitted what he had done and asked to be forgiven.
9.
Her
evidence in broad terms was supported by Ms M[...] and Ms S[...],
with regard to the report she made to them, but there are
what may be
described as inconsistencies and criticisms that emerge therefrom:
a) In her evidence,
the complainant’s aunt Ms S[...], said that the complainant
reported to her that the appellant came to
fetch her from his home
where she was watching TV. The complainant on the other hand,
testified that the appellant came to call
and fetch her from her
boyfriend’s home.
b) In her evidence
the complainant testified that the appellant came to her boyfriend’s
home to tell her to return home as
her uncle wanted food. She
testified that her boyfriend then ordered her to go home to show her
uncle where the food was. The evidence
of Ms S[...] is that the
complainant refused to go with the appellant, after which the
appellant grabbed her and took her back
home.
10.
When
one has regard to the incident during the morning after the alleged
rape, then it is clear from the evidence of Ms M[...] and
the
neighbour, Ms M[...], that the appellant was angry at being accused
of rape, so much so that he wanted to assault the complainant.
It is
strange that if the appellant had adopted such a strong stance of
denial, that he would for no apparent reason, suddenly
confess to the
alleged rape and seek forgiveness. Such a dramatic change in stance
is hardly explicable.
11.
In addition to the above, the matter of the semen found on the
complainant’s underwear remains unanswered. While on the
one
hand it is clear that it does not belong to the appellant, there is,
on the other hand, no explanation for it, in her evidence,
the
complainant says that on the night in question she also visited her
boyfriend where she watched a movie, at which point the
appellant
arrived. Her further evidence was that the appellant used a condom
when he allegedly raped her. Thus, on her version,
the semen could
not have been from either the appellant or from her boyfriend. This
aspect was never clarified, and in my view,
the Court
a
quo
should
have recalled the complainant to deal with this part of the evidence.
12
.
Of course there may be some explanation for it and while it is
certainly arguable that it may not necessarily detract from her
evidence that she was raped, it does leave unanswered an important
segment of the complainant’s activities on the day / evening
in
question.
13 In a criminal
trial the onus is on the State to prove its case beyond a reasonable
doubt and the court in this regard must make
that assessment on the
totality of the evidence before it.
In
S v VAN DER
MEYDEN 1998 (1) SACK 447 WLD
, the Court described the onus as
follows;
The
onus of proof in a criminal case is discharged by the State if the
evidence establishes the guilt of the accused beyond reasonable
doubt
.
The corollaiy is
that he is entitled to be acquitted if it is reasonably possible that
he might be innocent. These are not separate
and independent tests
,
but the expression
of the same test when viewed from opposite perspectives, In order to
convict, the evidence must establish the
guilt of the accused beyond
reasonable doubt
,
which will be so
only if there is at the same time no reasonable possibility that an
innocent explanation which has been put forward
might be true. The
two are inseparable
,
each being the
logical corollary of the other.'
14.
In my view and for the reasons already offered, it must be arguable
that reasonable doubt exists with regard to the evidence
presented in
the court
a quo
and
they may be summarised as follows:
a) The
contradictions in the evidence as to where the complainant was
fetched by the appellant and indeed whether she went voluntarily
or
was forced to go;
b) The anger and
denials of the appellant when he was confronted with the allegation
of rape and sudden change by confessing to
the crime;
c) The gap in the
evidence with regard to the origins of the semen found on the
complainant’s underwear;
d) Concern that the
complainant was afraid of the appellant as he always threatened her
as testified to by Ms S[...], in the face
of her seeming willingness
to go and watch videos at his home and to accompany him from her
boyfriend’s home back to her
own home.
ORDER
15. In the
circumstances 1 would propose the following order:
i. That the appeal
against conviction and sentence be upheld;
ii. That the
conviction by, and sentence of, the learned Magistrate be set aside.
N KOLLAPEN
JUDGE OF THE HIGH
COURT
1 AGREE,
PD MOSEAMO
ACTING JUDGE OF THE
HIGH
COURT
IT IS SO ORDERED.
A624/2013
HEARD ON: 06 MARCH
2014
FOR
THE APPELLANT: ADV
I.
W.
RANKAPOLE
INSTRUCTED BY: LEGAL
AID SOUTH AFRICA (PRETORIA JUSTICE CENTRE) (ref: 052/13)
FOR THE RESPONDENT:
ADV M. J. VAN VUUREN
INSTRUCTED BY:
DIRECTOR OF PUBLIC PROSECUTIONS (ref: MA 76/2012 6/3/MJvV)