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[2014] ZAFSHC 104
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Maruping v S (A231/2013) [2014] ZAFSHC 104 (27 June 2014)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A231/2013
In
the matter between:
MAHLOMOLA
LUCAS
MARUPING
...................................................................................
Appellant
and
THE
STATE
.............................................................................................................................
Respondent
CORAM:
LEKALE, J
et
JAJI,
AJ
HEARD
ON:
23 JUNE 2014
JUDGMENT
BY:
LEKALE, J
DELIVERED
ON:
27 JUNE 2014
[1]
The appellant, who was legally represented, was on the 20
th
June 2012 convicted of rape of a 6-year old girl by the regional
court at Welkom. He was, eventually, sentenced to 20 years
imprisonment on the 21
st
June 2012. He now comes
before us on appeal against both the conviction and sentence with
leave to appeal against sentence
granted by the court below and leave
to appeal against the conviction, effectively, granted by members of
this court on the 10
th
March 2014 when the matter first
served on appeal against sentence.
[2]
In returning the guilty verdict the trial court characterised the
appellant’s version as a fabrication flawed with contradictions
and improbabilities and, further, as not being reasonably possibly
true. The court below, further, found that the essential
features of the story told by the child complainant, who was a single
witness on the appellant’s alleged involvement in the
crime,
were true. The court
a quo,
furthermore, found that no inference could be drawn from failure, by
the complainant, to implicate the appellant earlier by making
a
report about the rape and his involvement as the rapist.
[3]
On imposing 20 years imprisonment as a sentence the court below found
that the appellant was a possible candidate for rehabilitation
and
reiterated that life imprisonment was reserved for cases devoid of
substantial and compelling circumstances.
[4]
In the heads of argument submitted for and on his behalf by Mr
Makhene, the appellant effectively assails the conviction on,
inter
alia
, the ground that the complainant’s
evidence with regard to the circumstances surrounding the rape and
whether or not she
reported the crime to her sister and/or mother was
not satisfactory as it is not supported by her said sister and mother
who, in
fact, contradicted.
[5]
The State, through the mouth of Ms Giorgi, supports both the
conviction and the sentence on,
inter
alia
, the basis that the trial court
was alive to applicable cautionary rules and accepted the
complainant’s version as credible
and satisfactory. The
court below, further, found that there existed no possibility of
false implication of the appellant
and rejected his version after
adopting a holistic approach to the evidence before her.
[6]
It is effectively not in dispute that the complainant was a victim of
rape insofar as there existed undisputed professional
evidence to the
effect that she was sexually penetrated. The effective question
before the trial court was whether or not
the appellant was the
culprit. It is, further, not in dispute before us that there
existed contradictions between the evidence
of the child complainant,
her so-called sister (D[…]) and her mother. The parties
are, furthermore, in agreement that
the appellant changed his version
before the trial court with regard to when the feast during which the
rape is alleged to have
taken place was held and whether or not he
spent the night with his girlfriend on the day in question. The
question was,
in my view, whether or not the discrepancies and
contradictions in the State’s case compromised the complainant
and rendered
her evidence, as a single and child witness, unreliable
on the appellant’s involvement in the rape and the
circumstances
around it.
[7]
The relevant contradictions are apparent from the evidence presented
to the trial court. The State throughout maintained
that the
relevant traditional feast was held during August 2011 at the
complainant’s maternal home in Welkom. According
to the
complainant, it was late in the evening on the day in question when
her mother, who was about to sleep, sent her to call
her brothers
from the outside room occupied by the appellant. When her
brothers went to their mother in the main house the
appellant locked
her inside his room, switched off the light and raped her by
inserting his penis into her vagina. She demonstrated
how the
rape took place through anatomically correct dolls provided to her by
the appointed intermediary. She remained locked
in that room
until dawn the next day when she went to the main house. Her
mother had already gone to work when she got into
the house.
D[…] saw her when she entered the main house and she related
the full story about the rape and the appellant’s
role in it.
She was crying as she related the story. D[…] promised
to take her to the clinic. The appellant’s
girlfriend was
not present on the night of the rape and she, thus, could not have
shared his bed.
D[…] took
her to the clinic where she was medically examined. She did not
report the incident to her mother because
the appellant threatened
her and stated that he would kill her.
[8]
The complainant’s so-called sister, D[…], testified that
she was present during the relevant feast, but left after
20h00 for
her boyfriend’s place when she felt tipsy. She only
returned after two days. One morning, between the
24
th
and 26
th
August 2011, she was giving the complainant, who had not gone to
school, a bath when the latter protested that she should not touch
or
wash her vagina because she was hurting her. She, thereupon,
concluded that the complainant had developed a rash in her
vagina and
she, thus, did not ask her what the problem was. She was very
close to the complainant and they used to talk about
everything.
The complainant would tell her even when she was ill, but she never
told her about the rape incident.
[9]
The complainant’s mother testified that on the night of the
feast she was working nightshift as a nurse and, as such,
she left at
18h45 for work and got home the following morning at 7h20. When
she got home she went to check on the complainant,
as usual, and
learned from her nanny that she was asleep. When she saw
the complainant later that morning she was fine.
In January
2012, after she had relocated to Johannesburg with the complainant,
she returned home from work to find the complainant
waiting for her
at the bus stop. The complainant complained that it was sore in
her vagina because she had been playing with
a 12-year old boy who
undressed her panties and tried to insert his penis into her vagina.
She took the complainant to the
police who took them to the hospital
for a check-up. At the hospital the nursing sister in
attendance informed
her that the complainant
was nearly penetrated but that she could see scars in her vagina
indicating that she had previously been
raped. She, thereupon,
remembered that at some stage, after the feast and in Welkom, the
complainant got sick and was taken
to the clinic by the nanny and one
Pulane. At the clinic it was found that the complainant was
raped and a referral letter
was issued to that effect referring them
to the hospital. She, however, took the complainant to a
private doctor as she had
her own doubts. The doctor examined her and
said that she was not raped but that it was only a rash in her
vagina. After hearing
the nursing sister out she made an enquiry from
the complainant and the latter confirmed that she was raped by the
appellant on
the occasion of the traditional feast. The
complainant, further, advised her that on the day in question she
went to the
appellant’s room and found him sitting with her
brothers. She remained with them for a while and left to go
back to
the main house. The appellant, however, later went to
the house and took her to his room, gave her traditional beer to
drink
and afterwards undressed and raped her. The complainant
stated that she was afraid to report the incident to anyone and she
also forgot.
[10]
The appellant’s case, as put to state witnesses, was that on
the night in question he slept with his girlfriend in his
room and
could, as such, not have raped the complainant. His evidence in court
was, however, to the effect that his girlfriend
was only present
during the earlier feast and did not attend the one held in August
2011 because they were no longer together having
separated in July
2011. On the night of the relevant feast he shared his room with
friends. He even called one of those friends
as a witness. The said
friend corroborated his evidence with regard to sleeping arrangements
but added that the appellant’s
girlfriend was present at the
feast although she did not share the appellant’s room for the
night.
[11]
Contradictions are material if they relate to material aspects of the
point at issue and they reflect on the credibility of
the witness.
The question in the case of such contradictions is whether or not,
despite any shortcomings, the truth has been
told.
(See:
S v Mafaladiso en Andere
2003 (1) SACR 583
(SCA) at 593e – 594h.)
[12]
In dealing with the contradictions between the evidence of the
complainant and that of D[…] relating to whether or not
the
complainant reported the rape to the latter, the trial court found
that D[…]’s evidence on this aspect could not
really be
regarded as inconsistent to that of the complainant because the
complainant merely testified that she told D[…]
and she could,
as such, very well have considered the report of the pain in the
vaginal area to D[…] as a report she was
supposed to have
made.
[13]
The complainant’s evidence on this aspect goes as follows:
“
Now
who saw you entering the big house? --- My sister.
Is
it your sister D[…]? --- Yes.
And
what did you tell D[…] when you entered? --- I said to her
they raped me.
Did
you gave (sic) her a name? --- Yes.
Which
name did you gave (sic) her? --- Lucas.
Yes
but you yourself what did you tell D[…] what happened when you
were raped did you explain to her what happened? --- I
told her.
Did
you tell her, the same version that you gave us yesterday? --- Yes.
”
See:
Page 22 lines 4 – 25 of the transcribed record.
[14]
It is, in my view, clear from the above exchange between the
appellant’s legal representative and the complainant that
the
latter testified that she gave full particulars of the rape as well
as the particulars of the rapist to D[…]. She could,
therefore, not reasonably possibly have regarded mention of pains in
the vaginal area as such details. The context in which
the
particulars of the rape were allegedly disclosed to D[…] also
differs materially from that in which D[…] testified
that she
discovered that the complainant was not comfortable with being
touched on her private parts. Where D[…] stated
that she
was giving her a bath, the complainant testified that she had just
entered the house from the appellant’s room the
morning
immediately after the rape. The two incidents not only differ
in content, but are also unrelated in time insofar
as, according to
D[…], she did not return to the complainant’s maternal
home until after two days from the date of
the feast. The
complainant would have made the report to D[…] on Sunday early
in the morning because the feast was
on Saturday. According to
D[…] she tried to bath the complainant on the day she (the
complainant) did not want to
go to school indicating that she was
ill.
[15]
The possibility of the complainant ever having made a report to D[…]
and immediately on her return to the main house
after the rape,
is also not accommodated by the complainant’s evidence on why
she did not tell her mother about the rape.
Her response to the
prosecutor in this regard was that the appellant had threatened her
and told her that he would kill her.
If the alleged threat was
so effective in her mind that she did not tell her mother because of
it, she would not reasonably possibly
have told D[…] about the
incident and so soon after it was made.
[16]
With regard to inconsistencies or discrepancies between the
complainant’s evidence and that of her mother, the trial
court
felt that the explanation of the latter defined certain aspects
pertaining to how the complainant landed at the appellant’s
room, but the gist of the evidence pertaining to the act of sexual
intercourse was consistent. It is true that the complainant’s
version before the trial court and her previous statement to her
mother are similar with regard to how the appellant allegedly
closed
the door, undressed the complainant and raped her.
Conspicuously omitted from her version before the trial court is
that
the appellant gave her traditional beer, whereafter, undressed
her and raped her.
[17]
That the complainant consumed alcohol that night was significant and
material because it could possibly have affected her young
mental
faculties to the extent of compromising her recollection and account
of events. It is also clear that her account
of events to her
mother differed from her evidence in court with regard to how she got
to the appellant’s room on the occasion
of the rape. She
did not mention to her mother that the latter was sleeping in the
house when the rape took place and that
she was the one who had sent
her to call her brothers from the appellant’s room. The
trial court found that the complainant
gave an intelligible answer
when she testified about the time when she left the appellant’s
room in the morning pointing
out that it was before the morning and
one could see the sun making its appearance. If the complainant
was capable of giving
such intelligible answers it could reasonably
be expected of her to know if she made a report and to stick to one
version with
regard to how she got to the appellant’s room.
Whether she was running an errand for her mother when she went there
or the appellant fetched her from the main house she would, in my
opinion, be able to distinguish between the two.
[18]
On her mother’s evidence the complainant attributed failure,
on her part, to report the rape to her to the fact that
she was
scared and she further forgot. While it is both possible and
understandable that she could have been scared, it is
hard to accept
that she forgot about such a harrowing and painful experience
especially when the appellant shared her maternal
premises. On the
evidence of her mother before the trial court the rape could not
reasonably possibly have taken place on the night
of the August 2011
feast because she would not have sent the complainant to call her
brothers from the appellant’s room as
she was at work. D[…]
did not take the complainant to the clinic on her evidence and that
of the complainant’s mother
because according to the latter it
was the nanny and one Pulane who undertook that task.
[19]
The complainant was both a child and a single witness on the alleged
involvement of the appellant in the rape. Her evidence
had to
be approached with caution in order for the trial court to satisfy
herself that the truth had been told. In my judgment
it cannot
be said, from recorded evidence, that the trial court could have been
satisfied that the complainant was reliable on
the appellant’s
involvement and that the truth, in that regard, had been told. In my
view the trial court misdirected herself
when she found that no
inference could be drawn from the numerous contradictions involved.
The complainant not only contradicted
her report to her mother but
she also contradicted other witnesses. It is true that she was not
confronted with these contradictions
in order for her to explain the
same but that omission cannot fairly be placed at the door of the
appellant. The trial court was
at all times free to recall her
for that purpose after such discrepancies came to light.
[20]
In conclusion I am not persuaded that the appellant was disingenuous
in his version and that the contradictions in his evidence
emanated
from mendacious intentions on his part regard being had to his
attribution of such contradictions to confusion on his
part. A
reading of his evidence in context confirms that he was confused as
to when the rape was alleged to have taken place.
He even
enquired from the prosecutor, when he was under cross-examination,
after the date of such an incident but the prosecutor
expressly
declined to assist. The learned trial magistrate also did not
intervene to assist. The appellant kept changing
his evidence
with regard to whether or not he knew about the feast held in August
2011. That he was confused about the date
of the rape incident
is, further, borne out by the fact that he had undisputedly secured
the attendance at court of his ex-girlfriend,
with whom he severed
love relations in July 2011, to confirm his alibi. The
said intended alibi witness,
however, left without
testifying after it became clear that the State’s case was that
the incident related to the feast
held in August 2011 when they were
no longer together. In my view he would not reasonably possibly
have expected any favours
from someone with whom he no longer shared
amorous intimacy, especially the kind of favour that involved lying
to the court by
playing the role of an alibi witness. Even if he had
failed to provide an acceptable explanation for the contradictions
such discrepancies
could not, in my judgment, supplement the State’s
case against him to the extent of curing its shortcomings. The State
was
throughout the trial saddled with the burden to prove its case
beyond reasonable doubt, which burden it failed to discharge.
ORDER
[21]
The appeal succeeds.
[22]
The conviction and sentence are set aside.
_____________
L.
J. LEKALE, J
I concur.
___________
N.P. JAJI, AJ
On behalf of
appellant: Adv J.S. Makhene
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of respondent: Adv S. Giorgi
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN