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[2014] ZAFSHC 221
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Y v S (A187/2014) [2014] ZAFSHC 221 (11 December 2014)
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Note: Certain personal/private details of parties or witnesses
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IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION:
BLOEMFONTEIN
Appeal Number: A187/2014
DATE: 11 DECEMBER 2014
In the matter between:
[Z…] [N…]
[Y….]
......................................................
Appellant
And
THE
STATE
............................................................
Respondent
CORAM: EBRAHIM, J et MOENG, AJ
JUDGMENT: MOENG, AJ
HEARD ON: 1 DECEMBER 2014
DELIVERED: 11 DECEMBER 2014
[1] The appellant was convicted by the
Welkom Regional Court on one count of rape of a 22 year old male, in
contravention of the
provisions of section 3 of the Criminal Law
Amendment Act 32 of 2007 and was sentenced to 10 years imprisonment.
He appeals against
the conviction with the leave of the court a quo.
[2] The relevant facts which led to the
conviction can briefly be summarised as follows. The complainant was
from a tavern in the
early hours of the morning. He met the
appellant, who was in possession of a knife at the gate of the
tavern. A security officer
was standing guard at the gate and the
appellant violently pulled him to his shack. He did not scream as
they left the tavern but
only did so when they reached the shack.
[3] The appellant ordered him inside
and instructed him to undress his pants and underwear. He obliged and
they both got into the
blankets. The appellant inserted his penis
into his anus and had sexual intercourse with him. The appellant’s
brother was
also present when this ordeal unfolded. He was however
not called to testify. The intercourse was very painful
[4] After intercourse, the appellant
showed him a tattoo on his chest and asked him what it represented.
He could not tell and the
appellant slapped him with an open hand on
his face. He started crying and wanted to leave. The appellant bashed
him with the handle
of a knife several times on the head. Appellant
later went to the toilet and he managed to escape to the shack of the
second state
witness. The appellant chased him and he got to the door
of this shack calling out for help. The second state witness
instructed
him to go to the door at the back of the house as the one
he was knocking at was locked. The appellant was at this stage
standing
at the corner of the house.
[5] He was however scared of going to
this door as he was afraid that the appellant may drag him back to
his shack. He ran to his
parental home which is opposite to the
appellant’s shack. He was only dressed in his pants, as his
shoes and T- shirt were
left at the appellant’s residence. His
mother asked him where his clothes were and he reported to her that
he met a violent
person, but he could not explain any further as he
was confused. He did not report the rape to any of them but went to
bed. The
second state witness arrived later that morning and it is
only then that he reported that he had been raped by the appellant.
[6] The second state witness confirmed
that the complainant called out for help in the early hours of the
morning saying that the
appellant wanted to stab him with a knife.
She ordered him to go to her mother’s shack in the same yard to
seek help. She
does not know what further happened and only went to
the complainant’s house later that morning. The complainant’s
aunt was scolding him for arriving late at home.
[7] She also heard that the complainant
was only dressed in his pants upon arrival at home. She enquired from
him about the incident
that unfolded earlier that morning and he
related the incident to her. She advised him to go to the police
station so that the
police could reprimand the appellant and it is
only on their way to the police station that the complainant reported
that he had
been raped by the appellant. The complainant laid a
charge and was taken to hospital for a medical examination. The
complainant
testified that he screamed and was crying when his anus
was examined by the medical doctor. He also reported to the doctor
that
his head was throbbing as he was bashed several times with the
handle of a knife.
[8] The medical report, completed by Dr
Yusuf Vahed noted no external physical or anal injuries except for
tenderness on the anus.
He however concluded that rape could not be
excluded on clinical grounds. This concluded the state’s
version.
[9] In his testimony the appellant
denied that he raped the complainant. He was at home on the day of
the alleged incident when
the complainant arrived and asked to be
accommodated as he was locked out of his parental home and wanted a
place to sleep. He
offered him a space on the couch and gave him a
blanket to sleep. He was later awoken by someone that had slipped
into his (the
appellant’s) bed. He discovered that it was the
complainant, dressed only in his underpants. He knew that the
complainant
was homosexual. This angered him and he slapped the
complainant with an open hand. Appellant chased him out of the shack
but he
refused and he had to get the assistance of his brother to get
rid of the complainant.
[10] The court a quo concluded that the
evidence of the complainant was consistent and clear. She concluded
that the complainant’s
demeanour in the witness stand was
indicative of the fear that he had for the appellant. The court also
concluded that the absence
of injuries did not exclude rape and that
the tenderness on the anus noted by the doctor corroborated the
complainant’s version.
She found that the second state witness
corroborated the complainant in so far as his calling out for help in
the early hours of
the morning was concerned. She concluded that the
appellant’s version that the complainant slipped into his bed
after being
offered a place to sleep was improbable. She was
satisfied that the guilt of the appellant had been proven beyond
reasonable doubt
and convicted the appellant as aforementioned.
[11] I should pause to state that Adv.
Strauss, counsel for the respondent, supported the conviction in his
heads of argument but
conceded that the conviction could not stand
after deliberations by Ms. Kruger on behalf of appellant. The
evidence of the complainant
was that of a single witness. The court a
quo correctly referred to S v Sauls 1981(3) SA 172 (AD) at 180 E-G.
The question is whether
the trial court properly considered the
merits and demerits of the complainant’s evidence to determine
whether the truth
had been told.
[12] I am satisfied, as will appear
hereunder, that the court below committed a number of misdirection’s
in convicting the
appellant. The prosecutor handed the medical report
into the record and thereby accepted the correctness of what was
stated in
it. The magistrate placed great reliance on the J88 medical
report in convicting the appellant and concluded that it provided
corroboration
to the complainant’s version.
[13] The complainant testified that the
medical examination was extremely painful and that he was screaming
and crying when the
doctor inserted something into his anus. No
mention of this painful examination was however made by the doctor.
When interrogated
in cross examination about this inconsistency,
complainant stated that he is uncertain whether the doctor noticed
his screaming.
Probabilities are that if he was screaming and crying
during the examination, the doctor would have recorded that.
[14] He testified in cross examination
that he informed the doctor that he was continuously hit with the
handle of a knife on the
head and that his head was painful, but this
was also not recorded on the medical report. This report, contrary to
the conclusion
reached by the trial magistrate, showed that the
complainant’s version was not reliable. The magistrate ignored
these glaring
inconsistencies.
[15] The magistrate further found
corroboration in the version of the second state witness that the
complainant was crying when
he sought refuge from her shack. It is
however a neutral fact that the complainant was slapped by the
appellant moments before
he left the shack. The complainant also
confirmed that he cried, not because of the rape, but because he was
slapped.
[16] It has been repeatedly said, 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. (See S v Gentle
2005 (1) SACR
420
(SCA)). The fact that the complainant cried could therefore not
strengthen the state’s averment that he was raped but in turn
strengthened the appellant’s version that he slapped him. It is
also interesting to note that in so screaming, the complained
did not
mention that he had been raped but said the appellant wanted to stab
him. This aspect could therefore not have provided
support to the
complainant’s version.
[17] A similar remark can be made about
the complainant’s arrival at his parental home without his
shirt and shoes. It is
undisputed that he left the appellant’s
shack only in his trouser. The appellant’s version is that the
complainant
left in that state, not because he was raped, but because
he slipped into his bed half naked, only in his underpants. This
aspect
is therefore also neutral and cannot be regarded as
corroborative of the state’s version.
[18] It is common cause from the
evidence that the complainant was confronted by his mother for
arriving in the early morning hours
without a shirt or shoes. He
replied by saying that he met a violent person but could not explain
any further as he was confused.
He was also confronted by his aunt
later that morning but did not report the incident. It is of
importance to note that even when
the second state witness arrived,
the complainant did not immediately report that he had been raped.
[19] Although not clear from the
evidence, the second state witness stated that she told the
complainant to approach the police
so that they could reprimand the
appellant. It is only on their way to the police station that he
reported that he had been raped
by the appellant. The unassailable
conclusion is therefore that the complainant initially reported
something that was not serious
but that merely warranted a reprimand
from the police. It was only later that he reported the rape.
[20] One should not lose sight of the
appellant’s version. His testimony is that the complainant is
homosexual and he got
into his bed in a half-naked state. The
complainant’s immediate report to the second witness when he
sought refuge was that
the appellant wanted to stab him and his later
report to his mother was that he met a violent person. The appellant
confirmed that
he was angered by the complainant, slapped him and
chased him out of the house. Complainant’s initial reaction and
reports
therefore validated the appellant’s version.
[21] I am mindful of the provisions of
section 58, and 59, of Act 32 of 2007 that a court may not draw any
inference from only the
absence of previous consistent statements and
any delay between the alleged commission of the offence and the
reporting thereof.
This provision should however be interpreted so as
not to usurp the court’s discretion to draw any reasonable and
justified
inferences from the facts presented as evidence. Any
contrary interpretation would in my view affect the fair trial rights
of an
accused. What a court should do is to have regard to the
totality of the evidential material and decide whether a negative
inference
may be drawn from the complainant’s failure to report
the offence at the first reasonable opportunity.
[22] It is important to remember that
the purpose of the requirement of the “first reasonable
opportunity” is to ensure
that the complainant’s story is
not a later fabrication. The complainant was faced with a dilemma in
that the second state
witness insisted to know what happened earlier
that morning. He undoubtedly had to give an explanation more so that
he arrived
home with only his pants on. He could further not explain
why he was so confused that he could not tell his mother what
happened.
Rape was in my view an obvious answer.
[23] Had he not reported that he had
been raped, it would later have come to light that he got half naked
into bed with the appellant.
This is said mindful of the fact that
there is no reason for the rejection of the appellant’s
version. One should also not
lose sight of the fact that upon
escaping from the appellant’s shack, he reported that the
appellant wanted to stab him.
I am satisfied that his delay in
reporting the alleged rape adversely affected his credibility and
indications are that rape was
an afterthought and fabrication.
[24] It is common cause that the
accused brother was in the shack when the incident unfolded. The
complainant failed to mention
this aspect in chief and was only
coaxed in cross examination to mention same. The prosecutor was aware
of the presence of this
witness in the shack before he closed his
case. He however elected not to call him. The prosecutor and the
court a quo seemed to
have languished under the impression that it
was the appellant’s duty to call this witness. There was no
duty on the appellant
to call this witness. The complainant further
testified that he was violently dragged from the tavern in full view
of a security
guard. The prosecutor also elected not to call this
witness. These witnesses could have shed light on what transpired.
There were
therefore serious shortcomings in the state’s
version.
[25] The only reasons advanced by the
court a quo for having rejected the appellant’s version was
that it was improbable for
the complainant, after being given a place
to sleep to get into his bed in a semi-naked state. The court a quo
also regarded it
strange that the appellant could not give a reason
why the complainant would have wanted to get into his bed with
ulterior motives.
These reasons were not such as to lead to a
rejection of the appellant’s version.
[26] One should not lose sight of the
dicta in S v Kubeka
1982 (1) SA 534
(W), where Slommowitz AJ said at
537 F-G, with regard to an accused's story:
'Whether I subjectively disbelieve him
is, however, not the test, I need not even reject the State case in
order to acquit him.
I am bound to acquit him if there exists a
reasonable possibility that his evidence may be true. Such is the
nature of the onus
on the State.'
[27] Slommowitz AJ further referred
with approval to the unreported judgment in Schulles v Pretoria City
Council delivered on 8
June 1950. Wherein Millin J held as follows;
“It is therefore quite a wrong
approach for a trial court 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”.
[28] I am of the view that, when all
the evidence is considered, the appellant's version is reasonably
possibly true. The considerable
doubt in the State's case must count
to his benefit. On an evaluation of all the evidence the
complainant's testimony was not satisfactory
in all material respects
and the appellant's version was reasonably possibly true. In the
premises, the conviction cannot stand.
[29] The following order is therefore
made
1. The appeal is upheld.
2. The appellant's conviction and
sentence are set aside.
L.B.J. MOENG, AJ
I concur.
S. EBRAHIM, J
On behalf of the appellant: Ms. S
Kruger
Instructed by: Justice Centre
BLOEMFONTEIN
On behalf of the respondent: Adv. M.
Strauss
Instructed by: Director: Public
Prosecutions
BLOEMFONTEIN