About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2013
>>
[2013] ZAFSHC 86
|
|
Johnson and Another v S (A342/2012) [2013] ZAFSHC 86 (30 May 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal number: A342/2012
In the appeal between:
ANDREW JOHNSON
...............................................................
1
st
Appellant
PETRUS RADEBE
..................................................................
2
nd
Appellant
and
THE STATE
...............................................................................
Respondent
_______________________________________________________
CORAM:
EBRAHIM, J
et
FISCHER, AJ
_______________________________________________________
JUDGMENT:
FISCHER, AJ
_______________________________________________________
HEARD ON:
27 MAY 2013
_______________________________________________________
DELIVERED ON:
30 MAY 2013
_______________________________________________________
[1] The appellants Andrew
Johnson and Petrus Radebe were, together with their co-accused Lefa
Jerry Mphale, charged with two counts
of rape, and one count of
indecent assault in the Regional Court in Bloemfontein. All the
charges arose from the alleged rape and
indecent assault of the
complainant, Daisy May by the two appellants and their co-accused on
the evening of 22 to 23 September
2006. At the time of the alleged
rape and indecent assault the two appellants were 16 and 18 years of
age respectively whilst their
co-accused was 19 years old. The
complainant was approximately 23 years of age at the time of the
alleged incidents. At the end
of the trial both appellants were
convicted on two counts of rape and one count of indecent assault,
whilst their co-accused was
convicted on one count of rape and one
count of indecent assault.
[2] During argument on
appeal Mr Reyneke, on behalf of the appellants, drew the court’s
attention to the judgment of Zulman
JA, in
S v KIMBERLEY AND
ANOTHER
2005 (2) SACR 663
(SCA) which dealt comprehensively
with the application of
section 52
of the
Criminal Law Amendment Act
105 of 1997
and more specifically the meaning of paras (a)(i),
(a)(ii) of
Part 1
of Schedule 2 of the said Act. Having regard to the
approach and interpretation of Zulman JA to the question of the
position of
an accomplice as opposed to that of a person(s) acting in
common purpose, I am respectfully of the opinion that the court
a
quo
erred in its interpretation of
section 52
and more
specifically the application thereof to the case of both appellants
and their co-accused in handing down the sentences
it did. However in
view of the finding I have arrived at on the merits, I deemed it
unnecessary to revisit this aspect of the case
especially in view of
the fact that the co-accused of the appellants has appealed neither
his conviction nor his sentence.
[3] At the commencement
of the trial both appellants pleaded not guilty to the two charges of
rape and the one charge of indecent
assault and furthermore proceeded
to place on record that sexual intercourse with the complainant had
been consensual in that she
had willingly partaken and acceded
thereto.
[4] The state proceeded
to call three witnesses, being the complainant, her elder brother
Piet May and Dr Adrie Krieger.
[5] The complainant Daisy
May testified that on the evening in question she accompanied her
brothers Karel and Piet May together
with the wife of Piet May to a
tavern where they proceeded to consume alcohol. She testified that
she remained there for approximately
two hours until midnight when
she requested her sister-in-law to accompany her home. She confirmed
that she was “onder die
invloed van alkohol” and that her
sister-in-law refused to accompany her home.
[6] According to the
complainant she then left the tavern with the intention of returning
to her brother Piet May’s home where
she was staying. On the
way home she met a person unknown to her who later turned out to be
the first appellant who asked her where
alcohol could be bought.
Whilst they were standing speaking to each other two other unknown
persons, who later turned out to be
the second appellant and the
co-accused, grabbed her arms whereupon she was taken to a nearby
piece of open ground and undressed.
The first appellant then had
sexual intercourse with her whilst the second appellant and the
co-accused stood close by talking
to each other. The second appellant
then had sexual intercourse with her whereafter the co-accused
indecently assaulted her by
penetrating her anally with his penis.
She was adamant that she never consented to the sexual penetration.
The co-accused then
departed the scene.
[7] The first and second
appellant’s then took turns to piggyback her to the shack of
first appellant. In the process they
proceeded past several homes as
well as several people in the street but she chose to say nothing
because she was allegedly scared.
The complainant was taken into the
shack of the first appellant and made to lie between the appellants
whereupon they once again
both had sexual intercourse with her in
turn without her consent. According to the complainant they thereupon
fell asleep and at
sunrise the complainant then departed for home,
leaving her panty and shoes in the shack. The complainant reported
the matter to
her brother Piet May who told her to go to bed and that
she should later in the morning report the incident to the police.
The
incident was subsequently reported to the police, the shack
pointed out, the complainant’s shoes and panty found and the
appellants arrested and charged.
[8] The complainant’s
brother Piet May confirmed that he had accompanied the complainant
together with his wife and brother
to the tavern on the night in
question. He did however add that he had been consuming alcohol
before they all got there. He testified
that at some stage during the
evening he left for another “shop” where he consumed
approximately two more beers where
after he returned to the tavern.
Upon his return he established that the complainant had left and
sometime thereafter he, accompanied
by his wife and brother, went
home. For the first time during his testimony reference was made to a
seven year old child who at
all times was apparently in their company
and had remained at the tavern and this notwithstanding the fact that
the complainant
had earlier left for home. He furthermore confirmed
that the complainant although staying with him was only visiting and
that when
they got home she was not there. According to him the
complainant arrived early the following morning claiming that she had
been
raped by three men. According to him the complainant advised
that she did not know the appellants and their co-accused but knew
where the rape had taken place. He confirmed that he subsequently
gave the complainant money with which to telephonically contact
the
police.
[9] Dr Krieger a medical
practitioner testified, with reference to the J88 report completed by
her pursuant to a medico-legal examination,
that the complainant had
told her that she had been raped by three unidentified male persons
who had thereafter dragged her over
an open piece of ground to a
shack where she was once again raped. According to the doctor small
tears (skeurtjies) were visible
in the perineum as well as around the
orifice of the anus which, according to her, corresponded with
alleged forced vaginal and
anal penetration.
[10] According to the
first appellant he went to the tavern on the night in question and
found the second appellant and the co-accused
in the company of the
complainant. They all drank Black Label beer and at some stage the
second appellant told him that the complainant
was his girl (meisie).
According to him the parties continued drinking and dancing in the
tavern and that some stage during the
evening the complainant winked
at him and told him confidentially that she had strong feelings for
him. He was hesitant to get
involved with the complainant in view of
the claim by second appellant that the complainant was in fact his
girl to which she responded
that the first appellant was not to worry
as she would take care of the matter.
[11] Later in the evening
the second appellant enquired from the first appellant as to whether
the first appellant would allow him
and the complainant to go to the
shack of the first appellant to “sleep”, as he put it.
The co-accused had in the interim
left for home to fetch more money.
The appellants never saw the co-accused again that evening and they
subsequently left the tavern
accompanied by the complainant.
[12] At some stage on the
way back to first appellant’s shack, the complainant advised
that she needed snuff and made it very
clear that she wanted second
appellant to go and fetch and/or buy some and not first appellant.
Second appellant had no sooner
departed when complainant made
advances upon first appellant to sleep with her. According to him
they then proceeded to have sexual
intercourse in a hurried fashion
as he was afraid that second appellant would return and catch them
in
flagrante
. They had no sooner completed the sexual act when he
heard second appellant approaching singing a song to himself
whereupon the
complainant responded by urging first applicant to
climb off her before second appellant arrived. Second appellant
handed the snuff
over to complainant whereupon first appellant made a
bed on the floor in the adjoining room. The complainant and second
appellant
then proceeded to have sexual intercourse on the same bed
where first appellant had shortly before done the same thing.
According
to first appellant they then all fell asleep and the
following morning after he had awoken and went outside to relieve
himself,
the complainant approached and told him that she intended
returning to visit him later that same afternoon. The second
appellant
then accompanied her halfway home. According to first
appellant the complainant had left her shoes and snuff at his home so
as
to provide a reason for returning there later the same day. He was
unaware of her panty which was subsequently found by her in a
draw in
the shack of first appellant upon her return with the police.
[13] The second appellant
confirmed the version of first appellant and added that he was
unaware of the fact that there had been
sexual intercourse between
the complainant and first appellant during his absence. He testified
that he was affected by the alcohol
he had consumed and was not sure
whether his penetration of the complainant had been vaginal,
alternatively anal. He was however
adamant that whatever had happened
had been consensual.
[14] The general
principles according to which this court should consider the facts of
a case on appeal are set out in
R v Dhlumayo
1948 (2)
SA 677
(A) at 705 – 706. It is accepted for purposes hereof
that the court
a quo
was and always is in a better position
than a court of appeal to make reliable findings of fact as the court
a quo
sees and hears the witnesses and furthermore takes into
account their appearance, demeanour and personality.
[15] In the absence of
what have been identified as demonstrable and material misdirections
by the court
a quo
, this court will accept that the findings
of the facts of the court
a quo
are correct, unless the
recorded evidence clearly shows that the court
a quo
was
wrong. See
S v Hadebe and Others
1998 (1) SACR 422
(SCA) at 426a – b.
[16] It is trite that the
state carries the onus of proving its case beyond a reasonable doubt
and that caution is to be applied
in matters relating to sexual
offences as well as when the state seeks to rely on the evidence of a
single witness. See
S v Heslop
2007 (1) SACR 461
(SCA).
[17] The court
a quo
found the complainant to be a credible witness who came across as
an honest person and whose version was corroborated in every material
respect especially insofar as it related to the rape as supported by
the medical evidence.
[18] The medical evidence
consists of the report by Dr Krieger contained in the J88 as well as
her testimony in the court
a quo
. This evidence does not
unequivocally support a finding or inference of non-consensual sex
given not only the limited nature and
extent of the vaginal and anal
injuries but more importantly the concessions made by Dr Krieger
that, given the circumstances,
her observations and findings were
also reconcilable with consensual sexual penetration. Of further
material importance in this
regard is that Dr Krieger could find no
visible physical evidence to support the claim by the complainant
that she had been dragged
naked over rough terrain after the first
alleged rape.
[19] Furthermore the
typed record does not in my respectful submission support the
impression the court
a
quo had of the complainant especially
if regard be had to the following facts:
(1) The complainant
testified that her brother Piet May had the key to the home where she
was sleeping but notwithstanding decided
to depart for home without
telling her brother or for that matter first obtaining the key;
(2)The complainant testified that she
was piggybacked in turn by both
appellants on the way to the shack of the first appellant whereas she
told Dr Krieger that she
had been dragged across rough terrain; (3)
On the way to the shack of first appellant complainant confirmed that
they had passed
several homes and pedestrians along the way but that
she did not see fit to call out for help; (4) The alleged rapes took
place
shortly after midnight but complainant remained in the company
of the appellants until sunrise before leaving for home; (5) The
complainant was never locked in the shack and at no stage prevented
by either of the appellants from leaving. No attempt was made
to
escape what, if her version is to be believed, must have been a
traumatic experience; (6) The doctor confirmed that, given the
circumstances in which first appellant had allegedly had sexual
intercourse with the complainant “behind the back”
of
second appellant, the absence of lubrication was to be expected which
could in turn have given rise to and explained the presence
of small
tears. (7)The complainant must have known that her brother Piet May
would not have been impressed with her behaviour.
Not only did the
complainant testify that she was scared of him having stayed out all
night but her brother confirmed this adding
that;
“…
hy
(sic) was seker bang vir my want hy (sic) weet ek raas hom (sic)
altyd as hy (sic) sulke goed maak.”
[20] Brand, AJA (as he
was then) made the following apposite comment in
S v Shackell
2001 (2) SACR 185
(SCA):
“
It is a
trite principle that in criminal proceedings the prosecution must
prove its case beyond reasonable doubt and that a mere
preponderance
of probabilities is not enough. Equally trite is the observation
that, in view of this standard of proof in a criminal
case, a court
does not have to be convinced that every detail of an accused's
version it true. If the accused's version is reasonably
possibly true
in substance the court must decide the matter on the acceptance of
that version. Of course it is permissible to test
the accused's
version against the inherent probabilities. But it cannot be rejected
merely because it is improbable; it can only
be rejected on the basis
of inherent probabilities if it can be said to be so improbable that
it cannot reasonably possibly be
true.”
[21] An intervention by
this court is in my opinion more acceptable and legally sound where
the findings of fact do not as such
depend on the personal
impressions made by a witness’s demeanour together with the
probabilities. See
Minister of Safety and Security and Others v
Craig and Others NNO
2011 (1) SACR 469
(SCA) at para [58].
[22] What is quite
apparent from a reading of the judgment of the court
a quo
is
that the court gave very little if any attention to the question as
to whether or not the appellant’s version was reasonably
possibly true or, to put it differently that their version was so
improbable that it could not reasonably possibly be true.
[23] On the facts I am of
the view that the version of the appellants is reasonably possibly
true. Three young men and a young woman
found themselves at a tavern
consuming alcohol, advances were made and a decision taken to enjoy
sexual intercourse involving a
scheme whereby second appellant was
obliged to leave the scene thereby facilitating sexual intercourse
between first appellant
and the complainant. The purchasing of the
snuff and the fact that it was left behind in the shack, on its own
lends strong support
to the version of the appellants. But that
version is fortified by the objective facts as detailed by the
complainant herself.
In leaving her panty and shoes at the shack of
first applicant strong support is to be found for the inference that
the complainant
did this so as to provide her elder brother with an
explanation for staying out all night, namely that she had to leave
the scene
in haste because of the rape, in the process leaving some
of her belongings behind. Further strengthening the appellant’s
version are the numerous contradictions I have listed in the
complainant’s evidence.
[24] In the circumstances
I respectfully conclude that the court
a quo
misdirected
itself in regard to the facts and the inferences to be drawn
therefrom and consequently erred in not finding that the
version of
the appellants was reasonably possibly true.
ORDER
[25] In the result the
following is ordered:
25.1. The appeals against
the convictions of rape and indecent assault are upheld.
25.2 .The convictions and
accompanying sentences in respect of both appellants are accordingly
set aside.
25.3. Both appellants are
acquitted on both counts of rape and the single count of indecent
assault.
_______________
P.U. FISCHER, AJ
I concur.
_____________
S. EBRAHIM, J
On behalf of the
applicant: Mr. D. Reyneke
Instructed by:
Justice Centre
BLOEMFONTEIN
On behalf of the
respondent: Adv. L. Zweni
Instructed by:
The Director: Public
Prosecutions
BLOEMFONTEIN
/eb