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[2013] ZAKZPHC 33
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Lehman v S (AR 210/2011) [2013] ZAKZPHC 33 (24 June 2013)
IN
THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
(REPUBLIC
OF SOUTH AFRICA)
Case
No: AR210/2011
In
the matter between:
BRENT
LYLE LEHMAN
....................................................................................
APPELLANT
and
THE STATE
..................................................................................................
RESPONDENT
JUDGMENT
HARTZENBERG,
A.J.
:
The Appellant, aged 44 at the
relevant time was convicted on 18 May 2007 in the Regional Court, at
Kokstad, of indecent assault.
He was sentenced on the same date to a
fine of R 4 000 or in default of payment of the fine to 2 years’
imprisonment, which
sentence was wholly suspended for a period of 5
years, on condition that the Appellant, during the period of
suspension was not
convicted of indecent assault. In addition, he
was ordered to pay compensation to the complainant in the amount of
R 5 000.
The Appellant, with the requisite
leave, appeals against his conviction. He does so on a number of
grounds, all of which are directed
essentially at factual findings
made by the learned Regional Magistrate.
The factual background to the appeal
is briefly as follows: The Appellant was the Manager of the Town
Talk Furniture Store in
Matatiele at the time. The complainant
applied for and was appointed to the position of Sales Advisor in
the store and commenced
working on 9 March 2005. The charge relates
to events which took place in the room where the complainant
resided, on 9 April
2005. The room occupied by the complainant is
situated in a building where there are a number of such rooms which
were being
let out to a number of different persons. The
complainant’s version of the events was to the effect that the
Appellant,
with some force and threats pushed her onto her bed and
attempted to have sexual intercourse with her. The Appellant was
however
disturbed by a knock on the door. The person knocking was a
debt collector employed by Barnett’s Furnishers, one Thabo,
who was known to both the complainant and the Appellant. Once this
happened, the Appellant left. The complainant was taken by
Thabo to
one Maliphapang, a neighbour and colleague of the complainant. O ne
gathers from the evidence of the Appellant that
this is the person,
Katherine Kiba, to whom the Appellant referred in his evidence. The
complainant, on the same day laid a charge
with the Police. Her
statement, however, was only recorded by Detective Inspector Sonia
Lamarque and signed by her on 22 April
2005. The Appellant’s
version of what transpired in the room, is very different. According
to him, it was the complainant
who invited him into her room. She
closed the door behind her and stood in front of the door. She
touched his hand, from which
he inferred that she was making sexual
advances to him. He too said that Thabo arrived and knocked on the
door. According to
him, the complainant invited Thabo in. The
complainant was fully dressed, as was he. In addition to this, the
Appellant alleges
that the complainant was completely composed, and
spoke in a normal tone.
The evidence focused mainly on the
events which took place on 25 March 2005, and those which took place
on 9 April 2005. With
regard to the events which took place on 25
March 2005, the evidence shows the following: 25 March 2005, was
Good Friday. The
Appellant fetched the complainant from her place of
residence. They drove into a rural area and delivered a kitchen set
to a
customer. The evidence of the complainant, which was
corroborated by that of her then boyfriend, one Maluleki Gidi, was
to the
effect that on this occasion, the Appellant came to the
complainant’s room. He knocked on the window calling for the
complainant
and said words to the effect that the complainant must
wear a “G-string”. The complainant accompanied the
Appellant
and, on her version, during the journey, the Appellant
made various sexual advances to her by
inter alia
inserting
his hand into her pants, touching her breasts, and making lewd and
sexually loaded remarks to her. The Appellant’s
version of the
events on this occasion, on the other hand, was that he had
pre-arranged with the complainant that the particular
delivery to
the customer would take place on that day. Indeed, it was the
complainant who asked that the delivery be effected
then, since the
customer had specially requested it, in view of the fact that the
customer’s husband would be returning
home for the Easter
weekend. According to the Appellant, nothing untoward happened on
this occasion. He explained that the discourse
between him and the
complainant was cordial, but at the same time congenial. According
to him, they stopped at a small shop in
a rural area where he gave
money to the complainant to buy them each a cooldrink. The
complainant brought some sandwiches and
fruit juice with her. She
ate the sandwiches along the way. They stopped to enable the
complainant to pick a bunch of cosmos
flowers. He allowed the
complainant to drive the vehicle, for a short distance, until he
realised that her driving skills were
inadequate. The complainant
took a photograph of the Appellant with a mobile telephone, with him
holding the cosmos flowers.
The complainant, it is common cause,
never laid a criminal charge against the Appellant arising from
these events. In re-examination,
the complainant, however, stated
that she lodged a grievance, through a trade union representative,
arising from this particular
incident. She further stated that she
heard that the Appellant had been suspended. This particular
assertion was purely hearsay,
and I do not take it into account for
any purpose.
Regrettably, the prosecution did not
lead the evidence of either Thabo or Maliphapang. Neither did the
prosecution lead the evidence
of the Policeman or Policewoman with
whom the complainant first laid the charge on 9 April 2005.
Counsel for the Appellant, with some
justification, criticised the way in which the case was presented by
the prosecution. She
also highlighted a number of aspects of the
complainant’s evidence which, it was contended, detracted from
the cogency
and reliability of the complainant’s evidence. In
this regard, counsel, in particular, pointed to certain
inconsistencies
between the complainant’s evidence and the
statement she made to the Police. She also contended that an adverse
inference
should be drawn against the prosecution for not calling
Thabo and Maliphapang.
In my view, despite certain
imperfections in the evidence of the complainant, the prosecution
had discharged the onus of proof,
establishing the Appellant’s
guilt beyond reasonable doubt. I say so for the reasons which
follow.
First, I do not find that any adverse
inference should be drawn from the prosecution’s failure to
call either Thabo or Maliphapang.
It is not clear on the evidence
whether these persons had furnished statements to the Police. I
accept that they were available
to be called as witnesses. It is
however noteworthy that the prosecutor stated during the trial that
Thabo was available to be
called by the defence. The failure by the
prosecutor to call these witnesses or either of them, may be due to
a number of factors,
including ineptitude or inexperience on the
part of the investigating officer and/or the prosecutor. In my view,
it would be
inappropriate, in these circumstances, to draw any
adverse inference against the prosecution from the fact that neither
of these
witnesses was called. The position is that the complainant,
on the very same day when the relevant incident took place, did
report
the matter to the Police. In fact it was the Appellant’s
own evidence, that he was also approached during that same afternoon
by the Police in connection with the incident.
Second, such inconsistencies as there
were between the complainant’s evidence and the contents of
her police statement,
are not of such a nature, in my view, as to
justify the rejection of her evidence either in its entirety, or in
respect of the
material aspects which underpin the Appellant’s
conviction. It is well recognised that statements of this nature
suffer
from imperfections, often not caused by or in any way
attributable to the witness who deposes to the statement. The causes
of
such imperfections are multiple and may include:
The fact that statements of this kind
are not intended to be a comprehensive account of the evidence which
a witness will give
in Court. The primary purpose of the statement,
is that of obtaining sufficient information which would enable the
prosecuting
authorities to determine whether the institution of a
prosecution is justified.
The statement is usually recorded in
the language of the Police officer recording the statement, which
may be different to the
home language of the witness. This was so it
appears, the position in this matter. The complainant stated that
she provided a
statement in Isi Xhoza, which had to be translated or
interpreted.
Statements of this kind often use
terminology with which the deponent is not familiar.
1
In this case the complainant was
subjected to searching and thorough cross-examination. With regard
to some of the inconsistencies
between the complainant’s
evidence and her Police statement, I make the following
observations: In relation to the complainant’s
evidence as to
what transpired between her and the Appellant in the bedroom, it is
clear to me that details of these events may
well be inadequately
and even incorrectly recorded in her Police statement. It should
also be borne in mind that the complainant
started giving her
evidence on 14 September 2006, that is to say some 17 months after
the relevant events. Her cross-examination
was interrupted and her
evidence was only finally concluded, on 16 March 2007. Events such
as those described by the complainant,
one may safely accept, would
induce fear and excitement which may well result in diminished
recollection of precise details of
the events and, particularly the
sequence of events. The criticism that the complainant said in her
Police statement that when
there was a knock on the door she gave a
“shout”, after which the person knocking opened it,
whereas in her evidence
she stated that she gave an instruction that
the person should enter, is, in my view, not justified. The import
of the complainant’s
evidence is that she made it known to the
person knocking that he should enter. The further criticism that the
complainant in
her Police statement said that she closed the door
behind her after the Appellant had entered, whereas in her evidence,
she stated
that it was the Appellant who closed the door, in my
view, is not material. Again, what was material, is that the door
was closed,
and the complainant and the Appellant, were alone in the
complainant’s bedroom. The fact that the complainant did not
in
her evidence in chief state that the Appellant on 9 April 2005
said to her that he wanted to make love to her, whereas she did
state in her Police statement that he did make such statement to
her, in my view, is not material. It appears that the complainant
was not specifically asked, when she was examined in chief, whether
the Appellant had on 9 April 2005, said that he wanted to
make love
to her. This is the kind of detail, which even a perfectly honest
and candid witness may forget.
In my view,
the
learned Regional Magistrate’s finding that the Appellant did
indecently assault the complainant on 9 April 2005, is
correct. My
reasons are the following: First, the Magistrate, correctly in my
view, held that the Appellant was sexually attracted
to the
complainant. It is significant that on both occasions when the
complainant alleges the Appellant behaved inappropriately
towards
her, the initiative, for being alone with the complainant came from
the Appellant. On the first occasion, namely Good
Friday 25 March
2005, being a public holiday, it seems that the Appellant arranged a
somewhat extra-ordinary delivery of a kitchen
set to a customer. On
the second occasion, the Appellant, after he had given the
complainant a lift home, and had dropped her
off, returned to the
complainant’s place of residence. I find the Appellant’s
explanation as to why he returned to
the complainant’s place
of residence, unconvincing. It also appears, even on the Appellant’s
own version, that he,
being in a position of authority, behaved in a
manner which was unusually familiar towards the complainant. Second,
I find that
the evidence of the complainant that, on 25 March 2005,
the Appellant told her to wear a “G-string”, as
corroborated
by the evidence of Gidi, clearly illustrates that the
Appellant had, even before departing to effect the delivery of the
kitchen
set, made a suggestion to the complainant that he found her
sexually attractive. The further conduct of the Appellant on 25
March
2005, as testified to by the complainant, is consistent with
the Appellant’s earlier statement before departing that the
complainant should wear a “G-string”. It is noteworthy
that when both the complainant and Gidi were cross-examined,
it was
not put to them that their evidence with regard to the “G-string”,
was false, but merely that they had misheard
the Appellant. Third,
the Appellant, on his own version, stated that it was inappropriate
when, on his own version, the complainant
held his hand, in the
complainant’s bedroom, with the door closed. If, the Appellant
indeed believed that what was taking
place between him and the
complainant, inside her bedroom, was inappropriate, he was
singularly inactive in doing anything about
it. Fourth, the conduct
of the complainant, in immediately, once the Appellant left, taking
steps to lay a charge, in my view,
is entirely consistent with the
complainant’s state of mind and attitude that the Appellant
had behaved inappropriately
and indeed wrongfully towards her on 9
April 2005. Fifth, the conspiracy theory put forward by the
Appellant as to why the complainant
would falsely implicate him, in
my view, is speculative at best, for the Appellant. The complainant
had by then been employed
for about a month at Town Talk. It is
hardly likely that she, where she depended upon her employment,
would become embroiled
in such conspiracy with Kathrine Kiba, who
previously had a dispute with the Appellant, more so in spearheading
a campaign to
get rid of the Appellant, within such a short period
of time. Even on the Appellant’s own version, by the time of
the relevant
events, the dispute with Kathrine Kiba, had been
determined and she had been reinstated. Sixth, it should be borne in
mind that
a trial Court’s conclusions, in the absence of
misdirections, are to be presumed to be correct. A reasonable doubt
as to
such conclusions will not suffice. If an appeal Court is
merely left in doubt, it will uphold the trial Court’s
conclusions.
2
Counsel for the Appellant further
asked that the appeal be upheld and that the conviction and sentence
of the Appellant be set
aside and further that an order be made that
the trial Court hear the evidence of Thabo. Such request, in my view
is not well
founded. Both the prosecution and the defence had ample
opportunity to call Thabo at the trial. The request was in any event
belatedly made. For this to have had any substance, it was necessary
for the Appellant to institute a formal application to lead
further
evidence on appeal. There is no such application before the Court.
For these reasons, I would therefore
propose that the appeal be dismissed.
________________________
HARTZENBERG, A.J.
I
agree and it is so ordered.
________________________
VAN ZÿL, J.
COUNSEL FOR THE APPELLANT: Adv D.
Barnard instructed by Attorneys Goolam & Associates, Kokstad
COUNSEL FOR THE STATE: Adv W. Smit,
instructed by the Director of Public Prosecutions, Durban
DATE OF THE HEARING: 20 June 2013
DATE OF JUDGMENT: 24 June 2013
Lehman.notes
(18 6)
1
S
v BRUINERS EN ‘N ANDER, 1998(2) SACR 432 (SE) at 437 h
S v MAFALADISO EN ANDERE, 2003(1) SACR 583 (SCA) at 593
e – 594 h
S v GOVENDER, 2006(1) SACR 322 (E) at 324 j – 326
h
2
R
v DHLUMAYO AND ANOTHER, 1948(2) SA 677 (A) at 706
S v MLUMBI EN ‘N ANDER, 1991(1) SACR 235 (A) at
247 g