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[2012] ZAGPPHC 102
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Mmthethwa v S (A1015/2009) [2012] ZAGPPHC 102 (13 June 2012)
SAFLII
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Certain
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NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG HIGH COURT, PRETORIA
CASE
NO: A1015/2009
DATE
OF APPEAL: 14 MARCH 2012
DATE:13/06/2012
IN
THE MATTER BETWEEN:
ROBERT
SHAKA
MTHETHWA
...............................................................................
APPELLANT
AND
THE
STATE
.........................................................................................................
RESPONDENT
JUDGMENT
A
A LOUW. J
[1]
The appellant was the second accused in the court a quo namely Piet
Retief Regional Court. According to the charge sheet he
is 19 years
of age. The charges were that the accused on 20 September 2008 at
Kwangema/Dirkiesdorp kidnapped (charge 1) and raped
(charge 2) N N, a
fifteen (15) year old female. I may immediately mention that although
the complainant is indicated in the charge
sheet as fifteen (15)
years, that according to her birth certificate which was an exhibit,
she was in fact only fourteen (14) years
old.
[2]
Accused 1 was discharged in terms of section 174 at the close of the
State case. The appellant was found guilty on both charges.
The
magistrate took both convictions together for purposes of sentence
and sentenced the appellant to ten (10) years' imprisonment.
[3]
With leave of the trial court this appeal is against the convictions
and the sentence.
[4]
The complainant's evidence was that on the night in question
approximately 21:30 she was at home watching TV with other family
members. The first accused entered and asked her to go outside with
him. She thought that he was going to take her to his house
so that
they could listen to CD's. Outside she found the appellant who
grabbed her and started pulling her saying that they should
go to his
home. According to her he pulled her the whole way to his home which
is about 700-800 meters away, whilst at the same
time beating her
with open hands, fists and a white stick he had with him. This was
along the gravel road running through the area.
[5]
Arriving at his house, the appellant took her into his bedroom where
he assaulted her further. He forced her onto the bed. At
that stage
they were both still dressed. He lifted her skirt and pulled off her
panty. He then had sex with her against her will.
She first testified
that he penetrated her anus. From further evidence it is not clear
whether the penetration was anal or vaginal
but for purposes of
charge 2 that is irrelevant. In any event the appellant admits sexual
intercourse but pleads consent.
[6]
The complainant spent the night there. Early the next morning the
appellant took the complainant home. It is common cause that
at some
distance her father saw them coming and wanted to assault them. They
both ran away. The father, Mr Ngema, who was described
by the court
as an impressive witness said that he was outside very early that
morning feeding the chickens when he saw them coming
along. He was
clearly angry because the complainant had no permission to spend the
night away from home. He forthrightly states
that he wanted to give
the complainant a hiding. She saw that and therefore she ran away.
When he eventually found her he saw that
she had already been
assaulted and therefore he did not give her a hiding. Her face was
swollen and she had been assaulted all
over her body ("orals aan
haar lyf was sy geslaan"). Most importantly, she had a tooth
missing.
[7]
I share the court's view that Mr Ngema is an impressive witness. He
candidly admits that he would have assaulted the complainant,
had she
not been assaulted already and that he also gave chase when the
appellant ran away. The appellant jumped over a fence into
a
neighbour's property and got away. According to the accused Mr Ngema
also had a 'knopkierrie'.
[8]
The niece of the complainant gave evidence on one aspect only. The
relevance of her evidence is that she was watching TV with
the
complainant but the time was about 17:30, not 21:30, when the first
accused together with Bongani Ngema came in and asked the
complainant
to accompany them. After she had gone out with them, Bongani came
back and informed them that complainant left with
the first accused
and the appellant. In her evidence she says that the complainant left
with "Shaka-hulle".
[9]
The last state witness was a policeman, constable Nkosi. He gave
evidence only on a witness statement which the appellant allegedly
made. During his evidence Mr Robbertse, who defended both accused,
stood up and informed the court that the voluntariness of the
statement is not disputed. According to the evidence presented, the
only relevance of the statement would have been that the appellant
in
that statement allegedly denied that he had had sex with the
complainant. This is of course directly contrary to the defence
presented by the appellant at the trial.
[10]
However, this statement was never admitted in evidence. Mr Robbertse
put it to constable Nkosi that the statement was not taken
down
correctly because the appellant had in fact admitted intercourse to
constable Nkosi.
[11]
Once the correctness of the statement was in dispute a trial within a
trial had to be held. The voluntariness of a statement
is only one
aspect that has to be satisfied for the admission of an extra-curial
statement. The State also has to satisfy the court
that the statement
was correctly taken down with evidence relating to the language in
which the statement was made, whether there
was any translation in
writing the statement down, whether it was read back to the
appellant, and if so if that was again a translation
and whether an
interpreter was used etc. The position was put as follows in S v
Tshabalala
1999 (1) SACR 163
(T) where the court remarked as follows:
"Mef
ander woorde jy kan nie die verklaring in kruisondervraging gebruik
tensy dit vas staan dat die getuie wel daardie verklaring
gemaak het
nie. Soos ek netnou verwys het na die getuienis waar die getuie
Mhlangu ondervra is in hierdie saak oor sy vorige verklaring,
kan
daar nie sommer met die deur in die huis geval word aan die hand van
ln verklaring in die dossier en aan die getuie gestel
word, maar jy
het so gese nie, daar moet eers gevra word: 'het jy dit gese, is dit
jou verklaring, is dit jou handtekening?' En
as hy dit erken en dit
is teenstrydig met wat hy nou se in die hot le dit 'n basis vir
kruisondervraging." (at 167f-h.)
[12]
The State conceded the above, namely that the police statement is
inadmissible evidence. No reliance can therefore be placed
on this
statement as the Magistrate did in his judgment.
[13]
The appellant's version was that he and the complainant had a love
relationship since 2006. She informed him that she was sixteen
(16)
years old. That they at some stage had a relationship is common cause
also from the complainant's evidence. There is no evidence
that at
any stage this was a sexual relationship. The accused's version was
that the complainant willingly accompanied him to his
home. On
arrival at his home his mother and brothers Robert and Andries were
also there.
[14]
During the course of the evening he received a telephone call from a
Mr. Nyembe, who is the complainant's neighbour, and who
informed the
appellant that he had to "Voetsek" as the complainant is
his girlfriend and that she was with him the previous
evening. He
continued to testify that that made him very angry and therefore he
assaulted the complainant by hitting and kicking
her. At that stage
his older brother Sapagha Mnishwa came into the room and reprimanded
the appellant. He therefore stopped assaulting
her. He gave her a
sponge mattress to sleep on. He got onto the bed to sleep. The
complainant kept on crying and protested that
the incident with
Nyembe on the previous evening was against her will.
[15]
He said that he felt sorry for her and took her into the bed to
comfort her. She in fact requested intercourse and he said
that at
that stage he would have done everything to please her as he
regretted that he had assaulted her.
[16]
The next morning when he wanted to take her home she was reluctant.
She said that he had to accompany her to within view of
her parent's
house so that her parents could see them and realise that they had a
relationship. When he saw the complainant's father
with a
"knopkierrie" he ran away.
[17]
Appellant further testified that after the incident the complainant's
friend M brought him a letter. Although the letter was
not formally
granted an exhibit number in the record, it is common cause that the
handwritten letter in the court file is the letter
in question. There
is also an official translation by a sworn interpreter of this court.
The letter reads as follows:
TRANSLATION
How
are you? I'm fine but I'm always heart-broken about what has
happened. Shak, I think we should take it easy for a while because
our parents are embroiled on our affairs.
Please
be patient with me, because if I can break up with you, it is obvious
that I will never find true love like I found in you.
You know that
what happened is not your fault and I don't know what to say.
Good
bye - give your reply to M
I
wish you sweet dreams."
[18]
When this letter was put to the complainant in cross-examination, she
denied that she had any knowledge of the letter.
[19]
On behalf of the appellant the complainant's friend M was then
called. Her evidence was that during 2008 she knew that the
complainant and the appellant had a relationship. She remembers very
well when the letter was written. They were at school together
and in
class when the complainant asked to borrow M's pen. She then
proceeded to write the letter to the appellant whilst M was
present.
She
said to M that she wanted to write the letter to apologize to the
appellant about what had happened. The complainant also asked
her to
deliver the letter to the appellant, which she in fact did.
[20]
In evaluating the evidence it is firstly of importance to note that
the Magistrate put great reliance on the appellant's alleged
warning
statement to the police. In the judgment the policeman is described
as a key witness. In the same vein the court continues
to say that
this evidence was fatal to the version of the appellant. Once this
evidence is eliminated, as it has to be done, this
court must come to
its own finding on the admissible evidence.
[21]
The judgment a quo did not refer to the complainant's letter at all.
The evidence on behalf of the defence about this letter
has to be
accepted. There is no basis to reject the appellant's evidence in
this regard and especially no reason at all to not
accept M's
evidence.
[22]
The acceptance of this evidence leads to the inevitable conclusion
that the complainant was lying when she denied any knowledge
of this
letter. There is no question that she could have been mistaken about
whether she had written that letter or not - she quite
clearly lied
under oath. This fact alone means that she is not a reliable single
witness as required by the long list of authorities
pronouncing on
the effect of section 208 of the Criminal Procedure Act. This is,
however, not the only aspect. During argument
the State quite
properly conceded that the complainant must also have falsely
implicated accused no 1 in the alleged kidnapping.
The complaint that
she was kidnapped also by accused 1 could only have come from the
complainant. Accused no 1 was totally innocently
drawn into this
case. Under cross-examination (record page 25) she said that Themba,
that is accused no 1, did nothing. The following
passage then
follows:
"Nou
waarom het jy vir die Polisie gese Themba het gehelp om jou te trek
... om jou te gryp en jou te trek? - Miskien het ek
dit gese, maar ek
is nie seker daarvan nie."
[23]
A third criticism of the complainant's evidence is the time she
testified that they left her home namely 21:30. Her niece testified
that it was approximately 17:30 whilst the accused said the time was
18:00. The time difference between these versions is so remarkable
that it cannot be said that the complainant was merely mistaken.
Thus, on the complainant's version the kidnapping occurred at
night,
whilst on the version of her niece and the accused it was still
daylight.
[24]
As no reliance can be placed on the evidence of the complainant, it
means that any finding of guilty can only be based on the
following:
the evidence of her father, her niece, M and the objective evidence.
The objective evidence includes the nature and
extent of her injuries
(see the J88, exhibit "C") and the letter she wrote to the
appellant.
Against
this evidence the evidence of the appellant has to be evaluated.
Charge
1: Kidnapping
[25]
As it has now been established that this occurred during the day and
not at night, it makes the version of the complainant
that she was
pulled along a public street for a distance of up to 800 metres
whilst continuously being assaulted not only with
open hands, fists,
but also with a stick, highly improbable. Certainly members of the
public would have intervened in seeing this
young man assaulting the
girl continuously in this manner. Her evidence was that she was
beaten all the way to the appellant's
home. If that is the case she
must have arrived at appellant's home in an injured state. If that
had been the case then surely
the accused's mother and brother who
saw her on arrival would have noticed that. On the other hand the
probabilities favour the
version of the appellant as it is not in
dispute that they were involved in a relationship. The contents of
the letter also lend
strong support for a finding that she went with
him willingly. In any event, there is no reason to find that the
appellant's version
is not reasonably possibly true. The conviction
on kidnapping has to be set aside.
Count
2: Rape
[26]
It is common cause the appellant assaulted the complainant at his
home. According to the medical report she had a blackened
left eye
and one tooth missing. The appellant admits that he slapped her once
and also kicked her on her body whilst wearing shoes.
It is not in
dispute that her face was swollen and nose bloodied.
[27]
Undoubtedly, one aspect on which the appellant's version cannot be
accepted, is that he denies knowledge of the lost tooth,
implying it
was not he who inflicted that injury. He attempted to shift the blame
to the complainant's family who would have assaulted
her when she
came back home. I reject this suggestion as the evidence of her
father is totally reliable in this respect.
[28]
Of course, the fact that a witness lies in one respect, does not mean
that everything that witness says must be rejected. As
I attempted to
make clear above, that evidence has to be weighed against the other
acceptable and objective evidence. The crucial
question remains: did
the complainant after the assault consent to intercourse? Once again
certain probabilities come into play.
It flies in the face of
probability that the rapist on the next morning accompanies the
complainant to her home and furthermore
that she also ran away when
she saw that her father was aggressive. On probabilities the
appellant would, if he had raped her,
not have wanted to be seen with
her in public at all and furthermore the complainant would not have
run away from her father but
would rather have run towards him for
protection. Once again the content of the letter is crucial evidence.
That is not a letter
one writes to a person who had raped you.
[29]
On the other hand one must also ask the question how probable it is
that sex would have occurred after an assault of this nature.
Although this might at first seem strange, it is not unusual that
after a lover's quarrel, even if violence was involved, the parties
regret what had happened, attempt to make up and seek to comfort each
other, which eventually leads to sex. This is the version
of the
appellant. I cannot, on the question of consent, reject the
appellant's version beyond reasonable doubt. The conviction
on rape
has to be set aside.
[30]
What is left then is that the appellant assaulted the complainant. In
State v Zwezwe 2006(2) SACR 599 (NPD) the following was
said at 603
(b - d):
"Regarding
the second leg of the enquiry, what distinguishes the crime of
assault with intent to do grievous bodily harm (assault
GBH) from
common assault is that, in the case of assault GBH, the offender must
have intended to cause the complainant grievous
bodily harm. The
enquiry into the existence of such an intent requires consideration
of the following factors :-
(a)
The nature of the weapon used and in what manner it was used;
(b)
The degree of force used and how such force was used;
(c)
The part of the body aimed at; and
(d)
The nature of injury, if any, which was sustained.
1
[31]
None of these facts can be viewed in isolation. The appellant did not
use any weapon but still slapped her in the face with
sufficient
force to dislodge a tooth. However the extent of the injuries was not
serious. According to the evidence of the doctor
contained in the J88
the only injuries he noticed was the blackened eye as well as the
missing tooth. There was no evidence of
any injuries to her body
caused by the kick. There were also no lacerations. Of course, if he
had kidnapped her and hit her continuously
with a white stick, there
could have been some injuries to the body, but I have already
rejected the complainant's version in this
regard. On weighing of all
these factors I cannot find that assault GBH was committed, because
the intent to do grievous bodily
harm was not proved beyond
reasonable doubt.
[32]
I conclude that the appeal must succeed. Assault is a competent
verdict on charge 2.
Sentence:
[33]
It thus follows that we must impose a new sentence. The accused was
19 years of age and in grade 10 when he committed the offence.
[34]
However, he assaulted a complainant who was only 14 years old.
[35]
The court a quo correctly emphasised the following:
"Wat
myns insiens verswarend is, is dat u die klaagster redelik ernstig
beseer het deur haar aan te rand, en onder andere 'n
tand uit te
slaan. Die gemeenskap, en spesifiek vrouens en kinders, word swaar
deur hierdie voorvalle getref en hulle verlang ook
sterk optrede in
die geval."
[36]
On the other hand the following factors weigh heavily in not sending
the appellant to jail:
36.1
He is a first defender;
36.2
He is 19 years old;
36.3
He was still at school in grade 10;
36.4
The assault occurred because he was jealous;
36.5
He showed remorse in the sense that he admitted that he assaulted
her;
36.6
There was reconciliation between the appellant and the complainant
after the incident. This is evidenced by her letter to him
quoted
above. It seems that she still loves him.
[37]
These six factors weigh heavily and militate against sending this
young man to jail. I therefore conclude that a suspended
sentence
would be appropriate.
I
therefore propose the following order:
1.
The convictions and sentence are set aside;
2.
The order that the particulars of the accused be entered into the
register of sexual offenders in terms of s 50(2)(a) of the
Criminal
Law (Sexual Offenders and Related Matters) Amendment Act, 32 of 2007
is set aside.
3.
The following is substituted:
"3.1
The accused is found guilty of assault;
3.2
The accused is sentenced to three years' imprisonment.
3.3
The sentence is wholly suspended for 5 years on condition that during
the period of suspension the appellant does not commit
any crime of
which violence is an element and for which he is sentenced to
imprisonment without the option of a fine. "
A
A LOUW
JUDGE
OF THE HIGH COURT
I
agree
N
P MNGQIBISA-THUSI
JUDGE
OF THE HIGH COURT
I
agree
KEM
MATOJANE
JUDGE
OF THE HIGH COURT
1
S
v Dipholo 1983(4) SA 757 (T);