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[2012] ZAFSHC 86
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Nkomo and Others v S (A20/2011) [2012] ZAFSHC 86 (3 May 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A20/2011
In
the appeal between:-
JABULANI NKOMO
…......................................................
First
Appellant
LAWRENCE MASOABI
…...........................................
Second
Appellant
TIMOTHY
MOKHOEBI
….................................................
Third
Appellant
and
THE
STATE
….......................................................................
Respondent
_____________________________________________________
CORAM:
C.J.
MUSI, J
et
DAFFUE, J
_____________________________________________________
HEARD ON:
23 APRIL 2012
_____________________________________________________
JUDGMENT BY:
DAFFUE, J
_____________________________________________________
DELIVERED ON:
3 MAY 2012
_____________________________________________________
INTRODUCTION
[1] On 15 September 2009
the three appellants were convicted in the Regional Court, Sasolburg
on one count of rape. On 28 September
2009 they were each sentenced
to 18 (eighteen) years’ imprisonment, such sentences to run
concurrently with their remaining
periods of incarceration.
[2] Upon dismissal by the
court
a quo
of their application for leave to appeal against
their convictions and sentences, appellants applied for leave to
appeal to this
court. On 18 August 2010 Van der Merwe and Mocumie JJ
granted leave to appeal against the convictions and sentences.
ISSUES ON APPEAL
[3] It was submitted on
behalf of appellants that the court
a quo
erred in accepting
the evidence of the complainant – a single witness – to
be credible and reliable, notwithstanding
several contradictions and
the absence of objective facts to substantiate his claim of being
raped. It was further submitted that
the court
a quo
was also
wrong not to accept that complainant had a reason to falsely
incriminate appellants in the light of the evidence which
was common
cause. Although the sentence was attacked in the heads of argument
prepared by Mr. Reyneke on behalf of appellants,
Mr. Pretorius who
argued the matter before us conceded that the sentence was
appropriate. Mr. Mthethwa, on behalf of the State,
supported the
judgment of the court
a quo
.
SUMMARY OF THE
EVIDENCE
[4] On or about 5 October
2008 the complainant, Jabulani Jack Maduna, a sentenced inmate,
shared a cell in the Groenpunt Correctional
Centre, Sasolburg, with
the three appellants and twelve others.
[5] The complainant
testified that he had been awakened by first appellant around twelve
o’ clock the Friday night/early Saturday
morning. He was taken
to the only toilet in their cell. The second and third appellants
accompanied them on the instructions of
first appellant. It is common
cause that the lights in the cells were normally put off at ten o’
clock at night, but that
the light in the toilet was never switched
off. The toilet, which is located within the cell, does not have a
door. The complainant
and the three appellants were members of the
Rough (RAF?) 3 gang. Inside the toilet second and third appellants
grabbed him by
the arms and caused him to bend forward whilst first
appellant undressed him by pulling down his pants. First appellant
put on
a condom and penetrated his anus with his penis and continued
to have sexual intercourse until he ejaculated. Thereafter the first
appellant left and third appellant had sexual intercourse with him in
exactly the same manner. Lastly, second appellant did the
same.
Thereafter they instructed him to go into the shower to wash. On the
Monday morning complainant reported the incident to
Mr. Ramotse, an
employee of the Department of Correctional Services and the Unit
Supervisor.
[6] In cross-examination
complainant admitted that he had an altercation with a person known
as 619. This occurred prior to the
alleged rape and this person hit
him with his fists. It was put to him that he requested the others in
his cell and appellants
in particular to assist him in his fight
against 619, but that they declined to do so. The complainant denied
this. He furthermore
admitted in cross-examination that he had a
fight with second appellant prior to the rape incident. He mentioned
in cross-examination
that an eyewitness, one Carbo, could testify
about the rape on him, but when he reported the matter to Mr. Ramotse
he informed
him that he was not sure whether anybody had witnessed
this.
[7] After the incident he
noticed that he was bleeding from his anus. However the J88 medical
report which was completed after an
examination on Monday 7 October
2008, does not bear any proof of injuries at all. Furthermore it was
not noted that the complainant
was in pain as he had allegedly
informed the doctor.
[8] Discrepancies between
the complainant’s statement and his
viva voce
evidence
were put to him in cross-examination. He denied ever informing the
police that he was told by first appellant that before
he could be
given his present gang number, he had to have sex with him. According
to him the police lied about this. In his statement
he mentioned that
second appellant was the second person who had raped him, whilst he
testified that was incorrect as second appellant
was the last person
to rape him. According to his statement he immediately showered after
the rape “as the smell of condoms
was very bad”. In the
statement there was no reference to the fact that he was forced to
shower, but he maintained this in
his
viva voce
evidence.
[9] According to Mr.
Ramotse complainant informed him that he did not want to report the
matter earlier to the other warders as
he did not trust them and
preferred to wait until Monday when Mr. Ramotse came on duty.
Complainant’s version was that he
did not report the matter
earlier because he was threatened not to do so and also because he
was ashamed about what happened to
him. Later on and because he was
emotionally hurt he decided to report the matter.
[10] According to Mr.
Ramotse complainant reported to him that he had to be taught about
the rules of the air force, but before
then he had to sleep with
appellants. This is in line with the complainant’s statement
wherein he indicated that first appellant
had told him that before he
could give him his prison gang number complainant must first have sex
with him. In his evidence he
did not testify that he had been
informed that sex with him had to take place first before first
appellant could teach him about
the Rough (RAF?) 3 gang.
[11] Mr. Ramotse
testified about complainant’s hospitalisation for a month and a
week after the alleged rape incident, that
complainant behaved
abnormally afterwards and that he informed him that he was thinking
of committing suicide. He even arranged
with a nursing sister to
provide “physiological” (sic) treatment to complainant.
According to this witness complainant
also suffered from epilepsy
after the incident. The complainant did not mention anything about
his medical condition or hospitalisation
after the incident, save for
the allegation that he suffered pain which was not recorded by the
doctor who completed the J88 medical
report.
[12] Appellants denied
the allegations levelled against them. According to them they were
fast asleep when the alleged incident
would have occurred. They
called two witnesses, firstly Mr. Ngalo who was detained in the same
cell and who held the position of
assistant monitor. His bed was the
closest to the toilet. He confirmed the two incidents between
complainant and the person called
619 and complainant and second
appellant. He testified that if complainant was indeed raped, the
cell members would have heard
it as he expected complainant to
scream. He was neither a member of the Rough (RAF?) 3 gang, nor any
other gang.
[13] The next witness on
behalf of the defence was Mr. Sizane Nthutang, a cellmate of all the
others. In his
viva voce
evidence he testified that he noticed
second and third appellants in the toilet between eight and nine
o’clock on the Saturday
night. He denied having entered the
toilet at the stage when the three appellants and complainant were
present and when the alleged
rape occurred the Friday night as
testified to by complainant. According to him complainant wanted him
to testify on his behalf
that he was indeed raped. He mentioned that
he had been bribed by the complainant who gave him two Dawn products,
two phone cards
and a roll-on. He was confronted with his statement
made to detective L.J. Hendrikse. Mr. Hendrikse testified about the
statement
which was accepted as part of the evidential material. The
statement was taken down in Afrikaans whilst, according to Mr.
Hendrikse,
the consultation was in English. On Mr. Hendrikse’s
version he read the statement back to the witness by simultaneously
translating
it into English. According to the version set out in the
statement, Mr. Nthutang went to the toilet Sunday morning at three o’
clock where he found second and third appellants with one Jack Mabaso
(apparently a reference to complainant). The name Jack Jabulani
also
appears on the statement as being one of the persons present in the
toilet, but this name was deleted by Mr. Hendrikse at
the request of
the witness prior to the statement being signed.
LEGAL PRINCIPLES
[14] In assessing the
evidence a court must in the ultimate analysis look at the evidence
holistically in order to determine whether
the guilt of the accused
is proved beyond reasonable doubt. This does not mean that the
breaking down of the evidence in its component
parts is not a useful
aid to a proper evaluation and understanding thereof. There is no
substitute for a detailed and critical
examination of each and every
component in a body of evidence, but once that has been done, it is
necessary to step back a pace
and consider the mosaic as a whole. If
that is not done, one may fail to see the wood from the trees. See
S
v SHILAKWE
2012 (1) SACR 16
(SCA) at [11] and
S v
HADEBE AND OTHERS
1998 (1) SACR 422
(SCA) at 426 f – h.
[15] It is acceptable in
evaluating the evidence in its totality to consider the inherent
improbabilities. Heher AJA (as he then
was) dealt with this aspect as
follows:
“
The correct
approach is to weigh up all the elements which point towards the
guilt of the accused against all those which are indicative
of his
innocence, taking proper account of inherent strengths and
weaknesses, probabilities and improbabilities on both sides and,
having done so, to decide whether the balance weighs so heavily in
favour of the State
as
to exclude any reasonable doubt about the accused's guilt.”
See
S
v CHABALALA
2003 (1) SACR 134
(SCA) at
[15].
[16] An accused may be
convicted of any offence on the single evidence of any competent
witness. See section 208 of the
Criminal Procedure Act, 51 of 1977
.
[17] The danger of
relying exclusively on the evidence of a single witness has evoked a
judicial practice that such evidence be
treated with the utmost care.
De Villiers JP opined 80 years ago pertaining to the predecessor of
section 208
that the section should only be relied on when the
evidence of a single witness is clear and satisfactory in every
material aspect.
See
R v MOKOENA
1932 OPD 79
at 80. The
rule was put in perspective in several judgments of the former Appeal
Court and there is no doubt that the exercise
of caution should not
be allowed to displace the exercise of common sense. See
S v
ARTMAN AND ANOTHER
1968 (3) SA 339
(A) at 341.
[18] Although
contradictions and omissions in the evidence of a single witness may
not be material on their own, they may tend,
collectively, to have a
negative impact on the credibility of the witness. See
S v
JANSE VAN RENSBURG
2009 (2) SACR 216
(C) at [12]. A court is
allowed to compare the nature and quality of the complainant’s
evidence with that of the accused.
See
MAAKE v DPP
[2011] 1 ALL SA 460
(SCA) at [6] and [8] and
S v CHABALALA
,
loc cit
, at [15].
[19] The cautionary rule
applied in sexual cases has been dealt with comprehensively after the
adoption of our Constitution. See
S v JACKSON
1998 (1)
SACR 470
(A) in which judgment it was emphasised that judges were not
required to conform to any formula, and courts of appeal should be
slow to interfere with the exercise of the discretion by a trial
judge (or magistrate) who had the advantage of being able to assess
the evidence in question.
[20] In the case of
differences between the
viva voce
evidence of a witness and
his or her statement, it remains the duty of the trial court to
consider these differences, which may
even be material, and its final
task is to weigh up the previous statement against the
viva voce
evidence, to consider all the evidence and to decide whether the
evidence is reliable or not and whether the truth has been told,
despite any shortcomings. See
S v MAFALADISO EN ANDERE
2003 (1) SACR 583
(SCA) at 593 b - 594 h.
THE COURT
A
QUO
’
S APPROACH
[21] Although the court
a
quo
indicated that the evidence of the complainant had to be
approached with caution, it nevertheless found as follows:
“
I must say
that the evidence of the complainant there is nothing wrong that I
picked up.” (
sic
)
“
That is,
even during cross-examination, there is nothing that the court picked
up as being strange in the evidence. There were no
contradictions
picked up by the court regarding the incident.”
[22] The court
a quo
went on to say that there were inconsistencies and only four were
quoted, i.e.
who undressed
complainant;
what time the incident
occurred;
that complainant did not
testify that he had become epileptic after the incident; and
whether or not
complainant was threatened with assault or that he would be killed
if he reported the incident.
[23] The court
a quo
also mentioned that complainant was not certain whether anyone
witnessed the incident. Mr. Ramotse was also not informed that the
complainant bled.
[24] The court
a quo
referred to the evidence of Mr.
Nthutang who
testified that second and third appellants were seen at the toilet
between eight and nine o’ clock the Saturday
night and before
the lights (excluding the toilet light) were switched off. It then
came to the following conclusion:
“
Their (the
appellants’) bare denial is refuted by the evidence of the
witness (Nthutang) who places the accused number 2 and
3 at the
scene.”
[25] The court
a quo
found that the evidence by Mr. Ramotse pertaining to the
complainant’s condition after the alleged rape was indicative
of
trauma.
EVALUATION OF THE
COURT
A QUO
’S APPROACH
[26] The court
a quo
did not consider the evidence holistically in order to determine
whether the guilt of the appellants was proved beyond reasonable
doubt. It is apparent that the court
a quo
considered the
version of the state witnesses in isolation and accepted the
reliability and correctness thereof notwithstanding
contradictions
and improbabilities and without seriously considering the merits and
demerits in the version of the defence. In
doing so, it paid lip
service to the cautionary rule applicable to single witnesses.
Insufficient weight was afforded to the fact
that the evidence of
complainant as a single witness was not supported by the medical
report or any other objective fact, that
there were material
discrepancies between his
viva voce
evidence and his statement
and between his evidence and that of Mr Ramotse.
[27]
The court
a quo
incorrectly mentioned that complainant
was not certain whether anyone witnessed the incident. This is not
correct as complainant
positively testified that one Cargo (Mr.
Nthutang it turned out to be) “saw that these people were busy
raping me…..”
However Mr. Ramotse recalled that
complainant indicated that he was not sure whether anyone witnessed
the rape.
Although the court warned itself to
apply safeguards, none were shown to be applied. It came to an
inaccurate conclusion pertaining
to the evidence of Mr. Nthutang in
that it was never complainant’s case that he was raped on the
Saturday night between eight
and nine o’clock when the lights
in the cell were still on. On his version he was raped the previous
night at about midnight.
No medical evidence was tendered pertaining
to complainant’s condition after he was examined for purposes
of the J88 medical
report. No nexus between the alleged rape and his
epilepsy has been proven, but a causal link appears to be highly
improbable.
It is not necessary to speculate, but it is also possible
that complainant was not prepared to remain in the cell any further
after
the two incidents described by most of the witnesses and that
he invented a strategy and created an opportunity to arrange his
relocation.
[28] It might be blamed
to a slip of the tongue by the court
a quo,
but the fact
remains that the following was stated when the application for
discharge in terms of section 174 was considered:
“
It is the
feeling of this court that the
State
has proved its case beyond a reasonable doubt.
In other words at this stage there is a
prima
facie
case against you.” (emphasis added)
[29] It totally
disregarded complainant’s alleged motive for falsely
incriminating appellants, notwithstanding acceptable
evidence which
lent support to their version. The version of Mr. Nthutang was
attacked when appellants’ denial was considered
and in this
regard the court
a quo
merely mentioned – incorrectly
may I add – that
“
they (the
appellants) could not advance a tangible reason why they would say
complainant was falsely incriminating them amongst
the 16 cell
members.”
[30] In conclusion
various contradictions and improbabilities were disregarded by the
court
a quo
not the least being the absence of objective facts
to substantiate the allegation that complainant was raped. I am of
the view
that sufficient doubt has been cast upon the State’s
version. The court
a quo
came to a wrong conclusion in
accepting the evidence of the State and rejecting the version of
appellants as not reasonably possibly
true.
[31] Consequently the
convictions and sentences should be set aside.
ORDER
[32] In the premises I
would
1. uphold the appeal; and
2. set aside the
convictions and sentences of all three appellants.
_____________
J.P. DAFFUE, J
I concur and it is so
ordered.
___________
C.J. MUSI, J
On
behalf of appellants: Mr. K. Pretorius
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of respondent: Adv. S. Mthethwa
Instructed
by:
Office of the Director of
Public Prosecutions
BLOEMFONTEIN
/sp