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[2012] ZAKZPHC 65
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Mundhree v S (AR 167/12) [2012] ZAKZPHC 65 (28 September 2012)
IN THE KWAZULU-NATAL
HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
CASE NO. AR 167/12
In the matter between:
SOOBRAMAN MUNDHREE
....................................................
APPELLANT
and
THE STATE
..........................................................................
RESPONDENT
JUDGMENT
Delivered
on 28 September 2012
________________________________________________________
SWAIN J
[1] The appellant, with
the leave of the Regional Court at Durban, appeals against his
conviction on a charge of sexual assault
for which he was sentenced
to five years’ imprisonment totally suspended on conditions, it
having been alleged that on 23
November 2010 and at the Durban
Magistrates’ Court, the appellant unlawfully and intentionally
sexually violated the complainant
Shaista Gaffoor by kissing her on
the mouth, inserting his tongue into her mouth and fondling her
breast.
[2] The answer of the
appellant to this charge, was to aver that it was the complainant who
had in fact initiated intimacy between
them on the date and the place
alleged, by hugging the appellant and kissing him on the mouth.
[3] That this incident
took place at the Durban Magistrates’ Court is dictated by the
fact that at the relevant time, the
appellant was acting as a
Regional Court Magistrate and the complainant was employed as a
stenographer in the court in which the
appellant presided.
[4] What transpired
between the appellant and the complainant took place in the privacy
of the appellant’s chambers and consequently
direct evidence of
what happened consists entirely of the protagonists competing
versions of events.
[5] It is accordingly
appropriate to consider at the outset, the correct approach in an
appeal in a criminal case on fact, where
there is a conflict of fact
between the evidence of the State witnesses and that of the accused,
as stated in
S v Singh
1975 (1)
SA 227
(N) at 228 F – H
“
It is quite
impermissible to approach such a case thus: because the court is
satisfied as to the reliability and the credibility
of the State
witnesses that, therefore, the defence witnesses, including the
accused, must be rejected. The proper approach in
a case such as this
is for the court to apply its mind not only to the merits and the
demerits of the State and the defence witnesses
but also to the
probabilities of the case. It is only after so applying its mind that
a court would be justified in reaching a
conclusion as to whether the
guilt of an accused has been established beyond all reasonable doubt.
The best indication that a court
has applied its mind in the proper
manner in the abovementioned example is to be found in its reasons
for judgment including its
reasons for the acceptance and the
rejection of the respective witnesses”.
[6] In addition, it is
necessary in assessing the probabilities of a case such as the
present, that regard be had to events which
preceded, as well as
those that followed the incident, as well as the nature of the
relationship between the parties.
[7] The appellant and the
complainant are agreed that before the incident they had a
“working
relationship”.
The complainant described it in
these terms adding
“and nothing else”
whereas
the appellant described it as a
“good”
working
relationship. The complainant had started working in the appellant’s
court four weeks before the incident and the
appellant agreed that
the complainant was simply a member of the court and was not a friend
of his. The complainant said the appellant
was much older than her
and she respected him
“as being fit to be my father”
but had no interest in him. The appellant agreed that
compared to him the complainant was a very attractive young lady. The
complainant
and the appellant were, at the time of the trial,
respectively twenty-four years and sixty-seven years of age.
[8] The appellant agreed
that as a judicial officer it was important at all times to behave in
a professional manner towards members
of his staff, and it was
important to ensure that there was no complaint of being partisan, or
overly friendly, with any particular
individual. The appellant agreed
that this extended to all members of staff including the interpreter,
stenographer and court orderlies.
He agreed that it was important to
maintain some sort of distance from his staff, because he was in
charge of his court and it
was important to ensure that he was always
respected and held in high esteem by them. In accordance with this
approach, he said
that the complainant referred to him as Mr.
Mundhree and he addressed the complainant as Ms Gaffoor.
[9] In this context the
only interaction between the complainant and the appellant on a
personal level, and outside the workplace,
occurred on Thursday 17
November 2010 when the complainant who is a Muslim, had taken the day
off work to celebrate Eid, received
an sms on her cell phone reading
“Hi, how are you? Happy Eid. From Steve”
The
complainant stated that she did not know who Steve was. On the
following day, 18 November 2010 a Friday, when the court was
about to
start, the appellant walked into court and wished the complainant
good morning, to which the complainant responded by
wishing the
appellant a good morning. The appellant then said
“How
are you?”
to which the complainant replied that
she was fine. The appellant then asked
“Did you receive
my message?”
to which the complainant replied
“Yes, thank you”.
That was the end of
their conversation. The appellant admitted having sent the
complainant an sms wishing her a happy Eid and signing
off the sms as
Steve. He said he was not sure whether the complainant knew him as
Steve but said
“Everyone knows me that I am called
Steve”
. He said the message was one of a number
that he had sent to other Muslim friends wishing them well. His
explanation for signing
the sms as
“Steve”
was
that his smss always ended off
“Steve”
and
he did not end with Mr. Mundhree because
“never do I
abuse my title by saying that I am Mr. Mundhree the Presiding Officer
or something, I just play low keyed”.
The
appellant stated that after he had sent the message, and in the days
that followed, prior to the incident in question, he had
not
communicated with the complainant in any way which was of a personal
nature and any conversation was of a professional nature.
With regard
to the complainant’s evidence that the appellant had asked her
on the following day, whether she had received
his message when
cross-examined he was asked the following question:
“
Did you tell
her that you had sent the sms to her, ask if she had received the
sms”
to which he replied
“
I am not
certain whether I’ve told her I sms’d to her or not”
[10] Related to the
appellant’s professed desire to wish the complainant well at
Eid, was the purchase of a box of chocolates
as a gift to the
complainant, which according to the appellant was given with the same
objective. The appellant maintains that
this was his sole objective
in summoning the complainant to his chambers on Tuesday 23 November
2011, when the disputed incident
occurred. Why he did not present the
chocolates to the complainant on the day following Eid, being Friday
18 November 2010, when
he asked the complainant whether she had
received his message, is explained by the appellant on the basis that
“
No, this was
something during the weekend, my wife and I went and bought some
chocolates and I told her that the stenographer had
Eid. And she also
suggested don’t buy for one person, what about the others. I
said yes I have a court interpreter and I
also had one for the court
interpreter”.
He was then asked
“
So you had
bought two boxes of chocolates?”
to
which he replied
“That
is correct”.
However, under
cross-examination when asked why he bought the complainant a box of
chocolates for Eid he replied
“
It was
actually – it’s my wife’s idea when I went home I
told her the stenographer was not there”
.
The appellant then
re-iterated that
“
It was my
wife’s idea, it is during the Eid festival we normally give out
gifts which I have done to others and I told her
that my stenographer
is also Muslim she did not come to work. She said lets buy her a
chocolate and also asked me who else works
with you, I said the court
interpreter. So she bought these two chocolates in her presence on
the weekend”.
According to the
appellant he did not give the chocolates to the complainant on the
following Monday, being 22 November 2012 because
they were
“not
in my lunch packet”
and he had not remembered to
bring them. However on Tuesday 23 November 2012 his wife had placed
the chocolates in his lunch container
and
“I managed to
remember that on that morning”.
On the Tuesday
when Mr. Sibiya, the legal aid attorney asked for a short
adjournment, which he granted, he went to his chambers
“when
I noticed these chocolates then I phoned Mr. Mngadi the prosecutor to
see where the stenographer is to ask her to come
down”.
[11] It is therefore
clear that on the appellant’s version, he possessed a noble and
altruistic object, in inviting the complainant
to his chambers.
However, there are a number of aspects of the appellant’s
evidence which cause concern and which may be
regarded as
inconsistent with the appellant’s professed objective;
[11.1] Signing the Eid
sms message as
“Steve”
was not in
keeping with the formal professional relationship between the
complainant and appellant, where they respectively addressed
one
another as Mr. Mundhree and Ms Gaffoor. The appellant’s attempt
to explain the use of his name
“Steve”
on
the basis that he did not wish to abuse his title and refer to
himself as
“Mr. Mundhree”,
rings
hollow in the light of the evidence that this was how the complainant
always addressed him. To sign himself as
“Steve”,
in this context, was quite clearly a subtle invitation
to the complainant of a more personal and less formal relationship.
[11.2] That the appellant
was anxious to receive an acknowledgment from the complainant, that
she had received his sms, is indicated
by the fact that at the first
available opportunity, namely when he walked into court and was about
to commence proceedings, he
directly sought such an affirmation from
her. This conduct is inconsistent with the sms message simply being
one of a number sent
by the appellant to friends as a matter of
routine, and illustrates the improbability inherent in the
appellant’s assertion
that he was not certain whether he had
told the complainant he had sent the sms.
[11.3] In evidence in
chief, the appellant quite clearly indicated that it was his idea to
purchase chocolates for the complainant
and this occurred to him on
the weekend. In this regard the only suggestion from his wife was
that he should also buy chocolates
for the interpreter. However, in
cross-examination, he was adamant that the idea was his wife’s
and was suggested by her,
when he returned home from work on the
Thursday. In evidence in chief, he stated quite clearly that he had
bought both boxes of
chocolates, whereas when cross-examined he
stated they were bought by his wife. The only reasonable inference to
be drawn from
these contradictions is that the appellant did not wish
there to be any suspicion that he had a personal interest in
purchasing
the chocolates for the complainant, other than as a formal
gift to celebrate Eid.
[11.4] The purchase of
chocolates on the weekend, two days after Eid, as a gift to celebrate
Eid, the appellant knowing that at
the earliest, he would only be
able to hand the chocolates to the complainant on the following
Monday, which would then be four
days after Eid, indicates the
tenuous nature of the link between the gift and the appellant’s
professed reason for giving
it.
[11.5] The reason
advanced by the appellant for not giving the chocolates to the
complainant immediately after the weekend on Monday
22 November 2010
was that the chocolates
“were not in my lunch packet”.
When he was asked
“so you didn’t have
the opportunity for the whole day to give her the chocolates?”
he replied
“I didn’t have it, it was
my wife who had placed the chocolates on the Tuesday morning”
and agreed that
he had consequently
forgotten to bring the chocolates on the Tuesday and by logical
inference, also the Monday. That the presence
of the chocolates in
the appellant’s
“lunch bag”
on
the Tuesday was, according to the appellant, something of a surprise
to him as indicated by his evidence
“so when I went to
the lunch tin I found that my wife had also placed in the bag
chocolates”.
He said that
“when I
noticed these chocolates”
that was when he phoned
Mr. Mngadi the prosecutor to ask the complainant to come to his
chambers. I find it improbable on the appellant’s
evidence,
that having taken the trouble to send the sms to the complainant on
Eid, and then having followed this with an enquiry
in court the next
day as to whether the complainant had received the sms and then
followed this with a purchase of chocolates for
the complainant on
the weekend, the appellant would then inexplicably have lost interest
in giving the chocolates to the complainant,
and had forgotten to
bring the chocolates to work on both the Monday and the Tuesday. A
reasonable inference to be drawn from this
is that the appellant
sought thereby to diminish the extent to which he could have been
perceived as having a personal interest
in giving the chocolates to
the complainant.
[11.6] As regards the
chocolates that were destined for the interpreter, the appellant said
he had not given them to her on the
same day, because she was absent
on that day. He had however given them to the interpreter in court on
another day. He said he
had not called the interpreter into his
chambers to give them to her and when asked whether there was any
reason for that he said
“
No specific
reason, because I met her in the passage and said look I’ve got
you a gift and that’s it”.
I regard it as not
without significance, that although the appellant met and told the
interpreter in the passage that he had a gift
for her, he did not
find it necessary to call her to his chambers, but chose rather to
give his gift to her, in court.
[12] In my view, what the
above evidence reveals, is a concerted effort by the appellant to
link the ostensible reason why he called
the complainant to his
chambers, namely to give her chocolates, to a legitimate motive,
namely to celebrate Eid, despite the fact
that in doing so, a number
of glaring contradictions and improbabilities are revealed in his
evidence, as outlined above. What
this also reveals is that his
motive in buying and giving the chocolates to the complainant, must
have been of a more personal
nature, which he sought to conceal by
such a subterfuge.
[13] It is against this
background that the appellant’s evidence has to be assessed
that as far as his recollection went,
the complainant had come alone
to his office on previous occasions, for the reason that
“
You know for
instance every clerk does that when you want to sign a warrant of
arrest or some correction in the court book, we have
to correct
that”.
In this regard it was put
to the complainant when giving evidence
“
So if the
accused had to come and testify to the effect that you had come to
his office on many different occasions with the prosecutor
in this
matter”
to which the complainant
replied
“
That’s
not true”.
When giving evidence the
complainant said the visit to the appellant’s office in issue
in the present case was her second
visit to his office. She explained
that
“
The first
visit was when I had taken over from the previous clerk, she had
taken me to his office to introduce him to me, that was
the first”.
The appellant’s
legal representative then put to her, by reference to her answer that
she had not been to the office of the
appellant with the prosecutor,
the following:
“
But Ma’am,
you just said you had never been to his office before the 23
rd
”
to which she replied
“
Been to his
office alone before. On 23 November was my first visit alone in his
office”.
Of significance however
in this regard is that the prosecutor put to the appellant, that
although it had been put to the complainant
by the appellant’s
legal representative, that the complainant had on many occasions come
to his office with the prosecutor,
which the complainant had denied
“
It was never
put to her that she came alone to your office?”
to which the appellant
replied
“
That’s
the duty of the Counsel to have done that. You cannot think of
everything”.
That the appellant sought
to blame his legal representative for not putting what he maintained
were his instructions to his legal
representative, must be assessed
in the context that the appellant is legally trained, and must have
appreciated the need, to put
to the complainant such a vital piece of
evidence. What was put by his legal representative was quite clear,
namely that the complainant
had come to the appellant’s office
on many occasions with the prosecutor, not that she had come alone on
previous occasions,
for the reasons advanced by the appellant. If
what the appellant’s legal representative put to the
complainant was not in
accordance with the appellant’s
instructions, the appellant would quite clearly have appreciated the
need to rectify what
was put. The only reasonable inference to be
drawn is that the appellant never gave such an instruction to his
legal representative
and that his evidence in this regard was a later
fabrication, given with the express purpose of diminishing the unique
nature of
the complainant visiting his chambers on her own.
[14] Logically, the next
aspect of the evidence to be assessed, is the complainant’s
evidence that when she was told by Mr.
Mngadi, the prosecutor, that
the appellant had called and wanted to see her in his chambers
“
I just
didn’t want to go alone. I just felt in some way that I was
afraid to go alone”.
For this reason, the
appellant said she asked Mr. Mngadi, the prosecutor, to accompany
her. According to the complainant, Mr. Mngadi
refused, because he was
preparing his roll. Mr. Mngadi however stated he did not remember the
complainant asking him to accompany
her. The complainant also said
that after she left Mr. Mngadi’s office, she entered the court
and met Mr. Sibiya, the legal
aid attorney, who asked where she was
going. She told him that the Magistrate had called and asked to see
her. According to the
complainant, Mr.Sibiya then asked her to ask
the appellant whether they could work through lunch, because he was
tired and wanted
to finish court early. The complainant then said
“
I thereafter
told him could you come with me so you can tell him that, and we both
can go together”.
According to the
complainant, Mr. Sibiya however said he could not come with her,
because he had to consult with his clients. Mr.
Sibiya confirmed when
giving evidence as a defence witness, that the complainant asked him
to accompany her to the appellant’s
chambers, but she did not
give him any reason for her request. He confirmed that he had told
her he was still busy with a client
and she must go alone.
[15] In this regard Mr.
Prior, who appeared on behalf of the appellant, submitted that on the
complainant’s evidence, the
reason why she wanted Mr. Sibiya to
accompany her, was not because she was afraid to go alone, but
because she wanted Mr. Sibiya
to convey his request
to the appellant himself.
However if this was obviously the case, Mr. Sibiya would have said
so, and not replied that he did not
know why the complainant wanted
him to accompany her.
[16] When the complainant
was asked why she was afraid to go alone to the appellant’s
chambers, she replied
“
Prior to
this incident there were – what can I say, I’ve heard
that the Magistrate, the accused liked me and he had
told Mr. Sibiya
to hook him up with me”.
Mr. Sibiya, when giving
evidence for the appellant, said he had never had such a conversation
with the complainant and the appellant
had never asked him to
“hook
me up with the complainant”.
However, when
cross-examined he said that he had a conversation with the appellant
before 23 November 2010, where the appellant
had said to him that the
complainant
“is a nice lady”,
with
which he agreed. He said he understood the remark in
“a
professional way”
by way of comparison with the
previous clerk of court, referring to the way she conducted her work
and how neat her work was. He
said he might have passed this
compliment on to the complainant.
[17] In assessing this
conflict between the evidence of the complainant and that of Mr.
Sibiya, it must be borne in mind that Mr.
Sibiya at the time of
giving evidence, was still the legal aid attorney, in the court
presided over by the appellant. The appellant
was presiding in that
court at the time of the appellant’s trial and would be
presiding in that court again on the following
day. The appellant had
presided in that court, save and except for the months of January and
February preceding his trial, when
it was presided over by Mr.
Govender, who was the appellant’s legal representative at his
trial. It is therefore clear that
Mr. Sibiya cannot be regarded as a
totally independent witness, subject as he was to the constraints
placed upon him by virtue
of his position as the resident legal aid
attorney, in the court presided over by the appellant, before and
after his trial.
[18] That the complainant
did not wish to go on her own to the appellant’s office is
supported by Sibiya, although he is unable
to say why this was so. It
is difficult to imagine why the complainant as a stenographer, would
wish to be accompanied, when summoned
to the chambers of the
Magistrate presiding over her court. Whether this belief was founded
upon her allegation that the appellant
had asked Sibiya to
“hook
him up”
with her,or not, when cross-examined
whether she was still afraid of the appellant, when she entered his
office and closed the door,
she said
“
At that time
I had mixed emotions going through my mind as to what his reason to
see me”.
[19] Turning now to a
detailed consideration of the evidence of the complainant and the
appellant as to what transpired in the appellant’s
chambers. It
is necessary to do so, because as will become apparent, it is often
in the detail, that the truth is revealed.
[20] The complainant said
she knocked on the door, the appellant said come in, she entered and
closed the door behind her. She closed
the door even though she had
mixed emotions going through her mind as to why the appellant wished
to see her, but because he was
a Magistrate she did not feel it was
in order to leave the door open. The appellant was still robed and
she asked
“
Did you ask
to see me”
to which the appellant
replied
“
Yes, come
and have a seat”
She pulled out the chair
across from the appellant and sat down opposite to him, with the
table between them. The appellant asked
“
So how are
you?”
to which she replied
“
I am fine
thanks”.
The appellant then said
“
Why don’t
you come and visit me at my office?”
and then said
“
You must
come and we can get to know each other and we can have a good chat”.
The complainant replied
that she didn’t have time to do so, as she was the clerk and
had many duties that she needed to perform
and that she had no time
to come into his chambers to sit and chat. The appellant then said
that they were approaching December,
when the court would be closing
and they needed to finalise more matters and asked if she did not
mind working late. She replied
that it was fine to work late in order
to finalise matters, as she took it to be in the best interests of
the court. She agreed
to this because being the machine operator, it
was essential for her to be there. She said she did not know why he
had spoken to
her about the court roll and its effectiveness, and he
had not specified a time, when he had asked about working late. The
appellant
then asked her
“
I heard that
you are going through a divorce or you might be divorced”.
At the time the
complainant was going through a divorce and she was not sure how the
appellant knew about it, because she had never
discussed it with him.
She had however discussed it with other court staff. The appellant
asked her what the reason was for the
divorce and she told him that
her husband had an affair and had somebody else. She denied, when it
was put to her, that she had
told the appellant that her husband had
alleged that she was having an affair. The appellant did not mention
Eid and did not give
her any other reason why he had called her to
his office. The appellant began asking her personal questions
relating to her life,
such as where she was living now and how many
years she had been married. The appellant said to her
“
You are a
very attractive lady. Your husband is making a mistake by leaving
you”.
She did not respond to
this because she did not know how to answer him. She wasn’t
sure if he was comforting her by his statement,
but felt that by
telling her she was an attractive lady, he was flirting with her or
leading her on in a way, so she did not answer
him. She was quite
surprised as to how the appellant somehow knew about her personal
life and because he was a Magistrate, she
felt that she needed to
answer him. The appellant thereafter reached to the bottom of his
table and took out a green box of chocolates
which read
“Occasions”
on it. He handed it to her and said
“
This is for
you”.
He handed it to her, but
she did not accept it from his hand and left it on the table. He did
not indicate why he was giving the
gift to her. The phone then rang
so she stood up and said that she had to go and would see him in
court. She was not rude and said
it in a pleasant way because she was
not traumatised, but felt uncomfortable being asked personal
questions by him, which she felt
it was not appropriate to explain to
him. The appellant said to her
“No wait”
and
she heard him say to the person on the phone
“I’ll
be there just now”.
She was facing the door, the
appellant put the phone down, came around the table and said
“
Come here
and let me give you a hug”.
The complainant said she
just stood there and did not move a step forward. She thought that he
was probably wanting to comfort her
after she had told him about her
personal life. She thought of it as a
“comfort hug”.
She felt awkward about it
“coming from him
being a Magistrate”
and not something she had
expected from him. The appellant approached her and gave her a hug.
The appellant’s face was on
her left hand side and the hug
became tighter. The appellant started kissing her on her neck, then
to her cheek and then into her
mouth because she felt his tongue in
her mouth. She said the appellant used
“a lot of force”
in kissing her. While he was kissing her his left hand
was fondling her right breast over her clothing. The complainant said
she
stood there frozen and was shaken and that
“it all
happened so fast”.
She just stood there shocked
and her
“entire body’s reaction was I just froze
at that moment”.
She did not kiss him or react to
anything that he was doing. She did not respond to his hug and her
arms remained at her sides.
The appellant said to her
“
I love you I
can’t stop thinking about you. I stare at you all day from the
bench and I want to be more than friends”.
When the appellant
realised she was not kissing him back, he stopped and gave her
another tight hug. After that he let go of the
complainant and was
waiting for a response from her when she said
“I have
got to go”
moved away from him, opened the door
and left his office, leaving the chocolates behind. The complainant
said she was completely
traumatised and wanted to cry.
[21] The appellant’s
version of what transpired was as follows. When he noticed the
chocolates he phoned the prosecutor, Mr.
Mngadi, to ask the
complainant to come to his chambers. The complainant knocked at the
door, which he unlocked and let her in.
He greeted her, told the
complainant
“a belated Eid”
and
handed the chocolates to her, which were on the table. The
complainant then gave him a hug and smiled and he patted her on the
back, reciprocating. The complainant did not say thank you, but
thanked him with a hug, by placing her right arm around him. He
supposed she had hugged him because she was glad to have received the
gift and he regarded it as a friendly gesture, which did
not make him
feel uncomfortable. After the hug, they were apart when the
complainant came forwards and kissed him once on his lip.
No tongue
was involved in her kiss, but it was not a
“peck”
and he said
“it was with a bit of force”
and
“you know she just came up on me”.
He said it was not
“a lingering”
kiss
“because I managed to stop that”
. He
said the kiss was not part of the thank you, because the hug was, and
the complainant had moved forward from the left hand
side, to kiss
him. He did not kiss her back, stopped her there and asked her
“Oh,
what is this
?” This was because this was not
necessary
“and I had to question that”.
He
did not feel very uncomfortable about the kiss but
“wanted
to know what is this?”.
He felt that the manner in
which she had approached him was not appropriate. The complainant
then sat down in the chair which was
nearby and apologised and said
“I am sorry”.
The complainant then
broke down and told him she was going through marital problems with
her husband. Her husband was accusing her
of having another man and
they were fighting for custody of the child. He said he accepted her
apology and he tried to help her
but the phone rang. It was Mr.
Mngadi who was ready to proceed in court. He told her that they had
to go up to court and the complainant
left the office and he locked
the door. He did not ask her whether she was alright, because it did
not occur to him. He also did
not say to her that she could talk to
him later if she wanted to. When the complainant left she seemed
normal to him, not at all
embarrassed, happy with the chocolates and
grateful to him.
[22] What is striking
about the conflicting versions advanced by the complainant and the
appellant, as to what happened in the appellant’s
chambers, is
the great detail furnished by the complainant, as opposed to that
furnished by the appellant. What is also significant
is that despite
such detail no contradictions or inconsistencies were revealed when
she was cross-examined. In addition, the complainant’s
version
is supported by the appellant’s conduct before the incident,
and more particularly his attempt to explain his conduct,
by
maintaining that his sms message to the complainant at Eid was not
personal in nature, maintaining that he could not recollect
whether
he had raised this message with her, attempting to link the purchase
of the chocolates to Eid, maintaining that it was
his wife ‘s
idea to buy chocolates for the complainant, maintaining that he had
forgotten to bring the chocolates on both
the following Monday and
Tuesday and maintaining that the complainant had come to his office
on her own on numerous prior occasions.
The complainant’s
version of how events unfolded in the appellant’s chambers,
describing as it does the progressive
levels of intimacy demanded by
the appellant and imposed upon the complainant, culminating in a
degree of intimacy, which the complainant
justifiably found to be
unacceptable, I find entirely convincing. By contrast, the
appellant’s version postulates behaviour
on the part of the
complainant which is both irrational and inconsistent with the events
that preceded their fateful meeting.
[23] Regard being had to
the merits and demerits in the complainant’s
and the appellant’s
evidence and weighing their version of what happened in the
appellant’s chambers on 23 November
2010, against the
probabilities of the case, I am satisfied that the complainant’s
version is the truth and that of the appellant,
may be rejected as
false.
[
24] I am fortified in
this conclusion by asking why the complainant would wish to falsely
implicate the appellant with such scurrilous
accusations, shortly
after their meeting, when on the appellant’ version, the
appellant had shown the complainant nothing
but kindness and it was
the complainant, who had behaved inappropriately When I posed this
enquiry to Mr. Prior, he suggested that
the complainant may have
feared that the appellant would report her behaviour to her
superiors, with the consequence of disciplinary
action. By
fabricating a different version, in which the appellant was the
guilty party and doing this before the appellant had
the opportunity
to report the complainant, would forestall such action. However, on
the appellant’s own evidence the complainant
could not have
harboured any such fears, because he said he had accepted her
apology, she appeared normal to him, she was not embarrassed
and was
happy with her chocolates and grateful to him. The appellant said he
had no inkling the complainant would charge him with
sexual assault,
because she left his chambers in perfectly good spirits and they were
on good terms. When asked why the complainant
had falsely accused him
he said he had no idea.
[25] I am also fortified
in my view by the complainant’s conduct after the event. Mr.
Mngadi confirmed that during the lunch
adjournment the complainant
told him that the appellant had asked her about her personal life,
and that there was a phone call
which she thought was Mr. Mngadi
calling them to court. The appellant had then asked the complainant
to hug and as he was hugging
her, he had kissed her on the mouth.
There was however a contradiction in the evidence in that Mr. Mngadi
maintained that the complainant
told him at the commencement of the
lunch break, whereas the complainant said she had told him when he
came back to his office
and she had been crying and Mr. Mngadi asked
her why she looked like this. Mr. Mngadi however said the complainant
appeared normal
and did not appear traumatised. Due regard being had
to these contradictions, that she told Mr. Mngadi at lunch time, is
confirmed
by an incident later that afternoon. The complainant said
that when the appellant adjourned court that afternoon he addressed
her
directly and asked her to come and see him in his chambers. The
complainant did not reply but Mr. Mngadi indicated to her that she
must not go. Mr. Mngadi confirmed this and that he had indicated to
the complainant that she must not go by shaking his head. That
the
complainant had told Mr. Mngadi during the lunch adjournment is also
confirmed by the evidence of Mr. Sibiya, who said that
Mr. Mngadi
told him as they were going into court at the end of the lunch
adjournment that something had happened to the complainant.
Because
he was curious to know what had happened, he wrote a note to the
complainant asking her what had happened. The complainant
replied in
a note in court, saying this old man came over to me. After court he
asked her about it and she said the Magistrate
came over to her and
he kissed her. Later that afternoon the complainant said she reported
the incident to her friend Hemika in
Verulam, who advised her to
report it to her Supervisor. The next day she reported to the Verulam
Court where she was based, was
interviewed by the Court Manager and
her Supervisor and a docket was opened.
[26] In coming to this
conclusion I do not overlook the contradictions between the evidence
of the complainant and other witnesses
as to which adjournment had
been taken during the morning when the incident occurred, how long
the adjournment was, how long the
meeting with the appellant lasted
and whether anybody saw the complainant leave the court during the
afternoon session. I regard
these aspects as peripheral and not
material to a determination of the main issue.
[27] A final issue that
has to be dealt with is one raised in a set of supplementary heads of
argument on behalf of the appellant,
filed shortly before the hearing
and drafted by Counsel, other than Mr. Prior. The argument advanced
in these heads was that the
Magistrate had failed to pay regard to
whether the appellant knew, or subjectively foresaw, that the
complainant did not consent
to his conduct. The reason why the
Magistrate did not deal with this issue, was quite obviously because
the appellant’s defence
was that it was the complainant who was
the instigator of the intimacy to which the appellant did not
consent. To simply analyse
the evidence led by the State and submit
that this failed to establish that the appellant knew or subjectively
foresaw, that the
complainant did not consent to his conduct and
ignore the appellant’s version of events, is both artificial
and fallacious.
Rejecting the appellant’s version that the
complainant was the instigator of the intimacy to which he did not
consent, in
itself carries with it a refutation that the appellant
did not know, or did not subjectively foresee, that the complainant
was
not consenting to his conduct. Why would the appellant cast the
complainant in the role of the instigator of the intimacy to which
he
did not consent, if all along the appellant believed that the
complainant was consenting to his advances? A determination of
whether the State has proved the requisite intention on the part of
the appellant, is not to be determined divorced from some of
the
evidence, and based upon an acceptance of the correctness of the
State’s version and without regard to the appellant’s
version. From the outset when the appellant’s version was put
to the complainant, it was clear that the appellant alleged
that the
complainant was the instigator of the intimacy, to which he did not
consent. The issue of whether on the State case, the
conduct of the
complainant, in response to the appellant’s advances, could
have caused the appellant to know, or foresee
the possibility that
the complainant was not consenting, was never canvassed with either
the complainant, or the appellant, when
giving evidence because of
the nature of the defence raised by the appellant. It is
impermissible to view the evidence of the complainant,
that she froze
and did not expressly object to the appellant’s conduct, in
isolation and then conclude that the appellant
subjectively believed
the complainant was consenting. In the context of all of the
evidence, and in particular the parties prior
formal and professional
relationship, as well as the wide disparity in their ages, the
appellant could never have subjectively
believed the complainant was
consenting to his sudden, unexpected and crude advances. I am
accordingly satisfied that there is
no validity to these submissions
and that the State proved the requisite intention on the part of the
appellant, beyond a reasonable
doubt.
[28] No argument was
addressed to us on the issue of sentence. I regard the sentence
imposed as being entirely appropriate, regard
being had to all of the
facts of the case.
I accordingly grant the
following order:
The appeal is dismissed.
____________
SWAIN J
I agree
_____________
KRUGER J
Appearances /…
Appearances
For the Applicant
: Mr. P. Prior
Instructed by
: Thandroyen & Partners Durban
For the Respondent
: Ms. A. Watt
Instructed by
:
Director of Public Prosecutions
Pietermaritzburg
Date of Hearing
:
23 August 2012
Date of Filing of
Judgment
: 28 September 2012