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[2011] ZAFSHC 49
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Mlendile v S (A280/2010) [2011] ZAFSHC 49 (10 March 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A280/2010
In
the appeal between:
JACOB MLENDILE
…...............................................................
Appellant
and
THE STATE
….......................................................................
Respondent
CORAM
:
MOCUMIE, J et KUBUSHI, AJ
HEARD
ON:
14 FEBRUARY 2011
_____________________________________________________
DELIVERED ON:
10
MARCH 2011
KUBUSHI, AJ
[1] This is an appeal
from the Regional Magistrate Court, Welkom. The appellant was
convicted on a charge of rape and sentenced
to ten years
imprisonment. The appellant has now approached this Court, with leave
of the Court
a quo
, appealing against his conviction and
sentence.
[2] The facts of the case
are shortly as follows. The complainant testified that the appellant
had sex with her without her consent.
She testified that on 23
December 2007, on a Sunday, whilst walking in the street in
Hertzogville the appellant then unknown to
her approached her. He
pulled and dragged her to a certain shack where they found another
man, also unknown to her, who assisted
in pushing her into the shack.
Inside the shack the appellant assaulted and raped her. After the
rape, the appellant offered her
money which she refused to accept.
She then went directly to the police station and reported the rape.
[3] On the other hand,
appellant’s case is that he had sex with the complainant with
her consent. He testified that on the
22 December 2007, on a
Saturday, he was at a tavern in Hertzogville where he met the
complainant. He proposed love to the complainant
who accepted same.
They later went together to his friend’s shack where they had
consensual sex. After the sex complainant
requested him to give her
R50-00. Appellant did not have the R50-00 requested by the
complainant and instead offered her R20-00
which she refused to
accept and threatened to lay rape charges against him.
[4] According to the
appellant they were seen by the owner of the shack who even witnessed
them having sex. Appellant called two
witnesses, one to corroborate
his story that the complainant was at the tavern on that day and one
to corroborate his story with
regards to the events at the shack.
Both defence witnesses corroborated him in all material respects and
were not discredited at
all.
[5] Appellant’s
counsel argued, as regards conviction, that the complainant’s
evidence as a single witness did not comply
with the requirements as
set out in section 208 of the Criminal Procedure Act 51 of 1977
(“the
CPA”)
with reference to a single witness in that:
5.1 she contradicted
herself as to the date of the incident;
5.2 she did not give a
good impression as a witness;
5.3 Her evidence was not
supported by that of Constable Litabe;
5.4 her injuries were not
supported by medical evidence.
[6] In relation to the
sentence, counsel for appellant argued that in the event the
conviction is not upheld, the personal circumstances
of the
appellant; the fact that complainant did not suffer any physical and
genital injuries and that the appellant had spent three
months in
custody awaiting trial were all compelling and substantial
circumstances which justified the court to have deviated from
the
minimum prescribed sentence. Alternatively, he submitted, the
sentence of ten years was shocking and unjust.
[7] In the Heads of
Argument and during the appeal hearing, counsel for the respondent
conceded that appellant’s evidence
did not comply with the
cautionary rule and conceded further that the conviction and sentence
ought to be set aside.
[8] The question to be
answered by this Court is whether the trial court erred in accepting
as truthful the evidence of the complainant
(a single witness) and
rejecting the appellant’s version which was corroborated by two
witnesses as being false beyond a
reasonable doubt.
[9] In terms of section
208 of the CPA an accused may be convicted on the evidence of a
single competent witness. In
S v Sauls &
Others
1981 (3) SA 172
(A) 180H it was
noted that the absence of the word
“credible”
(in
section 208) is of no significance; the single witness must still be
credible. There is no rule of thumb test or formula to
apply when it
comes to the consideration of the credibility of a single witness.
The question is what weight, if any, must be given
to the evidence of
a single witness.
[10] The correct approach
in determining the guilt of an accused is as pointed out in
S v
Chabalala
2003(1) SACR 134 (SCA) 139i-j to 140a , to weigh up
all the elements which points towards the guilt of the accused
against all
that 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 also
S
v Francis
1991 (1) SACR 198
(A).
[11] In arriving at its
decision the trial court relied on the evidence of a single witness,
namely, the complainant and found her
to be an honest witness. This
Court accepts that the trial court was better placed to make such a
finding on credibility. It is
however, trite that a trial court
should not readily rely on the evidence of a single witness. In such
cases the court has to apply
the cautionary rule. See DT Zeffert in
The South African Law of Evidence
2
nd
ed at p961.
[12] Although the trial
court in its judgment appeared to have applied the cautionary rule,
in my view, it did not apply it properly
for the following reasons.
The complainant was inconsistent and gave conflicting evidence in so
far as the day on which the alleged
rape took place. When she started
to testify she alleged that it was on Saturday and later on it became
Sunday. She alleged that
she sustained visible injuries on her face
during the rape which she alleged the police saw yet these were not
proved by medical
evidence or any other way. Furthermore the medical
officer that examined her on the morning after the alleged rape did
not see
and note such alleged injuries on her face, the so called
“blue eye”.
The medical officer
also did not find any fresh injuries to her genitals
which are consistent with the allegations that the appellant had been
rough,
and had un-lubricated and painful intercourse with her.
[13] I find it very
strange that both the police officer who took her statement
immediately after the incidence and the medical
officer who examined
her did not corroborate her on these two critical aspects. I am
persuaded to agree with counsel here, that
this is evidence that was
vital to prove that the sexual encounter was marred by violence which
would fly in the face of consensual
sexual intercourse pleaded by the
appellant.
[14] The trial court’s
reliance on two decided cases,
R v Abdoorham
1954 (3)
SA 163
and
S v Sauls,
supra
, did not help in
this set of facts at all. As in the case of
S v Gentle
2005 (1) SACR 420
(SCA) where the court required corroboration, this
is a typical case where evidence of, for instance, the complainant’s
sister
would have assisted to corroborate the complainant’s
evidence on her whereabouts on Saturday and or Sunday.
[15] The appellant’s
version was corroborated by the two defence witnesses in all material
respects. In my view taking into
consideration all the probabilities
and improbabilities on both sides when the two are weighed against
each other I find the appellant’s
version to be more probable.
I also find that the trial court misdirected itself materially by
finding that the State has proved
its case beyond reasonable doubt.
Accordingly the conviction and sentence fall to be set aside.
[16]
In the
circumstances I make the following order:
a. The appeal is
upheld.
b. The conviction and
sentence are set aside.
c. The Registrar of
the High Court Free State, Bloemfontein is ordered to bring this
order to the attention of the Commissioner
of Correctional Services
where the appellant is currently resident for the appellant’s
immediate release.
________________
E.M.
KUBUSHI, AJ
I concur.
________________
B. C. MOCUMIE, J
On behalf of the
appellant: Mr. S. Kruger
Instructed by:
Justice Centre
BLOEMFONTEIN
On behalf of the
respondent: Adv. S. Chalale
Instructed by:
Director of Public
Prosecutions
BLOEMFONTEIN