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[2011] ZAFSHC 100
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Mokhoele v S [2011] ZAFSHC 100 (9 June 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: A202/2009
In
the appeal between:
THAPELO EDWARD
MOKHOELE
….......................................
Appellant
and
THE STATE
…......................................................................
Respondent
_____________________________________________________
CORAM:
RAMPAI J
et
VAN ZYL J
_____________________________________________________
JUDGEMENT:
RAMPAI J
HEARD ON:
9
MAY 2011
_____________________________________________________
DELIVERED ON:
9 JUNE 2011
[1] This is an appeal
against the conviction. The appellant was tried in the Bloemfontein
Regional Court. On 14
th
July 2009 he pleaded not guilty to
the charge of rape. Notwithstanding his plea, he was found guilty on
27
th
July 2009. The next day he was sentenced to 15 years
imprisonment. He now comes on appeal with the leave of the court
a
quo
granted on 28
th
July 2009.
[2] The grounds of the
appeal were that the court
a quo
erred by finding: that the
complainant was a credible witness; that the contradictions in the
prosecution case were immaterial;
that the complainant was raped
notwithstanding the absence of medical evidence and that the
circumstantial evidence indicated that
the appellant raped the
complainant.
[3] The version of the
prosecution was narrated by three witnesses, namely:
Ms N Y Sello – the
complainant;
Mr N L Slater – the
complainant’s boyfriend;
Ms S M Mofama – the
boyfriend’s mother.
In addition to the oral
evidence, documentary evidence by Sr Seekoei was received as evidence
and formally admitted as per exhibit
A.
[4] Briefly stated the
evidence of the complainant was that the appellant raped her in the
vicinity of Roodewal Farm in the district
of Bloemfontein on Sunday 8
March 2009. She escaped after the second incident and ran away from
the second scene to the parental
home of her boyfriend. She did not
tell him that the appellant had raped her. However, she told her
boyfriend’s mother accordingly
the next morning. The boyfriend
and his mother contradicted her. Both of them said she did not tell
them that the appellant had
raped her.
[5] The version of the
defence was narrated by two witnesses, namely:
Mr Thapelo Edward
Mokhoele, the appellant and
Mr Soga Siyabonga
Ramokolota, the appellant’s friend.
[6] The evidence of the
appellant was that he did not rape the victim. Shortly after their
companion, Mr Ramkolota, had gone his
own way, he and the victim
walked straight to his parental home where he lent a white t-shirt to
her because she told him she was
feeling cold. From there the victim
walked alone to her boyfriend’s home. He remained behind and
slept. He was taken aback
to hear about the complainant’s
accusation from the police the next day.
[7] The court a
quo
was impressed by the complainant. It described her as a credible and
honest witness. Notwithstanding certain discrepancies in her
evidence
such as her state of intoxication, her conduct on the scene, the
contradictions by her witness and the absence of genital
injuries,
the court accepted her evidence as a credible and reliable account of
what truly happened to her on the day in question.
[8] The court a
quo
was unimpressed by the appellant:
“
Beskuldigde
se weergawe het nie ‘n goeie indruk op my gemaak nie om redes
wat ook sal volg ten tye van die bespreking van
die geskilpunte.”
The court a
quo
finally rejected the version of the appellant as false wherever it
differed from that of the complainant.
[9] Mr Reyneke, counsel
for the appellant, submitted that the court
a quo
erred in
making all the findings which I previously outlined and finally
reaching the aforesaid conclusion. Accordingly, counsel
urged us to
interfere with those findings and the ultimate conclusion on the
grounds that the court
a quo
had misdirected itself in a
number of material respects.
[10] Mr Bontes, counsel
for the respondent differed. He submitted that the court
a quo
had committed no misdirection or irregularity to warrant our
interference. Counsel argued that the findings under attack were
supported by evidence and correctly made by the court
a quo
.
Therefore he urged us to dismiss the appeal against the conviction of
the appellant.
[11] Sitting, as we are,
in an appellate mode, our powers to interfere with the findings of
fact by the trial court are limited.
The acceptance of the
complaints’ evidence by the trial court is presumed to be
correct unless it is vitiated by material
misdirection. The appellant
had to convince us on adequate grounds that the regional magistrate
was wrong in accepting the complainant’s
evidence and rejecting
his. A mere doubt, however reasonable, will not suffice to justify
our interference with the findings made
by the trial court.
S v
FRANCIS
1991 (1) SACR 198
(AD) at 204c – e.
[12] Mr Reyneke analysed
the complainant’s evidence in considerable detail. In the
process, he brought to light some minute
details, which he contended
were inconsistencies, contradictions and improbabilities, which
adversely reflected on the finding
that she was a credible witness.
[13] I do not intend to
deal with all the points of critique levelled against the
complainant’s evidence. It will do to deal
only with a few of
them. During cross-examination it emerged that the complainant lost
consciousness during the first incident
as a result of her strangling
by the appellant. The criticism was that her indirect evidence was
inconsisted with her direct evidence.
It was then further contended
that since she was wearing a tight-fitting pair of jeans which was
merely lowered to the level just
above her knees, coupled with the
fact that she had fainted, cast serious doubt as to whether
penetration actually took place.
[14] In my view nothing
significant turns on the point, inconsistent though it was. Her
evidence was clear. She stated that the
appellant had already
penetrated her at the time she fainted. She did not faint before she
was penetrated. She was fully conscious
when she was undressed, when
her assailant unzipped and inserted his penis into her vagina. She
fainted during and not before she
was actually penetrated. The court
a quo
commented as follows about the first sexual intercourse.
“
Sy is egter
baie pertinent wanneer sy sê dat daar weliswaar ten tye van die
eerste geleentheid penetrasie was, relatief kort
van aard.”
On appeal I cannot held
such a fining to be wrong. No doubt can ever justify interfering with
that finding.
[15] Mr Reyneke devoted a
great deal of his argument attempting to convince us, that the
absence of genital injuries was inconsistent
with the alleged
forceful penetration and the alleged pain experienced by the
complainant. This critique also concerns the first
sexual incident.
[16] When the complainant
was confronted by the suggestion that the absence of genital injuries
militated against her claim that
she was raped, she gave an answer.
Her answer was that the first sexual incident endured for a
relatively short time and that she
momentarily experienced pain.
Since she did no endure pain over a sustained period of time but
fleetingly experienced an episode
of pain, it came as no surprise to
her when the nurse found no fresh tears, bruises or lacerations in or
around her vagina. The
argument that the attacker’s force,
vaguely described and the complainant’s fleeting pain of
unspecified intensity,
suggested that the complainant should
necessarily have sustained genital injuries failed to persuade me.
[17] Quite often the
absence of genital injuries (or the presence thereof) may be
attributed to the anatomical structures of the
victim’s sex
organ or the rapist sex organ or both. This much Mr Reyneke conceded.
In this instance, no convincing contention
was advanced why the
anatomical considerations should be discounted as one of probable
explanations for the apparent lack of genital
injuries. The mere fact
that the complainant had suffered no visible or microscopic genital
injuries was neither here no there.
The fact of the matter was that
the forensic nurse noted visible neck injuries and detected a whitish
discharge in her vagina.
Those two undisputed aspects of the forensic
nurse’s documentary evidence strongly corroborated the
complainant’s evidence
that she was recently under attack and
that a bodily fluid, which resembled sperms, was freshly deposited in
her vagina.
[18] The ex-boyfriend and
his mother deliberately attempted to destroy the respondent’s
case by purposefully contradicting
the complainant’s evidence.
The court
a quo
was mindful and alert to their cunning scheme
to rescue the appellant. In my view the court a
quo
correctly
found that the ex-boyfriend, just like his mother, had a clear motive
to protect the appellant by cynically sacrificing
the truth, and that
at the expense of the complainant. About her, the two witnesses
clearly could not care less. Notwithstanding
their conspiracy to make
common cause or side with the appellant against the complainant the
court a
quo
found important safeguards, in their otherwise
hostile evidence, which materially corroborated the evidence of the
complainant
as a single witness.
[19] It was also
contended that certain inconsistencies between the complainant’s
police statement and her court testimony
cumulatively considered with
the points of critique already alluded to, portrayed the complainant
as an untruthful witness. The
court a
quo
found her to be an
honest witness who gave a credible account. In
S v OOSTHUIZEN
1982 (3) SA 571
(T) at 576G – H, Nicholas J held that it was
not every error made by a witness which unfavourably affects his or
her credibility.
In this case the complainant was adamant that her
testimony was correct and that her police statement was incorrectly
written in
certain respects. She was in fact saying that the
inconsistencies or contradictions relied upon were not of her own
making. In
my view her court testimony had to be preferred to the
police statement wherever the latter deflects from the former.
[20] I am not persuaded
that the court
a quo
was wrong. The evidence of a single
witness does not have to be perfect before a court can accept it. All
that is required by law
is that the court must be humanly convinced
that the truth has been told – nothing more and nothing less.
S
v GUESS
1976 (4) SA 715
(AD) and see also
S v SAULS
1981 (3) SA 172
(AD).
[21] The court a
quo
rejected the version of the appellant. It was contended that the
respondent had not proved that the appellant’s version was
beyond reasonable doubt false. The court a
quo,
in my
respectful view, correctly concluded the matter. Sound reasons were
given for its rejection of the appellant’s version.
I wish to
add two more reasons.
[22] Firstly, the
appellant was afraid to walk alone that evening. She approached the
appellant and asked him if she could walk
with him back to the farm
where they lived. Apparently, their respective homes were some
distance apart. If they first went to
his home, as he claimed they
did, he would probably have escorted her from there to her home
because he knew she was afraid to
walk alone. He claimed he lent her
a white t-shirt because she was feeling cold. This also shows that he
knew the victim still
had a long distance to cover to get home
otherwise it would not have been necessary to lent her the t-shirt.
Therefore, it seems
to me, unlikely that he would simply have given
her a shirt and let her walk further alone, afraid though he knew she
was.
[23] Secondly, the
appellant claimed, that from him she went straight to her boyfriend
wearing his white t-shirt. However, her boyfriend
did not see the
white t-shirt. Her boyfriend’s evidence was that she was
dressed in dark cloths when she arrived. This evidence
tended to show
that the appellant’s version that she went with him to his
parental home, put on a white t-shirt and left
him behind there was
palpably false. The appellant and the victim did not amicably part
ways as the appellant wanted the court
to believe.
[24] Thirdly, the
appellant complainant did not plan to spend that particular night
with her boyfriend. From the tavern she made
it clear to the
appellant that she wanted to go back to her parental home. Her
boyfriend was not expecting her. This makes a mockery
of the
appellant’s insinuation that she falsely incriminated him
because she was worried about arriving home very late and
intoxicated. It is ridiculous, to say the least, to suggest that she
would have contrived such a serious accusation against an
innocent
man merely because she was afraid of her boyfriend. If fear of her
boyfriend was such a big factor she could simply have
passed his home
and walked straight to her parental home as she had originally
planned. After all her boyfriend was not even expecting
her that
night. The fact that she ended up spending the night at her
boyfriend’s place where she tearfully arrived strengthened
the
probability that she ran there as the nearest place of refuge. She
realised the appellant made it unsafe for her to proceed
to her
parental home.
[25] Fourthly, the
regional magistrate dismissed, as false, his claim that the
complainant incriminated him because he once had
a serious
relationship with her but ultimately breached the promise to marry
her. Before us, Mr Reyneke, frankly conceded that
the court a
quo
was correct to dismiss the claim that there ever existed an
intimate relationship or engagement between the appellant and the
complainant.
In the circumstances of this case the concession was
correctly made.
[26] The court a
quo
was also correct to find that the evidence of the appellant’s
friend did not add anything significant to the enquiry. Instead
it
implicitly cast some doubt about the appellant’s alleged
relationship with the complainant.
[27] Mr Reyneke also
raised certain points of criticism against the judgment. Indeed the
complainant did see and talk to her boyfriend
the next morning.
Indeed the complainant did not show her neck injuries to the
boyfriend’s mother the next morning. Indeed,
there was no
evidence to suggest that the complainant and her boyfriend had slept
in separate bedrooms.
[28] The contrary
findings of the court a
quo
on those specific points were
factually incorrect. Those incorrect findings were errors. However,
not every error by a trial court
adversely affects its ultimate
conclusion as regards the substantive merits of the case. The three
errors did not concern crucial
aspect of the case.
[29] What was significant
was that the complainant ended up spending the night at a place where
she did not intend sleeping as a
result of the appellant’s
criminal aggression. Whether she saw her boyfriend or not the next
morning was unimportant. What
was important was that she did not have
sexual intercourse with her boyfriend in his house during that
particular night of her
forced visit. Whether they slept in the same
or separate bedrooms was immaterial. What was relevant was that the
next morning her
boyfriend’s mother could see that the
complainant was emotionally unwell; that she had visible fresh
scratches on her hands
and that she blamed the appellant for her
physical and emotional conditions.
[30] It would seem that
the complainant was unaware of her hand injuries until she met the
boyfriend’s mother. Similarly,
it would also seem that she was
unaware of her neck injuries until she met the forensic nurse. The
independent observation of her
injuries by third parties strengthened
her version and significantly enhanced her credibility.
[31] There remains one
more aspect about which I want to comment before my conclusion. I
have done so in the recent past. Mr Reyneke
referred once again to
the case of
S v KUBEKA
1982 (1) SA 534
(W) at 537F –
G where Slomowitz AJ said the following about the version of the
accused:
“
Whether I
subjectively disbelieve him is, however, not the test. I need not
even reject the State case in order to acquit him. It
is not enough
that he contradicts other acceptable evidence. I am bound to acquit
him if there exists a reasonable possibility
that his evidence may be
true. Such is the nature of the onus on the state.”
Now
S v KUBEKA
supra
as well as
S v MUNYAI
1986 (4) SA 712
(V)
at 715G have long since been overruled. See
S v VAN ASWEGEN
2001 (2) SACR 97
(SCA) 100 par [7] and [8] per Cameron JA.
[32] Now my final
comments. I have given anxious consideration not only to each
individual point of critique raised against the
evidence of the
complainant but also to the cumulative impact of all such points as
wells. I am of the view, and it is a very firm
view, that the
evidence of that single witness was not shown to be substantially
flawed. There were no material contradictions,
inconsistencies or
improbabilities in her evidence to render her veracity suspect. She
has not been shown to have been a deliberately
untruthful witness. On
the facts the conclusion of the court a
quo
regarding the
substantive merits of this case, is one which I, on appeal, cannot
hold to be wrong.
[33] Accordingly, I make
the following order:
32.1 The appeal against
the conviction fails.
32.2 The conviction is
confirmed.
32.3 The sentence stands.
______________
M. H. RAMPAI, J
I concur.
_______________
C. VAN ZYL, J
On behalf of the
appellant: Attorney J D Reyneke
Instructed by:
Bloemfontein Justice
Centre
BLOEMFONTEIN
On behalf of respondent:
Adv. F. Pienaar
Instructed by:
Deputy Director:
Public Prosecutions
BLOEMFONTEIN
/eb