About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Bhisho
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Bhisho
>>
2011
>>
[2011] ZAECBHC 9
|
|
Sobekwa v S (CA&R 19/2011) [2011] ZAECBHC 9 (29 September 2011)
IN THE HIGH COURT
OF SOUTH AFRICA
EASTERN CAPE HIGH
COURT–BHISHO.
CASE
NO: CA&R 19/2011
HEARD:
16 SEPTEMBER 2011
DELIVERED:
29 SEPTEMBER 2011
In
the matter of
:
MXOLISI
SOBEKWA
APPELLANT
v
STATE
RESPONDENT
JUDGMENT
MAGEZA AJ:
[1] Appellant herein, a
64 year old pensioner, was charged before the Magistrate –
Regional Court, Mdantsane with the Rape
of 15 year old female, a
neighbour and grade 9 Stirling High School learner. He pleaded not
guilty and was, pursuant to his trial,
duly convicted. He was
sentenced to a 10 (ten) year term of imprisonment, 4 (four) years of
which were suspended on certain conditions.
He appeals against both
the conviction and sentence.
[2] The central issue in
the appeal is whether on all the evidence availed the Court by the
prosecution and taking into account
the appellant’s defence
disclosing an alibi, the State could in all the circumstances be said
to have proved its case beyond
a reasonable doubt thus rendering the
conviction of the appellant secure and in accordance with justice.
[3] The complainant’s
testimony was that she lived at the time of the incident with her
grandmother and two aunts. On the
Saturday in question, she had had
plans to attend a braai (barbecue) at a friend’s home in
Cambridge.Prior to doing so she
was required to clean her yard and
for these purposes, she went to borrow a rake from the appellant
neighbour who lived on his
own. This she said was after eight in the
morning. She knocked on the front door of the house and on being
invited inside and entering,
she says she was told by the appellant
that the rake was behind her in the kitchen and when she turned
around the appellant grabbed
her and pinned her down on a sofa.
According to her, the appellant removed her track-suit trousers and
proceeded to rape her. He
inserted his private parts into her’s
once but that he did not ejaculate. She said they then heard the
sound of footsteps
on gravel (crushed stone) and the appellant
thought it was his wife and released her and she ran away.
[4] When she arrived at
home she said she was not stable and was shouting at other family
members. She washed and saw blood on her
panties. She did not tell
anyone about the incident. Asked by the prosecutor why she did not do
so she said the accused had threatened
her that if she told anyone he
“will do something painful” to her. From her evidence,
nothing suggests whether or not
any of her aunts had noticed anything
untoward in her appearance or questioned her about being unusually
flustered or dishevelled.
[5] Later on that same
day, shereceived a telephone call from one Vuyani Bonyoti, an
erstwhile taxi driver well known to her as
someone whom she regarded
as a father figure. She said she “did not interact with him in
a good manner” over the phone
and did not tell him what had
happened. She only toldhim about the incident some 4 days later and
was consequently taken by Bonyoti
to Cecilia Makiwane Hospital where
she was examined in the presence of her mother. It does not appear
anywhere in the record as
to how and when her mother came to know of
her ordeal and who in particular told her about the incident that had
befallen her daughter
as well as how she ended up joining them at
Cecilia Makiwane hospital. As regards the first opportunity to
communicate with Bonyoti
on the day of the incident, it only emerged
in cross-examination that she had not spoken to him over the phone as
initially alluded
to but had in fact met him at Highway taxi rank
whilst on her way to the braai at Cambridge.
[6] Although she was
examined at the hospital and a J88 report was completed by the
examining doctor, the prosecutor elected not
to tender the detail of
its contents into evidence and informed the Court that she would not
be handing in the report on account
ofit having been made four days
after the incident and that the doctor could make no discernible
material finding. She went on
to inform the Court that:
“
Nothing
indicate whether the hymen was actually punctured but perhaps the
blood just indicates slightly that there may have been
an injury but
not necessary that the hymen was broken.”
Having accepted that the
report was of no value to the State’s case, it is unclear
whether the prosecutor’s reference
to “blood”
related to any such noted on the J88 or presumably what the
complainant had said she saw when she went home
to wash. Be that as
it may, it is common cause that the Court did not have the benefit of
such potentially corroborating medical
analysis and report.
Furthermore the State did not call any of the aunts, mother or
friends whom the complainant had visited for
the braai in Cambridge,
nor did it seek to introduce into evidence the complainant’s
statement made to the police when reporting
the matter.
[7] Under cross
examination, complainant said she had struggled and tried to free
herself from being pinned down and that appellant,
who was wearing a
pair of jeans, had taken out his penis. She said she was crying but
her voice “could not go out”
and she could not make any
sound. He was pinning her down, closing her mouth and taking his
penis out and inserting it. She was
a virgin at the time and this was
a first time sexual encounter.She explained that after this incident
and later that day, she
went to visit a friend in Cambridge and
according to her she came back later on that same day but she also
never told this friend
about the incident.
[8] When complainant was
cross examined, she could not say whether the appellant had in fact
heard the sounds of the footsteps on
gravel that she had heard.
Complainant admitted that appellant was hard of hearing. It is
evident from the record that both the
prosecutor and the Court had on
a number of occasions urged complainant to speak up as the appellant
was partly deaf. It was suggested
in cross-examination that he locked
his gate to avoid anyone entering in light of his inability to hear.
It was put to complainant
that appellant had left that morning to
visit his wife who lived in another house in Mdantsane and had only
returned later that
afternoon to watch a televised soccer match.
[9] The defence then
produced a statement made by the complainant to the police following
the incident. According to this statement,
it was put to complainant
that she had said the appellant had warned her not tell his wife but
did not allude to the threat of
harm. She replied that he had not
elaborated on what he would do. Furthermore, the defence pointed out
that according to the said
statement, she had told the police that
appellant had ejaculated into her. She denied that she had said this
to the police. It
was also pointed out to her that according to her
statement, she had told the police that she had reported the alleged
rape to
her friend Asisipho whom she had visited in Cambridge,
something which she also denied. She said that all she had told
Asisipho
was that she was not feeling well. Pressed on why, according
to this statement, she had said on her arrival in Cambridge, she
reported
the matter to her friend as well as to Vuyani Bonyoti who
was in Durban at the time, she replied that she did not tell them at
the same time. Asked as to why she had said in her evidence-in-chief
that when she reported this to Bonyoti he was in East London
she
replied that he was on his way to work.
[10]Vuyani Bonyoti
testified that the complainant regarded him as a father figure. He
said he met her that afternoon on the day
of the incident at Highway
taxi rank when she was on her way to Asisipho in Cambridge and
complainant was somewhat diffident. He
again called her some days
later and she still did not want to talk or open up to him. He
persisted in asking her until finally
“she said she was raped
by uncle.”
[11] Testifying in his
defence, appellant maintained that he had gone to his wife who lives
at NU8 in Mdantsane that morning and
only came back later that day to
watch a soccer match. He only married his wife when she already owned
this other house and that
was why he was in the habit of visiting
her. He denied raping the complainant.
[12] Called by the
defence as a witness, Asisipho Dantjie said on the day in question
she had a braai at her home and the complainant
had joined her and
other friends for the festivities. Complainant slept over that night
and left the following day. She was certain
of this as complainant
had slept together with her. This was on the 8
th
November
2008. Cross-examined by the State, she said she was no longer certain
if complainant had slept over at her home that night.
She remembered
being told by the complainant of being raped but when and how she was
informed was never fully canvassed in cross
examination and the issue
was left unclarified.
[13] In the course of
argument by the State, the presiding Magistrate raised a number of
concerns and the following appears from
the record at page 52 para
25:
“
And
if he (she) failed to report this because he (she) was afraid of the
accused why did she eventually report it to his –
to her
friend? And on the other hand the accused stuck to his version that
she (he) was not there – he was not there that
he had visited
his wife. And has not been shown to be lying.And taking into account
that he just has to give a story that is reasonably
possibly true. I
was not there, I was away, I visit my wife and these are the
negatives in the State’s case.”
[14] It is clear from the
aforegoing that the Magistrate, once all the evidence and
cross-examination of both the State and defence
had run its course,
was of the view that the alibi defence had not been shown to be
false. Even more detrimental to the State’s
case was the
expressed impressionthat the State’s case had material
weaknesses, referred to by him as ‘negatives in
the State’s
case’.Many of these shortcomings must have been evident even to
the prosecutor and it is apparent from
the record that a number of
deficiencies, inconsistencies, failures to adduce corroborating
medical and other witness accounts
cumulatively impacted negatively
on its case.
[15] In so far as
concerns the rape charge the complainant was a single witness. An
accused can be convicted of an offence on the
basis of the evidence
of a competent single witness.“There is no rule of thumb test
or formula to apply when it comes to
a consideration of the
credibility of a single witness… The trial Judge will weigh
his evidence, will consider its merits
and demerits and, having done
so will decide whether there are shortcomings or defects or
contradictions in his testimony, he is
satisfied that the truth has
been told… It has been said more than once that the exercise
of caution must not be allowed
to displace the exercise of common
sense”.
See - S v Sauls and Others
1981 (3) SA 172
(A).
[16] The onus remains on
the State throughout to prove beyond a reasonable doubt that the
accused committed the offences as charged,
There is no onus on the
accused to convince the Court of the truth of any explanation which
he gives. Even if the explanation is
improbable, the Court is not
entitled to convict him unless it is satisfied, not only that the
explanation is improbable but that
beyond doubt it is false. If there
is any reasonable possibility of his explanation being true, then he
is entitled to his acquittal.
See R v Difford
1937 AD 370
at 373.
[17] Where the defence is
premised on an alibi, even if the State’s case stood on its
own, as a completely acceptable and
unshaken edifice, a court must
investigate the defence case with a view to discerning whether it is
demonstrably false or so inherently
improbable as to be rejected as
false. –
S v Munyai
1986 (4) SA 712
(V)
.
If there
is any reasonable possibility of his explanation being true, then he
is entitled to his acquittal.
[18] In
S v Liebenberg
2005(2) SACR 318 (SCA)
, the Court per Jafta JA (as he then was)
held that:
“
The
approach adopted by the trial Court to the alibi evidence was
completely wrong. Once the trial court accepted that the alibi
defence could not be rejected as false, it was not entitled to reject
it on the basis that the prosecution has placed before it
strong
evidence linking the appellant to the offences. The acceptance of the
prosecution’s evidence could not, by itself
alone, be a
sufficient basis for rejecting the alibi evidence. Something more was
required. The evidence must have been, when considered
in its
totality, of the nature that proved the alibi evidence to be false.”
at
358-I
[19] The complainant’s
evidence concerning what disturbed the appellant leads to an
uncertain impression. In her evidence-in-chief,
she testified that
the appellant had in fact heard footsteps on the gravel outside and
had thought that it was his wife arriving,
this despite the
collectively accepted fact of his to a significant degree, being hard
of hearing. Laterand in cross-examination,
she conceded that this is
an assumption she made without being led thereto by the appellant’s
own communication and/or disposition
in her arriving at this
conclusion.
[20] When she arrived
back at home, save forher demeanour towards her aunts, nothing is
said about whether or not the aunts noticed
anything untoward with
her appearance. One can only imagine that an attack of this nature
must lead not only to an immediate lack
of composure and breakdown
arising from trauma in particularly as young a person as complainant
(a virgin with no previous sexual
experience) but would betray
external signs of fluster, disjointed attention and degree of
hysteria evident to those close to her.
Very little of this crucial
evidence from any of the aunts, if any,was introduced by the State.
[21] Complainant does not
offer any explanation as regards why she spurned so many
opportunities to report an incident of this nature
in spite of the
many opportunities available her. She has said the appellant had
warned her against telling his wife and had threatened
her with doing
something painful were she to do so. This does not explain why she
could not then inform others far removed from
the appellant. She
could have done so to Bonyoti earlier without him having to prise the
report out of her. After all she regarded
him as a father figure. She
could have informed her mother who lived elsewhere in Mdantsane and
not with her much earlier. In many
of these type of cases involving
students, there are teachers to whom they are at times able to
confide. This alone however is
not a basis to impugn her allegation
of rape.
[22] In sexual cases, one
of the most crucial sources of corroboration is an independently
collated report by an appropriate medical
expert pursuant to a
physical examination colloquially termed - the J88. This is more so
where the complainant is a single witness
in respect of the rape
itself. The report may or may not in some instances be decisive but
is of vast value for a number of reasons.
For instance, in the case
of someone with no previous sexual experience (virgin) it could, even
if compiled from an examination
some four days later, indicate
whether or not there existed signs of a modicum or degree of
penetration. There are also other observations
that may be of
assistance to the Court in its duty to assess the facts for the
purposes of arriving at an informed determination.
Taken
collectively, these observations where reliable, can be collectively
taken into account by a Court to eliminate uncertainties
that may be
operative in the mind of the presiding judicial officer. Where the
report is admittedly available and the State informs
the Court that
it does not wish to tender it into evidence, uncertainties will
needless to say, abound in the mind of the Court.
Now the possible
adverse consequence of the State’s failure to produce the
report must have been clearly within its contemplation
and foreseen
by the State and that such failure would be a decision it took at the
risk of material prejudice to its own case.
Not only did the State
waive its prospect of producing possible weighty corroborating expert
evidence, it plainly informed the
Court that there existed little
value in submitting it into evidence. What constitutes little value
to the State might in many
instances be the kind of great value to
the defence which a Court as independent arbiter cannot overlook.
[23] I have already
pointed out that there was a litany of many other material and
competent witnesses the State had access to but
which it elected not
to call. In so far as concerns the defence witness Asisipho, what is
not in dispute is that complainant attended
the braai and there were
other friends. According to her version, the complainant would have
most likely have ended up sleeping
in Cambridge because of the
scarcity of transport were she to leave later than around 7 in the
evening. Assuming that Asisipho
lived with her parent or parents and
she had been told by the complainant on the evening of the braai by
complainant that she had
been raped, such would most likely have
caused utmost consternation among her friends and would have likely
led to this reaching
one or other of Asisipho’s parent or
parents. These were after all 15 and 16 year olds and it is difficult
to imagine how
they would collectively have covered up such an awful
and unlawful invasion of complainant’s person. Indeed it was
never
the State’s case that complainant had told the friends at
the braai and the State accepted that the first time a report was
made by complainant was 4 days later and even then, after some
painstaking prompting by the witness Vuyani Bonyoti.
[24] The Magistrate
furthermore accepted that the alibi defence tendered by the appellant
was never shown to be palpably false or
untrue. In fact he accepted
it andin his words, ‘he was not shown to be lying’ and in
that event then there the matter
ought to have rested.
[25]In light of all the
aforegoing cumulative factors, I have grave misgivings regarding the
State having adduced enough reliable
and cogent evidence to make out
a case against appellant beyond a reasonable doubt. The Magistrate
clearly did seriously entertain
these doubts and very little explains
why he proceeded to find otherwise. Certainly this was a misdirection
calling for this Court’s
intervention.
[26] In the result the
following order is made:
(a)
The appeal is upheld
(b)
The appellant’s
conviction and sentence are set aside
MAGEZA AJ:
ACTING JUDGE OF THE
HIGH COURT
I AGREE
A.E.B. DHLODHLO
JUDGE OF THE HIGH
COURT
ACTING DEPUTY JUDGE
PRESIDENT.
FOR
APPELLANT:
MR
N. SANDI
INSTRUCTED
BY:
MESSRS
MASETI INC.
FOR
RESPONDENT:
MR
A. ERASMUS
INSTRUCTED
BY:
DEPUTY
DIRECTOR OF PUBLIC
PROSECUTIONS
– BHISHO