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[2010] ZAFSHC 6
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Marroloane v S (A172/2009) [2010] ZAFSHC 6 (4 February 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case
No. :
A172/2009
In
the
appeal
between:-
EPHRAIM
MARROLOANE
Appellant
and
THE
STATE
Respondent
CORAM:
CILLIé,
J
et
VAN
DER MERWE, J
et
MOLEMELA,
J
_____________________________________________________
HEARD
ON:
25
JANUARY 2010
_____________________________________________________
JUDGMENT
BY:
CILLIé,
J
_____________________________________________________
DELIVERED
ON:
4
FEBRUARY 2010
_____________________________________________________
JUDGMENT
[1] The appellant in this
matter was convicted in the Regional Court of rape. As the
complainant was at the time 12 years of age
and therefore under the
age of 16, the provisions of section 52 (before its amendment) read
with Part 1 of Schedule 2 of Act 105
of 1997 was applicable. The
regional magistrate accordingly referred the matter to this court for
sentencing.
[2] When the matter was
called in this court, Wright J who presided, confirmed the conviction
and sentenced the appellant to 15
(fifteen) years imprisonment. An
application for leave to appeal against the conviction was refused by
Wright J. However, on
petition to the Supreme Court of Appeal, leave
to appeal to the full court of this Division against the conviction
only, was granted
to the appellant.
[3] The appellant’s
conviction is based on events that took place the night of 11
December 2004 at 1189 Dinoting, Zastron.
The complainant slept there
that night with her friend Masabata, who happens to live on the
premises with her grandfather. The
appellant also stays on these
premises but in a separate shack in the backyard. He is Masabata’s
uncle on the basis of being
the brother of Masabata’s mother.
The complainant and Masabata shared a bed that night. The
grandfather was absent attending
a vigil of a relative. He is of
course then the father of the appellant.
[4] That night someone
entered the room where the complainant and Masabata were sleeping.
The complainant was then raped. A few
hours later the complainant
was examined by Dr. Keeve. She testified that there were signs of
recent sexual intercourse.
[5] The complainant
testified that during the incident the perpetrator asked her whether
she knew who he was. To that she responded
that it was Mazambaan.
It is common cause that that is the name of the appellant. According
to her evidence, she recognised the
appellant by his voice. It was
dark in the room, but when he left the room she allegedly saw him.
She knows him as she on occasions
visits her friend Masabata at that
house and she saw the appellant around.
[6] Masabata’s
evidence was to the effect that she was sleeping together with the
complainant on one bed. During the night
she was grabbed, but
managed to free herself. The complainant was then pulled to the
floor. The witness hided under a table.
Eventually she ran out and
summoned help from a neighbour by the name of Mlotshwa. When she
came back she found the complainant
at the gate. She instructed the
complainant to go and call the police. Mlotshwa chased the suspect
and the person jumped on the
back of the house. However, when the
person “jumped the fence he looked towards us” and she
managed to see that it
was the appellant. She indicated a distance
of about six metres that they were apart at the time.
[7] Sergeant Johannes
Sefadi of the police at Zastron responded to a telephone call from
the complainant and went to the scene.
He took the complainant to
hospital after she reported that she was raped. The witness makes no
mention of Mlotshwa being at
the scene at the time.
[8] The defence case
gives a completely different picture. According to the appellant he
was at the same vigil where his father
was and from there he went to
a friend where he slept. He on occasions admonished the complainant
and Masabata when they were
late at night out on street. That, he
says, might be the reason why he is implicated in the events.
[9] The aforementioned
Mlotshwa was called as defence witness. He testified that he knows
the complainant and Masabata. The night
of the incident he was at
home. He denies that Masabata ever summoned his help, nor did he
chase anybody that night. As a matter
of fact he was never woken up
during the night. In short, he denies Masabata’s evidence
in
toto
.
[10] Masabata’s
grandfather, that is the appellant’s father, also testified for
the defence. According to him, his
granddaughter Masabata and the
complainant are spoiled youths who loiter around coming home late at
night. The appellant reprimanded
them and on occasions even
assaulted them. Masabata responded thereto by threatening to lay a
charge against the appellant. The
night of the incident the
appellant was with him at the vigil, but left later informing the
witness that he was going to sleep
at a friend’s place.
[11] The correctness of
the appellant’s conviction of course depends on whether his
version, as corroborated by the defence
witnesses, is reasonably
possibly true. An accused’s evidence cannot be rejected on the
basis that it is improbable –
it must be so improbable that it
cannot be reasonably possibly true. The court does not have to be
convinced that every detail
of an accused’s version is true.
See
S
v SHACKELL
2001 (4) SA 1
(SCA) on 13A. The regional magistrate rejected the
evidence of the appellant, but more important so, also the evidence
of the
said Mlotshwa and the grandfather. The issue on appeal is
whether there were sufficient reasons for the regional magistrate to
do so.
[12] Valid criticism can
be raised against the evidence of the appellant. The evidence that
he slept at a friend’s place
at the night of the incident was
raised at a very late stage during the trial. In this regard the
impression was initially conveyed
by his attorney, during the
cross-examination of the state witnesses that he, in fact, returned
home from the vigil that night
and not to a friend. The appellant,
also in his evidence, did not make mention of the fact that he
informed the grandfather, that
is his father, when leaving the vigil
that he would be sleeping at a friend’s place, as the father
testified he did. Mr.
Harrington, for the State, emphasised these
unsatisfactory aspects in the appellant’s evidence and I take
note of that.
[13] The problem for the
State, however, lies with the evidence of Mlotshwa and to a lesser
extent the evidence of the grandfather.
The evidence of Mlotshwa was
rejected by the regional magistrate on the basis that he is a friend
of the grandfather and on occasions
borrows building tools from him.
It was also mentioned that there is some contradiction between the
evidence of Mlotshwa and the
grandfather as to whether the
grandfather on occasions visits Mlotshwa’s place to drink.
Mlotshwa confirmed that that is
the position whilst the grandfather
said that, in fact, it is only his wife who does so. There is
further some contradiction as
to whether Mlotshwa on the morning
before he testified, spoke to the grandfather. The grandfather, in
his evidence, said so, whilst
Mlotshwa denied it. Be that as it may
and accepting that they did speak to each other, it is unknown what
they spoke about or
what the nature of their conversation was. The
evidence of the grandfather was found to be untruthful because of the
contradictions
between his evidence and that of the appellant whether
the appellant told him when he left the vigil that he would be
sleeping
with a friend.
[14] The advantages a
trial court has as to issues of credibility is appreciated. However,
in the present appeal I am left with
the firm impression that the
evidence of Mlotshwa and the grandfather was rejected for
insufficient reasons. Separating the wheat
from the chaff it seems
that the real reason why their evidence was rejected, is the family
and friendly relationship with the
appellant.
[15] As to Masabata’s
identification of the appellant, as the perpetrator, it is clear that
if the evidence of Mlotshwa is
to be accepted, Masabata’s
evidence cannot be correct. It is to be noted that the policeman who
arrived at the scene does
not make any mention in his evidence of the
presence of Mlotshwa. It is highly improbable that Mlotshwa, if
summoned to the scene
and knowing that the police are on their way,
would leave the complainant and Masabata unattended and return home.
[16] As far as the
complainant’s identification of the appellant, it is to be
mentioned that Masabata could not identify the
appellant in the house
as it was too dark. The complainant’s alleged identification
of the appellant was done when he left
the room. This the
complainant, however, did not mention in her evidence in chief, but
only raised this during cross-examination.
The impression from her
evidence in chief is that the appellant was recognised by his voice
only. Be that as it may no proper
identification parade, either with
reference to voice or person, was held.
[17] I realise that an
appeal is not a retrial and the court of appeal must be convinced
that the trial court’s finding is
wrong before an appeal can
succeed. However, for the reasons set out above I came to the
conclusion that the regional magistrate
should have entertained doubt
as to whether the appellant’s guilt was proved beyond
reasonable doubt. In reaching this conclusion,
the evidence of
Mlotshwa played a major role.
In the result the appeal
against the conviction is upheld and the conviction and sentence are
set aside.
____________
C.B. CILLIé, J
I agree.
________________________
C.H.G. VAN DER MERWE,
J
I agree.
_________________
M.B. MOLEMELA, J
On
behalf of
the
appellant: Adv. R.J. Nkahle
Instructed
by:
Justice
Centre
BLOEMFONTEIN
On
behalf of respondent: Adv. W.J. Harrington
Instructed by:
Director
of Public Prosecutions
BLOEMFONTEIN
/sp