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[2009] ZAGPPHC 141
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Ndlovu and Others v S (A431/2009) [2009] ZAGPPHC 141 (6 November 2009)
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH COURT,
PRETORIA)
Date: 2009-11-06
UNREPORTABLE
Case Number: A431/2009
In the matter between:
REGINALD SIBUSISO NDLOVU
First
Appellant
SIPHO
MZIKAYIFANI MHLONGO
Second
Appellant
BONGINKOSI
MICHAEL MKHONZA
Third
Appellant
and
THE STATE
Respondent
JUDGMENT
SOUTHWOOD
J
[1] On 8 August 2008 the appellants
were found guilty of rape in the Carolina regional court and were
each sentenced to life imprisonment.
The appellants now appeal
against both the convictions and the sentences.
[2] The
prosecution arose from an incident which took place at Ekulendeni,
Mpumalanga, on 14 August 2005. According to the complainant,
T S,
she had been at a tavern and was walking home alone at about 03h30
when the three appellants caught up with her in a dark
lane,
overpowered her and then took turns raping her.
[3] The first and second appellants
pleaded not guilty but admitted that they had had intercourse with
the complainant. They said
that this took place with her consent.
[4] The third appellant also pleaded
not guilty. His defence was a complete denial of all the allegations
against him. In his
plea explanation the third appellant said that
on the day in question he had gone to a tavern where he had met the
second appellant.
He later went to another tavern and at 22h00 he
went home. He did not know the complainant although he had seen her
before.
The third appellant also stated that after his arrest he was
taken to the police station where a policeman assaulted him and
forced
him to make a false statement that he had had intercourse with
the complainant with her consent.
[5] At the end of the case there were
three versions before the court: the complainant’s version,
the first and second appellants’
version and the third
appellant’s version.
(1) Briefly summarised, the
complainant’s version was as follows: at about 23h30 on 13
August 2005 she went to a tavern where
she sat and talked to the
other women present. She did not consume any alcohol. When the
tavern closed at 03h30 on 14 August
2005 she started walking home.
She was walking in a dark lane when she heard voices behind her. She
turned and recognised the
first and second appellants whom she knew
personally, and the third appellant whom she knew by sight. The
three men were talking
about her. She heard the first appellant
refer to the second appellant and the third appellant by name. The
third appellant’s
name is Bonginkosi. The three men caught up
with her and threw her to the ground. They took turns to rape her.
Each appellant
raped her while the other two held her down. When
they finished they took all her clothes except for her pants and
panty. She
put on her pants and walked home with her panty in her
hand. The second and third appellants followed her to her home and
only
left when she went in.
(2) Briefly
summarised, the first and second appellants’ version was as
follows: on the night in question they went to a
tavern where they
found the complainant. The first appellant and the complainant
danced together and the complainant then came
to sit with them. They
were all drinking alcohol. When the tavern closed at about 02h00
they all walked together to the house
which the second appellant was
looking after. There they sat and talked and drank until the first
appellant asked the complainant
whether he could have intercourse
with her. The complainant agreed and she and the first appellant
went into the adjoining bedroom
and had intercourse. When they
finished the first appellant got up, dressed, and left the bedroom
leaving the complainant lying
on the bed. The second appellant also
wanted to have intercourse with the complainant and he went into the
bedroom and asked her.
After she agreed he also had intercourse with
her. When they finished the second appellant dressed and left the
bedroom, also
leaving the complainant lying on the bed. The third
appellant then entered the bedroom and according to both the first
and second
appellants, had intercourse with the complainant. The
second appellant testified that the complainant is a prostitute and
is well-known
in the township. On the night in question she did not
ask for money. She was happy to receive as her reward the alcohol
which
they had bought.
(3) Briefly
summarised, the third appellant’s version was as follows: on
the night in question he went to the tavern where
he met the second
appellant. They sat and talked until about 22h00 when the third
appellant went home alone. He had nothing to
do with the
complainant. After his arrest the policeman took him to the police
station where a policeman assaulted him and forced
him to make a
false statement to the effect that he had had intercourse with the
complainant with her consent. This was all untrue
as he had not seen
the complainant that night.
[6] With the consent of the appellants
the J88 relating to the medico legal examination performed by Dr.
S.N. Ngwenya was handed
in as an exhibit and the appellants formally
admitted that –
(1) the
contents of the medico legal report are true and correct; and
(2) the
medico legal report relates to the complainant.
It is not in dispute that the
complainant went and reported the rape to the police on the same day
as the incident and that she
was examined by Dr. Ngwenya on that day.
The report reflects the following:
(i) The complainant’s clothing
had dust and grass on it;
(ii) The complainant reported that
she had been sexually assaulted by three men, all known to her;
(iii) The doctor found grass on the
complainant’s vulva and pubic hair and semen on her vagina;
(iv) The doctor found bruises on the
complainant’s clitoris and cervix;
(v) The doctor concluded that the
signs and symptoms suggest sexual assault.
[7] The third appellant’s
statement was received in evidence after a trial within a trial. The
statement made on 25 August
2005 reads as follows:
‘
Yes, I understand the
allegations against me. On the said date and time I did have sexual
intercourse with the victim. In actual
fact she did agree because
I’ve requested her before. She did not say to me she is going
to lay a charge against me. That
is all I can state.’
[8] In convicting the appellants the
court
a quo
–
(1) took into account the fact that
the complainant is a single witness testifying about a sexual
assault;
(2) found that the complainant was an
honest and credible witness who gave her evidence in an honest and
consistent manner; that
there are no inherent improbabilities in her
evidence and that despite aggressive cross-examination by the defence
she did not
contradict herself on any substantial issues; that she
did not wish to wrongly incriminate the appellants and that she did
not
hesitate to give evidence favourable to the appellants;
(3) found
that Dr. Ngwenya’s report was strong corroboration for the
complainant’s evidence: the finding that there
was grass on
the complainant’s vulva and pubic hair is not reconcilable with
the first and second appellant’s version
that they had
intercourse with the complainant on a bed;
(4) found that the first and second
appellants’ evidence that the third appellant was also present
at the time of the incident
and had sexual intercourse with the
complainant was strong corroboration for the complainant’s
evidence that the third appellant
raped her;
(5) found
that the Apollo light 150 metres away from the place where the
incident took place provided sufficient light for the complainant
to
be able to identify the third appellant;
(6) found
that the fact that the complainant pointed out the third appellant’s
home to the police is a strong guarantee that
the complainant
positively identified the third appellant;
(7) found that the differences between
the complainant’s statement to the police and her evidence in
court were not substantial
and were probably due to the traumatic
experience which the complainant had gone through;
(8) found
that at first blush the first and second appellants’ evidence
was not susceptible to criticism: that they persisted
with their
versions which agreed in every material respect to the effect that
they had intercourse with the complainant with her
consent;
(9) found
that the first and second appellants’ evidence that they had
intercourse with the complainant with her consent was
not really
broken down in cross-examination;
(10) found that in one respect the
first and second appellants contradicted themselves in
cross-examination. The first appellant
testified that there was an
agreement that the complainant would have intercourse with them in
exchange for drinking with them
and it then appeared that the
complainant was not present when this alleged agreement was reached
and that she was in the toilet
and it then appeared that the
appellants had not talked while the complainant was in the toilet.
The second appellant testified
in chief that he did not know what the
complainant’s occupation was but during cross-examination he
agreed with the other
evidence that the complainant was a sex worker
or prostitute and that she was famous for this;
(11) found that it was arguable that
these contradictions were material and went to the heart of the
dispute;
(12) warned itself against attaching
too much weight to the fact that the first and second appellants had
contradicted themselves
on this crucial issue;
(13) found that the policemens’
evidence during the trial within a trial was credible and reliable
and that it was inherently
improbable that the police would assault a
suspect to induce him to make an exculpatory statement and that the
third appellant
was a very poor witness, that he put forward an
incoherent version, and that during cross-examination he repeatedly
contradicted
himself on material issues. In this regard the regional
court referred to the third appellant’s admission that he had
raped
the complainant and his denial that he had raped her and his
admission and denial that Constable Mashaba assaulted him to get him
to admit that he had raped the complainant;
(14) found
that not only did the complainant place the third appellant at the
scene of the rape but the first and second appellants,
his good
friends, also testified that he was with them that night; and
(15) found
that the warning statement made by the third appellant was admissible
in evidence.
[9] As far as the first and second
appellants are concerned the regional court correctly found that the
appellants’ evidence
must be considered in the light of all the
evidence and that the fact that when considered in isolation their
evidence was not
susceptible to criticism was not decisive. The
regional court said if the state’s evidence was very strong the
appellants’
evidence could not be accepted.
[10] The regional court summarised the
first and second appellants’ version: that the complainant is
a prostitute; that
she was prepared to have intercourse with three
men in exchange for the indulgence of being allowed to drink their
alcohol with
them; that after she had had intercourse with all three
men she proceeded to drink with them and talked and laughed; that
the
complainant left early the next morning and there was still a
good relationship between her and the appellants and that they could
think of no reason why she should go and lay a charge of rape against
them. The regional court found that this version was not
consistent
with any logic or with the following objective facts which are not in
dispute:
(1) a few hours after the time of the
incident, at 16h30 on 14 August 2005, the complainant gave a
statement to the Ekulendeni police
that at about 03h30 that morning
she was raped by three men known to her;
(2) after
the complainant laid the charge she went to the hospital and was
examined by Dr. Ngwenya who made the findings already
referred to;
(3) no
motive for the complainant to lay a charge falsely implicating the
appellants in raping the complainant was established;
(4) after
the complainant laid the charge she was admitted to hospital on 30
August 2005 and treated there for stress and trauma
until 2 September
2005.
On the strength of these facts the
regional court found that the appellants’ version was so
inherently improbable that it
must be rejected and could not be
considered to be reasonably possibly true.
[11] As far as the third appellant is
concerned the regional court also considered his complete denial in
the light of all the evidence.
The court rejected the third
appellant’s version that he was by means of an assault forced
to make a statement. The court
found that it was highly improbable
that a policeman would assault a suspect to make a statement in which
a defence is created
for himself and dealt with the other
shortcomings in the third appellant’s evidence already referred
to. In addition to
this evidence the regional court referred to the
complainant’s undisputed evidence that she was able to identify
the third
appellant as someone she had seen before, that she had
pointed out his home to the police, that the third appellant’s
mother
approached her a few days after she laid the charge to try to
persuade her to withdraw it and that at the scene of the rape the
first appellant referred to the third appellant by name, and,
finally, the evidence of the third appellant’s two friends
who
confirmed that he had also had intercourse with the complainant.
Neither had a motive to falsely implicate the third appellant.
[12] The main argument on behalf of
the appellants is that the complainant was not a reliable and
credible witness and that the
court
a
quo
was not justified in
finding them guilty on the strength of such evidence. The third
appellant’s attorney conceded that,
as a matter of probability,
it had been established that the third appellant was a mendacious
witness but that this did not justify
a finding that he was guilty of
rape. In
S v Mtsweni
1985 (1) SA 590
(A)
at 593I-594D the court
warned against attaching too much weight to the fact that the accused
had lied and inferring that because
an accused is a liar he is
probably guilty and emphasised that the weight to be given to the
fact that the accused lied must depend
on the circumstances of every
case. The court mentioned two considerations which are of relevance
in the present case –
(1) the accused may think that a lie
is more acceptable in the circumstances of the case;
(2) the tendency of an accused to deny
the truth out of fear that he will be involved in a crime or because
of a fear that any admission
of involvement in an incident or crime,
however tenuous, risks an inference of participation and guilt out of
all proportion to
the truth.
[13] In
S
v Sauls and Others
1981
(3) SA 172
(A)
at 179G-180H
the court set out the correct approach to the evidence of single
witness:
‘
Counsel
for the first appellant, Mr. Kuschke, submitted that the trial Judge
had been in error in relying on the evidence of the
single witness to
this murder. He referred to a well-known passage from a judgment
given 50 years ago by De Villiers JP in
R
v Mokoena
1932 OPD
79
at 80 in which it was
stated that
“
the uncorroborated evidence of
a single competent and credible witness is no doubt declared to be
sufficient for a conviction by
s284 of Act 31 of 1917, but in my
opinion that section should only be relied on where the evidence of
the single witness is clear
and satisfactory in every material
respect.”
This passage has been the subject of
much judicial comment and criticism and has not been overlooked by
hard-pressed counsel.
In the case of
R
v Abdoorham
1954 (3)
SA 163
(N)
at 165 Broome JP
stated:
“
Mr.
Ma
ll,
for the appellant, relied upon the case of
R
v Mokoena
1932 OPD
79
,
which held that there
where the Crown relied upon the evidence of single witness who was
contradicted by the defence, the Court
could only convict where the
evidence of the Crown witness was clear and satisfactory in every
material respect. This proposition
has been followed in many
subsequent cases but none of them in this Court. I am very doubtful
whether, as a proposition of law,
it is correct. And, in any case, I
regard it as entirely unhelpful. The Court is entitled to convict on
the evidence of a single
witness if it is satisfied beyond reasonable
doubt that such evidence is true. The Court may be satisfied that a
witness is speaking
the truth notwithstanding that he is in some
respect an unsatisfactory witness.”
Subsequently in a case which, by
coincidence, has the same name as the case in which De Villiers JP
had given judgment, Fagan JA
explained that the criticism of Broome
JP
“
would have been justified if
the sentence in the 1932 judgment had to be read as laying down a
requirement of law that must be strictly
complied with. It was
improbable, however, that De Villiers JP intended it to be read that
way.”
(
R
v Mokoena
1956 (3)
SA 81
(A)
at 85.)
In
R
v T
1958 (2) SA 676
(A)
at 678 Ogilvie Thompson
AJA said that the cautionary remarks made in the 1932 case were
equally applicable to s 256 of the 1955
Criminal Procedure Code, but
that these remarks must not be elevated to an absolute rule of law.
Section 256 has now been replaced
by
s 208
of the
Criminal Procedure
Act 51 of 1977
. This section no longer refers to “the single
evidence of any competent and credible witness”; it provides
merely
that
“
an accused may be convicted on
the single evidence of any competent witness.”
The absence of the word “credible”
is of no significance; the single witness must still be credible,
but there are,
as
Wigmore
points out, “indefinite
degrees in this character we call credibility”. (Wigmore on
Evidence
Vol
III para 2034 at 262.) There is no rule of thumb test or formula to
apply when it comes to a consideration of the credibility
of the
single witness (see the remarks of Rumpff JA in
S
v Webber
1971 (3) SA
754
(A)
at 758). The trial
Judge will weigh his evidence, will consider its merits and demerits
and, having done so, will decide whether
it is trustworthy and
whether, despite the fact that there are shortcomings or defects or
contradictions in the testimony, he is
satisfied that the truth has
been told. The cautionary rule referred to by De Villiers JP in 1932
may be a guide to a right decision
but it does not mean
“that the appeal must succeed
if any criticism, however slender, of the witness’ evidence
were well-founded”.
(per Schreiner JA in
R
v Nhlapo
(AD)
10
November 1952) quoted in
R
v Bellingham
1955
(2) SA 566
(A)
at 569). It
has been said more than once that the exercise of caution must not be
allowed to displace the exercise of common sense.’
[14] There are a number of problems
with the complainant’s evidence.
(1) Her evidence is not consistent
with the statement she gave to the police at 16h30 on 14 August 2005
in the following respects:
(i) In her evidence she states that
each attacker raped her once. In her statement she says that each
attacker raped her twice.
(ii) In
her evidence she states that after the incident the second and third
appellants followed her home and left only when she
entered. In her
statement she says that after the rape the three men ran away.
(iii) In
her evidence she says that the first appellant used the second and
third appellants’ names. In her statement she
does not refer
to this. She merely said that the third attacker was ‘just
familiar’.
(iv) In her evidence she says that
when the third appellant was attempting to penetrate her he was not
able to do so because of
the size of his penis and that it was only
when the other two appellants forced her legs apart that he was able
to penetrate her.
This startling fact is not referred to in the
police statement.
(2) The complainant contradicted
herself on a number of occasions about the identity of the third
appellant. She did not tell the
police that the first appellant had
referred to him by name. She says she gave the police his
description and the police eventually
gave her the name. This does
not appear from the statement.
(3) The
complainant contradicted herself about the visibility in the lane.
She testified that it was very dark and then she testified
that there
was enough light from the Apollo light which was 150 metres away for
her to see the attackers.
(4) According to the complainant she
went straight home after the rape. She was dressed only in her pants
and was carrying her
panty. When she arrived at her home she found
her boyfriend, Pat Shiba. He saw her condition – she was
half-dressed, covered
with grass and dirt and could see that she had
been raped – yet she did not report to him what had happened.
In fact there
was no discussion at all. She says she just went to
sleep. This is highly improbable.
(5) The complainant testified that
only after she woke up did she report to her boyfriend what had
happened. This is highly improbable.
(6) The complainant testified that
when she woke up she changed her clothing – she put on a skirt
and a t-shirt. The medico
legal report reflects that the
complainant’s clothes had dust and grass on them. It is not
explained how the dust and grass
got onto the complainant’s
clothes. If the complainant put on fresh clothes as she indicated
the only inference is that
she deliberately put grass on them.
(7) The
complainant testified that the path where the incident took place was
unpaved and stony. The medico legal report reflects
that there was
grass on the complainant’s vulva and cervix. There is no
explanation for the presence of grass on her private
parts. It was
striking that the complainant simply adapted her evidence on the
issue. If the complainant put grass onto her clothes
it is equally
likely that she put grass onto her private parts.
(8) The complainant testified that she
suffered scratches on her back during the rape. The medico legal
report does not refer to
such injuries.
(9) The complainant testified that the
contradictions in her statement were due to her emotional state. The
medico legal report
which must have been completed at about the same
time as her statement reflects no comment by the doctor.
(10) The
complainant testified that she went to the tavern at about 23h30 and
stayed there until about 03h30 and during that time
did not consume
any alcohol. This is most improbable. If the complainant does not
drink alcohol why did she go to the tavern.
[15] In my view the contradictions
between the complainant’s evidence and police statement are
material and required a proper
explanation. This was not
forthcoming. There are also a number of other contradictions and
improbabilities which affect her credibility.
[16] In my view the third appellant’s
warning statement was correctly admitted in evidence but its
significance was not properly
appreciated by the court
a
quo
. The third appellant,
an 18 year old youth, made the statement freely and voluntarily
shortly after he was arrested and without
legal assistance. It is
clearly exculpatory and if true provides a complete defence. It is
also consistent with the versions
of the first and second appellants.
It seems clear that the third appellant’s denial that he made
the statement freely and
voluntarily and that it is true is due to
the third appellant considering that the truth is not good enough and
attempting to put
distance between himself and the alleged crime.
[17] The court
a
quo
was not able to make
pertinent findings that the first and second appellants were not
credible and reliable witnesses and based
the conviction on the
probabilities without carefully considering the complainant’s
evidence to satisfy itself that she was
worthy of belief. In my view
the court
a quo
erred
in this regard. In the light of the shortcomings in the
complainant’s evidence the court could not be satisfied that
the truth had been told. The appellants were therefore wrongly
convicted.
Order
[18] The appeal is upheld and the
convictions and sentences are set aside.
___________________________
B.R.
SOUTHWOOD
JUDGE
OF THE HIGH COURT
I agree
___________________________
S.S. OMAR
ACTING
JUDGE OF THE HIGH COURT
CASE NO: A431/2009
HEARD
ON: 2 November 2009
FOR
THE 1
st
and 2
nd
APPELLANTS: ADV. F. VAN AS
INSTRUCTED
BY: Legal Aid Board
FOR
THE 3
RD
APPELLANT: MR. C. JORDAAN
INSTRUCTED
BY: Coert Jordaan Inc Attorneys
FOR
THE RESPONDENT: ADV. G.J.C. MARITZ
INSTRUCTED
BY: Director of Public Prosecutions
DATE
OF JUDGMENT: 6 November 2009