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[2009] ZAGPPHC 359
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Mohamed v S (A145/2008) [2009] ZAGPPHC 359 (11 December 2009)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
CASE
NUMBER: A145/2008
NOT
REPORTABLE
DATE:
11 DECEMBER 2009
In
the matter between
YOUSUF
MOHAMED APPLICANT
AND
THE
STATE RESPONDENT
JUDGMENT
TLHAPI,
V
[1]
The appellant appeared before the Regional Magistrate in Pretoria on
a charge of indecent assault. He was sentenced to R10 000.00
or 12
months imprisonment and a further 12 months imprisonment suspended
for five years on condition that he is not convicted of
indecent
assault, committed during the period of suspension. He appealed
against his conviction and sentence.
[2]
The appellant and Ms D. T. (complainant) worked for the same employer
Esquire Technologies. The former was employed as the financial
manager and the latter as human resource officer. The complainant
testified that on 10 February 2007 a day before the commencement
of
her leave, while at her desk having a conversation on the phone with
another co-employee, the appellant approached her from
behind,
informed her that he was leaving and instructed her to lock the door.
He came closer to her touched her breast and squeezed
it. She stopped
talking to the person on the phone. She pushed his hand aside He
asked if he could lake her out that night, she
shook her head in
disapproval. He wanted 10 know why she refused, she again shook her
head in disapproval. She removed the receiver
from her ear after the
Incident She was shocked by the incident, she cried. Jean from the
legal department entered her office to
ask for something and realized
that she was crying and M. from the computer division followed
Without going into detail she reported
the incident to them. She had
a good working relationship with the appellant. He had never touched
her before.
[3]
She never went back to work. However, during the second week of her
absence, that is, the week during which she had to resume
duty, the
appellant called her to work to do the salaries. On her arrival she
requested a colleague, whose name she had forgotten,
to fetch the
keys from the appellant. He insisted that she fetch them. Before she
could do so she fell ill suffered of nausea,
went to the toilet and
vomited blood A notice informing her to attend a disciplinary enquiry
was received by her two days after
the scheduled date. She was not
sure whether she had been dismissed at the enquiry.
[4]
The complainant conceded in cross examination that she discussed her
leave application with the appellant that morning. The
10
th
was supposed to be her last working day and her application for two
weeks leave had not as yet been approved because it had not
been
signed by the appellant. Her leave was then approved from 10 to 19
February 2007. She had applied for two weeks because her
birthday was
on the 24
th
. When the two weeks were not approved she asked for a day off on the
22
nd
the appellant told her that they would discuss it later. She
understood that she had to return to work on the 19
th
to do the salaries. She failed to
report for duty on the 19
th
. During the first week she was referred to a lady doctor by her
sister and in the second week she went to see her doctor. She
had
tried to obtain an interdict against the appellant but finally
reported the incident to the police. She had in the past been
under
stress due to incidents not related to her employment and had
experienced outbursts one which caused her to collapse. Sometimes
this occurred at the workplace.
[5]
The appellant denied that he had touched complaint's breast. He
testified that he went down to request her to close the unit
for him.
He usually drove himself to work on Saturdays and left earlier to
avoid traffic. Due to his diabetic status and an operation
which
followed he had lost 60% of his eyesight which hampered night
driving. Day driving had become a problem. Complainant's office
overlooked an open area shared by five employees. The complainant
enquired about her application for leave. He informed her that
only
one week had been approved because she had to be back to process the
salaries. Furthermore, he told her that the approval
of her leave was
subject to her completing all the work that she had to for him, the
managing director and chief executive officer.
[6]
She confirmed that she had completed the manuals and other work. The
complaint told him that her birthday fell on the 24
th
of that month and enquired if she could take the day off. He told her
that if she had made plans for that day she had to change
her leave
application. Before he left he went to check on everyone in the open
office. On his way out complainant informed him
that she too was
leaving and he told her to ensure that she had completed the details
of the disciplinary hearing which was scheduled
tor the following
Tuesday. Before leaving the premises he called her on the office
phone and requested her to leave the documents
on her desk. These
related to a disciplinary hearing for another employee. He had a key
to her office and would collect the documents.
[7]
The complainant did not return to work on the 19
th
but sent a sick note which was received by the appellant. The
complainant had been booked off till the 24
th
. She had not completed the payroll. He requested her to report for
duty on the 21
th
to
complete it. They worked together in her office and everything was
normal. They discussed her health. She was under stress due
to work
and financial problems and had confided in him. He was aware that she
had been on medication. Prior to the 10
th
he had on many an occasion witnessed episodes of crying and shaking.
She had on one occasion accused him of wanting to dismiss
her. He had
allayed her fears. Despite the presence of a sexual harassment policy
and procedures at the workplace, the incident
was not reported to her
employer. She lay a charge against him after the 3 March 2007.
[8]
Ms M. d. J. ('M.') was called as a defence witness and she was also a
friend of the complainant. She testified that she received
a call
from the complainant and on her arrival at complainant's office she
found her alone and crying. This contradicted the testimony
of the
complainant that she was found in the company of one J. Complainant
reported firstly, that the appellant had asked her to
close down the
unit when M. responded that it was nothing to cry about only then did
complainant report that appellant had touched
her breast. Madeline
had to call one A. to assist in calming down the complainant because
she was in an uncontrollable state. M.
testified further, that this
had not been the first time she had burst out in tears. She had
witnessed one at the workplace when
complainant had domestic problems
and another at her home on a New Year's day. M. testified that the
complainant had requested
for a two weeks leave, because she was
expecting a friend from Iraq and, that they had planned to spend some
time on the farm.
She knew that complainant had been very upset when
her leave was not approved.
[9]
The grounds of appeal are incorporated in the following submissions
for the Appellant:
1.
The complainant lay false charges because her leave for two weeks had
not been approved;
2.
The medical certificate of the 19
th
had no value in that it stated
only what the complainant told the doctor;
3.
Despite the complainant's denial the charges were promoted by the
complainant's stressful condition and, her condition had been
confirmed by M.;
4.
It was unlikely that appellant would touch complainant's breast in
the proximity of her co-employees who occupied the adjoining
open
office;
5.
Though the cautionary rule was no longer part our law, in cases
involving sexual assault it was necessary to urge caution, where
complainant had lied or shown to have made previous false complaints
or bore some grudge;
6.
Complainant was an unreliable witness she nad lied about the status
of her employment after the incident;
For
the respondent.
7.
The complainant s emotional state prior to the incident the fact that
her leave had not been approved or that the sexual harassment
guidelines at the workplace had not been followed, were not relevant
to the determination of the appellant's guilt;
8.
The court was entitled to make adverse inferences where the appellant
failed to put his version to the state witnesses or where
h;s version
differed from the version put to the state witness or where he gave
evidence 'which was not put for commentary to the
state witness;
9.
The complainant's version was corroborated by the defence witness;
10.
Aggravating circumstances were present and a court of appeal was
limited in interfering with the discretion of the court on
sentence;
11.
The court is expected to protect the integrity of a woman's body
[10]
Although the cautionary rule in as far as it related to complainants
in sexual assaults was no longer part of our law, a cautionary
approach was in certain circumstances recommended S v M
2000 (10)
SACR 484
at 500 H-J and at 501 A-E At 501 F Shakenovsy AJ states:
I
do not, as has been enjoined in the Jackson case, supra apply any
general cautionary rule to the complainant merely because this
is a
rape case.
I look at the evidence as
a whole and the reliability of what has been placed before me"
(my underlining)
[11]
According to the complainant the appellant walked into her office
while she was conversing with another employee to check on
who had
not reported for duty that day. She did not stop the conversation or
drop the receiver when the appellant touched her and
offered to take
her out that night. She could not recall whom she had spoken to over
the phone. She had a good working relationship
with the appellant and
he had never before made any advances on her. There is no explanation
why the appellant, who had not displayed
such behaviour before, would
have been so bold as to touch her in that way irrespective of the
possibility that she may have reacted
in such a way as to expose him
to the person on the other end of the line.
[12]
She made no reference in her evidence in chief about her conversation
with the appellant regarding the approval of her leave
that morning.
She conceded in cross examination that they discussed her leave
application. Appellant stated that the conversation
took place in her
office wnen he gave instructions to lock up the unit. The complainant
seemed to be uncertain about when this
conversation took place. At
cage 16 of the record lines 9-20:
‘
Met
ander woorde u oorspronklike aansoek net beftrende twee weke was
afgekeer en 'n week was aan u toegelaat, is dit korrek? Die
beskuldigde se dit is wel, dit is wat die gesprek oor gegaan het in
jou kantoor op die 10de voor jy geloop het-Nie voor die incicent,
dit
was die tweede keer.
Was
dit nie voor die incident me? - Dit was voor die incident ja, vroeer
die oggend
Het
julle enige ander gesprek gevorm teen opsigte van hierdie aansoek van
jou was betreffende jou verlof- Die rede hoekom ek twee
weke wou
gehad het was want die voigende week sal my verjaardag wees en ek wou
graag daardie twee weke gehad het. Hy net dit afgekeur,
toe het ek
weer gevra 'kan ek die 22ste nog steeds af he, hy se ons sal later
oaaroor praat.
Taking
the versions of the complainant and appellant into consideration, it
seems to me, that this was the only time when complainant
and
appellant had a conversation in her office that morning it is also
the time when she was made aware that her application for
two weeks
leave had not been approved. She testified that she tried for the
22
th
in
consideration of her birthday appellant said he they would discuss it
later. Appellant on the other hand testified that she requested
leave
for the day of her birthday the 24
th
he responded by telling her to change her leave application if she
had already made arrangements for that day. It was difficult
to
conceive that these discussions were followed by the indecent
assault.
[13]
It is common cause, as the magistrate found that the complainant was
corroborated by her friend M. What the magistrate failed
to consider
were the contradictions on how the report was made and M's surprise
and disbelief at such conduct being levelled against
the appellant.
According to the complainant one Jean entered her office to took for
something and M. followed shortly thereafter
and she made the report
about the indecent assault to both of them. In cross examination she
conceded that she called M. to her
office but she said it was earlier
on to sort out a personal issue between them but she could not recall
what it was about M. on
the other hand testified that she was called
by the complainant over the phone and, when she entered complainant s
office she could
see that complainant was crying and was visibly
upset. When questioned complainant reported first that she had been
Instructed
to lock up the unit when M. raised her eyebrows
complainant mentioned the indecent assault. M. had to call one A. to
assist in
calming her down J. was not present. It does not appear
from the record that complainant reported to M. and Archie that the
incident
had been preceded by a discussion with the appellant on her
leave application. However, in cross examination M. informed the
court
that complainant had been very upset because the two week leave
had not been approved. I can only conclude that such knowledge came
by because as friends they had discussed the matter.
[14]
The fact that complainant failed to follow internal procedures at the
workplace in my view, could raise suspicion about the
indecent
assault charges I am not saying that she should not have instituted
criminal proceedings, however, she was not just an
ordinary, ignorant
employee at the workplace, she was the human resources officer for a
number of years, who had assisted the employer
in the administration
of the disciplinary processes at the workplace. She should therefore
not have been confused about the process
she needed to follow against
the appellant.
[15]
It was submitted for the respondent that the appellant could not
discredit the complainant on versions not put to her in cross
examination, S v Van As 1991(2) SACR 74 108 B-G. Indeed, such
instances were present, but were not material to the determination
of
the matter and not a reason to disbelieve the appellant's version.
Having
regard to the evidence as a whole, and for the reasons above, I am of
the view that the magistrate misdirected himself in
finding that the
version of the appellant was to be disbelieved and that the state had
proved its case beyond a reasonable a doubt.
[16]
In the premises, I give the following order:
1.
The appeal is upheld with costs
TLHAPI,V
V
(ACTING
JUDGE OF THE HIGH COURT)
I,
agree
MOLOPA,
L M
(JUDGE
OF THE HIGH COURT)
FOR
THE APPELLANT : F VALLY ATTORNEYS, PRETORIA
COUNSEL
FOR APPELLANT : F J LABUSCHAGNE
FOR
THE RESPONDENT : THE DIRECTOR OF PUBLIC
PROSECUTIONS
PRETORIA
COUNSEL
FOR RESPONDENT: D P HUGO