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2008
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[2008] ZAFSHC 33
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Languza v S [2008] ZAFSHC 33 (2 June 2008)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Appeal
No. : A455/07
In
the appeal between:-
MBISELA
ALEXANDER LANGUZA
Appellant
and
THE
STATE
Respondent
_____________________________________________________
CORAM:
MUSI,
JP
et
EBRAHIM,
J
_____________________________________________________
HEARD
ON:
2
JUNE 2008
_____________________________________________________
DELIVERED
ON:
5
JUNE 2008
____________________________________________________
_
JUDGMENT
_____________________________________________________
MUSI,
JP
[1] This is an appeal
against the judgment of the Magistrateâs Court, Bloemfontein
wherein the appellant was convicted of rape and
sentenced to 6 (six)
years imprisonment. The appeal is against the conviction only. It
is worth noting that the State did not at
the trial press for a
conviction and in this Court Mr. Bontes, who appeared for the State,
made it clear that he does not support
the conviction. In effect,
Mr. Bontes stood by the heads of argument drawn on behalf of the
State by his colleague, Mr. Pienaar.
[2] The factual
background to the matter is briefly that the complainant had been at
a tavern in the night in the company of friends.
At some stage she
left the friends and went to the toilet. Her version is that once
inside the toilet she was confronted by two
men who throttled her.
They undressed her and one of them raped her whilst the other kept
guard at the door. In the course of the
rape her jersey was also
removed and used to cover her face. Whilst she was being raped one
of her friends, Matsediso, came in and
she pleaded with Matsediso to
help, but Matsediso simply walked out. Another friend, Refiloe,
later came at the stage where the
rapist had finished, but she was
clapped by the man at the door and prevented from entering the
toilet. After her rapist had left,
the complainant discovered that
her panty and jeans were not there and she had to come out of the
toilet semi-naked. Someone borrowed
her an overall top in order to
cover her lower body. She was hysterical and crying. She told her
friends that she had been raped
and they accompanied her to the
police station where she reported the incident that same night. She
was subsequently examined by
a doctor who compiled the J88 report
which was subsequently handed in as an exhibit.
[3] The complainant
testified that the person who raped her is the appellant. The
appellant, on the other hand, admitted having had
sexual intercourse
with the complainant in the toilet but said that it was by consent.
He testified that he had met the complainant
that night and had
danced and drank liquor with her. During the dance he had proposed
to the complainant that they have sex. He
had wanted them to go to
his place for the purpose but the complainant suggested that they go
to the toilet instead. They then met
at the toilet and had sexual
intercourse. As they were busy someone who is employed in the tavern
came into the toilet to fix a
leakage in the system. He, the
appellant, then decided to leave the toilet believing that the
complainant would follow. He gave
lousy reasons why he did not wait
for the complainant to come out of the toilet. He said that he was
later confronted by the same
person who had surprised them in the
toilet who queried why they had sex in a public toilet. He decided
to leave the tavern at that
point in order to avoid possible
recriminations.
[4] Matsediso and Refiloe
testified on behalf of the State. They both corroborated the
complainant as to what happened after the
incident. In particular
they confirmed that the complainant came out of the toilet half
naked, that she was crying and that someone
borrowed her an overall
top in order to cover her lower body. They also confirmed that they
accompanied the complainant to the police
station that same night and
that the complainant told them that she had been raped. However, on
the other issues, these two witnesses
contradicted each other as well
as contradicting the complainant. It is not necessary to get into
the details of the contradictions.
They are fully set out in the
heads of argument filed by Ms Kruger, for the appellant, and there is
no dispute about them.
[5] Now, the magistrate
correctly identified the issue that was really in dispute in this
case. That is, whether the admitted sexual
intercourse between the
appellant and the complainant was with consent. In this regard, the
magistrate correctly noted that the
complainant was a single witness.
The magistrate, nonetheless, accepted the version of the
complainant, noting that whereas there
were contradictions in the
State case, these were not material to the central issue of whether
the complainant had consented to the
sexual intercourse. The
magistrate found that the appellantâs version was not reasonably
possibly true and rejected it as false.
[6] What
weighed heavily with the magistrate was the conduct of the
complainant after the incident in the toilet. The magistrate
remarked that her conduct was consistent with that of a rape victim.
The magistrate also found corroboration for the complainant
in the
testimony of the doctor who examined her the day following the
incident. Dr. Chantel Liebenberg testified that the injuries
on the
complainant were consistent with forced entry.
[7] It appears to me that
the magistrate did not pay sufficient, if any, attention to the role
of alcohol in this case. It is not
disputed that the complainant and
her friends had been drinking alcohol that night. In fact, Matsediso
said that she had been drunk
although she could still see what was
happening. The complainant herself admitted to having taken alcohol
although she would not
say she was drunk. However, it emerges from
the report of Dr. Chantel Liebenberg that the complainant was still
affected by the
intake of alcohol even when she was examined the
following day. The many contradictions in the evidence of the State
witnesses can
best be explained with reference to the possible
influence of liquor.
[8] The possible
influence of liquor on the complainant would explain the confusion in
her evidence as to what happened inside the
toilet. She initially
said that the two men throttled her and then put her head in the
bucket of the toilet and she would have been
sitting on her knees
whilst she was being raped. Later she changed and said that she was
lying on her back as she was being raped.
Matsediso said that when
she got into the toilet the two were standing against the wall whilst
having sexual intercourse, with the
manâs back towards the door;
hence she could not see his face. The complainant was also confused
about what had happened to her
jersey and her statement to the police
must be seen against the same background. There are material
contradictions between it and
her evidence in court. For instance,
in the police statement she says that she was raped by two men. She
denied telling the police
this but it emerges from the doctorâs
report that the same was told to the doctor.
[9] In the premises, the
possibility that she may have agreed to meet the appellant in the
toilet cannot be excluded. It is significant
that she did not ask
any of her friends to accompany her to the toilet, which Matsediso
suggested she should have done given that
the toilet concerned is
shared with men. Matsediso made it known that the complainant was a
secretive person, which means that it
would not have been out of
character for her to keep to herself whatever arrangements she may
have made with the appellant. Refiloe
testified that she saw two
boys running from the toilet and out of the tavern gate, presumably
carrying the complainantâs clothing.
She did not, however,
identify the appellant as one of them. This leaves open the
possibility that whilst the appellant and the
complainant were having
sex in the toilet some naughty boys, seeing what was happening,
grabbed the complainantâs clothes and ran
away with them purely in
order to cause embarrassment. The embarrassment and humiliation of
being seen semi-naked in a tavern could
partly explain the
complainantâs emotional condition.
[10] The point, however,
is that the onus rested on the State to prove its case beyond a
reasonable doubt, including lack of consent.
There was no onus on
the appellant to prove consent. In a case like this where confusion
reigned as to what actually happened,
it can hardly be said that the
guilt of the appellant had been proved beyond reasonable doubt. The
appellant was entitled to the
benefit of the doubt.
[11] In
the premises, the appeal succeeds and the conviction and sentence are
set aside.
____________
H.M.
MUSI, JP
I concur.
_____________
S.
EBRAHIM, J
On
behalf of appellant: Ms S. Kruger
Instructed by:
Legal Aid Board
BLOEMFONTEIN
On
behalf of respondent: Adv. D.W. Bontes
With:
Adv. F.J. Pienaar
Instructed by:
Director
Public Prosecutions
BLOEMFONTEIN
/sp