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[2008] ZAFSHC 57
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S v Masiso (5/2006) [2008] ZAFSHC 57 (10 July 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case
No. :
5/2006
In
the matter between:-
THE
STATE
versus
SOLLY
LUMKILE MASISO
______________________________________________________________
HEARD
ON:
7
MAY 2007
_____________________________________________________
JUDGMENT
BY:
RAMPAI,
J
_____________________________________________________
DELIVERED
ON:
10
JULY 2008
_____________________________________________________
[1] The
accused was tried in the Bloemfontein Regional Court. His trial
started on 10 May 2004. He was convicted on 26 September
2005 on a
charge of rape. He was then committed for sentence by the
high
court seeing that the victim was a girl below the age of 16 years at
the time of the incident.
[2] The
charge against the accused was that he assaulted and raped Selekane
Alina Letoane, a 15 year old girl in Bloemfontein on
Sunday 14
December 2003. Notwithstanding his plea of not guilty, he was found
guilty.
[3] The
matter has a long history. It must be told. On 26 September 2005
Mr. J.H.J. Greyvenstein, the trial magistrate, committed
the accused
in terms of section 52(1)(b) Criminal Law Amendment Act No. 105/1997
for sentence by the high court.
[4] On
5 May 2006 the accused appeared in this court before Kruger J who had
certain reservations about the conviction. The one
query he raised
related to the issue of sexual penetration. The other query
concerned the medical evidence. Because of these
queries he
postponed the case in order to request the magistrate to provide
supplementary reasons in support of the conviction.
[5] On
19 June 2006 the magistrate signed a five page document containing
his supplementary reasons. The magistrate timeously responded
to the
request of Kruger J. The record indicated that the supplementary
reasons were filed on 23 June 2006, some five weeks and
three days
before the date of the postponement,
viz
4 August 2006.
[6] On
4 August 2006 the accused appeared in this court for the second time.
Regrettably he appeared before a different judge,
C.J. Musi J. I am
not certain of what transpired on that day, because a tape of those
proceedings was not transcribed –
not that it was necessary.
Therefore, whether C.J. Musi J was aware of the magistrate’s
supplementary reasons, already filed
or not, I cannot say. He also
postponed the case in order to send another request to the magistrate
for supplementary reasons,
but for a different reason from those
which had prompted Kruger J to postpone the case. The query of C.J.
Musi J was about the
warning or otherwise of the minor victim to
speak the truth. His query was therefore procedural and not
substantive.
[7] On
27 September 2006 the accused again appeared in this court. On this
third occasion, he appeared before Ebrahim J. A transcript
of those
proceedings is available. By then the magistrate had not yet
responded to the request by C.J. Musi J. This was common
cause. On
behalf of the State appeared Ms Claassens and on behalf of the
accused, Mr. Vorster. Mr. Vorster, instead of Ms Claassens,
addressed the court first. Although this was unusual, it does not
matter anymore. The crux of the defence was that the conviction
by
the regional court should not be confirmed by the high court on
account of certain procedural and substantive discrepancies.
The
procedural challenge concerned the alleged improper swearing in of
the victim. The substantive attack pertained to various
issues on
the merits. Counsel for the State did not support the conviction,
thereby aligning herself with the submissions made
by the defence.
[8] Having
heard the argument by the prosecution and the defence Ebrahim J
directed that the proceedings of 27 September 2006 be
transcribed and
that a copy thereof be forwarded to the trial magistrate for comment.
She then remanded the case to 13 December
2006. The accused was
remanded in custody.
[9] On
11 October 2006 the lawyers approached Ebrahim J, in chambers, in
connection with bail. By agreement between the parties
the accused
was then released on R500,00 bail. The accused was reminded and
warned to appear on 13 December 2006.
[1
0] On
13 December 2006 the accused again appeared in this court. On this
fourth occasion the case served before me. There was
still no
response from the trial magistrate as regards the request of C.J.
Musi J. Similarly there was still no response from
the trial
magistrate as regards the request of Ebrahim J. I then remanded the
case to 18 January 2007. Thursday 18 January 2007
fell during the
recess. I sacrificed one day of my holiday in order to finalise the
case and to prevent the further tossing of
the accused from pillar to
post.
[11] On
11 January 2007 Ms Bernice Claassens paid the trial magistrate a
visit in connection with the aforesaid second request (C.J.
Musi J)
and third request (Ebrahim J) for the supplementary reasons. The
purpose of her visit was to fast track the process.
[12] On
18 January 2007 the accused again appeared. This was his fifth
appearance in this court and his second before me. Still
there were
no reasons from the trial magistrate in respect of the aforesaid
requests by my colleagues. I decided to cling to the
case. I
postponed it to 7 May 2007 because I was due to leave for
Johannesburg for a three months stint in the Labour Court at
Braamfontein.
[13] On
4 May 2007 the trial magistrate signed another statement containing
his reasons in response to the two requests. These
further
supplementary reasons were apparently delivered to Ms B. Claassens of
the office of the Director of Public Prosecutions
on the same day.
[14] On
7 May 2007 the accused appeared in this court for the sixth time.
Once again he appeared before me as previously arranged.
It was
about three weeks after my return from the Labour Court via
Harrismith where I was deployed for the usual Circuit Court
duty. I
received a copy of the magistrate further supplement on Monday 7 May
2007, just before the commencement of the hearing.
The further
supplement consisted of six type-written pages. The original
supplement consisted of five type-written pages. Having
read both in
conjunction with the submissions made by the legal representative, I
came to the conclusion that the conviction could
not be upheld. Then
and there I set the conviction aside and set the accused free. The
reasons for that order are set out in
this judgment.
[15] I
made the aforegoing order just over a year since the accused first
appeared in this court before Kruger J on 5 May 2006.
The order of 7
May 2007 signalled his final appearance after sixth agonising and
inconclusive appearances. It must be borne in
mind that he was
facing a potential sentence of life imprisonment because the victim
was a minor girl child. Nothing could be
more agonising to a
convicted person. Such agony did not simply go away when he was
released on bail on 11 October 2006, approximately
thirteen months
after his conviction in the regional court and five months after his
first appearance in the high court.
[16] The
first request in terms of section 52(3)(b)
Criminal Law Amendment
Act, No. 105 of 1997
, for the magistrate supplementary reasons, was
made on 5 May 2006 by Kruger J. The magistrate’s supplementary
reasons in
terms of the section were furnished on 23 June 2006.
Obviously the magistrate had filed the first supplement in good time.
Had
the accused again appeared before the same judge, namely Kruger
J, the chances are that his case would probably have been finalised
on 4 August 2006. But it was not to be. Enough about the first
request for now.
[17] What
follows was a deplorable state of affairs. On 4 August 2006 the case
was allocated to a different judge. Quite often
this is occasioned
by some unavoidable distributive logistics relating to the caseload.
The second judge, C.J. Musi J, sent the
second request for the
magistrate’s supplementary reasons. The second request made no
reference to the first request or
the first supplement. The second
request was purported to be made in terms of the same section,
52(3)(b), the same section in
terms of which the first request was
made. There was no immediate response by the trial magistrate to the
second request.
[18] The
deplorable state of affairs continued and worsened on 27 September
2006. On that day the accused appeared before the third
judge.
Although there was still no second supplement, the first supplement
was already available and had been available for a
long time (since
23 June 2006). The matter was thoroughly argued on the strength of
the available material pertaining to the substantive
issues. The
issues raised in the first request and answered in the first
supplement were not adequately covered if they were at
all addressed.
The argument traversed a wide spectrum of substantive issues far
beyond the narrow confines of the first request.
After all this, the
case was still not disposed of. In my view, it should have. This
will become evident later.
[19] The
third judge, Ebrahim J, instead of giving a ruling, upholding or
setting aside the conviction, sent another request for
magistrate’s
supplementary reasons. The request was not specific. It took the
form of a transcript of the entire proceedings
of 27 September 2006.
Hers became the third request in a series. It too was, apparently,
purported to be made in terms of
section 52(3)(b)
as were the first
and the second requests. Again there was no immediate response from
the trial magistrate to the third request.
[20] Then
I became involved as the fourth judge and learned about the two
outstanding requests. I decided to wait for the response
of the
trial magistrate. On 10 January 2007 the meeting took place between
the trial magistrate and counsel for the State, as
I have already
said. The purpose of the meeting was to expedite the process.
[21] The
combined response of the trial magistrate in respect of the second
and the third requests was compiled and completed on
4 May 2007. It
was a year since the accused first appeared in this Court; nine
months since the second request and over six months
since the third
request. In his second supplement, the trial magistrate explained
the inordinate delay. Under the general remarks
he explains:
“1. Op
Donderdag 11 Januarie 2007 het ek vir die eerste keer bewus geword
van verdere versoeke deur die agbare regters toe
Adv Bernice
Claassens, van die DOV se kantore my in kamers kom sien het. ‘n
Volledige transkripsie van die verrigtinge van
die Hooggeregshof in
saaknommer 05/2006 soos op 27 September 2006 is toe aan my oorhandig.
Alhoewel ek meegedeel is dat die verrigtinge
die dag deur die agbare
regter Ebrahim hanteer is, blyk dit nerens uit die notule nie.
Uit die notule blyk dit dat daar
voorheen navrae was oor die behoorlike inswering al dan nie van ‘n
getuie. Die navraag
is nooit deur my ontvang nie.
3. Ek het reeds op
19 Junie 2006 my antwoorde op die aanvanklike navrae van regter
Krǖger, aan die Hooggeregshof versend en
was van mening dat dit
die aangeleentheid gefinaliseer het, vanuit my perspektief.
4. Op Vrydag 8
Desember 2006 het die waarnemende streekhof president, mnr AJ Pienaar
‘n faks aan my getoon met die datum
van ontvangs synde 7
Desember 2006. Daar was twee aangehegte briewe wat navrae van ene
Reinette van Zyl aan beide myself en me
Gela bevat het met betrekking
tot sake wat op 13 Desember 2006 sou voorkom. Ongelukkig was daar op
die dokument slegs ‘n
verwysing na S v G D Lekhele & 1. Ek
het geen idee gehad na watter saak verwys word nie. Later het dit
geblyk dat die Lekhele-saak,
‘n saak van me Gela was. Ten
spyte van verskeie oproepe die dag aan die Hooggeregshof se kantoor
kom ek nie me Van Zyl opspoor
nie. Ek het die posissie aan mnr
Pienaar verduidelik en dieselfde dag met verlof vertrek.
5. Later het dit geblyk dat die
betrokke saak deel van die navrae gevorm het. Ek het tot op hede nog
nie die tweede stel navrae
ontvang nie.
6. Op Donderdag 11
Januarie 2006, soos hierbo beskryf, was adv Claassens in my kantoor
en het sy verder beloof dat sy haar afskrif
van die aanvanklike
verrigtinge aan my beskikbaar sou stel ten einde te bepaal of ek van
die aspekte kan beatwoord wat uit die
verrigtinge van 27 September
2006 voortvloei. Die reëling wat sy met my getref het was dat
die DOV se bode die notule na
my kantoor sou bring.
7. Ek het die notule eers op Dinsdag
16 Januarie om 11:35 ontvang. Klaarblyklik het die bode dit
goedgedink om die notule by ‘n
ander kantoor aftelewer, waar
die persoon dit nie nodig gevind het om die dokument na my kantoor te
bring nie. Ongelukkig is die
administrasie van die kantoor deesdae
glad nie na wense nie.
8. Die saak moes weer uitgestel word.
Die keer tot 7 Mei 2007. Ek het geen probleem met die verskaffing
van redes nie en verkies
eerder om bykomende redes te verskaf as dat
‘n skuldige persoon onskuldig bevind word.”
[2
2] I
find the magistrate’s explanation quite satisfactory and
acceptable. Perusal of the record shows that all the three
requests
were addressed to Mr. A. J. Pienaar instead of Mr. J.H.J.
Greyvenstein. Perhaps this was a matter of protocol. However,
it
seems to me that the three secretaries of my colleagues namely: Ms
M. Pieterse (Kruger J); Ms. Secwalo (C J Musi J) and Ms.
R. van Zyl
(Ebrahim J) – were misled by the record of the proceedings in
the regional court which wrongly created the impression
that Mr. A.J.
Pienaar was the trial magistrate. See formal cover sheets in respect
of volume 1 and volume 2. Certainly this error
also contributed
towards the delay.
[2
3] Section
52(3)(b) Act No. 105 of 1997 reads as follows:
“The
High Court shall, after considering the record of the proceedings in
the regional court, sentence the accused as contemplated
in section
51 (1) or (2), as the case may be, and the judgment of the regional
court shall stand for this purpose and be sufficient
for the High
Court to pass such sentence: Provided that if the judge is of the
opinion that the proceedings are not in accordance
with justice or
that doubt exists whether the proceedings are in accordance with
justice, he or she shall, without sentencing the
accused, obtain from
the regional magistrate who presided at the trial a statement setting
forth his or her reasons for convicting
the accused.”
[2
4] The
purpose of the section is to enable a judge who, for one reason or
another, is doubtful about the correctness of the conviction
of the
accused he is called upon to sentence, first to invite the trial
magistrate to give supplementary reasons, if any, why the
conviction
should be upheld and not set aside. It seems to me that the section
envisages one request. It refers to a statement
of reasons by the
magistrate and not statements. However, it does not expressly
restrict or prohibit a second or further request.
Be that as it may
I am of the view that a second query should not readily be sent,
unless sending it out is absolutely imperative
to prevent an
injustice.
[26] Such
a scenario will occur, for instance, where the case cannot be
resolved on the basis of the magistrate’s supplementary
reasons
with regard to the first request. In a case where an appropriate,
fair and just ruling, as regards the conviction, can
be given one way
or the other on the strength of the evidence and the judgment as
amplified by the magistrate’s supplementary
reasons, a second
query must not be sent. This is one such case.
[27] It
is undesirable to have the regional court magistrate endlessly
bombarded with a series of requests. They too are just as
busy as we
are. To them time is just as important as it is to us. I hasten to
say that my conservative comments in connection
with the construction
of the section are
obiter
dicta
because it was never an issue in the instant case. I am prompted to
comment about it because the further requests made in terms
of the
section, particularly the third request, elicited a great deal of
unhappiness from the trial magistrate. I have sympathy
with some of
the remarks he made. However, certain remarks he made concerning
Ebrahim J and the two lawyers, Ms Claassens and
Mr. Vorster, were
unfortunate. He became too personal and too sensitive. The
procedure created by section 52(3)(b) should not
be used the way it
was used in this case.
[2
8] In
the first place I turn now to the second query – that is the
query relating to the swearing in of the victim. The trial
magistrate conceded that,
ex
facie
the transcribed record, it would appear that the victim was not
properly sworn in. But he correctly pointed out that certain
mechanical break-ups occurred as a result of which the swearing of
the complainant was not recorded. He was of the opinion that
the
correct procedure for the swearing in of the complainant was followed
as it was indeed followed throughout the trial in respect
of all the
other witnesses. He recalled a case where the stenographer
inadvertently neglected to activate the computer immediately.
I
believe that, as judges, we must take a practical view of such
matters, especially where, as in this case, the matter was not
seriously and earnestly put in issue by the defence. All sorts of
things can happen down there which later may tend to give a
distorted
reflection of what was in truth an accurate picture of what
transpired. In the circumstances I am inclined to accept
the
reasonable explanation given by the trial magistrate. Therefore, I
find that there was no procedural irregularity. The victim
was
properly admonished to speak the truth.
[2
9] In
the second place, I proceed to examine the merits. The version of
the prosecution was narrated by the following witnesses:
Selekane
Alina Letoane, the victim, born 7 October 1988; Adri Krieger, the
examining doctor; Sello Lucas Jantjie, the ex-schoolmate
of the
accused; Sarah Mutsinyane Moheketsane, the victim’s neighbour;
Yvonne Moreki aka Nkele, the victim’s friend.
I do not deem it
necessary to do a critical analysis and evaluation of the various
testimonies of all the witnesses.
[
30]
In
the first query, reservations were expressed as to whether the
evidence established, beyond reasonable doubt, the sexual penetration
of the victim per vagina by the accused. In her evidence in chief
the victim testified:
“Wat
gebeur toe? – Hy het my broek en my damesbroekie uitgetref en
hy het dit op die lig gegooi. Hy het my bobene oopgeruk
en sy
privaat gedeelte in my privaat gedeelte ingedruk.
Voor hierdie dag het jy al met iemand
anders ooit gemeenskap gehad? – Nee.
Toe hy nou sy
privaatdeel in sy (sic) privaatdeel indruk kon jy voel of het hy vir
jou vaginaal gepenetreer of anaal gepenetreer?
– Ek het dit
gevoel hy het in my vagina gepenetreer.
Het jy seergekry? – Ja, ek het
seer gevoel, ek het pyne gevoel.
Is dit moontlik dat jy ‘n fout
kan maak dat hy nie by jou vagina sy privaatdeel ingedruk het nie
maar wel by jou anus sy
privaatdeel ingedruk het, is dit moontlik? –
Nee, hy het dit nie in my anus gepenetreer nie maar in my vagina.”
[
31]
The
examining general practitioner, Dr. Adri Krieger, was asked by the
prosecution to say whether, according to her physical examination,
the victim was penetrated through the anus of the vagina. Her
resounding answer was that it was highly possible that the victim
was
anally and not vaginally penetrated. During her cross-examination by
the defence, the doctor again re-affirmed her opinion.
But the
accused denied that he penetrated the victim either vaginally or
anally in Bloemfontein on 14 December 2003.
[3
2] The
victim’s version was that the accused had vaginally penetrated
her. The doctor doubted her version. The doctor, however,
conceded
very late in her testimony in response to the defence attorney’s
question following the clarity questions asked
by the magistrate that
it was possible the victim was vaginally and anally penetrated.
However possible, the scenario of the vaginal
penetration was, it was
still an unlikely scenario in this case, according to the doctor.
Therefore, the doctor’s belated
concession in no way nullified
her earlier firm answer that it was highly possible, not just
possible, that the victim was anally
penetrated. The presence of
physical injuries in the victim’s anus coupled with the absence
of physical injuries in the
victim’s vagina are objective facts
which tend to give more credence to the doctor’s evidence than
the victim’s.
Moreover, the victim’s own testimony that,
she endured pains as a result of the penetration, strongly suggests
that such
pains, more probable than not, had their origin where the
physical injuries were localised, in other words, in the anus.
[3
3] The
trial magistrate implicitly accepted that the penetration was not
vaginal. He commented as follows:
“In
‘n proses van gemeenskap hou is dit so dat daar baie maklik op
verskillende plekke gepenetreer kan word deur ‘n
man sonder dat
die klaagster noodwendig en elke geval deeglk bewus is van waar die
penetrasie plaasvind. Interessant genoeg het
sy gesê dit was
pynlik gewees en as mens kyk na die beserings wat aangetoon is deur
die dokter in haar getuienis
blyk
dit duidelik dat die penetrasie per anum vir haar pynlik moet wees
.”
[3
4] It
is apposite to quote verbatim the following passage where the trial
magistrate correctly made the following finding as regards
the
tension between the version of the victim
vis-a-vis
that of the doctor.
“Ook
die onderskeid wat sy vir ons hier getref het tussen anale en
vaginale penetrasie is duidelik uitgelig. Ek is van mening
dat mens
haar weergawe as ‘n deskundige sonder meer kan aanvaar.”
[3
5]
The
version of the doctor was preferred to that of the victim. The
victim’s version was therefore implicitly not accepted,
not
because she was untruthful, but because she could have been mistaken.
There being no vaginal penetration, there could have
been no rape
committed. Accordingly the accused was entitled to have been
acquitted. At the time of the incident on 14 December
2003 forced
anal penetration of a female by a male was not criminalised as rape
as it is today. On the facts, at worse for the
accused, he could
have been convicted of attempted rape or indecent assault. I may add
that the conviction was attacked by the
defence. Above this, the
conviction was also not supported by the prosecution.
[36] However,
I did not set the conviction aside merely because counsels were
agreed it could not be upheld. I decided the case
according to
established principles of our law. I was convinced that, on the
facts and the law, the verdict should have been different.
I deem it
unnecessary to deal with the various other points raised and argued
before Ebrahim J and later before me. I decided
to confine myself to
the critical aspects, as were raised in the first request of Kruger J
and answered in the first supplement
by the trial magistrate. The
issue of penetration was so decisive that it rendered the two
subsequent queries absolutely unwarranted.
[3
7] It
is so that the accused had boasted to the prosecution witness, S.L.
Jantjie, about his sexual escape with the victim. Of
course, the
early admission outside court, prior to his arrest, had to be
preferred to his late denial in court. It follows, therefore,
that
the version of the accused was correctly rejected by the trial
magistrate as a false account of what really in the particular
bedroom. But it does not necessarily follow from this that, because
the accused admitted the sexual act and boasted about it,
he had, in
truth and in reality, vaginally penetrated the victim.
[38] If
it is accepted, and I believe it should, that the victim was mistaken
as to precisely where she was penetrated, it must
equally and
logically also be accepted that the accused was also mistaken about
the point of penetration. He believed, as did
the victim, that he
vaginally penetrated the victim whereas in fact it was not so.
According to Dr. Krieger, such a mistake is
not uncommon because the
two bodily female apertures are dangerously close to each other. The
partition is approximately just
2 cm wide. His outside court
admission certainly made him a liar but not a rapist. Since there
was doubt as regards a fundamental
element of the crime, the accused
was entitled to the benefit of such doubt.
[39] On page 5 of the
magistrate’s first supplement dated 19 June 2006, he drew an
inference. He concluded:
“Die
anale penetrasie word bewys mbv dr Krieger se getuienis en op grond
van omstandigheidsgetuienis. Die enigste redelike
afleiding is
immers dat beskuldigde die klaagster sowel vaginaal as anaal
gepenetreer het. Die feit dat die klaagster nie die
onderskeid kon
tref nie is myns insiens verstaanbaar, veral as die dokter se
getuienis deeglik verreken word. Ek is van mening
dat Dr Krieger met
betrekking tot die ondersoek van verkragtingslagoffers een van die
mees ervare dokters in die land is. Haar
weergawe word ook nie in
geskil geplaas nie.”
[40] The
evidence established beyond reasonable doubt that the accused
molested the victim and that his criminal conduct was blemished
with
sexual connotation
s.
However, I am in respectful disagreement with the learned trial
magistrate inferential reasoning. The inference drawn does
not
exclude every other reasonable inference.
S
v BLOM
1939 AD 188.
On the facts, that the accused could as well anally
have penetrated the victim is another reasonable inference which
cannot be
ignored and excluded. I can find no compelling reasons to
justify its exclusion. Seeing that this other inference cannot
justifiably
be eliminated as speculative conjecture, it is
impermissible to attempt to resolve the legal problem at hand by
resorting to the
judicial tool of inferential reasoning. We have
here two competing inferences. Therefore, the inference drawn was
not legitimate
to be drawn.
[
41] In
the circumstances I have come to the conclusion that the verdict that
the accused was guilty of raping the aforesaid minor
child in
Bloemfontein on 14 December 2003 was not in accordance with justice.
I would therefore set it aside.
[
42] Accordingly
I make the following order:
42.1 The
conviction is set aside.
42.2 The
verdict of guilty is substituted with one of not guilty.
______________
M.H. RAMPAI, J
On
behalf of the
accused: Attorney
J. Vorster
Instructed
by:
Legal
Aid Board
BLOEMFONTEIN
On
behalf
of
the respondent: Adv. B. Claassens
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
/sp
2008/07/10
09:37 AM
2008/07/10
01:37 PM
2008/07/10
02:19 PM