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[2008] ZAWCHC 134
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Ismail v S (A35/2007) [2008] ZAWCHC 134 (1 February 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO:
A35/2007
DATE: 1
FEBRUARY 2008
In
the matter between:
SHAHEEM
ISMAIL
Appellant
and
THE
STATE
Respondent
JUDGMENT
LOUW,
J
:
[1]
The appellant, who was represented throughout by an attorney,
appeared in the Regional Court, Wynberg, on one count of indecently
assaulting an 18 year old by the name of Aneesha Hendricks on 9 July
2001.
[2]
At the commencement of the trial on 18 February 2003, some 18 months
after the event, the appellant pleaded not guilty and
elected to
make no statement in explanation of his plea. After the trial, which
lasted a considerable time and was postponed
on a number of
occasions the appellant was found guilty as charged on
27
January 2005. On 6 April 2006 he was sentenced to a fine of R5 000
or 12 months' imprisonment, as well as a further 18 months
of
correctional supervision in terms of the provisions of section
276{1)(h) of Act 51 of 1977. The appellant appeals with the
leave of
the Court a
quo
against
his conviction only.
[3]
The appellant is married to the complainants sister and at the time
of the alfeged incident the appellant Jived in a separate
cottage on
the same premises in Athlone where the complainant lived with her
older brother and her mother in the main house.
The complainant's
parents were divorced some two years earlier and her father lived
elsewhere.
[4]
The complainant testified that she and the domestic worker employed
by the family, Ms Lea Cornyn, were at home on the day
in question.
Her mother was away on holiday in Malaysia and her brother was at
work. The appellant, who conducted a security
business from his
home, was in the cottage. His wife was at work and also not at home.
According to the complainant and Ms Cornyn
at approximately 10am
that morning the appellant phoned through to the main house to ask
Ms Cornyn, to iron his pants. He also
asked that the complainant
bring him some coffee and toast for breakfast. The complainant
proceeded to prepare the breakfast
and she then took the breakfast
to the appellant in the cottage.
[5]
There is a dispute in regard as to whether or not the appellant
asked that the complainant bring the breakfast. According
to his
evidence he asked Ms Cornyn to bring the breakfast but that the
complainant then, of her own accord, took it upon herself
to bring
the breakfast to him.
[6]
The complainant's evidence is that when she entered the bedroom
dressed in tracksuit pants and top, the appellant was lying
on the
bed dressed only in shorts. She says that she put the breakfast down
next to the bed and when she wanted to leave the
appellant grabbed
hold of her and pulled her onto the bed. She shouted, objected and
tried to break free but the appellant held
her down and started
kissing her neck and breast. He put his one hand down the front of
her tracksuit pants and put a finger
into her vagina, moving it
about. She continued to struggle and shout and the appellant
eventually let her go. She immediately
returned to the main house
and upon being asked by Ms Cornyn what was wrong, she told her what
had happened to her in the appellant's
room.
[7]
Ms Cornyn, who also testified, confirmed this evidence. According to
her, she saw that the complainant was terrified, that
her hair was
in a state of disarray, that she was confused, cried and held on to
Ms Cornyn. Ms Cornyn described her state as
being "vreesbevange".
Ms Cornyn then told her to calm down and took her to the bathroom to
have a shower. When the
complainant undressed and took of her
panties to take the shower, Ms Cornyn saw that there was blood on
this piece of clothing.
Ms Cornyn says that she then proceeded to
wash the panties and after the shower she gave the complainant some
sugar water and
told her to lie down.
[8]
Apart from telling Ms Cornyn what had happened, the complainant
initially told no one else. When her brother came home from
work in
the late afternoon she told him what had happened. His reaction,
according to her, was that she should go to the police.
Her sister
also came home from work and the complainant also told her what had
happened. Her sister said that she shoutd not
tell anyone because
she (the sister) was going to leave (separate from) the appellant.
In the result the complainant did not
initially lay a complaint with
the police. It is true that in evidence she said that she did lay a
complaint with the police
that very day, later she said the next
day, but it is clear that she only laid the complaint some four days
later on 13 July
2001 when she made a statement at the Athlone
police station.
[9]
The matter was referred from Athlone to the Philippi police station
where Sergeant Sonday took over as investigating officer.
He
arranged for the complainant to be seen by the district surgeon, Dr
Traut
r
the next Monday on 15 July 2001. The complainant was cross-examined
about this delay in laying a complaint with the police. She
explained the delay by stating that her sister first said that she
would leave the appellant and later when she did not do so,
requested that she should not lay a complaint because it would
embarrass her.
[10]
The complainant was seen by Dr Traut, as I have said, on 16 July
2001. Dr Traut found two healed tears of her hymen. He concluded
that a btunt instrument, such as for instance a human finger, must
have passed through the hymen to cause the injuries. These
tears
would take some six to 12 days to heal and consequently the injuries
which he saw could have been inflicted at any time
before that
period. The doctor could not say whether the tears were caused with
or without the consent of the complainant.
[11]
On the evening of the incident there was a meeting at the family
home in Athlone at which members of both families were present.
Ms
Cornyn was also present. She says that when confronted with what the
complainant had said, the appellant said that nothing
had happened
save that he had played with the complainant and that his hand had
slipped This version of the conversation was
denied by the
appellant. However, it is common cause that there was such a meeting
and that it was a heated and acrimonious affair
at which the
appellant's parents were also present at one stage. What this
meeting clearly demonstrates, in my view, is that
the complainant
did make a complaint to the family against the appellant that day as
she and Ms Cornyn testified.
[12]
The complainant testified that the appellant had previously made
verbal sexual advances to her which she considered to be
inappropriate. He said, according to her, that he wanted to have sex
with her. However, she explains taking his breakfast to
him that
morning by the fact that she had thought that he had stopped doing
this and she consequently had no problems with taking
the breakfast
to his room.
[13]
The appellant gave a different version of the events. He said that
he and the complainant were like a brother and sister.
He used to
live in the main house in close proximity to the complainant and
they got on very well with one another. There was
no problem between
the two of them. Once he got married to the complainant's sister
about six months before the incident things,
according to him,
changed. He detected animosity towards him from the complainant's
family He stated that he refused to allow
the complainant's brother
the use of his motor vehicles which he said further contributed to
tension between the appellant and
the complainant's brother.
[14]
The appellant also spent a long time in his evidence testifying to
what he considered to be the complainant's history of
emotional and
irrational behaviour He testified that he suspected that the
complainant abused drugs. This is in contrast to the
statement put
in cross-examination to the complainant that the cross-examiner's
instructions were that she used "hard drugs".
[15]
It is common cause that the complainant suffered an emotional
breakdown about two years before the incident when she must
have
been 16 years old at the time her parents got divorced. At the time
she made an attempt to commit suicide. However, the
evidence of both
the complainant and Ms Cornyn, who knew her well since she was a
young child as Ms Cornyn had been a domestic
worker in that house
for approximately 20 years, was that she had recovered emotionally
before the incident.
[16]
Regarding the events of the day in question, the appellant testified
that he asked Ms Cornyn to bring him some breakfast
to his quarters
but that it was the complainant who brought it to his room, dressed
in shorts and a top. According to the appellant,
the complainant
joined him in watching television in his room for some time, before
she went back to the main house. The appellant's
evidence was that
the visit was uneventful and that he soon afterwards went to the
main house to take a shower. There he saw
the complainant and Ms
Cornyn. They were talking to one another and there was no problem
whatsoever.
[17]
He thereafter left for work and returned at about 1pm, He found the
complainant in his quarters, blow-drying her hair. He
spoke to her
and there was no problem between the two of them. He then again left
for work and returned at about 5pm. Soon
afterwards his wife came
home and she went into the main house and came back after a while
and told him that he is alleged to
have "fingered" the
complainant. The appellant says that he did not take this allegation
seriously and in fact thought
that the complainant was making a
joke.
[18]
He then received a work-related call and went out to attend thereto.
When he came back to the house later that evening, he
was confronted
in the main house by the complainant's family about the complaint
made by the complainant. The husband of the
complainant's cousin
r
one
Hanslo, 'wanted to pull a firearm'' he testified. According to the
appellant it was "hectic, everyone was shouting".
His
response, so he testified, was that the complainant should be seen
by a doctor to determine whether there was any truth in
the
allegation made by her.
[19]
According to the appellant, he had a fall-out with the complainant's
brother the next Friday, 13 July 2001, and it was after
this
fall-out that the complainant went and laid a charge against him at
the police station in Athlone. The appellant therefore
ascribes the
laying of the charge against him to be the result of the animosity
ofthe complainant's brother towards him.
[20]
Mr
Booth
,
on behalf of the appellant, pointed out that the Court is dealing,
as one is often confronted with in these kind of cases, with
two
mutually destructive versions. He submitted that the magistrate
erred in accepting the evidence of the complainant, who was
a single
witness, as to what occurred between them. The magistrate was alive
to this and found corroboration for the complainant's
version in the
state in which she was when she first spoke to Ms Cornyn soon after
the incident
[21]
Mr
Booth
submitted that the magistrate did not properly consider the
complainant's emotional state of mind seen against the background
of
her history of emotional disturbance. He submitted that this could
account the fact that she would have laid a false charge,
and that
Ms Cornyn could have incorrectly interpreted the complainant's
emotional state and that what she observed was not in
fact
corroboration for the complainant's version that she had been
sexually assaulted by the appellant.
[22]
The problem, in my view, with this submission is that it is in
conflict with the appellant's version that there was nothing
for the
complainant to get upset about and that in fact she was not upset at
all when she left his presence that morning; nor
was she upset when,
on his version, which is denied by the complainant and Ms Cornyn, he
saw her and Ms Cornyn shortly after
she had left him when he went to
take a shower. He described what he saw then and according to him
the complainant and Ms Cornyn
were sitting there talking "like
carry on like normal, normal, normal morning". The complainant
was also not upset,
on this version which is disputed, later during
the day when he returned at lunch time
[23]
On his version, for some unknown reason the complainant and Ms
Cornyn therefore concocted a story about what happened that
morning.
This story included not only what had happened between the appellant
and the complainant, but also their version of
the emotional state
of the complainant and the blood on the complainant's underclothes.
Some time during the course of the afternoon
the complainant and Ms
Cornyn must, on the appellant's version, have decided to falsely
accuse the appellant of sexual assault.
That the complainant did so
when the family came home is common cause: it was reported to the
appellant's wife and a heated family
meeting ensued. What
precipitated this false complaint does not appear from the evidence
at all.
[24]
The alleged unhappiness caused by his marriage to the complainant's
sister and the withdrawal of the motor vehicle use had
existed, on
his version, for some time. The fact that the complaint was laid
with the police onEy on 13 July, as I pointed out
earlier four days
after the event, is fulfy explained by the complainant. Her sister
first said that she would leave the appellant
and later when she did
not, she asked her not to lay the charges. As we know the
complainant eventually did lay the charge. According
to Ms Cornyn,
the complainant finally went to the police because she was not
believed by the appellant's family and she wanted
to tell someone
who, as she put it, "would believe her".
[25]
The magistrate in his judgment states that he was impressed by the
complainant and Ms Cornyn as witnesses. There is nothing
in the
record to say that this impression is unjustified. In contrast, a
perusal of the appellants evidence shows him to be an
unsatisfactory
opportunistic witness.
[26]
The issue of whether the State has proved it case and how this
enquiry should be approached has been the subject of many
decisions
of our courts. In
S
v V
2000(1) SACR 453 (SCA) at 455a-c it is put as follows:
"It
is trite that there is no obligation upon an accused person where
the State bears the
onus
to
convince the Court. If his version is reasonably possibly true he
is entitled to his acquittal even though his explanation
is improbable. A court is not entitled to convict unless it is
satisfied, not only that the explanation is improbable,
but that beyond any reasonable doubt it is false. It is permissible
to look at the probabilities of the case to determine whether
the
accused's version is reasonably possibly true, but
whether one subjectively believes him is not the test".
As
pointed out in many judgments of this Court and other courts, the
test is whether there is a reasonable possibility
that
the accused's evidence may be true.
[27]
In my view, the magistrate's acceptance of Ms Cornyn's evidence
cannot be disturbed. Support for the credibility of the complainant
and her version is to be found in the fact that she complained to Ms
Cornyn about the appellant's conduct towards her immediately
after
leaving his presence. The complaint is not corroboration of her
version of what happened, but it is consistent with her
evidence
that she had been sexually assaulted. It is, therefore, a matter
which goes to credibility Corroboration for the complainant's
version of the events which are in dispute, namely as to what
happened in the appellant's room is to be found in the emotional
state the complainant was in when she was first seen immediately
after she returned from the appellants quarters by Ms Cornyn.
Further corroboration for her version is to be found in the blood on
her underclothes. These facts corroborate the complainant's
version
because it makes her version more probable and is incompatible with
the appellant's version. The doctor's evidence is
also compatible
with the complainant's evidence
[28]
According to the appellant there was no reason whatsoever for the
complainant to be in the emotional state in which Ms Cornyn
saw her
In fact, his version is that she was not in such a state at all. In
my view, this is highly improbable because at that
time of the
morning there would have been no reason, but for the sexual attack,
for the complainant to react in the emotional
way in which Ms Cornyn
testified to. On the appellant's version, the complainant and Ms
Cornyn must have decided some time during
the afternoon to concoct a
false story and then fabricate the whole incident, including the
complainant's emotional reaction
and the blood on her underclothes.
This, in my view, is improbable and far-fetched. It is clear from
the reading of the record
as a whole that the appellant was a poor
witness. His version is inconsistent with what was put In
cross-examination and suffers
from an internal conflict.
[29]
In his heads of argument Mr
Booth
further submitted that an inference adverse to the State should be
drawn from the fact that the complainant's brother and Hanslo
were
not called. First, reasons were given as to why these witnesses were
not available to give evidence and, secondly, on the
evidence it is
unlikely that they would have contradicted the complainant. They
were not present when the incident happened and
they were clearly
very upset with what the appellant was alleged to have done. There
can, in my view, be no inference that they,
if they were called,
they would have contradicted the evidence of the complainant and
that they were, for that reason not called.
[30]
In my view, the magistrate was quite correct having regard to all
the evidence, to reject the appellants version as not reasonably
possibly true The weight and quality of the evidence of the
complainant and Ms Cornyn was of such a nature that the
appellant's
innocent version can safely be rejected. The evidence
establishes beyond reasonable doubt that the complainant was
sexually
assaulted by the appellant in the manner described by her.
That conclusion is, in my view, inescapable.
[31]
In the result the appeal must, in my view, be dismissed and the
conviction and sentence must be confirmed
BRUSSER,
AJ
:
I agree.
BRUSSER,
AJ
LOUW,
J: It is so ordered.
LOUW,
J