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[2008] ZAWCHC 151
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Davids v S (A481/2007) [2008] ZAWCHC 151 (29 February 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO:
A481/2007
DATE: 29
FEBRUARY 2008
In
the matter between:
MOEGAMAT
CASSiEM DAVIDS
Appellant
and
THE
STATE
Respondent
JUDGMENT
JOUBERT,
AJ
:
[1]
The appellant was convicted in the Wynberg Regional Court on 14
December 2006 on one charge of rape and another of indecent
assault.
He was sentenced to seven years' imprisonment on the rape charge and
two years' imprisonment on the indecent assault charge.
It was
ordered that the sentences run concurrently.
[2]
The appellant initially faced two charges of indecent assault and
two charges of rape. He was acquitted on two of these charges
and
convicted on the two charges referred to above. The trial was a
lengthy one. It commenced on 26 April 2006 and ran for a
number of
days interspersed with adjournments and postponements. Both the
complainant and the appellant were subjected to lengthy
and
repetitive cross-examination much of which, in the case of the
appellant, was also argumentative. The State's case consisted
only
of the evidence of the complainant and her mother. The appellant
himself gave evidence as did his daughter and his sister-in-law.
No
medical evidence was led either by the State or the defence.
[3]
The appellant is the complainant's uncle. He is married to the
father's eldest sister. It was common cause during the hearing
that
prior to the very belated report made by the complainant, initially
to her sister and thereafter to the police, that there
had been a
very close relationship between the family of the complainant and
the family of the appellant.
[4]
The first count of indecent assault, that is to say the one of which
the appellant was convicted, related to events which
allegedly took
place during 1991 and/or 1992 when the complainant was nine or ten
years of age. It was alleged that the appellant
had rubbed his penis
against the complainant's body and that he had touched her chest or
breast area and rubbed his hands between
her legs "and/or
touching her vagina". The first count of rape on which the
appellant was acquitted was alleged to
have taken place during the
same period.
[6]
The second count of indecent assault on which the appellant was
acquitted is alleged to have taken place during the period
between
1993 to 1999. The allegations in this regard were to the effect that
he had indecently assaulted the complainant "by
rubbing his
penis against her body and/or touching her breasts and/or touching
her vagina and/or pressing a glue stick up her
vagina". The
second count of rape on which the appellant was convicted related to
an event which allegedly took place during
October 1999, that is to
say almost seven years before the trial. The appellant appeals
against both conviction and sentence.
[7]
The complainant's evidence in respect of the first count of indecent
assault was to the effect that the incidents took place
when she
visited the appellant's house with her parents, mostly over weekends
and usually on Saturdays when her mother and the
appellant's wife
would go shopping together. She claimed that these incidents took
place over a period of time. It was during
this period that the
first rape had allegedly occurred. Understandably the complainant
could not recall the date.
[8]
She gave evidence to the effect that she was playing with her cousin
who was about the same age when the appellant appeared
and told her
cousin that somebody was looking for him. After the cousin had left
she apparently found herself on the floor, the
appellant having
removed her underwear and with the appellant having intercourse with
her. She did not report these incidents
to anyone and explained her
failure to do so by pointing out that she was too afraid, did not
know what to do and did not even
know what was happening to her at
the time as she did not understand what was going on. She stated
that she was afraid of her
father because he was a very strict
person and she was afraid of his reaction and the effect it would
have on the family relationship
when she reported the incidents. She
also thought that nobody would believe her because the appellant was
an adult and she was
a child.
[9]
She claimed that the incidents stopped for a few years, although the
family still saw each other on a regular basis, and had
started
again when she was a teenager. She claimed that the appellant again
started touching her and rubbing up against her and
claimed that
sometimes she and her cousin, as well as her younger brother and
some friends would lie on a bed in her aunt's room
which is the room
in which the appellant also apparently slept, under blankets and
watched fifms ("movies and stuff").
She claims that whilst
this took pEace the appellant, on more than one occasion, attempted
to insert a glue stick into her vagina.
She stated that he kept a
gtue stick in a drawer next to his bed and that one day she went to
look for it and threw it away.
[10]
It appears that the magistrate was not that convinced by her
evidence in respect of this count as, as with the case with
the
first count of rape, he acquitted the appellant. The charge of rape
on which the appellant was convicted related to an incident
which
she stated took place in October 1999 when she was 16 or 17 years
old. She stated that she had attended a slumber or pyjama
party at
the appellant's home and that during the course of the evening
appellant had asked her to go to his son's room. She
was apparently
younger than the other girls who were also to be bridesmaids at a
wedding which was due to take place soon.
[11]
It appears that the appellant's son (the complainant's cousin
referred to above) was sleeping in the other bed in the room
and the
television was on whilst the appellant had intercourse with her. She
claimed that the appellant's wife walked in on them
and, having
caught the appellant in the act, kicked the appellant and swore at
him.
[12]
What causes concern about her evidence in regard to the date on
which this incident allegedly took place was her difficulty
in
deciding precisely on what date the incident took place. She had
regard to the wedding which was to take place shortly afterwards,
and it emerged later that that date, the date on which she thought
the wedding was to take place, was the wrong date. Now this
date
being the central pillar on which she seemed to found the date on
which she said she was raped was not a very sturdy pillar.
If she
was uncertain about that date one must have concerns about the
correctness about her recollection as to what actually
transpired.
[13]
It did emerge from the evidence later that the date on which the
wedding was to take place was 17 October, whereas she said
it was
the 22
nd
.
According to the complainant, the appellants wife saw the appellant
and pulled the complainant to the bathroom where she wiped
her
private parts off and told her to stop crying. It would appear that
the appellant's son, who was sleeping in the same room,
did not wake
up whilst there was all this commotion. The appellant's wife then
asked the complainant whether she should not tell
the complainant's
father about the matter. The complainant however did not wish her to
tell her father as she did not wish to
break up the family and she
was fearful about her father's reaction.
[14]
Towards the end of 2005 the complainant told her sister of the
incident when her sister advised her that something similar
had
happened to her. She then made a report to her mother and the matter
was eventually reported to the police. The complainant
claimed that
it was her fear that the same thing might happen to her sister and
others that led her to report the matter.
[15]
The complainant's mother was the next witness called by the State
and she confirmed that the complainant had reported to
her that she
had been raped by her uncle. The State then closed its case without
calling any further evidence.
[16]
The appellant gave evidence and denied the allegations against him.
He was cross-examined at great length and was repeatedly
asked by
the prosecutor what motive the complainant and her mother would have
to falsely implicate him. He also explained that
he suffered from an
erectile dysfunction as a result of which he had difficulty in
maintaining an erection for longer than a
minute. He denied all the
allegations relating to the four charges.
[17]
It had been put to the State witnesses that the slumber party during
which the second rape occurred, never took place. The
slumber party
allegedly took place shortly before the appellant's daughters
wedding. The complainant was one of the bridesmaids.
The appellant's
daughter testified that no such slumber party took place as all the
bridesmaids lived close by and it was unnecessary
for them to have
slept over.
[18]
The appellant's sister-in-law was also called and she stated that at
a meeting between the families after the incident had
been reported,
the complainant's mother had stated that the reason why the
complaint had been laid was because the complainant's
fiance had
discovered that she was not a virgin and she had explained
that she had lost her virginity because of the incident.
Apparently
the husband-to-be was not prepared to marry the complainant unless
she reported the matter. This version had also
been put to the State
witnesses, who denied rt. The witness in question who was the
complainant's aunt being the sister of her
late father, stated she
was present when the appellant asked the complainant why she was
accusing him. According to the aunt,
the complainant then started
crying.
[19]
Under cross-examination she stated that she did not believe the
complainant and when asked by the prosecutor why this was
so she
stated that she was aware of the fact that the complainant is "very
promiscuous". She also knew the appellant
very well and could
not believe that he would have done the things he was accused of.
[20]
The complainant created a favourable impression as a witness on the
trial magistrate. He further found no reason to reject
the evidence
of the complainant's mother. He formed a less favourable impression
of the appellant. The magistrate characterised
the evidence of the
appellant as being a bare denial. This is, however, not accurate.
It is difficult to conceive what else
the appellant could have said
in answer to the questions if in fact he did not commit the crimes.
He did point out that he suffered
from an erectile dysfunction. The
magistrate also formed the opinion that "the accused's evidence
seemed to be rehearsed".
[21]
From a reading of the record it is not apparent why the magistrate
made this observation. The magistrate also made much of
the fact
that the appellant sat in the dock looking down throughout the
complainant's evidence. When taxed with this in cross-examination
the appellant explained that he suffered from a cough and had meant
no disrespect to anybody by sitting in the way he had. There
could
be numerous reasons for the way in which the appellant comported
himseff during the trial. It must have been a very humiliating
experience for the appellant to have to listen to his niece make
these allegations against him. In my view
r
the appellant's failure to sit up straight in court could be
attributed to a number of other factors and is not necessarily an
indication of a guilty conscience or guilty knowledge.
[22]
The magistrate further found that the complainant's aunt "clearly
showed she is biased". The reasons given by the
magistrate for
this finding are not convincing. It also emerged from the
evidence that the complainant's family, including
the complainant,
were prepared not to report the matter to the police if the
appellant apologised for his actions. The fact that
he was not
prepared to do so led to their decision to report the matter to the
police. This is hardly consistent with the complainant's
version
that she decided to report the matter in order to protect her sister
and possibly others from the same fate.
[23]
In my view, the complainant's version of the rape on which the
appellant was convicted was highly improbable. If in fact
her cousin
was sleeping in the same room at the time when the appellant's wife
set upon him in the way in which the complainant
described, it is
inconceivable that he would not have woken up and witnessed the
appellant's wife kicking him and swearing at
him.
[24]
In
S
v Van Asweaen
2001(2) SACR 97 (SCA) at 101a-e the following passage from the
judgment of
Nugent,
J
(as he then was) in
S
v Van der Mevden
1991(1) SACR 447 (W) at 449h-450b was cited with approval:
"The
proper test is that an accused is bound to be convicted if the
evidence establishes his guilt beyond reasonable doubt
and the
logical corollary is that he must be acquitted if it is reasonably
possible that might be innocent.
The
process of reasoning which is appropriate to the application of that
test in any particular case will depend on the nature
of the
evidence which the Court has before it. What must be borne in mind,
however, is that the conclusion which is reached (whether
to convict
or to acquit) must account for all the evidence. Some of the
evidence might be found to be false, some of it might
be found to be
unreliable and some of it might be found to be only possibly false
or unreliable but none of it may simply be
ignored".
After
citing the passage,
Navsa,
JA
in
S
v Trainor
2003(1)
SACR 35 (SCA) at 40i-41a continues:
"A
conspectus of all the evidence is required. Evidence that is
reliable should be weighed alongside such evidence as may
be found
to be false. Independently verifiable evidence, if any
r
should
be weighed to see if it supports any of the evidence tendered. In
considering whether evidence is reliable, the quality
of that
evidence must of necessity be evaluated as must corroborative
evidence, if any Evidence of course must be evaluated
against
the
onus
on
any particular issue in respect of the case in its entirety. The
compartmentalised and fragmented approach of the magistrate
is
illogical and wrong".
[25]
Whilst it is so that the trial court has the advantage of hearing
viva
voce
evidence
from a witness, a court of appeal is not bound by the evaluation of
such evidence by the trial court. In
Protea
Assurance Ltd v Casey
1970{2)
SA 643 (A) at 648E the Court pointed out that:
"Over-emphasis
of the advantages which the trial court enjoyed is to be avoided
lest the appellant's right of appeal becomes
illusory". In my
view, the following statement in the judgment of jH
J
Erasmus, J
in
Timothy
Lotter v The State
case number A84/2007, a judgment which was delivered on 29 November
2007 is apposite:
"A
conspectus of the totality of the evidence before the Court reveals
a case built upon the evidence of a single witness
whose credibility
was highly rated by the trial magistrate, yet there are features, as
pointed out above, which cast a shadow
of doubt and uncertainty over
the cogency of the whole. Add to this simple denial by the accused
of involvement in the events
of the evening in question, a denial
that in the end emerges unscathed, then it cannot be said that on
the evidence before the
Court the guilt of the accused has been
established beyond reasonable doubt.
In
the
ultimate result one
is
left
with the uncomfortable feeling that the full story of the events of
the evening, whatever that may be, has not been placed
before the
Court".
[26]
That is not to say that the complainant is to be disbelieved. On the
other hand, it is further not to say that the evidence
of the
appellant is to be disbelieved. The State has to prove the guilt of
the appellant beyond a reasonable doubt. If there
is a reasonable
possibility that the appellant's version might be true then he must
enjoy the benefit of the doubt. That, in
my view, is the positron in
this matter.
[27]
I am accordingly of the view that the appeal should be upheEd and
that the conviction and sentence should be set aside.
JOUBERT.
AJ
VAN
REENEN, J
:
I agree. The appeal succeeds and accordingly the conviction of the
appellant on counts 1 and 4 is set aside, as are the sentences
imposed in respect thereof.
VAN
REENEN, J