Ndzelu v S (A 560/07) [2008] ZAWCHC 19 (25 April 2008)

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[2008] ZAWCHC 19
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Ndzelu v S (A 560/07) [2008] ZAWCHC 19 (25 April 2008)

IN THE HIGH COURT
OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
Case No:
A560/07
In the matter between:
ZANDISILE
NDZELU
Appellant
and
THE STATE
Respondent
JUDGMENT:
25 APRIL 2008
VAN ZYL J:
INTRODUCTION
[1] The appellant was convicted on 25 July 2005 in the Regional
Court, Wynberg, on a charge of raping a girl aged eleven during 2002.
The matter was referred to this court for sentencing in terms of
section 52 of Act 105 of 1997. The conviction was confirmed on 30
November 2006 and the appellant was sentenced to life imprisonment.
He was subsequently, on 5 February 2007, granted leave to appeal
against both the conviction and sentence. An application for bail
pending appeal, however, was refused despite the fact that the
State
did not oppose the application.
[2] On 21 January 2008
the appeal was allowed by a full bench of this court and the
conviction and sentence were set aside, with reasons
to follow. On
the same day I issued a warrant of liberation for the immediate
release of the appellant, who has been in custody since
his arrest on
26 June 2003, a period of more than four and a half years. Prior to
that it would appear that he had been in custody
for a period of some
four months from 27 October 2002, when he was first arrested, to 27
February 2003, when the case was withdrawn
for lack of evidence
against him. It was subsequently reinstated at some time before his
arrest on 26 June 2003. The details relating
to this prior
incarceration and the reasons for the withdrawal and reinstatement of
the case are sketchy and confusing. This in itself
is a cause of some
concern. Of more concern in this regard, however, is that the
appellant was granted bail on 27 June 2003, the
day after his arrest,
in the amount of R1 500,00, which he was unable to pay. A number of
subsequent applications for the amount
to be reduced were refused,
with the result that the appellant remained incarcerated until he was
released by this court.
[3] In the appeal
before us Mr P H Loots appeared for the appellant and Ms S F A
Raphels for the respondent. The Court expresses its
appreciation for
their respective presentations. As mentioned above, the appeal was
allowed on the day that it was argued in order
to ensure the
appellant’s immediate release from what was clearly a totally
unjustified incarceration arising from an ostensibly
unreasonable
bail condition that required him to pay an amount that was clearly
beyond his financial means. The subsequent refusal
of bail pending
the present appeal was also, in my respectful view, questionable,
particularly in view of the fact that the State
did not oppose the
application. This matter does not, however, require further
consideration inasmuch as it did not play any role
in this court’s
decision to allow the appeal in respect of conviction and sentence.
The reasons for such decision appear from what
follows.
THE EVIDENCE OF THE COMPLAINANT
[4] In the proceedings before the trial court, the complainant
testified by way of closed circuit television in terms of
section 153
of the
Criminal Procedure Act
51 of 1977
. She was apparently
assisted, with the tacit approval of the court, by one Irene Dabene,
who was described by the prosecutor as “sitting
next to her just
for moral support”. Mr G Nzunga did duty as the court’s official
Xhosa/English interpreter.
[5] At the commencement
of her testimony the complainant averred that the appellant, who
lived next door to her home and whom she
knew as “Tata Mjole”,
had raped her more than once at his home. The first time was on a
Friday after school during March 2002.
She had been playing with his
children outside the house when he had called her inside and taken
her to his room. When asked what
had happened there she was,
initially, unable to do so coherently or comprehensibly. She was
literally coaxed into giving a description
of what the appellant had
done to her. According to the record her replies to the vast majority
of questions put to her in this regard
were inaudible. She was
visibly upset and, only after an adjournment, was she able to
continue.
[6] She then explained
that the appellant had pulled her onto the bed and removed her panty.
As she lay on her back he lay on top
of her with only the top part of
his body clothed. When asked what he had done, she was once again
unable to reply audibly. When
asked how it felt when he lay on top of
her, her reply was that it had been painful. She could not, however,
explain why it had been
painful, her answers to questions once again
being inaudible. She attempted to demonstrate with the assistance of
a male and female
doll. According to the court’s description of the
demonstration the lower bodies of the dolls were exposed and the
complainant
moved the male doll up and down two or three times on the
female doll. When asked where she had experienced pain she indicated
that
it had emanated from her private parts and explained that it had
been because the appellant had been raping her. When asked with
what
he had done so, she pointed out the male doll’s penis. The
prosecutor then asked: “When he put that thing by your private
parts was it just on top or was it inside?” Her reply was:
“Inside”.
[7] In response to a
question whether the appellant had said anything, she testified that
he had told her not to tell anyone. She
had felt scared and, after
putting on her panty and shorts, she went home without saying
anything to her father or her aunt (to whom
she referred as her
sister) when they returned home from work late that evening. She
likewise said nothing to her mother who, at
that time, was living in
the Eastern Cape.
[8] After being
prompted by a series of leading questions as to further instances of
alleged rape by the appellant, the complainant
testified that the
next incident took place on a subsequent Friday. As on the first
occasion she had been playing outside with the
appellant’s children
when he called her inside. This time he told her that he was going to
send her on an errand. Once she was
inside, however, he raped her a
second time in the same place and in the same way as previously.
Because she was still afraid of
him, she initially told no one about
it. When asked who the first person was whom she informed of the rape
by the appellant, she
answered that it was “the social workers”.
The next person she told was her mother, who had by then apparently
returned home
from the Eastern Cape and in fact accompanied her to
the social workers. This creates the impression that her mother
already knew
of the rape allegations.
[9] In her further
testimony, once again after an inordinate amount of prompting, the
complainant referred to regular, in the sense
of weekly, incidents of
rape, all of which happened in exactly the same place and manner as
the initial two instances. For the rest
she appears to have visited
the social workers more than once and was also examined by a doctor
some months later. She was not asked
for any details relating to
these visits.
[10] The complainant’s
evidence in cross-examination was, if anything, even less
satisfactory than in chief. Her answers were, for
the most part,
inaudible and at one stage the appellant’s legal representative
asked the court to place on record that she had
failed to answer most
of the questions and was in fact unable to do so. The court’s
response was that it was not a question of
her being unable to answer
inasmuch as the problem with her testimony had been evident from the
beginning of her evidence in chief.
She should hence not be pressured
into responding quickly since her failure to do so would not be a
true reflection of the nature
of her evidence.
[11] An aspect which
came to the fore for the first time in cross-examination related to
an incident when her father was looking for
her while she was
sleeping in a car. When asked why she had slept there, her answer was
once again inaudible. She did, however, mention
that she was afraid
of her father because she was “afraid to speak the truth”. Later
on she conceded that she had not slept in
the car because her father
was using it. When she was asked where she had then slept she became
emotional and tearful and did not
respond to the question. Nor did
she respond when it was put to her that she had run away from home
and that her father had been
driving around all night looking for
her. In further cross-examination she testified that her father had
two cars and that she had
slept in the brown one which he had not
been driving. This was all very confusing, if not incomprehensible.
[12] It was then put to
the complainant that the appellant had seen her that morning with a
plastic bag and walking with another man,
whom he presumed was her
boyfriend. Because she was afraid that her father would beat her if
he thought she had been with this man,
she had accused the appellant
of raping her. She denied this, but had no answer when it was put to
her that, according to the medical
report relating to her visit to
the doctor on 27 November 2002, she had previously had sexual
intercourse and had suffered no injuries
in the alleged rape by the
appellant. In this regard her evidence relating to the number of
times the appellant had allegedly raped
her and when these assaults
had occurred was, once again, virtually incomprehensible.
[13] In reply to
questions by the court the complainant stated that she had slept in
the car that night because she had been afraid
to tell her father
that the appellant had raped her. In further cross-examination she
mentioned that she had also run away from her
father on other
occasions after she had been raped. She had then run to her
grandfather, but had likewise not told him about the
rape.
THE EVIDENCE OF OTHER STATE WITNESSES
[14] The mother of the complainant testified that she had been in the
Transkei at the time of the alleged rapes on her daughter.
She had
returned home between October and November 2002 when her husband, the
father of the complainant, had requested her by telephone
to do so.
On her return she went to the school of the complainant where certain
information was imparted to her and it was suggested
that she take
the complainant to social workers. She did so on that very day. One
of the social workers, who was not mentioned by
name, then informed
her of what the child had told her. Her words were: “Sisi your
child has been raped by a man you are staying
with”. This was
apparently a reference to the appellant and not to the complainant’s
father, as was subsequently confirmed by
one Ms Linda Monakali, a
counsellor at the Ilitalabantu Organisation that deals with violence
against women and children. On her
advice, it would appear, the
complainant’s mother laid a charge against the appellant on that
very day.
[15] In her further
evidence she testified that the complainant had told her nothing
about what had happened to her. What she knew,
she had heard from the
social workers. When she attempted to elicit information from the
complainant, she would simply cry and not
reply at all. Despite her
reluctance to speak about the incident, however, it was not apparent
that her behaviour had changed. Nor
could the fact that the
complainant had failed her grade at school that year (2002) be
attributed to the incident.
[16] In
cross-examination she testified that, as a result of the incident,
the complainant had run away to her grandfather’s home
and returned
only when she returned from the Transkei. She was unable to explain
why the complainant had testified that she had told
her about what
had happened when in fact she had not done so. Nor could she explain
why her husband had told her nothing of the complainant’s
disappearance and his searching for her all night. According to her
the complainant was still a child playing with dolls. It was
clearly
beyond her comprehension that the complainant might have been
sexually active at such a tender age.
[17] The next witness
was Dr S M Trope, who testified that he had examined the complainant
on 27 November 2002. According to the information
furnished to him,
the complainant had allegedly been raped on an unspecified day during
October 2002. Although her hymen was not
intact and there was no
hymenal tissue present, he found no indication of swelling or fresh
tears. On the contrary, her vaginal entrance
was very large,
extending 20 by 15 millimetres. This was indicative of repeated
sexual penetration over an extended period of time.
[18] The aforesaid Ms L
Monakali testified that she had given counsel to the complainant, who
had been referred to her by social workers.
She did not mention the
dates on which she had held counselling sessions with the
complainant, but it would appear that there was
more than one. In her
report dated 25 February 2003 she relied on background information
relating to an alleged rape during mid-October
2002. The complainant
had been “able to confess and give full details of what has
happened”. The details appearing from the report,
however, differed
substantially from her evidence, in so far as it might have been
comprehensible, in the trial court. More specifically
it would appear
that the appellant had been undressed when the complainant entered
his bedroom. When she had refused to undress,
he removed her panty.
He then covered their faces with a blanket and held his hands over
her mouth to prevent her from screaming
while he was raping her.
[19] Ms Monakali
indicated that she had furnished the complainant’s parents with a
letter to the police so that they could lay a
charge against the
appellant. When she saw them again they told her that the case
against the appellant had been withdrawn. On her
suggestion the case
was reopened. The complainant did not, however, return to her for
further counselling since the family had apparently
moved to the
Eastern Cape.
[20] In
cross-examination Ms Monakali testified that the complainant had told
her of only one incident involving an alleged rape by
the appellant.
This emerged during the course of three to four sessions, Ms Monakali
apparently being the first person to whom the
complainant had
divulged the detail of the incident.
THE EVIDENCE OF THE APPELLANT
[21] The appellant denied having raped or otherwise sexually
assaulting the complainant. He suggested that she had falsely accused
him of rape in order to conceal the fact that she might have been
involved in a sexual relationship with a boyfriend or someone else
and was afraid that her father, of whom she was afraid, might get to
know about it. He had in fact seen the complainant one day in
October
2002 when she was walking with some school children while carrying a
plastic bag containing clothes. Later that day, while
he was in his
house, he heard the complainant’s father asking his children
whether they had seen the complainant. He went out and
asked the
father why he was looking for the complainant. The father replied
that she had not slept at home the previous night and
that he had in
fact been in his car looking for her all night.
[22] Despite intensive
cross-examination the appellant, in substance, stood by his denial
and version of the events relating to when
and under what
circumstances he saw the complainant and spoke to her father. He was
unable to tender any reason why she should incriminate
him falsely.
According to him he had had no further contact with either the
complainant or her father after the events of which he
testified. In
an attempt to elicit some kind of concession from the appellant, the
prosecutor resorted to sarcasm and to repetitious,
bullying and
aggressive questioning, which was quite unacceptable and unfair. It
related in the main to small differences in his
testimony which, for
the most part, were of limited relevance.
THE JUDGMENT OF THE TRIAL COURT
[23] In assessing the evidence of the complainant, the regional court
accepted that she had been confused about the dates, times
and
frequency of the alleged rapes, but had been sure that it was the
appellant who raped her. The court likewise accepted that she
had
made no report to her mother, father or other family members, but had
in fact told a social worker what had happened to her.
In doing so,
she had mentioned only one incident of alleged rape which, the court
held, constituted a contradiction of her evidence.
[24] Despite these
considerations and the fact that the complainant was a single witness
in respect of whose evidence caution should
be exercised, the court
was satisfied that she had testified with “sufficient clarity”
and that her evidence had been supported,
though not corroborated, by
her report to Ms Monakali. Her delay in making this report, the court
held, had been satisfactorily explained
and was hence, in the
circumstances, made within a reasonable time. As for Dr Trope’s
evidence, it was true that it did not indicate
forced sexual
intercourse, but it did make it clear that she had been penetrated
and sexually assaulted. In this regard, the court
held, the
contradictions in her evidence were not of a material nature and did
not render her evidence unreliable. Her version of
the relevant
events was indeed acceptable and reasonable, thereby constituting a
prima facie
case against the appellant, who was obliged to
rebut such case.
[25] With regard to the
appellant’s evidence, the court held that the contradictions raised
during cross-examination were material.
In addition his version had
not been substantiated by any other evidence, such as that of his
children or the complainant’s father.
As such his defence
constituted a bare denial and could not be accepted as reasonably
possibly true. The court hence concluded that
the State had proved
beyond reasonable doubt that the appellant had raped the complainant
on at least one occasion.
THE MAIN SUBMISSIONS ON BEHALF OF THE PARTIES
[26] The gist of the argument by Mr Loots on behalf of the appellant
was that the regional court had erred in holding that the State
had
succeeded in proving the guilt of the appellant beyond reasonable
doubt. In this regard it had failed to properly analyse and
evaluate
the evidence of the State witnesses and had failed to have due regard
to the cautionary test relating to a single youthful
witness such as
the complainant. In addition it had erred in accepting that the
complainant’s testimony had been satisfactory.
It should in fact
have found that her evidence was so vague and unsubstantiated that it
could not be properly tested. In this regard
it had been
contradicted, rather than corroborated, by the evidence of Ms
Monakali concerning the time, frequency and particulars
of the
alleged rape. By the same token the court had erred in not finding
that there were a number of serious improbabilities in
the State
evidence.
[27] Mr Loots argued
further that the court had erred in rejecting the appellant’s
evidence as palpably false. It should rather
have found that it had
been at least partly corroborated by the complainant’s own evidence
that she had spent a night in her father’s
car and had not gone
home. It had been further corroborated by the evidence of Dr Trope
that his examination of the complainant had
not revealed any
rape-related injuries and that the size of her vaginal opening
pointed to frequent penetration over a substantial
period of time.
This was in fact indicative of the fact that she had been sexually
active for some time. It might also explain why
she had falsely
implicated the appellant, namely in an attempt to conceal the true
facts of her sexual activity. The court should
hence, Mr Loots
submitted, have accepted the appellant’s version as reasonably
possibly true.
[28] Inasmuch as our
learned colleague, to whom the case was referred for sentencing after
the conviction of the appellant, associated
himself with the findings
of the regional court when confirming the conviction, Mr Loots
suggested that such confirmation should
likewise be set aside.
[29] In her argument on
behalf of the respondent Ms Raphels conceded that the evidence of the
complainant was difficult to follow
and that she had been hesitant to
explain what had happened to her. There was, however, sufficient
evidence to prove that she had
been raped and that she had identified
the appellant as the perpetrator. Thereafter she had reported the
rape to a counsellor and
“to an extent” to her mother. Ms Raphels
accepted that caution should be exercised in assessing the testimony
of the complainant
as a single witness, but submitted that caution
should not displace common sense. In this regard she found support
for the complainant’s
version in the evidence of Dr Trope relating
to the indications of repeated sexual penetration of the vagina. The
problem with the
date of the rape, namely March or October 2002, she
submitted, was attributable to the complainant’s youthfulness and
to the fact
that she had testified as to having been raped more than
once.
[30] Ms Raphels
submitted further that the appellant’s evidence should not be
accepted as credible in view of the assumptions and
unsubstantiated
statements he appears to have made. In addition he had adapted his
evidence during cross-examination when he was
unable to give a
satisfactory reply to questions put to him by the State prosecutor.
This indicated that he was a poor witness whose
version could not be
reasonably possibly true.
THE RELEVANT LEGAL PRINCIPLES
[31] It is a well
established principle of law that a court of appeal will not
interfere with a trial court’s evaluation of the
evidence placed
before it, unless there has been a serious error of judgment or
misdirection. This would, of course, be the case
where the court has
erred in finding that the State has proven the guilt of the appellant
beyond reasonable doubt. See
R v Ndhlovu
1945 AD 369
at 386;
S
v Van der Meyden
1999 (1) SACR 447
(W);
S v Phallo and Others
1999 (2) SACR 558
(SCA) par [10] at 562
g
-563
b
.
[32] It is likewise
settled law that a court must have due regard to the fact that the
evidence of a single and young witness must
be approached with
caution. In this regard it must be satisfied that such witness is
able to distinguish between the truth and a
lie and must understand
the dangers inherent in telling a lie. See
S v L
1973 (1) SA
344
(C) at 347H-348C and 349F;
S v T
1973 (3) SA 794
(A) at
796C. On the relevant cautionary rule see also
S v Sauls and
Others
1981 (3) SA 172
(A) at 180E-G;
S v Hlongwa
1991 (1)
SACR 583
(A) at 587
a-b
;
S v Pretorius en ‘n Ander
1991
(2) SACR 601
(A) at 609
b-c
;
S v Khumalo en Andere
[1991] ZASCA 70
;
1991
(4) SA 310
(A) at 328A-C;
S v Mnguni
1994 (1) SACR 579
(A) at
581
g-j
;
S v Vumazonke
2000 (1) SACR 619
(C) par
[10]-[11] at 622
f-
623
d
.
[33]
Section 170A
of
the
Criminal Procedure Act
51 of 1977
makes provision for the
appointment of an intermediary through whom the complainant may be
enabled to testify when it appears to
the court that the complainant
will be exposed to undue stress or suffering should he or she be
required to testify. See on the application
of this section
K v
The Regional Magistrate NO, and Others
1996 (1) SACR 434
(E)
[reported as
Klink v Regional Court Magistrate NO and Others
in
1996 (3) BCLR 402
(SE)];
S v Mathebula
1996 (2) SACR 231
(T).
Useful guidelines for the circumstances in which such section may be
invoked are set forth in
S v Stefaans
1999 (1) SACR 182
(C) at
187
i
-188
i
. See also
S v F
1999 (1) SACR 571
(C).
In the present case it would appear that the person sitting beside
the complainant and furnishing her with “moral support”
(par [4]
above) was not regarded as, nor was intended to be, an “intermediary”
in terms of
section 170A.
Neither the trial court nor the defence
objected to her apparently innocuous presence.
EVALUATION OF THE EVIDENCE
[34] When the evidence
is considered and evaluated against the background of the facts and
circumstances set forth above, it is abundantly
clear that no proper
finding on the merits of the conviction could ever have been made on
the basis of the complainant’s evidence.
In response to questions
on the most salient and material aspects of the case she was unable
to furnish any answer, or any audible
answer, at all. When her
answers were to some degree audible, they were, for the most part,
incoherent, incomprehensible or, at best
for her, exceedingly
difficult to comprehend.
[35] Even if the trial
court were satisfied, as it apparently was, that the complainant’s
testimony was sufficiently comprehensible
for purposes of
establishing whether or not the appellant was guilty as charged, no
conviction could have been sustained. The plethora
of contradictions
and illogicalities in her version made it virtually impossible to
determine what exactly the correct facts were.
In this regard one
needs only to have regard to the date when the alleged rape took
place, namely during March or October 2002, and
the number of times,
be it weekly or otherwise, that she was allegedly raped. The State at
most proved one rape on an undetermined
date in October 2002, which
makes nonsense of her evidence relating to a series of regular
incidents of rape commencing in March
2002.
[36] It is difficult
to escape the impression that the complainant had probably been
sexually abused from a very youthful age and
was sexually active and
experienced at the time the appellant came on the scene. This was
certainly the case when Dr Trope examined
her during November 2002.
His evidence provided no support whatever to the State’s case that
the complainant had been raped by
the appellant in October 2002 or
even, at the earliest, in March 2002. The same applies to the
evidence of her mother or Ms Linda
Monakali, neither of whom had
first-hand knowledge of any alleged rape and apparently relied on the
report of an anonymous social
worker who did not testify and who, it
would seem, did not specifically identify the appellant as the
miscreant.
[37] It is hence clear
that the evidence of the complainant’s mother and Ms Monakali
provides no corroboration for the complainant’s
vague and
unsubstantiated allegations. All they do prove is that the
complainant failed to make any report to her mother, father,
aunt,
grandfather or any other family member, and in fact made no report to
Ms Monakali, who apparently assumed that the unnamed
social worker in
question had correctly established that a rape had taken place. The
report she heard from such worker (par [14]
above) was that which she
had told the complainant’s mother, namely that the complainant had
been raped by a man with whom she
was living. How the appellant, a
neighbour, was identified as this man does not appear from the
evidence.
[38] It is somewhat
disturbing that the trial court, in its judgment, dismissed the many
contradictions in the complainant’s evidence
as immaterial, but
held that those attributed to the appellant were material, despite
the fact that they were elicited during unfair
cross-examination.
Even more disturbing is the rejection of the appellant’s evidence
because it was not corroborated by other witnesses
and constituted a
bare denial. This comes close to holding that the appellant should
prove his innocence. In any event a bare denial
cannot, in the
absence of corroborative evidence, simply be rejected as untruthful
because the complainant’s evidence is acceptable.
This cannot be a
basis on which to find that the appellant’s version is not
reasonably possibly true, particularly when, as in
the present case,
the court does not refer to the appellant’s demeanour or
reliability as a witness.
CONCLUSION
[39] It follows from these considerations that the trial court should
have rejected the evidence of the complainant and should have
held
that the State did not prove the guilt of the appellant beyond
reasonable doubt. It should in any event have held that, even
if the
State evidence was acceptable, the version of the appellant was
reasonably possibly true.
[40] By the same token
it must respectfully be held that our learned colleague, to whom the
matter was referred for purposes of sentence,
should not have
confirmed the conviction and sentenced the appellant in terms of the
relevant legislation.
[41] It is for these
reasons that this court set aside the conviction and sentence and
ordered the immediate release of the appellant.
D H VAN ZYL
Judge of the High Court
I agree.
D M DAVIS
Judge of the High Court
I agree.
W H VAN STADEN
Acting Judge of the High Court