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[2008] ZAWCHC 284
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Cozette v S (A510/2005) [2008] ZAWCHC 284 (31 October 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO
:
A510/2005
DATE
:
31
OCTOBER 2008
In
the matter between:
JOSEPH
COZETTE
versus
THE
STATE
JUDGMENT
SLABBERT.
AJ
:
On
18 August 2003, the appellant, who defended himself, was found
guilty by a Regional Court magistrate of Wynberg of the following
offences: two counts of rape; assault with intent to do grievous
bodily harm in that he assaulted the complainant by hitting
her and
dragging her by the hair and threatening her with a knife; and
attempted indecent assault. He was sentenced to an effective
18
years imprisonment.
There
have been considerable delays in prosecuting this appeat and
appellant has lodged an application dated 23 September 2008
requesting the reinstatement of his appeal and condonation for the
late filing of his heads.
After
being sentenced on 18 August 20G3, the appellant applied on 1 April
2005 for leave to appeaf, which was granted. His appeal
was not
prosecuted and in February 2007 it was struck from the roll. With
the assistance of his counsel, Ms Ruiters, he now applies
for this
Court's condonation and reinstatement of his appeal. He has
explained the reasons for this and the State does not oppose
the
application for condonation.
The
matter now turns on the prospects of success and a decision thereon
will appear during the course of this judgment.
During
the presentation of the States case several red flags were raised
warning of the dangers to come. These flags should have
alerted the
magistrate to exercise more caution in his evaluation of the
witnesses' evidence. In my view
r
most of these red flags were ignored completely, or they were not
given their due weight, and the headnote of
S
v K
,
2008(1) SACR 84 (CPD) is instructive:-
"Conviction
of an offence referred to in part 1 of Schedule 2 to the Criminal
Law Amendment Act has a potential to attract
heavy punishment,
particularly in the light of the seriousness of the offence as
referred to in the Schedule. Judicial officers
ought to be vigilant
in their assessment and evaluation of evidence in order to eliminate
a risk of conviction on the basis of
evidence of doubtful quantum.
The complainants in matters of sexual assaults on women and children
unfortunately happen to be
the most vulnerable members of our
society, but the vulnerability of this section of our society should
not be allowed to be
a substitute for proof beyond reasonable doubt
or to cloud the threshold requirement of proof beyond reasonable
doubt. Judicial
officers ought to and are expected to evafuate
evidence properly and objectively as a whole and against all
probabilities in
order to arrive at a just and fair conclusion.
Anything falling short of this test is nothing other than a
miscarriage of justice."
See
also two other cases, which I will just refer to without reading any
extracts therefrom. The first is
S
v Jones
,
2004(1) SASV 420 (CPD)
r
and
S
v Pickers
.
(2002) 2, Ail South Africa 81 (CPD).
In
my experience it unfortunately happens in many trials that
difficulties in the State's case are glossed over while the defence
case is dissected almost sentence by sentence. Clear credibility and
improbability issues relating to State witnesses are ignored
or
minimised. This analysis should be the other way round, in my view.
Since the onus is on the State it is the State's version
that shoufd
receive as careful, if not more so, a scrutiny than the defence
witnesses.
The
complainant's allegations can be briefly summarised as follows. The
complainant and the appellant had been married for five
years when
he left her for another woman on 1 February 2002. He regularly
brought her between 400 and R500,00 every month. On
1 August 2002,
she was alone at home when the appellant arrived at about 18:00. She
made him some coffee and they sat on her
bed whilst he drank it and
she watched TV. He then repeatedly asked her for sex, but she said
no, because "hy lewe alreeds
met 'n vrou
n
.
The appellant pressed her down on the bed and she struggled with
him
f
to no avail, as he was too strong. He tried to penetrate her per
anum but then turned her around and penetrated her vagina against
her will. Her vagina sustained an injury in the process. Afterwards
appellant got into his car and left. She reported the matter
to the
police and she was also examined by the district surgeon.
When
the appellant pleaded to this charge, he said that the intercourse
was with the consent of his wife.
On
Monday, 12 August 2002, at about 09:00 he came to her house again,
saying that he wanted to talk about the divorce. She said
she "voel
tevrede" about this. Her 20 year old daughter, Jessica, was
sleeping in the complainant's room. Appellant
took her by the hand
and led her from the lounge to Jessica's bedroom and he asked for
sex, but she refused. He replied that
"my nee is vir horn a
ja-woord". He then pressed her onto Jessica's bed, but she
never fought back as she had on the
previous occasion, because "ek
kan nie meer baklei nie". He undressed her and had sex with her
against her will. He
then left.
The
appellant asked her in cross-examination about Jessica. Her reply
was somewhat evasive, and when the appellant asked her,
u
Sy
is 20 jaar oud, vir hoekom het jy dan me iets omgestamp of geskreeu
sodat Jessica kan wakker skrik nie?" her answer was,
"Soos
ek in die hof geverduidelik, ek kan nfe meer vir jou, teen jou meer
veg nie, want..," and then she stops. Not
a very convincing
reply. This in my view was the first red flag that I have referred
to. Help was at hand in the next room, why
did she not scream or
shout, or as the
appellant
put it to her, knock something over to draw Jessica's attention to
her plight?
Complainant
then tried to contact the investigating officer, but he was off duty
and she saw him only on the Friday. She did not
go to a doctor and
when asked why not, she replied, "Ek weet nie". In my view
the second red flag was raised in respect
of this. When Jessica
awoke, why did she not tell her daughter about the rape? She did not
tell her even during the period from
the Monday to the Friday when
she saw the police
Jessica
gave evidence and she said that when she awoke, the appellant and the
complainant were chatting normally.
Appellant
was arrested on these charges on 23 August 2002, but according to the
complainant he was released on bail during November
2002. She saw him
on Christmas day and New Years day at her house and she said that,
"Ek is bly dat hy gekom het, want dis
die einde van die jaar"
She saw him again on 5 January 2003 and he asked her to come home,
but she refused. She also saw him
at her cousin's house. Al! this to
me seems to be inconsistent with that of a traumatised victim.
On
15 March 2003 the events leading to counts 3 and 4 occurred. The
appellant came to the house at about 18:00. He asked her to
withdraw
the charges. According to her, he became violent and dragged her by
the hair from the kitchen to the bedroom. He tried
to put his penis
into her mouth
r
but she fought back. He went into the kitchen and obtained a long
knife. He dragged her by the hair back into the bedroom, saying
that
he was going to kill her, but then he made a somewhat strange remark,
"As hy nie vir my doodmaak nie, dan moet ek die
mes vat en vir
hom doodmaak". He then released her and when she started to, as
she says, "Praat met die Here, toe begin
hy ook te bid".
Now these unusual events are not followed up by either the magistrate
or the prosecutor. They seem on the
face of it to be relevant to the
appellant's emotional state and thus possibly relevant to sentence,
and should have received some
attention in the evaluation process. He
then left.
She
reported the matter to the police. The accused pleaded not guilty to
these charges.
Under
cross-examination, a somewhat different picture emerged. It seems
that the complainant had been talking to some Jehovah Witnesses
and
when they left, the appellant came in. Complainant at first seemed
to have denied it, but she then agreed that the two of
them had gone
to buy some fish, but she sard that he dragged her by the hair when
she did not want to go with him. She then said,
"Los die vis, ek
wil huis toe gaan". Appellant saw a love bite on her neck, and
according to the complainant he wanted
to drag her over Prince
George's Drive and to have sex with her there in the bushes. They
passed some people standing in a flat,
and when she was asked why she
did not caii for help she said that appellant had threatened to hurt
her in the presence of these
people.
This
is surely another red flag affecting the complainant's credibility.
This new evidence throws a different slant on the situation.
Going
out together in public to buy fish is once again hardly compatible
with that of a traumatised victim. For a second time she
does not
scream for help when help was at hand.
On
11 August 2003 the complainant applied for a family violence
interdict, and her application differs from her evidence in some
important respects, as well as displaying a possible motive for
laying the charges. No mention of this appears in the judgment,
even
though it clearly affects her credibility, and I quote from a portion
of her application that she lodged for this interdict:-
"Maar
hy pla my gedurig deur my te vloek, beledig en kritiseer, deur te se
ek is die grootste hoer, ek is sleg wat nie die
waarheid praat nie,
beskadig ook my eiendom om ingang tot die wontng te verkry."
Then
there is something completely new:-
"Ek
vra die Hof om my assebiief te help, want ek is van plan om van horn
te skei. Ek wil horn nie daar he op my perseel of
in my woning nie."
I
think the magistrate should have had more regard to these
contradictions, or to the new evidence, and he should have had some
regard to a possible motive on the part of the complainant for laying
a charge, because she was obviously desirous of wanting to
get the
divorce and have him out of her iife.
Inspector
Pietersen was a State witness. He was on duty on 1 August 2002 when
the complainant came to lay the first charge of rape,
but his
evidence is virtually worthless as he said that he could not remember
what she said. Ms Williams, the prosecutor, elicited
some highly
prejudicial evidence from this witness, and I quote a short extract
from the record (the transcript was not very clear);-
"
STAAT
:
Was dit nou die eerste keer dat u die klaagster in die
pohsiestasie sien?
GETUIE
:
Ek kan nie presses onthou daai dame (onduidelik) voor dit ook
(onhoorbaar) gehelp.
STAAT
:
Met wat se tipe saak?
GETUIE
:
Ek dink dit was ook 'n verkragting of
l
n
onsedelike aanranding, maar ek het al vir haar voorheen gehelp.
STAAT
:
En wie was die verdagtes in die ander saak?
GETUIE
:
Dieselfde persoonâ
This
was a clear reference to the Appellant.
This
tactic is repeated during the cross-examination of the accused, and I
quote from the record:-
"
STAAT
:
Hoeveel sake van verkragting het sy al teen u gemaak?
BESKULDIGDE
:
Twee sake van verkragting wat...
STAAT
:
Hierdie twee sake van verkragting?
BESKULDIGDE
:
Ja.
STAAT
:
En voor hierdie saak?
BESKULDIGDE
:
Die vorige verkragting saak was mos vir 'n ander dogter gewees,
waarvoor ek die sewe jaar uitgedien net, maar toe is nog nie getroud
nie."
According
to his judgment this tactic by the prosecutor appears to have had the
magistrate's tacit approval, because the appellant
had himself raised
this matter in his cross-examination of the State witnesses,
obviously in an attempt to show that the complainant
was in the habit
of laying rape charges against him. In my view, this type of gravely
prejudicial evidence should be shunned when
an accused is undefended,
even if he is the one who in ignorance raised it, and the prosecutor
should not be allowed to pursue
this avenue without laying a
foundation for it. The magistrate should at the least have advised
the appellant about the legal dangers
his questioning was leading him
into, and it is pure semantics to claim that the evidence is now
admissible because the accused
raised it himself. In my view, this
highly prejudicial evidence threatens the whole fairness of the
trial.
The
district surgeon, Dr Theron, gave evidence which seemed to have dealt
a body blow to the appellant's defence of consent. He
found a fresh
injury to the complainant's fossa navicularis. He describes this
injury as typically one found in rape cases, and
it was not an injury
brought about during normal consensual sex. However, as wilt be
seen later in this judgment, this potentially
damaging evidence
disappeared as mist before the morning sun. The appellant tried to
deflect the import of Dr Theron's evidence
by suggesting En
cross-examination that his new girlfriend had taught him a new style,
or as he put it "seks kunse",
and that is what caused the
injury after his wife had not had sex for six months. Dr Theron did
not agree. When appellant gave
evidence, Ms Williams asked him about
the "styles" he had learnt from his young girlfriend. When
he tried to repty, she
stopped him dead in his tracks, as will be
seen from the following extracts from the record:-
"
Kan ek vir die Hof miskien
(
n
demonstrasie doen wat die tipe van styl was ...(tussen beide)."
The
State interrupts him:-
"Nee,
glad nie
r
meneer, ons stel glad nie belang nie."
The
undefended accused was thus effectively prevented from explaining
away a potentially fataf blow to his defence. Perhaps his
explanation
would have been unconvincing or crude, but that is not the point. His
fundamental right to challenge and to adduce
evidence in terms of
Section 35(3)(i) of the Constitution was summarily dismissed by Ms
Williams.
This
violation of one of the vital components of a fair trial effectively
undermined the whole concept of a fair trial guaranteed
by the
Constitution, and she should have been stopped by the magistrate. Her
zeal has negated a potentially favourable witness
for the State.
The
complainant's daughter, Jessica, gave evidence for the State and if
anything she exonerated the appellant compEetely on count
2, that is
the second rape charge. I have already referred to red flags that had
been raised in connection with count 2 namely,
the complainant did
not shout for help although Jessica was in the next room. But
Jessicas evidence goes further than raising more
red flags. She
positively contradicted the complainant on important details. She
testified that when she awoke the complainant
and appellant had been
sitting and talking, atl was normal between them. Hardfy the picture
of a post-rape scene. She also contradicted
the complainant in
respect of the complainant's denial that she had prepared water for
the appellant to wash himself after having
had sex, as well as her
denial that she had accompanied the appellant on "oujaar".
Instead of finding that the State
witness had now exonerated the
appellant on count 2, as well as contradicting the complainant in
other respects, thereby raising
serious doubts about the
complainant's overall credibility, the magistrate indulged in
speculation that favoured the State, and
1 quote from the record:-
"Ek
vind dit ook geensins vreemd dat die klaagster se dogter nie eers
bewus was van enige verkragting nie. Ek glo dat die klaagster
juis om
enige verdere vernedering te voorkom, seker gemaak het dat haar
dogter van niks agterkom nie om enige verleentheid ook
vir die dogter
te spaar."
This
is pure speculation. There is no evidence that allowed the magistrate
to make this finding.
The
accused testified and his evidence was generally in harmony with his
plea and his cross-examination of the State witnesses,
which has
already been set out herein above.
But
what stands out in this case is the so-called cross-examination of
the appellant by the prosecutor, Ms Williams. She interrupted
and
badgered the appellant constantly, giving him no chance to reply.
Eventually he complained twice about this to the magistrate.
The
magistrate remained silent. Her attitude, just by reading the words
appearing in the record, was arrogant and unreasonable,
and
1
could
quote several extracts from the record. I will not do so as the
record speaks for itself. She elicited highly prejudicial
evidence
during cross-examination, as I have indicated herein above.
Prosecutors and magistrates should read
S
v Gfdr
,
1984(4) SA 537 (CPD), where Rose-lnnes, J, said the following at page
539, paragraph I:-
â
A
proper cross-examination does not permit the gratuitous
intimidation of an accused.
A
prosecutor
shoufd not belittle an accused by insulting him, browbeating him or
adopting an overbearing attitude which admits of
no contradiction by
the accused of what is put to him."
At
page 540, paragraph B,
"Conduct
of this kind offends against good manners, politeness and humanity,
At
page 540, paragraph D,
"An
accused must be given a fair chance to answer the questions put to
him. His answer must not be interrupted from the bar.
The next
question must not be put before the previous one has been fully
I
just want to quote one portion of the record which illustrates the
prosecutor's attitude towards the undefended appellant:-
"
BESKULDIGDE
:
Nou gaan ek vir u weer se ek vertel nie 'n leuen nie.
STAAT
:
Dan stry u nog met die Hof dat u nie leuens vertel nie, meneer, dis
my punt wat ek in die hof maak, u het nie respek nie, meneer.
Geen
verdere vrae nie."
The
magistrate should have intervened and stopped the prosecutor from
badgering the undefended accused.
It
is clear from my summary of the evidence that several red flags were
raised alerting the magistrate to exercise caution. It is
clear from
his judgment that he was aware of his duty relating to single
witnesses, but after an analysis of his judgment, I am
of the view
that he missed many of the red flags or he did not give them their
due weight. But there are red flags other than the
ones I've already
referred to.
Firstly,
there are strong indications of a possibly vengeful woman. J do not
suggest that the complainant was in fact vindictive,
but there
are strong signs that this was a possibility. I just want
to give a few short quotations, to illustrate
this point. The
transcript is not always coherent, but the complainant says, and I
quote:-
"
GETUIE
:
Dit was meer in verband met geld want ek wou die vroumens gesien het
met wie hy ge-involved gewees het."
"
GETUIE
:
Wat ek die vroumens toe wat hy vir my en aan my geklap het, my
gebruik het en wat ek was nietemin om die vroumens te gesien het
en
op die einde van die saak toe vat hy vir my na die vrou toe en ek vra
vir die vroumens hoe voel sy as sy in my skoene moes gestaan
het.
STAAT
:
Hang aan
p
ek wif nou nie weet wat die ander vrou, ek wil nie weet van die ander
vrou nie, wat ek vra, het u en die beskuldigde nou bespreek
gaan
julle skei, woon julle apart, wat was die situasie?"
Here's
another possible red flag, or another possible indication that the
complainant might be vindictive, J am not saying she was,
but the
Court should have considered the possibility although the prosecutor
stopped the witness.
I
think that in the context of this case it was very important to know
about the "ander vrou".
Another
short extract from the record:-
"
GETUIE
:
dit is nou die klaagster:-
"Maar
jy het dan vir my in die voorkamer driekeer vir my gese jy gaan nie
daai vroumens los vir my nie, en daar het ek jou
gelaat."
A
further quotation:-
"
GETUIE
:
Ek het my kinders afgestaan om vir jou by te gestaan het."
These
are ail indications that maybe the complainant was not feeling ail
that happy about the situation, and I wish to emphasise
again, I am
not saying she was vindictive, my complaint is that the magistrate
should have had regard to what the witness had said
and he should
have just paid it some heed. The love bite could also have been
relevant to her motives. Surely all this should
have set warning
bells ringing.
Secondly,
the actual assault on count 1 has puzzling aspects. According to the
complainant, the appellant had pressed her down onto
the bed and he
had pinned her arms down with his legs. To do this, the appellant
must have been straddling her chest in order to
enable him to press
her arms down with his legs. The question then arises how he could
have removed her panties and had sex with
her from this position. It
is not clear from her evidence what actually happened, because the
complainant's evidence, if one reads
the record, was somewhat
incoherent and vague on this aspect. It was the prosecutor's duty to
adduce clear evidence that would
enable the trial court to come to
the conclusion that the complainant had been raped. Now it is true
that the appellant admitted
sexual intercourse, but the State alleges
rape. The onus is on the State to prove its version and it should at
the very least lay
the basis to enable the Court to find beyond
reasonable doubt that forced intercourse was physically possible.
Forced intercourse
from the position described by the complainant
seems
prima
facie
impossible.
The complainant did say at one stage:-
"Ek
het verswak toe sak hy."
But
this would then have left her hands and arms free. The whole attack
lacks coherent and credible detail.
Thirdly,
count 4 reads as foilows:-
"Klagte,
onsedelike aanranding, deurdat op 15 Maart 2003 naby Lavendar Hill in
die streek afdeling van die Kaap, u opsetlike
en op 'n onsedelike
wyse vir Veronica Kozette aangerand het deur haar teen haar wil jou
penis in haar mond te druk."
The
State thus alleges a completed act. However, in her evidence
complainant said that:-
"Hy
het probeer om sy penis in my mond te druk,"
And
the magistrate actually found the appellant guilty of attempted
indecent assault. There is thus a difference between the charge
and
the evidence thereon. Now this difference seems to be minimal and
unimportant, and there may be many explanations for it, but
one
explanation may be that she deviated from her statement, if this Es
so, this would certainly affect her overall credibility.
Had the
accused been defended, his counsel would have had the docket. The
magistrate should have picked up on this apparent contradiction
and
advised the appellant that he is entitled to the docket. Indeed there
is a duty on the magistrate to do so. See
S
v Shiburi
,
2004(2) SACR 314 (WLD).
In
his judgment the magistrate does not even mention this contradiction
but accepts the complainant's evidence
"in
toto".
This
easy acceptance of her credibility is hard to understand. The
magistrate again speculates in the complainant's favour. She
had said
that she did not know why she did not go to the doctor after the
second rape, and the magistrate speculated in her favour
that she did
not go "waarskynlik van wee die tydsverloop". There is no
evidence to substantiate this speculative inference
in her favour.
The magistrate found the complainant to be:-
'"n
Bale goeie getuie, wie se getuienis kop en skouers uitstaan bo die
weergawe van die beskuldigde. Niks wat sy gese het word
as vaag of
onwaarskynlik bevind nie."
In
my view he could only have come to this concEusion after a very
superficial evaluation of the State's evidence, and he ignored
or did
not give due weight to the red flags I have set out herein before.
The
magistrate was alive to the potential credibility problems for the
State. He himself described them as "aspekte wat moonttik
vreemd
gevind kan word". He referred to an article by Tania Novitz
entitled "Issues in Law Raised and Gender 2 (sic)".
According to this article, a woman caught in a circle of domestic
viofence over time cannot easify escape from it and she tries
to
appease her abuser. Three phases are set out:-
Tension
building.
Acute
battering.
The
contrition stage.
The
magistrate classified
the
complainant's case as "boek
voorbeeld
van waarom die
klaagster
nie prakties hierdie sirkef
van
gemeld kon stop nie".
This
finding is difficult to support.
Firstly,
apart from the tensions that arise from any arguments between
couples, the evidence does not establish any of the three
phases
mentioned in the article, and there is especially no "acute
battering" over a period of time. Jessica said that
"hulle
het baie gestry maar daar was geen fisiese geweld nie".
Complainant herself only refers to the hair pulling incident
and the
slaps he gave her when she suffered a fit, and the appellant admits
one assault with a mop. This is certainly not a "boek
voorbeeld"
as set out in the article, and the application of the article is
entirely inappropriate.
Secondly
this article is cardinal to the Court's judgment in rejecting the
appellant's version and accepting the complainant's version.
The
magistrate places the article on the same footing as that of an
expert witness, without the benefit of her expert testimony.
Who is
the authoress, what are her qualifications and experience?
Thirdly,
since that article was used to explain away possible adverse
credibility findings against the State, the question arises
whether
the magistrate should not have called the authoress of this article
in terms of Section 167 of the Criminal Procedure Act.
Fourthly,
the magistrate used this article to justify a finding about the
complainant's thought processes, thereby eliminating and
sweeping
under the carpet the necessity for addressing questions of
credibility and improbabilities. There was no evidence by the
complainant to substantiate this finding about "wat in haar
gedagtes aangaan" as appears in the article quoted and relied
upon by the magistrate, and the magistrate's conclusions are based on
pure speculation in my view. An assumption or the taking
of judicial
notice of a fact without there being any evidence to prove it is a
misdirection. See
SvM
.
2000(1) SACR 484 (WLD) at 498 F - G.
To
sum up, the undefended accused was badgered by the prosecutor and she
did not allow him to present his case properly. This, and
the
cumulative effects of all the factors I have set out herein before,
leads me to the reluctant conclusion that not only has
the State not
proved its case beyond reasonable doubt, but the appellant did not
have a fair trial. In the premises I propose
the following order:-
1. Condonation
for the late filing and prosecution of the appeal is
GRANTED
.
2. The
convictions and sentences are hereby
SET
ASIDE
.
SLABBERT,
AJ
I
agree, the appellant's convictions and sentences are set aside
DESAI,
J