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[2008] ZAWCHC 287
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Nomngangqu v S (A236/2005) [2008] ZAWCHC 287 (7 November 2008)
JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVtSIONl
CASE
NO
:
A236/2005
DATE
:
7
NOVEMBER 2008
In
the matter between:
MKHULULI
NOMNGANGQU
versus
THE
STATE
JUDGMENT
GERBER,
AJ
:
The
appellant, hereinafter referred to as the accused, was convicted in
the Regional Court of the Western Cape, held at Wynberg,
on a count
of rape. He was thereafter sentenced to 12 years imprisonment. He now
appeals against his conviction and sentence.
At
the start of the trial, the accused pleaded not guilty to the charge
and in his plea explanation denied that he had had sexual
intercourse
with the complainant.
The
evidence can be briefly summarised as follows. I deal firstly with
the State's case and the evidence of the complainant.
The
complainant testified that she was 17 years old She stayed in
Gugulethu, in close proximity to the accused. She and her family
members knew the accused and his family members beforehand. There was
no ill-feeling between them at the time.
On
the night of 11 November 2001, she returned home at approximately
21:50. When she arrived home, the doof of the house where she
stayed
with
inter
alia
her
one sister, Velikazi, was locked. She knocked on the door and called
out, but no-one opened the door. Whilst she was there,
the accused's
mother, Shirley Nomngangqu, also known as Wantu, came past and
enquired as to what she was doing. A short conversation
between them
ensued, whereafter Wantu told the complainant that she should go to
her, that is Wantu's, home and sleep there with
her, that is Wantu's,
children as she did not intend sleeping there herself. As a result
the complainant went to Wantu's home,
knocked, and one of her
children, Zimkitha, opened the door. She informed Zimkitha that Wantu
had said she could sleep there, and
duly went to sleep in the
bedroom.
A
while later the accused came in the house, asked for his food and
ate. Zimkitha told the accused that the complainant was sleeping
there and the accused also saw her. The accused left, but shortly
thereafter returned. He had blankets with him, which he put in
the
dining room.
The
accused asked the complainant to come to him, but she refused.
Thereafter the accused started to pull the complainant to the
dining
room. She attempted to resist, but the accused was too strong for
her. The accused told the complainant to undress, but
she refused.
The accused thereafter smacked her with his open hand and turned the
volume of the television set up. The accused
also had an empty bottle
which he got from the kitchen table, with which he threatened her.
The
accused pulled the complainant down on the blanket and told her that
he wanted to "sleep with her". Thereupon the
complainant
told the accused that she did not want to "sleep with him".
Thereafter the accused choked the complainant
and forced her to take
off her pantie and raped her.
The
complainant described the sexual act that the accused performed and
testified that he had inserted his penis into her vagina.
According
to the complainant, the sexual act lasted for approximately 30
minutes.
During
cross-examination, the complainant confirmed
that
whilst the accused was having sex with her, she
felt
"something plastic on his stomach or his side". She
was
unable to say what exactly it was that she felt.
After
the accused had finished, he told the complainant to sleep there next
to him. The complainant later got up, but the accused
woke up. He
asked her where she was going and she told him that she was going to
the toilet. The complainant wanted to put her
pants on, but the
accused said that she should leave it.
Thereupon
the complainant went to the toilet and the accused followed her and
waited outside. The complainant asked the accused
to bring her paper
and, when he went inside the house to get the paper, the complainant
left the toilet and ran to the nearest
house, that of Ntombomsi, whom
the complainant also knew. At the time the complainant was only
dressed in a polo neck top and a
pantie. According to the
complainant, the accused chased her, but Ntombomsi opened the door.
Ntombomsi's boyfriend was also in
the house.
Upon
inquiry from Ntombomsi, the complainant told her that the accused was
chasing her and wanted to pull her. She did not tell
Ntombornsi
that she was raped. The complainant testified that the reason why she
did not tell Ntombornsi was because she was ashamed
as Ntombomsi's
boyfriend was also present.
The
complainant thereafter remained at Ntombomsi's house until
approximately seven o'clock that morning. She then borrowed a dress
from Ntombornsi and went to her own home.
At
her home, she found Velikazi and other people present. She informed
Velikazi that the accused had pulled her and tried to rape
her, but
also did not tell her that she was raped. The complainant testified
later in this regard that she did not inform Velikazi
of the rape as
she was ashamed because there were other people present.
Later
on she was called by the accused's mother and requested not to lay a
charge against the accused.
The
complainant thereafter went into the accused's home to retrieve her
trousers and shoes which she had left behind the previous
evening
when she ran away.
Thereafter
other people, including her sister, Lulama, arrived and Lulama
informed her that she should go to the South African Police
Service.
Lulama accompanied the complainant to the police station. On their
way Lulama asked the complainant what the accused had
done to her.
The complainant did not answer. At the police station the complainant
told the SAPS members that the accused had raped
her and made a
written statement in this regard.
Later
that same day the complainant pointed the accused out to the police,
whereafter he was arrested.
The
police also took the complainant to a medical doctor for an
examination.
The
complainant was adamant that the accused had had sex with her without
her consent.
The
next witness, was Velikazi Faith Mashinga Velikazi is one of the
sisters of the complainant. Velikazi testified that on the
morning of
12 November 2001, when the complainant arrived at her home, she, the
complainant, was crying and she noticed that she
was wearing someone
else's dress. There were also other people present at or in close
proximity of her house at the time. The complainant
thereafter told
her that she had stayed at the accused's house, that the accused had
assaulted her and dragged her from
the bedroom and
undressed her. The complainant did not at the time inform her that
she had been raped.
At
a later stage, the accused's mother also arrived and asked the
complainant about her, the complainant's, clothes that she had
found
at her home.
Later
on their older sister, Lulama, arrived and took the complainant to
the police station. Velikazi only heard at the police station
that
the complainant alleged that she had been raped by the accused.
Velikazi
furthermore testified that she was not aware of any family feud
between the accused's family and her own family, and more
specifically Lulama.
The
third witness for the State was Dr Stanley Martin Trope. Dr Trope
testified that he qualified as a medical doctor in 1967 and
that he
had several years of experience in family practice, internal medicine
and cardiology. For approximately the last three
years he was
employed as a clinical forensic practitioner at the Lady Mtchaelis
Hospital and part of his duties entailed the examination
of
complaints in sexual and sexual assault cases.
On
12 November 2001, he examined the complainant after the alleged
incident. Although the complainant informed him that she had
been
throttled and hit on her head, he did not find any marks indicating
same. Dr Trope explained that it would depend on the severity
of the
force used whether one would expect to find marks or not.
Dr
Trope also testified that prior to the examination, the complainant
cried and was upset. He further testified that during the
gynaecological examination, he found swollen redness on the edge of
the complainants hymen and that he was of the view that this
was
caused by recent trauma.
During
cross-examination he stated that the redness that he had found at the
complainant's hymen would usually not be found with
consensual
sexual intercourse when there would be adequate lubrication prior to
penetration and was more likely to have been caused by intercourse
without consent.
The
next witness was Lulama Mashinga. Lulama is the older
sister of
the complainant.
On
the morning of
12
November 2001 she noticed that there was a lot of people at Velikazi
1
house. When she went there, she noticed that the complainant was
present, that she was crying and that she was wearing someone
else's
dress. She asked the complainant why she was crying and one of
the other people in the vicinity responded by saying
that the
complainant had been raped by the accused. She thereupon asked the
complainant what had happened. The complainant informed
her that the
accused had assaulted her and that she had ran to the neighbours.
She
thereupon took the complainant to the police station. On their way
she asked the complainant whether the accused had raped her,
but the
complainant informed her he did not. At the police station the police
asked the complainant what had happened and she told
the police
officers that the accused had in fact raped her. The complainant told
the police what had happened and made a statement.
Lulama later asked
the complainant why she had not told her that the accused had raped
her, and the complainant informed her that
she was ashamed because
there was a lot of people around.
Lulama
also denied that there was any feud between the accused's family,
more specifically the accused's mother, and her own family,
more
specifically herself. Lulama also denied that she told the
complainant to inform the police that she had been raped.
The
last witness for the State was Ntombornsi Margaret Pienaar.
Ntombornsi testified that at approximately 03:40 on the morning
of 12
November 2001 she heard a knock on her door and the complainant
called her by her nickname. She opened the door for the complainant
and noticed that she was only wearing a top and a pantie. Ntombomsi
asked the complainant what was going on, and she replied that
the
accused had wanted to "steep with her" but she had run
away. Ntombomsi confirmed that her boyfriend was also in the
house at
the time. The complainant stayed over at her house and in the morning
before she left, she gave the complainant one of
her dresses to wear.
In
the defence case, the accused first testified. The accused confirmed
that he knew the complainant well and that they stayed in
the same
area. He testified that on the particular evening he was watching TV
at home when he heard a knock at the door. When he
opened the door,
he noticed that it was the complainant. At the time only three
children, his two sisters and a further relative,
were at home with
him. The three children were asleep. The complainant informed him
that she wanted a place to steep.
He
let the complainant in and she sat in the lounge with him. The
accused spoke to the complainant, but she did not answer him.
He
noticed that the complainant smelt of liquor and she looked angry
whilst watching television. After approximately ten minutes
the
complainant informed him that she was going to the toilet. The
complainant left and did not return. Later on he went to the
toilet
to see where the complainant was. He noticed that she was not there
and thought that she had gone home.
The
next morning the complainant alleged that he had attempted to rape
her. He denied it. Later on he heard Lulama say that the
complainant
should not say that he, the accused, had tried to rape her, but
rather that he did rape her.
Later
on that same morning he was arrested. He requested the police to take
him to a hospital, but they did not. Three months earlier,
on 12
August 2001, he was injured when he was shot in his back. He
testified that as a result of the injury which he had sustained
he,
at the time that the alleged rape took place, had to carry a bag with
a pipe which he used to urinate. He also testified that
at the
relevant time he could not get an erection. He furthermore testified
that he had asked the doctor who attended to him whether
he would be
able to have sex and the doctor informed him no, he should first wait
for an operation which he had to undergo on 6
December 2001.
When
asked as to a reason why the complainant would have laid a false
charge of rape against him, the accused suggested two reasons,
namely:-
That
there was a long-standing family feud between his own mother and
Lulama.
Approximately
eight days earlier, Lulama had overheard him when he spoke to a
friend about Lulama's brother, who had been arrested
for rape of a
child. He had told the friend that Lulama's brother should be
punished for his actions. Lulama had apparently overhead
him and
told him that she would get him.
The
second witness by the defence was Shirley Nomngangqu. Shirley is the
mother of the accused. She testified that on the relevant
night she
did not sleep at home as she stayed over at her sister's place. She
only returned to her own home during the morning
of 12 November 2001.
Upon her return, she found pants in her dining room. Upon enquiry,
Zimkitha informed her that the pants belonged
to the complainant. She
testified that, at a previous time when the complainant had stayed
over at her home, the complainant had
stolen certain items from her.
She thereupon took the pants and went to look for the complainant.
She found the complainant at
Velikazi's house. The complainant
immediately informed her that the accused had "wanted to rape
her". She and the
complainant went to her home where she
confronted the accused with the complainant's allegation. The accused
denied it. She and
the complainant thereupon went back to Velikazi's
place and Lulama arrived and told the complainant that they should go
to the
police station.
She
testified that the relationship between herself and Lulama had not
been good for some time. She did, however, not have a bad
relationship with the complainant.
She
did not think that the accused could have had sex with the plastic
bag that he had to carry. The accused was unable to tell
her why the
complainant's pants were left behind at her house that evening.
The
following important facts are common cause:-
1. At
the relevant time, the complainant did not have a strained
relationship with the accused and/or the accused's mother.
2. Late
during the particular evening, the complainant arrived at the
accused's house.
The
complainant spent some time at the accused's home.
The
complainant thereafter left the house during the early hours of the
morning.
When
she left, the complainant only had her top and her pantie on. Her
pants were left behind at the accused's home.
The
complainant went to Ntombomsi's house and informed her that the
accused had wanted to rape her and told her that she had run
away
from him.
In
the morning the complainant went home and reported to Velikazi and
the accused's mother that the accused had wanted to rape
her.
Lulama
took the complainant to the police station.
At
the police station the complainant laid a charge of rape against the
accused.
The
magistrate, in her judgment, evaluated the evidence and made the
following important findings. Firstly, the complainant made
a
favourable impression in the witness stand and she never got the
impression that the complainant's evidence was rehearsed or
planned.
Secondly,
the magistrate accepted the complainant's evidence that it was at the
request of the accused's mother that she, the complainant,
went to
the accused's home on the particular evening.
Thirdly,
the magistrate concluded that the explanations given by the
complainant for the inconsistent reports made by her the next
morning
as to whether she was in fact raped or whether there was only an
attempt to rape her, were acceptable.
Fourthly,
the magistrate found that the complainant's evidence that she was
raped was corroborated by the medical evidence and opinions
of Dr
Trope.
Fifthly,
the magistrate found that the complainant's evidence was also
corroborated in material respects by the other State witnesses
and
also by the accused.
Sixthly,
the magistrate found that the accused's, and his mother's, version
that the charge of rape was pre-planned by the complainant
and her
family members, was so improbable, given the accepted facts, that it
could be rejected as not reasonably possibly true.
Seventhly,
the magistrate concluded that the accused's version was so improbable
that it could be rejected as not reasonably possibly
true.
On
appeal, the following factors were referred to in support of
counsel's submissions that the convictions should be set aside.
Firstly,
the inconsistent reports made by the complainant after the incident
as to what had occurred, and more specifically her
failure to report
that she had in fact been raped. As referred to above, the
complainant did not initially tell the persons that
she spoke to that
she had been raped. Initially she reported that the accused had
dragged her and that he had wanted to sleep with
her. The
complainant, however, explained that she was at the relevant times
ashamed as there were a number of other non-family
members in her
presence. The evidence indicates that that was in fact so. Although
one may normally expect a complainant in such
a situation to report
the offence at the earliest reasonable opportunity, this is not an
inflexible rule. One has to look
at the entire evidence and
the explanation proffered by the complainant for her actions to see
whether the complainant's behaviour
accords with the offence having
been committed. In this regard see
R
v M
,
1959 (1) SA 352
(A) at 357D, as well as
S
v Hammond
.
2004 (2) SACR 303
{SCA). Of particular importance in the present
matter in this regard are the following facts. The complainant did
immediately report
that the accused had wanted to rape her. Prior to
the time when she spoke to the police, there were always bystanders
in her vicinity
when she spoke to the other witnesses about what had
happened. Her explanation that she was too ashamed to tell the full
story
at that stage must be seen in that context, also bearing in
mind the magistrate's observations that, even in court, the
complainant
was extremely embarrassed when she had to relate that
sexuaf intercourse had taken place. On the same morning the
complainant informed
the police that she had in fact been raped and
made a statement to that effect.
Dr
Trope's undisputed evidence is that he found recent trauma of the
complainant's hymen, which was likely to have been caused by
intercourse without consent. Dr Trope's evidence and opinions
corroborates the evidence of the complainant in this regard.
It
must of course be borne in mind that the complainant was, in respect
of the incidents that had occurred at the home of the accused,
a
single witness. The approach to be followed in respect of such a
witness' testimony was summarised as follows by
Diemont,
J A in S v Sauls and Others
,
1981 {3) SA 172 (A) at 180E - F:-
"There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of a single witness
(see the remarks
of
Rumpff.
J A in S v Webber
1971 (3) SA 754
(A) at 758). The trial judge will weigh his evidence,
will consider its merits and demerits and, having done so, will
decide whether
it is trustworthy and whether, despite the fact that
there are shortcomings or defects or contradictions in the testimony,
he is
satisfied that the truth has been told."
(See
also
S
v Webber
1971 (3) SA 754
(A) at 758G - H).
Considering
the evidence in totality, I am not persuaded that there is reasonable
doubt as to the veracity of the complainant's
evidence that there had
in fact been sexual intercourse. Her explanation as to why she
initially only referred to an attempted
rape appears to be
acceptable, reasonable and probable. As mentioned, her evidence that
there had been sex is also supported by
the medical evidence.
Another
aspect raised by counsel was that the State prosecutor elicited
corroboration for the complainant's version in an improper
manner.
The record reveals that Velikazi was asked to explain what had
happened on the morning of 12 November 2001. She then gave
her
narration of the events that had occurred. During Velikazi's
evidence, the State prosecutor relayed a part of the complainant's
evidence to the witness in respect of a single issue, namely what
exactly the complainant had said to the witness initially when
she
had arrived at her home on that morning. The questions posed were
clearly directed to clarify Velikazi's evidence in this regard
and to
establish whether her evidence contradicted that of the complainant,
and if so to what extent. Although the line of questioning
may not
have been the most appropriate, it was, in my view, not improper. The
questions were not really leading questions, but
more a narration of
a certain section of the complainant's evidence whereafter a response
was sought from the witness as to what
her version was. It is
accepted practice that questions may be asked if it is necessary to
clarify issues. It is therefore not
surprising that the accused's
legal representative at the trial did not object to the line of
questioning that is now being attacked.
I am therefore of the view
that there is no merit in the point raised on behalf of the accused.
A
further aspect raised by counsel in this regard is that the evidence
of Velikazi and Lulama do not corroborate the evidence of
the
complainant It is obviously correct that neither Velikazi nor Lulama
were eyewitnesses to the alleged rape. There are, however,
other
material aspects in respect whereof their evidence does corroborate
that of the complainant, i.e. that there was not a family
feud
between the accuseds family and the family of the complainant, and
more specifically Lulama; that the complainant, immediately
upon her
return home, relayed that the accused had done something untoward
against her, which had caused her to run away from him
in the middle
of the night; that the complainant was wearing someone else's dress.
Furthermore, the evidence of Velikazi and Lulama
must be assessed as
part of the totality of the evidence presented.
Another
aspect raised on behalf of the appellant was that Dr Trope's finding
that the complainant had no previous pregnancies was
inconsistent
with Lulama's evidence that the complainant was indeed pregnant. The
complainant never testified that she was pregnant
at the time when
her alleged rape occurred, nor was she asked any questions in this
regard.
11
is
unknown whether the complainant was, on the morning of
12
November
2001, aware of the fact that she was pregnant. It is also unknown
whether the complainant in fact had had a child. Dr Trope
noted in
his medical report that the complainant had had no pregnancies. It
can safely be accepted that the complainant did not
inform Dr Trope
that she was pregnant at the time the incident occurred Lulama, who
testified after the complainant and Dr Trope,
at the end of her
evidence and upon questioning by the Court, testified that she only
later realised that the complainant was pregnant
when she had been
raped. Lulama furthermore testified that at the time
the
complainant was two months, and not four months as referred to by
counsel in his written heads of argument, pregnant at the
time. It is
not clear from Lulama's evidence when exactly she found out that the
complainant was pregnant. It cannot be found on
the evidence that the
complainant had purposefully withheld from Dr Trope the fact that she
was pregnant. The complainant was never
asked to explain her actions
In this regard and, more importantly, it is not clear
whether at
the time when the incident occurred she was aware
of the fact that
she was pregnant. No negative inference in respect of the
complainant's credibility is, in my view, warranted by
these facts.
Furthermore, the aforesaid facts do not detract in any way from the
opinion expressed by Dr Trope in respect of the
probability that the
complainant had been subjected to forced sexual intercourse shortly
prior to his examination.
Another
aspect raised by counsel in his heads of argument was that
Ntombomsi's evidence that the complainant was not crying when
she
came to her house is incompatible with the expected behaviour of a
person that had just been raped. It must be accepted that
different
people may behave differently in the same situation. There is no rule
of thumb that it is to be expected that a woman
who had just been
raped should cry immediately thereafter. The complainant's behaviour
must be assessed with due regard to the
totality of the evidence
presented. In this regard the following evidence presented by
Ntombomsi corroborates the evidence of the
complainant;-
1. Ntombomsi
confirmed that the complainant arrived in the early morning hours at
her house, knocked on her door and called for
her to open up.
2. Ntombomsi
noticed that the complainant was only wearing a top and a pantie.
3. The
complainant informed Ntombomsi that she had run away from the accused
as he had wanted to sleep with her.
The
fact that the complainant was at the time not crying is a neutral
factor. It does not detract from the complainant's evidence,
nor does
it make the evidence of the complainant improbable. The said argument
furthermore overlooks important corroborating evidence
delivered by
Ntombornsi in respect of the complainant's actions, comments and her
state of dress.
A
further aspect raised by counsel was the accused's evidence that, due
to the injury he had earlier sustained, he could not have
had sex
with the complainant. It was submitted that that evidence was
reasonably possibly true. The accused's evidence in this
regard was
that he could not get an erection. He elaborated thereon when he
testified:-
"I
was shot at the back, and the bullet went out here, in front of my
stomach. I had a bag which was hanging there, to urinate
in and the
pipe was near my intestines, so that I can urinate. I did ask the
doctor whether \ will be able to have sex, and the
doctor said no, I
must first wait for the operation to be done, and the operation was
going to be done on the 6
th
of December last year."
It
would thus appear that the medical advice given to the accused was
not that he could not have sexual intercourse, but rather
that he
should refrain from having sexual intercourse prior to the operation
that he had to undergo. In the present matter, however,
it is
striking that the accused did not call any medical evidence to
support his version as to his sexual capabilities, or lack
thereof,
at the relevant time. The accused must have known who the doctor was
that had treated him and who had given him the advice
referred to
earlier. There is no indication on the record that the doctor was
unavailable to testify. Although there was no onus
on the accused in
this regard, one would have expected, in regard to a factual issue
such as this, that corroborating evidence
would have been presented
by the defence. In evaluating the evidence it must, of course, always
be borne in mind that it is trite
law that there is no onus on an
accused in a criminal trial.
Zulman
J A
stated in this rega/d:-
°lt
is trite that there is no obligation upon ah 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 (see
S
v V
,
2000 (1) SACR 453
(SCA) at 455a - b)."
The
complainant testified that she, whilst they were having sex, did feel
"something plastic". Her testimony is clear
that sexual
intercourse did take place and is corroborated by the evidence of Dr
Trope. The accused's explanation as to his inability
at the time to
have had sexual intercourse can, on an assessment of the totality of
the evidence presented, be rejected as so improbable
that it is
beyond any reasonable doubt false.
A
further argument raised was that the accused's version is reasonably
possibly true. In evaluating the evidence, the approach a
Court
should adopt was set out as follows by
Nugent,
J
:-
"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 he 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 it be to convict or
to acquit) must account for
a!l 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 {see
S
v Van der Mevden
,
1991
(1}
SACR
447
(W) at 449j - 450b. See also
S
v Van Aswegen
,
2001 (2) SACR 97
(SCA) at 100f -101e
h
as well as
S
v Mafaladiso en Andere
.
2003 (1) SACR 583
(SCA) at 595b - d.)
The
magistrate gave a number of reasons as to why the accused's version
can be rejected as not reasonably possibly true. I can find
no fault
in the magistrate's reasoning. In assessing the evidence of the
accused the following dictum of the Full Court in
S
v Van Tellingen
,
1992 (2) SACR 104
(C) at 106c - f is also apposite:-
"Dit
is dalk nodig om weereens te benadruk dat die bewyslas wat op die
Staat rus nog altyd dieselfde is, naamlik bewys bo
redelike twyfe!.
Dit beteken nie bewys bo enige sweem van twyfel, setfs vergesogte
twyfel nie. Die klem val op die woord redelik.
Aan die ander kant
is dit klaarblyklik so dat die redelike twyfelmaatstaf nie
gelykstaan in die siviele bewyslas van bewys op
'n oorwig van
waarskynlikhede nie. Die Staat se bewyslas in strafverrigtinge is
heelwat meer veeleisend as die van 'n litigant
in siviele
verrigtinge. Die onderskeid is herhaaldelik deur die Howe benadruk
en dit gebeur dus dikwels dat Howe genoop voet
om te se dat 'n
beskuldigde se weergawe nie verwerp kan word slegs omdat die
Staatsgetuies se getuienis op 'n balans van waarskynlikhede
meer
aanneemlik is nie. Dit beteken egter nie dat die waarskynlikhede
irrelevant is in die opweging van die meedingende weergawes
nie. Dit
beteken ook nie dat slegs omdat *n beskuldigde se getuienis, in
isolasie beskou, nie vatbaar vir kritiek is nie, dat
daar geen
sprake van 'n positiewe verwerping van sy getuienis kan wees nie.
Die gehalte en oorwig van getuienis tot die teendeel
mag so
oortuigend wees dat 'n Hof genoop voel om die moontlikheid dat die
beskuldigde se weergawe waar mag wees uit te skakeK
Alles sal van
die trefkrag van die Staat se getuienis aan die een kant en die van
die beskuldigde aan die ander kant afhang."
In
respect of crucial aspects, the accused's version, and that of his
mother, is so improbable that it can be rejected with safety
i.e:
1.
that
the complainant and her sisters pre-planned and orchestrated the
laying of a false charge of rape.
Firstly,
there is no indication of any feud that existed between the
complainant and the accused or his mother.
Secondly,
how could the complainant have known, beforehand, that on this
particular evening the accused's mother would not be
present at her
home?
Thirdly,
why would the complainant then have made inconsistent reports, after
the incident, to Ntombomsi and her own sisters as
to what had
occurred? One would have expected that, if it was a pre-planned
event, the complainant would, from the outset, have
alleged that she
had been raped by the accused.
Fourthly,
one would have expected the complainant's version and that of the
other witnesses, especially her sisters, to have been
similar in
content in all relevant aspects. Contrary thereto there were in
fact quite a few
differences
between their versions, which indicates that their evidence had not
been tailored to fit in with each other.
Fifthly,
it is highly improbable that a casual and reasonable comment made by
the accused in regard to Lulama's brother wouid
result in such an
elaborate plan being set in motion to falsely implicate him.
2.
The accused could simply not give any plausible explanation as to
why the complainant would, in the early hours of the morning,
run
away from him, half dressed, and report that he had done something
untoward against her if in fact he had done nothing to
upset her.
Although
there were certain inconsistencies and differences in the versions
of the State witnesses, none were of such a material
nature that it
negatively impacted on the complainant's credibility and
reliability.
I
am satisfied that the State proved beyond reasonable doubt that the
accused is guilty of rape and that the appeal against the
conviction
should therefore be
DISMISSED
.
As
far as is sentence is concerned, the magistrate imposed a sentence
of 12 years imprisonment. The particular offence is scheduled
in
Part III of Section 51 of Act 105 of 1997, which prescribes a
minimum sentence of ten years imprisonment for a first offender,
such as the accused, except if the Court finds that there are
substantial and compelling circumstances to justify a lesser
sentence. The magistrate held that there were no such substantial
and compelling circumstances in this matter. I agree with her.
The
magistrate did
r
however, misdirect herself in respect of sentence when she stated,
on page 226 of the record:-
"What
I do regard as aggravating is the fact that not only did you show no
remorse, but you were intent, you and your family
intent, to show
what a bad person Shirley is, a thief and a liar."
It
is a fundamental right of an accused to plead his innocence and put
his case before the Court. The fact that the accused disputed
the
complainant's version and that, in the process, he attacked her
credibility and trustworthiness, cannot be held against him
as an
aggravating factor.
Given
the aforesaid material misdirection by the magistrate, we are in a
position to consider sentence afresh (see
S
v Oosthuizen
.
2007 (1) SACR 321
(SCA) at 324h).
As
mentioned, I am of the view that no substantial and compelling
circumstances exist which can result in a lesser sentence than
the
minimum sentence prescribed. Bearing in mind, in particular, that
the accused was at the time only 22 years old, that he
was a first
offender and that there is no clear evidence of any serious
permanent physical or psychological trauma that the complainant
suffered as a result of the offence, I am of the view that it is
inappropriate to impose a longer term of imprisonment than the
minimum prescribed by the legislature.
In
the result, I would propose an order that the sentence imposed be
substituted with a sentence of
TEN
(10) YEARS IMPRISONMENT
.
I therefore propose the following order.
The
appeal against the conviction is
DISMISSED
.
The appeal against the sentence is
UPHELD
.
The sentence imposed is substituted with a sentence of
TEN
(10) YEARS IMPRISONMENT.
GERBER,
A J
I
agree.
YEKISO,
J