Mdali v S [2007] ZAFSHC 112 (8 August 2007)

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[2007] ZAFSHC 112
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Mdali v S [2007] ZAFSHC 112 (8 August 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Appeal
No. : A15/2006
In the appeal between:
MBUTI FRANS
MDALI
Appellant
versus
THE
STATE
Respondent
CORAM:
EBRAHIM J
et
MOLEMELA, AJ
JUDGMENT:
MOLEMELA, AJ
_____________________________________________________
HEARD ON:
6
AUGUST 2007
_____________________________________________________
DELIVERED ON:
8 AUGUST 2007
_____________________________________________________
[1] This is an appeal
against conviction and sentence. The appellant was convicted on 6
October 2004 on one count of rape in the
Regional Court sitting at
Welkom and was subsequently sentenced to imprisonment for 10 (ten)
years.
[2] The
following background facts are undisputed:
2.1 That the complainant
and the appellant had known each other prior to the day of the
incident;
2.2 That the appellant,
his friend George, the complainant and her friend Ntswaki had enjoyed
drinks at a tavern known as Manny’s
tavern until 07h00 the next
day;
2.3 that after leaving
the tavern the appellant, the complainant, George and Ntswaki all
boarded the same taxi and ended up at the
appellant’s shack in
Mshenguville;
2.4 that the appellant
and the complainant had sexual intercourse on the day in question;
2.5 that the appellant
and the complainant did not have a love relationship on that day.
[3] The main issue in
dispute was whether the sexual intercourse that took place between
the appellant and the complainant was consensual.
[4] I turn to deal with
the complainant’s account of what happened. According to the
complainant when they left the tavern at 07h00,
she is the one that
signalled for the taxi to stop outside the tavern. She had signalled
by making the sign of a fist, which is
the normal sign made by
passengers headed to Putsuasteng. After boarding the taxi, the
taxi-driver told her and her friend that
he was headed for
Mshenguville. The complainant then paid the taxi fare. The
appellant and his friend George also boarded the same
taxi. The
appellant then asked the complainant to accompany him to his place of
residence at Mshenguville and stated that they would
thereafter go to
a place known as Ditsheng. The complainant refused.
4.1 While they were in
the taxi, the appellant informed the complainant that the
complainant’s lover, one Mpho, had had sexual intercourse
with the
appellant’s lover, one Lesego. The complainant told the appellant
that the incident had nothing to do with her.
4.2 When
the taxi stopped at a taxi-rank in Mshenguville, the appellant said
that all four of them must alight from the taxi. The
complainant
informed him that she and Ntswaki would not be alighting as they were
headed for Ditsheng. The appellant then opened
the door of the taxi
and pulled her out of the vehicle. The appellant’s friend George,
opened the other door and pulled Ntswaki
out. When the complainant
tried to loosen herself from the appellant’s grip, the appellant
drew a knife. The taxi-driver then
told the complainant and Ntswaki
not to go back into the vehicle.
4.3 The complainant
demanded to know from the appellant where he was taking her and he
threatened to stab her with a knife. She walked
alongside Ntswaki,
while the appellant and George followed closely behind them. They
walked in that fashion for about 100 meters
and then arrived at the
complainant’s shack.
4.4 Up
to the time they arrived at the shack, she had not tried to scream or
run away because she was afraid of the appellant, who
was still
holding a knife at that time.
4.5 Upon arriving at the
appellant’s shack, the appellant opened the door and pushed her
inside. He instructed George and Ntswaki
to wait outside and also
told them to go and buy beer.
4.6 He
then closed the door but did not lock it. He undressed his pants and
underwear and then undressed her pants and underwear.
He instructed
her to open her thighs and then raped her.
4.7 At a point when the
appellant was just about to ejaculate, Ntswaki opened the door.
George then threw Ntswaki onto the bed and
stated that she could see
what was happening. The appellant got off the complainant, slapped
Ntswaki on the thigh and told her to
stop making noise. The
appellant then said that Ntswaki must have sex with George. George
however refused and stated that he could
not have sex with Ntswaki as
she was crying and could later accuse him of having raped her.
4.8 After
the rape, the appellant asked the complainant to forgive him as he
had only wanted to hurt her. The appellant then put
his trousers on.
The complainant also put her panties and pants on. She and Ntswaki
then left the appellant’s place. They went
to the police station,
where the complainant laid a charge of rape against the appellant.
[5] I turn to the
appellant’s version. He testified that while he and George were
enjoying drinks at Manny’s tavern, the complainant
and her friend
joined them where they were seated. The complainant then requested
that the appellant give her liquor and he obliged.
While they were
enjoying their drinks, he asked the complainant whether she would
have sex with him. The complainant agreed, but
only after demanding
an amount of R30.00, which he gave to her while they were at the
tavern.
5.1 They continued
drinking together. At some point the appellant mentioned that he had
found an unknown pair of trousers at his
place of residence. The
complainant then mentioned that the pair of trousers belonged to
Mpho, her boyfriend. Both he (the appellant)
and the complainant
were worried and hurt by the fact that their lovers had cheated on
them. He (the appellant) decided that he
would avenge himself for
what Mpho had done by having sex with Mpho’s girlfriend, i.e. the
complainant.
5.2 The
appellant, the complainant, George and Ntswaki all left the tavern
together at 07h00. The appellant signalled to an approaching
taxi
that he was headed for Mshenguville. The taxi was a sedan
motor-vehicle. Only sedan motor-vehicles ferried passengers from
that point to Mshenguville, while the passengers headed to
Putsuasteng were ferried by minibus taxis only.
5.3 The
four of them boarded a sedan taxi to Mshenguville where they alighted
at the taxi rank. They all walked to the appellant’s
place of
residence, which was about 100 meters from where they had alighted
the taxi. Both the complainant and her friend Ntswaki
alighted
voluntarily from the taxi and accompanied him and his friend George
to his shack. He was not in possession of a knife.
5.4 Upon
the arrival at the shack the appellant and the complainant went to
buy two quarts of beer and the four of them enjoyed the
beer while
they were seated around the table in the kitchen area. The kitchen
area is separated from the bedroom area only by a
curtain.
5.5 While
they were having drinks he reminded the complainant of her
undertaking. The two of them then went to the bedroom area,
undressed themselves and had consensual sex on the bed while George
and Ntswaki were consuming liquor in the kitchen area. When
they had
finished having sex they joined George and Ntswaki and enjoyed more
drinks. When the drinks were finished, they all left
the shack. He
returned to his shack a short while later.
5.6 George was called as
a defence witness. His evidence amply corroborated that of the
appellant.
[6] The court
a
quo
stated that “the complainant, though subjected to a lengthy
cross-examination by the defence, was a reliable and honest witness”.
I respectfully differ with this finding. There were many
contradictions in her evidence. Although she had previously denied
having
been to the appellant’s place of residence before the date
of the incident, she later admitted that she once spent the night
there,
sleeping on the floor while the appellant slept on his bed
with her friend, Meme. Although she had in her examination-in-chief
not
mentioned any assault on her by the appellant while they were at
his shack, she later testified under cross-examination that he had
slapped her once while they were seated on the bed. She then changed
this version and stated that he had slapped her once while
she was
standing. She then mentioned that he had also slapped her once when
they alighted from the taxi.
6.1 Although she had
initially testified that she had not screamed or cried due to the
fact that the appellant had instructed her
to be quiet, she later on
changed this version to say that she cried just before the appellant
raped her.
She testified that when
the appellant pulled down her panties and her pants he was holding
the knife in his hand. Under cross-examination
when it was put to
her that if that were the case she would have sustained injuries,
she testified that the knife was on top
of the bed when the
appellant pulled down her underwear and pants.
There was also a
material contradiction regarding the appellant’s conduct just
before penetration. See page 37 of the record
line 16 – 25.
“
Mr
Reyneke: “But before that she had testified, in chief she said that
he grabbed her legs by her thighs and opened it. Then she,
when I
cross-examined her on the first part of it, she said no, he did not
grab her. He had a knife in his hands. She got no cut
marks. That
is because he opened her legs with his knee. And now there is a
third version that she says he instructed her, she
opened her legs
and then he put his knee in between. So that is why I am asking the
witness why is there three versions before the
court.”
On a number of
occasions, the complainant could not furnish answers during
cross-examination
Page 38 line 24:
“
Now I am asking you, why do you
have three versions before court?
(No audible reply)
Do you have an answer, ma’m?
-- No answer”.
Page 46 line 2:
“
I am putting to you, you testified
in chief that you showed the doctor your vaginal bruises.
--- That is true.
Why then, according to the doctor’s
report, it says that: ‘On gynaecological examination no visible
injuries detected, …’
There was no bruising.
--- (No audible reply)
Maybe
u got no answer.
---
No answer.
Ma’m I’m putting it to you, you
slept with the accused with consent. He did not rape you.
--- It is not true.
And that is the reason why you are
contradicting yourself by your chief and cross-examination testimony.
--- (No audible reply)
---
I do not have an answer”.
[7] It is trite law that
the evidence of a single witness must be clear and satisfactory in
all material respects. See
S
v FLORIS
1962 (1) PH 91 (A), where the court stated as follows:
“
The evidence of one single witness
cannot be accepted if the:
(1) had
an interest or bias to the accused;
(2) has
made a prior inconsistent statement;
(3) contradicts
himself in the witness-box;
(4) has
not had proper opportunities for observations.”
Also see
S
v ARTMAN AND ANOTHER
1968 (3) SA 339
(A), where the court had the following to say:
“
In
accepting the evidence of a single witness all that is required is
that his testimony should be clear and satisfactory in all material
respects. The ultimate requirement is proof beyond reasonable doubt
…”
[8] It is quite clear
that the evidence of the complainant does not satisfy the
requirements laid out in the aforementioned cases.
Although counsel
for the respondent had in his written heads of arguments supported
the court
a
quo’s
finding
with regard to the reliability of the complainant’s evidence as a
single witness, he conceded during his oral argument at
the hearing
that her evidence was not clear and not satisfactory in all material
respects.
[9] I also respectfully
disagree with the court
a
quo’s
finding that the version of the appellant “was not only impossible
or improbable, but it is superfluous”. It would seem that
the
court
a
quo
evaluated
the appellant’s version in isolation and not in the context of the
totality of evidence. I agree with the argument of
counsel for the
appellant to the effect that the
reason
for having sex with another has nothing to do with the fact that such
a person has been given permission for sexual intercourse.
I also do
not understand why the court
a
quo
was
adamant that the score between the appellant and Mpho had long been
settled before the day of the incident, whereas the appellant
had
pointed out that he had only heard about the sexual intercourse
between Mpho and his girlfriend from the complainant right there
at
Manny’s tavern. The score could therefore not have been settled
before that day.
[10] See
S v
KUBEKA
1982 (1) SA 534
(W) 537 where the following was stated:
“
Whether
I subjectively disbelieve him (the accused) is, however, not the
test. I need not even reject the State case in order to acquit
him.
It is not enough that he contradicts other acceptable evidence. I am
bound to acquit him if there exists a reasonable possibility
that his
evidence may be true. Such is the nature of the onus on the State.”
The correct approach in
evaluating evidence was laid out in
S
v CHABALALA
2003
(1) SACR 134
(SCA) as follows:
“
The
correct approach to evaluating evidence is to weigh up all the
elements which point towards the guilt of the accused against all
those which are indicative of his innocence, taking proper account of
inherent strengths and weaknesses, probabilities and improbabilities
on both sides and, having done so, to decide whether the balance
weighs so heavily in favour of the State as to exclude any reasonable
doubt about the accused's guilt.”
See also
S
v V
2000 (1) SASV 453 (SCA) at 455 A – C:
“
It
is trite that there is no obligation upon an accused person, where
the State bears the onus, 'to convince the court'. If his version
is
reasonably possibly true he is entitled to his acquittal even though
his explanation is improbable. A court is not entitled to
convict
unless it is satisfied not only that the explanation is improbable
but that beyond any reasonable doubt it is false.”
See also
S
v M
2002 (2) SACR 411
(A) where the following was said:
“
It is so that taken on its own no
grounds existed for the rejection of the appellant’s evidence but
the right approach was not to
take it in isolation but rather to
examine it in the context of the whole case in order to determine
whether it could stand.”
[11] Considering
uncontroverted evidence to the effect that the taxis ferrying
passengers to Mshenguville were sedans and that the
ones ferrying
passengers to Putsuasteng are minibuses, it is puzzling why the
complainant and his friend boarded the sedan taxi in
the first place,
as they were allegedly headed for Putsuasteng and not Mshenguville.
[12] When one considers
that the complainant was allegedly threatened in broad daylight and
that there were other people in the vicinity
of the taxi rank as well
as in the yards of the houses in the same street as the appellant’s
shack, the complainant’s failure
to scream for help or to run away
from the appellant is rather fishy. What must also be noted is that
if the appellant had forcibly
taken the complainant to his place of
residence in order to rape her, he would surely not have chosen to do
it in the presence of
a possible state witness being Ntswaki, the
complainant’s friend. Thus the probabilities of the case do not
favour the version
of the complainant.
[13] I am therefore
satisfied that the court
a
quo
erred in rejecting the appellant’s evidence as false and not
accepting it as reasonably possibly true. This view was also echoed
by counsel for the respondent during his oral arguments.
[14] I accordingly make
the following order:
1. The appeal against the
conviction and sentence succeeds.
2. Both conviction and
sentence are set aside.
___________________
M.
B. MOLEMELA, AJ
I concur.
_____________
S.
EBRAHIM, J
On behalf of
applicant: Mr. J.D. Reyneke
Instructed by:
Legal Aid
BLOEMFONTEIN
On behalf of respondent:
Instructed by:
Director Public
Prosecutions
BLOEMFONTEIN
/sp