Monyane v S [2007] ZAFSHC 115 (20 September 2007)

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[2007] ZAFSHC 115
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Monyane v S [2007] ZAFSHC 115 (20 September 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Appeal
No. : A173/07
In the appeal between:-
SAMUEL
MONYANE
Appellant
versus
THE
STATE
Respondent
CORAM:
RAMPAI, J
et
MOLEMELA, AJ
JUDGMENT:
MOLEMELA, AJ
_____________________________________________________
DELIVERED ON:
20 SEPTEMBER 2007
_____________________________________________________
[1] The appellant was
convicted on the 30
th
November 2006 on one count of rape in the regional court sitting in
Bloemfontein. He was subsequently sentenced to imprisonment
for 7
(seven) years. It is against that conviction and sentence that this
appeal was lodged and argued.
[2] According to the
complainant, in the early hours of New Year’s day, she was alone at
her parental home. She felt unsafe and
decided to go and look for her
cousin at a tavern situated about three houses from her home. As she
was under the age of 18 years,
she could not be allowed into the
tavern. She gave the security guard posted at the tavern a
description of how her cousin was dressed
and requested him to call
her. While she was waiting outside the tavern, the appellant
approached her. He greeted her and then told
her that she was the
kind of person he was looking for. She told him to leave her alone.
He then held her hands and started pulling
her. She screamed and
tried to wriggle free from his grip, but the appellant drew a knife
and threatened to stab her. He then started
pulling her towards a
passage in the street. While they were walking through the passage,
he slapped her in the face, while still
holding the knife in his
other hand. He then continued pulling her until they reached his
place of residence. Upon arrival there,
he unlocked the door of the
house and the two them entered. He then closed the door. He attempted
to undress her but she resisted
by holding onto a chair. He took out
the knife from underneath his trousers belt and scratched her finger
with it. He undressed her
and then undressed himself. He then threw
her onto the bed. She bit him on his right hand. He then raped her
four times. After the
fourth act of rape, the appellant fell asleep.
She could not leave then, as she did not know where he had kept the
key. At 06h00,
realizing that he was fast asleep, she put on her
clothes. She found only one of her shoes. She looked for her other
shoe, but to
no avail. She found the key underneath the sofa and then
left the house quietly and ran home. She found her cousin at her home
and
asked her where her mother was. Her cousin informed her that her
mother had not yet returned from the traditional ceremony. She then
informed her cousin that she was raped. After she had informed her
cousin about the rape, her mother arrived and she informed her
about
the incident.
[3] The appellant’s
version is that the complainant was her girlfriend with effect from
the 16
th
December 2005. On the 31
st
December 2005 he met the complainant by chance at a tavern. The
complainant was uneasy about her brother’s presence there and
suggested that they go to another tavern. He told her that there was
no one at his home and suggested that they should go there.
She
agreed and they both proceeded to his home. Upon arrival at his home
he left the complainant in his room and fetched some food
from the
main house and shared same with the complainant. They then had sex.
At some point he went back to the tavern to buy some
cigarettes,
leaving the complainant in his room. He later went back to his home
and knocked at the door. The complainant opened
the door for him.
They had sex and then slept. In the morning the complainant woke him
up and told him that she was going home.
They parted amicably and
arranged to see each other in the afternoon on the same day. He was
later arrested and informed that the
complainant had laid a charge of
rape against him.
[4] It is clear that the
versions of the appellant and the complainant are diametrically
opposed to each other, the only undisputed
fact being that there was
sexual intercourse that took place between the appellant and the
complainant at the appellant’s place
of residence. The main issue
is whether that sexual intercourse was consensual.
[5[ In
S
v CHABALALA
2003 (1) SACR 134
(SCA) at 139 par 15 Heher AJA described the
correct approach for evaluating evidence as follows:
“
The
correct approach 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.”
[6] In this matter, the
State relied mainly on the evidence of the complainant and she is
thus a single witness insofar as the act
of rape is concerned. With
the exception of medical evidence, corroboration from other witnesses
is only as far as the circumstances
surrounding the rape are
concerned. In
R
v MOKOENA
1932
OPD 79
it was laid down that a conviction can be made on the evidence of a
single witness where the evidence of that single witness is clear
and
satisfactory in every material respect. In
S
v SAULS AND OTHERS
1981 (3) SA 172
(A) it was stated that “an accused may be convicted
of any offence on the single evidence of any competent witness”.
[7] With the approach
laid out in
S
v Chabalala
(
supra
)
in mind, I must now determine whether the complainant’s evidence
was clear and satisfactory in every material respect, bearing
in mind
that her evidence must not be considered in isolation but against the
totality of evidence. In a nutshell, the complaint’s
version is
that the appellant accosted her during the small hours of a quiet
morning, pulled her all the way to his place of residence
even though
she was screaming and resisting and thereafter raped her four times,
during which process she asked him who he was and
he told her his
correct name. It is somewhat odd that a would-be rapist does not take
advantage of the darkness and quietness of
the street by raping his
unknown victim in some dark spot right there, and instead chooses to
risk identification by dragging her
screaming and resisting for about
a kilometer all the way to his own home, then displays aggression
towards her by scratching her
with a knife just before raping her and
then discloses his real name during the process. The narration of the
complainant’s version
was also not satisfactory in that it bore the
following material contradictions:
[7.1] Under
cross-examination, when asked whether there were any people in the
street where the appellant first pulled her away from
the tavern,
given that it was New Year’s Eve and people generally milled
around, she answered in the affirmative. She later stated
that there
were no people either outside the tavern or in the street. When her
cousin was called as a state witness, she testified
that there were
people outside the tavern at the time that she was told that the
complainant was looking for her.
[7.2] The complainant
testified that while the appellant was pulling her towards his home,
she was screaming and resisting, yet when
asked why she did not run
away while the appellant had both hands on the padlock in order to
open it, she stated that she was afraid
to run away as she knew that
he had a knife with him.
[7.3] She initially
testified that the appellant had a knife in his hands when he opened
the padlock. When asked how the appellant
was then able to open the
padlock with one hand, she changed her version to say that he did not
have a knife in his hands. She then
later changed her version again
to say that it was only after they had entered the house that the
appellant pulled out a knife from
somewhere around his waist.
[7.4] She testified that
the appellant raped her four times, getting off her after each act.
When confronted about why she did not
run away after the first act,
she said the appellant took out a knife and scratched her with it.
When confronted about why she did
not run away after the second act
she then testified that the appellant never got off her and laid on
top of her throughout all the
rapes.
[7.5] In her
evidence-in-chief she testified that after the fourth rape act she
found the key to the door under the sofa, unlocked
the door and then
ran home. Under cross-examination she testified that the door was
only on a latch and not locked with a key.
[7.6] In her
evidence-in-chief she testified that before the appellant raped her
for the first time she resisted and even bit his
hand. Under
cross-examination, she testified that she bit the appellant’s cheek
after the first act. When asked whether she bit
the appellant on the
cheek or on the hand, she said that she could not recall.
[8] While it is indeed so
that not every contradiction adversely affects the credibility of a
witness, the importance and materiality
of the contradictions that
accompanied the complainant’s version are significant and cannot be
ignored. See
S
v MKOHLE
1990 (1) SACR 95
(A)
98
f – g.
[9] In my view, the
version of the complainant, when considered against that of the
appellant and the totality of evidence, is a version
that leaves
one’s mind with serious doubt as to whether the complainant was
raped by the appellant. When such serious doubt exists,
the State
cannot be said to have discharged its onus of proving the appellant’s
guilt beyond reasonable doubt.
[10] The other side of
the same coin is to consider whether the appellant’s version is
reasonably possibly true. When one considers
the appellant’s
version in conjunction with the complainant’s version, what
unavoidably bothers one’s mind is: if the parting
was as amicable
as described by the appellant, why would the complainant choose to
hasten home only with one shoe, leaving the other
one at the
appellant’s house? The defence counsel’s speculative argument was
that the complainant’s main focus could have been
to hurry
homewards in order to arrive there before her mother’s return from
the traditional ceremony. This argument is neither
without merit nor
unfathomable under the circumstances. Of cardinal importance is that
the version of an accused person need not
be one that “convinces”
the court. See
S
v V
2000 (1) SACR 453
(SCA) at 455 A – C and
S
v Shackwell
2001 (2) SACR 185
(SCA) at 194 g-i, where the following was stated:
“It is a trite principle that in criminal proceedings the
prosecution must prove
its case beyond reasonable doubt and that a
mere preponderance of probabilities is not enough. Equally trite is
the observation that,
in view of this standard of proof in a criminal
case, a court does not have to be convinced that every detail of an
accused’s version
is true. If the accused’s version is reasonably
possibly true in substance the court must decide the matter in
acceptance of that
version.”
[11] Applying the
approaches mentioned in
S
v Chabalala
(
supra
)
and
S v
Shackwell
(
supra
),
I am satisfied that the court
a
quo
erred in rejecting the appellant’s evidence as false and in
accepting that the State had proven its case beyond reasonable doubt.
[19] I
accordingly make the following order:
1. The
appeal against conviction and sentence succeeds.
2. Both
conviction and sentence are set aside.
___________________
M.
B. MOLEMELA, AJ
I concur.
______________
M.H.
RAMPAI, J
/sp