S v Damane (KAP 91/06) [2007] ZANCHC 14 (2 March 2007)

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[2007] ZANCHC 14
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S v Damane (KAP 91/06) [2007] ZANCHC 14 (2 March 2007)

SAFLII Note:
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personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF SOUTH AFRICA
(Northern Cape Division)
Appeal no: KAP 91/06
On roll : 26/02/ 2007
Date delivered: 2/03/ 2007
In
the appeal of :
TEBOGO ALBERT DAMANE APPELLANT
and
THE STATE RESPONDENT
Coram:
Lacock J
et
Makhafola A J
JUDGMENT
MAKHAFOLA
A J:
The appellant was arraigned before the Regional Court of the
Northern Cape sitting in Kimberley charged with attempted rape of
a
14 year old complainant on 11 June 2005 in a small dark toilet
situated in the premises of the complainant’s home.
The appellant pleaded not guilty. His counsel who represented him
throughout the trial gave the following plea explanation without

making formal admissions.
Vide: Record: Page 5: Lines 5-7
The plea
explanation on record reads as follows:
“
die beskuldigde sal kom getuig dat hy inderdaad betrokke dag
die 11de van Junie 2005 inderdaad by die klaagster se huis gewees
het,
waar sy gaan drink het, die klagster se huis is ‘n sjebeen.
Hy sal getuig dat hy een bier gedrink het en later huis toe gegaan

het dat sy by die huis kom was hy aangeval deur die klaagster se
moeder, deur met ‘n bottel op die agterkop te slaan, sowel as

gesteek op die regterskouer, voor op die regsterskouer en dat sy geen
kennis dra van enige verkragting nie
”.
Vide: Record: Page 4: Lines 19-23
Record: Page 5: Lines 1-4
The appellant was convicted of attempted rape and sentenced to five
(05) years imprisonment in terms of section 276 (1) (i) of
Act 51 of
1977. He now appeals against his conviction only.
The crux of the appeal is how the attempted rape took place and the
identity of the appellant which are challenged as having
not been
proved beyond a reasonable doubt by state for the conviction of the
appellant.
COMMON CAUSE FACTORS
The
following facts are not in dispute.
The complainant’s home operates as a shebeen where beers are sold;
The appellant goes to drink there at least once a week;
On 11 June 2005 the appellant was on the premises where he bought
and drank beer;
Whilst so drinking his beer on 11 June 2005 the appellant was seated
alone away from the rest of the other group which was seated
around
the fire.
I do not intend to repeat the evidence by both the state and the
defence as it is embodied in the record. It will suffice that
I
deal with those portions which are relevant to the appeal.
CASE FOR THE STATE
:
In summary, the state called two witnesses who are sisters namely:
the complainant and her older sister L.. In the main the

complainant’s evidence as spelt out in the record is that the
appellant attempted to rape her in a small dark toilet at the

complainant’s home premises with a cloth stuffed into her mouth
and as a result she was unable to scream. She testified further

that on that day of the incident but prior to the attempted rape she
had seen the appellant drinking his beer seated alone away
from the
other group of drinkers who were seated next to a fire. She also
described the clothes which the appellant was wearing
on the day in
question.
L. as the person who had sold a beer to the appellant on the day in
question, also testified about the clothes the appellant
was
wearing. When she met the complainant at the toilet she was crying
and she related to her the whole episode inside the toilet.
L.
confirmed having been told by the complainant what she alleged the
appellant had done to her.
CASE FOR THE APPELLANT
The appellant testified in his own defence and denied having seen
the complainant on 11 June 2005. he testified that he bought
a
bottle of beer from L.. He was seated alone apart from the other
group of people who were seated at the fire. He denied having
gone
to the toilet at all. He conceded to have been wearing the clothes
described by the state witnesses except that he was
wearing khakhi
pants and not a pair of jeans. After he had finished drinking he
returned the empty bottle of beer and glass
to L. and left the
premises.
IDENTITY:
The focal point of this appeal pivots on the question of identity.
I now turn to deal with it. The testimony relating to a
person’s
identity has been accepted by our courts as direct or
circumstantial. The courts have warned upon the dangers of
relying
upon the identification of a single witness.
Vide: R v T 1958(2) S A 676(A) @681
S
v Mlati 1984(4) S A 629 (A) @ 633 A-C
In
casu
,
both state witnesses have seen the
appellant a few times prior to the alleged incident. The appellant
has also seen them prior
to the incident.
Vide: Record: Page 20: Lines 15-18 (by complainant)
Record: Page 44: Lines 22-23(by L.)
Record: Page 45: Lines 1-7 (by L.)
Record: Page 45: Lines 18-20 (by L.)
Record: Page 49: Lines 19-20 (by L.)
R
v Dladla
1962 (1) S A 307
(A) @310
The state witnesses tendered direct evidence of identity of having
seen the appellant seated under the shelter alone and apart
from
those who sat at the fire.
Vide: Record: Page 8: Lines 7-11 (by complainant)
Record: Page 45: Lines 18-20 (by L.)
Record: Page 46: Lines 1-6 (by L.)
The appellant on his own version confirms having been seated alone
and away from the group at the fire drinking his beer. He
says “
Ek
het daar buite gesit daar was ook mense wat daar om the vuur gesit
het maar ek het net so ‘n bietjie agter hulle gesit en
die bier
gedrink.”
Vide: Record: Page 72: Lines 5-7
CORROBORATION
The trial court has found that the complainant’s evidence on the
presence of the appellant at her home premises and how he
was
dressed and seated at the time he drank his beer was corroborated by
L.. What was done to her as related to L. and later
in Court was
also told to the court by L. as corroboration. The trial court was
further satisfied about the evidence as to the
identity of the
appellant.
If we take into account that there is a rule against
self-corroboration then it can be accepted that corroboration is
independent
evidence that goes to confirm the testimony of a
witness. Our law and practice does not require that a child be
corroborated
either in criminal or,
a fortiori
, in
civil cases.
Vide: R v Manda 1951(3) S A 158 (A)
Woji v Sanlam Insurance Co LTD 1981(1) S A 1020 (A) @ 1027 H
-
28 A
In
casu
,
the trial court was not concerned with
a trial where a very young child was involved. I am also mindful
that substantial confirmation
and cautionary rule is usually
required where very young children are involved.
Vide: R v Bell
1929 CPD 478
R v J 1958(3) S A 699 (SR)
COURT AQUO
There is no indication in the record that the trial court has
omitted to consider or misconstrued some relevant facts before
it
came to the conclusion to find the appellant guilty. After all “
no
judgment can ever be perfect and all embrasing”.
Vide: R v Dhlumayo and Another
1948 (2) S A 677
(AD) @ page
702, 706
S v Pillay 1977(4) S A 531 [AD] @ 535 A-B
EVALUATION
The complainant fared fairly well under cross-examination without
any material discrepancies with her evidence – in – chief.
From
the record, keeping in mind that the trial court was dealing with a
14 year old female, the manner in which evidence was
tendered was
not surprising. In the circumstances her manner of testifying in
chief and under cross-examination was satisfactory.
L.’s evidence cannot escape criticism. She is 16 years old and is
doing grade 10 at school. She was testifying at times without

certainty especially when she was confronted by the defence about
the appellant answering when she knocked at the toilet. She
also
contradicted the complainant about the exact words allegedly uttered
by the appellant inside the toilet. But the said contradictions
are
not material to the extent of vitiating the guilty finding by the
trial court.
The appellant’s evidence on the other hand was short. Except for
admitting his presence at the complainant’s home he had
denied and
challenged any evidence by the state that implicated him. After all
was done and said, the trial court accepted the
state case and the
corroboration of the state witnesses and concluded that the
appellant was lying.
His defence fell short to the overwhelming state evidence against
him.
Gleaned from the record it is clear that when the alleged attempt to
rape occurred, only the complainant and the appellant were
inside
the dark small toilet. This evidence borders on the single witness
principle which is catered for by the Act.
Vide: Section 208 of Act 51 of 1977.
ARGUMENTS:
Amongst other aspects, the appellant’s counsel put up a vigorous
argument relating to the complainant’s ability to identify
the
appellant inside the small dark toilet. He also attacked the fact
that instead of the complainant clutching her pants she
should have
attempted to remove the cloth in her mouth as expected because that
was life threatening. But he had difficulties
when confronted with
the fact, from the court, that there was no evidence to suggest that
the cloth in her mouth posed a threat
to her life.
Vide: Rex v Ndhlovu
(1945, AD 369
@ 386).
Where it is stated that
“the jury should not speculate on
possible existence of matters upon which there is no evidence or the
existence of which cannot
reasonably be inferred from the evidence.”
On the other hand the respondent stuck to its position as contained
in its heads of argument that identity was proved.
In the circumstances I am of the view that the conviction is
correct and should not be interfered with.
I
conclude by proposing that the appeal should be dismissed.
______________
MAKHAFOLA
K
Acting Judge of the High Court
Northern Cape Division
I agree
and it is so ordered.
________________________
LACOCK
H
Judge
of the High Court
Northern
Cape Division
On behalf of the Appellant : Advocate V Mayisela
Instructed
by : Legal Aid Board, Kimberley
On behalf
of the Respondent: Advocate Louw
Instructed
by : Office of the D P P, Kimberley.