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[2007] ZAWCHC 70
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Lotter v S (A84/2007) [2007] ZAWCHC 70; 2008 (2) SACR 595 (C) (29 November 2007)
17
Reportable
IN THE HIGH COURT OF SOUTH AFRICA
[CAPE
OF GOOD HOPE PROVINCIAL DIVISION]
CASE NO: A84/2007
In
the matter between:
TIMOTHY
LOTTER
Appellant
and
THE
STATE
Respondent
JUDGMENT DELIVERED ON 29
th
NOVEMBER 2007
HJ
ERASMUS, J:
[1] The appellant appeared before the Cape Town Regional
Court on 19
th
November 2003 on a charge of rape, allegedly committed during August
2000. On 8
th
November 2006 the appellant was found guilty and on 12
th
December 2006 he was sentenced to ten years imprisonment.
[2] The appellant appeals to the Court against both the
conviction and the sentence.
[3] The facts can, in broad outline, be briefly stated.
The complainant, who was at school and 16 years old at the time of
the alleged
offence, worked part-time in a steak house in Milnerton.
The appellant was one of the managers at the steak house.
[4] It is common cause that the appellant from time to
time took members of the staff home after work when the restaurant
closed.
It would appear that the restaurant usually closed late at
night if not in the early hours of the morning.
[5] On one such occasion, in August 2000, he once again
took the complainant and other members of staff home. The complainant
says
that he had his dogs (she referred to âpuppiesâ) with him in
the car. After dropping the other members of staff off, the appellant
said that he first wanted to walk his dogs on the beach. At the
beach, the complainant says, she got out of the car and smoked a
cigarette while the appellant let the dogs run loose. The appellant
tried to hug and kiss the complainant, but, she said, she rebuffed
him.
[6] The appellant then said that he would take the
complainant home, but that he first wanted to drop the dogs at his
house. At the
house she said that she would wait in the car but he
insisted that she accompany him inside. He showed her the house and
she sat
down on a bed and waited for the appellant to take her home.
[7] The appellant then started forcing his attention
upon her, put his hand up the back of her top, tried to kiss her,
pushed her
down on the bed and then removed her pants and had
intercourse with her. The complainant said that she did not resist
him physically,
but that she made it very clear that she did not want
to have sexual intercourse with him. She said that when âshe
realized that
it was going to happen, whether I liked it or not, and
obviously thinking of consequences, I asked him then if he is going
to, I
would prefer him to use a condom, which he then put onâ. The
rape alleged by the complainant was not, therefore, accompanied by
violence or threat. It was a matter of the appellant urging his
attention on the complainant with such persistence that in the end
she capitulated.
[8] The complainant said that she was still a virgin
before that night.
[9] The appellant then took her home. She did not tell
her mother (who was very ill at the time) of what had happened. She
told her
best friend about it, two days after the event. Her family
only gained knowledge of what had happened several months later when
they
became concerned about changes in her behaviour.
[10] The matter was reported to the Police and
proceedings against the appellant were set in motion.
[11] The appellant denies al knowledge of the events as
described by the complainant in her evidence.
[12] It would be convenient at the outset to briefly set
out the approach to be adopted in evaluating and weighing the
evidence adduced
by the State and by the defence.
[13] The decided cases dealing with this aspect are
legion. The proper test to be applied in such case was stated by
Nugent J (as
he then was) in
S v Van der
Meyden
1999(1) SACR 447 (W) at 449h-450b.
The following passage from his judgment is cited with approval in
S
v Van Aswegen
2001(2) SACR 97 (SCA) at 101a-e
and in
S v Trainor
2003(1) SACR 35 (SCA) at 40i-41a):
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 all 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.
After citing the passage, Navsa JA in
S
v Trainor, supra
continues (at 41b-c):
A conspectus of all the evidence is required. Evidence
that is reliable should be weighed alongside such evidence as may be
found
to be false. Independently verifiable evidence, if any,
should be weighed to see if it supports any of the evidence tendered.
In considering whether evidence is reliable, the quality of that
evidence must of necessity be evaluated, as must corroborative
evidence, if any. Evidence, of course, must be evaluated against the
onus on any particular issue or in respect of the case in its
entirety. The compartmentalised and fragmented approach of the
magistrate is illogical and wrong.
[14] There are certain considerations which apply
specifically to the evaluation of certain particular parts of the
evidence. These
considerations must, obviously, not be lost sight of
in a conspectus of all the evidence.
[15] The first such consideration is adverted to by the
trial magistrate in her judgment:
If the Court then proceeds and evaluates the evidence,
the Court is obviously in the best position with regards (
sic
)
to evaluating the evidence that was put before the Court because the
Court can actually see the witnesses as they testified.
The learned magistrate points out that when a matter is
taken on appeal or review, the Court of appeal or review only has a
typed
version of the evidence before it. She continues â
However, if you see somebody and you see them talking it
is a lot easier to make a credibility finding and to put the words
and evidence
in perspective.
[16] While there can be no denial of the advantages of
the trial Court which hears the
viva voce
evidence of a witness, a Court of appeal is not bound by the
evaluation of such evidence by the trial Court. In this regard,
Nugent
JA said in
Marx v S
[2005] 4 All SA 267
(SCA) at 326b (par [283]):
I do not think we ought simply to defer to the trial
courtâs findings notwithstanding the care with which they were
arrived at.
This Court has cautioned on more than one occasion, most
recently in
Medscheme Holdings (Pty) Ltd v
Bhamjee
[[2005]
4 All SA 16
(SCA)]
,
against according undue weight to the advantages that are said to be
enjoyed by a trial court, and has said that the demeanour of
a
witness is no substitute for evaluating the content of the evidence,
taking into account the wider probabilities.
As it was put in
Protea Assurance
Ltd v Casey
1970 (2) SA 643
(A) at 648E,
âover-emphasis of the advantages which the trial Court enjoyed is
to be avoided, lest the appellantâs right of appeal
becomes
illusoryâ.
[17] The learned magistrate says that the evidence of
the complainant has âsingle witness qualitiesâ but that she was
not a single
witness. She nevertheless holds that she has to be
âvery, very carefulâ with the complainantâs evidence. The
complainant is,
in fact, the only State witness who was present when
the alleged rape took place. The evidence of the complainantâs
mother fills
in some of the background. The evidence of Ms Dean
relates to the report made to her and is corroborative of nothing
more that that
the complainant made a report to her. The evidence of
the complainantâs sister is in the main hearsay and is not
corroborative
of the evidence of the complainant on any of the
essential issues.
[18] The learned magistrate concludes, after considering
her evidence and the criticism thereof, that she was âvery
favourably impressed
by her demeanourâ and that the criticism of
her evidence was not such as to âin any way damage her
credibilityâ.
[19] The two principal criticisms leveled against the
evidence of the complainant, both at the trial and on appeal before
this Court,
are that her evidence is vague in material respects, and
that the complainantâs statement to the Police contradicted her
evidence
in Court. I need not deal with the criticism that the
complainant did not cry out for help, and that she did not attempt to
run away.
The magistrate rightly rejected the criticism of the
complainant on this score.
[20] In regard to vagueness, the magistrate says that
this âis five years later that the complainant is testifying and
surely one
would not remember all insignificant detailâ. The
vagueness, however, cuts both ways. On the one hand, it cannot be
held against
the witness if after five years a certain degree of
vagueness pervades her evidence. On the other hand, that very
vagueness might
affect the value (reliability) of her evidence, or
parts thereof.
[21] As regards the contradictions between the
complainantâs evidence and her statement to the Police, I am in
agreement with the
findings of the magistrate that, considering the
nature of the alleged contradictions and the circumstances under
which the statement
was made, the contradictions are not such as to
impact in a negative way on the evaluation of her evidence (see in
this regard the
remarks of Olivier JA in
S v
Mafaladiso en Andere
2003(1) SACR 583 (SCA)
at 594d-f).
[22] There are other features of the evidence, which
were not canvassed at the trial nor raised on appeal before us, which
in my view
must be considered in the evaluation of the complainantâs
evidence.
[23] Due to the fact that the alleged rape was reported
to the Police months after the event, no medical evidence was placed
before
the Court. The absence of medical evidence inevitably leaves a
gap in the State case. Thus there is no independent corroboration,
which there could have been had the complainant been examined by a
doctor shortly after the event, of the complainantâs evidence
that
she was a virgin at the time and that she bled profusely after the
event (the complainant said she discarded her underwear which
was
âfull of bloodâ).
[24] The delay in laying a charge had a further effect
on the case. If a charge had been promptly laid, it would have been
possible,
upon a proper investigation and presentation to Court of
the matter, to adduce the evidence of the other employees who were
given
a lift by the appellant on the night in question. By their
evidence it could have been shown, if such had indeed been the case,
that
the complainant was one of the employees in the car, and that
she was left alone in the car with the appellant after the others had
been dropped off. In this way evidence corroborating that of the
complainant could have been placed before the Court.
[25] In the evidence of the State witnesses, and
particularly in that of the complainantâs mother and sister,
reference is made
to behavioural changes in the complainant. The
prosecutor in her questions did her best to link these changes to the
alleged rape,
and so did the complainantâs sister. From the
evidence of the mother, it is clear that changes in the behaviour of
the complainant
were evident before the alleged rape. The mother was
upset because the complainant had started smoking (she was caught
smoking at
school): that she started smoking before the alleged rape
is apparent from the complainantâs own evidence that while the
appellant
walked the dogs on the beach, she smoked a cigarette. It is
clear that she started working as a waitress against her motherâs
wishes.
She did not want to go to church with the family any more.
The mother, who speaks of ârebelliousnessâ on the part of the
complainant,
said that the change in the behaviour of the complainant
may have been due to, what I may term, teenage
Sturm
und Drang
. In this regard, it is of
importance to note that the complainantâs parents belong to a
strict religious order which cultivates
âconservativeâ values:
discipline, church-going, no partying and the like.
[26] The mother was clearly concerned about her
daughterâs work at the steak house: the late hours and (reading
between the lines)
the exposure of the child to conduct and values of
which she disapproved. If the appellant is to be believed, the
complainant attended
parties at his home with other occupants of the
house when he was at work. This is conduct of which the mother would
not have approved.
At some stage there was a breakdown of relations
between the complainant and her mother, and for a short while the
complainant left
the house and moved in with her friend Lizelle Dean.
[27] The complainantâs friend, Lizelle Dean, testified
that a day or two after the alleged rape (there was initially some
confusion
in the mind of Ms Dean about dates) complainant made a
report to her.
[28] The complainant said that she reported to Ms Dean
rather than to her mother because her mother was at the time ill with
cancer
and was receiving chemotherapy. The breakdown in relations
between mother and daughter, and the fact that her rebelliousness and
her work at the steak house (of which her mother disapproved) had led
to an unfortunate sexual experience, cannot, in my view, be
discounted as reasons for the complainant withholding information
from her mother of the events of the night in question.
[29] Ms Dean said that though she could see that the
complainant was upset, she did not at first tell her what was wrong.
The next
day, two days after the event, she told Ms Dean âthat she
wasnât a virgin anymoreâ. On the face of it, this seems a rather
oblique way of reporting a rape; it rather seems like a young girl
telling her best friend of her first sexual experience. In response
to a question in cross-examination whether the complainant had at any
stage told her that she was raped, Ms Dean said that she did
use the
word ârapeâ. When asked when that was, she said:
Just after I said what do you mean? Then she said to me
â when she said to me, well not exactly like it, I said so what are
you
saying, so she said no well, it was forced.
She added
when further questioned:
She said that he done it with her saying no.
[30] Ms Dean further said that the complainant never
complained about the conduct of the appellant towards her at work. In
contrast,
the complainantâs sister, Mrs Haigon, testified that the
complainant âconstantlyâ told her about the way the appellant
treated
the waitresses, and that she referred to him as âa pigâ.
[31] Mrs Haigon said that her mother asked her to speak
to the complainant because she (mother) was concerned about the
complainantâs
behaviour and that the complainant âwants to do
away with herselfâ. When asked what the complainant told her, Mrs
Haigon said:
Yes at that time yes, that she had been assaulted.
While it is not clear what Mrs Haigon meant by the word
âassaultedâ, there is nothing in the evidence of the complainant
that
there had been an assault on her in the sense of an intentional
application for force, either directly or indirectly, to her person.
Mrs Haigon said that the complainant did not
go into any detail about what had happened:
I did ascertain from her that it happened at his home
and that she had been begging him to please take her home and that he
wouldnât
stop badgering her basically and that it had happened at
his place.
[32] In regard to the evidence of the appellant, the
learned magistrate in her judgment says:
He also gave a chronological version insofar as it was
possible for him because he could not limit his version to one
particular night
because according to him it did not happen and
during cross-examination he did not divert in any way from his
version in chief.
If the Court looks at his version in a framework and
superficially, he is basically saying that he is being accused of
something he
did not do. The motive thereof he is not privy to or
the motive therefore he isnât privy to but he says that are two
possibilities.
Apart from
the foregoing, the learned magistrate does not comment further on her
impressions of the appellantâs demeanour.
[33] When asked in examination in chief why the
complainant would âmake up a storyâ against him, the appellant
said:
Most probably â Iâve got no idea but at the point of
time I had â well I have fired her twice.
The topic
was pursued in cross-examination, and when he was asked what would be
the motive for the complainant to come and lie to
the Court, the
appellant referred to problems with his partners and allegations made
against him, and continued:
At that point of time Iâm not sure what their motives
was or would have been or what transpired.
When asked
âwhy would she come and lieâ he said:
Maâam Iâm not sure I cannot answer you directly on
that, like I said Iâm not sure what her motives was and I havenât
seen
him [her?] for years and I would also like to move on with my
life and basically so I cannot answer that â why would she want to
lie about it. Itâs probably to save embarrassment or her step that
sheâs taken or commit follow through or whatever, Iâm not
sure.
[34] The learned magistrate approached the question of
the appellantâs explanation of possible motive on the part of the
complainant
as follows:
Now it is trite law and as Mr Mia argued, it is not for
the accused to in any way prove his innocence or give reasons as to
why a
false charge may be lodged against him but if that person, an
accused do offer possible motives, then obviously those motives that
he offers has to be evaluated to the probability or improbability
thereof and it can at the end of the day impact on the credibility
of
the accused if it is found to be totally farfetched or fabricated.
[35] After considering the motives the appellant
offered, the magistrate concludes that none of them makes âany
sense at allâ.
The magistrate then concludes:
So if I look at the picture as a whole the Stateâs
version, the accused version, the probabilities and the
improbabilities, I am
of the opinion that the accused version does
not present a reasonable possibility and I reject it insofar it
contradicts that of
the State.
[36] The magistrate misdirected herself in considering
the evidence when she laid emphasis upon the fact that the
appellantâs explanation
of the complainantâs motive in laying a
false charge against him is unacceptable. In
S
v Lesito
1996 (2) SACR 682
(O) the accused
said that the dagga found in his house had been planted there by the
Police. He explicitly said that he did not see
the Police planting
the dagga, but that he inferred the planting of the dagga from other
facts. In this regard the Court stated (at
687h-i):
Sou hy pertinent beweer het dat hy so iets sou gesien
het en sou die hof kon bevind dat daardie bewering vals was, dan sou
die afleiding
dat die res van sy getuienis ook vals was, waarskynlik
geregverdig gewees het. Waar slegs bewys word dat
ân
afleiding
wat ân persoon maak verkeerd is,
is daar nie dieselfde ruimte om al sy getuienis as vals te verwerp
nie.
In
Rex v Roga
1935 TPD 101
the magistrate said in his judgment:
The defence put up by accused no 2 was just a total
denial, but she gave no explanation as to why the traps should have
implicated
her if she had nothing whatsoever to do with supplying the
liquor.
In regard
to this statement, Tindall J said (at 102) that the magistrate was
not entitled to expect the appellant to give an explanation
why the
traps should have implicated her if she had nothing to do with the
supplying of the liquor. The learned Judge adds that â
â¦
it is not right to draw any inference adverse to the
appellantâs credibility from the fact that she was not able to
offer any reason
why the traps should have implicated her if she had
nothing whatsoever to do with supplying the liquor.
[37] In
S v Lesito supra
(at
687j-688a) it is emphasised that â
Daar moet ook daarteen gewaak word om sondermeer op ân
beskuldigde ân las te plaas om ân verduideliking te verstrek
waarom ân
getuie namens die Staat sou lieg. Waarom juis moet ân
beskuldigde weet om welke rede ân getuie leuenagtige getuienis teen
hom
lewer? Hy mag dink dat dit om ân bepaalde rede is, terwyl die
getuie om ân geheel en al ander rede ân grief teen ân
beskuldigde
koester.
See also the remarks of Dowling J in
R
v Mtembu
1956 (4) SA 334
(T) at 335H-336B.
[38] The appellant in this case was repeatedly asked why
the complainant would lay false charges against him, and on every
occasion
he said that he does not know but then tried to give
tentative, speculative explanations. The questions were not only
inappropriate,
but the conclusion that because the explanations he
offered do not âmake any sense at allâ, the rest of his evidence
is false,
is not justified. In the circumstances of this case, the
magistrate was not entitled to draw any inference adverse to the
appellantâs
credibility from the fact that he had offered
explanations as to the complainantâs possible motives which she
found unacceptable.
In the circumstances this Court is entitled to
reach its own conclusions on matters of fact and credibility. In this
regard, I need
refer only to the oft-quoted leading case; namely,
Rex
v Dhlumayo and Another
1948 (2) 677 (A).
[39] A conspectus of the totality of the evidence before
the Court reveals a case built upon the evidence of a single witness
whose
credibility was highly rated by the trial magistrate. Yet there
are features, as pointed out above, which cast a shadow of doubt
and
uncertainty over the cogency of the whole. Add to this the simple
denial by the accused of involvement in the events of the evening
in
question, a denial that in the end emerges unscathed, then it cannot
be said that on the evidence before the Court, the guilt
of the
accused has been established beyond reasonable doubt. In the ultimate
result, one is left with the uncomfortable feeling that
the full
story of the events of the evening, whatever that may be, has not
been placed before the Court.
[40] In the result, I would uphold the appeal and set
aside the conviction and the sentence.
HJ ERASMUS,J
I agree.
The appeal is upheld and the conviction and sentence are set aside.
VAN REENEN, J