Matshelane v S [2004] ZAFSHC 4 (12 February 2004)

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[2004] ZAFSHC 4
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Matshelane v S [2004] ZAFSHC 4 (12 February 2004)

IN THE HIGH
COURT OF SOUTH AFRICA
(ORANGE FREE STATE PROVINCIAL DIVISION)
Appeal No.: 430/2002
In
the appeal beteen:
LINGI IRVIN MATSHELANE
Appellant
and
THE STATE
Respondent
___________________________________________________________
CORAM:
CILLIé,
J, MUSI
et
VAN DER MERWE, JJ
___________________________________________________________
HEARD ON:
2
FEBRUARY 2004
___________________________________________________________
JUDGMENT BY:
MUSI,
J
___________________________________________________________
DELIVERED ON:
12
FEBRUARY 2004
___________________________________________________________
[1] I have had the benefit of reading the judgment of my
brother Cillié, J, with whom Van der Merwe, J concurred. I agree
that the
appeal should succeed. But I do so for different reasons.
It must have been apparent during the hearing of the appeal that I
was
somewhat on a different wavelength from the majority and it is
only proper that I state the reasons for my decision.
[2] The issue of whether this is an appeal from the
judgment of the Regional Court or that of Rampai, J is indeed an
interesting one.
Section 52(3)(b) of the Criminal Law Amendment Act
makes it clear that the High Court
“
shall,
after considering the record of the proceedings in the Regional
Court, sentence the accused, and the judgment of the Regional
Court
shall stand for this purpose and be sufficient for the High Court to
pass sentence as contemplated in section 51.”
It is only if the High Court is in doubt whether the
proceedings are in accordance with justice that it may not summarily
proceed
to sentence, in which event it must take certain steps. In
terms of sub-section (e) it is only after it has obtained and
considered
the statement referred to in sub-section (b) that the High
Court would be called upon to confirm the conviction. The sentiment
expressed
by Cillié, J that it may not be necessary for the High
Court to formally confirm the proceedings in a case like this appears
to
be correct. Be that as it may, the issue was not fully canvassed
and it is unnecessary to say anything further about it save to
note
that it is unavoidable that extensive reference will be made to the
judgment of the Regional Court even though we proceeded
on the basis
that it is the judgment of Rampai, J against which it is appealed.
[3] In my view, the findings of the Regional Court that
the complainant was an impressive and credible witness cannot be
faulted.
It is trite law that a Court of Appeal will only interfere
with the credibility findings of a trial court if it is convinced
that
they are clearly wrong. The reasons for this are obvious and
well-known and I need not elaborate. I draw attention to the
following
observations at p.74 line 15 – 25 of the record:
“
Francina Mohokare het ‘n
baie goeie indruk op my gemaak. Ek het ‘n aantekening gemaak ‘n
baie goeie getuie, doodnormale vrou.
Hierdie standpunt is gedeel
deur, dat sy ‘n goeie getuie is, deur beide mnr. Loubser, die
staatsaanklaer, sowel as ook mnr. Potgieter.
Ek het die idée gekry dat sy op
‘n chronologiese wyse aan my die getuienis gelewer het soos wat die
gebeure volgens haar plaasgevind
het. Sy probeer nie weghardloop vir
die feit dat sy laatnag alreeds ‘n paar drankies agter die blad
gehad het nie. Ek kry die
idée dat sy gepoog het om aan die hof te
verduidelik wat gebeur het.”
Then
further at p.75 line 20 – 28:
“
Sy getuig dat sy beskuldigde
nie ken nie. Hy bevestig dit, die aand die eerste keer dat hulle
mekaar ontmoet het, die eerste keer
gemeenskap gehou.
Dit bring my by ‘n baie
belangrike aspek. Hier was duidelik geen motief aan haar kant hoekom
sy beskuldigde wil valslik inkrimineer
nie.
‘
n Verdere aspek wat ons moet
verreken is die feit dat sy ‘n veertigjarige vrou is, al die mans
ter sprake is 25 jaar oud. Die klaagster
maak ‘n goeie indruk op
my.”
[4] In my view these observations are supported by the
evidence on record. The complainant related a straightforward,
chronological
and logical sequence of events and gave details of how
she left the tavern and what happened inside the appellant’s dark
house
up to the following morning. Her conduct shortly after parting
with the appellant is consistent with that of a rape victim. Nor
are
there any inherent improbabilities in her version of what happened
inside the appellant’s house.
[5] There were indeed discrepancies in the evidence of
the report that the complainant made to a friend, Sanna, but these
relate to
Sanna’s own evidence and were not cleared with the
complainant. For example, it is Sanna’s own observation that the
complainant
was full of dust and grass, something that the
complainant never said and which she could have explained if it had
been broached
with her. It must be remembered that the evidence of a
complainant in sexual offences is admitted not for the purpose of
corroboration,
but rather to show consistency. (See
R
v M
1959 (1) SA 352
(A)
).
The second purpose is to negative consent and rebut any suspicion of
fabrication. (See
S v BANANA
2000 (3) SACR 885
(ZSC)
). In my view the
report made to Sanna served the purposes for which it was admitted.
[6] With respect, the suspicion that the complainant may
have been drunk and therefore voluntarily accompanied the appellant
is not
supported by the evidence. If the complainant was that drunk
she certainly would not have been able to give such a detailed
logical
sequence of events. In my view, the appeal must succeed not
because the appellant’s version was reasonably possibly true. I am
of the view that the Magistrate was correct in rejecting his version.
However, in the view that I take of the matter it is unnecessary
to
get into details in this regard.
[7] The difficulty in this case is that the complainant
was a single witness and though a credible witness, I do not agree
with the
court
a quo
that her evidence was satisfactory in all material respects and I do
not think that the test as initially laid down in
R
v MOKOENA
1932 (OPD) 79
has been fully met. There are unsatisfactory aspects in the
complainant’s evidence. Firstly, why visit a shebeen to which she
had never been before alone at that time of night? Why an appointment
with a boyfriend at 10 o’clock at night at a strange place?
And
strangely, the boyfriend does not turn up and nothing is heard of him
thereafter. If he did turn up later what did he do to
find out what
had happened to his girlfriend? Why not call him to confirm the
appointment? Does he in fact exist? And if not,
why will the
complainant fabricate an appointment? These are the questions that
the State evidence should have answered. Then there
is her
reluctance to make a full disclosure of what had happened to Sanna.
These questions generate a feeling of discomfort and
doubt whether
the full truth has been told. Surely the State could have done more
to ensure some corroboration for the complainant
and clear the
doubts.
[8] The real issue, in my view, is sufficiency of
evidence and the cardinal question is whether the evidence on record
was sufficient
to found a conviction. There is doubt in this regard
and the appellant should have been given the benefit thereof. Put
otherwise,
the State has not succeeded in proving its case beyond a
reasonable doubt. On that basis the appeal should succeed.
_____________
H.M. MUSI, J
On behalf of Appellant:
Adv.
E. Marais
Bloemfontein
On behalf of Respondent:
Adv.
A. Bester
instructed
by:
Director:
Public Prosecutions
/scd