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[2024] ZAECMHC 59
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Majongile v S (CA&R 73/2022) [2024] ZAECMHC 59 (2 July 2024)
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IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MTHATHA)
CA&R 73/2022
In the matter between:
AYANDA
MAJONGILE
Appellant
And
THE
STATE
Respondent
__________________________________________________________________
JUDGMENT
__________________________________________________________________
RUSI J
[1]
A cornerstone of our legal system is the impartial adjudication of
disputes which come before our courts and tribunals. What
the law
requires is not only that a judicial officer must conduct the trial
open-mindedly, impartially and fairly, but that such
conduct must be
manifest to all those who are concerned in the trial and its outcome,
especially the accused.
[1]
[2] The appellant was
arraigned in the Tsolo Regional court on 24 August 2021 on charges of
rape in contravention of section 3 of
Sexual Offences and Related
Matters Amendment Act 23 of 2007 as count 1; assault with intent to
do grievous bodily harm as count
2; and theft in contravention of
section 132 of the Transkei Penal Code, Act 9 of 1983 as count 3. He
was legally represented during
the proceedings in the court
a quo
.
[3] It was indicated by
the prosecutor at the start of the proceedings in the court
a quo
,
that the charge of rape against the appellant fell within the purview
of section 51(2) of the Criminal Law amendment Act, 105
of 1997 which
prescribes various minimum sentences for certain categories of
offences. For the charge of rape, the prescribed minimum
sentence
would be 10 years imprisonment.
[4] The appellant was
acquitted of count 3 but convicted as charged on counts 1 and 2. In
respect of count 1 he was sentenced to
undergo 8 years’
imprisonment while he was sentenced to a period of 12 months’
imprisonment in respect of count 2.
The two sentences were ordered to
run concurrently. Having been refused leave to appeal by the court
a
quo
, the appellant was granted leave to appeal on petition to
this Court.
[5] In this appeal the
appellant challenges his conviction on charges of rape and assault
common based,
inter alia
, on the conduct of the regional
magistrate, Tsolo during the trial proceedings against him. He
asserts that the Magistrate failed
to remain impartial during the
said proceedings, resulting in him not having a fair trial. He also
relies on other grounds of appeal
in attempting to have his
conviction overturned by this Court. Before us, the appellant was
represented by Mr
Matotie
while Mr
Phomolo
appeared on
behalf of the prosecution which is the respondent.
The background facts
[6] These are the facts
on which the appellant’s conviction was founded. On 06 August
2020 the appellant and complaint, Ms
S[...] G[...], agreed to the
appellant’s visit at the complainant’s home in the
evening of that same day to enjoy alcoholic
beverages. At the time
this agreement was made, the appellant and the complainant knew each
other from their locality in Sidwadweni
Locality in the Tsolo
district. They would also visit each other in Johannesburg, Gauteng
Province, where they sojourned while
working at their respective
places of employment in that Province.
[7] Around 20h00 on the
day of the pre-arranged social meeting, the appellant arrived at
complainant’s home. He brought a
bottle of brandy and the
complainant provided fruit juice in turn which they would use to
dilute the brandy. When the appellant
asked the complainant for food
at some stage during his visit, she prepared a meal and served him.
During the course of the night,
the complainant asked the appellant
to leave which request the appellant did not heed and instead told
her that he would sleep
in her house. The appellant raped and stabbed
the complainant during the course of his stay at her home.
[8] The appellant
persisted with denying guilt in respect of all the charges against
him. In respect of the rape and assault charges,
he stated that in as
much as he did visit the complainant in accordance with their
agreement, he was no longer at her home when
the incident took place.
In essence, the appellant contended that the complainant who was
intoxicated at the time of the incident
mistakenly identified him as
her assailant.
The grounds of appeal
[9] Appropriately
paraphrased, the grounds of appeal on which the appellant relies are
that the learned regional magistrate erred
in:
(i)
Descending into the arena thereby resulting in the
appellant not having a fair trial.
(ii)
Finding that the state had proven his guilt beyond
reasonable doubt.
(iii)
Failing to take into account the fact that the
complainant had consumed alcohol on the day of the incident.
(iv)
Failing to take into account the evidence of the
appellant that he had no stab wound in his abdomen whereas the
complainant had
testified that she stabbed him in his abdomen with a
knife in an attempt to escape from him.
(v)
Not taking into account the inconsistency between
the first report of the rape incident that the complainant made, and
her
viva voce
evidence, and the fact that medical evidence in the form of the J88
report did not support her case in relation to rape charge.
(vi)
Failing to exercise caution when dealing with the
complainant’s evidence on the counts of rape and assault common
whereas
she was a single witness.
(vii)
Disregarding evidence which implicated another
suspect besides the appellant and rejecting the evidence of the
appellant and his
witnesses.
[10] I interpose to
mention that the appellant’s heads of argument in this appeal
were filed out of the time frames provided
for in the Uniform Rules
of Court. Condonation was sought by the appellant for their late
filing, and it was granted unopposed
by the respondent.
The evidence in the
court a quo
(a) The complainant
[11] The complainant told
the court
a quo
that she became drowsy at some point after
consuming the alcohol that the appellant brought, hence, she asked
him to leave but
he refused. At some stage during his continued
presence at her home after he told him to leave, the appellant went
to urinate in
the bathroom which was next to her bedroom. When he
finished urinating, he let himself in her bedroom and got on her bed.
This
aroused suspicion in her that ‘the appellant had
ill-intentions’. With this realization she went out to the
students’
quarters situated in the same premises in order to
get help in evacuating the appellant from her house. Three male
students, including
Mr Luzuko Nqeketo lived in these quarters. She
could not get any help as no one answered her knock on the door.
[12] It appeared that the
appellant followed her out of the house, and when he caught up with
her outside where she went to get
help, he ordered her to get back
inside the house demanding that she sleep with him. The appellant had
a knife in his hand as he
ordered her back inside the house. She and
the appellant struggled over the knife resulting in her receiving a
cut in her little
finger. As a result of the cut, her little finger
became deformed and could no longer bend.
[13] She eventually went
back inside the house where the appellant once again wanted to stab
her with the same knife. This time
she grabbed the knife and received
a cut to her middle finger as a result. She was subdued and the
appellant pushed her to her
mother’s bedroom where he further
pushed her to the bed, undressed her and himself. He forced her
thighs apart by scratching
them with the knife and raped her
per
vaginum
without a condom.
[14] While the appellant
had inserted his genitalia in her vagina the complainant asked him to
let her loose as she needed to urinate.
He refused to let her loose
and ordered her to urinate on the bed. She indeed urinated on the bed
and when this happened the appellant
lost his erection. He tried to
revive the erection using his hand, and while he did so she took the
opportunity to dispossess him
of the knife. She delivered a blow with
the knife to the appellant’s abdomen and managed to escape,
running back to the student
quarters where she knocked and was
received by the three male students.
[15] When the three male
students asked her what had happened, she told them that the
appellant raped and stabbed her. Upon hearing
this they went out of
their quarters to look for her assailant who had apparently also gone
out looking for her. None of the male
students were able to enter the
house as they feared that her assailant was still inside and possibly
armed. As they went back
inside their quarters, they saw a male
person leaving the premises through the gate. According to the
complainant, the appellant
stole her two cellular phones and money in
the sum of R950.00. He had spent about 4 hours at her home since his
arrival at 20h00.
The police were called to the scene, and she told
them that the appellant raped her. In turn, the police told her to go
and lay
a charge against her assailant as there was nothing they
could do.
[16] The complainant
denied the appellant’s version that was put to her, that he and
the appellant were in a secrete love
relationship and that the
appellant left her house around 22h00 when he received the news of
death of his relative. According to
her, the appellant left her home
after he raped her. She was hard pressed in cross examination
regarding a contradiction that appeared
in a statement she made to
the police a day after the incident. In her sworn statement it was
recorded that she stabbed the appellant
in his stomach, whereas in
her testimony she told the court
a quo
that she delivered a
knife blow at the appellant and could not say whether he stabbed him
or not. She disavowed this aspect of
her statement stating that that
it is not what she told the police officer who took the statement and
that the police officer wrote
what she said in his own way
(b)
The medico legal report
[17] A medico-legal
report (the J88 report) compiled by Dr Mbombo who examined the
complainant at 11h42 on 07 August 2020 was handed
to court as an
Exhibit without any evidence being led from the examining doctor. The
clinical findings of Dr Mbombo were that the
complainant sustained a
1centimetre laceration on her 3
rd
finger; a superficial
2centimetre laceration on the little finger; and an abrasion on the
palm of her hand. In his gyneacological
examination of the
complainant, Dr Mbombo observed bloody discharge and a blood-stained
cervix. The complainant had no genital
injuries. He concluded that
penetration could not be excluded. Asked to explain why she had
bloody discharge in her cervix, the
complainant told the court
a
quo
that when the rape incident occurred, she was about to
menstruate.
(c) Mr Luzuko Nqeketo
[18] Mr Nqeketo, one of
the three male students who were in the students’ quarters when
the complainant came in during the
night was the only one among his
companions whom the prosecution called to testify. He told the court
that the complainant was
totally naked when she came to their
quarters. He and another male student were fast asleep when the
complainant knocked at the
door, and she was received by Mr Banele
Madevula who was also present in the room. The complainant took a
blazer that was in the
student’s quarters and put it on,
grabbed something and quickly went out. She came back the second time
screaming, and they
realized that something may have happened to her
as she was also bleeding. They asked her what had happened, she could
not answer
as she was ‘furious’ and crying but ultimately
told them that “
there was someone who wanted to rape her
outside and even stabbed her.”
[19] It was Mr Nqeketo’s
evidence further that he witnessed all of this in a state of sleep.
He went on to state that he and
his companions tried calling the
police at that point to no avail. When the complainant indicated that
she needed to use her phones
which she left inside, he went out to
get the phones. He could, however, not enter the house as he heard a
noise of something falling
from inside and realized that the
complainant’s assailant was probably inside the house. He
therefore decided to hide himself
out of fear, and while hiding, he
saw a man exiting the house through the door while simultaneously
putting a lumber jacket on.
This man left the premises through the
gate.
[20] When he told the
complainant that there was someone in the house. The complainant
remarked that “
that gentleman had left his lumber jacket. He
must have come back for it.”
When the police came and
searched the scene, they picked up a knife and put it in exhibit bag.
This concluded the evidence for
the prosecution.
(c) The defence’s
version
[21] After his
application for discharge at the close of the state case was refused,
the appellant gave evidence and called two
witnesses,
viz
, Ms
Likhona Nenemba and Mr Ntobeko Didi who were members of the Community
Police Forum of Sidwadweni at the time of the incident
and to whom a
report was conveyed regarding it. Mr Didi was also the appellant’s
uncle. It is to him that a report was made
by the complainant’s
father.
[22] In his testimony,
the appellant reiterated his version that he had already left the
home of the complainant at the time it
is alleged she was raped. He
further testified that he was present when his uncle, Mr Didi
telephonically received the report of
the alleged rape from the
complainant’s father. It was his evidence in this regard that
after speaking on the phone, Mr Didi
asked him to lift his T-shirt
up. Even though he did not understand at the time why he was to lift
his T-shirt up, he later learned
that the complainant alleged that it
was he who raped her and that she stabbed him in his stomach during
the incident.
[23] The appellant
further told the court
a quo
that the complainant was his
secrete lover but denied raping her. Confronted with an extract from
the record of bail proceedings
in which he stated that he had
consensual sexual intercourse with the complainant, the appellant
disavowed the affidavit in which
such evidence was contained. He
stated that it was an error made by his erstwhile attorney which he
attempted to correct in vain.
He further explained that after he
secured bail, he terminated the mandate of the attorney who presented
his bail application.
[24] Only a portion of
the record of proceedings in those bail proceedings was referred to
by the prosecution during the appellant’s
cross examination. I
must add that we were not furnished with the full record of those
bail proceedings either. Mr
Phomolo
was not able to explain
how it came about that the said portion of the record was not placed
before us.
[25] Ms Nenemba testified
that when the report of the complaint’s rape was brought to her
attention by Mr Didi, the two of
them made their own investigations
based on the allegation that the person who raped the complainant was
stabbed in his stomach.
In essence they would be on the lookout for a
person with a stab wound in the stomach. In course of their
investigation, she came
across a male person known as Nakisa whom she
described as ‘a notoriously troublesome young man in the
community’.
According to her, Nakisa happened to have sustained
a stab wound on his stomach and was later said to have been seen
selling cellular
phones. She and Mr Didi subsequently conveyed this
information to the investigating officer who did not consider it. I
may mention
that the investigating officer of the case was not called
as a witness by the prosecution or the appellant.
[26] Mr Didi testified
that he and the appellant spoke during the morning of 07 August 2020
as a continuation of a conversation
he had with him during the
previous night when he informed him of the passing of his friend.
According to Mr Didi, the appellant
was in a jovial mood when he
phoned him on the night of 06 August 2020, and it seemed like he was
not at home.
[27] He met the appellant
again the next day in the morning and they had a further conversation
about his deceased friend whom the
appellant also knows. Whilst in
the company of the appellant, he received a phone call from the
complainant’s uncle who told
him that the appellant was alleged
to have raped the complainant. The caller further mentioned that a
fight ensued between the
appellant and complainant and the
complainant stabbed the appellant. He then confronted the appellant
with this allegation, and
he denied raping the complainant. The
appellant, however, confirmed that he was at the complainant’s
home when they spoke
on the phone the previous night. He inspected
the appellant’s body in order to ascertain if he had any stab
wound and saw
none.
[28] Since he, the
appellant’s and complainant’s families lived in the same
community and were members of the same church
congregation, he and
the appellant’s father resolved to go to the complainant’s
home in order to ascertain more facts
relating to the alleged rape
incident. On arrival at the complainant’s home, it was indeed
reported that the complainant
had been raped and assaulted by the
appellant and they were shown blood that was on the floor and wall of
the house.
[29] During their
interaction with the complainant, she told them that the appellant
raped her, and she stabbed him with a knife
in his stomach. It was
also mentioned to him by the complainant that even though the police
arrived at the scene, they could not
obtain a statement from her as
she was still drunk from the alcohol she drank together with the
appellant. They left after receiving
this information from the
complainant and her family.
[30] The court
a quo
further heard from Mr Didi that even though on their arrival they saw
police officers investigating the scene of the alleged rape,
their
work inspired no confidence in them due to their alleged failure in
investigating many acts of criminality in their community.
As a
result, it became customary for the Community Police Forum to conduct
investigations and convey to the Police any information
they
gathered. He was also not satisfied with what the complainant told
them as he had inspected the body of the appellant when
he was called
by the complainant’s uncle in order to see if he had been
stabbed since the report was further that the appellant
was stabbed
by the complainant during the rape incident.
[31] As a result, he made
contact with his fellow members of the Community Police Forum with a
view to conducting their own investigation
of the matter. Such
investigations entailed going to the local clinic in order to
establishing if the clinic staff had treated
any person who presented
with a stab wound. He managed to get a hold of Ms Nenemba with whom
he proceeded to the clinic. They did
not get assistance at the clinic
as its staff was busy. He confirmed the interaction between Ms
Nenemba and the young man named
Nakisa whom they met on the way to
the taxi rank, and further confirmed that the information obtained by
Ms Nenemba of Nakisa’s
stabbing was conveyed to the
investigating officer of the case for him to investigate it further.
The findings of the
court a quo
[32] In finding that the
prosecution had proven the appellant’s guilt beyond reasonable
doubt, the learned regional magistrate
reasoned that the complainant
who was a single witness gave evidence which was satisfactory in all
material respects. Dealing with
the submission made on behalf of the
appellant that the complainant’s evidence was contradictory in
that she told Mr Nqeketo
and his companions that the appellant wanted
to rape her, it was the finding of the court
a quo
that this
contradiction was not a material one. He further found that the J88
report confirmed the complainant’s version.
[33] The learned regional
magistrate rejected the evidence of the appellant as being inherently
improbable and untrustworthy. He
made this finding based on the
evidence of the appellant during bail proceedings. Such evidence was
adduced by way of an affidavit,
and in it the appellant purportedly
stated that he and the complainant had consensual sexual intercourse
on the day of the alleged
rape. He also rejected the evidence of two
defence witnesses as having been conjured up in order to save the
appellant from criminal
liability.
Counsel’s
submissions on appeal
[34] Mr
Matotie
highlighted the court
a quo
’s failure to objectively
evaluate the evidence that was presented to it. He further emphasized
the learned regional magistrate’s
descension into the arena by
interrupting cross examination of state witness by the appellant’s
legal representative, and
his lengthy questioning of the appellant
which intimidated him and hindered his presentation of his version.
[35] He further submitted
that it was not without significance that the complainant reported to
Mr Nqeketo and his companions that
the appellant
wanted
to
rape her, yet she testified that she was actually raped. This, he
said, must be considered in light of the fact that the J88
report was
inconclusive regarding the alleged rape, as well as the fact that no
evidence of DNA analysis was adduced. In this regard,
Mr
Matotie
submitted that this had a bearing on whether it could be said that
the complaint as a single witness gave evidence which was
satisfactory
in all material respects.
[36] In any event, so the
submission continued, Mr Nqeketo did not see the identity of the
person who exited the home of the complainant,
and therefore was in
no position to identify him as the person who raped the complainant.
Further according to Mr
Matotie
, the learned regional
magistrate ought to have taken due consideration of the fact that the
investigating officer’s failure
to investigate further
information regarding a possible suspect amounted to an act of
suppressing evidence.
[37] Mr
Phomolo
could not submit without demur that the findings of the court
a
quo
cannot be faulted. He readily conceded that the learned
regional magistrate descended into the arena. In his words, “
the
conduct of the learned regional magistrate was not up to standard.”
Regarding the record of bail proceedings to which the court
a quo
had recourse in concluding that the appellant’s version was
improbable for lack of candour, Mr
Phomolo
acknowledged the
fact that the court
a quo
fell short to the extent that there
was no full record of bail proceedings before it.
[38] It was further
acknowledged by
Mr Phomolo
that the full record of those bail
proceedings would indicate whether during the bail proceedings the
appellant was invited to
confirm the contents of his ostensible
affidavit in support of his application for bail. He further accepted
the omission which
occurred in not placing the said record of bail
proceedings before us.
The law
[39]
Since this appeal engages foremost, the evaluation of evidence by the
court
a
quo
,
suffice it to state that in criminal proceedings, it is the state
which bears the onus of proving its case against the accused
beyond
any reasonable doubt. In
S
v Shackell
[2]
,
the Court said of this principle:
‘
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 on the acceptance of that version. Of course, it is
permissible to test the accused’s version against the inherent
probabilities. But it cannot be rejected merely because it
is
improbable; it can only be rejected on the basis of inherent
probabilities if it can be said to be so improbable that it cannot
reasonably possibly be true.’
[40]
That being the case, a court of appeal will be hesitant to interfere
with the factual findings and evaluation of the evidence
by a trial
court and will only interfere where the trial court materially
misdirected itself insofar as its factual and credibility
findings
are concerned.
[3]
As was held in
S
v Francis
[4]
:
‘
The
powers of a court to interfere with the findings of fact of a trial
court are limited. In the absence of any misdirection the
trial
court’s conclusion, including its acceptance of a witness’s
evidence, is presumed to be correct. In order to
succeed on appeal,
the appellant must therefore convince the court of appeal on adequate
grounds that the trial court was wrong
in accepting the witness’s
evidence a reasonable doubt will not suffice to justify interference
with its findings. Bearing
in mind the advantage which a trial court
has of seeing, hearing and appraising a witness, it is only in
exceptional cases that
the court of appeal will be entitled to
interfere with a trial court’s evaluation of oral testimony.’
[41]
In criminal proceedings where the court convicts an accused on the
evidence of a single witness, it must be satisfied that
such evidence
is satisfactory in all material respects.
[5]
In
S
v Webber
[6]
Rumpff
JA remarked as follows:
‘
The trial judge
will weigh [the witness’s] evidence, will consider its merits
and demerits and, having done so, will decide
whether it is
trustworthy and whether, despite the fact that there are shortcomings
or defects or contradictions in the testimony,
he is satisfied that
the truth has been told. The cautionary rule referred to by De
Villiers JP in 1932 may be a guide to a right
decision but it does
not mean “that the appeal must succeed if any criticism,
however slender, of the witnesses’ evidence
were well founded.’
[42]
With the acceptance of the fact that no given witness could
conceivably give evidence that is without flaws, it has been held
that the exercise of caution in evaluating the evidence of a single
witness should not be allowed to displace common sense. Paramount
in
the court’s evaluation of the evidence of a single witness is
to determine what weight is to be attached to such flaws
or demerits
and what their effect is when viewed in light of the entirety of the
evidence presented at trial.
[7]
[43]
And in
S
v Mkohle
[8]
the
court said of contradictions that appear in a witness’s
evidence:
‘
Contradictions
per se
do
not lead to the rejection of a witness’s evidence. As Nicholas
J, as he then was, observed in
S v
Oosthuizen
, they may simply be
indicative of an error. And ... not every error made by a witness
affects his credibility; in each case the
trier of fact has to make
an evaluation; taking into account such matters as the nature of the
contradictions, their number and
importance, and their bearing on
other parts of the witness' evidence.’ (footnotes omitted)
[44]
Regarding impartiality and independence in adjudicating legal
disputes, a warning was once sounded by the Appellate Division
as it
then was when it said that a judicial officer can only perform his
demanding and socially important duty properly if he also
stands
guard over himself, mindful of his own weaknesses (such as
impatience) and personal views and whims and controls them.’
[9]
[45]
Concerning the right of an accused to a fair trial, it bears
mentioning that it requires fairness to the accused, as well as
fairness to the public as represented by the state. It has to instill
confidence in the criminal justice system with the public,
including
those close to the accused, as well as those distressed by the
audacity and horror of crime, and will be threatened if
a court is
not independent, and does not apply the law impartially.
[10]
In the discussion that follows, I apply these principles to the facts
of the instant appeal.
Discussion
[46] The warning against
impartiality ought to resonate with a judicial officer at all times
when a litigant appears before him
or her. Once a court of law holds
true to this warning, miscarriage of justice will as far as possible
be eschewed. The right to
a fair trial which obtains at every stage
of the proceedings includes the right to cross examine witnesses. In
this regard, section
35(3) of the Constitution of the Republic of
South Africa, 1996 guarantees the accused’s right to adduce and
challenge evidence.
[47] While a judicial
officer is allowed latitude in the course of overseeing proceedings
before her, by
inter alia
, curtailing purposeless cross
examination of witnesses and preventing the leading of irrelevant and
inadmissible evidence, such
a discretion cannot be exercised in a
manner that suppresses the accused’s right to fairness at
different stages of the proceedings.
[48] Granted that the
trial court must in the end arrive at a just decision, a presiding
judicial officer has a discretion to put
additional questions to a
witness in order to elucidate those aspects of a witness’s
evidence which remain obscure at the
end of such a witness’s
testimony. This happens after both adversaries have questioned the
witness. The judicial officer
is also vested with a discretion to
recall any witness including the accused, for re-examination.
[49]
These matters are governed by the
Criminal Procedure Act 51 of 1977
which sets out the circumstances under which these powers can be
exercised by the court, and are further refined, with respect,
in
case law. As held in
Rall
,
a trial judge or magistrate must ensure that ‘justice is done’.
Undue impatience and irritability on the part of a
judicial officer
is inappropriate and undesirable. He or she should conduct the trial
that his or her mindedness, impartiality
and fairness are manifest to
all those who are concerned in the trial and its outcome, especially
the accused.
[11]
[50] Regard being had to
the enormous power that a judicial officer wields and the terrifying
atmosphere of a court setting for
many who are involved in the
litigation, it is necessary that the judicial officer treats those
appearing before him/her with courtesy
and fairness. This will ensure
that the person(s) appearing before the judicial officer, in
particular the accused, is/are not
caused to feel intimidated in the
presentation of their case.
[51] The record of
proceedings in the court
a quo
is replete with instances of
the presiding judicial officer interrupting cross examination of the
complainant by the appellant’s
legal representative. The entire
cross examination of the two state witnesses by the appellant’s
legal representative was
interrupted, frustrated and obstructed by
the presiding judicial officer who regrettably displayed immense
impatience with him.
It would not be practical to reproduce the
entire cross-examination of the two state witnesses without
belabouring this judgment.
Mr
Phomolo
conceded that the
presiding officer did indeed descend into the arena. It is
significant to emphasize that the interference was,
regrettably, on
the material aspects of the complainant’s evidence.
[52]
The purpose of cross examination being to elicit evidence that is
favourable to the litigant and to show a witness’s
untrustworthiness, to curtail it beyond the permissible parameters is
to deny the litigant their important right to a fair trial.
I can do
no better than quote PONNAN JA in
Le
Grange
[12]
when
he said:
‘
Furthermore,
one knows all too well how cross-examination can sometimes appear
protracted and seemingly irrelevant. Impatience,
though, is something
which a judicial officer must, where possible, avoid and in any event
always strictly control. For, it can
impede his perception, blunt his
judgment and create an impression of enmity or prejudice in the
person against whom it is directed,
particularly when such person is
an accused person. It may serve to undermine the proper course of
justice and could lead to a
complete miscarriage of justice. . .’
[53] In the course of his
cross examination of the complainant, the appellant’s legal
representative asked for the court’s
leave to cross examine her
on the statement she made to the police regarding the knife blow that
she delivered at the appellant.
This was after he read its contents
out to her the complainant having disavowed certain of its aspects.
His cross examination on
this aspect too, was interrupted by the
learned regional magistrate.
[54]
I readily accept that the weight which should be given to
discrepancies between a witness’s statement to the police and
his or her
viva
voce
evidence in court is limited and must have regard to the
circumstances in which the statement is given.
[13]
Hence, a witness’s statement to the police should not in all
circumstances be seen as a full and detailed statement of his
or her
evidence regarding a particular matter or incident. By parity of
reasoning, it is therefore not reasonable to fault the
witness in all
circumstances for omissions and minor errors therein.
[55] In the instant
matter, it was an important aspect of the complainant’s
testimony that she stabbed her assailant in the
stomach. The
importance of this fact appeared even when the complainant told her
family the same thing which they in turn conveyed
to Mr Didi, the
appellant’s uncle. Mr Didi must have understood its importance
when immediately after the complainant’s
uncle phoned him, he
asked the appellant to expose his abdomen.
[56] In her
evidence-in-chief the complainant denied that she told the police
officer that she stabbed the appellant with the knife
in his stomach.
This begs the question how the police officer would be that precise
and record that the complainant stabbed the
appellant with the knife
in his stomach. This ought to have signaled to the learned regional
magistrate that the complainant might
not have been honest in her
testimony on this aspect, instead he concluded that the complainant
was too nervous when she narrated
the events to the police officer.
He made this conclusion without any explanation from the complainant
that she was nervous when
she narrated the rape incident to the
police officer who recorded her statement.
[57] It is my finding
that the complainant skillfully avoided committing herself to what
she did exactly when she disarmed her assailant
of the knife. It was
convenient for her to state during cross examination that she was not
sure if she actually stabbed her assailant
or not as he merely
directed a blow at him with the knife.
[58] At the end of the
appellant’s testimony, proceedings were adjourned to the next
day. On this day the learned regional
magistrate indicated that that
he wished to recall the accused for questioning by him. His
questioning of the appellant spans 8
pages of the record. Suffice it
to state, regrettably, that his questioning amounted to rigorous
cross examination of the appellant.
[59] It is disconcerting
to note that the learned regional magistrate tended at some stages to
interrupt the evidence-in-chief of
the defence witness by asking
questions which were not strictly meant to elucidate a particular
point, but clearly to challenge
or pick holes in that specific aspect
of the witness’s evidence-in-chief. More disconcertingly, his
questions to Mr Didi
which span 12 pages of the record further evince
his inclination to rigorously cross-examine the defence witnesses,
and regrettably
a premature and unfair display of his rejection of
the evidence of the said witnesses. This relates to the appellant and
both his
witnesses.
[60]
In
S
v Mabuza
[14]
it was held that the court should not conduct its questioning in such
a manner that its impartiality can be questioned or doubted;
it
should not take part in the case to such an extent that its vision is
clouded by the dust of the arena and is unable to adjudicate
properly
on the issues; it should not intimidate the witness or the
accused so that his or her answers are weakened or his
or her
credibility shaken; and it should conduct the trial in such a way
that its impartiality, its open mindedness, its fairness
and
reasonableness are manifest to all who have an interest in the trial,
in particular the accused.
[61] Apart from the
learned regional magistrate’s interference in the fray, which,
on its own violated the appellant’s
right to a fair trial, I
have serious misgivings about the correctness of his findings on the
facts. What ought to have been clear
in the mind of the presiding
judicial officer in the court
a quo
was that since the
appellant’s defence was that of an
alibi
, it was
important that the applicant’s evidence in identifying him as
the culprit was credible. This is particularly so when
regard is had
to the fact that both the appellant and the complainant had been
consuming alcohol during the night. I further note,
with regret, that
nowhere during the complainant’s testimony did the presiding
judicial officer seek clarity on what the
complainant meant when she
said “
she became drowsy”
particularly because she
denied during cross examination, that she was drunk. It had been her
evidence that she was drinking the
type of alcohol that the appellant
brought for the first time. There was no clarity sought from the
complainant of how much she
consumed of the alcohol that the
appellant brought.
[62] When regard is also
had to the fact that the J88 was inconclusive regarding the act of
vaginal penetration of the complainant,
coupled with the fact that no
evidence of DNA was adduced, it was important that the court
satisfies itself that any inference
it sought to draw from the facts
was the only one that could reasonably be drawn. Another instance of
reasonable doubt with the
case for the prosecution relates to the
results of the examination of the complaint by Dr Mbombo within less
than 24 hours of the
alleged incident of rape.
[63] According to the
complainant, the appellant forced her thighs apart in order to
penetrate her by scratching her on her thighs
with the knife and she
sustained scratches as a result. That being so, the J88 does not
record any such scratches which, in my
view, would be an important
fact which together with others, would give more credence to the
version of the complainant that the
appellant indeed forced himself
on her in the manner she narrated to the court. I mentioned elsewhere
in this judgment that Dr
Mbombo was not called to testify in the
light of the inconclusive nature of his findings.
[64]
Before the court could place any reliance on the complainant’s
evidence as a single witness, it has to be clear and satisfactory
in
every material respect. The discomfort I have with the findings of
the court
a
quo
is that it misunderstood a fundamental aspect of the evidence given
by Mr Nqeketo that when the complainant came to the students’
quarters to report the incident she reported that the appellant
wanted
to rape her
.
[15]
Apart from his regrettable remark that it did no matter whether there
was an attempt to rape the complainant or an actual rape,
it was his
finding that there was a stage when the complainant asked the
appellant to leave the house and she had seen at that
stage that he
wanted to rape her.
[65] Significantly on
this score, from the evidence on record, the learned regional
magistrate ought to have properly considered
whether such evidence
proved attempted rape or rape, or whether any of these offences were
at all established by the evidence.
He did not do so, and in this
regard he materially erred. The complainant’s evidence was
clear that she could not get help
the first time she went to the
student’s quarters. At that time, she had only suspected from
the appellant’s refusal
to leave that he had ‘ill
intentions.’ Her intention at that time was to ask the three
male students to help her chase
the appellant away. It was never her
testimony that the appellant wanted to rape her at that point.
[66] It was neither
ventilated with the complainant what she meant when she said that she
saw that ‘appellant had ill intentions.’
However, when
she ran to the students’ quarters the second time, her evidence
was that the appellant
had raped her
. This is the version
which clearly conflicted with that of Mr Nqeketo who told the court
that when the complaint went to their
quarters (on the second
occasion) she reported that someone
wanted to rape her
.
[67] As mentioned
elsewhere herein, the inconclusive nature of the findings in the J88
report which was compounded by the failure
or neglect of the state to
call Dr Mbombo, coupled with the already highlighted inconsistencies
in the evidence of the complainant,
ought to have cast a cloud of
doubt on the version of the state. I add to this the fact that there
was no evidence of DNA either
in relation to vaginal and buccal swabs
of the complainant and the appellant, respectively, or the blood that
that was on the floor
and wall of the house in which the incident
occurred.
[68] It is my finding
that the learned regional magistrate materially misdirected himself
in his evaluation of evidence and in finding
that the state had
proved its case against the appellant beyond reasonable doubt on the
rape and assault charges.
[69] During closing
arguments, the learned regional magistrate engaged the prosecutor
regarding the appellant’s guilt in respect
of the charge of
theft, well within his discretion to do so. The portion of the record
containing closing arguments made by the
appellant’s legal
representative spans 31 pages of continuously interrupted closing
arguments by the appellant’s legal
representative. The
interruptions went beyond being an engagement of the legal
representative on a particular aspect and turned
into a continuous
dialogue between the presiding judicial officer. The appellant’s
legal representative was frustrated in
rendering closing arguments on
behalf of the appellant.
[70]
It must be emphasized that closing arguments are not only a vital
aspect of trial in an adversarial system such as ours, but
also form
part of an accused’s right to a fair trial. Pickering J, in
S
v Shamatla
[16]
held
that, once it has been established that an accused’s right to a
fair trial under 35(3) has been flouted by the court’s
failing
to give him or her an opportunity to address the court before
judgment, the legal validity of the proceedings has been
destroyed
and the conviction and sentence must be set aside.
[17]
[71] The cumulative
effect of all the aforegoing is that the accused’s right to a
fair trial was vitiated by the manner in
which his trial was
conducted, in particular, by the learned regional magistrate’s
interference in the fray. Not only that,
as I have found, the factual
findings made by him warrant interference by this Court. The result
is that the appeal must succeed.
[72] I would therefore
make the following order:
1.
The appeal is upheld.
2.
The appellant’s conviction on the
charges of rape and assault is accordingly set aside.
3.
The appellant shall be released from
detention forthwith.
L. RUSI
JUDGE OF THE HIGH COURT
I
agree.
Z. NCALO
JUDGE OF THE HIGH COURT
(ACTING)
Appearances
:
Counsel
for the appellant
:
Adv. L Matotie
Instructed
by
G.
Mapena Attorneys
No.
22 Blakeway Street
MTHATHA
Counsel
for the respondent
Adv.
L Phomolo
The
Office of the Director of Public Prosecutions
Mthatha
94
Lower Sissons Street Fort Gale
MTHATHA
Date
heard
:
07 February 2024
Date
delivered
:
02 July 2024
[1]
Le
Grange v The State
[2008] ZASCA 102
;
2009
(1) SACR 125
(SCA), para 14;
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others - Judgment on recusal application
(CCT16/98)
[1999] ZACC 9
;
1999 (4) SA 147
;
1999 (7) BCLR 725
(4 June
1999), para 35.
[2]
2001
(2) SACR 185
(SCA) at 194g –
i;
also
quoted in
Olawale
v S
(165/09)
[2009] ZASCA 121
;
[2010] 1 All SA 451
(SCA) at paragraph
13.
[3]
R
v Dhlumayo and another
1948
(2) SA 677 (A).
[4]
1991
(1) SACR 198
(A) at 198j – 199a.
[5]
R
v Mokoena
1932 OPD 79
at 80;
S
v Sauls
1981(3) SA 172 (A);
[1981] 4 All SA 182
(A) at 185.
[6]
1971
(3) SA 754
(A) at 758; see also S v Stevens
[2005] 1 All SA 1
(SCA),
para 17.
[7]
R v
Bellingham
1955
(2) SA 566
(A) at 569.
[8]
1990
(1) SACR 95
(A) at 98f – g.
[9]
S
v
Sallem
1987
(4) SA 772
(A); see also
Le
Grange
,
footnote 1 supra.
[10]
S
v Jaipal
[2005] ZACC 1
;
2005
(4) SA 581
(CC) para 29 and 31;
S
v Jaipal
(CCT21/04)
[2005] ZACC 1
;
2005 (4) SA 581
(CC);
2005 (5) BCLR 423
(CC);
2005 (1) SACR 215
(CC) (18 February 2005).
[11]
S
v Rall
1982
(1) SA 828
(A) at 831H.
[12]
Footnote
1 supra, at para 18.
[13]
S
v Govender
2006 (1) SACR 322
(ECD) at 324I – 325C and 326C – 327B;
S
v Mafaladiso en andere
2003(1) SACR 583 (SCA).
[14]
1991
(1) SACR 636
(O) at 638 g-i; see also
S v Rall
1982 (1) SA 828
(A) at 831H.
[15]
Emphasis
intended.
[16]
2004
(2) SACR 570
(EC).
[17]
S
v Zingilo
1995
(9) BCLR 1186
(O);
Mbeje
v S
[1996]
2 All SA 304
(N),
S
v Mbeje
1996
(2) SACR 252
(N) at 257e–h);
S
v Mabote
1983
(1) SA 745
(O).