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2024
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[2024] ZAFSHC 243
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Blom v S (A89/2023) [2024] ZAFSHC 243 (12 August 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges:
YES/NO
Circulate
to Magistrates: YES/NO
Case
number: A89/2023
In
the appeal of:
STEPHANUS
DANIEL BLOM
Appellant
and
THE
STATE
Respondent
CORAM:
VAN ZYL, J
et
LOUBSER,
J
JUDGMENT
BY:
VAN
ZYL, J
HEARD
ON:
12 FEBRUARY
2024
DELIVERED
ON:
12
AUGUST 2024
[1]
The appellant was charged with and convicted of rape in the Regional
Court sitting in Bloemfontein (“the
court
a quo
”).
The court
a quo
found that the appellant contravened
Section 3
of the
Criminal Law (Sexual Offences and Related Matters) Amendment
Act, 32 of 2007
, read with
Section 51(1)
and
Part 1
, Schedule 2 of
the
Criminal Law Amendment Act, 105 of 1997
, as amended.
[2]
He was sentenced to 20 years` imprisonment and, in terms of
Section
103(1)
of the
Firearms Control Act, 60 of 2000
, automatically
declared unfit to possess a firearm.
[3]
The appeal is directed against both the conviction and the sentence,
with the leave of the court
a quo.
[4]
The appellant is currently on bail.
[5]
The said charge of rape as set down in the (amended) charge sheet
entailed the following:
“
IN
THAT on or about during 2011 to 2015 and at or near Bloemfontein and
within the Regional Division of the Free State, the said
accused did
unlawfully and intentionally commit an act of sexual penetration with
the complainant to wit, A[…] v[…]
d[…] W[…]
(adult) by: inserting his penis into her vagina (more than
once) without the consent of the said
complainant and thus raped
her.”
[6]
The appellant enjoyed legal representation throughout the trial in
the court
a quo
. Since I will be quoting from the record
of the proceedings in the court
a quo
, I deem it necessary for
the sake of clarity to note that initially the late Mr Terry Price SC
appeared on behalf of the appellant
in the court
a quo
.
References to his surname will therefore appear on extracts from the
record. After his untimely passing, Mr Van Breda appeared
on behalf
of the appellant as from the application in terms of section 174 of
the Criminal Procedure Act, 51 of 1997 (“the
Act”), up to
the point of the sentencing proceedings. From there onwards till
presently the appellant has been represented
by Mr Liddell,
instructed by Mr Van Breda of Changfoot Van Breda Inc. The State is
being represented in this appeal by Ms Mkhabela,
instructed by The
Director: Public Prosecutions, Bloemfontein.
AD
CONVICTION:
[7]
I deem it necessary to record that the words “
molested
”
and “
molestation
” as used in this judgment, is not
meant to be a technical correct description of some of the alleged
acts performed by the
appellant on the complainant. I am well aware
that digital vaginal penetration without the consent of a complainant
also constitutes
an act of sexual penetration for purposes of rape. I
am merely using the terms “
molested
” and
“
molestation
” since the said terms were used
during the trial in the court
a quo.
The
Notice of Appeal:
[8]
The appellant`s Notice of Appeal was filed late. The appellant duly
filed an application for condonation wherein
the said late filing of
the Notice of Appeal was duly explained.
[9]
The State had no objection to the granting of the condonation.
[10]
We consequently granted condonation for the late filing of the Notice
of Appeal at the commencement of the hearing of
the appeal.
[11]
The Notice of Appeal is very detailed and comprehensive. The part
thereof on the conviction alone comprises 35 pages.
I therefore do
not intend repeating same herein. We have, however, duly considered
the contents thereof and will consider the appeal
on the grounds as
contained therein.
The
appellant’s Plea and Plea Explanation:
[12]
The appellant pleaded not guilty to the charge of rape.
[13]
A lengthy and detailed Plea Explanation on behalf of the appellant
was handed in as exhibit “B”. I
deem it necessary
to repeat the contents thereof herein.
[14]
The appellant stated therein that during or about 1998, Blom
Transport Services, of which he was the sole proprietor,
employed Ms
M[...] v[...] d[...] M[...] as a bookkeeper of the business on a
part-time basis.
[15]
It is common cause that Ms M[…] v[…] d[…] M[…]
is the mother of Ms A[…] v[...] d[...]
M[…] (“the
complainant”). The complainant was born in 1989. It is
also common cause that the complainant
and Ms v[...] d[...] M[...],
as well as the appellant, lived at the time in Fort Beaufort, which
is a small town in the Eastern
Cape.
[16]
In his said Plea Explanation, the appellant stated further as
follows:
“
9.
In the years 2005 to 2013 M[...] v[...] d[...] M[...], my bookkeeper,
stole approximately
an excess of R1 000 000.00 from my
business. When we discovered it, we opened charges against her
of fraud and
theft and that matter is at present the subject of a
criminal trial in the Regional Court in East London.
10.
I have known the complainant in this matter from more or less 1998
when she would have been
8 or 9 years old. I knew her, by and
large, through the fact that her mother worked for me for a period of
time.
11.
During this time, I, once a month, would drive one of my trucks to
Bloemfontein to deliver
goods. I always had someone with me in
the 10-ton truck, but on other occasions my own driver [Master Somi]
would drive and
he too would have someone present with him at all
times.
12.
I point out that the assistant that always rode with me was Mzwandile
Roxa, who is still
with me, as is Master Somi. I am ready,
willing and able to call these two gentlemen as witnesses should it
be necessary.
13.
During some of these trips, my employee, M[...] v[...] d[...] M[...],
would ask met to take
goods up to her daughter in Bloemfontein whilst
she was studying at the University of the Free State (UFS). I
would usually
deliver these goods in a place near or in Curry (
sic
)
Street, Bloemfontein, where she would either come and fetch it
herself or, where equipment that had to be delivered (such as a
television cabinet) was carried into her apartment by myself and Mr
Roxa. I never went into her apartment alone at any point
in
time.
14.
At that time, we travelled once per month to Bloemfontein to deliver
these goods (excluding
December). So, in the year 2011 (when
these charges were allegedly committed) I would have gone up to
Bloemfontein on approximately
11 occasions, but as I have stated
above, always in the company of Mr Roxa. Never at any point in
time was I alone with the
complainant when delivering the goods that
her mother gave to me to deliver to her.
15.
As I have pointed out above, we discovered that M[...] v[...] d[...]
M[...], the mother
of the complainant was stealing and we commenced
an investigation. We requested a bookkeeper to assist us with
the investigation
and obtained the services of our attorney on 27
February 2014. The investigation took a considerable period in
time.
A case was opened with the South African Police
Services. Up until then, there were no complaints that I am
aware of regarding
anything that I had allegedly done to the
complainant and/or her mother, although there was a wild allegation
at some point in
time that I was the mother’s boyfriend.
I emphatically deny that and state that I am happily married and have
been
so for 36 years.
16.
It came as a massive shock to me when I was informed that A[...]
v[...] d[...] M[...] had
opened charges against me alleging that I
sexually molested her and even alleging that I had raped her.
Before I proceed
to elaborate on these charges, I state immediately
and emphatically that it is not true and those are flagrant and quite
honestly,
defamatory lies.
17.
In the meantime, she obtained,
ex parte
, a Protection Order
against me. All my firearms were taken, but later returned to
me when she did not attend Court on the
return date.
18.
A docket was also opened by the complainant, Fort Beaufort
CAS52/5/2019, wherein it is alleged
that I molested her whilst we
were in Fort Beaufort (on her own version this is some 8 years after
the charges herein).
19.
It is important for me to draw this Court’s attention to the
fact that the Senior
Public Prosecutor in Grahamstown considered the
matter and decided to
nolle prosequi
the docket. I have
not heard anything about the matter since.
20.
I then learned that she had also opened allegations of rape and
indecent assault against
me and that these had been opened at
Bainsvlei under CAS 18/4/2019.
21.
Herein she alleges that I had sexual intercourse with her, it would
appear, on her version
on a number of occasions in the year 2011 and
that this had happened in her apartment.
22.
She, on her own version, first told her mother about the allegations
in December 2017:
22.1
This is 20 years after the first allegation;
22.2
Both her mother and she did nothing further until April 2019 (almost
two years later).
23.
The only occasion that I ever slept in her apartment (at this point
in time I cannot even
remember where the apartment was) was when, at
her and her mother’s request, I used my transport company to
move all her
goods from the hostel at UFS to the apartment. I
however point out that her mother also slept in that apartment that
night.
On no other occasion have I ever slept at that
apartment. I always stay with my brother-in-law, Coenraad du
Preez, who lives
in Bloemfontein. That is the only place that I
sleepover when I go to Bloemfontein. Coenraad will confirm this
under
oath, if necessary.
24.
I notice however, that the same statement that A[...] v[...] d[...]
M[...] relied on in
the Fort Beaufort-case, which suffered the
ignominy of a
nolle prosequi
certificate, was used word for
word in the Bainsvlei case.
25.
It has also come to my attention that whilst she was working at UFS,
she opened false charges
of sexual molestation against a lecturer,
which of course went nowhere and which did not proceed in the
courts. In fact,
I was informed that she was suspended from the
University.
26.
At one point in time, it came to my attention that Aneka was having
an extra-marital affair
with a married man, who came all the way from
Bloemfontein to Fort Beaufort from time to time to continue with this
extra-marital
relationship.
27.
I have no doubt whatsoever and I will lead evidence, if necessary,
that these charges were
opened by A[...] v[...] d[...] M[...] as a
result of us opening charges against her mother and in circumstances
where her mother
is facing long-term imprisonment if she is convicted
of these charges.
28.
I emphatically deny the allegations against me.
29.
I have been a businessman with my own very successful business for
many-many years.
I am happily married to my wife and we have a
married daughter and a 9-month old grandson, whilst my son is also a
successful businessman,
who is also married and living in Fort
Beaufort.”
The
complainant’s evidence in chief:
[17]
The complainant testified that she obtained her Bachelor’s
degree in psychology at the University of the Free State
(“UFS”)
in 2015. She commenced her studies in 2008 when she was 18
years old.
[18
According to the complainant, Ms V[...] d[...] M[...] (‘the
complainant`s mother) and the appellant were involved
in an
extra-marital affair which started when she was 6 years old and ended
in 2015.
[19]
At the time the appellant would come to their house almost twice a
day, but he never slept over.
[20]
While the complainant was residing in Vergeet-My-Nie hostel at UFS,
the complainant would travel to Bloemfontein with
a truck and he
would bring her a parcel from her mother. She would normally
meet him close to Andries Pretorius Street, Bloemfontein
where she
would get her parcel and he would “
normally either rape me
or sodomise me
”. The appellant normally phoned her
when he was at Reddersburg to inform her that he is nearby and that
she should
drive to meet up with him.
[21]
She normally drove with her own vehicle to meet the appellant, but on
a particular evening she did not have her own vehicle
and her
boyfriend took her to the meeting place. She was dressed in
long sleeved pyjamas with a Vergeet-My-Nie long-sleeved
jacket over
her pyjamas. When they stopped at the truck, she got out of her
boyfriend’s vehicle, while her boyfriend
remained in the
vehicle, parked in front of the truck, after which she approached the
truck. When asked whether she has previously
been inside the
cab of the truck, she confirmed same. She described that it had
two seats in front, with a gearbox in the
middle between the two
seats and a bed at the back of the two seats. She greeted the
appellant who at the time, was at the
back behind the two seats, by
the bed. The appellant told her that she should get into the
cab of the truck as he had a parcel
for her. She got into the
truck’s cab via the driver’s door. After she
entered the truck, the appellant
turned her around, threw her on the
bed and pulled off her pants. She said “
no”
and
that he should stop. He, however, proceeded and shoved his fingers up
her vagina.
[22]
When the appellant “
finished
”, she got dressed,
took her parcel and left the truck. She got into the car with her
boyfriend and they left. She did
not inform her boyfriend what
just happened to her, as she was ashamed and scared that nobody would
believe her.
[23]
The prosecutor enquired from the complainant whether there were any
other occasions where an alleged rape had occurred.
She then
testified about a second incident which, according to her, occurred
during 2009. The complainant travelled through
Bloemfontein to
Johannesburg and on his way back, her mother instructed her to get
him some food and take it to him. According
to the complainant,
it was her duty to take care of the appellant while he was on the
road, by taking him food, money and clothing
on instructions of her
mother.
[24]
On this occasion she met the appellant at the place which the record
reflects to be “Senbes”, but which probably
refers to
“Senwes”, where the appellant had to fill the truck with
diesel. She was wearing jeans with a hoodie.
It was roughly
just before 19h00.
[25]
The appellant again instructed her to get into the cab of the truck.
He ate his meal and thereafter he took her
to the back of the seats
to the bed and pulled off her jeans. She said “
no”
,
but he continued to pull off her jeans and also his pants and
underpants. He then proceeded to shove his penis into her
vagina. Afterwards he took a washcloth, wiped off his penis and
took toilet paper which he placed onto her private part.
Thereafter,
she got dressed, went back to the hostel and took a shower.
[26]
According to the complainant, she did not anticipate that the
appellant would have sexual intercourse with her when she
took him
food or attended to him otherwise as may be instructed by her
mother.
[27]
Again she told nobody, since she was ashamed and was scared that
nobody would believe her.
[28]
The complainant reiterated that she was certain that this incident
occurred during 2009 and whilst she was still staying
at
Vergeet-My-Nie hostel.
[29]
The following incident which the complainant testified about,
occurred, according to her, in 2011 after she moved out
of
Vergeet-My-Nie into a townhouse complex, called Meerlust, which she
shared with one Ms G[…]. The unit had two bedrooms.
[30]
The complainant testified that it was the norm for the appellant to
sleep over at her apartment when he travelled to
Bloemfontein. Her
mother bought a mattress for this purpose for him to sleep on the
floor.
[31]
She testified that the appellant raped her on her bed. When he
penetrated her with his penis, she looked away and
said “
no
”.
He, however, just continued. That particular evening when this
incident occurred, Ms Greeff was at her sister’s
house. When
asked what happened after this particular rape, she testified that he
put his shirt between his teeth so as not to
dirty or wet his shirt,
where after he went to the bathroom and wiped his penis. He
then again took toilet paper and put
it onto her private part.
Thereafter he took a bath and put powder on his genital area and
under his arms, after which she
complained that the bathroom was full
of powder.
[32]
The appellant then slept on the mattress which was next to her bed in
her room on the floor.
[33]
The next incident the complainant testified about, she explained that
she could not recall the year, but that it occurred
at Bains Game
Lodge Oakleaves complex, where she was staying at the time after she
and Ms G[…] had a disagreement and she
moved out of Meerlust
complex. On this occasion, the appellant’s
brother-in-law, Mr Coen du Preez, assisted her in
transporting her
goods.
[34]
In respect of this incident, she met the appellant “
somewhere
”
to fetch him from the truck and they drove to where she was staying.
He then raped her again by penetrating her vagina
with his penis.
She would always say “
no
” and then turn her head
away from him.
[35]
When asked whether there was any conversation between herself and the
appellant on their way to Bains Game Lodge, she
testified that whilst
driving he would “
sometimes
” take his fingers and
put them into her vagina whilst she was driving and fully clothed.
[36]
Those were the incidents which the complainant could specifically
recall, although she testified that there were also
other incidents
when he raped her, but which she could not recall.
[37]
The complainant confirmed that when the appellant travelled to
Bloemfontein he would, at times, be accompanied by his
assistant,
named Zwandile Roxa.
[38]
Although she testified that she cannot remember the exact year when
she moved out of Bains Game Lodge, she estimated
it to have been
2015/2016. At that stage her mother moved to Bloemfontein and
they decided to get a bigger place. As
from 2015 she was aware
that the appellant and her mother were no longer involved in a
relationship. She further testified
that the incidents of rape
and/or molestation ended in 2015.
[39]
The complainant testified that she came from a very poor house which
resulted in her being removed from classes every
month because her
school fees were not paid. Their lifestyle changed for the
better when the appellant came into the picture.
[40]
The first person that the complainant told about the aforesaid
allegations of molestation and rape was her boyfriend,
who at the
time of testifying in this matter, had since become her husband.
[41]
During or about December 2017 she also told her mother, although she
could not recall the exact date. She explained
that she felt
that it became too much for her to carry alone and her psychologist
also recommended that she should tell her mother.
She told her
mother “
Oom Danie het my gemolesteer en verkrag
”,
with reference to the appellant. Her mother was very shocked,
cried and almost fainted.
[42]
The complainant reported the allegations of molestation or rape to
the police at Bainsvlei Police Station, Bloemfontein,
during 2019,
after the birth of her son.
[43]
From about June 2017 until about 2018, the complainant consulted a
psychologist, Ms Visagie, because she started wetting
her bed and
were having nightmares. Ms Visagie, however, refused to come to
court, where after Ms Visagie referred her to
a different
psychologist, Mr Cooper.
[44]
The complainant also testified, which is common cause, that during
2019 she applied for a Protection Order against the
appellant in
Bloemfontein. According to her she was afraid that he would hurt her
after she had reported the rape case to the police.
According
to her the appellant had become very angry in the past and she was
afraid that he may take that anger out on her, especially
since he
has firearms as well. She further testified that the Protection Order
had “
lapsed
”, as she was not informed that she had
to be at court.
[45]
The complainant also testified that she had laid a criminal charge
against the appellant in Fort Beaufort, but that it
had been “
thrown
out
”.
[46]
When asked at what age “
the alleged rape or molestation
started
”, she testified at 7 years old.
[47]
The complainant also confirmed that she reported a sexual molestation
case against a lecturer at the UFS at a time when
she was working as
the Marketing Manager, but that they did not want her to be working
in the same department as him while the
investigation was pending and
she was consequently suspended. She eventually resigned.
According to her nothing happened
to the person whom she accused of
molesting her.
Sworn
declaration and police statement:
[48]
I deem it apposite for purposes of a proper consideration of all the
evidence, that the contents of the aforesaid two
documents, at this
stage, be set out herein.
[49]
For purposes of exhibit “C”, the Protection Order which
the complaint obtained on 9 April 2019, she deposed
to a sworn
declaration which was commissioned on 8 April 2019. In the said sworn
declaration, she stated as follows:
“
From
1997 to 2015 Mr Blom repeatedly molested me, this escalated to rape.
I
never gave him permission to do so.
On
numerous occasions Mr Blom threatened me by reminding me that he
carries a firearm and that his police training is very handy.
My
fear is that he will threaten/harm myself, my child and family.
He
has family that is currently active serving in SAPS in Bloemfontein.
I fear that he will use his connections.
Mr
Blom has many firearms, as well as his wife. I kindly request that
these be removed from him. Mr Blom’s wife has
phoned my
husband pretending to be a Hawk’s member, further harassing me
and my family.
I
fear that he or someone he asks hurts me as I have laid a formal
charge against him.”
[50]
The complainant`s police statement, exhibit “D”, an
affidavit commissioned on 3 April 2019 at 14h00, was
deposed to by
the complainant in support of the formal complaint she laid against
the appellant.
[51]
In the said police statement the complainant states that she was plus
minus 7 years old in 1997 doing Grade 1 when the
appellant, who she
refers to as her mother’s boyfriend, entered her bedroom and
touched her private parts by putting his
fingers into her vagina.
She did not tell her mother because he told her not to tell anyone.
According to the complainant
this did not happen only once. He
would come to their house, especially when he knew it was her bathing
time and then touched
her nipples “
and touch me
”.
She stated that it happened continuously.
[52]
She also stated that in 2007 when she was 18 years old, her mother
sent her to the house of the appellant, where he raped
her in his
son’s bedroom on the bed by penetrating her vagina with his
penis. According to her that was the first time
he penetrated
her with his penis. She further stated as follows:
“
I
was crying and he reminded me that I am not allowed to do anything
and told me he has a gun.”
[53]
She also stated in her police statement as follows:
“
8.
“
In
2011, I was a student at UOFS Bloemfontein and I was staying at No.
[…] Meerlust Complex, Universitas and Stephanus came
to my
place and he will spend the whole night at my place,
sleeping
with me in my bed
and this did not happen
once, sometimes he will come
once a week
or once a month, it will only depend when he had to come to
Bloemfontein for business. (My emphasis)
9.
It
kept on happening even when I was staying at No. 3[…] O[…],
Bains Game Lodge, in 2012 until 2015.
10.
In
2017 December, I told my mother the
whole story
, I was already
seeing the therapist, and I cut all contacts with him.” (My
emphasis)
Cross-examination
of the complainant:
[54]
During cross-examination the complainant testified that the first
truck incident occurred during 2008 and the second
one which was the
last one according to her, during 2009. However, in her
evidence in chief she did not provide a year as
to when the first
incident occurred and she testified that the second incident occurred
during 2009.
[55]
The complainant confirmed that it is her version that the appellant
had sexually abused and raped her on a number of
occasions before the
incident when her boyfriend took her to the truck. Mr Price
cross-examined the complainant as to why
she got into the cab of the
truck considering the background that he had molested and raped her
before that incident. I deem
it necessary to quote from the
record in this regard:
“
MS
V[...] D[...] W[...]:
Mr Blom is a physically very strong man and he was known to travel
with a firearm in his vehicle.
MR
PRICE:
Madam your boyfriend
was there. You did not have to get into that truck. Why
did you get into that truck?
MS
V[...] D[...] W[...]:
I was
instructed to do so.
MR
PRICE:
Did he threaten you and
say if you do not get in I will beat you up?
MS
V[...] D[...] W[...]:
No.
MR
PRICE:
Did he say I have got a
gun, I will shoot you?
MS
V[...] D[...] W[...]:
I was
aware that he has a gun.
MR
PRICE:
Listen to me, I am
asking you did he tell you he had a gun and he was going to shoot
you?
MS
V[...] D[...] W[...]:
No.
MR
PRICE;
Why did you get in? ….
You know there is every chance of you being raped if you get into the
truck – and you do it.
Why?
MS
V[...] D[...] W[...]:
I do not
know.”
[56]
It was put to the complainant that there was no double bunk or bed at
the back of the two front seats. Both trucks
which the
appellant owned at that time, had single bunks, although the man
trucks bunk was a bit bigger, called a sleeper.
The other one
is called a semi-sleeper.
[57]
The complainant was confronted with the fact that no allegation was
made in her police statement with regard to incidents
which allegedly
occurred during 2008 or 2009. She responded that she probably
could not recall the dates at the time and
that it could be that she
even mentioned the wrong years during her evidence in chief.
[58]
She furthermore conceded that she also did not mention in her police
statement that she had been raped in the back of
the cab of the
appellant’s truck. She however explained that she could
not remember it at that stage, as she has flashbacks
where her
memories come and go.
[59]
When asked whether her boyfriend who was with her at the truck, who
is now her husband, will be able to come to court
and testify to
confirm that, she confirmed same.
[60]
According to the complainant she was raped on more than two occasions
in the back of the cab of the truck, but testified
that she was
unable to provide any details with regard to any of those other
occasions.
[61]
According to her she did tell the prosecutor that she had also been
raped in 2008/2009/2010. She was consequently asked
whether she can
then explain why the prosecution have only decided to prosecute the
appellant for rape from 2011, for which she
could not give an
explanation. She, however, conceded that in her police statement the
first date she mentioned as having had sexual
intercourse with the
appellant without her consent in Bloemfontein, was 2011.
[62]
It was put to her that she never mentioned in her police statement or
anywhere else before her evidence in chief that
she had been
sodomised by the appellant. She responded that if it was not in
her statement, then she guesses that the statement
by Mr Price is
correct. When asked why she is raising it at that late stage,
she testified that she does not know.
The cross-examination
then proceeded as follows:
“
MR
PRICE:
Are you serious that he
sodomised you?
MS
V[...] D[...] M[...]:
Yes.
MR
PRICE:
Do you know what sodomy
is?
MS
V[...] D[...] W[...]:
[No audible
answer].
MR
PRICE:
Do you?
MS
V[...] D[...] W[...]:
Yes.
MR
PRICE:
What is it?
MS
V[...] D[...] W[...]:
It is
when someone touches your private parts without your consent.
MR
PRICE:
No, I am afraid you are
wrong. Sodomy is anal intercourse. Did Mr Blom ever have
anal intercourse with you?
MS
V[...] D[...] W[...]:
No.
MR
PRICE:
Okay, so we can say
that sodomy was a mistake on your part?
MS
V[...] D[...] W[...]:
Yes.”
[63]
She was confronted about the fact that she would rather go to the
truck and be sexually assaulted than telling her mother
that she
cannot go and pick up the parcel, because the appellant’s
abuses her. The complainant testified that she was
afraid that
her mother would not believe her.
[64]
When questioned as to why she took the appellant back to her house
when he, in the past, continuously sexually assaulted
her, she
responded that it was an instruction of her mother.
[65]
During further cross-examination the complainant was asked when the
appellant had vaginal sexual intercourse with her
for the first
time. She responded that it was when she was 18 years old when
he raped her in his son’s bedroom in Fort
Beaufort in his house
when nobody else was in the house. She tried to “
wiggle
”
away but she was unsuccessful in doing so. This incident,
according to her police statement, occurred in 2007, hence,
whilst
she was in matric. Her evidence in this regard, however,
changed during later cross-examination when she stated that
the
incident actually happened when she was already at university and not
when she was in matric.
[66]
When questioned as to what makes her say that her mother and the
appellant were in a relationship, she testified that
she once
overheard the appellant and her mother having sex and also that the
appellant came to their house every single day in
the morning and
night. She repeated for a second time that he came to visit at
the house every morning and every night.
When confronted with
the fact that the appellant often had to leave Fort Beaufort on
business and for purposes of driving his trucks,
she changed her
version and said “
not every single day… most mornings
and most evenings
”. When asked when it started, she
testified from as little as she could remember, and then coupled the
age of 7 years
old to her averment. She gave further
explanations why she believed that there was a relationship between
them.
[67]
It was put to the complainant that the appellant wanted to hand the
accounting books of the business to his wife to do
the books since
the complainant’s mother was caught “with her fingers in
the till”. The complainant responded
that those were mere
allegations. The evening when her mother was arrested was the
first time she found out that there were
allegations that she had
stolen money.
[68]
Mr price duly put the version of the appellant in respect of all
relevant allegations to the complainant.
[69]
The complainant`s police statement was handed to the complainant to
read in court. The following questions were
then posed to her:
“
MR
PRICE:
Is that the statement you made?
MS
V[...] D[...] W[...]:
Yes.
MR
PRICE:
Did the police officer
read it back to you?
MS
V[...] D[...] W[...]:
Yes.
MR
PRICE:
And you confirmed that
that it was correct?
MS
V[...] D[...] W[...]:
Yes.
MR
PRICE:
So you confirm
inter
alia
that there was nothing left out
that you told them and there was nothing that she put in there that
she should not have put in?
…
.
MS
V[...] D[...] W[...]:
That is
the contents that I know at that …. I could remember at that
stage.
MR
PRICE:
Listen to me, you are
jumping around. I am asking you a simple question.
MS
V[...] D[...] W[...]:
Okay.
MR
PRICE:
You read it and you
confirm to her that she had written it down as you said.
MS
V[...] D[...] W[...]:
Yes.
MR
PRICE:
So you did not say
anything to her about trucks.
MS
V[...] D[...] W[...]:
Not at
that stage, no.”
The
evidence of the complainant’s mother:
[70]
The complainant’s mother testified that she was employed by the
transport business of the appellant to take care
of the bookkeeping
and other paperwork. It was also her task to send out invoices, to
see to it that salaries get paid and to do
the normal day to day
paperwork. She also had to tend to the drivers and see to it that the
appellant and the drivers had enough
food for the road.
[71]
According to her evidence in chief she started her employment with
the appellant’s business between 2005/2007,
“
somewhere
around there
”, although she testified that she could not
remember the exact date. She was previously working at a bank.
In
cross-examination she agreed that she started her employment with
the appellant during or about 1998 already.
[72]
She could not remember the exact date she left the employment of the
appellant, but testified that it was around February
2013/2014.
According to her she was not dismissed, but the appellant advised her
that his wife was going to do the bookkeeping
and paperwork in
future.
[73]
The complainant’s mother testified that she had an intimate
sexual relationship with the appellant for 17 years.
He used to
come to her house every morning and then they would have sexual
intercourse. She also testified that she once
travelled with
the appellant in the truck to Cape Town to go and see her brother in
jail. According to her she once also
travelled with the
appellant in the truck to Swellendam, when they had sex in the back
of the cab of the truck in the parking lot
at a truck stop.
According to her they were traveling alone without an assistant.
[74]
On a question of the court whether the appellant is a violent or
aggressive person, the complainant’s mother confirmed
same.
However, in her explanation as to why she says so, she gave an
explanation that he could get very angry. When asked
whether the
appellant has ever assaulted her, she responded in the negative, but
then indicated that the appellant had sexually
assaulted her.
This was quite in the face of her having testified over and over
about their consensual sexual relationship
over a period of 17
years.
[75]
The complainant’s mother testified that he often drove the
trucks himself as a driver. When asked whether
he would travel
alone, she testified that when he went to Cape Town, he always had an
assistant because it was a heavy load.
The assistant would
normally have been Mr Mzwandile Roxa, who was a general worker in the
employment of the business. Sometimes
Mr Msomi travelled with
him. However, she testified that to Bloemfontein he would
mostly travel on his own. During
cross-examination she conceded
that she assumed that he drove to Bloemfontein on his own, as she did
not see anybody with him in
the truck at the times when she last saw
him before he left for Bloemfontein, but testified that he may have
picked up his assistant
around the corner.
[76]
The complainant’s mother testified that the appellant drove to
Bloemfontein once a month.
[77]
An important aspect in this matter is the money which the complainant
testified her mother paid over to her. The
complainant’s
mother, having earlier testified that she was responsible to make the
food for the appellant and the other
drivers for their trips,
testified that she “..
.made the vetkoeks, braai meat, made
roosterkoek, bought sandwiches, bought the sweets and everything, I
packed it, packed the ice
packs in the cooler box…
”.
When it was put to her that there was therefore more than enough food
to cover a trip, she gave the answer “…
no, sometimes
the sandwiches would go soggy…
”. According to
her the appellant would phone her from the road and ask her to send
him money for food. When it
was indicated to her that the
appellant denies same, she hesitated but then persisted that it did
happen. When Mr Price questioned
the complainant’s mother
as to how she would send the money to him, she responded that it
depends on where he was.
If he was in Bloemfontein, she used to
send the money to the complainant. Mr Price then enquired from
her what the situation
was when he was, for instance, in
Johannesburg, whereupon she gave the nonsensical answer that he would
get it from the complainant
in Bloemfontein. She was questioned
whether the appellant did not have a credit and debit card with which
he could draw money,
to which she gave the answer that he kept on
losing the bank cards. Immediately thereafter, however, she
conceded that he
did have a credit card and a debit card on him when
he travelled. The complainant’s mother then testified
that he could
not use the credit and debit card in Johannesburg to
buy himself food, since parking of the truck was a problem which
caused him
not to be able to get to an ATM. It was then posed
to her that the big garages situated along the roads all have ATM’s,
which she conceded.
[78]
Mr Price further questioned the complainant’s mother whether
she ever sent amounts of R5000.00 to the complainant
with
instructions that she must withdraw it and give it to the appellant.
The complainant’s mother confirmed same.
She explained as
follows:
“
Mr
Blom had, sometimes had a shortage of fuel when he came back,
sometimes he had a breakdown, sometimes he had popped a tyre then
we
had to see that and the dealership wanted immediate payment.”
[79]
When questioned about the round figure of R5 000.00 and whether
that was the amount which was paid over to the complainant
every
time, the complainant’s mother struggled to answer the
question. She did, however, testify that it was not every
trip
that this happened. When again pressed for an answer whether
she always sent precisely R5 000.00, she responded
as follows:
“
MS
V[...] D[...] M[...]:
Most often it
would be R5,000.00.
MR
PRICE:
But why R5,000?
Let us say the damage was R1,800, why would you pay R5,000?
MS
V[...] D[...] M[...]:
That is
what he requested.
MR
PRICE:
He requested R5,000
every time? Is that what you are saying?
MS
V[...] D[...] M[...]:
Yes.”
[80]
It was then put to the complainant’s mother that the appellant
strongly denies every calling her during any of
his trips to request
her to send money.
[81]
The complainant’s mother testified that she always sent parcels
with the appellant to the complainant in Bloemfontein
and that he
would sometimes sleepover with his brother-in-law, Coenraad du Preez,
and sometimes at the complainant’s place.
She, however, did not
mention anything about him sleeping on a mattress on the floor next
to the bed of the complainant.
[82]
The complainant’s mother confirmed in her evidence that when
she sent a parcel with the appellant to the complainant
in
Bloemfontein on a monthly basis, the complainant had to fetch it from
the appellant at his truck.
[83]
It was the evidence of the complainant’s mother that the
complainant told her in November/December 2017 that the
appellant
molested her as a child and raped her. The complainant’s
mother was very shocked and burst out crying.
She enquired from
the complainant how she could help her, but the complainant responded
that she would handle the matter in her
own way.
[84]
From the evidence of the complainant’s mother it appears to be
common cause that the appellant laid criminal charges
against the
complainant’s mother for theft and fraud from his business and
that the complainant’s mother was arrested
and appeared in the
Regional Court. At the time when the complainant’s mother
presented her evidence, the amount mentioned
was “
well over
a million rand
”.
[85]
The complainant’s mother confirmed that she was angry when she
was locked up and put in a police cell and she was
also angry when
she found out that the appellant laid a charge against her for theft
and fraud. However, she testified that
she is not angry
anymore.
[86]
When questioned as to why the complainant’s mother did not
confront the appellant after the complainant told her
that the
appellant molested and raped her, she testified it was because the
complainant indicated that she will handle it in her
own way.
[87]
The complainant’s mother confirmed that the appellant never
carried a gun on him in the open, but testified that
when he went on
road trips, he hid the gun under the seat. Mr Price thereupon
put it to the complainant’s mother that
the appellant never
took a firearm with him on the road.
The
evidence of Mr SJ Cooper:
[88]
Mr Cooper is a clinical psychologist who treated the complainant for
depression and anxiety after another colleague referred
the
complainant to him. At the time she was experiencing anxiety
symptoms like bedwetting and she was cutting herself.
[89]
During the treatment it came to the fore that the complainant had
allegedly been sexually abused which made her to be
very
uncomfortable and distraught.
[90]
The complainant started consulting Mr Cooper in December 2018.
[91]
According to Mr Cooper’s memory it was only during the second
cession or later that the complaint divulged to him
about the alleged
sexual abuse.
[92]
Mr Cooper testified that the sexual incidents, according to the
complainant, occurred when she was between the ages of
21 and 24
years.
[93]
Mr Cooper conceded during his evidence that the complainant’s
anxiety and depression could also have been caused
by the fact that
she lost her grandfather, her father and her uncle in a very short
period of time, as well as the fact that the
mother had recently been
arrested for and charged with serious criminal charges of fraud and
theft.
[94]
That concluded the State’s case. The defence applied for
the acquittal of the appellant in terms of
Section 174
of the
Criminal Procedure Act, 51 of 1977
, which was dismissed.
The
appellant’s evidence in chief:
[95]
The appellant denied the allegations against him. He confirmed
his plea of not guilty, as well as the correctness
of the contents of
his Plea Explanation, under oath.
[96]
The appellant testified that he was self-employed as the owner and
manager of Blom Transport. In addition to managing
the
business, he is also a driver and fixes mechanical problems on the
trucks. At the time of his evidence he employed twelve
permanent employees and operated ten trucks.
[97]
The appellant testified that the complainant’s mother was
employed at his business, where she did the bookkeeping
and paid
salaries, and was also responsible for all issues relating to the
Receiver of Revenue. She had access to the business
bank
accounts. He trusted her at the time.
[98]
On 31 August 2013 the appellant informed the complainant’s
mother that her services will no longer be required
with effect from
January 2014. The reason was due to the fact that the
appellant’s wife took over the bookkeeping of
the business.
[99]
In January 2014 the complainant’s mother reported the appellant
to the CCMA and the documents in relation thereto
was handed in as
exhibit “E”. The appellant, in response, addressed
a letter to the CCMA, dated 10 February 2014,
which letter forms part
of exhibit “E”. In the said letter he stated,
inter
alia
:
1.
The complainant’s mother failed to deliver the business
accounting books,
despite numerous requests to do so.
2.
The documentation eventually received only stretched from 1 March
2013 up until
middle January 2014.
3.
The business accounting books have been handed over to an auditor for
auditing.
4.
No documentation had been submitted by her to SARS, on behalf of the
business,
since 2005.
[100]
The charge sheet in relation to the criminal case against the
complainant’s mother was handed in as exhibit “F”.
The charge sheet reflects,
inter alia
, the following
information:
1.
The charges against the complainant’s mother were already laid
in September 2015 at
the Fort Beaufort police station.
2.
The date of arrest was 1 December 2018.
3.
The date of first appearance was 3 December 2018.
4.
The charge is one of theft, although committed on diverse occasions
and dates.
5.
The total amount of the alleged theft is R4 359 411.76.
6.
Paragraphs 12 and 13 of the pre-amble to the charge sheet read,
inter
alia
, as follows:
“
12.
The accused unlawfully transferred various amounts of money from the
business account and savings account
of Blom Vervoer into:
(a)
Her own personal accounts as mentioned in point 9 above and using the
internet to effect the transfers;
(b)
The account of A[…] (
sic
) v[...] d[...] M[...].
13.
When the accused effected payments into the bank accounts …
some of them were disguised as payments
to SARS.”
[101]
The appellant testified that he travelled to Bloemfontein once a
month, except for Decembers. Every time he travelled
to
Bloemfontein he would be accompanied by an assistant.
[102]
From time to time the complainant’s mother would request him to
deliver a parcel to the complainant in Bloemfontein
when he travelled
to Bloemfontein. The parcels were normally the size of
approximately 30cm x 30cm. He would
call the complainant when
he was approximately thirty minutes away from Bloemfontein to meet
him at an area where the truck was
allowed to stop, which was
normally at Curie Avenue when he was on his way to his
brother-in-law, in order to collect the parcel
from him. His
assistant was always with him when she collected the parcel.
[103]
The appellant denied that the complainant ever entered the cab of the
truck when she collected any of the parcels.
[104]
The appellant testified that he assisted with the transportation of
the complainant’s furniture from the UFS to
her new apartment.
That night he slept over at her apartment, but the complainant’s
mother also slept over.
[105]
The appellant denied that he at any other stage slept over at the
complainant’s place of residence in Bloemfontein.
According to him he slept over at his brother-in-law, Coenraad du
Preez.
[106]
The appellant denied that he ever requested the complainant’s
mother to pay money over to the complainant’s
bank account in
order to buy food or fuel or anything else for him when he travelled
through and back and/or to Bloemfontein.
[107]
The appellant explained that the cab of the truck that the used to
drive to Bloemfontein was not spacious. The
two front seats
were separated by a huge gearbox and gear-lever. The bunker bed
in the cabin is approximately half a metre
to six hundred centimetres
broad. It was difficult to move from the front seat onto the
bunker bed, due to the limited space
in the cab and the presence of
the gearbox and gear-lever.
[108]
Although the appellant is the owner of firearms, he keeps the
firearms in his safe at home.
[109]
The appellant denied ever having an intimate relationship with the
complainant’s mother.
[110]
During the year 2007/2008 his wife was a full-time housewife and they
had a domestic servant in the house who also worked
full day –
when his wife was not at home, the domestic servant would have been
there.
[111]
The complainant’s mother accompanied him once to Cape Town in
the truck in order to visit her brother who was
in prison. She did
not at any stage accompany him to Swellendam.
[112]
With regard to the Protection Order, the appellant testified that not
only did he attend at the Magistrate’s Court,
Bloemfontein, on
the return date of the Protection Order, but he also instructed
attorneys to draft affidavits in answer to the
application for a
Protection Order. He denied the allegations filed in support of
the Protection Order. The matter was struck
from the roll as the
complainant did not attend the court proceedings.
[113]
The appellant denied that he ever sexually molested or raped the
complainant in any manner whatsoever.
[114]
The appellant also confirmed that at one point in time the
complainant was having an extra-marital affair with a gentleman
whom
he met when the said gentleman came to visit the complainant in Fort
Beaufort.
Cross-examination
of the appellant:
[115]
During cross-examination the appellant was once again confronted with
the time when the complainant’s mother travelled
with him in
his truck to Cape Town, but the appellant persisted with his version
provided during his evidence in chief.
[116]
During further cross-examination the appellant explained that he met
the complainant’s mother in 1998 in Fort
Beaufort when she was
working at the bank. When she lost her job at the bank, she
starting assisting the appellant with the
bookkeeping of his business
on a part-time basis. Since she had another job that she was
doing at the time with regard to
catering and later with regard to a
different business, she worked for the appellant after hours,
remotely from her home, as he
did not have an office.
[117]
The appellant testified that the complainant’s mother had
authority to do transactions on his bank account, in
that she had the
power to withdraw or deposit money. She was also entitled to withdraw
money for wages, as the appellant would
sometimes not be available on
Fridays to pay the wages, since he was away driving trucks. She was
also entitled to make payments
to SARS.
[118]
The appellant testified that there was a good relationship between
himself and the complainant`s mother and that there
were no problems
between them during the period of employment.
[119]
In further cross-examination the appellant testified that he had a
normal relationship with the complainant and he only
had contact with
her, before she moved to Bloemfontein, at her mother’s house
when he had to take documents in relation to
the business to the
complainant`s mother.
[120]
It was put to the appellant by the prosecutor that on an occasion he
penetrated the vagina of the complainant with his
penis, which the
appellant denied. The prosecutor also put it to the appellant
that there was also an occasion when he pulled
off the complainant`s
pants, which the appellant also denied.
[121]
The appellant also denied ever having been with the complainant at
his house.
[122]
The appellant testified during cross-examination that the reason or
motive why the complainant’s mother falsely
accused him of
having had an affair or sexual relationship with her, was due to the
fact that she had stolen money from his business
which she
transferred into her account and that she was aware that criminal
charges had been opened against her.
[123]
When the appellant was questioned as to why the complainant would
make such serious allegations against him, he explained
that it all
had to do with the money which her mother had transferred into her,
the complainant’s, bank account and that
the complainant was
aware what was lying ahead, meaning that the complainant was aware
that her mother was facing serious criminal
charges for having stolen
money from the appellant`s business.
[124]
The appellant was again asked why the complainant and her mother
would make false allegations against him, whereupon
he explained that
it was because he had opened a criminal case against the
complainant’s mother due to the theft of the money
and they
retaliated by laying false charges against him. According to
the appellant, their life standard would have dropped
as a result of
the complainant`s mother no longer being in the employment of the
appellant`s business and further due to the charges
which he laid
against the complainant’s mother.
[125]
During questions posed to him by the court, the appellant confirmed
that at the time when the allegations of rape were
made against him
he had already opened the criminal case against the complainant’s
mother.
The
applicable legal principles and analysis of the judgment of the court
a quo
:
[126]
It is common cause that the complainant was a single witness and
therefore, the cautionary rule applicable to single
witnesses applies
to her evidence.
[127]
As early as in 1932 the following remarks were made in respect of a
single witness in
R v Mokoena
1932 OPD 79
at 80:
“
Now
the uncorroborated evidence of a single competent and credible
witness is no doubt declared to be sufficient for a conviction
by
[the section], but in my opinion that section should only be relied
on where the evidence of a single witness is
clear
and satisfactory in every material respect
.
Thus the section ought not to be invoked where, for instance, the
witness has an interest or bias averse to the accused,
where he has
made a previous inconsistent statement, where he contradicts himself
in the witness box, …” (My emphasis).
[128]
In the unreported judgment of
Pitsa v S
(A) 253/2012
[2013] ZAGPJHC 283 (8 November 2013) at para [48] the evidence of a
complainant in a rape case was rejected on the
following grounds:
“
[48]
The evidence of the Complainant must be approached with great
circumspection because it is of a single witness
and is not
satisfactory in all material respects. The numerous intrinsic
improbabilities, omissions and contradictions in
such evidence and
the lack of corroboration by the witnesses fortify this court’s
resolve to reject the Complainant’s
evidence as most
improbable.
See
S
v Teixeira
1980 (3) SA 755
(A) at 761
where the following was stated:
‘
I
think I am stating the obvious in saying that, in evaluating the
evidence of a single witness, a final evaluation can rarely,
if ever,
be made without considering whether such evidence is consistent with
the probabilities.
’”
[129]
It is evident from the record that the charge sheet originally
referred to an offence which allegedly occurred during
2011, where
the alleged act of sexual penetration was described as “
inserting
his penis into her vagina more than once
”. However, on the
day the charge was put to the appellant, namely 25 January 2021, the
charge sheet was amended as far as
the time period was concerned to
read “
on or about during 2011 to 2015
”.
[130]
In addition, a short request for further particulars in terms of
section 87(1)
of the
Criminal Procedure Act, dated
30 April 2020, had
been filed at court on 22 May 2020, in which the following further
particulars were requested:
“
1.
According to the Charge Sheet, the alleged offence(s) was committed
during the year 2011.
On which date(s) with reference to day
and month were the alleged offences committed?
2.
According to the Charge Sheet, the alleged offence(s) was committed
in Bloemfontein.
Exactly where in Bloemfontein did the alleged
offence(s) take place?”
[131]
The aforesaid request for further particulars were not responded to
by the State. Immediately after the appellant
pleaded to the
said charge, Mr Price stated the following on record:
“
So
at this point in time as you can see from the present charge sheet,
we have no idea what month it occurred, what time of the
week it
occurred in, either in 2011, 2012, 2013, 2014 or 2015. I will
address you at the right time on the vagueness of the
charges and the
failure to answer, for the State to answer a very simple question”.
The
request for further particulars was marked exhibit “A”.
[132]
During cross-examination of the complainant, she testified that she
had informed the Prosecutor that she was raped in
2008/2009/2010, yet
the Prosecutor amended the charged sheet to refer to 2011 to 2015.
Immediately subsequent to the aforesaid
amendment, and in stark
contrast therewith, the complainant presented the evidence about the
two truck incidents, which according
to her, actually occurred during
2008/2009/2010.
[133]
The court
a quo
dealt with the last mentioned evidence by
completely excluding it in its consideration of the evidence.
In this regard the
court
a quo
stated as follows at p. 477
line 23 to p. 478 line 3 of the judgment:
“
Complainant
went further to explain that whilst she was staying in the hostel
which was period 2008 until 2010 or 2011 certain incidents
happened
to her which were not in the timeframe referred to in the annexure.
And for the sake of this judgment I have excluded
that portion of her
evidence because it is not relevant”.
[134]
It is trite that in order to consider the guilt, or not, of an
accused, all the evidence must be accounted for and given
appropriate
consideration and weight. None of it may simply be ignored.
[135]
The aforesaid evidence which the trial court completely ignored, is
very relevant. In fact, the court
a quo
misdirected
itself when it failed to draw a negative inference regarding the
complainant`s credibility from that part of the complainant’s
evidence when she referred to incidents which allegedly occurred
during 2008 to 2010 in Bloemfontein, whilst the charge sheet was
specifically amended to refer to alleged incidents having occurred
during 2011 to 2015.
[136]
The aforesaid is moreover so considering that the complainant also
failed to mention any incidents that allegedly occurred
during 2008
to 2010 in Bloemfontein in her police statement, exhibit “D”.
[137]
The court
a quo
therefore erred when it disregarded the
material contradictions between the
viva voce
evidence of the
complainant, the amendment of the charge sheet and the contents of
her police statement.
[138]
A further highly relevant contradiction between the
viva voce
evidence of the complainant and the averments in the charge sheet, is
that the complainant testified that the appellant would sometimes,
when they were driving back to Bains Game Lodge for the appellant to
overnight at her residence, put his fingers into her vagina
whilst
she was driving. Considering the reference to Bains Game Lodge,
this must have occurred within the timeframe mentioned
in the charge
sheet. Despite this, the charge sheet makes no mention of this
alleged conduct by the appellant and only refers
to vaginal
penetration. It was also not mentioned in the complainant`s
police statement. Once again, this aspect is
directly relevant
to the credibility of the complainant, which the court
a quo
completely failed to take into consideration.
[139]
A further reason why the alleged incidents of molestation and rape of
the complainant before 2011 is highly relevant,
is that it provides
essential background for purposes of considering the complainant’s
credibility. For instance, if
it is to be accepted that the
appellant commenced molesting the complainant since she was six or
seven years old, eventually raped
her by penetrating her vagina with
his penis in his son’s bedroom during 2007 and that other
incidents of molestation or
rape occurred in the cab of the truck
before the one when her boyfriend took her to the truck, it is highly
improbable that she
would have worn pyjamas when she went to fetch a
parcel from the appellant at his truck, well knowing that she was
probably going
to be raped in the one way or the other. It is
further highly improbable that she would have entered the cab of the
truck
in the circumstances. Had she previously been molested or
raped as alleged, she surely would also have requested her boyfriend
to accompany her up to the truck. She further testified that when he
appellant put his fingers into her vagina, she said “
no
”
and turned her head away, but did nothing else about it. She
did not even attempt to scream, despite the fact that
the car of her
boyfriend was parked in front of the truck. This reminds of the
following quote from
S v BM
2014 (2) SACR 23
(SCA) at
36:
“
Yet
she said that Mr BM kissed her, removed her clothing and she feared
he would rape her, in circumstances where a single cry or
scream
would have brought people running into the room.”
[140]
This brings me to the principle enunciated in the judgment of
S
v Teixeira
1980 (3) SA 755
(A) at 763:
“
In
the judgment of the Court
a quo
there is no reference whatsoever to the State’s failure to call
either Sithole or Tshabalala to testify on behalf of the
State, nor
to the question whether an inference averse to the State was
justified. The burden of proof rested on the State
to prove its
case. Counsel for the State must have realised how unsafe it is
to rely on the evidence of a single witness.
I will disregard
the fact that he failed to call Sithole. In the case of
Tshabalala, however, counsel for the State must
surely have realised
that, if Sarah’s version is to be accepted as truthful,
Tshabalala’s evidence could have corroborated
her evidence in
regard to a matter very much an issue – namely the number of
incidents… in my opinion, the failure
by the State to call
Tshabalala to testify as a witness justifies the inference that in
counsel’s opinion his evidence might
possibly give rise to
contradictions which could reflect adversely on Sarah’s
credibility and reliability as a witness.”
[141]
The State did not provide any reason why the husband of the
complainant was not called to testify. The complainant
testified that he was available to testify. He could have
corroborated her version that he took her to the truck to fetch a
parcel
from the appellant and, most importantly, that she actually
entered the cab of the truck. Moreover, he was the first person
to whom the complainant allegedly reported the alleged molestation
and rape by the appellant.
[142]
When the abovementioned legal principles are applied to the failure
by the State to have called the complainant’s
husband as a
witness, it justifies the inference that the reason why he was not
called, is due to the fact that his evidence could
have impacted
negatively on the complainant’s credibility and reliability as
a witness.
[143]
One of the cases the court
a quo
highlighted in its judgment,
was
S v Mafaladiso
2003 (1) SACR 583
(SCA) at 593 E –
594 H regarding the approach to be followed when there are
discrepancies or contradictions between the evidence
of a witness and
his/her statement.
[144]
Almost immediately subsequent to the aforesaid quotation, the court
stated as follows at p. 498 line 21 to p. 499 line
1 of its judgment:
“
She
also explained, the complainant, that she is not good with dates.
There are indeed discrepancies between the complainant’s
evidence and her affidavit which were handed in as exhibit. As
I have highlighted, the case of Mafaladiso earlier are there
various
reasons why
viva voce
evidence and affidavit are verbatim not the same.”
[145]
As correctly pointed out by Mr Liddell, the court failed to
distinguish between the circumstances described in the
dictum
in
S v Mafaladiso
and the present matter. In the
present matter the complainant specifically testified that she was in
therapy to prepare herself
to lay a charge against the appellant. In
this regard she responded as follows to a question by the court:
“
COURT:
Okay. Come back to my question again. 2017 you told your
boyfriend, you told your mom but still you only reported
the matter
in 2019?
MS
V[...] D[...] W[...]:
I was in
therapy to prepare myself to make the case.”
[146]
Considering that the complainant had almost two years to prepare
herself and to remind herself of details of dates,
particular
incidents and relevant facts, the quality of her evidence in this
regard was, to say the least, of a very poor and unacceptable
standard.
[147]
Further contradictions and discrepancies in this regard are the
following:
1.
In her police statement the complainant stated that the appellant
sometimes slept over at
her place “
once a week”,
whilst that was never her version in her
viva voce
evidence.
In fact, it was common course between the complainant`s mother and
the appellant that the appellant drove to or through
Bloemfontein
only once a month, excluding Decembers.
2.
In her police statement the complainant stated that the appellant
would sleep with her in
her bed when he slept over at her place,
whilst it was her specific version in her
viva voce
evidence
that the appellant slept on a mattress on the floor next to her bed.
3.
In her police statement the complainant stated that she told her
mother “
the whole story
” about the appellant, but
in her
viva voce
evidence she testified that she only told her
mother that she had been molested and raped by the appellant.
[148]
The most startling evidence of the complainant in respect of her
police statement was when she was confronted with the
dates in the
“Particulars of Offence” which forms part of exhibit “D”
where the relevant police official
indicated that the relevant
offence(s) occurred between 1 May 1997 and 1 July 2015. The said
document had also been signed by the
complainant. The complainant
ended up testifying that the police official chose the relevant dates
himself/herself. In this regard
the record reflects the following.
“
MR
PRICE:
Okay. Now here at the
particulars of offence, it says that:
‘
It
started on the 1
st
of May 1997.’
Is
that accurate?
MS
V[...] D[...] W[...]:
I cannot
remember the date, …[intervened]
MR
PRICE:
But where did the
police officer get the date from?
MS
V[...] D[...] W[...]:
She
asked me roughly, it was a very emotional day. She just asked me how
old I was and we entered the dates from there.
MR
PRICE:
Did she choose the
dates?
MS
V[...] D[...] W[...]:
Yes.
MR
PRICE:
Oh alright. So these
are not your dates?
MS
V[...] D[...] W[...]:
No.”.
[149]
In the circumstances the court
a quo
erred in not taking the
stark differences and contradictions between the complainant’s
viva voce
evidence and her police statement into consideration
in determining her credibility.
[150]
The complainant testified that she stayed at Bains Game Lodge until
2015/2016, she was unsure of the date. She
was asked by both
the prosecutor and later in cross-examination by Mr Price when the
“
rape or molestation
” ended, to which she
responded that it was in 2015. On the version of the
complainant’s mother, as reflected
in the CCMA documents,
exhibit “E”, the complainant’s mother was no longer
in the employ of the appellant since
January 2014. This also
corresponds with the evidence of the appellant. The court
a
quo
, however, failed to consider that it was therefore highly
unlikely that the appellant would have transported any parcels for
the
complainant after January 2014 and therefore it is also highly
improbable that the alleged incidents of rape or molestation of the
complainant by the appellant would have endured until 2015.
[151]
The further very crucial evidence which the court
a quo
ignored,
was the timeline as testified to by the complainant as being
indicative of the complainant and her mother’s motive
to
falsely implicate him:
1.
The appellant already in his Plea Explanation, at paragraph 27, set
forth the said motive.
2.
The money was stolen from the appellant between 2005 and 2013. Both
the complainant and her
mother benefitted from the said money.
3.
The appellant terminated the services of the complainant`s mother
with effect from January
2014. This led to a complaint by the
complainant`s mother against the appellant at the CCMA at the end of
January 2014.
4.
In the appellant`s response letter to the CCMA, dated 10 February
2014, he stated that the
books of the business had been handed over
to an auditor for auditing. The complainant`s mother therefore knew
at that stage already
that an audit was to be done.
5.
Pursuant to the auditing of the books, the complainant laid a
criminal charge of fraud and
theft against the complainant`s mother
during September 2015.
6.
On 1 December 2018 the complainant`s mother was arrested and appeared
in court on 3 December
2018.
7.
During the very same December 2018 the complainant started consulting
the phycologist, Mr
Cooper, and did not initially tell him about the
alleged sexual incidents. This was after she had already been in
therapy with
Ms Visagie. In the meantime, as previously stated, the
complainant prepared herself to open a case against the appellant
until
April 2019 when she laid the complaint against the appellant.
8.
On 8 April 2019 the complainant deposed to the sworn declaration in
support of her application
for a Protection Order, which she based on
her alleged fear that the appellant will threaten or harm herself or
her family, considering
that he owns firearms. On the return date of
30 April 2014 the complainant did not attend court, despite the fact
that the return
date was reflected on the application and the
Protection Order was struck from the roll. During the
cross-examination of the complainant
about this alleged fear of hers,
the following transpired:
“
MR
PRICE:
So it was not as a result of him
threatening you or telling you he is going to shoot you or pointing a
gun at you. It was
merely because you believed that if you opened
this case he would do something?
MS
V[...] D[...] W[...]:
Yes.
MR
PRICE:
Okay. So that was your
own subjective view – you had no grounds for that view,
correct?
MS
V[...] D[...] W[...]:
Hmm –
hmm.
MR
PRICE:
Sorry, hmm - hmm does
not help.
MS
V[...] D[...] W[...]:
Yes.”
[152]
The appellant`s version that the complainant and her mother
retaliated by laying false charges against him, therefore
constitutes
a reasonable inference in the circumstances.
[153]
The appellant finds him in the same position as was explained in
S
v BM
, supra,
at para [30]:
“
[30]
As regards Mr BM's evidence, there are again few objective facts
against which the likelihood of it being truthful or untruthful
can
be measured. He said that there had been no such incident. If he
were telling the truth, what else could he say? On his
version,
SM had gone to watch television in the bedroom and, a short while
later, he went to bed, taking his younger daughter with
him, without
seeing her again that evening. If that were correct there was nothing
else that he could say to support his version.
…”
[154]
However, in the present matter the appellant was never cross-examined
on the contents of his Plea Explanation which
he confirmed under oath
to be correct. He was also not really and properly cross-examined on
his pertinent
viva voce
evidence, nor was he properly
confronted with the version of the State. I must say, the Prosecutor
was in an unenviable position,
because he was not the Prosecutor
during the presentation of the State`s case. This, however, does not
change the applicable legal
principles. Mr Liddell referred to the
judgment of
S v Manicum
1998 (2) SACR 400
(N) at 405 E
- H:
“
In
my view that was a wrong decision. The fact that the appellant was
not cross-examined is something which must enter the scales.
It has
been said time and time again that if evidence is not challenged in
cross-examination, it may be accepted without further
ado. I
refer to a judgment in the case of
S
v Xoswa and Others
1965
(1) SA 267
(C) at 273C - E where his Lordship, Van Winsen J, as he
was then, said:
'The
prosecutor left the statement unchallenged. I agree with the remarks
of the Full Bench of the Transvaal Provincial Division
in the case
of
R v Ngema
1960
(2) SA 263
(T), that where the State intends to discredit the
evidence of an accused it should cross-examine to that end in order
to enable
the accused to meet the State's attack. ... While it
does not follow in every case that the failure to cross-examine would
necessarily
be fatal to the State's case, nevertheless I agree with
the attitude taken up by the State representative, which was that in
the
particular circumstances of this case the absence of any
challenge in cross-examination by the prosecutor of appellant No 5's
denial
of his membership of Poqo leaves the appellant's guilt in
some doubt.'”
[155]
Exactly the same principle applies in the present matter.
[156]
At the end of the court
a quo`
s judgment, the court found as
follows:
“
So
when I consider all the above is the question I need to ask myself is
whether it can be said that the complainant is an unreliable
witness
even though discrepancies are present. I am of the view that it is
highly improbable that a person would go to such an
extreme to
falsely implicate an accused person, relive something that has not
happened or a fictitious incident, endure testifying
and being
cross-examined for a few days because that is what happened in this
case, and is my question to that question, no.
I
cannot find the complainant to be an unreliable witness. So in
conclusion when I consider all the evidence before me which means
the
state case and that of the defence, I am of the view that there is no
doubt in my mind that the accused had committed the offence
as
charged, for reasons as highlighted earlier.”
[157]
The aforesaid is not the test. The test is as, once again, reiterated
in
S v Jaffer
1988 (2) SA 84
(C) at 89 C - E:
“
In
S
v Kubeka
1982
(1) SA 534
(W)
at 537F - H, Slomowitz AJ said in regard to
an accused's story:
'Whether
I subjectively disbelieve him is, however, not the test. I need not
even reject the State case in order to acquit him.
I am bound to
acquit him if there exists a reasonable possibility that his evidence
may be true. Such is the nature of the
onus
on the
State.'
Referring
to this passage Van der Spuy AJ said at 715G:
'In
other words, even if the State case stood as a completely acceptable
and unshaken edifice, a court must investigate the defence
case with
a view to discerning whether it is demonstrably false or inherently
so improbable as to be rejected as false.'
I
agree. The test is, and remains, whether there is a reasonable
possibility that the appellant's evidence may be true. In applying
that test one must also remember that the court does not have to
believe her story; still less has it to believe it in all its
details. It is sufficient if it thinks there is a reasonable
possibility that it may be substantially true (
R v M
1946
AD 1023
at 1027).”
[158]
Ms Mkhabela supports the conviction. I can, however, not agree with
her.
[159]
The court
a quo
clearly erred in finding that the complainant
was a reliable witness. The court also erred in accepting the
evidence of the complainant`s
mother where it was in conflict with
that of the appellant. The court
a quo
did not apply the
cautionary rule relating to a single witness sufficiently, or at all,
although it referred to it in its judgment.
[160]
The present matter is similar to that of
S v BM
,
supra,
also in the following respects as stated at paras [34] and [36]
of the said judgment:
“
[34]
There are many other respects in which the prosecution case was
inadequately presented. It started with the deficiencies in
formulating the charges. … The cross-examination of Mr BM was
inept, canvassing none of the material facts and pursuing
an approach
that assumed his guilt. There was no explanation for the failure to
call Mrs M, whose evidence on the events of
that day and that
evening could have clarified many issues
[36]
In the result, I am satisfied that there was no proper basis for the
rejection of Mr BM's evidence, and that it could reasonably
possibly
be true. He was accordingly entitled to his acquittal. …”
[161]
In the totality of the circumstances the court
a quo
ought to
have found that the version of the appellant is reasonably possibly
true and should have acquitted him
.
[162]
The appeal against the conviction is therefore to be upheld.
AD
SENTENCE:
[163]
Considering the success of the appeal in respect of the conviction,
it is consequently not necessary to deal with the
sentence.
Order:
[164]
The following order is made:
1.
The appeal against the conviction is upheld.
2.
The court
a quo
’s order convicting the appellant is set
aside and replaced with the following:
“
The
accused is found not guilty and is acquitted.”
C.
VAN ZYL, J
I
Concur:
P.J.
LOUBSER, J
On
behalf of the Appellant:
Adv R
Liddell
Instructed
by:
Changfoot
Van Breda Inc.
C/o
Blair Attorneys
BLOEMFONTEIN
e-mail:
hvanbreda@cvblaw.co.za
vanbreda1@cvblaw.co.za
On
behalf of the State:
Adv L
Nkhabela
Instructed
by:
Office
of the Director: Public Prosecutions
BLOEMFONTEIN