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1990
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[1990] ZASCA 104
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S v Hlehli (166/89) [1990] ZASCA 104 (25 September 1990)
Case No 166/89
/wlb
SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the appeal between:
MZIWOXOLO HLEHLI
Appellant
and
THE STATE
Respondent
CORAM
: E M GROSSKOPF, MILNE et STEYN JJA
Date of Hearing
: 11
September 1990
Date of Judgment
: 25 September 1990
JUDGMENT
MILNE JA/
-1-
MILNE JA:
The appellant and his co-accused, whom I shall call accused No 2, were
convicted of rape and sentenced to 6 years' imprisonment by
a Regional
Magistrate. The appellant unsuccessfully appealed to the Cape Provincial
Division against his conviction and sentence.
He appeals to this court with
leave of the court
a quo
.
The complainant's version may be summarized as follows: On the evening of 30
May 1987 she was on the way from Zone 13 in Langa to
Zone 5 where she intended
to visit a friend. It was about 8 p.m. and already dark when she encountered
three persons in a passage.
In the witness box she purported to identify the
appellant and accused No 2 as two of the three: the third person was unknown to
her. I shouid mention that she said that this occasion on 30 May
-2-
was the first time she had ever seen the appellant and he also was,
therefore, at that time unknown to her. She knew accused No 2
by sight only and
"not f or a long time." The person whom she purported to identify as the
appellant then spoke to her and pulled
her into the passage. He was armed with
an open pen-knife, she struggled, and he cut her jersey. The third person then
struck her
with a clenched fist on the eye. Her three assailants then dragged
her for about half a kilometre "oorkant die spoorweg" and accused
No 2
blindfolded her, "sodat ek nie aan hulle kan kyk nie." While they were dragging
her and before she was blindfolded, they were
talking and they addressed each
other by their nicknames, the appellant being addressed as "Kaya", accused No 2
as "Piesang" and
the third person as "Lungile". She was ordered to lie down
under a tree and each of them then raped her twice in the following order:
the
appellant, then accused No 2 and then the third person. She said that while
-3-
accused No 2 was having intercourse with her for the first time "Hulle
[referring to her three assailants] het vir my hulle name gesê
en vir my
gesê waar hulle bly." She also mentioned that after she had been raped for
the first time the appellant slapped her
with an open hand on her cheek when she
tried to get up. When each of them had raped her twice the third person directed
her to Zone
13 and she then went to the house of her friend Daphne Mbalo in Zone
13. She told her what had happened. She told Daphne that accused
No 2 had told
her that his name was "Piesang" and that he lived in Zone 12. Daphne knew that
accused No 2's nickname was "Piesang"
and the following day she pointed out the
house where he lived to the complainant. On 17 July accused No 2 was arrested
and, in the
presence of the complainant, he pointed out the appellant, who was
then also arrested.
-4-
Daphne Mbalo also testified for the State. She
said that she knew the appellant by sight and that his
nickname was
"Kaya". She had known accused No 2 for a long
time and he lived close by. His
nickname was "Piesang".
She described how the complainant came to her house
at about
midnight on 30 May 1987. Her clothes were dirty and her
cheek was
swollen. She was crying. She said she had been
raped. Then occurs the
following passage in her evidence:
"Het sy gesê wie haar verkrag het? Sy het net vir my
gesê een
van hulle was Piesang, ek het gehoor toe hulle met
mekaar praat.
Het sy
vir jou enige adres verskaf van Piesang, 'n moontlike
adres? Ek het vir haar
gesê as dit Piesang is, dit is
Piesang wat ek ken want hy bly net hier
oorkant.
Het u toe vir haar die adres gegee? Ja, toe gee ek vir
haar die
adres, toe wys ek vir haar die volgende oggend toe ons uitstap, daar bly
hy."
The prosecutor then simply handed in a statement which purports to have been
made by the appellant to a magistrate. It reads as follows:
-5-
"Hierdie voorval het begin te Zone 5 Langa. Op hierdie dag was ons dronk. Dit
was die langnaweek aan die einde van Mei op 'n Saterdag
vermoedelik 30 Mei 1987.
Ek het my vriend Banana Jcuwa ontmoet wat saam met 'n meisie was. Ek het toe
saamgeloop met hulle. Na agter
die stasie Langa waar ek en hy en die meisie
geloop het. Dit was buite nie vêr van die stasie nie maar in die bos. Ek
het daar
met die meisie geslaap. Ek het ook gemeenskap gehou met haar. Sy het
niks gedoen nie. Dit is al."
The trial magistrate
then informed the appellant that he bore the
onus
of satisfying the court
on a balance of probabilities that this statement had not been made voluntarily.
I am not entirely satisfied
that he was correct in this regard. The statement by
the appellant contains certain admissions. In terms of section 219A(1) of Act
No
51 of 1977, it was only admissible if it was proved to have been made
voluntarily. The
proviso
to that section rendered it admissible on its
mere production, only if the requisites of sub-paragraphs (a) and (b) of the
proviso
were
-6-
satisfied. Sub-paragraph.(b) reguired that
"It appears from the document in which the admission is contained that the
admission was made voluntarily ..."
In the preamble
to the statement by the appellant, the
following guestions and answers appear
at the commencement
thereof:
"Begryp jy die waarskuwing wat aan jou gegee is? JA, EK
BEGRYP
DIT.
Verlang jy om 'n verklaring te maak? JA.
Is jy deur enige persoon
aangerand of gedreig met die doel
om jou te beinvloed om 'n verklaring af te
lê? EK HET
GEEN BESERINGS, WONDE OF KNEUSPLEKKE NIE WAT EK AAN U WIL
WYS NIE.
Is jy deur enige persoon aangemoedig of op enige wyse beinvloed om
'n verklaring af te lê of is enige beloftes deur
enige persoon aan jou
gemaak om 'n verklaring af te lê?
NEE, GLAD NIE."
It will be observed that the appellant did not answer the guestion as to
whether he had been assaulted or threatened by any one with
the object of
influencing him to make a statement. He merely said that he had no
"beserings,
-7-
wonde of kneusplekke wat ek aan u wil wys nie." On the other hand, the answer
to the next guestion may, on the face of it, be wide
enough to establish
prima facie
that the statement was made voluntarily. I shall assume,
without deciding, that it did and that the magistrate correctly approached
the
admissibility of the document on the basis that it was for the appellant to show
that he did not make the statement voluntarily.
The appellant, in response to
the magistrate informing him that he bore the
onus
, gave evidence to the
effect that he had been threatened with assault and told that "As ek nie
saamstem nie dan sal hy [Sgt Gubane,
who arrested him] my nie borg gee nie." He
was also told that he would be locked up and he would lose his employment if he
did not
"saamstem". He furthermore mentioned in his evidence that when accused
No 2 pointed him out he, accused No 2, and the complainant
were together in the
same vehicle. The appellant was then arrested and put
-8-
into the vehicle and on the way to Bellville where he made the statement he
was, so he says, told "Daar is wel stoele en poppe wat
vir my sal knyp." He said
that the policemen had told him that the three of them had taken the girl to a
station and near the station
the three of them had raped her.
The appellant then closed his case on this issue and the magistrate said to
the prosecutor "Beskuldigde 1 het sy saak gesluit by hierdie
verhoor binne h
verhoor. Wil die Staat getuienis aanbied. Wil die Staat getuienis aanbied?",
which elicited the following reply from
the prosecutor "Edelagbare, die Staat is
nie in h posisie om op hierdie stadium getuienis aan te bied nie. Dit is die
Staatsaak ten
opsigte van die verhoor binne h verhoor." The evidence of the
appellant on this aspect of the matter was therefore uncontradicted.
Furthermore, nothing was put by the
-9-
prosecutor to the appellant as being the version of the State cm this issue.
I shall return to this aspect of the matter later.
The magistrate held that the appellant had not discharged the
onus
and
admitted the statement. The State closed its case and the appellant then went
into the witness box. He then, in effect, applied
for the complainant to be
re-called so that he could put a further question to her. Without enquiring into
whether the application
was well-founded the magistrate summarily dismissed the
application in one terse sentence: "U het reeds 'n geleentheid gehad". This
was
true, of course, as it is true of every application to re-call a witness, but
that is by no means an end of the matter. Be that
as it may, the appellant then
testified that on the evening in question he was at home with his girlfriend
Veliswa Matuwani and his
mother Alexandrina
-10-
Hleli. Both of them testified in support of his
alibi
. The magistrate,
however, rejected the
alibi
and found both the appellant and accused No 2
guilty as charged.
The crucial guestion for determination by the trial court was whether the
evidence established beyond reasonable doubt that the appellant
was one of the
complainant's assailants. In my judgment it was not safe to rely upon the
complainant's identification of the appellant.
I say this for the following
reasons. In view of the fact that she had never seen the appellant before, that
it was already dark
when she encountered him and that she was blindfolded when
they crossed the railway line, her opportunity for observation was very
limited.
No identification parade was held. She saw the appellant when he was pointed out
to the police by accused No 2. In these
-11-
circumstances her identification in the witness box of the appellant is of
little value. The unacceptability of her claimed ability
to recognize the
appellant is further demonstrated by the fact that she said she knew accused No
2 by sight before the night of the
rape but it is clear that she did not on the
night of the rape recognize accused No 2 as the person whom she knew by sight.
There
are, furthermore, some aspects of her evidence which are open to
criticism. In the first place having said in her evidence initially
that it was
the third person who punched her in the eye with a clenched fist, she said at a
much later stage that it was the appellant
who had caused her eye to swell by
punching with a clenched fist. Secondly, she is recorded as having said that
while accused No
2 was having intercourse with her "Hulle het vir my hulle name
gesê en vir my gesê waar hulle bly." This strikes one
as somewhat
improbable, to put it mildly. In fact, further questioning revealed that it
-12-
was only accused No 2 who allegedly gave her his address.
Yet when Daphne
Mbalo testified, she said it was she who had
given the complainant the
address of accused No 2. The
complainant had, furthermore, been blindfolded,
so she said,
before any of them raped her and the question then arises
as
to how she would have known who was talking. No doubt it is
reasonably
possible that she may have heard themaddressing
each other by their nicknames
after she was blindfolded but
then, how would she know in what order the
three assailants
raped her? In the court
a quo
Friedman J dealt with
this
difficulty in the following manner:
"Daarbenewens wil dit voorkom uit haar getuienis ten opsigte van haar beskrywing
van hoe elkeen van hulle met haar te werk gegaan
het, dat die blinddoek haar nie
verhoed het om waar te neem wat elkeen gedoen het nie. Die blinddoek kon
derhalwe nie baie effektief
gewees het nie."
This
is, however, not what the complainant said. She said
she was blindfolded "sodat ek nie aan hulle kan kyk nie".
-13-
The appellant and accused No 2 were undefended and the point was simply never
canvassed or tested. The result is that it is, with
respect, really speculation
to suggest that because she purported to say how each of them "met haar te werk
gegaan het" therefore
it followed that the blindfold could not have been very
effective. The complainant alleges that she told her friend Daphne that accused
No 2 had told her that he lived in Zone 12. This is not borne out by Daphne who,
as already mentioned, says that she gave the complainant
accused No 2's address.
Furthermore, if it is true that before she was blindfolded she had heard the
three of them addressing each
other by their nicknames, the question then arises
as to why she would only have mentioned "Piesang" to Daphne. Daphne says she
only
mentioned "Piesang" and this, incidentally, accords with the appellant's
evidence at the trial within a trial that the police told
him that the
complainant knew the name of only
-14-
one of the person that had raped her. The magistrate
attempts to get over
difficulties of this nature by
reasoning as follows:
"Die drie persone het met mekaar gepraat en mekaar op hulle byname genoem. Sy
het die name Piesang, Kaia en/of Koko en Nlungi gehoor.
Beskuldigde 1 is. na
verwys as Kaia en Koko en beskuldigde 2 as Piesang en die derde persoon as
Nlungele."
This is simply not correct. She did not
say that she heard
the names "Piesang, Kaia en/of Koko en Lungi". She did
not
mention the name "Koko" at all and that is what the
appellant said
throughout that his nickname was.
Leaving aside for the moment the document containing the alleged admissions
by the appellant, one has, as against the evidence of
the complainant, the
evidence of the appellant, his girlfriend and his mother, that he was at home on
the night in question. True,
there are some discrepancies of detail between the
version of the appellant
-15-
and his girlfriend as to exactly what happened and in what order that
evening, but the magistrate misdirected himself in saying that
"onder
kruisondervraging het sy egter h heel teenstrydige getuienis van beskuldigde 1
gelewer." Most, if not all, the discrepancies
are explicable on the basis that
they are the kind of detail that the witnesses would have had no particular
reason to fix in their
minds at the time when the events in question occurred
e.g. what they had to eat.
Against this background it is clear in my judgment that, if the document
containing the admissions by the appellant, was inadmissible,
then it ought to
have been held that there was a reasonable doubt as to whether the appellant was
indeed one of the complainant's
assailants. The magistrate's reasons for
admitting this document are as follows:
-16-
"Tydens die verhoor binne 'n verhoor was dit duidelik dat beskuldigde 1
[appellant] nie gedreig was om hierdie verklaring aan die
landdros te maak nie.
Hy het heel teenstrydige getuienis gelewer. Hy het onder andere beweer dat die
polisie hom gesê het dat
beskuldigde 2 hierdie meisie sou verkrag het en
dat hy moes saamstem daarmee. Dit is dan eienaardig dat die polisie hom sou
dreig
om
'n verklaring tot daardie effek te gaan maak. Dit is dan des te meer eienaardig
dat hy in hierdie verklaring aan die landdros homself
verbind met
geslagsgemeenskap met hierdie meisie. Dit is heeltemal teenstrydig met die
beweerde dreigemente dat hy moes gaan saamstem
dat beskuldigde no 2 die persoon
is wat die meisie verkrag het. Die een oomblik sê hy dat hy wel gedreig is
om verklaring te
maak en kort daarna dan ontken hy dat hy gedreig
is."
I do not think that this is a fair reading of
the appellant's evidence. In this regard one must bear in mind that one is
dealing with
an unlettered person who, in making his statement to the magistrate
and in giving evidence at the trial, did so through the medium
of an
interpreter. In these circumstances there is always a potential for
-17-
misunderstanding. Added to this is the fact that, judging by the
transcriber's note, the interpreter consistently failed to speak
into the
microphone to such an extent that the transcriber commented as
follows:
"Deurgaans is tolk onhoorbaar". This is, I think, something of an
exaggeration as there were clearly passages of the evidence that
were
"hóorbaar" but there were five or six instances during the
cross-examination of the appellant on this very issue when
the evidence of the
appellant was said to be "onhoorbaar". Furthermore, judging by the transcriber's
comments there must have been
a number of other instances when it was difficult
to hear what the interpreter was saying, so that there is yet further room for
misunderstanding. There are certainly some indications in the record that either
what the interpreter was saying was not properly
recorded or that he was not
doing his job with particular skill. A few
-18-
examples will suffice:
"Ken u enige van die persone wat u daar ontmoet het? Ja,
ek ken vir hulle.
Wie is hulle? Dit is hierdie twee.
Hierdie twee
beskuldigdes? Hulle was eintlik, hulle was
drie altesame, maar hulle twee
nou, hulle dra geen kennis van die derde persoon nie."
It seems probable that the complainant said not "hulle dra
geen kennis van
die derde persóon nie" but "ek dra geen
kennis van die derde persoon
nie". Again:
"Hoe trek hy jou? -— Die beskuldigde het 'n manier as 'n
persoon
vir haar aan die bors gegryp het en getrek.
Die getuie? Die getuie."
Either the complainant is confused or the interpreter is.
And again:
"Toe hy klaar is met gemeenskap met u
hou, het u daar gebly
lê of het u opgestaan? Hulle het gesê ek moet bly slaap.
As
ek kan opstaan gaan hulle my slaan.
Wie het so gesê? Altwee van
hulle.
Met ander woorde u moet bly lê, ne, nie slaap nie, maar
lê,
u bedoel lê? Ja."
This looks suspiciously like poor interpretation.
-19-
And finally:
"
AANKLAER
: Beskuldigde, wat het
die polisie vir jou gesê
moet jy vir die landdros sê? Die polisie
het nie gesê
wat moet jy vir die landdros kom sê nie."
It seems fairly clear that what the appellant said was "Die
polisie het
nie gesê wat moet ek vir die landdros kom sê
nie." (I should add
that the comprehensibility of the
record is not greatly improved by the
failure of the
transcriber to use inverted commas where somebody else's
words are being
quoted.)
The effect of all this is that one must, in the circumstances of this case,
approach apparent contradictions in the evidence of the
appellant and between
the statement and his evidence with a certain measure of caution.
The appellant's version as to how he came to make a statement to the
magistrate was set out with reasonable
-20-
clarity in what I may call his "evidence in chief". It was
as follows:
"Die polisie het vir my gesê ek moet eintlik hierdie ding, ek moet eintlik
skuldig pleit, want as ek dit nie doen nie, dan
maak ek dit moeilik vir hom en
vir myself. Toe sê die polisie vir my die klaer, hierdie ding het wel
plaasgevind, maar die
klaer ken nie die persoon [persone?] wat hierdie ding
gedoen het nie, sy ken net vir Brian in hierdie saak. Toe sê ek nee,
as sy
vir Piesang, vir hom ken, dan ek het niks te doen aan hierdie saak nie. Toe
sê hy vir my as ek nie saamstem nie, dan
sal hy vir my nie borg gee nie.
Toe sê ek maar hoekom moet ek saamstem oor dit wat ek nie kennis dra nie.
Toe sê hy vir
my wel, as ek wil hê ek moet geslaan word dan moet ek
maar net so bly. Toe sê hy nog 'n ander ding, hy sal vir my toesluit,
dan
verloor ek my werk . . . (onhoorbaar) Toe sê hy stem saam dan kan ek vir
jou vry borg gee. Die is dié dat ek nou
bang gewees het en bang dat ek my
werk sal verloor, toe dink ek wag dat ek maar saamstem, maar ek sal die waarheid
praat hierso.
Dit is daar waar ek nou die verklaring gemaak
het..(onhoorbaar)"
True, there is a passage in the
cross-examination when the appellant seems to be saying that the policemen
-21-
told him that the complainant was raped by accused No 2 and
that that was all that he said about the crime. The very
next question, however, was "Hy het nie gesê waar sy verkrag
was
nie?" which elicited the answer "Hy het gesê." He then
went on to say
that the policemen said that the complainant
was raped "daar naby die stasie"
and then occurs the
following passage:
"Is dit al wat hy vir jou gesê het? Dit is al wat hy vir
my
gesê het.
Wat het hy gesê van die voorval? Watter
voorval?
Van die verkragting? Nou verstaan ek nie u vraag nie."
It is quite apparent here that there is either a lack of
comprehension on the part of the appellant or lack of
communication
between the appellant and the cross-examiner
via
the interpreter.
Matters were not improved when the
prosecutor put it to the appellant that he
was raising a
matter for the first time when he quite plainly was not.
When the
appellant said that the policeman said he would
-22-
lose his work and not get bail he was asked by the
prosecutor why he had
not mentioned this previously. He had
mentioned it at the outset and the
magistrate should not
have allowed this question to be put. There
are,
furthermore, other passages in which the appellant quite
clearly says
that the police told him more than simply the
fact that the complainant had been raped by accused No 2.
For example, he
said
"Hy [referring to the policeman] het gesê as ek nie saamstem met
hierdie verklaring
nie dan sal ek geen borg kry nie, ek sal maar net
gearresteer word.
En as jy saamstem? Toe sê hy as ek saamstem dan sal
ek h
borg kry." [my underlining]
I think it is reasonably clear that the appellant was saying
here that the
policeman was requiring him to agree with
the version which the policeman was
putting to him. He said
also in answer to the question
"Hoe het polisieman gesê waar het dit begin?"
"Hy het gesê jy het so 'n ding gedoen. Julle was drie, julle
het die meisie na die stasie geyat en naby die stasie
-23-
verkrag julle haar."
Some point was sought to be made of the fact that the appellant in his
statement said that the rape occurred "in die bos" whereas,
so it was submitted,
the appellant said that the policeman had simply said that the incident took
place near the station. In fact,
near the end of the evidence of the appellant
under cross-examination at the trial within a trial he said that the police had
referred
to "die bos naby die stasie". What is more, it is clear that the
appellant says he was taken to the station in guestion and it may
well be that
either as a result of that visit or because he knew the locality anyway, he knew
there was a "bos" in the vicinity of
the station.
In my judgment the magistrate misunderstood the appellant's explanation as to
how he came to make the
-24-
statement. His evidence was sufficient to make a
prima facie
case that
he had been threatened and unduly influenced and in the absence of any
countervailing evidence from the police, that became
proof on a balance of
probabilities. The magistrate should therefore have declined to admit the
statement.
In the result there was insufficient evidence to warrant the finding that the
identity of the appellant had been proved beyond reasonable
doubt.
The appeal accordingly succeeds and the appellant's conviction and sentence
are set aside.
A J MILNE
Judge of Appeal
E M Grosskopf JA ] CONCUR
Steyn JA ]