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[2020] ZASCA 166
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Rugnanan v S (259/2018) [2020] ZASCA 166 (10 December 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not reportable
Case
no: 259/2018
In
the matter between:
ANESH
RUGNANAN APPLICANT
and
THE
STATE RESPONDENT
Neutral
citation:
Rugnanan
v State
(Case no
259/18)
[2020] ZASCA 166
(10 December 2020)
Coram:
PETSE DP, MBHA and DLODLO JJA and MATOJANE and
GOOSEN AJJA
Heard
:
5 November 2020
Delivered
:
This judgment was handed down electronically by circulation to the
parties' representatives via email, publication on the Supreme
Court
of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 9:45 on 10 December 2020.
Summary
:
Criminal law and procedure – application for reconsideration of
order refusing special leave – whether evidence of
single
witness passed muster – failure by the prosecution to call
crucial witness – whether such failure warranted
drawing of
adverse inference – whether magistrate erred in not allowing
cross-examination of the complainant in terms of
s 227
of the
Criminal Procedure Act 51 of 1977
.
ORDER
On
appeal from:
KwaZulu-Natal Division of
the High Court, Pietermaritzburg (Poyo-Dlwati J and Monyemore AJ),
dismissing applicant’s petition
seeking leave to appeal against
refusal of leave to appeal by the regional court, Madadeni:
1 Condonation for the late filing of
the applicant’s application is granted.
2 Condonation for the late filing of
the respondent’s heads of argument is granted.
3 The application for reconsideration
of the order of this Court granted on 29 June 2015 refusing special
leave to appeal is dismissed.
JUDGMENT
DLODLO
JA (Petse DP, Mbha JA, Matojane and Goosen AJJA concurring)
[1]
The applicant, Mr Anesh Rugnanan, was convicted by the regional
court, Madadeni, KwaZulu-Natal (the trial court), of two counts
of
rape read with the provisions of
s 51
and Schedule 2 of the Criminal
Law Amendment Act 105 of 1997 (the Minimum Sentences Act). He was
also convicted of assault with
intent to do grievous bodily harm and
contravention of s 7(A) of the Sexual Offences Act 32 of 2007 for
compelling the complainant,
NR, to commit an act of masturbation. The
applicant was effectively sentenced to 14 years’ imprisonment.
The trial court
refused the applicant leave to appeal against his
conviction. The applicant also unsuccessfully petitioned the
KwaZulu-Natal Division
of the High Court, Pietermaritzburg (high
court) for leave to appeal against his conviction. He, thereafter,
proceeded to apply
for special leave to appeal to this Court. His
application was dismissed, on 29 June 2015 by this Court (Shongwe and
Mathopo JJA)
on the ground that there were no special circumstances
meriting a further appeal. Thus, this is an application to reconsider
the
earlier order which dismissed the petition. In other words, this
Court is called upon to make a determination on whether the trial
court, the high court and this Court should have found that the
applicant had reasonable prospects of success on appeal.
[2]
Before dealing with the merits of the application, it is necessary to
dispose of one preliminary issue. Both parties have made
applications
for condonation for non-compliance with the rules of this Court
regulating time limits within which to lodge the application
and file
heads of argument respectively. The respondent did not oppose the
applicant’s condonation application. The applicant,
on the
other hand, opposed the respondent’s condonation application.
Although he did not file an answering affidavit, he
made oral
submissions in this regard. It is common cause that the respondent’s
condonation application explained that the
relevant prosecutor to
whom this matter was assigned fell ill and, as a result could not
give this matter the attention it deserved.
I am of the view that
there are no justifiable reasons for the applicant to resist the
respondent’s condonation application
which must be granted
herein.
[3]
Section 17(2)
(f)
of the Superior Courts Act 10 of 2013 (SC
Act) confers a power on the President of this Court, in exceptional
circumstances, to
refer a decision of this Court refusing an
application for leave to appeal to the Court for reconsideration and,
if necessary,
variation. Section 17(2)
(f)
provides:
‘
The
decision of the majority of the judges considering an application
referred to in paragraph (b), or the decision of the court,
as the
case may be, to grant or to refuse the application shall be final:
Provided that the President of the Supreme Court of Appeal
may in
exceptional circumstances, whether of his or her own accord or on
application filed within one month of the decision, refer
the
decision to the court for reconsideration and, if necessary,
variation.’
[4]
In order for this application to succeed, the applicant must show
that there exist exceptional circumstances. What constitutes
exceptional circumstances in the context of s 17(2)
(f)
of
the SC Act will be determined by considering the facts of each
case.
[1]
In
MV
AIS
Mamas
Seatrans Maritime
[2]
Thring J
remarked that:
‘
1.
What is ordinarily contemplated by the words “exceptional
circumstances” is something out of the ordinary and of
an
unusual nature; something which is expected in the sense that the
general rule does not apply to it; something uncommon, rare
or
different . . .
2.
To be exceptional the circumstances concerned must arise out of, or
be incidental to, the particular case.
3.
Whether or not exceptional circumstances exist is not a decision
which depends upon the exercise of a judicial discretion: their
existence or otherwise is a matter of fact which the Court must
decide accordingly.
4.
Depending on the context in which it is used, the word “exceptional”
has two shades of meaning: the primary meaning
is unusual or
different; the secondary meaning is markedly unusual or specially
different.
5.
Where, in a statute, it is directed that a fixed rule shall be
departed from only under exceptional circumstances, effect will,
generally speaking, best be given to the intention of the Legislature
by applying a strict rather than a literal meaning to the
phrase, and
by carefully examining any circumstances relied on as allegedly being
exceptional.’
[5]
In
Liesching,
[3]
the
Constitutional Court enunciated the principles that are crucial to
the enquiry by stating:
‘
Without
being exhaustive, exceptional circumstances, in the context of
section 17(2)(f), and apart from its dictionary meaning,
should be
linked to either the probability of grave individual injustice (per
Avnit) or a situation where, even if grave individual
injustice might
not follow, the administration of justice might be brought into
disrepute if no reconsideration occurs. A relevant
example may be the
kind of situation that occurred in the
Van
Der Walt
,
where “contrary orders in two cases which were materially
identical” were made by the Supreme Court of Appeal, and
considered in this court. In summary, section 17(2)(f) is not
intended to afford disappointed litigants a further attempt to
procure
relief that has already been refused. It is intended to
enable the President to deal with a situation where otherwise
injustice
might result and does not afford litigants a parallel
appeal process in order to pursue additional bites at the proverbial
appeal
cherry.’
Holmes
JA remarked in
De Jager
:
‘
It
is clearly not in the interests of the administration of justice that
issues of fact, once judicially investigated and pronounced
upon,
should lightly be re-opened and amplified. And there is always the
possibility, such is human frailty, that an accused, having
seen
where the shoe pinches, might tend to shape the evidence to meet the
difficulty.’
[4]
[6]
In line with a strict construction of ‘exceptional
circumstances’ in s 17(2)
(f)
of the SC Act, Mpati P held
in
Avnit
:
‘
Prospects
of success do not constitute an exceptional curcumstances. The case
must truly raise a substantial point of law, or be
of great public
importance or demonstrate that without leave a grave injustice might
result. Such cases will be likely to be few
and far between and the
judges who deal with the original application will readily identify
cases of the ilk. But the power under
s 17(2)(
f
)
is one that can be exercised even when special leave has been
refused, so “exceptional circumstances” must involve
more
than satisfying the requriements for special leave to appeal. The
power is likely to be exercised only when the President
believes that
some matter of importance has possibly been overlooked or a grave
injustice will otherwise result.’
[5]
[7]
In order to assess whether exceptional circumstances exist in this
case, it is necessary to consider the evidence that was led
at the
trial in order to enable us to decide whether there are reasonable
prospects of success for purposes of the appeal against
the refusal
of the petition.
[6]
The evidence
led in this matter is foundational to the findings made by the trial
court. It is for this reason necessary that such
evidence is briefly
set out hereunder. As this Court held in
Smith
,
[7]
ultimately,
in order to be granted leave to appeal, the applicant must convince
the Court ‘on proper grounds that he has prospects
of success
on appeal and that those prospects are not remote, but have a
realistic chance of succeeding’.
[8]
The applicant contended that he has prospects of success because, in
his view, the trial court erred inter alia:
(a) In accepting the evidence of the
complainant who was a single witness and rejecting his;
(b) in failing to call Ms Desiree
Steenkamp (Desiree) and that this warranted the drawing of an adverse
inference against the prosecution;
(c) his right to a fair trial was
violated in that:
(i)
the state did not ‘timeously’
offer Desiree as a witness to the defence;
(ii)
the trial court refused his application to cross-examine the
complainant on her previous sexual history; and
(iii)
inadmissible evidence was allowed.
[9]
The complainant testified that she met the applicant through a social
media platform called Mxit. She resorted to Mxit because
she wanted
to make friends. She exchanged her details with the applicant,
resulting in the latter coming to her home in Nkandu
Park, Newcastle.
His arrival evoked no suspicion to the complainant because he was in
the company of a woman who introduced herself
as Jasmine. The three
travelled together in the applicant’s motor vehicle proceeding
to the applicant’s home in Lennoxton,
Newcastle. The
complainant was subsequently informed by Jasmine that her real name
was Desiree and that she made a living by selling
sexual favours to
men. When the complainant wanted to go home, the applicant suggested
that she stay over because it was late at
night. All three of them
spent the night sleeping in the same bed. The complainant was only
taken home the next morning at 11h00.
During the week, the
complainant visited the applicant on several occasions. On one of
those occasions, the applicant took the
complainant to his place of
work at Newcastle State Hospital, where he introduced her to his
colleagues as his girlfriend.
[10]
There was also an occasion when the applicant was on an outing with
the complainant and stopped the vehicle in order to buy
cigarettes.
The complainant got out of the vehicle in order to converse with a
friend who she saw at the shop. This, apparently
annoyed the
applicant, and he became very angry. He drove out of Newcastle town
towards Chelmsford Dam. In the middle of nowhere,
the applicant
stopped the vehicle and ordered the complainant out of the vehicle
and told her to walk home. He further told her
that when she was with
him she was not permitted to converse with other men. She had to
promise that it would not happen again
before she could be allowed
back into the applicant’s vehicle. Desiree who was also in the
vehicle witnessed this episode.
They went back to the applicant’s
home and on this occasion they slept in separate bedrooms; but when
the complainant awoke
in the morning she discovered that the
applicant was in bed next to her trying to undress her. She told the
court that she refused
the applicant’s advances because she was
not ready for a relationship. After breakfast, the applicant took her
home. He kept
on pressurising her into becoming his girlfriend. The
complainant, having recognised signs of aggression on the part of the
applicant,
went to Mxit on her cellular phone and deleted him from
her contact list. She later received a request on Mxit and when she
responded
to the request, she immediately realised that it was the
applicant. The applicant then accused her of having stolen his four
gold
rings, cash and clothing which she denied. She explained to the
court that on one visit when she stayed over, she had no extra
clothes and was given a jacket, a t-shirt and sneakers to use by the
applicant.
[11]
Realising the false accusation, the complainant told the applicant
that he could take back the items of clothing he had given
her. She
made it plain that she did not take anything else from the applicant.
On the same day at 15h00, the applicant arrived
at the complainant’s
house with the police to search for the allegedly stolen items.
However, none of the items that were
alleged to have been stolen from
the applicant were found. Clothing which the applicant had given to
her was handed back to him.
She, nevertheless, was put in the police
van and taken to the police station as an arrested person, where she
was later questioned.
The applicant asked that the police allow him
to speak to the complainant on the side This was allowed and the two
spoke at the
smoking area of the police station in the presence of
Desiree. There, the applicant told the complainant to either confess
to theft
or that she would be locked up. The complainant felt
intimidated and scared, and this resulted in her agreeing to what the
applicant
proposed. She decided to instead go with the applicant to
his home to search for the missing goods. This event resulted in the
applicant not opening a case of theft against her. The applicant and
Desiree took the complainant to the applicant’s house.
Once all
three were inside, the applicant locked the driveway gate as well as
the security gate to the house.
[12]
Whilst the complainant was busy looking for the missing items in the
kitchen, the applicant physically assaulted the complainant,
forced
her to remove her clothing and threatened to rape her, which he in
fact later did. He also forced her to masturbate and
took a video of
this incident on his cellular phone. These photographs contained in
exhibit A were tendered as evidence with the
consent of the defence.
[13]
Whilst all of this was happening, Desiree brought a piece of paper
and a pen to the applicant who forced the complainant to
write a
confession, which he dictated to her. Eventually, the applicant
returned her clothes and she got dressed. He told her that
he would
take her home. He threatened her that he would upload her naked
photos to the internet. The applicant also took the complainant’s
cellular phone and identity book. He first drove to the police
station with her and parked his vehicle at the official parking.
He
got out, but on realising that the complainant was about to alight
from the vehicle, he suddenly returned and drove her to her
home.
Before dropping her off at her home, he told her that he now owns her
and that she must become a prostitute so that she can
pay back
whatever she owed him. On arrival at her home, the complainant woke
her ex-husband up and reported to him that she had
been raped and
assaulted. Her ex-husband immediately took her to the police station
where the matter was reported.
[14]
Detective Akram, who investigated this matter, noted numerous
injuries on the complainant who was visibly upset and was crying
at
the time. Injuries noted by Akram, were inter alia;
(a) Scrapes on her left cheek which
were red;
(b) three to four lineal welts on the
left shoulder;
(c) a welt on the right buttock,
swelling on the left elbow described as a ‘lump’;
(d) pinpoint blood dot on the right
thumb; and
(e) a graze on the left knee.
At
the applicant’s home the detective found the applicant together
with Desiree. The applicant handed over to the detective
a written
document received by the trial court as exhibit B, purporting to be a
confession by the complainant to the theft of the
applicant’s
items. The complainant’s identity book and cellular phone were
also recovered from the applicant’s
home by the detective.
[15]
Mr Francois Renison, the complainant’s ex-husband, testified as
a first report witness. He explained how, late on Saturday
night, 1
August 2009, the complainant came home traumatised and crying. She
had bruises on her face and on her knees. He explained
that the
complainant reported to him how she was raped and assaulted.
[16]
Under cross-examination, the complainant testified that it was
because of the applicant’s aggression and possessiveness
that
she decided to end their friendship. She denied that she and the
applicant had a sexual encounter before 1 August 2009 or
that she was
in a sexual relationship with the applicant. She denied that on the
night of the rape incident she had made sexual
advances towards the
applicant. Dr Singh, who examined the complainant after the incident,
was not called to testify. Instead,
the State handed in a statement
in terms of
s 212(4)
of the
Criminal Procedure Act
>
[8]
accompanied
by a J88 form completed by Dr Singh.
[17]
The applicant’s evidence was that he met the complainant on an
electronic platform known as MIG33 in 2004/2005. They
had a sexual
relationship that lasted for two to three months, before he
terminated their relationship. He explained that he subsequently
met
her again in 2009 on Mxit.
[18]
The applicant testified that the complainant stole six to eight rings
from him and R600 in cash and that while they were at
the police
station, the complainant told him that they should go to his home and
search for the rings. Indeed, he, the complainant
and Desiree
returned to the applicant’s home. He told the court that the
complainant made sexual advances towards him and
that they had sexual
intercourse later on. He also admitted to taking two of the
photographs of the complainant depicted in Exhibit
A. He denied that
the video on his profile of a woman masturbating was the complainant,
but he could not explain who the person
was or how the video clip had
got onto his phone. According to the applicant, the complainant
agreed to leave her identity document
and cellular phone with him and
then wrote a confession regarding her misdemeanours. The so-called
confession by the complainant
was Exhibit B in the trial court. He
drove the complainant home, but first stopped at the police station
to inform the police that
things had been sorted out. However, at the
police station he decided against this and took the complainant home.
He could not,
however, explain how she sustained injuries.
[19]
Under cross-examination, the applicant stated that from the moment he
and the complainant met, the latter knew that he wanted
sexual
favours. Neither he nor the complainant ever discussed that they
recognised each other from a previous sexual relationship
some three
or four years previously. Importantly, the magistrate recorded that
under cross-examination the applicant’s memory
seemed to fade
and he could no longer recall the details he gave in his
evidence-in-chief. He claimed his loss of memory was due
to the fact
that the incidents happened a long time ago and that he felt scared
and intimidated by the prosecutor. He changed his
versions of events
on several occasions. The applicant’s version was that the
sexual intercourse they had in August 2009
was because the
complainant enticed him and masturbated in his presence.
[20]
The magistrate in evaluating the evidence took into account that the
complainant was a single witness and he accordingly approached
her
evidence with caution. He found the complainant to be an honest
witness. The magistrate found that she tendered her evidence
in a
straightforward manner and that even after a gruelling
cross-examination her version remained constant. The magistrate also
found that she gave a coherent account of the events to which she
testified even under cross-examination. And that her ex-husband
and
Detective Akram confirmed the injuries she sustained. These injuries
were also confirmed in the medico-legal examination conducted
by the
doctor.
[21]
The applicant was found by the magistrate to have been an
unimpressive witness. The magistrate also found that the applicant
was making up his version of events as he went along in his
evidence-in-chief. It is common cause that the applicant provided
detailed accounts of at least the first six encounters with the
complainant in his evidence-in-chief but when he was cross-examined,
he claimed that his memory loss was due to intimidation by the
prosecutor. The magistrate was justifiably concerned when he said
the
following in his judgment:
‘
The
question arises; why take her back to his home to search for the
goods if she stole it and it would not be there. The true version
would be that it was the accused who lured the complainant by way of
intimidation back to his home. He manipulated the complainant
by the
threat of arrest by the police, by assaulting and humiliating her
into complying or into committing sexual acts to his perverted
desire.’
[22]
The applicant presented a version which was rejected as a lie by the
magistrate. The remarks in this regard by the magistrate
are telling:
‘It is clear to this court that the version of the accused
cannot be believed and can safely be rejected as
false’. The
magistrate in his analysis of the evidence as a whole made
credibility and factual findings. He took into account
the fact that
the complainant was a single witness and correctly employed the
necessary caution relying on relevant authorities
in this regard. As
held in
S
v Sauls and Others
,
[9]
the
magistrate satisfied himself that the truth was told by the
complainant in this matter.
[23]
It is trite that an accused can be convicted of any offence on the
evidence of a single competent witness.
[10]
The
well-established practice though, is that the evidence of a single
witness should be approached with caution and that his or
her merits
as a witness are properly weighed against factors which militate
against his or her credibility. The cautionary rule
does not require
that the evidence of a single witness must be free of all conceivable
criticism. The requirement is merely that
it should be substantially
satisfactory in relation to material aspects or be corroborated. As
mentioned above, the magistrate’s
judgment demonstrated that
the complainant’s evidence was evaluated with caution. She was
found to be a straightforward witness
whose version remained constant
notwithstanding protracted cross-examination. In
S
v Francis
,
[11]
this Court
guidingly warned:
‘
Bearing
in mind the advantage which a trial Court has of seeing, hearing and
appraising a witness, it is only in exceptional cases
that this Court
will be entitled to interfere with a trial Court’s evaluation
of oral testimony.’
In
Mashongwa
, Mogoeng CJ pointedly held that:
‘
It
is undesirable for this court to second guess the well-reasoned
findings of the trial court. Only under certain circumstances
may an
appellate court interfere with factual findings of a trial court.
What constitutes those circumstances are demonstrable
and material
misdirection and a finding that is clearly wrong. Otherwise trial
courts are best placed to make such findings.’
[12]
Thus,
the trial court’s factual findings cannot be faulted. The
conclusion it arrived at was correct when one has regard to
the
totality of the evidential material and the fact that the applicant
was demonstrably an unsatisfactory witness. It is trite
that an
appellate court’s powers to interfere with findings of fact by
a trial court are limited.
[24]
Moreover, the evidence of the complainant’s ex-husband,
Detective Akram, as well as the content of the medical report
provide
corroboration of the complainant’s evidence. The magistrate
found no material contradictions in the State’s
case.I am
unable to fault the learned magistrate in this regard. It matters not
whether it was the complainant’s knee or
cheek that was
injured. The proven fact is that she sustained injuries which were
inflicted by the applicant. The fact that Desiree
was not immediately
available is of no consequence.The fact is that she was eventually
made available to the defence as a witness
and the State cannot be
blamed for her disappearance. The applicant was on extended bail
during the hearing. He was reportedly
staying with Desiree. As the
complainant was cross-examined on what Desiree would say, the
conclusion that the defence must have
had the opportunity to consult
with her is accordingly justifiable. I fail to see how her
disappearance thwarted the applicant’s
right to a fair trial.
[25]
Another complaint put forth by the applicant is that the magistrate
erroneously turned down his application to cross-examine
the
complainant about her previous sexual encounters. This was a
reference to his application in terms of
s 227
of the
Criminal
Procedure Act. The
thrust of
s 227
is that evidence and
cross-examination directed at previous sexual experience may be
allowed. When dealing with a sexual offence
as is the case in this
appeal, evidence and cross-examination relating to the previous
sexual experience of the complainant is
allowed only after the court
has granted an application under
s 227(2).
It is to be noted that the
court may grant such application only if it is satisfied that such
evidence or questioning is relevant
to the proceedings before the
court.
[13]
The criteria
is set out in subsecs (5) and (6). The applicant’s version was
that he had previously had a sexual relationship
with the complainant
in 2005/2006. Perhaps, therefore, the rationale behind the
application was that since she had (on his version)
previously
consented, she was likely to consent years later. That is far-fetched
and would have been unfair to the complainant.
The application was
clearly not relevant to the applicant’s defence of consent. The
magistrate was correct in dismissing
this application. In any event
the complainant denied that there was a previous relationship between
them. And the applicant’s
assertion to the contrary is belied
by the fact that even on his version he never, at any stage,
mentioned this to the complainant
during the period that he was still
on friendly terms with her.
[26]
The applicant did not establish any exceptional circumstances
meriting a further appeal to this Court. Having painstakingly
gone
through the record of proceedings in search of prospects of success,
I have found none. In order to be granted leave to appeal,
an
applicant must make out a case that the envisaged appeal would have a
reasonable prospect of succeeding. Under s 17(1)
(a)
of the SC
Act, leave to appeal ‘may only be given’ where one of
these two requirements are satisfied:
(i) First, in terms of s 17(1)
(a)
(i)
of the SC Act ‘the appeal would have a reasonable prospect of
success’; or
(ii) Second, in
terms of s 17(1)
(a)
(ii)
of the SC Act ‘there is some other compelling reason why the
appeal should be heard, including conflicting judgments
on the matter
under consideration’.
[27]
The applicant has failed to meet the requirements stipulated by the
SC Act. The truth is that the State in this matter presented
a
formidable case against the applicant; which case the applicant
failed to meet. In the circumstances therefore, the application
falls
to be dismissed.
[28]
In the result the following order is made:
1 Condonation for the late filing of
the applicant’s application is granted.
2 Condonation for the late filing of
the respondent’s heads of argument is granted.
3 The application for reconsideration
of the order of this Court granted on 29 June 2015 refusing special
leave to appeal is dismissed.
_________________
D V DLODLO
JUDGE
OF APPEAL
Appearances:
For
Applicant:
N
Terblanche
Instructed
by:
Beirowski Attorneys, Pretoria
Peyper Attorneys,
Bloemfontein
For
Respondent:
C Cander
Instructed
by:
Director of Public Prosecutions, Pietermaritzburg
Director
of Public Prosecutions, Bloemfontein
[1]
Joseph Manyike v The State
[2017] ZASCA 96
; see also
Avnit
v First Rand Bank Ltd
[2014] ZASCA 132
para 4;
S v
Dlamin;, S v Dladla and Others; S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999 (4) SA 623
(CC) paras 75-77.
[2]
MV AIS
Mamas Seatrans Maritime v Owners
,
MV
AIS Mamas and Another
2002 (6) SA 150
(C) at 156 H.
[3]
S v Liesching and Others
[2018] ZACC 25
;
2019 (4)
SA 219
(CC) paras 138 and 139.
[4]
S v
De
Jager
1965 (2) SA 612
(A)
at 613A-B; confirmed in
S
v Liesching
[2016]
ZACC 41
;
2017 (2) SACR 193
(CC);
2017 (4) BCLR 454
(CC)
.
[5]
Avnit v First Rand Trading
[2014] ZASCA 132
para 7.
[6]
S v Matshona
[2008] ZASCA 58
; [2008] 4 All 68 (SCA);
2013 (2) SACR 126
(SCA) para
5.
[7]
S v Smith
[2011] ZASCA 15
;
2012 (1) SACR 567
(SCA) para 7.
[8]
Criminal
Procedure Act 51 of 1977
as amended.
[9]
S v
Sauls and Others
1981
(3) SA 172
(A) at 180E-G:
‘
There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness (see
the
remarks of Rumpff JA in
S
v Webber
.
. .). The trial Judge will weigh his evidence, will consider its
merits and demerits and, having done so, will decide whether
it is
trustworthy and whether, despite the fact that there are
shortcomings or defects or contradictions in the testimony, he
is
satisfied that the truth has been told. The cautionary rule referred
to by De Villiers JP in 1932 [in
R
v Mokoena
1932
OPD 79
at
80] may be a guide to a right decision but it does not mean “that
the appeal must succeed if any criticism, however slender,
of the
witnesses’ evidence were well-founded” (per Schreiner JA
in
R
v Nhlapo
(AD
10 November 1952) quoted in
R
v Bellingham
1955
(2) SA 566
(A)
at 569). It has been said more than once that the exercise of
caution must not be allowed to displace the exercise of common
sense.’
[10]
Section 208
of the
Criminal Procedure Act.
[11]
S v
Francis
1991 (1) SACR 198
(A) at 204C-E. See also
Rex
v Dlhumayo and Another
1948
(2) SA 677
(A) at 705-706;
S
v Hadebe and Others
1998
(1) SACR 422
(SCA) at 426A-C.
[12]
Mashongwa v Passenger Rail
Agency of South Africa
[2015] ZACC 36
;
2016 (3) SA 528
(CC) para 45.
[13]
Section
227(4)
of
Criminal Procedure Act.