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[2013] ZAWCHC 203
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D M v S (A502/2012) [2013] ZAWCHC 203 (8 November 2013)
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
HIGH COURT, CAPE TOWN)
CASE
NUMBER:A502/2012
DATE:
8 NOVEMBER 2013
In the matter
between:
D
M
.......................................................................
Appellant
And
THE
STATE
.....................................................
Respondent
J U
D G M E N T
BOQWANA, AJ:
The appellant was
charged with rape in contravention of
Section 3
of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007
. He
appeared before the Wynberg Regional Court and pleaded not guilty to
the charge. On 6 December 2010 he was convicted of rape
and
sentenced to 10 years direct imprisonment. On 25 May 2011 the
magistrate granted him leave to appeal against his conviction
only.
The events giving
rise to the conviction occurred on the night of 24 November 2008.
The appellant visited the complainant at her
place in Gugulethu. The
house where she lived belonged to the appellant. It is common cause
that the two had once had a relationship
and lived together. They
were however living separately during November 2008. According to
the complainant she had terminated
the relationship whilst the
appellant maintained that she was still his girlfriend. The
complainant testified that she had a boyfriend
by the name of Disco.
She testified further that on the evening of 24 November 2008 she
went to fetch her 13 year old daughter
from her neighbour’s
house. On her return she found the appellant in her house. The
appellant requested accommodation from
her until 18 December 2008.
She prepared her daughter and took her to her neighbour’s house
to sleep over there again as
she was expecting her boyfriend to visit
her that night.
It is common cause
that Disco knocked on the complainant’s window and the
appellant went to check who it was. Upon his return,
the appellant
confronted the complainant about the man that was knocking on the
window. He climbed on top of her while she was
sitting on her bed
and choked her resulting in her losing consciousness for a few
minutes. The complainant testified that when
she woke up from her
unconscious state she asked for water. The appellant refused to give
her water but instead urinated on her.
The appellant then undressed
her and proceeded to rape her telling her that he ‘wanted to
rape her before he killed her’.
She cried but could not scream
as the appellant kept her mouth closed with his hand. The appellant
then stopped and fell asleep
next to her.
The appellant
testified on the other hand that he choked the complainant because
she grabbed his penis which was injured as a result
of an infection.
He testified that he did not have sex with the complainant because he
could not get an erection due to a medical
condition that he had.
According to him it was impossible for him to have raped the
complainant. The complainant however testified
that she saw that the
appellant had an erection and that he penetrated her. There were no
other witnesses who saw what happened.
The complainant’s
brother was in another room but too drunk to notice or hear what was
happening. The complainant reported
the incident to her daughter and
brother the following morning. The daughter confirmed what was
reported to her and testified
further that when she arrived her
mother was crying and had swollen eyes. She also stated further that
she saw the appellant on
top of her mother when she arrived from the
neighbour’s house in the morning. This part of her testimony
differed from her
mother’s, who testified that the appellant
was not there when the child and her brother arrived.
The complainant was
examined by Dr Chunga who found swelling around the right eye,
bruising on the left upper neck and abrasion
on the lower lip. He
found no injuries on the genitalia but testified that that was not
unusual in rape cases. He also noticed
a yellow discharge on the
vagina from which certain organisms were found.
The appellant called
Dr Johnson who had treated him at Pollsmoor to testify on his behalf
regarding sexually transmitted infections
(“STI”), he had
suffered from and in particular about his alleged erectile
dysfunction. Dr Johnson testified that
the appellant suffered from
HIV and confirmed that she had treated the appellant for gonorrhoea
and other STIs but testified that
the appellant never reported
erectile dysfunctions to her. She testified that STIs do not cause
erectile dysfunction.
In a nutshell, the
magistrate found that the totality of evidence pointed to the
appellant’s guilt. He was satisfied with
the complainant’s
testimony and was impressed with her as a witness. He acknowledged
that there were discrepancies between
the complainant’s
evidence and the first report and was aware of the dangers of
accepting the child’s evidence and
acted with caution when
dealing with her evidence. He however found that the child confirmed
the report about what happened the
previous night. The magistrate
also found that there were no inherent improbabilities in the
complainant’s version. He
rejected the appellant’s
version as not being reasonably possibly true having analysed its
strengths and weaknesses.
The grounds of
appeal set out on behalf of the appellant are the following: there
are inconsistencies between the first report and
complainant’s
evidence; the complainant’s evidence as a single witness should
have been evaluated with more caution
before it could be accepted as
being reliable and trustworthy; and the finding on credibility was
not supported by evidence; and
the magistrate misdirected himself by
failing to critically evaluate the complainant’s evidence.
The state’s
case was largely based on the evidence of a single witness, the
complainant.
Section 208
of the
Criminal Procedure Act 51 of 1977
provides that “an accused may be convicted of any offence on
the single evidence of any competent witness”. A court
is
therefore entitled to convict on the evidence of a single witness if
it is satisfied, beyond reasonable doubt, that such evidence
is true
notwithstanding that the witness is in some respects an
unsatisfactory witness. See R v Abdurham
1954 (3) SA 163
(NPD) at
165E. In other words, the evidence of a single witness has to be
satisfactory but not necessarily perfect.
The evidence of a
single witness is subject to the cautionary rule. This means that
the trial court must warn itself against the
dangers inherent in
convicting on the uncorroborated evidence of a single witness. (R v
Mokoena
1932 OPD 79.)
The utmost care which a judicial officer
should adopt was stated in S v Sauls and Another
1981 (3) SA 172
(A)
at 180E as follows:
“There is no
rule of thumb test or formula to apply when it comes to a
consideration of credibility of a single witness.
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 his testimony, he is satisfied that the
truth has
been told”.
The court held
further that in evaluating evidence of a single witness the trial
court should satisfy itself that the truth had
been told and the
exercise of caution must not be allowed to displace the exercise of
common sense. (at 180 F-G)
The complainant’s
evidence must be tested against that background. The complainant in
this case was found to be a satisfactory
witness in all material
respects. Her account of the events of the evening of 24 November
2008 was clear and made more sense than
that of the appellant. Her
version was in material respects supported by all the witnesses who
testified including the appellant’s
witness. The appellant’s
version on the other hand was found to be unreasonable and
improbable.
In my view, the
magistrate was correct in his assessment of the evidence. The
totality of the evidence clearly pointed to the occurrence
of the
rape. In the first instance, most of the facts are common cause. It
is common cause that the parties slept on the same
bed that night and
the appellant sat on top of the complainant strangling her. The
complainant’s version, that they were
no longer in a
relationship is the most probable version in that it is supported by
a number of factors, which are that the parties
were not living
together for months, the appellant was chased away from their “common
property” by the community members
due to his abusive behaviour
towards the complainant, and the complainant had sent her daughter to
the neighbours to sleep over
because she had a boyfriend. The
appellant’s version that the complainant was his girlfriend was
highly improbable. It
follows from the evidence at hand that the
appellant had no permission to sleep on the complainant’s bed
that night let alone
having sex with her.
His actions of
choking and raping the complainant were clearly motivated by
jealousy. He assaulted the complainant because he was
unhappy with
Disco’s visit. He choked her so he could subdue and rape her.
The loss of consciousness, visible bruises on
the eye and the injury
on the complainant’s neck indicated the amount of force that
was used against her. The amount of
force used is not consistent
with his version that he acted in self defence.
In any case, his
version of self defence consists of material discrepancies. The
version put to the complainant by his legal representative
during
cross-examination of the complainant was that she touched his private
parts when he did not want to be touched that evening
as he was not
well, giving an impression that she touched him because she wanted
his “attention”. In his testimony
however he stated that
the complainant grabbed his penis because she was angry at him
pulling the blanket.
His version that he
could not get an erection was also discredited by both the
complainant and the appellant’s own witness,
Dr Johnson. The
complainant testified that she saw the appellant’s erect penis
and he penetrated her vagina. Dr Johnson
testified that she treated
the appellant for gonorrhoea and STI. The ailments the appellant was
treated for and the existence
of HIV did not result in erectile
dysfunction. According to Dr Johnson erectile dysfunction itself
differed in severity and a
person with that condition could still
maintain an erection. If one looks at the events of that night and
Dr Johnson’s opinion,
it was highly probable that the appellant
had an erection that night.
Turning to the
discrepancies between the first report and the complainant’s
evidence. If one has regard to the reasoning
of the magistrate, it
becomes clear that he was aware of the dangers of accepting evidence
of a child. The child’s testimony
that she saw the appellant
on top of her mother when she arrived in the morning was clearly
inconsistent with the complainant’s
evidence and this could be
due to the beguiling nature of a child to convince herself of the
truth. This discrepancy was however
not material as it did not go to
the heart of the case. The child however confirmed the report given
by her mother about what
had occurred the previous night. Even if
the child’s evidence were to be disregarded, I am persuaded
that the complainant’s
evidence as a single witness, coupled
with the facts that are common cause and Dr Johnson and Chunga’s
evidence were cumulatively
compelling in sustaining a conviction of
rape.
As regards lack of
injuries to the complainant’s genitals, the legal position is
now trite that the absence of injuries on
the genitalia of the
complainant does not exclude the possibility of rape. That fact was
confirmed by Dr Chunga, who examined
the complainant.
The possible motive
suggested by the appellant that the complainant laid charges against
him because she wanted to keep his house
does not hold as the
complainant’s evidence showed that she was not interested in
keeping the house for herself.
In light of the
above, I am satisfied with the findings of the magistrate. There was
no misdirection on his part. He weighed the
merits and the demerits
of both cases of the appellant and the state, and analysed the
strengths and the weaknesses of both versions.
Taking a holistic view
of the evidence on record, he was, in my view, fully justified in
finding the appellant guilty of rape.
The appeal against the
conviction is accordingly without merit and stands to be dismissed.
In conclusion, I
must remark about the gruesome attack that the appellant directed at
the complainant. The actions of the appellant
towards the
complainant were appalling, demeaning and disgraceful. The appellant
did not only rape the complainant, but he choked
and assaulted her to
the point of losing consciousness. He treated her in the most
inhumane manner by urinating on her. Had she
not turned her face
away, he would have urinated in her mouth. Dr Chunga found that the
complainant had a yellowish discharge
in her vagina. This could have
possibly been transmitted by the appellant to her as he had also
complained of a yellow discharge
to Dr Johnson. Furthermore the
appellant could have infected the complainant with HIV. In these
circumstances, the magistrate
was correct in finding the appellant
guilty of rape and I find no grounds to disturb his findings.
In the result, I
propose the following order:
THE APPEAL
AGAINST CONVICTION IS DISMISSED AND THE CONVICTION AND SENTENCE
IMPOSED BY THE MAGISTRATE IS CONFIRMED.
BOQWANA, AJ
I agree, and it
is so ordered.
TRAVERSO, DJP