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[2010] ZAWCHC 14
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Ndevu v S (A542/09) [2010] ZAWCHC 14 (12 February 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE HIGH COURT, CAPE TOWN
CASE
NO: A542/09
VUYANI
NDEVU
APPELLANT
vs
THE
STATE
RESPONDENT
JUDGMENT
DELIVERED ON THE 12
th
OF FEBRUARY 2010
LOUW,
J:
[1]
The appellant in this appeal, who was represented throughout by a
legal representative, appeared in the Parow regional court on
one
count of raping the child "E D" during October 2004 when
she was six years old. At the commencement of the trial on
7 June
2007, some two years and eight months after the events of October
2004, the appellant pleaded not guilty and, save for admitting
that
the complainant was 6 years old in October 2004, the appellant gave
no explanation of his plea and made no further admissions.
[2]
The complainant who was by now 8 years old, gave evidence through an
intermediary in terms of the provisions of section 170A of
the
Criminal Procedure Act, 51 of 1977 (the CPA).
[3]
The magistrate questioned the complainant before the commencement of
her testimony and was not convinced that the complainant
would
understand the oath. After posing a number of further questions to
establish whether the complainant was able to distinguish
between
lies and the truth, the magistrate, acting in terms of the provisions
of section 164 of the CPA, admonished the complainant
to speak the
truth, the whole truth and nothing but the truth. I do not agree with
the submission by Mr Stamper, who appeared on
behalf of the appellant
on appeal that the procedure followed by the magistrate before
admonishing the complainant fell short of
the statutory requirements
as interpreted by our courts and that the testimony of the
complainant did not constitute evidence. In
view of the conclusion to
which I have come in regard to the outcome of the appeal against the
conviction, it is not necessary to
say anything further on this point
raised by Mr Stamper.
[4]
In all, the complainant, her mother Ms Lindi Mphuti, an adult friend
of her mother's Ms Nomile Bobotyane and Dr Emmunuel Mensah
who had
examined the complainant at approximately 22h30 on 14 October 2004 at
the Karl Bremer Hospital Rape Centre, gave evidence
on behalf of the
state. Dr Mensah handed in the report he prepared pursuant to his
examination of the complainant (the J88). Finally,
at the end of the
state case, a forensic report indicating that a swab taken by Dr
Mensah at the time of his examination of the complainant
showed that
the complainant had been infected with the sexually transmitted
disease gonorrhoea, was placed before the court with
the concurrence
of the appellant who admitted the contents of the report.
[5]
The appellant testified that he did not rape the complainant. He
raised an alibi, foreshadowed in the cross-examination of the
complainant, stating that he was at work and that he could not have
been the person who had sexually assaulted the complainant.
[6]
The appellant was convicted by the regional magistrate on the charge
of rape in a judgment delivered on 17 October 2006. After
his
conviction, the matter was in view of the age of the complainant,
referred to this court for sentence in terms of the provisions
of
section 52 of Act 105 of 1997.
[7]
The matter came before Hlophe, JP on 13 September 2007. The state
recalled Dr Mensah to give further evidence. After hearing the
further evidence of Dr Mensah and argument from counsel for both the
state and for the appellant, Hlophe, JP confirmed the conviction,
stating that if need be, he would give his reasons in due course.
After hearing argument on sentence during which the appellant's
counsel placed certain facts concerning the appellant's
personal circumstances before the court on an ex parte basis,
the
appellant was sentenced to 16 years imprisonment.
[8]
The appellant applied for leave to appeal against his conviction. On
10 April 2008, the application for leave to appeal was refused.
The
appellant thereupon applied to the president of the Supreme Court of
Appeal for leave to appeal against his conviction. On 22
May 2008,
the appellant was granted leave to appeal by the Supreme Court of
Appeal.
[9]
During the course of the trial it was not disputed that the
complainant had been sexually assaulted although the nature of the
assault remained in dispute.
[10]
On appeal Mr Stamper raised two issues regarding the merits of the
conviction. The first concerned the identity of the wrongdoer.
He
submitted that the evidence did not establish beyond reasonable doubt
that it was the appellant who had sexually assaulted the
complainant.
The second contention was that even if it were found that the
appellant was the wrongdoer, the evidence did not establish
penetration and that consequently the crime of rape had not been
proven. At most, he submitted, the appellant was guilty of attempted
rape or indecent assault.
[11]
The complainant who was in grade 2 by the time she testified said
that she spent two years in grade 1. One day, at a time she
was in
grade 1 for the first time (which would be during 2004) and while
living in Fisantekraal with her mother, father and siblings
and while
she was playing with her younger sister Akona, a person whom she knew
as Vuyani and who also lived in Fisantekraal, called
her and told her
he was going to give her some sweets.
[12]
The complainant referred throughout her evidence to this person as
Vuyani or Boet Vuyani. She was never asked to formally identify
the
appellant as the person to whom she was so referring. It was common
cause at the trial that the appellant frequented the tavern
run by
her father from their home and that she and the appellant had known
one another at the time of the incident and that it was
indeed the
appellant to whom she was referring when she spoke of Boet Vuyani.
[13]
The complainant testified that she went with Vuyani to his house.
With her were her younger sister Akona and an even younger
boy,
Nkululeko, the son of sister Malengelu. At the time of the trial the
boy had not yet reached school-going age.
[14]
According to the complainant Boet Vuyani took off her panty and
undressed himself. He then put the children under blankets and
told
Akona and Nkululeko to lie down and sleep. They were all lying on
their sides under the blankets and Vuyani then put his penis
in her
vagina to which she referred to as her koeko. When first asked what
Vuyani did when he put his penis in her koeko, she said
that she
could not remember. Asked whether he was lying still or moving, she
said he was moving and demonstrated what Vuyani did.
The magistrate
described the movements as a "bouncing up and down". When
first asked what it felt like to her, the complainant
said that she
could not remember, but on being asked whether she felt anything, she
said that it was painful.
[15]
The complainant also described what she remembered of the inside of
Vuyani's house. There was no wardrobe and there was one bed.
She saw
toiletries on a table in front of the bed and there was no kitchen.
[16]
The complainant explained that she came out with what had happened to
her after her mother noticed that she could not walk properly
and
also noticed some blood on her pajamas on a Saturday, one day after
the incident.
[17]
Under cross-examination the complainant stated that the day she was
raped, she had been to school. At the time her school day
ended at 12
o'clock in the afternoon. After school she would first walk home to
take off her school clothes. On the day in question,
she was playing
with Akona and Nkululeku after school.
[18]
In order to understand the import of the complainant's evidence as to
when the incident occurred, it is important to bear in
mind that the
complainant was examined by Dr Mensah on Thursday 14 October 2004.
This is also the day on which the appellant was
arrested. The only
inference to be drawn from the complainant's evidence is that she was
raped on a weekday during the week which
preceded the week during
which she was examined by Dr Mensah and when the appellant was
arrested.
[19]
It was put to the complainant on behalf of the appellant that it
could not have been Boet Vuyani who had raped her because he
worked
during the day from 12 noon to 1 am the next morning and that the
only day he worked from 7 am until 4:30 pm was on the day
he was
arrested. The complainant at first responded that she had forgotten.
When asked what she meant, she said that she had forgotten
the truth.
When it was put directly to her by the magistrate that Boet Vuyani
says that it was not him that had raped her because
he was at work at
that time, she disagreed with the statement.
[20]
The complainant confirmed that her mother had first taken her to two
persons, her aunt Nomile and a Duduzile, and that they asked
her what
had happened to her and that she told them that she did not know. She
said that she had forgotten why she had said to these
persons that
she did not know.
[21]
The complainant confirmed that the first person she told about what
had happened to her was Nolala's mother Ms Bobotyane. Ms
Boboetyane
testified that Ms Mphuti brought the complainant to her on 13 October
2004 (a Wednesday) with a complaint that something
was wrong. She
examined the child and found a yellowish discharge from her vagina
which was painful. On questioning the complainant,
who was shy,
looked down and at first would not answer but finally, once she had
been told that they were not going to hit her, told
her that Boet
Vuyani had put his penis into her.
[22]
The complainant confirmed that she was present when her father
confronted Boet Vuyani. She confirmed that when she was first
asked
by her father whether it was Boet Vuyani who had raped her, she kept
quiet and that when her father asked again in a loud voice,
as if he
was cross, she said yes. She said, when it was put to her by the
magistrate, who intervened in the questioning, that "Boet
Vuyani
says the only reason that you are saying that it is him is because
her father scared her into saying so" she answered
yes. On
further questioning by the magistrate she reiterated that it was Boet
Vuyani who did it to her.
[23]
In cross-examination the complainant said that during the rape the
other two children were asleep and facing away from her while
she was
facing in their direction. Her back was to Boet Vuyani. On further
questioning, she said that she was behind Vuyani. She
then said that
Vuyani was lying on his side in front of her with his tummy side
towards her. He put his penis inside her koek and
not on top. It was
painful.
[24]
She was again asked in cross-examination to describe Vuyani's house.
There was one room only with one door, one window and a
small bed.
She indicated with her left hand and said that the bed was on the
right hand side as you enter through the door. She was
asked again to
indicate with her hand where the bed was and again indicated towards
the left. She also saw a suitcase and some toiletries
on a small
table. She indicated with her right hand where the window was. There
was no furniture close to the window. She did not
agree that she had
never been inside his house. She also did not agree that the bed was
not small but in fact a big double bed. She
did agree that the bed
was on the right hand side behind the door, but did not agree that
there was a kitchen side to the room with
a stove, pots and plates.
She says that she had forgotten why she did not say anything to
Vuyani when he took her clothes off, while
knowing it not to be
right. In re-examination the complainant says she first told Mrs
Bobotyane because she did not want to tell
her mother.
[25]
The complainant's mother testified that she did their washing on a
Monday and on a Thursday. When she was about to do the washing
on a
Monday, she noticed what to her appeared to be blood on the panties
the complainant had worn on 'the Sunday'. She also noticed
that the
complainant was not walking well. She then called in her
sister-in-law Ms Duduzele "D" who examined the
complainant's
vagina. They then took her to Ms Bobotyane who also
examined her. When questioned by Ms Bobotyane, the complainant told
her that
Boet Vuyani had put his penis in her. When Ms Bobotyane
asked why she did not tell her parents about it, she said that Boet
Vuyani
bought her chips afterwards and told her not to tell anyone.
When it was put to Ms Mphuti that it could not have been the
appellant,
Ms Mphuti stated that he was lying because, on the Sunday,
he was not at work and was near their house. It is clear that Ms
Mphuti
assumed that the rape must have occurred on the Sunday. This
assumption is in direct conflict with the express evidence of the
complainant
that it happened on a school day. What is clear, however,
on the evidence of both daughter and mother is that the rape did not
occur
during the week the appellant was arrested.
[26]
Dr Mensah examined the complainant on Thursday 14 October
2004.
His findings were recorded in the J88 as follows:
Excoriation
(linear) on the medical (opposing) edges or the labia majora with
purulent discharge. Could be sign of infection probably
sexually
transmitted. Hymen is still intact
but
act could be between the labia,
(my
emphasis)
Dr
Mensah explained what he meant with the statement that the act
could
be between the labia as follows:
What
I meant is that you can rub the penis on the beam between the labia
without actually attempting to penetrate (indistinct)
and if you
ejaculate there, that can also lead to infection which is sexually
transmitted. He explained the excoriation he found
during the
examination as
follows:
Excoriation,
as I explained to him earlier on is this redness and it looks as if
the skin is also peeling off you know with the redness
- underlying
redness with some peeling off of the skin - underlying skin. It is
the whole peel off but it is just like - well I don't
know, a wet
skin, when an area is wet for a long time, the kind of peeled off of
the skin that accompanies it - the wet area. Dr
Mensah further
explained that
The
infection could be either due to poor hygiene or could be sexually
transmitted, you see now, so that is what, what, what I'm saying.
I'm
not saying the redness or the excoriation I'm saying is due to the
rubbing you know, it does not matter, you don't have' to really
insert your penis to be able you know infect if the semen you
discharge is you know, contains infected material and touches the
area,
you can develop the infection. You understand, without
necessarily having full penetration. In cross-examination Dr Mensah
explained
that he found the redness
on
the outside edge of the labia
it's
not inside, it's just on the outside
Dr
Mensah stated further
I
am not saying the redness is due to rubbing against; I said it is
more due to the wetness you know. But what I mean is that one
could
(indistinct - fades) without penetrating and if one comes into
contact with the semen, or infected semen, you could still develop
a
kind of infection As to the blood on the panties Dr Mensah said that
...
that is what they said, but we did only notice the purulent discharge
. . . The panties that we saw had just a purulent discharge
. . .
yellowish . . . not blood stained . . . otherwise we would have
noticed it.
[27]
Under cross-examination Dr Mensah said that he found no injuries he
would have expected to find if the perpetrator had attempted
to
penetrate.
[28]
Dr Mensah was recalled to testify when the matter came up for
sentence in this court. He stated that the purulent discharge would
appear 48 - 78 hours (72 hours) after sexual contact with infected
semen. It could even be as little as 24 hours, however, depending
on
the number of organisms inoculated. When the discharge starts, it
continues because infection continues until it is treated.
The
excoriation he found would have developed in 24 - 48 hours before his
examination. He further stated that the sexual contact
could have
been 4 days before his examination. He said that he could conjecture
that the sexual act was just between the labia minora.
He also stated
that ejaculation was not necessary because the transmission of the
disease could occur from a purulent discharge of
the penis itself.
[29]
The only reasonable inference to be drawn from the evidence of Dr
Mensah is that the person who had sexually assaulted the complainant
is the person who infected her with the gonorrhoea because that is
the only way in which the disease could have been transmitted
to her.
[30]
The appellant testified that he lived in Fisantekraal with his wife
who was still at school in a one room bungalow with double
bed behind
the door as you enter on the left side, a homemade table, three
bicycles, a gas tank, cutlery, pots and a clothing bag.
There was one
window on the left side. He knew the complainant from being a visitor
to her father's tavern. The complainant also
knew him because she saw
him when he came to visit her father's place. The complainant's
father never visited his house and he never
saw the complainant at
his home.
[31]
Turning to his work, the appellant testified that he had been working
alternating weekly shifts at the County Fair chicken farm
for about
one year. One week he worked from Monday to Friday from 3 am in the
morning to 1 pm in the afternoon. They would get off
work at 1 pm to
2 pm, but sometimes it could get as late as 3 pm if the lorries were
late. The next week, starting at 1 pm on the
Sunday, he would work
from 1 pm in the afternoon to 3 am the next morning.
[32]
The appellant was arrested on Thursday 14 October 2004. He testified
that during the week of his arrest, he worked the 3 am -
1 pm shift.
On the Thursday he was arrested, he had come to work at 3am that
morning but was told by his supervisor to wait until
7 am for the
employer who gave him instructions to find 10 men to come to work the
next day which was the Friday. He worked until
4:25 pm and left work
at 4:30 pm. After work, he proceeded to the home of the complainant's
father to look for recruits. He was confronted
by the complainant's
mother with the allegation that he had raped the complainant. Later
that day he was confronted by the complainant's
father who had
brought the complainant with him. The father asked the complainant in
his presence whether it is not correct that
it was the appellant who
had raped her and then bought her some chips. The complainant did not
respond. The father then asked again
in a "rough" and
"harsh" voice whether it was the appellant. The complainant
then agreed that it was the appellant.
The appellant then went to
the police station of his own accord and he was arrested. The
appellant is of the view that the complainant
implicated him because
of the pressure put on her by her father.
[33]
The cross-examination by the prosecutor proceeded on the wrong
premise. It was put to the appellant that he had raped the
complainant
earlier on during the week that he was arrested. This was
not in accordance with the evidence of the state. At best for the
state,
it was uncertain at the commencement of the trial when the
rape occurred. The charge sheet simply alleged that it occurred
during
October 2004. The complainant, however, made it clear that the
rape occurred on a school day after she had left school at 12 pm.
She
would have gone home to change and then played with her sister. It
was after one day, on a Saturday, that her mother saw the
blood in
her clothes. This means, that on the complainant's version, the rape
could not have occurred during the week that the appellant
was
arrested. It must, on her version have occurred during the previous
week. During that week the appellant worked from 1 pm in
the
afternoon to 3 am the next morning. It was in the context of this
evidence of the complainant, that it was put to the complainant
in
cross-examination that the appellant worked during the day from 12 pm
to 1 am the next morning and that he was not at home in
the afternoon
when she came from school. It was also put to the complainant that
the only day he worked from 7 am until 4:30 pm was
the day of his
arrest. It is true that it was not put to the complainant that the
shifts alternated and that one week he worked from
3 am to 1 pm,
which in practice, could be up to 3 pm. However, having regard to the
complainant's evidence that the incident occurred
on a weekday with a
weekend in between, it was not necessary to put to her the hours he
worked during the week he was arrested.
[34]
The evidence of the complainant's mother Ms Mphuti, when seen against
the background of the evidence of Dr Mensah, is in line
with the
complainant's evidence. He testified that the purulent discharge
would develop 48 to 72 hours after the sexual contact,
although it
could be as little as 24 hours. This means that the discharge the
complainant's mother saw on the Monday in the clothes
worn by the
complainant on the previous Sunday, was caused by sexual contact at
least 24 hours but up to even 72 hours before the
Sunday that she
wore the clothes. If this evidence is read with the complainant's
evidence, it places the occurrence at sometime
during the week
preceding the weekend.
[35]
The cross-examination of the appellant on the basis that the incident
happened during the week that he was arrested, was therefore
incorrect and misleading. During cross-examination, the appellant
stated that he understood the allegation to be that the incident
occurred during the week of his arrest. If he were untruthful he
could surely have tried to change his evidence to make that week
the
week that he worked the 1 pm - 3 am shift. He did not do so. He
confirmed under cross-examination that during the week of his
arrest
he worked the 3 am to 1 pm shift.
[36]
Although the appellant was questioned about the hours he worked and
why it appeared that some shifts were longer hours than the
other, he
was not challenged in cross-examination on the fact that he worked
the alternating shifts at County Fair. In fact, it appears
that his
evidence that he worked alternating shifts was confirmed by Ms Mphuti
who said that he worked sometimes during the day and
sometimes during
the night. The appellant was cross-examined on the hours he worked on
the day of his arrest 14 October 2004 and
when he left work on that
day. Apart from the fact that his working hours on the day he was
arrested (Thursday 14 October 2004) was
really irrelevant, even here
the prosecutor (and the court) got it wrong. It was put to him that
his evidence was that he had knocked
off work at 1 pm on that day and
that he later changed his evidence to say that he only knocked of at
4:25 pm. This is not correct.
He said that he knocked off on that day
at 4:25 or 4:30 and got home at 'something to 5'. He did not say, as
the magistrate suggested
during the course of his evidence, that he
knocked off at 1 pm on the day of his arrest.
[37]
The complainant is a young child and a single witness in regard to
the question of the identity of the person who had sexually
assaulted
her. The magistrate found that the complainant created a very good
impression and that she appeared to be credible. Her
evidence that
she was sexually assaulted is corroborated by the evidence of Dr
Mensah and the fact that she contracted gonorrhoea.
This evidence
does, however, not, as was pointed out by the magistrate, corroborate
her evidence as to the identity of her assailant.
[38]
The complainant first revealed the identity of the appellant as her
attacker a number of days after the event to Ms Bobotyane
on the
Wednesday (13 October 2004). The delay could be explained by the
young age of the complainant and her understandable reluctance
to
speak about what had happened to her. The laying of the complaint
does not constitute corroboration for her evidence of identification.
It is admissible, however, to show consistency in respect of her
allegation of the identity of her attacker. The delay in making
the
complaint does, however, diminish the value of the evidence of the
complaint because it is generally held that a significant
delay
allows more time for the child to fabricate and to be influenced.
[39]
It is common cause that the complainant and the appellant knew one
another. One is therefore instinctively inclined to ask why
a young
child would in these circumstances falsely accuse the appellant of
raping her. There were, however, a number of aspects to
the
complainant's evidence that need to be considered. The first issue is
her evidence about whether she had been in the appellant's
home
before the incident. When asked by the prosecutor whether she had
been in the appellant's house before, she said yes, she had
gone
there because she had been sent there by 'some guy' to call him, but
that he was not at home. Immediately thereafter she said
that she had
never been in his house before she was raped. Now, it is quite
possible that the earlier evidence was due to a misunderstanding
between the prosecutor and the complainant. However, no effort was
made by the prosecutor to clear up what on the face of it appears
to
be a contradiction. The magistrate found that the complainant's
evidence was that although she had been to the appellant's house
earlier to call him, she had never before been inside his house.
Again, when she was initially asked by the prosecutor who was placed
on the blankets, the complainant said that they (the children) were
placed on the blankets after the appellant had removed her panty
and
had undressed himself. When the prosecutor asked who had been put
under
the
blanket, she said that he put all three the children
under
the
blanket and he himself also got in under the blanket. Again the
earlier answer may have been the result of a misunderstanding
between
the prosecutor and the complainant and the way in which the question
was put by the prosecutor. Again no effort was made
by the prosecutor
to clear up what on the face of it appears to be a contradiction. As
to the position in which she and the appellant
lay on the bed, there
is confusion. In cross-examination she said the other children were
facing away from her and that she was facing
towards them. She agreed
that that meant that she then had her back to the appellant. She then
explained that she was lying behind
the appellant only, on further
questioning to say that they were facing one another when the
appellant put his penis in her vagina.
Again, no attempt was made by
the prosecutor to clear up what appear to be contradictions in her
evidence. Throughout her evidence,
the complainant, more than once
stated that the appellant had put his penis inside her vagina and
that it was painful. She also said
and demonstrated that he made a
bouncing movement. The allegation that the appellant put his penis
inside her vagina is not unequivocally
supported by the medical
evidence to which I referred earlier. The complainant said that the
appellant's bed was on right hand side
but indicated with her left
hand. It was put to her that the appellant would say that the bed is
on the right hand side behind the
door. The complainant agreed and
said that earlier when she indicated with left hand, she had made a
mistake. The magistrate is correct
that the appellant later testified
that the bed was behind the door on the left side as you enter the
room and that this differs
from what was put to the complainant.
However, the magistrate downplays the apparent contradiction in the
complaint's evidence as
to where the bed was. The complainant said on
a number of occasions that she could not remember certain important
matters. These
are the kind of problems that can arise in the
evidence of a child. They can probably be ascribed to the fact that
the complainant
was a very young child who gave evidence more than
two years after the event. However, it does illustrate the fact that
one must
be careful in evaluating the evidence of the child.
[40]
Against this background, the magistrate proceeded to consider
the
appellant's version which she characterised as follows:
His
defence rested on a bare denial and an attempt to provide an alibi
for himself in terms of his work programme. No evidence was
placed
before the Court to confirm which shift he had been working when this
incident was alleged to have taken place.
The
appellant's evidence that he worked shifts was not disputed in
cross-examination
and was in fact consistent with the evidence of the complainant's
mother who said that he worked sometimes during
the day and sometimes
during the night. While the appellant was asked in cross-examination
about the hours he worked during each
of the shifts and his working
hours on the day he was arrested, his evidence of the hours he worked
during the week preceding the
week of his arrest was not directly
challenged in cross-examination.
[41]
The state was aware, from the cross-examination of the complainant on
7 June 2006 (the day upon which her mother also testified),
of the
appellant's allegations as to when he worked at the time he was
alleged to have raped the complainant. The matter was postponed
on a
number of occasions after the complainant gave her evidence and it
was only four months later, on 11 October 2006 that the state
closed
its case and when the appellant testified. The state therefore had
four months in which to verify and to check the appellant's
alibi
based on the hours allegedly worked by him. In contrast the appellant
was in custody from 14 October 2004 throughout his trial.
[42]
It is trite that there is no onus on an accused to prove the alibi
raised by him but it is generally required of the accused
to raise
the issue before or during the state case and to adduce some evidence
of the alibi. Depending on the circumstances, the
mere word of the
accused may be of little value. In this case the prosecutor was
apparently under the impression that the evidence
by the state
witnesses placed the occurrence during the week that the appellant
was arrested. Thus, while the evidence for the state
was that the
incident did not take place during that week the appellant was
cross-examined on the wrong assumption and the appellant's
evidence
regarding his work schedule during the previous week, was not
directly chdllenged. It was not put to him that he did not
work the
hours he claimed to have done during that week or if he did that he
could have raped the complainant after she came home
from school and
before he reported for work at 1 pm. In cross-examination the
appellant gave his supervisor's name and stated that
they clocked in
and out at work. It cannot in my view be said that in the absence of
any evidence to the contrary, the appellant's
evidence of the shifts
and hours he worked carried little weight.
[43]
In rejecting the appellant's evidence that he could not have
committed
the crime because he was at work, the magistrate
reasoned
as follows:
The
only date upon which the court can rely in this matter is the date of
the examination by the doctor. (Thursday 14 October 2004).
The
precise time or day that this offence occurred was not clear. It
could have been a weekday as "E"remembered or it could
have
been a Sunday as her mother remembered. Either way the explanation
given by Mr Ndevu that it could not have been him because
he was
working did not stand up under cross-examination and the Court is
satisfied that he did not show that he would have been absent
either
on the Sunday or during the week in which it was alleged to have
occurred.
[44]
This passage in the judgment is crucial to the magistrate's
evaluation of the appellant's evidence. However, it contains
misdirections
as to the facts and the law.
1.
The incident could have occurred on a weekday as "E"remembered
or a Sunday as her mother remembered. As
pointed
out earlier, the state case on the evidence of the complainant, her
mother and the doctor was that in all probability the
incident took
place on a weekday in the week preceding the week during which the
appellant was arrested and when the complainant
was examined by the
doctor.
The
explanation given by the appellant did not stand up to
cross-examination. As pointed out, the cross-examination of the
appellant
related to the next week, not the week pointed to by the
evidence of the state witnesses. It cannot therefore be said that
his
explanation 'did not stand up under cross-examination'.
The
court is satisfied that
the
appellant did not show
that
he would have been absent either on the Sunday or during the week in
which it was alleged to have occurred. Here the magistrate
appears
to approach the evaluation of the appellant's evidence of the basis
that an onus rested on the appellant to show that he
was absent.
This is wrong in law.
[45]
The approach to be adopted by the court has been stated in a passage
from the judgment of Nugent, J (as he then was) in
S
v Van der Meyden
1999(1
)SACR 447(W) at 450, which has been referred with approval in many
subsequent cases
1
,
as follows
A
court does not base its conclusion, whether it be to convict or to
acquit, on only part of the evidence. The conclusion which it
arrives
at must account for all the evidence....
I
am not sure that elaboration upon a well-established test is
necessarily helpful. On the contrary, it might at times contribute
to
confusion by diverting the focus of the test. The proper test is that
an accused is bound to be convicted if the evidence establishes
his
guilt beyond reasonable doubt, and the logical corollary is that he
must be acquitted if it is reasonably possible that he might
be
innocent. The process of reasoning which is appropriate to the
application of that test in any particular case will depend on
the
nature of the evidence which the court has before it. What must be
borne in mind, however, is that the conclusion which is reached
(whether it be to convict or to acquit) must account for all the
evidence. Some of the evidence might be found to be false; some
of it
might be found to be unreliable; and some of it might be found to be
only possibly false or unreliable; but none of it may
simply be
ignored.'
[46]
In this case, the evidence of the appellant that he was working from
1 pm to 3 am the next morning during the week that the evidence
by
the state alleges the incident occurred was not accounted for. On the
totality of the evidence, the appellant's explanation of
where he was
during the crucial week has not been shown to be not reasonably
possibly true. It is true that if he only started work
at 1 pm there
may have been enough time, between the time the complainant came home
from school and when the appellant started work.
This issue was,
however, not addressed in evidence and in the cross-examination of
the appellant. In my view, on the probabilities
there would, in any
event not have been sufficient time. It will be remembered that the
complainant's school came out at 12 pm. She
would then have walked
home and changed. Thereafter she went to play with the sister and
young friend. The time all of this took
was not explored in evidence.
The appellant was also not asked when he would leave to go to work so
that he would be in time to start
work at 1 pm.
[47]
There is another issue. At the end of the state case it was clear
that the person who had sexually assaulted the complainant
must have
been suffering from gonorrhoea, a sexually transmitted disease. The
appellant was in custody throughout the trial and since
his arrest on
14 October 2004. If he were the perpetrator he would, according to Dr
Mensah, have been suffering of gonorrhoea. This
matter was not
addressed in evidence at all. In fact, it was not even put to the
appellant that he was suffering of and had infected
the complainant
with the illness.
[48]
This is a distressing case. A young girl endured a serious sexual
assault and was infected with gonorrhoea. She identified her
assailant after a number of days. He raised an alibi at the trial.
This alibi couldhave been checked by the state who knew where
he
worked, during the course of the trial before the state closed its
case. Since he was required to clock in and out of work, records
would most probably have been available to show on what days and
during which hours he worked. The assailant infected the complainant
with gonorrhoea. The suspect was in custody from soon after the
event. None of this was apparently followed up by the state. The
only
issue was the identity of the assailant. For this the prosecution
ultimately relied on the complainant's evidence and on the
cross-examination of the appellant. The complainant was a very young
girl who was called upon to testify about events which took
place
more than two years earlier. The cross-examination, such as it was,
was conducted on an incorrect premise.
[49]
In my view, having regard to all the evidence, the quality and weight
of the evidence on behalf of the state was not so persuasive
as to
eliminate the possibility that the evidence of the appellant may be
true.
2
In my view, the state has not discharged the onus of proving that it
was the appellant who sexually assaulted the complainant.
[50]
In view of the conclusion to which I have come, it is not necessary
to consider Mr Stamper's further submission that penetration
had in
any event not been established.
[51]
In my view the appeal against the conviction must succeed and the
conviction and sentence be set aside.
[52]
I would therefore make the following order:
(i)
The
appeal against the conviction is upheld.
(ii)
The
conviction and sentence is set aside.
W
J LOUW, J
I
agree
R ALLIE, J
I
agree
D
H ZONDI, J
1
See
for instance, S
v
van Aswegen
2001(2)
SACR 97 (SCA) at 101
2
S
v
van Tellingen
1992(2)SACR
105 (C) at 106 c-h