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[2010] ZAWCHC 62
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Jacobs v S (A532/07) [2010] ZAWCHC 62 (19 February 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
No: A532/07
In
the matter between:
ANTHONY
JACOBS Appellant
Versus
THE
STATE Respondent
JUDGMENT
DELIVERED ON 19 FEBRUARY 2010
Allie,
J
[1]
The appellant was arraigned in Parow's Regional court on one count of
rape and one court of assault. He pleaded not guilty and
had legal
representation at the trial. He was convicted and sentenced to 10
years imprisonment on the rape count and 3 months imprisonment
on the
assault count, the latter sentence was ordered to run concurrently
with the sentence imposed on the rape count.
[2]
He now appeals against the convictions and sentence.
[3]
The state alleged that the appellant, who was a friend of the
complainant's brother and therefore known to her, dragged the
complainant
down the stairs of her flat, over a field, kicked her in
the ribs and slapped her in the face. He then allegedly dragged her
into
a disused creche building, pushed her to the ground and raped
her before the police arrived.
[4]
The appellant's version was that he and the complainant were in a
sexual relationship and she had consented to having intercourse
with
him on the night that the offences were allegedly committed.
[5]
The evidence of the complainant do not accord with her testimony of
rape in the following respects:
She
said that he dragged her down the stairs of her flat one floor below
her front door, yet she decided not to shout for help.
In that time
there were people around, yet she did not shout. She said that at
that point he was pulling her and she was pulling
back. She said
that she did not know then that he intended raping her. That may
well be correct, but she must have realised that
he intended hurting
her as he was pulling and dragging her and it was not friendly
behaviour. She chose not to shout even when
being dragged over a
field.
Even
when he twisted her arm in front of a lady who passed by, she did
not ask for help. When he pushed her into the disused creche
building and knocked her to the ground, she still did not call for
help. At no stage in her evidence did she allege that he threatened
to harm her if she should shout.
[6]
Her testimony that the appellant told her outside the creche building
that a woman was peeping through her window at the house
on the
opposite side is strange. It is not consistent with the conduct of a
rapist who wanted the complainant to go into the building
with him.
[7]
She also testified that he placed his jacket on the ground for her to
lie on before he forced her to the ground. That is also
not
consistent with the behaviour of someone who intended forcibly having
sexual intercourse with her without her consent.
[8]
The complainant testified that while the appellant was raping her,
the police arrived. She failed to tell the police then that
she had
been raped. She stood behind the appellant instead of running to the
police. She waited until the police asked her in the
police van on
the way to the police station whether she had consented to having
sexual intercourse with the complainant, before saying
that she did
not give consent. She agreed with the defence that when the police
arrived, they said they were going to arrest them
both.
[9]
Her testimony that her bruises on her head were visibly blue when she
saw the doctor is not confirmed by the doctor.
[10]
The complainant's friend Nadia Snell who testified in the state's
case said that the complainant had previously pointed the appellant
out as her boyfriend. During cross examination the complainant denied
that the appellant was her boyfriend. However, the fact that
the
perpetrator of rape was in a relationship with the victim, does not
justify rape. The discrepancy between the evidence of the
complainant
and Nadia Snell on this issue does caste doubt on the complainant's
credibility.
[11]
More importantly however, the
court
a quo
drew
an inference that the police was alerted by an unknown man who
alleged that a woman was beaten and dragged into the building
without
the testimony of the unknown man. That evidence is hearsay. An
inference can only be drawn from conclusively proven facts.
The
finding of the
court
a quo
on
that aspect, is a material misdirection.
[12]
The medical evidence is of no assistance to the state as it is not
unequivocal. By not being satisfied with the appellant's inability
to
explain the presence of a tear on the complainant's fossa
navicularis, the regional magistrate inadvertently placed the onus of
proof on the appellant. There is, of course, no obligation on the
appellant to explain the tear in the light of the indeterminate
nature of the medical evidence.
[13]
On a conspectus of all the evidence, I am of the view that the
appellant's testimony seen together with aspects of the state's
case
that support his version, is reasonably possibly true. The state has
not, in my view, discharged its onus of proof beyond reasonable
doubt.
[14]
I would accordingly set aside the convictions.
ALLIE,
J
I
agree
KING,
A J