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[2014] ZAWCHC 98
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Larry v S (A573/2013) [2014] ZAWCHC 98 (13 June 2014)
THE
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
CASE
NO:A573/2013
DATE:
13 JUNE 2014
In
the matter between:
DEON
RAYMOND LARRY
.................
Appellant
Versus
THE
STATE
................................
Respondent
JUDGMENT:
13 JUNE 2014
BOZALEK, J:
[1]
The appellant was convicted in the Regional
Court, Parow on a charge of sexual assault i.e. contravening
section
5(1)
of the
Criminal Law (Sexual Offences and Related Matters)
Amendment Act, 32 of 2007
and sentenced, on 28 October 2013, to three
years imprisonment wholly suspended for a period of five years. With
the leave of the
magistrate the appellant now appeals against
conviction only.
[2]
The charge alleged that the appellant
sexually assaulted the complainant, an 18 year old woman, by touching
her breasts and forcing
his hand into her pants and touching her
vagina.
[3]
The appellant pleaded not guilty and was
legally represented throughout the trial. The State led the evidence
of the complainant
and that of her friend, Mr Rudi Koopstad. The
appellant testified in his own defence and called a witness, a Mr D
Hope.
[4]
After the notice of appeal had been filed
the appellant applied to amend same by the inclusion of a further
ground of appeal to
the effect that the magistrate had ‘
unfairly
and unjustly interfered with and curtailed/obstructed the
cross-examination of the complainant, with the result that a
fundamental irregularity occurred in the trial’
.
An acceptable explanation for the late raising of this ground of
appeal was proffered and the application was not opposed by the
State. Accordingly the amendment was allowed.
[5]
In short, the evidence led by the State was
that the appellant was a business man who had purchased on auction
the house in which
the complainant and her family lived after they
had fallen into arrears with their bond instalments. In the course of
his dealings
with the complainant’s father the appellant had
promised to secure a sponsor for the complainant’s tertiary
studies,
she then being a matric scholar. To this end he purported to
arrange for the complainant to be interviewed by the prospective
sponsor,
a Chinese national, and arrived at the complainant’s
house one evening at about 8pm to drive her to this appointment. The
interview did not take place, however, and instead the appellant
drove to various spots and houses in Cape Town that night for
various
purposes. At the last house at which he stopped the appellant showed
the complainant around and, in one of the bedrooms,
purported to give
her self-defence lessons. It was during the course thereof that the
appellant was alleged to have sexually assaulted
her in the manner
described. After a struggle the complainant eluded the appellant and
ran outside to wait at his vehicle. The
appellant then drove her
home. For various reasons the complainant did not immediately report
the assault upon her to her family
but only advised her boyfriend,
Koopstad, some days later and then only partially when chatting with
him through Mxit on her cell
phone. This eventually led to her
disclosing the assault to her family and the laying of charges
against the appellant. Koopstad
was called to confirm the first
report made to him by the complainant through Mxit, a texting
application.
[6]
The appellant testified in his own defence,
confirming in broad outline the events of the night in question save
that he denied
that anything untoward occurred during the
self-defence lesson. Instead, he testified, the complainant had made
demands for money
from him which had made him most uncomfortable. His
witness, Hope, testified that he had been employed by the appellant
to look
after a house in Blackheath where the appellant had first
stopped off that night. The appellant had asked him to take the
complainant
home but she had declined to go with the witness.
[7]
The magistrate accepted the evidence of the
complainant who, she found, gave her evidence in a clear and
satisfactory manner with
no material contradictions. She found that
there were guarantees for the complainant’s version in the
evidence of Koopstad
who had received the first report of the alleged
assault from her. By contrast the magistrate found that the appellant
had not
made a good impression as a witness. She found that his
version was fraught with lies and contradictions and, ultimately, she
rejected
it as false beyond reasonable doubt.
[8]
It is appropriate, firstly, to deal with
the appellant’s additional ground of appeal. The appellant
cites the following three
examples of how the magistrate curtailed
and obstructed the cross-examination by the appellant’s
attorneys of the complainant:
‘
8.2.1
[MR VAN DYK]
:
“Now can you tell the court how did you get away? --- I just –
in my statement you will read I got a gap and I don’t
know how
I got away.
[MR
VAN DYK]:
Ja maar you must
please tell the court how did you get away.
COURT
:
No I understand completely Sir. She doesn’t actually need to
repeat to me. I understand what she is trying to say. You can
ask the
next question.
8.2.2
[MR VAN DYK]:
“So when you got out, was the old man
still there? --- Yes, he was standing outside.
What
did you tell him? --- I didn’t tell him anything.
Pardon?
--- I didn’t tell him anything
Why
not?
COURT
:
Was she supposed to?
MR
VAN DYK
: Pardon?
COURT
:
Was she supposed to?
MR
VAN DYK
: I would imagine Your
Worship
COURT
:
No. Excuse me. You will not stereotype anybody who testifies in my
court, because that’s a perception you have. So if she
says she
didn’t, then she didn’t.
8.2.3
MR VAN DYK
: “Now in your evidence, ag in your statement,
sorry Your Worship, paragraph 18 you say:
“
Ek
het toe vir Cindy gelieg oor waar ons was. Ek het gesê dat ek
by die huis by die vrou was wat vir my gaan sponsor. Ek het
toe gaan
slaap.”
Now
there you had a golden opportunity to tell Cindy what happened.
COURT
:
H’m, sorry. Who says she must?
MR
VAN DYK
: Pardon Your Worship?
COURT
:
Who says she must tell Cindy? Who says she must tell anybody? Where
is the rule that says you must tell somebody? Explain that
to me so
that I can understand it, because I don’t understand it.
MR
VAN DYK
: I am sorry Your
Worship, please.
COURT
:
There is no such rule Sir.
MR
VAN DYK
: No there is no such
rule, but there’s also the rule … (intervention)
COURT
:
So to say to her you had a golden opportunity to now tell …
MR
VAN DYK
: That’s right.
COURT
:
No. She doesn’t need to tell.
MR
VAN DYK
: I am referring to the
so-called You and Cry (sic) Your Worship.
COURT
:
No, this … (intervention).
MR
VAN DYK
: I am sorry if you find
it funny.
COURT
:
I don’t find it funny at all. This is a matter with sexual
connotations to itSir.
MR
VAN DYK
: H’n-‘n?
COURT
:
A victim of sexual offence or a rape victim or those victims, it
doesn’t mean anything if they don’t tell anybody.
Do you
understand?
MR
VAN DYK
: I accept your view on
that.
COURT
:
It is not my view. It is just the way it is.’
[9]
It
was argued that the questions which the appellant’s attorney
was blocked from posing or pursuing were relevant and should
have
been allowed and further, that the magistrate had shown inappropriate
and undue impatience and irritability in the conduct
of the
appellant’s defence. In arguing that an irregularity had taken
place the appellant’s counsel relied
inter
alia
on
S
v Rall
1982
(1) SA 828
(A);
S
v Le Grange and Others
[2008] ZASCA 102
;
2009 (1) SACR 125
(SCA),
S
v Heslop
2007 (1) SACR 461
(SCA) at 469 F;
S
v Musiker
2013 (1) SACR 517
(SCA) and
S
v Mlimo
[2008] ZASCA 7
;
2008 (2) SACR 48
(SCA) at 51I – 52A.
S
v Rall
was concerned with the limits within which judicial questioning
should be confined and it was held that certain broad well-known
limitations should generally be observed, chief amongst which was
that the trial judge should so conduct the trial so that his/her
open-mindedness, his impartiality and his fairness are manifest to
all those who are concerned in the trial and its outcome, especially
the accused
[1]
. The Court held
that any serious transgression of the limitations which it set out
would in general constitute an irregularity
in the proceedings.
Whether or not the appeal court would intervene to grant appropriate
relief at the instance of the accused
depended upon whether or not
the irregularity had resulted in a failure of justice. That in turn
depended upon whether or not the
irregularity prejudiced the accused
or possibly whether the appeal court’s intervention was
required in the interests of
public policy
[2]
.
[10]
In
S
v Le Grange and Others
[supra] it was held that presiding over criminal trials was a
difficult task and cross-examination could sometimes appear
protracted
and irrelevant. However, impatience was something that a
judicial officer must wherever possible avoid, and always strictly
control
[3]
. In regard to
impatience in such a situation Ponnan JA stated as follows (at page
149 F – G):
‘
4
…it can impede his perception, blunt his judgment and create
an impression of enmity or prejudice in the person against
whom it is
directed, particularly when such person is an accused person. It may
serve to undermine the proper course of justice
and could lead to a
complete miscarriage of justice. A judicial officer can only perform
his demanding and socially important duty
properly if he also stands
guard over himself, mindful of his own weaknesses (such as
impatience) and personal views and whims
and controls them’.
[11]
In determining whether the appellant in
that matter had enjoyed a fair trial the Court made the following
observations (at para
[29]):
‘
It
may well be that some of the irregularities complained of would, in
themselves, not be a sufficient indication that the appellants
did
not have a fair trial. Taken cumulatively though, I have no doubt
that they compel the conclusion that in fact the learned
Judge
President was not fair and impartial during the trial’.
[12]
In
S
v Mlimo
(supra) the attack on the fairness of the trial was directed at what
was said to be the trial judge’s impatience with the
appellant’s attorney and his alleged impeding of the latter’s
cross-examination. In that matter, however, it was found
that the
attorney had handled the trial judge’s interventions with ease
and had remained steadfast and composed. Having regard
to the record
as a whole, it could not be said that the manner in which the trial
judge had conducted himself had affected the
fairness of the trial.’
The Court said in this regard
[4]
‘
There
is no doubt that the judge participated actively in the proceedings
and there were undoubtedly times when he was impatient
with the
appellant’s attorney during the trial. As I read the record the
judge did not impede cross-examination. After each
verbal skirmish or
exchange between himself and the defence attorney the trial judge was
careful to invite him to proceed with
his cross-examination and to
thereafter lead whatever evidence he wished to place before the
court. In my view there are times
when the judge was justified in
losing patience with the defence.’
The Court stated further, however, that ‘
undue
impatience and irritability on the part of a judicial officer is
inappropriate and undesirable. A trial judge or magistrate
must
ensure that ‘justice is done’. He or she should so
conduct the trial that his or her open-mindedness, impartiality
and
fairness are manifest to all those who concerned with the trial and
its outcome especially the accused’
(relying on
S
v Rall
(supra). This is particularly so, the Court continued, ‘
where
an accused person is represented by a junior and inexperienced
counsel or attorney who might easily be intimidated by improper
conduct on the part of the Court. The same cannot, however, be said
of the appellant’s attorney. He never took a step back
when the
appellant’s interests demanded that he forge ahead and handled
the trial judge’s impatient interventions with
ease, true to
his profession. He was steadfast and never lost his composure’
.
[13]
On an overall reading of the record in the
present matter it appears that the magistrate at times kept a tight
rein on the appellant’s
attorney’s cross-examination but
nevertheless gave him a full opportunity to cross-examine the
complainant and her witness,
including cross-examination on alleged
discrepancies between the complainant’s statement to the police
and her
viva voce
evidence. Apart, arguably, from those instances relied on by the
appellant, there are no explicit indications in the record that
the
attorney, Mr Van Dyk, was or felt that he was, being curtailed in his
cross-examination let alone that he raised an objection
to this
effect. Therefore the argument that the magistrate obstructed or
curtailed the cross-examination on behalf of the appellant
must stand
or fall largely by the examples cited above and certain further
interventions which counsel raised in argument, all
of which must
then be considered against the background of the law cited above.
[14]
The question which is at issue in this
appeal is whether the conduct of the magistrate sustains the
inference that, in fact, she
was not open-minded and impartial and
fair during the trial.
[15]
Against this background I turn to consider
the three interventions relied upon by the appellant in contending
that his legal representative’s
cross-examination was unduly
curtailed or impeded with the result that he did not enjoy a fair
trial.
[16]
The first intervention (referred to in para
[8.2.1]) occurred in the context of the appellant’s attorney
questioning the complainant
about how she escaped from the
appellant’s clutches in the bedroom after his alleged assault
upon her, all the while contrasting
her evidence with the contents of
her police statement. Just before the intervention the attorney read
the following extract from
her statement to her:
‘
[COMPLAINANT]
Ek weet nie hoe ek ‘n “gap” gekry het nie, maar toe
hardloop ek net uit die kamer, loop uit die
huis uit en gaan staan by
die kar.
[MR
VAN DYK] Yes. He tried to, but he didn’t succeed and then you
got a gap and you don’t know how?
[COMPLAINANT]
Yes.’
[17]
Seen in this broader context the attorney’s
next question to which the magistrate reacted was somewhat obtuse
since it had
in effect been asked and answered by the complainant and
there was nothing in the evidence to suggest that the answer was
improbable
or illogical. In effect the answer the complainant would
in all probability have given had the court not interrupted would
have
been once again to repeat that she had ‘
got
a gap’
and run out of the room
and the house. There was, needless to say, no evidence that the room
or the house was locked. That said,
the magistrate’s reaction
was unnecessarily sharp. As it happened the attorney went on to
question the complainant
as to whether she had to wrestle with the
appellant and ultimately therefore he was not impeded in this line of
cross-examination.
[18]
Turning to the second intervention
(referred to in para [8.2.2]), this questioning was obviously
directed at testing the credibility
of the complainant with reference
to how soon after the incident she made a complaint that she had been
sexually assaulted. The
common law rule is that evidence may be given
on a [voluntary] complaint made by the victim within a reasonable
time after the
commission of the alleged sexual offence although it
must be borne in mind that the absence of a complaint made within a
reasonable
time after the event is not fatal to the prosecution’s
case. See
S v Cornick
2007 (2) SACR 115
(SCA). In addition
sections 58
and
59
of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act, 32
of 2007
provide as follows: ‘
(e)vidence
relating to previous consistent statements by a complainant shall be
admissible in criminal proceedings involving the
alleged commission
of a sexual offence: provided that the court may not draw any
inference only from the absence of such previous
consistent
statements’; a
nd ‘
(i)n
criminal proceedings involving the alleged commission of a sexual
offence, the court may not draw any inference only from the
length of
any delay between the alleged commission of such offence and the
reporting thereof’
.
[19]
The question which the attorney posed and
to which the magistrate took exception was, no doubt, directed at
ascertaining from the
complainant why she did not immediately
complain to the ‘
old man’
,
that she had been sexually assaulted seconds before. The magistrate
presumably took exception to the question on the basis that
implicit
in it was the suggestion that unless the complainant reported the
alleged sexual assault to the very first person she
came across this
reflected adversely on her credibility. Such an approach on the part
of defence counsel would of course have been
a gross
over-simplification of the legal position. This perception by the
magistrate of the appellant’s attorney’s
line of
questioning seems to have resulted in her remarks that the attorney
should ‘
not stereotype anybody who
testifies in my court’
. In turn,
however, this response by the magistrate was misguided or at least
premature, since the attorney was at the least entitled
to ask why
the complainant did not report the assault to that person and
therefore the question was relevant.
[20]
In my view, however, no harm was done
because immediately after the intervention the attorney asked:
‘
Okay
you didn’t feel endangered that you have to tell him something
--- I did feel endangered, but why am I supposed to tell
him?
Okay.
Now you walk passed the old man and you got in the car and you went
home ---Yes, yes.’
In
other words the attorney was allowed to address the question and was
not curtailed in his cross-examination. That said, again
I consider
that the magistrate’s intervention was rather sharp and
unnecessary at that point.
[21]
Turning to the last of the three
interventions relied on, this occurred in the context of the same
question being explored, namely,
when the complainant made, or could
have been expected to have made, her first report. There again the
magistrate appears to have
taken exception to the implicit assumption
that the complainant’s credibility was affected by her not
confiding in her sister
as soon as she got home that she had been
sexually assaulted. The magistrate’s objection and intervention
was premature,
however, since it had not been put directly to the
complainant that her credibility was questionable because she had not
immediately
done so. Her reasons for not telling Cindy and in fact
giving her sister a false account of what had happened had not yet
been
explored by the attorney in cross-examination. The magistrate’s
intervention was heavy-handed. Be that as it may the attorney
dealt
with the situation with aplomb as appears from the following extract
which follows immediately after the passage which the
appellant
relies upon:
[MR
VAN DYK]:
“
No with
respect, I accept your view on that Your Worship. Now why didn’t
you tell her --- Cause I didn’t want to tell
her. I was afraid.
[MR
VAN DYK]:
“
Who were you
afraid of? ---I was afraid if I tell anybody my parents or her we
were going to lose the house that’s why I didn’t
tell
them.
The
complainant went on to explain and was cross-examined about her
communications to her father regarding the alleged assaults.
[22]
During argument appellant’s counsel
broadened his challenge to include other passages in the record which
he contended showed
that the magistrate had improperly obstructed or
curtailed the appellant’s attorney’s cross-examination.
First was
a passage when the magistrate intervened when the
complainant was being questioned on an apparent discrepancy between
her evidence
and statement as to when on the journey she had
mentioned to the appellant that she had been involved in an earlier
incident when
an older man had made unwanted sexual advances towards
her. The magistrate ended her intervention by saying ‘
Accept
her answer. Move on please.’
which could be seen as obstructing the appellant’s attorney in
pursuing his line of cross-examination. One again, however,
the
attorney was undeterred and came back to the topic and put what he
perceived as the discrepancies to the complainant over two
pages of
the record and was not curtailed or even interrupted by the
magistrate in any way.
[23]
Finally, the appellant’s counsel
sought also to rely on an intervention by the magistrate when the
appellant’s attorney
sought to cross-examine the complainant
regarding what he perceived as a contradiction in different parts of
her evidence regarding
whether, immediately after the police had
taken down a statement from her, she had read it. The magistrate
intervened to point
out that the complainant had not earlier stated
what the attorney was ascribing to her. The force of this objection
depends ultimately
on whether the magistrate was correct in stating
that there was no discrepancy between the complainant’s earlier
evidence
that she had not immediately read her statement after it was
taken from her by a police official. Although the appellant’s
counsel argued that the complainant’s evidence was clear that
she had read her statement immediately after it was taken down
I am
not persuaded that this was the case or, at the very least, that this
was clearly so, with the result that the magistrate’s
intervention, with the substance of which the prosecutor agreed, was
justified. I might add in this regard that at the end of the
exchange
appellant’s attorney appeared to accept that the magistrate and
the prosecutor were correct in their recollection
of the
complainant’s earlier evidence and their interpretation
thereof.
[24]
I thus do not consider that the further
examples relied upon by appellant’s counsel add much to his
case that, viewing all
the interventions either singularly or
cumulatively, they were such as to justify a finding that there was a
material irregularity
in the trial, namely, the magistrate’s
curtailment or obstruction of cross-examination.
[25]
In the circumstances, although the
magistrate exhibited unnecessary impatience and some of her
interventions were premature and
heavy-handed, the appellant’s
attorney appeared to deal well with the situation and upon closer
analysis was not curtailed
or blocked or obstructed in his
cross-examination of the complainant to any material degree. To the
extent that there was any such
curtailment it was limited and the
attorney was allowed to broach the topics which he wished to address
albeit from a slightly
different angle. Accordingly, I do not
consider that these interventions, either singly or cumulatively,
amounted to misconduct
on the part of the magistrate which rendered
the appellant’s trial unfair in that his representative’s
cross-examination
of the complainant was materially obstructed or
curtailed. That said, the undue impatience and irritability on the
part of the
presiding officer was inappropriate and undesirable.
[26]
It follows, in my view, that the
magistrate’s conduct neither amounted to nor caused a
fundamental irregularity in the trial
which in itself justifies the
appellant’s conviction and sentence being set aside.
[27]
I turn now to the remaining grounds of
appeal which are that the magistrate erroneously found that the
evidence of the complainant
was sufficiently satisfactory and
credible to secure a conviction and that she failed to take proper
cognisance of the value of
the evidence of the appellant’s
witness, that she over-emphasised the discrepancies in the evidence
of the appellant and
failed to properly apply the onus that rested on
the State. In support of the first of the abovementioned grounds of
appeal appellant’s
counsel cited the magistrate’s finding
that ‘
the complainant did not
contradict herself, is my opinion as the court’
.
This is a partial quotation, however, since the magistrate preceded
this observation by stating that the appellant’s attorney
used
the complainant’s statement to elicit contradictions but that
in the court’s view these could hardly be described
as material
contradictions.
[28]
In my view the magistrate’s finding
in this regard was correct. The various ‘
contradictions’
between the appellant’s statement and her viva voce evidence
and within her evidence on its own were matters of detail and
in many
instances related to matters which were common cause between the
appellant and the complainant. In all instances they did
not, in my
view, affect the general thrust and outline of the complainant’s
evidence. In any event, as the courts have repeatedly
stated, the
weight which can be given to discrepancies between a witness’
police statement and his or her evidence is limited
and must have
regard to the circumstances in which the statement is given. See in
this regard
S v Govender
2006 (1) SACR 322
(ECD) at 324I – 325C and 326C – 327B
and
S v Mafaladiso and Others
2003 (1) SACR 583
(SCA) for pertinent observations regarding the
phenomenon of differences between a witness’ police statement
and viva voce
evidence and how they are to be assessed. In short it
is a mistaken view to see a witness’ statement to the police in
all
circumstances as a full and detailed statement of a witness’
evidence regarding a particular matter or incident and then to
fault
the witness for omissions and minor errors therein. As it happened a
relatively lengthy statement was taken from the appellant
which, save
in a number of unimportant details, was confirmed and borne out by
her evidence before court.
[29]
As to the alleged contradictions between
the complainant’s evidence in court, only three were cited. The
appellant raised
the issues of whether the complainant had read her
statement after the police official had taken it down and whether she
had conversed
with the appellant after the alleged incident. These
topics were, on a proper examination of the record, not the subject
of any
contradiction whilst the third ‘
contradiction’
,
how many buttons of her pants the appellant had opened, was so
trivial a question in the circumstances as to be virtually
meaningless.
The appellant’s counsel also criticised the
complainant’s evidence on the basis that she had initially not
disclosed
the truth about the sexual assault upon her to her sister
and parents and had only made part disclosure to her boyfriend, Rudi
Koopstad. This conduct on the part of the appellant was fully and
convincingly explained by her, however. She testified that she
had
initially been afraid to tell her parents and her sister what had
happened because the appellant had told her that if she did
tell her
parents then they would lose the house.
[30]
Against the background of the appellant
having purchased at an auction the house in which the complainant and
her family lived on,
they being tenants there, and his statements
that in effect he was going to allow them to occupy another house
which he owned,
this reaction on her part was entirely
understandable. What must also be borne in mind is that the
complainant was a naïve
17 year old school girl whilst the
appellant was a 43 year old businessman in a position of power over
the complainant and her
family.
[31]
The attack by the appellant’s counsel
on the complainant’s credibility relied heavily on an apparent
contradiction between
where the complainant stated the sexual
advances had taken place and what Koopstad testified in this regard.
Appellant’s
counsel referred in his argument to this as a very
material and important contradiction between the evidence of the
complainant
and Koopstad. In her evidence the complainant made it
clear that although the appellant drove at some point to a shopping
centre
at Milnerton and met a man named Sammy in the parking area,
the sexual advances against her were made at a house in Rosendal,
Delft.
[32]
In cross–examination she testified
that approximately a day after the incident she had chatted with her
boyfriend over Mxit
and she had told him what had happened. She added
in this regard that the man who had bought their house was going to
take her
to a sponsor, that they drove together and that he touched
her on her breast. She told him no more than this partial account
because
she did not feel comfortable telling him more, particularly
the fact that he had touched her vagina. Koopstad testified that
after
the incident he had no contact with the complainant other than
through Mxit and in fact had not seen her again since the incident.
In other words the relationship, such as it was, had ended. His
initial account was that the complainant had said no more than
what
she had testified, namely, that she and the appellant had driven in a
vehicle together, had spoken and then the appellant
had begun making
advances upon her. He made it clear under cross-examination that
according to the account he had received from
the complainant they
had driven to a mall in Milnerton, a fact which the appellant
confirmed, but further that this was where the
sexual advances had
taken place. Importantly, however, he qualified it by saying ‘
waar
dit alles sou plaasgevind het as ek reg verstaan’
.
When the magistrate sought clarification he again expressed himself
in terms of some uncertainty as is evidenced by the following:
‘
HOF:
Is dit wat U dink of het sy dit vir U op Mxit gesê --- Sy het
my gesê op Mxit hulle het gery en ek dink dis
by Milnerton’.
[33]
Seen in context I do not consider that this
is a material difference at all. Firstly, it is evident that the
complainant and the
witness did not even have a face to face
conversation about what took place. Their communication was confined
to a Mxit conversation
or conversations. Secondly, it is also clear
from the tenor of both the complainant and the witness’
evidence that she did
not give a full account of what happened in
these Mxit conversations. Thirdly, given the number of stop-offs that
the appellant
made in his motor-vehicle before finally arriving at
the house in Rosendal, Delft where the complainant testified the
incident
actually took place, it is quite understandable that
confusion could have crept in between the complainant and the
witness. The
complainant never wavered in her evidence that the
incident took place in the room of the house in Rosendal, Delft where
the appellant
purported to give her self-defence lessons. On the
appellant’s own version he did give such lessons and the only
dispute
was whether he made sexual advances at the same time. In the
circumstances I do not regard this discrepancy as material or as
having
any adverse effect on the complainant’s credibility.
[34]
Before the court could place any reliance
on the complainant’s evidence, as that of a single witness, it
had to be clear and
satisfactory in every material respect. However,
as was stated in
S v Sauls and Others
1981 (3) SA 172
(A) at 180 f – h, quoting from Schreiner JA in
R v Nhlapo,
the cautionary rule does not mean ‘
that
the appeal must succeed if any criticism, however slender, of the
witnesses evidence were well-founded’.
[35]
As regards the contention that the
magistrate failed to take proper cognisance of Hope’s evidence
I can see no substance therein
at all. He could only testify about
the first stop that the appellant made in his somewhat confusing and
roundabout journey to
take the complainant for an interview with a
prospective sponsor. That stop was at a house in Blackheath where the
appellant became
embroiled in an argument with a tenant who would not
vacate the house. This incident was common cause and on no one’s
version
is it suggested that anything untoward took place there. Nor
can I find any indication that the magistrate did not accept Hope’s
evidence. The magistrate simply found that the evidence took the
matter no further, a finding with which I agree.
[36]
The next ground of appeal advanced by the
appellant is that the magistrate over-emphasised the discrepancies in
the evidence of
the appellant most notably concerning the existence
or otherwise of a couple named only as Mary and Sammy, the Chinese
nationals
who were supposed to have been the complainant’s
prospective sponsor and her husband. It is so that neither of these
persons
were called as witnesses by the appellant which, together
with other evidence, incidentally casts some doubt on whether the
proposed
sponsorship interview was in fact ever a reality. The
appellant’s convoluted account of how he drove from one spot to
the
next en route to this interview which never transpired but at
most amounted to a meeting with the Chinese national’s husband
in a parking lot at a shopping mall in Milnerton, adds to the doubt
concerning this issue. The magistrate was, as I have indicated,
critical of the appellant’s evidence and the manner in which he
gave such evidence. In my view this criticism was justified.
On a
reading of the appellant’s evidence it was filled with
improbabilities, contradictions and characterised by his persistent
failure to answer questions directly as well as evidence which was
not put to the witness in cross-examination on his behalf, for
example that Hope was requested to give her a lift back to her home
but which she had refused, that the appellant was in fact taking
food
to a security guard at the house in Rosendal where the incident is
alleged to have taken place. By way of example of an improbability,
the appellant, a 43 year old man with a tertiary education and wide
business experience, testified that he did not understand what
the
complainant meant when, according to him, she allegedly suggested
that he be her ‘
sugar daddy’
.
It bears mention that on the complainant’s version this
proposal came from the appellant after the incident. The appellant’s
evidence, that although no untoward incident took place, he realised
at the time that in being with the complainant he had done
‘
the
most stupid thing in my life’
is,
to my mind, in the context of the evidence as a whole, a telling
indication that something untoward did take place, as testified
by
the complainant.
[37]
Finally, it was contended on behalf of the
appellant that the magistrate had failed to properly apply the onus
of proof that rested
on the State. In support of this submission
appellant’s counsel relied on the magistrate’s remark, in
regard to the
appellant’s failure to call either of the Chinese
couple, that in her view the sponsor did not exist I do not consider
this
remark to amount to placing an onus upon the appellant but
rather an expression of scepticism regarding this element of the
appellant’s
version of events. Indeed the magistrate explicitly
recognised, and stated, that the onus of proof lay on the State and
that if
the appellant was able to demonstrate that his version was
reasonably possibly true he was entitled to his acquittal.
[38]
Although the complainant was a single
witness the magistrate found that she gave her evidence in a clear
and satisfactory manner
and that it contained no material
contradictions. She found further that there was a guarantee for the
complainant’s evidence
in the evidence of her first report to
Koopstad telling him of the sexual assault and the identity of the
person who had assaulted
her. The magistrate then examined the
evidence as a whole finding that the inherent probabilities favoured
the complainant’s
version of events. She found too that the
appellant made a poor impression as a witness and that his evidence
was riddled with
improbabilities and unsatisfactory aspects as well
as the fact that various salient parts of his evidence had not been
put to the
complainant in cross-examination. Finally, the magistrate
found that Hope’s evidence took the matter little further. I
cannot
fault any of these findings and thus cannot accept the
conclusion contended for on behalf of the appellant that his
conviction
should not be sustained.
[39]
In the result for these reasons the appeal
against conviction is dismissed.
L
J
BOZALEK
JUDGE
OF THE HIGH COURT
I
agree.
CTS
COSSIE
ACTING
JUDGE OF THE HIGH COURT
[1]
At
831 H – 832 A
[2]
At
832 H – 833 A
[3]
At
para [18]
[4]
At
para [10]