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[2015] ZAWCHC 53
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Xaba v S (A588/14) [2015] ZAWCHC 53 (8 May 2015)
SAFLII
Note: Certain personal/private details of parties or witnesses
have been redacted from this document in compliance
with the law
and
SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
DATE:
08 MAY 2015
CASE
NO
: A588/14
In
the matter between:
SIYABONGA
XABA
..............................................................................................
Appellant
And
THE
STATE
Judgment
DELIVERED
ON 8 MAY 2015
SAVAGE
J:
[1]
The appellant, who was legally represented,
was charged in the regional court, Khayelitsha, with one count of
rape committed on
7 October 2007 at or near Khayelitsha and was given
notice in the charge sheet that the provisions of
s 51(2)
of the
Criminal Law Amendment Act 105 of 1997
were applicable. Despite
pleading not guilty to the charge, on 2 December 2008 the appellant
was convicted of the rape and sentenced
to fifteen (15) years’
imprisonment. Leave to appeal against both conviction and sentence
was refused by the magistrate but
on 18 November 2014 granted on
petition to this Court.
[2]
The evidence before the trial court was
that on 7 October 2007 the appellant, who was known to the then
fourteen-year old complainant
as her brother’s friend, asked
the complainant to accompany him and his friend [B……]
to Harare at around 20h00
to call his girlfriend. En route the
appellant put his arm around the complainant’s waist and said
that he did not want the
police to see him. At Harare the appellant
and the complainant went to [B….’s] shack. [B…..]
left. The complainant
saw that the appellant had a firearm and told
her that there was a girl he wanted to kill in Harare. He asked the
complainant to
call the girl. The complainant refused. Holding the
firearm in his hand, the appellant told the complainant to enter
[B….’s]
shack and closed the door. The complainant
testified first that the appellant told her that ‘
if
a person does not want to go where he is sending him…he must
touch the private parts of the female’.
She
then testified that the appellant said that ‘
if
he wants to shoot a person he must touch a private part of a female
first
’. The complainant told him
she wanted to go home but the appellant threatened her with the
firearm and told her to take off
her clothes. The complainant
refused. He then pushed her onto the bed and the two were, in the
words of the complainant, ‘pulling
each other’. The
complainant cried but the appellant took off her pants, forcefully
opening her thighs. She told him that
whatever he does he must use a
condom. He got up and went to look for a condom. When [B……]
knocked, he and the appellant
spoke in
tsotsi
taal
and when he left [B……]
winked at the appellant. The complainant stated that she did not tell
[B……]
of her predicament as he did not look at her and
she was afraid of the appellant, who she described as slightly drunk.
The complainant
was not sure if the appellant wore a condom when he
then raped her. During the course of the rape the firearm was on the
bed.
[3]
After the appellant fell asleep the
complainant crept out of the shack and ran home. When she arrived
home after midnight she told
her mother what had happened. Her mother
told her that they must go to the police station but they did not do
so as it was night.
Although the complainant saw the appellant many
times after the rape, the matter was only reported to the police in
2008 as the
complainant’s mother was scared of the appellant
who she believed could kill them. The complainant did not consult a
doctor
following the rape and was examined by a doctor only on 11
January 2008. On examination the doctor found the complainant to be
12 weeks pregnant. The complainant denied in cross examination that
the appellant had not raped her. She stated that she told the
doctor
that before the rape she had not had sexual intercourse with consent
but that she had had consensual sexual intercourse
after the rape.
The doctor proceeded to record the date of her last menstrual period
and not the last date on which she had sexual
intercourse on the form
completed.
[4]
The complainant’s mother confirmed
that the complainant left home after having been called by the
appellant and that when
she came back at midnight her daughter was
crying and said that the appellant had locked her in [B….’s]
shack, pointed
a firearm at her and raped her once. The rape was not
reported to the police as they were scared of the appellant. The
complainant’s
sister was also told by the complainant that the
appellant had raped her.
[5]
The appellant stated that the complainant
was his secret girlfriend and that [B….] and one ‘[P…….]’
also had a relationship with the complainant. He confirmed that he
had gone to [B….’s] shack in Harare with [B…..]
and the complainant. At the shack they talked, [B…..] left
after two minutes, returning later, and the complainant informed
him
that she needed to leave. He denied having sexual intercourse with
the complainant on 7 October 2007 but stated that prior
to this date
the two had had had consensual sex. He also denied being drunk on the
day of the incident. The appellant accompanied
the complainant to the
road when she decided to return home before he returned to [B…..’s]
shack. He became aware
of the allegation of rape against him on 8
October 2007 while at his girlfriend’s house and later reported
to the police
station.
[6]
On 2 December 2008 the magistrate convicted the appellant of
rape. It appears from the record that no reasons were provided for
the decision with the transcript of proceedings simply stating under
the word ‘Judgment’:
‘
The
accused has been found guilty of rape
’.
[7]
The magistrate’s judgment on sentence
read as follows:
‘
The
accused is sentenced as follows. Accused is
sentenced
to 15 years imprisonment without the option of a fine. He is declared
unfit to possess a firearm
.’
[8]
From the record it is apparent that no reasons were provided
for either decision. On 26 September 2014 the magistrate filed a
document
headed ‘Presiding Officer’s Reasons’ in
which it was stated that:
‘
At the
conclusion of the trial, the court delivered an ex tempore judgment.
It is respectfully requested that the reasons for conviction
and
sentence which were then furnished be regarded as forming part
hereon
.’
[9]
Judicial
officers have the duty to give reasons for their decisions. In
S
v Mokela
[1]
Bosielo JA stated:
‘
I
find it necessary to emphasise the importance of judicial officers
giving reasons for their decisions. This is important and critical
in
engendering and maintaining the confidence of the public in the
judicial system. People need to know the courts do not act
arbitrarily, but base their decisions on rational grounds. Of even
greater significance is that it is only fair to every accused
person
to know the reasons why a court has taken a particular decision,
particularly where such a decision has adverse consequences
for such
an accused person. The giving of reasons becomes even more critical,
if not obligatory, where one judicial officer interferes
with an
order or ruling made by another judicial officer
.’
[10]
In
Strategic
Liquor Services v Mvumbi NO & others
[2]
the Constitutional Court stated that the failure to supply reasons
for a judicial decision ‘
will
usually be a grave lapse of duty, a breach of litigants’
rights, and an impediment to the appeal process
’.
The Court noted that although there is no express constitutional
provision which requires judges to furnish reasons for
their
decisions, the judiciary is nevertheless bound by the rule of law as
one of the founding values of our democratic state.
[3]
This requires that judges not act arbitrarily and that they be
accountable as to the manner in which they arrive at their decisions
by finishing reasons.
[11]
In
Mphahlele
v First National Bank Ltd
[4]
it was stated that reasons for a decision serve a number of purposes.
Reasons explain to the parties and to the public at large,
who have
an interest in courts being open and transparent, why a case is
decided as it is. Reasons curb arbitrary judicial decision-making
and
are essential for the appeal process, enabling the losing party to
take an informed decision as to whether or not to appeal.
Reasons
assist the appeal court to decide whether or not the lower court is
correct and provide guidance to the public and the
legal profession
in respect of similar matters.
[12]
In
S v Mcoseli
2012 (2) SACR 82
(ECG) the court
criticised the calibre of the judgment of a regional magistrate as
being
'so shoddy and careless…that it amount[ed]…
almost to a dereliction of duty
’ (at 85i-j). In that matter
the magistrate failed to set out or analyse the evidence.
[13]
In
S v
Van der Meyden
[5]
Nugent J, as he was then, made it clear that:
‘
Purely
as a matter of logic, the prosecution evidence does not need to be
rejected in order to conclude that these are reasonable
possibility
that the accused might be innocent. But what is required in order to
reach that conclusion is at least the equivalent
possibility that the
incriminating evidence might not be true. Evidence which could
incriminate the accused, and evidence which
exculpates him, cannot
both be true - the one is possibly true only if there is an
equivalent possibility that the other is untrue.
There will be cases
where the state evidence is so convincing and conclusive as to
exclude a reasonable possibility that the accused
might be innocent,
no matter that his evidence might suggest the contrary when viewed in
isolation
.’
[14]
The
conclusion which is arrived at by the court as to whether the
evidence establishes the guilt of an accused beyond reasonable
doubt
must account for all of the evidence.
[6]
The judge continued that:
‘
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.
’
[7]
[15]
There is no indication from the record in this matter that the
magistrate considered any of the evidence before the trial court in
the manner required of him. He made no findings as to whether
evidence was false or unreliable. He failed to consider whether the
state had discharged the onus that rested upon it to prove the guilt
of the accused beyond reasonable doubt. He made no findings
as to
why, if he considered the onus had been discharged, this was so, and
he failed to indicate whether he considered the version
of the
accused to be reasonably possibly true.
[16]
It is noteworthy that the magistrate was provided with an
ex post
facto
opportunity to provide reasons for his decisions on
conviction and sentence. Yet in a response which can only support a
conclusion
that he did not consider the record in the matter, the
magistrate relied on the non-existent reasons given by him upon
conviction
and sentence as the basis for his decisions made. There is
no suggestion made by either of the parties before this Court that
the
transcript of proceedings is incomplete, nor any suggestion that
the record required reconstruction. Furthermore, it is pertinent
to
note that the magistrate similarly made no such suggestion.
[17]
This
Court is permitted under
s 309(3)
of the
Criminal Procedure Act
51 of 1977
to confirm, alter or quash a conviction or sentence by
reason of an irregularity or defect where on appeal it appears that a
failure
of justice has resulted from such irregularity or defect. A
right to reasons is a fundamental fair trial right and a failure to
provide reasons constitutes an irregularity. Where no reasons are
provided, there is a failure of justice such as is contemplated
in
s
309(3).
As
was stated in
S
v
Mavinin
i
[8]
by Cameron JA, as he was then:
‘
It is
sometimes said that proof beyond a reasonable doubt requires the
decision-maker to have “moral certainty” of the
guilt of
the accused….It comes down to this: even if there is some
measure of doubt, the decision-maker must be prepared
not only to
take moral responsibility on the evidence and inferences for
convicting the accused, but to vouch that the integrity
of the system
that has produced the conviction – in our case, the rules of
evidence interpreted within the precepts of the
Bill of Rights –
remains intact. Differently put, subjective moral satisfaction of
guilt is not enough: it must be subjective
satisfaction attained
through proper application of the rules of the system.’
[18]
This
Court cannot vouch for the integrity of the system that has produced
the conviction in this matter. An appeal Court lacks ‘
the
advantage of judging the credibility of witnesses by observing their
deportment in the witness-box’.
[9]
Where
the trial court has made no findings as to the credibility of
witnesses and the appeal court is unable to come to a definite
decision on this material before it, the ordinary burden of proof
becomes decisive.
[10]
[19]
I
n
S v
Shackell
[11]
Brand AJA, as he was then, stated that:
‘
It is a
trite principle that in criminal proceedings the prosecution must
prove its case beyond a reasonable doubt
and that a mere preponderance of probabilities is not
enough. Equally trite is the observation that, in view of this
standard of
proof in a criminal case, a court does not have to be
convinced that every detail of an accused’s version is true. If
the
accused’s version is reasonably possibly true in substance,
the court must decide the matter on the acceptance of that version.
Of course it is permissible to test
the
accused’s version against the inherent probabilities. But it
cannot be rejected merely because it is improbable; it can
only be
rejected on the basis of inherent probabilities if it can be said to
be so improbable that it cannot
reasonably possibly be true.
On my reading of the judgment of the Court a quo it’s
reasoning lacks this final and crucial step. On this final enquiry I
consider the answer to be that, notwithstanding certain
improbabilities in the appellant’s version, th
e
reasonable
possibility remains that the substance thereof may be true
”
(See also
S v V
2000 (1) SACR 453 (SCA)
paragraph 3).’
[20]
An accused is entitled to be provided with reasons for conviction and
sentence without undue delay. Having already been afforded
two
opportunities to provide reasons for his decision on conviction and
sentence, it would be inappropriate to remit the matter
back to the
magistrate on a third occasion in the hope that he will finally see
fit to provide reasons for his decisions.
[21]
It
is furthermore impossible in the circumstances of this matter for
this Court to step into the shoes of the trial court and arrive
at
conclusions on the evidence as a whole without the benefit of
assessing the credibility and reliability of witnesses in the
witness
box. It follows that on appeal there can be no moral certainty on a
conspectus of the evidence the State discharged the
burden of proof
or that the balance weighed ‘
so
heavily in favour of the state as to exclude any reasonable doubt
about the accused’s guilt’
[12]
.
His right to a fair trial under s 35(3) of the Constitution has been
compromised by the magistrate’s failure to take into
account
all of the evidence before the trial court and provide reasons for
the appellant’s conviction and sentence
.
The appeal against conviction and sentence must succeed on the basis
that an acquittal must follow a trial vitiated by an irregularity,
in
circumstances in which the acquittal is not founded on the merits of
the charge.
[13]
[22]
Whenever
a conviction and sentence has been set aside by a court of appeal on
the ground
inter
alia
that there has been a technical irregularity or defect in the
procedure, proceedings in respect of the same offence may in terms
of
s 324 be instituted again. I agree with Bozalek J in
Davids
v S
[14]
that this provision does not envisage a prior order by the court of
appeal to the effect that the conviction and sentence has been
set
aside on account of a technical irregularity or defect; nor is such
an order a necessary prerequisite to the State reinstituting
prosecution. This is so on the basis that:
'It
is for the Director of Public Prosecutions or his/her delegee to form
a view on the matter and take a decision on whether to
institute
proceedings or not’
.
[15]
[23]
Given the conduct of the magistrate in this matter it is appropriate
that a copy of this judgment be forwarded to the magistrates’
commission for its consideration with a view to taking possible
action against the magistrate. This is so given the nature of the
irregularity committed, its consequences and the impact of such
conduct upon the administration of justice and public perception
regarding the functioning of our courts, particularly in areas
plagued by criminal misconduct and crimes against women and children.
[24]
In the result, I propose an order in the following
terms:
1.
The appeal against conviction succeeds.
2.
The conviction and sentence are set aside.
3.
This judgment is to be forwarded to the
Magistrate’s Commission for consideration and appropriate
action.
KM
SAVAGE
JUDGE
OF THE HIGH COURT
I agree and it is
so ordered
MI
SAMELA
JUDGE
OF THE HIGH COURT
Appearances
:
For
appellant: Adv N J van Rensburg
For
state: Adv M Z Seroto
[1]
2012 (1) SACR 431
(SCA) at para 12
[2]
2010 (2) SA 92
(CC) at para 15
[3]
S146
of the
Criminal Procedure Act 51 of 1977
requires reasons to be
provided by a judge presiding in a criminal trial in a superior
court in particular circumstances stated
in the provision.
[4]
1999 (2) SA 667 (CC)
[5]
1999 (1) SACR 447
(W) at 449c-e
[6]
At
449h
[7]
At
450a-b
[8]
[2009] 2 All SA 277
(SCA) at para 26
[9]
R
v
Abel
1948 (1)
SA
654
(AD) at 660
[10]
Van
Aswegen v De Clercq
1960 4 SA 875
(A) 881–882;
Rautenbach
v Fourie
1977 4 SA 276
(T) 281;
Blysaag
(
Edms
)
Bpk
v Theron
1978 2 SA 624
(A) 627.
[11]
2001 (4) SA 1 (SCA) at para 30
[12]
S
v Chabalala
2003 (1) SACR 134
(SCA) at 139
[13]
See
Director
of Public Prosecutions, Transvaal v Mtshweni
2007 (2) SACR 217
(SCA) at para 29
[14]
Unreported WCC A571/12
[15]
At para 16