SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy	

FORM A
FILING SHEET FOR EASTERN CAPE JUDGMENT

									ECJ NO	: 012/2004

PARTIES:	THE STATE

		AND

		XOLANI RODOLO

RERENCE NUMBERS -
•	Registrar: CC 142/2003

DATE HEARD:  2004 JANUARY 27, 28, 29, FEBRUARY 3, MAY 3

DATE DELIVERED: 	 3 MAY 2004

JUDGE(S): SANDI J

LEGAL REPRESENTATIVES -
Appearances:
•	for the State/Applicant(s)/Appellant(s):	L NGODWANA
•	for the accused/respondent(s):		L CONLYN

Instructing attorneys:
•	Applicant(s)/Appellant(s):	DIRECTOR OF PUBLIC PROSECUTIONS
•	Respondent(s):		LEGAL AID BOARD

CASE INFORMATION -
•	Nature of proceedings	:	CRIMINAL TRIAL

•	Topic:	ADMISSION OF HEARSAY EVIDENCE

IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION)
GRAHAMSTOWN
CASE NO. : CC142/2003
DATE: 3 MAY 2004
In the matter between:
THE STATE
Versus
XOLANI RODOLO
________________________________________________________________
JUDGMENT
SANDI J
[1]	The accused, a 24-year-old male, is charged with the offence of housebreaking with intent to rape and rape involving a 78-year-old woman.
[2]	 He pleaded not guilty to the charge and his basis of defence was that in the early hours of 16 February 2003 he was walking up the street in the vicinity of the complainant’s home when he was arrested by Sergeant Mngoma. The latter placed him in the complainant’s house and later charged him with the offence of rape. According to the accused all this occurred after the rape had been committed. 
[3]	Furthermore, during cross-examination, Ms Conlyn, who appears on behalf of the accused, put to Mngoma that after the accused was arrested from the street the complainant told Mngoma that she did not know the accused and she was unable to say whether he was the person who raped her or not.
[4]	Six witnesses, namely Sergeant Mngoma, Dr Dempers, G., N., Butana and Dr Dwyer testified on behalf of the State while Sergeant Millie, the former investigating officer, testified on behalf of the defence.
[5]	The State’s case may be summarised as follows: The complainant‘s house, which is situated at the Bathurst Squatter Camp is flanked by the houses of G. and N.. Three persons live in that house. They are the complainant, her daughter, Nokuthetha and the complainant’s grandchild. Both the complainant and her daughter Nokuthetha are deaf. At about 4h00 on 16 February 2003 G. heard the complainant screaming saying that someone was raping her and strangling her. She was still screaming when G. went out of her house to telephone the police and when she went to wake up N. from his house. 
[6]	Both G. and N. stood outside the complainant’s house while waiting for the arrival of the police. During that time the complainant continued to scream. At one stage she was heard crying out saying that someone was having sexual intercourse with her and that the said person was inside the house. Because it was dark G. and N. did not enter the complainant’s house for fear of an attack by the complainant’s assailant. Fortuitously at that time Mngoma was doing patrol duties some few minutes away from the complainant’s house. 
[7]	In response to a message received by him over the radio Mngoma went to the complainant’s house where he met G. and N.. They reported the incident to him and mentioned to him that the complainant’s assailant was still inside the house. Upon entering the house Mngoma found the accused hiding in one of the rooms behind a door. His pair of trousers was lowered down to his thighs. He received no answer from the accused when he enquired from him as to what he was doing in that house. The accused was then arrested. 
[8]	At 10h50 on the same day Dr Dempers examined the complainant and found her to have sustained a tear at the back of her vagina which was consistent with penetration. According to Dr Dempers‘ opinion the tear of the vagina was probably a sign of forced penetration.
[9]	Butana, the police officer who took the complainant’s statement, testified with regard to the difficulties she experienced in communicating with her. Such statement, however, was not proved either by the State or the defence. Because the complainant is deaf she could not testify. That she is deaf is common cause between the State and the defence and was further confirmed by the evidence of Dr Dwyer. When called to testify the complainant could not hear a word of what was said to her by the interpreter and for that reason she could not even take the oath as there was no other means by which to communicate with her.
[10]	It was as a result of her deafness that before the close of the State’s case counsel for the State, Mr Ngodwana, applied for the admission of the evidence of G. and N. in terms of the provisions of s 3 of the Law of Evidence Amendment Act 45 of 1988 (the Act). Such evidence being what the two witnesses heard the complainant say inside her house that morning. After hearing full argument on this issue I reserved judgment and thereafter made an order admitting such evidence in terms of the provisions of s 3(1)(c) of the Act. I undertook to furnish my reasons later and informed Counsel that at the end of the case they would be afforded yet another opportunity to address me on this issue.
[11]	Before the close of the State’s case I granted the defence an opportunity to recall G. and N. for further cross-examination on the hearsay evidence admitted by me. The opportunity to do so was turned down by Ms Conlyn after an adjournment lasting for 45 minutes. Thereafter the case for the State was closed when an application for the discharge of the accused in terms of s 174 of the Criminal Procedure Act 51 of 1977, was heard and refused.
[12]	Sergeant Millie testified on behalf of the defence. His evidence related to the statements made to him by G. and N.. These statements were handed in as EXHIBITS “G” and “H”. I deal with these statements below. The accused did not testify. 
[13]	It is trite law that the onus is on the prosecution to prove its case against the accused person beyond reasonable doubt and that the accused bears no onus to prove his innocence. 
[14]	During argument Ms Conlyn criticised the evidence of G. and N. on the ground that the previous statements made by them to the police differed from their evidence. 
[15]	In each of the statements made the witnesses say that before Mngoma arrived on the scene they had entered the complainant’s house and saw the accused inside the house and when they testified they said that it was only after Mngoma had arrived there that they entered the house. They said they did not do so because they feared that the unknown person who was inside the complainant’s house could attack them. Their evidence was corroborated by Mngoma who said that on his arrival there they were standing outside the house. Mngoma said he entered the house followed by the two witnesses. It was then that he found the accused hiding behind the door in one of the rooms.
[16]	It has not been gainsaid that the accused is well-known to Mngoma, G. and N. and that they were able to identify him immediately that they saw him that morning. It seems to me that if G. and N. had entered the complainant’s house and saw the accused inside the house before Mngoma arrived there, they would have given his identity to him immediately upon his arrival on the scene. They did not do that. Their evidence was that the complainant said that there was an unknown person inside the house. They did not see the said person. 
[17]	Sergeant Millie who took the statements of G. and N. was not asked about the content thereof. Neither was he asked as to whether he could have made an error by not noting down correctly what each of them told him.	
[18]	Even though there are these differences which I have mentioned between the evidence of G. and N. and the statements that they made to the police they impressed me as witnesses. Their evidence was clear and straightforward in all the material aspects of this case. In any event they had a simple story to tell. I accept their evidence.
[19]	The criticism levelled against Mngoma also relates to the statement he made after he arrested the accused. It was submitted that in his evidence he supplied a lot more detail than that contained in his statement. In the statement he does not mention that at the time of arrest the accused was standing behind the door and that his pants were lowered down.
[20]	The fact that these details were not set out in Mngoma’s statement does not detract from his evidence which was clear and satisfactory in all material respects. His evidence that he arrested the accused inside that house hiding behind the door is convincing. The statement made by Ms Conlyn on behalf of the accused to the effect that Mngoma arrested the accused from the street, put him in the complainant’s house and later charged him with the offence of rape is so far-fetched and fanciful that I have no hesitation in rejecting it. There would have been no reason for Mngoma to arrest the accused who was innocently walking up the street in the vicinity of the complainant’s home for the alleged rape and I can find no motive as to why Mngoma should undertake such an exercise. There would still be less reason for Mngoma to have arrested the accused once the complainant told him that she did not know the accused and could not say that he was the person who raped her - all this in the presence of G. and N..
[21]	Quite apart from the above Mngoma’s evidence is supported materially and reliably by the evidence of G. and N.. Accordingly I accept Mngoma’s evidence.
[22]	Based on the evidence of G. and N. that they noticed that the window of the complainant’s house was open, Ms Conlyn submitted that it was possible that another person could have committed the offence in question and thereafter left the house without having been noticed by these witnesses. Such a suggestion can safely be disregarded. The evidence of the State, which I accept, is that from the moment the complainant was heard screaming in the house until the accused was arrested therein by Mngoma no other person entered or left the house in question. Only the accused who had no lawful reason to be there was found therein.     
[23]	Section 3 of the Act provides as follows:
“3. Hearsay evidence
1)	Subject to the provisions of any other law hearsay evidence shall not be admitted as evidence at criminal or civil proceedings, unless –
a)	each party against whom the evidence is to be adduced agrees to the  admission thereof as evidence at such proceedings;      
b)	the person upon whose credibility the probative value of such evidence depends, himself testifies at such proceedings; or
c)	the Court, having regard to –
(i) the nature of the proceedings;
(ii) the nature of the evidence;
(iii) the purpose for which the evidence is tendered;
(iv) the probative value of the evidence;
(v) the reasons why the evidence is not given by the person upon whose credibility the probative
     value of such evidence depends;      
(vi) any prejudice to a party which the admission of such evidence might entail; and
(vii) any other factor which should in the opinion of the Court be taken into account, is of the opinion 
       that such evidence should be admitted in the interests of justice.       
2)	The provisions of subsection (1) shall not render admissible any evidence which is inadmissible on any ground other than that such evidence is hearsay evidence.     
3)	Hearsay evidence may be provisionally admitted in terms of subsection 1 (b) if the Court is informed that the person upon whose credibility the probative value of such evidence depends will himself testify in such proceedings, provided if such person does not later testify in such proceedings the hearsay evidence shall be left out of account unless the hearsay evidence is admitted in terms of paragraph A of subsection (1), or is admitted by the Court in terms of paragraph C of that subsection.        
 
4)	For the purposes of this section – 

“hearsay evidence” means evidence whether oral or in writing, the probative value of which depends upon  the credibility of any person other than the person giving such evidence. 
“party” means the accused or party against whom hearsay is to be adduced including the prosecution.”   
   
[24]	As apparent from the above the prosecution seeks to rely on the evidence of G. and N. as to the statement uttered by the complainant as proof of the truthfulness of what she said, namely that she was being raped and strangled by an unknown person. Such statement is hearsay evidence within the meaning of s 3 (4) of the Act.
[25]	Provided that it meets the prerequisites of ss 3 (1) (c) (i) – (vii) the court
may, in the interests of justice, admit such statement. 
[26]	I made the ruling admitting the said evidence after having considered the judgments of the Supreme Court of Appeal in the matters of MAKHATHINI v ROAD ACCIDENT FUND 2002(1) SA 511 (SCA), S v RAMAVHALE 1996(1) SACR 639 (A) and S v NDHLOVU AND OTHERS 2002(6) SA 305 (SCA). In doing so I was mindful of my duty to afford the accused a fair trial and aware of what was said in the RAMAVHALE judgment (above) at 649 d-e that:
“A judge should hesitate long in admitting or relying on hearsay evidence which plays a decisive or even significant part in convicting an accused, unless there are compelling justifications for doing so.”
[27]	I was also mindful of the criminal nature of the proceedings in question and that the State bears the onus to establish the guilt of the accused beyond reasonable doubt. 
[28]	Ms Conlyn submitted that the hearsay evidence in question is unreliable and should not be admitted because the complainant must have been shocked and traumatised at the time that she made the utterances. She also submitted that the admission of such evidence would deny the accused the opportunity to challenge it.
[29]	Though the admission of the hearsay evidence denied the accused
 the right to cross-examine the complainant since she did not give             
evidence, it however did not deny him the opportunity to challenge its
admission. See S v Ndhlovu (supra) para 24 at pp 320-321. The accused was entitled to, and did in fact challenge its reliability and probative value.
[30]	That G. telephoned the police and went to seek the assistance of N. because she heard the complainant scream that she was being raped and strangled has not been placed in issue. What was challenged however during argument was the accuracy and reliability of her utterances. In this regard Ms Conlyn submitted that the complainant could have uttered those words not because she was being raped at the time, but because she was being indecently assaulted. She submitted further that in the absence of any medical evidence corroborating the complainant’s evidence that she was being strangled, is evidence of the unreliability of her statement. Ms Conlyn’s further submission was that it cannot be said that her utterances were in the form of a spontaneous exclamation as it was possible that the attack might have ceased at the moment G. was awakened by the complainant’s screams.
[31]	The above submissions are not borne out by the weight of the evidence. Not only did the complainant scream that she was being raped and strangled by someone inside the house; she was in a state of nervous excitement when Mngoma, G. and N. entered her house; she reported to them that the person who was having “sexual intercourse” with her was still inside the house; indeed the accused was found therein with his pants lowered to his thighs and he offered no explanation, let alone a lawful one, for his presence therein at such time of the morning; he was the only male person in that house and no one else was seen entering or leaving the same from the moment G. and N. arrived there until Mngoma reached the scene; and later the complainant was examined by Dr Dempers who found evidence that she had been penetrated vaginally.
[32]	The evidence taken as a whole therefore points to the fact that the complainant was raped and that the person who did so was the accused.
[33]	In the circumstances, particularly where the defence was afforded an opportunity to recall the two state witnesses after the admission of the hearsay evidence, and where the defence of the accused is that he was arrested by Mngoma after the rape had occurred, I was satisfied that the admission of the hearsay evidence would not prejudice the accused.
[34]	It was in the light of the above that I admitted the hearsay evidence in terms of the provisions of s 3 (1) (c) of the Act.         
 	[35]	Taking into account the hearsay evidence together with all the other 
evidence placed before me I am of the view that the State has proved 
beyond reasonable doubt that the complainant was raped by the accused.
[36]	Even if the hearsay evidence is not admitted (or excluded), the evidence establishes that the complainant had violent intercourse, raised a hue and cry which, without having regard to its content, is inconsistent with consensual sexual intercourse.  
 [37]	The evidence shows that the accused could only have entered that
 house through the window which was open when G. and N.
 arrived there but I can find no evidence that the accused broke into the
house in question. One simply does not know whether that window was
 open before the accused arrived there. Therefore the accused cannot be
 found guilty of the offence of housebreaking with the intent to rape and
 rape.
[38]	In the circumstances, the accused is found guilty of the offence of rape. 

______________
	B. SANDI
	JUDGE OF THE HIGH COURT