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

NOT REPORTABLE

IN THE HIGH COURT OF SOUGH AFRICA         /bh
(TRANSVAAL PROVINCIAL DIVISION)
19 SEPTEMBER 2007
Case no:  A768/2006

In the matter between:

ANDRIES SIBUYI							APPELLANT

AND

THE STATE								RESPONDENT

JUDGMENT

VAN DER MERWE, J

	The appellant was charged with four counts of rape and one count of indecent assault in the Regional Court Pretoria.  The appellant was legally represented during the trial and pleaded not guilty to all the charges preferred against him.  The appellant was found guilty as charged on all five counts.  The proceedings were thereafter stopped and referred to the High Court for the sentencing of the appellant in accordance with the provisions of section 52(1)(b) of Act 105 of 1997.  

	The matter initially came before Patel J on 4 March 2005.  The learned judge was of the opinion that the proceedings were not in accordance with justice in that the appellant’s guilt was not proved beyond reasonable doubt and referred the matter back to the Regional Court for the magistrate’s reasons.  

	The learned Regional Court Magistrate furnished detailed reasons whereafter the matter came before Ranchod, AJ who, on 29 July 2007 confirmed the convictions.  The appellant was sentenced on 12 August 2005.  The learned judge took the four counts of rape (counts 1, 2, 3 and 5) together for purposes of sentence and sentenced the appellant to life imprisonment. On count 4 (indecent assault) the appellant was sentenced to five years imprisonment.  The court further ordered that the sentence on count 4 run concurrently with the sentence on counts 1, 2, 3 and 5.

	On 12 August 2005 the appellant was granted leave to appeal against both the convictions and sentences by Ranchod AJ.  

	There is no notice of appeal.  During the application for leave to appeal leave was sought on the following grounds:
1)	Serious discrepancies exist between the evidence of two state witnesses namely K. Mgiba (K.) and Gift M. Mathotsi (M.);

2)	The report made to K.’s mother about the incidents of rape and indecent assault was made some time after the incidents and only after serious threats of injuries and assault were made by the mother against K. and M.;

3)	The magistrate misdirected herself when she took judicial notice of the social development stages of the witnesses K. and M., their moral development and the culture of the witnesses in an attempt to explain the discrepancies in their evidence.

It must be accepted that Ranchod AJ granted leave to appeal on those grounds. 

	The trial court’s judgment consist of 33 typed pages.  The trial court’s reasons for the conviction as requested by Patel J consist of a further 23 pages.  I do not intend summarising the evidence again.  That will only amount to an unnecessary repetition of the facts.  I will rather concentrate in this judgment on those aspects where I disagree with the trial court’s findings and my reasons for doing so. 

	In criminal matters in general it is unnecessary to spend time on discussing the state’s burden of proof and the way in which a court should approach the evidence where the  court is faced with conflicting versions and contradictions in the versions of different witnesses.  In some instances, as in the present, it is however necessary to briefly refer to what should be common cause.

In S v Ntsele 1998 (2) SACR 178 (SCA) ([1998] 3 All SA 517) the Supreme Court of Appeal deals with the onus of proof on the State, the adequacy of proof and the trial court’s evaluation of evidence.  
At 182b-f (SACR) Eksteen JA says the following:

“Die bewyslas wat in ‘n strafsaak op die Staat rus is om die skuld van die aangeklaagde bo redelike twyfel te bewys – nie bo elke sweempie van twyfel nie.  In Miller v Minister of Pensions [1947] 2 All ER 372 op 373H stel Denning R (soos hy toe was) dit soos volg:

“It need not reach certainty, but it must carry a high degree of probability.  Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt.  The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.  If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable”, the case is proved beyond reasonable doubt …”

Ons reg vereis insgelyks nie dat ‘n hof slegs op absolute sekerheid sal handel nie, maar wel op geregverdigde en redelike oortuigings – niks meer en niks minder nie  (S v Reddy and Others 1996 (2) SASV 1 (A) op 9b-e).  Voorts, wanneer ‘n hof met omstandigheidsgetuienis werk, soos in die onderhawige geval, moet die hof nie elke brokkie getuienis afsonderlik betrag om te besluit hoeveel gewig daaraan geheg moet word nie.  Dit is die kumulatiewe indruk wat al die brokkies tesame het wat oorweeg moet word om te besluit of the aangeklaagde se skuld be redelike twyfel bewys is  (R v De Villiers 1944 AD 493 op 508-9)”.

The reference to S v Reddy and Others 1996 (2) SACR 1 (A) reads as follows:

‘Lord Coleridge, in R v Dickman (Newcastle Summer Assizes, 1910 – referred to in Wills on Circumstantial Evidence 7 ed at 46 and 452-60, made the following observations concerning the proper approach to circumstantial evidence:

“It is perfectly true that this is a case of circumstantial evidence and circumstantial evidence alone.  Now circumstantial evidence varies infinitely in its strength in proportion to the character, the variety, the cogency, the independence, one of another, of the circumstances.  I think one might describe it as a network of facts around the accused man.  That network may be a mere gossamer thread, as light and as unsubstantial as the air itself.  It may vanish at a touch.  It may be that, strong as it is in part, it leaves great gaps and rents through which the accused is entitled to pass in safety.  It may be so close, so stringent, so coherent in its texture, that no efforts on the part of the accused can break through.  It may come to nothing – on the other hand it may be absolutely convincing ... the law does not demand that you should act upon certainties alone... In our lives, in our acts, in our thoughts we do not deal with certainties; we ought to act upon just and reasonable convictions founded upon just and reasonable grounds ... the law asks for no more and the law demands no less.” 

In S v Singh 1975 (1) SA 227 (N) the Court discussed the approach of a court where there is a conflict of fact.  The learned Judge says the following at 228F-H:

“[I]t would perhaps be wise to repeat once again how a court ought to approach a criminal case on fact where there is a conflict of fact between the evidence of the State witnesses and that of an accused.  It is quite impermissible to approach such a case thus:  because the court is satisfied as to the reliability and the credibility of the State witnesses that, therefore, the defence witnesses, including the accused, must be rejected.  The proper approach in a case such as this is for the court to apply its mind not only to merits and the demerits of the State and the defence witnesses bur also to the probabilities of the case.  It is only after so applying its mind that a court would be justified in reaching a conclusion as to whether the guilt of an accused has been established beyond all reasonable doubt.” 

An extremely helpful summary also appears in the headnote of the judgment in R v Radebe 1991 (2) SACR 166 (T) at 167j-168h.  The summary reads thus:

“A criminal court does not judge an accused’s version in a vacuum as if only a charge-sheet has been presented.  The State case, taking account of its strengths and weaknesses, must be put into the scale together with the defence case and its strengths and weaknesses.  It is perfectly correct that the State case cannot be determined first and if found acceptable regarded as decisive.  The State case, if it is the only evidentiary material before the court, must in all cases be examined first in order to determine whether there is sufficient evidentiary material in respect of all the elements of the offence and whether there is not perhaps in any event a reasonable possible alternative hypothesis appearing therefrom.  Precisely the same approach is applicable if the defence puts forward a version.  Taking into account the State case, once again it must be established whether the defence case does not establish a reasonable alternative hypothesis.  That alternative hypothesis does not have to be the strongest of the various possibilities (that is, the most probable) as that would amount to ignoring the degree and content of the State’s onus.  The State’s case must also not be weighed up as an independent entity against the defence case as that is not how facts are to be evaluated.  Merely because the State presents its case first does not mean that a criminal court has two separate cases which must be weighed up against one another on opposite sides of the scale.  The presentation of the two cases in that sequence is the result of considerations of policy and effectivity.  The criminal court ultimately has a conglomerate of evidentiary material before it which is indicative of facts against or in favour of the innocence of the accused.  Some exculpatory facts may appear from the State case whilst incriminating facts might appear from the defence case, for example admissions made during cross-examination.  The correct approach is that the criminal court must not be blinded by where the various components come from but rather attempt to arrange the facts, properly evaluated, particularly with regard to the burden of proof, in a mosaic in order to determine whether the alleged proof indeed goes beyond reasonable doubt or whether it falls short and thus falls within the area of a reasonable alternative hypothesis.  In so doing, the criminal court does not weigh one “case” against another but strives for a conclusion (whether the guilt of the accused has been proved beyond a reasonable doubt) during which process it is obliged, depending on the circumstances, to determine at the end of the case:  (1) where the defence has not presented any evidence, whether the State, taking into account the onus, has presented a prima facie case which supports conclusively the State’s proferred conclusion;  (2) where the defence has presented evidence, whether the totality of the evidentiary material, taking into account the onus, supports the State’s proffered conclusion.  Where there is a direct dispute in respect of the facts essential for a conclusion of guilt it must not be approached:  (a)  by finding that the State’s version is acceptable and that therefore the defence version must be rejected;  (b)  by weighing up the State case against the defence case as independent masses of evidence; or (c)  by ignoring the State case and looking at the defence case in isolation.”

	From the aforegoing it is clear that there is no onus on an accused.  It is for the State throughout to prove the guilt of an accused beyond reasonable doubt.

	A court can only decide on the guilt of an accused on the viva voce and documentary evidence before it.  In casu, the charge sheets are missing and cannot be traced.  The medical report in respect of K. is also missing and can also not be traced.  It is common cause that there are various contradictions between the evidence of K. and M..  It is furthermore common cause that the two complainants, K. and M., reported the incidents months after its occurrence and then under circumstances that may cast doubt on the veracity thereof.  

	On 28 August 1984 judge of appeal HC Nicholas delivered the Oliver Shreiner Memorial Lecture at the University of the Witwatersrand.  The lecture was later published in the 1985 South African Law Journal at page 32 under the heading “Credibility of witnesses”.  It is worthwhile referring to a few statements made by the honourable judge of appeal.  In his introduction the following is said:

“For the assessment of the credibility of witnesses (whether it relates to their veracity of their reliability) there are not formulas, no rules of thumb such as that given by an American who, asked how one could tell whether a certain personage was lying, said, “you look to see if his lips are moving”.  The evaluation is essentially a subjective judgment, and is the resultant of a number of fact ors whose varying weight depends upon the circumstances.”

	Under the heading “VERACITY” the following is said:

“The fact that a witness has lied in one respect shows that he is capable of lying in other respects.  A witness is proved to be in error where his statements are contradicted by the proved facts or where he is guilty of self-contradiction.  Where he has made contradictory statements, since both cannot be correct, in one at least he must have spoken erroneously.  Yet error does not in itself establish a lie.  It merely shows that, in common with the rest of mankind, the witness is liable to make mistakes.  A lie requires proof of conscious falsehood, proof that the witness has deliberately misstated something contrary to his own knowledge or belief.”

	Under the heading “Contradictions between witnesses” at page 35 the learned judge of appeal states as follows:

“The argument is often advanced in court that, because witnesses’ accounts disagree, they lack veracity, and considerable time is spent in establishing, and basing argument on, contradictions and discrepancies.  Such argument is fallacious.

It is the case that where two or more witnesses give consistent evidence that may be a strong and indeed a decisive indication that their story is a credible one.  In this regard Professor Starkie said:

“The consistency of testimony is also a strong and most important test for judging of the credibility of witnesses.  Where several witnesses bear testimony to the same transaction, and concur in their statement of a series of particular circumstances, and the order in which they occurred, such coincidences exclude all apprehension of mere chance and accident, and can be accounted for only by one or other of two suppositions; either the testimony is true, or the coincidences are the result of concert and conspiracy.  If, therefore, the independency of the witnesses be proved, and the supposition of previous conspiracy be disproved or rendered highly improbable, to the same extent will the truth of their testimony be established.  
‘So far does this principle extend, that in many cases … the credit of the witnesses themselves for honesty and veracity may become wholly immaterial.  Where it is once established that the witnesses to a transaction are not acting in concert, then, although individually they should be unworthy of credit, yet if the coincidences in their testimony be too numerous to be attributed to mere accident, they cannot possibly be explained on any other supposition than that of the truth of their statement.’ 
But the converse is not true.  It is not the case that lack of consistency between witnesses affords any basis for an adverse finding on their credibility.  Where contradictory statements are made by different witnesses, obviously at least one of them is erroneous, but one cannot, merely from the fact of the contradiction, say which one.  It follows that an argument based only on a list of contradictions between witnesses leads nowhere so far as veracity is concerned.  The argument must go further, and show that one of the witnesses is lying.  It may be that the court is unable to say where the truth lies as between contradictory statements, and that may affect the question whether the onus of proof has been discharged:  but that has nothing to do with the veracity of the witnesses.” 

	With the foregoing in mind I will consider the contradictions in the evidence of K. and M..  

	K. stated that the appellant first raped M. and then herself.  After both of them were raped, the appellant took out a knife and threatened both of them therewith.  M. on the other hand said that she was threatened with the knife even before she was raped.  When K.’s evidence was put to her she had no hesitation in stating that K. was lying about the time when the appellant threatened them with the knife. 

	A further contradiction between the evidence of K. and M. concerns the curtain in the appellant’s room.  The appellant himself testified that there was no curtain dividing two sections of the room.  According to K. the curtain was drawn so that she could not see what was happening behind the curtain.  M. on the other hand was initially uncertain whether the curtain was drawn.  Later she said that it was partially drawn.  While she was behind the curtain with the accused she could see that K. was trying to leave the room. 

	K. did not refer to the fact that she tried to leave the room. 

	According to K. the incident where she and M. were raped took place during June 2001 during day time.  According to M. it happened at night time.  She even stated that K. was dressed in a night dress whereas K. testified that she had long pants on.  M. had no hesitation in saying that K. was lying when she testified that the incident occurred during day time.  

	A further slight contradiction between the two witnesses is to the effect that according to K. they went to play after they were both raped while M. testified that they went home.  

	M. also recalled “things” falling down when she was taken behind the curtain while K. had no recollection thereof.  This specific contradiction in my mind is not that important but must be taken into account in evaluating the evidence as a whole.

	It is common cause that at least on the first occasion when K. was raped (and the only occasion when M. was raped) K.’s mother was present in the house adjoining the zozo where the rape allegedly took place.  It also appears that on all the other occasions when K. was raped and assaulted her grandmother was present in the main house.  It seems that the zozo and the house were close together.  On no occasion did K. scream for help or immediately reported the incidents.  M. herself also did not scream for help.  It was only when K. was confronted with her failure to summons help that she testified that her mouth was closed by the appellant when he raped her on the first occasion.  That  was not said nor  led in her evidence in chief.

	K. described in her evidence in chief how the appellant pushed her legs apart and then undressed her.  It was pointed out to her that it was  difficult to understand how appellant managed to undress her under those circumstances.  In cross-examination she said that she was undressed and thereafter only were her legs pushed apart.

	The report to K.’s mother about the rapes and indecent assault was made some time after the incidents.  On a question to K. as to how it happened that she and M. told her mother, she replied as follows:  “We went to the public phones to, actually M. was to phone her father.  But then on our coming back my mother as well as M.’s mother wanted to beat us up and tell us why were we at the public phones, it means we are trying to call some boys.  That is when we told them and they confronted Sebia but then he denied that.  And thereafter the police were contacted, he was then arrested.  That is all.” 

	M. in turn testified that her mother sent her to phone her father.  She and K. then went to do so.  According to M. there was queue at the telephone and they had to wait for some time.  She said that when she was just about to replace the receiver K.’s mother appeared.  Nothing is said about her own mother.  According to M. K.’s mother then threatened to give them a hiding.  Her answer thereafter continues as follows:  “And me told her; look the queue was too long, that is why we took the time before we could phone … She then said to me, you better tell the truth, I am going to give you a hiding and I am going to burn you with the iron…  Because we were scared of the hiding and also she was going to burn us with the iron so we said:  Mommy, look, we have been raped.”

	It is also the evidence of K. that she felt pain during the various incidents.  She, however, continued to go to the appellant’s room where she was again molested.  I find it difficult to understand why even a young girl like K. would willingly go back time and again to the appellant’s room where she knew a further incident may occur. 

	The appellant denied having raped the two girls or having indecently assaulted K..  It is true that there is some discrepancy in his evidence concerning the number of times the children visited his room to watch television.  

	In my judgment, when the evidence is considered as a whole and the discrepancies and contradictions in the evidence of the two complainants are taken into account, there is a doubt whether the appellant is guilty or not. I can therefore not conclude that the appellant’s guilt has been proved beyond reasonable doubt.

	In my judgment the appellant is entitled to his acquittal.

	The appeal succeeds.  The convictions and sentences are set aside.

W J VAN DER MERWE
JUDGE OF THE HIGH COURT
I agree

J R MURPHY
JUDGE OF THE HIGH COURT
I agree

L M MOLOPA    
JUDGE OF THE HIGH COURT