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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

GAUTENG DIVISION, PRETORIA

Case No. A41/2013

Date Heard: 02 December 2014

Date of judgment: 04 December 2014

In the matter between:

KABELO DAVID NDLOVU.........................................................................Appellant

and

THE STATE..................................................................................................Respondent

JUDGMENT

N.F DE JAGER, AJ:

[1] The appellant stood trial on a count of rape in the North West Regional Court held at Ventersdorp. It is alleged that on 18 November 2007 and at Tshing, Ventersdorp, the appellant unlawfully and intentionally had sexual intercourse with a female person, one A[...] P[...] (“the complainant”).

[2] The appellant was found guilty as charged and sentenced to ten years imprisonment. The appellant was also declared to be incompetent to possess a firearm.

[3] This is an appeal against both the conviction and sentence, with the leave of the Court a quo, upon the grounds set out in the notice of appeal.

[4] Before considering the merits of the present appeal, I wish to state the following. The appellant was charged with and convicted of a particularly serious offence, which carries a prescribed minimum sentence of 10 years imprisonment. The charge is not one of petty crime. The crime of rape bears potentially devastating consequences, not only for the victim, but, if convicted, also for the accused. I am perturbed by the desultory manner in which the proceedings in the Court a quo were concluded. This remark is not a reflection on the learned Regional Magistrate’s conduct at all, as his hands are tied as far as the quality of the case presented to him, is concerned.

[5] The source of concern is rather the quality of the evidence presented to the Court a quo on a charge such as the present. The evidence presented was scant. Often no attempt was made to clarify inconsistencies by way of proper and determined cross-examination or re-examination. Witnesses, who were probably available, were not called to fortify the prosecution’s case. The witnesses, who did testify, were clearly ill-prepared, resulting in the clumsy presentation of their evidence.

[6] The scrutiny of the evidence of the witnesses under cross-examination, on both sides, was shallow and lacked the intention to uncover the truth.

[7] The available medical evidence and its implications were neglected.

[8] It is simply unacceptable for both the State and the defence to gamble with the interests of the victim and the accused. It is certainly prone to bring about an injustice to both parties. To aggravate it all, the record is incomplete and riddled with “inaudibles”.

[9] The evidence of the complainant was led. The evidence in chief was tainted with leading questions. She initially testified that she met the appellant for the first time on the day in question. It later transpired that she knew him from numerous previous occasions, and that the appellant was indeed her cousin. On the relevant day the complainant was home alone. She was drunk and went to sleep in the bedroom. She closed the door of the house, but did not lock it. She was fast asleep.

[10] When she woke up sometime later, the appellant was lying on top of her and was having sexual intercourse with her. The appellant had apparently removed her under garment (referred to as her panty) while she was asleep without her being aware of it.

[11] The complainant further testified that she screamed. The appellant continued to have sexual intercourse with her.

[12] While the complainant was continuously screaming, the children and husband arrived. They knocked and kicked on the door, since it had in the meantime been locked.

[13] The complainant testified that she then lifted her head and noticed the children and her husband through the bedroom window standing outside the house, watching the complainant and the appellant through the window while the complainant was still having intercourse with her. It transpired that complainant’s reference to children in fact pertains only to her one child, S[...] M[...].

[14] The appellant then got off from the complainant and unlocked the door and proceeded to lie down on the floor next to the door. The appellant was also drunk. The complainant’s husband then entered. He slapped the appellant twice with his hand, where after the appellant jumped up and ran away.

[15] The appellant was then apprehended by neighbours and brought back to the complainant’s house, where he was assaulted. One of the neighbours was known to complainant as C[...]. C[...] was never called as a witness.

[16] The complainant did not sustain any injuries, but was taken to the hospital on the same evening of the incident. Tests were done on, and swabs were taken from the complainant. The appellant was taken into custody by police.

[17] Under cross-examination the complainant explained that it was not the first time that she had met the appellant. She denied that appellant had been at the house earlier that day. The children and husband were not at home when she went to sleep, as they were watching television with neighbours. The complainant said that she was able to see when the neighbours apprehended the appellant as she was standing at the door. She re-affirmed that the appellant got off her of own accord and nobody assisted or pulled him off her. She, however, did not see the accused bleeding later.

[18] The complainant was referred to her statement (exhibit A). According to the statement the complainant’s child, S[...], assisted another 12 year old child to enter the room through the window and to unlock the door from inside. This was denied by the complainant under cross-examination and she indicated that this must be a mistake by the police who took down the statement. It appears (even though unclear from the incomplete record) that the complainant was advised by the police not to place the 12 year old child on the scene and not to mention her during evidence, as she was too young to testify. Startlingly enough this issue was not taken further under cross-examination.

[19] On the appellant's version being put to the complainant, she added that the neighbours were intent on apprehending him because her child had been screaming for help and screamed that the appellant had just raped her mother

[20] Exhibit B, the J88-report by the medical practitioner, was handed in. No injuries or abnormalities were recorded in the report, which was completed at 21h00 on 18 November 2007, the evening of the incident. The Court a quo expressed concern regarding the contents of the J88 form in that the medical practitioner did not indicate the nature of the wounds recorded at item (5). This interpretation by the Court a quo is incorrect, since a “negative” is recorded in front of the inscriptions, indicating the absence thereof.

[21] Thereafter the complainant’s 25 year old daughter, S[...] M[...], testified.

[22] According to her evidence she attended church on the particular day between 14h00 and 16h00 where after she first went home. She then left to watch television with the neighbours.

[23] When she arrived at the house both her parents and children were present. The complainant was on her way to bed as she was intoxicated. S[...] left for the neighbours taking along all the children that were present at the house. S[...]’s father also left to watch television with a friend.

[24] S[...] confirmed that when she returned to the house, she found the door locked. Her father also arrived and started kicking the door. S[...] confirmed that she walked around the house to look through the bedroom window to see who might have locked the door. According to S[...], she then saw the appellant having sexual intercourse with her mother.

[25] S[...] called her father to also come and look through the window.

[26] The appellant then got up and pulled up his pants and unlocked the door. There ensued an altercation between S[...]’s father and the appellant, when they entered the house. S[...] tried to stop the imminent fight, but the appellant fled to where he was arrested by the neighbours on Chris’s premises where he was kept until the police picked him up. S[...] did not notice whether the appellant was injured or not because she waited in the house with the complainant.

[27] Under cross-examination S[...] conceded that her father did not see the appellant having sexual intercourse with her mother. S[...] indicated that the neighbours were alerted to the situation by her father kicking the door, but that no-one screamed anything of a rape having been committed. However, her father told the appellant that the appellant had raped his wife, which might have been overheard by neighbours. S[...] did not see the appellant being assaulted because she was in the house with complainant and appellant was apprehended elsewhere. The complainant never went out of the house.

[28] S[...] denied that she was aided by anybody else to open the door from inside.

[29] In stark contradiction to the evidence of the complainant, S[...] said that the complainant was not awake when S[...] peeped through the bedroom window, but that she was indeed still fast asleep due to her intoxication. S[...] added that it was indeed “ons”, probably referring to herself and her father, who had woken the complainant after gaining entry to the bedroom. They shouted at the complainant and inquired whether she was not aware of what the appellant had been doing to her. The complainant then said nothing.

[30] S[...] denied that her mother ever shouted.

[31] If I am to accept the evidence of S[...], it would seem that the complainant had been sleeping throughout the ordeal and only woke up after the appellant had ceased to lie on her.

[32] The complainant’s husband, A[...] M[...], then testified. The record of his evidence is incomplete as a result of numerous inaudible sections.

[33] While Mr M[...] was at his friend’s house he noticed his daughter returning to their house, but she was unable to enter. He then went to assist her and they knocked on the door.

[34] The witness looked through the window and saw the appellant fastening his belt.

[35] The appellant unlocked the door and proceeded to lie down in the kitchen area.

[36] In the bedroom the witness noticed the complainant intoxicated and crying. The witness then inquired something from the appellant. We do not know what was said or reported to the witness due to the poor quality of the record.

[37] The witness then slapped the appellant, where after the appellant walked away at a fast pace.

[38] Mr M[...] confirms that the complainant was heavily intoxicated when he returned to their house while the appellant was there. The police apprehended the appellant at C[...]’s house, some distance down the street from the complainant’s house.

[39] The answer to the question of the Court a quo whether the complainant made any report to the witness, is regrettably inaudible. It, however, appears that the complainant did not tell the witness what had happened when she was in the bedroom.

[40] The witness denied having lent his bicycle to the appellant. He added that his bicycle was broken.

[41] According to Mr M[...] the appellant was not drunk on the particular day.

[42] The witness, when peeping through the window only saw the appellant fastening his belt. The appellant was not on the complainant or on the bed. He never saw the appellant having sexual intercourse with the complainant.

[43] The witness denied that there was any child present, save for his daughter, S[...], when they initially tried to enter the house. The witness denied having assaulted the appellant.

[44] It appears that the witness also denied the version of the appellant that the witness’s other daughter by the name of D[...] had opened the door for the appellant earlier the day when he returned the witness’s bicycle on his version.

[45] The respondent thereafter called police officer Mbibi. He testified that he was called out to extension 5 by radio. It was alleged that somebody had raped a woman, he said.

[46] On his arrival he found a crowd of community members who held the appellant. The appellant had an injury to his head. The police officer then arrested the appellant and took him to the police station.

[47] According to the police officer the appellant told him that he sustained his head injury as a result of the assault by the people.

[48] Under cross-examination the police officer said that he was not the first police officer at the scene. There were others before him.

[49] It was put to the witness that the appellant wanted to explain the source of his injuries, but that he was instructed to get into the police van.

[50] The police officer testified that he noticed that the appellant was intoxicated because he smelt of liquor and his speech was affected.

[51] Thereafter the other daughter of the complainant, D[...], testified. She testified that she was not at her parental home on the day in question, but indeed with her boyfriend. She only returned the following day.

[52] She therefore denied that she opened the door for the appellant when he visited the house earlier the day.

[53] The DNA report was handed in as Exhibit C and the contents thereof was admitted as evidence before the Court a quo.

[54] None of the tests conducted could link the appellant to the alleged sexual intercourse. That concluded the case for the respondent.

[55] The appellant then testified as the only witness in his defence.

[56] He testified that he visited the house of the complainant three times on the particular day. He borrowed Mr M[...]’s bicycle and again returned it later the day. When he returned the bicycle he was met by the complainant’s daughter (i.e. D[...]) and her boyfriend.

[57] The appellant entered where after the complainant’s daughter closed the door. Mr M[...] was not present and he decided to wait for him. When Mr M[...] arrived at the house he knocked on the door. As he entered the appellant saw that he was drunk. Mr M[...] inquired why the door was closed. Mr M[...] then proceeded to the bedroom.

[58] The appellant realized that he would not retrieve his R10.00 he had given Mr M[...] earlier, because Mr M[...] was clearly drunk. According to the appellant he knew Mr M[...] as a violent person when he was intoxicated.

[59] Mr M[...] mumbled something from the back of the house to the effect that the appellant used to sleep with Mr M[...]’s wife. The appellant did not respond to the allegation.

[60] As the appellant put the chair back next to the kitchen table he was hit by something on the head and felt dizzy. He was hit by Mr M[...].

[61] He was bleeding as a result of the assault to his head. According to appellant the other house members reprimanded Mr M[...] for assaulting the appellant.

[62] The appellant then exited the house as he was bleeding heavily.

[63] The appellant denied that the daughter, S[...], was present and stated that she was at church. He knew she was at church because she had told him that she would be going earlier the day when he visited the house.

[64] According to the appellant S[...] was indeed at his parental house. When Mr M[...] assaulted him, she was called back to her house.

[65] The appellant testified that the neighbours assisted him after he had been injured. They walked with him to C[...]’s house, about 150m from the complainant’s house. The appellant says that C[...] did not approach him, but it was indeed C[...] who phoned an ambulance.

[66] Under cross-examination it was put to the appellant that there is no reasonable explanation why the complainant and her family would falsely implicate the appellant. That was the high-water mark of the cross-examination of the appellant.

[67] The appellant denied having raped the complainant and said that he does not have an explanation for their allegations. The appellant also confirmed that he was drunk on the particular day.

[68] That was the case for the defence.

[69] In evaluating the evidence presented by the prosecution, the following needs to be considered:

[69.1] The complainant was heavily intoxicated on the particular day, to the extent that she was not aware that she was being undressed and/or that the appellant had penetrated her.

[69.2] The complainant’s husband was also intoxicated. The appellant himself was also intoxicated. The only witness, who was sober on the day, was the complainant’s daughter, S[...], and the other daughter, D[...], who was allegedly not there.

[69.3] The complainant was a poor witness, not surprisingly, as she was almost in a vegetative state as a result of her intoxication.

[69.4] She says that when she woke up the appellant had already started to have sexual intercourse with her. This means that the appellant succeeded in removing her under garment, positioning himself and her, and penetrating her, without her experiencing or noticing anything.

[69.5] She says that when she realized what was going on, and that it was her cousin on her, she started to scream.

[70] The only sober witness, S[...], denies that her mother ever screamed at all.

[71] The complainant says that she noticed her daughter and husband looking through window of the bedroom. In stark contradiction to that evidence, S[...] is adamant that her mother was fast asleep throughout, while the appellant was on top of her. As a matter of fact, it was necessary for S[...] and her father to wake the complainant and to tell her what had happened to her, after the appellant had left the bedroom already. The Court a quo made very sure that it understood S[...]’s evidence in this regard. S[...] testified as follows:

“Sy het nooit geskree Agbare, sy was onder die invloed van drank en sy was vas aan die slaap.

Nee, toe u nou deur die venster kyk, slaap u ma of wat maak sy?

— Ja, Agbare sy was vas aan die slaap.

Is u seker van dit, want u ma sê sy was wakker en sy het vir u gesien toe u daar deur die venster kyk?

— Sy het niks geskree Agbare....

Maar u sê sy was vas aan die slaap, is u seker van dit?

— Ja, Agbare want ons het haar self wakker gemaak en sy het nie klere aangehad nie.

Wie het haar wakker gemaak?

— Ons het haaralmal geskree dat kan jy nie sien die man het ai...”

[72] In further contradiction to the complainant’s evidence, S[...] repeatedly said that she and her mother remained in the house and never went outside. They were waiting for the police. She also said that nobody ever screamed that her mother was being raped.

[73] The fact that the complainant and S[...] remained in the house and that S[...] repeatedly said that she did not observe what the appellant had done or how he was injured after he left the house, is in contradiction to the evidence of the complainant who said that she saw the appellant being apprehended by the neighbours. The complainant was clearly told what transpired and she did not witness it herself.

[74] These inconsistencies and contradictions taken together, cast a serious doubt on the complainant’s version.

[75] S[...]’s evidence was presented in corroboration of the version of the complainant. However, if I accept S[...]’s evidence, that her mother was still asleep after the alleged rape, it automatically excludes the complainant’s account of events. It indeed means that the complainant was not even aware of being raped and/or what the identity of the perpetrator was.

[76] If I, however, consider to prefer the complainant’s evidence above that of S[...]’s, I will be treading on thin ice. As already stated her evidence was poor and she was extremely drunk on the day in question.

[77] A further serious problem with the complainant’s evidence, is that she was clearly influenced by outsiders, to adapt her evidence so as not to complicate her case. She was advised not to mention her younger child, even though she might have been a valuable witness. This fact in isolation, is not necessarily my greatest concern. However, having regard to the complainant’s statement (Exhibit A) she declared under oath that this younger child was in some way used to unlock the door from the inside of the house. Complainant then denied that she ever stated something of this nature to the police. Having regard to her own evidence that she was told to exclude the presence of the 12 year old child from her evidence, it may very well be reasonably inferred that that was the reason why she denied the contents of her statement in that regard. What the role of that child might have been, remains a mystery.

[78] Cumulatively, this simply makes the complainant an incredible witness, whose evidence should be rejected.

[79] That leaves us with the evidence of S[...] and her father, Mr A[...] M[...].

[80] Save for denying the appellant’s version, Mr M[...] cannot contribute to the case or give evidence as to the alleged rape. All he saw was that the appellant was fastening his belt, whereafter he slapped the appellant on the information gathered from his daughter. He is certainly not a witness to rape.

[81] The question is then what did S[...] see in corroboration of her mother’s version? Her evidence was that she saw the appellant lying on top of her mother having sexual intercourse. It is unclear to me how she observed that the appellant and the complainant had copulated at that moment in time. She has given no reason for her conclusion that they had sexual intercourse when she looked through the window. The fact that the appellant was lying on the complainant, is certainly not proof beyond a reasonable doubt of the factual question of intercourse. It is not even clear whether the appellant was dressed and/or to what extent his trousers were dropped. What posture the complainant had taken at the time, was never canvassed.

[82] This coupled with S[...]’s evidence that her mother was still fast asleep when the appellant exited the room, creates serious doubt on the State’s own version, whether sexual intercourse occurred beyond a reasonable doubt.

[83] We cannot rely on the complainant’s version in this regard for reasons which I have already stated.

[84] What bothers me, is whether it can be concluded that there was penetration. The only evidence of alleged penetration comes from the complainant. Her evidence must be rejected as unreliable. Is it possible to be so drunk that you are unaware of sexual intercourse for a substantial period of time? It might be. To then wake up and give a reliable account of what is happening to you, is likely impossible. Having regard to the complainant’s tendency to manipulate the evidence to suit her case, I have to doubt whether there was any penetration.

[85] The Court a quo itself grappled with these inconsistencies between the complainant and her daughter’s evidence and more than once stated in its judgment:

“Dan kan ‘n mens werkfik wonder oor wie praat nou die waarheid en wie praat nie die waarheid. ”

[86] The Court a quo apparently then, as a last resort, relied on the police officer, Mbibi’s evidence as the deciding factor. Because of the fact that the appellant allegedly told the police officer that he was assaulted by the neighbours, the Court a quo came to the conclusion that the appellant’s version should be rejected as false. Even if this approach is correct, it does not absolve the respondent from its onus.

[87] Furthermore, it cannot be ignored that the DNA tests conducted the same day soon after the incident were negative. It is significant to note that no male DNA could be isolated from the vaginal vault of complainant. No evidence was led to elaborate on the contents of the DNA report. On the evidence ex facie the report handed in, the inference is that there was no penetration by the appellant If this is not the only reasonable inference that Court should make, further evidence was required.

[88] As far as I am concerned, the respondent has failed to prove the elements of the crime beyond a reasonable doubt. I am mindful of the fact that all the evidence should be evaluated as a unit. In this regard the version put forward by the appellant cannot simply be ignored, even though the respondent’s case is lacking as aforesaid.

[89] Even if the appellant’s version were found to be improbable or even if I do not believe him, he is entitled to an acquittal if his version is reasonably possibly true.

[90] In this regard I refer to R v Difford 1937 AD 3 70 at 373:

“It is equally clear that no onus rests on the accused to convince the court of the truth of any explanation he gives. If he gives an explanation, even if that explanation is improbable, the Court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but that beyond any reasonable doubt it is false. ”

[91] In RvM 1946 AD 1023 at 1027 Davies J remarked as follows:

"The Court does not have to believe the defence story, still less does it have to believe in its details. It is sufficient if it seems that there is a reasonable possibility that it may be substantially true. ”

See also S v Mafiri 2003 (2) SACR 121 SC A at 455:

“It is trite that there is no obligation upon an accused person, where the State bears the onus, to convince the Court. If his version is reasonably possibly true, he is entitled to his acquittal even though his explanation is improbable. The Court is not entitled to convict unless it is satisfied not only that the explanation is improbable, but that beyond any reasonable doubt It is false. It is permissible to look at probabilities of the case to determine whether the accused’s version is reasonably possibly true, but whether one subjectively believes in is not the test As pointed out in many judgments of this Court and other courts, the test is whether there is a reasonable possibility that the accused’s evidence may be true. ”

[See also Shusha v S (609/10) [2011] ZASCA 171, delivered on 29 September 2011.]

[92] The prosecution is required to cover adequately every substantive element of the crime as defined in the criminal law in which the accused is alleged in the charge sheet to have perpetrated, by presenting concrete and admissible evidence to prove that an accused is guilty of the crime charged.

[93] I regard it prudent to refer to the remarks of Sachs J in S v Coetzee [1997] ZACC 2; 1997 (1) SACR 379 (CC) at 220 ef seqq:

“The starting point of any balancing inquiry where constitutional rights are concerned must be that the public interest in insuring that innocent people are not convicted and subjected to ignominy and heavy sentences, massively outweighs the public interest in insuring that a particular criminal is brought to book. Hence the presumption of innocence, which serves not only to protect the particular individual on trial, but to maintain public confidence in the enduring integrity and security of the legal system."

[94] In Monageng v S [2009] 1 All SA 237 SCA the Court described proof beyond reasonable doubt as follows:

“Evidence with such a high degree of probability that the ordinary reasonable man, after mature consideration, come to the conclusion that there exists no reasonable doubt that the accused has committed the crime charged. ”

[95] I am of the view that the contradictions and discrepancies referred to above, bear materially on the appellant’s guilt.

[96] I do not necessarily believe the appellant’s version. It can also not stand alongside the case presented on behalf of the respondent. However, weighing it against the quality of the case put forward by the respondent, I cannot find that it is so improbable that it cannot reasonably possibly be true.

[97] The consideration taken into account by the Court a quo that there appears to be no reason why the complainant and her family would falsely implicate the appellant, is misguided.See in this regard S v Kubeka 1982 (1) SA 534 W at 537 A - D:

“It is a wrong approach in a criminal case to say, Why should a witness for the prosecution come here to commit purgery?’ It might equally be asked: Why does the accused come here to commit purgery?’ True, the accused is interested in not being convicted, but it may be that an inspector has an interest in securing a conviction. It is therefore quite a wrong approach to say, 7 asked myself whether this man has come here to commit purgery, and I can see no reason why he should have done that, therefore his evidence must be true and the accused must be convicted. ’ The question is whether the accused’s evidence raises a doubt. ”

[See also R v P 1955 (2) SA 561 (A) and R v Van Heerden & Ander 1960 (2) SA 405 (T)J

[98] For the State to be successful in proving the appellant’s guilt beyond a reasonable doubt, it should at least prove penetration as an essential element of the crime.

[99] On the State’s case and the evidence presented in support thereof, this cannot be found beyond a reasonable doubt.

[100] I have reasonable doubt that the complainant was ever awake during the presence of the appellant. I have reasonable doubt whether the complainant was able to perceive and observe what was going on around her at the time. I have reasonable doubt that Sophie was able to evaluate whether the appellant penetrated the complainant at any stage. The negative DNA report enhances such doubt.

[101] In the premises I find that the Court a quo misdirected itself by finding that the respondent made out a case beyond a reasonable doubt.

[102] In the result the appeal must succeed.

The following order is thus made:

Order:

The appeal is upheld. The appellant’s conviction and sentence is set aside and replaced with the following.

'The accused is found not guilty and discharged.'

N.F. de Jager

Acting Judge of the High Court

I agree.

A.M.L. Phatudi

Judge of the High Court

On behalf of the Appellant: Legal Aid South Africa

FNB Building

Church Square

Pretoria

Mr. M.B. Kgagara

On behalf of the Respondent: DPP

Church Square

Pretoria

Adv. P.C.B. Luyt

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