---

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

 

(1)      REPORTABLE

(2)      NOT OF INTEREST TO OTHER JUDGES

(3)      REVISED

CASE NO: A349/13

31/7/2018

 

In the matter between:

 

FATMAN KLEINBOOI MBELU                                                                 APPELLANT

 

and

 

THE STATE                                                                                                   RESPONDENT

JUDGMENT

RANCHOD J:

Introduction

[1]          In this matter the appellant appeals against his conviction only, after leave was granted on petition to this court when Prinsloo J and I granted it on 18 February 2013. Both parties agreed that they had no objection to my presiding in the appeal. In any event I had no recollection of having dealt with the matter on petition but it came to my attention when appellant's counsel mentioned it in her heads of argument.

[2]          There are many 'inaudibles' in the record but it was reconstructed and a transcription of the presiding officer's contemporaneous notes made during the trial were attached in respect of the witnesses L N (the complainant); N S (mother of the complainant); P M; G N and G N. Counsel for the appellants and the State agreed that the record as reconstructed together with the magistrate's notes was adequate to consider the appeal and it was heard accordingly.

[3]          The appellant was arraigned in the Secunda Regional Court on two counts of rape of the 17 year old F N. The appellant pleaded not guilty on both counts and elected not to provide a plea explanation. He also did not testify in his own defence. He was convicted as charged and sentenced to 14 years imprisonment on each count, which sentences were ordered to run concurrently.

[4]          The appellant was legally represented throughout the trial as well as in the subsequent application for leave to appeal and petition to the high court. Leave to appeal against the conviction was granted on petition on 18 February 2013.

[5]          The complainant testified about two rape incidents that occurred on 25 September 2009 and 12 October 2009 respectively. She said the appellant raped her inside his house. The complainant and her two brothers, George and Gift (aged 14 and 18 respectively) testified about the first incident, as did the complainant's friend, P, who was 13 years old at the time. The complainant, her mother and P testified about the second incident.

[6]          On the first occasion the appellant had sent the complainant and her friend P to buy paraffin for him. When they came back he took the complainant into his bedroom and raped her. On the second occasion he is said to have raped her, again in his bedroom after she was dragged to his house by two boys.

[7]          The state handed in as exhibits the J88 medical report and a letter from the Forensic Laboratory. The report indicated that not enough male DNA was obtained from the semen samples obtained from the complainant.

 

A summary of the evidence

[8]          The complainant F N testified. She was 17 years old at the time of giving evidence. She testified that on the 25th of September 2009 she was with her friend P when the appellant sent them to buy paraffin. When they returned with the paraffin P waited in the dining room while the appellant took her into the bedroom. The appellant locked the door of the room. He undressed her and pushed her on the bed. While she was lying on her back the appellant put a condom on his penis and raped her. She could not scream because the appellant covered her mouth with a plastic bag. After the appellant finished he gave her R10. The Complainant then took the key and unlocked the room. She found P still in the dining room. The complainant told P what happened and P then went to her siblings and told them that the complainant was raped by the appellant. According to the complainant her siblings then told her mother that she was raped by the appellant. The complainant testified that her private parts were very painful and she could not walk properly.

[9]          The complainant testified further that on 12 October 2009 she was returning from school when the appellant called her. He told her that he wanted her to have his baby but she told him that she was not interested. While she was busy with the dishes at her home, one Josey came in the house and with the help of another person dragged her to the home of the appellant. She was again raped by the appellant. After the rape the appellant gave her RS. The complainant testified that she told P again that she was raped by the appellant. P then told her mother who went to confront the appellant.

[10]       Maria N S testified that she is the biological mother of the complainant. On 12 October 2009 at approximately 16:00 she received a report from G and G that the teacher has 'raped' the complainant. Ms S went to the appellant and confronted him but he denied it. When Ms S saw the complainant she noticed that the complainant had difficulty walking. When she asked the complainant what was wrong, the complainant told her that the teacher raped her. It was added later by Ms S that she first threatened to beat the complainant before the complainant told her that the teacher raped her. She also testified that the complainant "is not mentally fit".

[11]       H M (P), a 13 year old girl testified that she is the friend of the complainant. On 25 September 2009 the appellant gave them money and sent them to buy paraffin. When they returned with the paraffin they went to the house of the appellant. The appellant chased her away and told her to go and play. She left. She denied having been seated in the appellant's dining room. After a short while the complainant came to her. The complainant looked angry, but would not tell her what happened. After a few days the two girls were given a hiding by the aunt because they were naughty. It was then that the complainant told the aunt that the appellant raped her. P referred to the complainant's mother as 'aunt'.

[12]       P testified about the second occasion as well. She said she and the complainant met the complainant’s brothers and sisters. They went to buy beer for the appellant and took it to him. She said the complainant, one Jozi and the appellant went into a room. Jozi had dragged the complainant on to the bed. The complainant wanted to flee. She had been standing at the door, which was open. The appellant gave her R2 to go away and the complainant stayed behind. Under cross-examination she denied knowledge that the complainant was dragged from the street by two men. She also denied that the complainant told her that she had been raped. When she saw her later she was walking normally. The complainant did not tell her that the appellant had given her any money. However, in her evidence-in-chief she said that on another day the complainant had taken out R10 and said her uncle had given it to her but did not say which uncle.

[13]       M G N testified about the day the appellant sent F and P to buy paraffin. When they returned, F went inside the house to deliver the paraffin. The other children went into the house shortly thereafter and stood at the open door of the appellant's room. He saw F was lying on her stomach and the appellant was on top of her and was busy raping her. They went outside and watched through a window. The appellant then closed the window and locked the door. This witness denied that he was told by P about the incident, but that P was standing with him and Gift at the window.

[14]       G N testified. He was 8 years old at the time he gave evidence. G testified that one day while playing, they saw how the appellant dragged F into his house. They then went to peep through the window, but the appellant gave them R2 each to go away. G testified that he saw the appellant take condoms from under the mattress. He then put a condom on his penis and raped F. The complainant was screaming and crying. Because the complainant kept on screaming, he let her go. The appellant then gave money to P to buy paraffin. When P left to buy paraffin, the complainant was still inside the house of the appellant. Under cross­ examination she said the complainant and P went together to buy the paraffin but the empty bottle was given to P and the money to the complainant.

[15]       The state closed its case and the appellant elected not to give evidence or to call any witnesses.

[16]       The J88 medical report completed by Dr N. Gokol on 14 October 2009 was handed in by the State with no objection from the defence. The doctor notes that the vaginal examination of the complainant revealed that the hymen was perforated, blood was evident and there were two lacerations.

[17]       Certain genital specimen swabs together with the suspect's (the appellant's) blood sample were sent to the Forensic Laboratory in Pretoria for DNA comparison. The preliminary report dated 20 February 2010 summarised the results as follows:

'Presumable semen could be detected on the Genital Specimen swab A, B and C. If the State Prosecutor is of the opinion that DNA comparison will have evidential value, s/he must notify the laboratory in writing four months before the court date.'

It appears that no DNA comparison report was requested by the prosecutor from the laboratory.

 

[18]       It is trite that a court is called upon to consider all the evidence placed before it in its totality. State counsel submitted that when so considered, the evidence against the appellant is overwhelming. The complainant's evidence is materially corroborated in the following respects:

18.1      When the doctor examined the child on 14 October 2009 he noted in paragraph 5 in respect of the vaginal examination that the hymen was perforated, blood was evident and there were two lacerations.

18.2      P confirmed that she was walking with the complainant when the latter was called by the appellant and requested to go buy paraffin and that upon their return the appellant chased her away to go play whilst he entered into his bedroom with the complainant.

18.3      P also testified that she saw the complainant coming from the appellant's house a short while later and that the complainant at that stage looked angry.

18.4      G confirmed that the two girls went to the shop to buy paraffin for the appellant and testified that when they returned with the paraffin, he and Gift followed them to the house of the appellant. He alleged that he and G and P first played outside, but when F did not come back out they entered the house and stood at the bedroom door and observed the appellant raping F.

18.5      George's evidence that he observed the rape from the bedroom door contradicts all three of the other children. F testified that the appellant had locked the door and Gift testified that they were at the window observing the rape. In all probability the door was only locked after the appellant observed the other children inside the house. It seems probable that that is when the children went to the window and the appellant thereafter closed it as well.

18.6      P, George and Gift all three testified about having been given R2 each by the appellant to go away. All three said that that was after the girls came back with the paraffin. George said that after receiving the R2 they did in fact go away and went and bought chips.

18.7      G appears to have testified about the first (paraffin) incident only when he said he saw the appellant taking a condom out from underneath the bed and then raping the complainant. He clearly mixed up the sequence of events somewhat as he initially testified that P went to buy the paraffin whilst F was being raped. Only in cross-examination did he confirm that the two girls had gone to buy the paraffin together. Considering that P was also given R2, the three of them quite possibly went to the shop to buy chips together after they were each given R2 and chased away.

 

[19]       It was never in dispute that the children knew the appellant, knew where he stays and have been to his house. In her statement (which was admitted by agreement) the complainant's educator, Ms R M M stated that F and P explained that the ex-teacher (it was not disputed that the appellant was an ex-teacher who had apparently been dismissed) stays only a few houses away and referred to him as a neighbour. There is nothing to indicate that the children had any motive to falsely incriminate the appellant and it certainly does not appear that they had been taught a version or coached to relay a specific version to the court. Whilst the complainant may be slow, she gave a coherent version of events. It seems to me highly unlikely that she would hide the identity of the true perpetrator by falsely implicating the appellant.

[20]       The appellant's argument that the state had not placed a prima facie case before the court cannot pass muster. Several aspects of the evidence of each of the four children can be justifiably criticised, but that would be a piece­ meal approach against which triers of fact had often been warned. Quoting from R v De Villiers 1944 AD 493, the president of the SCA held in S v Cwele[1]

'The state must therefore satisfy the court, "not that each separate fact is inconsistent with the innocence of the [appellants], but that the evidence as a whole is beyond reasonable doubt inconsistent with such innocence."'

 

[21]       The trial court on more than one occasion during judgment pertinently referred to being alive to the fact that the witnesses are young children and specifically mentioned that 'a measure of caution on the court's part in approaching the evidence of these witnesses' was necessary. When it comes to evaluating the evidence of children it would be apposite to bear in mind that it cannot be assessed on the same standard as that of an adult. In R v L[2] it was stated that:

'A fair trial must encompass a recognition of society's interests. One must recognise that the rules of evidence have not been constitutionalised into unalterable principles of fundamental justice. Neither should they be interpreted in a restrictive manner which may essentially defeat their purpose of seeking truth and justice. In the case at hand, in the determination of what is fair, one must bear in mind the rights and capabilities of children. As McLachlin J recognised in R v W (R) [1992] 2 SCR 122 at 133: "It may be wrong to apply adult tests for credibility to the evidence of children". Wilson J expressed a similar view in R v B (G) [1990] 2 SCR 30 at 54 - 55, in reference to the appeal Judge's treatment of the child witness's evidence: ". . . it seems to me that he was simply suggesting that the Judiciary should take a common-sense approach when dealing with the testimony of young children and not impose the same exacting standards on them as it does on adults. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying".' (My emphasis.)

 

[22]       The learned author Muller ‘The Judicial officer and the Child Witness’[3] explains that a holistic approach should be followed in respect of the evidence of children:

"It is impossible to evaluate the evidence of a child without looking at the context in which this evidence is given. The quality of the child's evidence is dependent on a number of interacting factors, namely the child himself (his age, competency, educational and family background, cognitive ability and perceptions of the court process), the setting in which evidence is given and the personal involvement in the court process. It is, therefore, necessary to look inside the individual child and simultaneously beyond the child to the environment in order to understand a child's behaviours in the legal process. It is impossible to then view the child witness in isolation since all systems are interlinked."

 

[23]       In my view, the trial court did not materially misdirect itself in its evaluation of the evidence and as such its findings of fact should be accepted. In S v Francis[4] it was held that-

'The powers of a court of appeal to interfere with the findings of fact of a trial court are limited. In the absence of any misdirection the trial court's conclusion, including its acceptance of a witness' evidence is presumed to be correct. In order to succeed on appeal, the appellant must therefore convince the court of appeal on adequate grounds that the trial court was wrong in accepting the witness' evidence - a reasonable doubt will not suffice to justify interference with its findings. Bearing in mind the advantage which a trial court has of seeing, hearing and appraising a witness, it is only in exceptional circumstances that the court of appeal will be entitled to interfere with a trial court's evaluation of oral testimony.'

 

[24]      As I said, the appellant did not testify. Whilst there is no duty on an accused to testify in his own defence, his failure to rebut prima facie evidence may well have the consequence that the evidence provided by the state becomes conclusive.[5] The complainant testified that the appellant raped her twice - once after he sent her and her friend to buy paraffin and on a second occasion when he sent the boys to fetch her at her house to bring her to his house. Evidence of vaginal injury was admitted. Three witnesses confirm that the complainant was in the appellant's house and he paid each of them R2 to go away. This evidence called for an explanation by the appellant. The decision of the appellant not to testify in his own defence justified a negative inference.

[25]      The trial court was well aware of the contradictions in the evidence of the witnesses. The court, however, also bore in mind that these were young children that testified almost a year after the incident. Palesa had to have known what was happening to her friend. When first asked whether she told Palesa what happened, Fikile answered: 'She knows what happened.' It was only when the question was repeated that Fikile agreed to in fact having told Palesa. Whether Palesa felt guilty for not attempting to protect her friend, or whether she may have been scared of the appellant, or whatever the reason may have been for her to deny being informed by Fikile, does not detract from the material corroboration of the complainant's version that she had been taken into the bedroom of the appellant whilst Palesa was chased away to go and play. On the second occasion Palesa saw the complainant being pushed down onto the bed of the appellant by Thapelo. What does a 43-year-old man do with a 17-year-old cognitively slow girl in his bedroom?

[26]       The state needs to prove its case beyond reasonable doubt - not beyond any shadow of doubt. Absolute certainty of the guilt of an accused need not exist - what is required is that the trial court has to have a justified and reasonable conviction based on the totality of the evidence that the version of the accused is false.[6]

[27]       In casu the accused elected not to place any version before the court. He chose not to gainsay the direct evidence of the four children who clearly each testified according to his or her own recollection, yet all implicated the appellant, remaining consistent in the evidence throughout cross-examination. One must guard against allowing the exercise of caution to replace the exercise of common sense else it will no doubt bring the administration of justice into disrepute.

[28]       In Sithole v The State[7] Theron AJA (as she then was) refers to a number of reported cases[8] and says -

'7        It is trite that not every error made by a witness will affect his or her credibility. It is the duty of the trier of fact to weigh up and assess all contradictions, discrepancies and other defects in the evidence and, in the end, to decide whether on the totality of the evidence the state has proved the guilt of the accused beyond reasonable doubt. The trier of fact also has to take into account the circumstances under which the observations were made and the different vantage points of witnesses, the reasons for the contradictions and the effect of the contradictions with regard to the reliability and credibility of the witnesses.'

 

[29]       In S v Oosthuizen[9] it was said-

'There is no reason in logic why the mere fact of a contradiction, or of several contradictions, necessarily leads to the rejection of the whole of the evidence of a witness.'

 

And at 576 G-H –

 

'Plainly it is not every error made by a witness which affects his credibility. In each case the trier of fact has to make an evaluation; taking into account such matters as the nature of the contradictions, their number and importance, and their bearing on other parts of the witness's evidence.'

 

[30]       One must also distinguish between a proved deliberate falsehood and the case of an honest mistake.

[31]       I am satisfied, having regard to the evidence as a whole, that the discrepancies in the evidence of the State witnesses, especially the children, were not sufficiently material to warrant a rejection of the version presented by the State. Ultimately the evidence must be assessed as a whole and 'it is necessary to step back a pace and consider the mosaic as a whole. If this is not done, one may fail to see the wood for the trees.'[10]

[32]       I would dismiss the appeal against conviction.

 

 

RANCHOD J

JUDGE OF THE HIGH COURT

 

 

I agree

 

 

MOSOPA AJ

ACTING JUDGE OF THE HIGH COURT

 

 

Appearances:

Counsel for Appellant                                :Adv L Augustyn

Instructed by                                              :Legal Aid Board

Counsel on behalf of Appellant                 :Adv A Coetzee

Instructed by                                              :Director of Public Prosecutions

Date heard                                                 :12 June 2018

Date delivered                                           : 31 July 2018

---