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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

NORTH WEST DIVISION, MAHIKENG

CASE NO: CA35/2017

In the matter between:

ONTOETSE ANTHONY MOTHUSI                                                         APPELLANT

And

THE STATE                                                                                             RESPONDENT

J U D G M E N T

GURA J:

[1]   The appellant was convicted of rape and sentenced to nine years imprisonment    by the Regional Court. He comes before this Court by way of an appeal against conviction and sentence. Leave to appeal was dismissed by the trial Court hence a petition was directed to the Judge President of this Division. The High Court then granted him leave to appeal the conviction and sentence.

[2]   The appellant tendered a plea of not guilty and he admitted having sexual intercourse with the complaint (Ms B) with her consent. The evidence of Ms KVM (“Ms M”) as well as that of Ms B has been adduced by the State. The appellant also testified and called four defence witnesses.

[3]   The Regional Court prosecutor handed in documents on behalf of the State to Court. These are:

3.1       An affidavit deposed and attested to by Dr Patrick Kalala Mukeba (“Dr Mukeba”) in terms of section 212 (4) of the Criminal Procedure Act 51 of 1977 to confirm that he conducted a medico-legal examination of the complainant at Mafikeng Provincial Hospital on 9 March 2013 at 01h00 and that he recorded his finding and observation on the accompanying J88-report as Exhibit “AA”;

3.2       The J88-report completed by Dr Mukeba as Exhibit “A”;

3.3       A medical certificate issued by Dr TE Khakhane-Lebollo (“Dr Khakhane-Lobollo”) on 20 March 2013, in respect of a medical examination of the complainant at her surgery in Mahikeng on 20 March 2013 at 10h30 as Exhibit “B”;

3.4       During cross-examination of Ms B, two statements deposed and attested to by her at 22h00 on 8 March 2013 and at 14h40 on 25 October 2013, were accepted into evidence as Exhibit “C” and “D” respectively. The content of Ms B statement of 8 March 2013 (Exhibit “C”) (“the first statement of Ms B”) reads as follows:

   “                                                          1.

                                                I Didintle Gaamangwe Bo state under oath in English that:

                                                              2.

I am an female adult of aged 20 with ID No: [9..] residing at Magogoe Tlhabologo near Dumela Bottle Store am still a student at [M..] High School for part time and my contact no: [0…].

                                                             3.

On Friday 2013-03-08 at about 10:30 in the morning one of my friend who know as Ontoetse Anthony Mothusi his know again as Prina, he arrived at my residence to collect me to go to the bank and also accompany me to the post office as we agreed on the previous day.

                                                             4.

We left at home at about 10:40 to his residential place so I thought he is going to fetch something and then we leave. So we arrived at his residence and we found the other friend of his waiting for him, we were three in the vehicle from home but we found the other friend of his along the way by the name of Ntate. So we were five at his home together with the sister who is working at their home.

                                                             5.

He then told me that he need to take a bath and while he is taking a bath before he went for it he then asked his friends to go to the bank for them to can do their business  staff, because they told me they’ve got a business and thought maybe Ntate is a secretary of their business. I then asked him that why don’t we just leave together to the bank he just said no. So those once then left us to go to the bank. The sister I think she was busy outside.

                                                             6.

He then went to the bathroom and forced me to go with him, he then poured water and told me that he want me to bath him his back but I said no. I even asked him that are you reali (sic) serious going to bath while am in the bathroom he just said yes.

                                                             7.

He then finished with bathing then asked me again to put on lotion on to his body I still refused. He lotioned his body and when he finished he started to touch me and kisses me with force because I was refusing and telling him that I don’t want to. He just continued pushing on to the bed and pressed me down on the bed and I was holding my breath because I had flu and couldn’t breath (sic) well.

                                                             8.

He continued to take off his pants and he forced me touch his penis; I kept on refusing he then took my hands because I was folding them on to a fists he managed to took them off from my breast for me to touch his body. He then went to unbutton my pants then I was holding the button the we were fighting but he then dragged my pants down to the legs.

                                                             9.

He then pressed me down and everytime when I try to get up he was on top of me. He started then to force himself on tome touching me all over and then kissing me by then he locked the door for me not to escape and started to penetrate my vagina with his penis and started movements of up and down on top of me but he was wearing a condom. That is all. I hope this matter would have further investigations. The suspect is known as Prina his nickname.

                                                             10.

I know and understand the contents of the statement. I have no objection on taking the prescribed oath. I consider the prescribed oath to be binding on my conscience.”

3.5       The content of Ms B statement of 25 October 2014 (Exhibit “D”) (“the second statement of Ms B”) reads as follows:

           “                                                        1.

              I state that it was on Friday, 08/03/2013 I woke up in the morning at 07h00. I prepared myself and waited for P who is my friend. We agreed the previous day on Thursday 02/03/2013 that he will come to collect me and take me to town. That was the reason why I waited for him that morning.

                                                                            2.

P then came at ±10h00 in the company of Ntate who his friend and it was not for the first time I see N. P then phone me while in the car to make me aware that he is waiting outside the yard but near the gate.

3.

I then went to the bathroom to put lotion on my hand and went to the car. When I enter the car P said to me that I smile nice and that remind me that I (P) hadn’t bath. I then asked him why he bath for the whole time and said he had been busy.

4.

N was the driver and he drove off. When the car move I know that we were going to town. Along the way when we were suppose to turn right to town, he turn left, I then ask where are we going and P replied by saying that he is going to bath. I then agreed. When we arrived at P place we find one guy who unknown to me and helper who is working at P place and they watching tv and I join them in watching TV. The helper is known to me as I am used to come to their place.

5.

When I was watching TV P went to the bathroom and pour water in the bath and he came out. He (P) called N and stand a distance away from us but still in the house they talked and they came back to us. P then told N and that other guy to go to the bank.

6.

I then asked P to go with N and that guy to the bank but he P refused and also N refused me to go to the bank. P then asked me what will I take for a drink, I said anything and he P said what is anything and I said Hunters gold and if is not available I Savana.

7.

P then said that they will buy those drinks before they go to town. They will buy them at Dumela bottle store. I did not notice when did the helper leave at the TV room were we sitted, but by the time when N and other guy left the helper was no longer there.

8.

I was then left with P and was watching TV. P then went to the bathroom and come out and he called me while standing in the passage asking me to scrub his back. I then refused. He asked me many times and I refused. P then asked me why do I scrub other /my family members. I then asked him who is he referring to because my grandmother is sick.

9.

P then come to me and force me to go the bathroom and I refuse and sit down on the floor. He then pull me from my shoulders and dragged me to bathroom. He manage to drag me into the bathroom.

10.

I then tried to get out but he manage to lock the bathroom and I the sit on the toilet seat and started to talk to my friend T telling what was happening and where am I. I then ask P that is he really going to bath in my pressance because he did lock the door. He said yes and he bath until he finished and dried up. P then asked me to put on the lotion on his body but I refused. I then told him that as I not going to put lotion on his body and that is all.

11.

P then unlock the door of the bathroom and pull me to the opposite room which is a bedroom. He then lock the bedroom and put the key on top of the wardrobe. P then gave me the lotion to put it on his body I then still refuse to do that. At that time I was standing and looking through the window.

12.

He the put on his underpant and keep on standing behind me. I then asked him to put on his clothes so that I can go and he said no we gonna chill. I told him that I wanted to go. P then pull me from the window and come infront of me. He then push me to the bed and I fall with my back. He then forced himself on top of me.

13.

He wanted to kiss me and I closed my mouth very tight and was having flue and I am asmatic person. He tried to kiss me and he left me for a while I stood up and stand next to the window again.

14.

P then pull me again to the bed and he force himself on me trying to kiss me again and took my hand and put it on his penis, on the other hand he mange to pull off his underwear. P tried to undress me the top and the bra but I kept on holding my clothes and he left and concentrated on my jean and I hold my jean and belt but he did overpower me and put my trouser up to my knees.

15.

I tried to put it on and he again manage to take them off totally and threw them at the side of wardrobe. I was then left with a panty. He tried to pull of my panty. I tried to fight but he pull it off.

16.

I was on top of the bed and when he went to the side and took a condom, I tried to grab my jeans and before I could take them he push me back to the bed and forcefully open my legs and penetrated me and had sexual intercourse with me. I was helpless and shocked and I could not even scream. He did what he wanted to do and finished. I then see him leaving me and I put on my panty which was on the floor and my jean. I then asked him to open the door for me.

17.

I then went outside and left him in the room. He then come and find me standing outside the house and I was crying. He then pleaded with me not to go and wait for N to come. While standing there N and that guy come.

18.

P then asked me to eat. I did not want to eat but he forced me to eat. I just eat but two spoons and I stood up and wanted to go. P was surprised when I did not eat and he knew that I love food.

19.

P then said to N and he said N I am finished with D and you can take her to wherever she wants to go. I was shock to hear such words from P and even show it facedly.

20.

N and I left and he took me to town and N said that he must take me back to P. I told him N that I want to go home and N took me home.

21.

When I arrive home it was 17h00. My mother asked me if I don’t go to school. I told my mother that I have change my mind. I don’t want to go to school. My mother was going to the funeral and after she left I send my friend T and explain everything to her. We communicated and it told her my feelings that I want to send a message to P, of which I did.

22.

I then send a message to P and if says “whatever you did to me is uncalled for. I kept on refusing but you forced me. When a person say no to sex it is rape and you continued. I cried because I said no but you kept on doing it”. Then P said in message “Sorry Dear.”

23.

I then told my neighbour K and my cousin K the very same day. Later my grandmother Monke she got the message the same day. Khumo then phoned my biological mother Kgomotso who was at Pretoria. My mother phoned my uncle Bricks Shaloro Motsobane who came to my residential place. My other uncle Choppie also came and they took me to the police station the case was registered.

24.

I was taken to the place of P by the police and I pointed him out. He was then arrested and I was taken to Thuthuzola by my father and the police official. After the examination at Thuthuzola I was taken home by my father.

25.

On the 9/03/2013 when I was bathing my mother Kgomotso saw some wounds / marks on my right hand and right breast. My mother ask me what are those wounds / marks for and I responded by saying that P was holding me by his fingers. Then on Monday 11/03/13 we came to the investigating officer Sekgyane who took us back to court for the prosecutor to advice. Then the prosecutor said to the I/O that she must take us to the center at Thuthuzola.

26.

We then proceeded to Thuthuzola and Sekgyane consulted with the doctor alone and we were not called in. When Sekgyane came in she said that the doctor said that it is late he cannot add any new information to the J88 medical form.

27.

On the 20/03/13 I was taken to the doctor by my mother and there a medical certificate from the doctor who examine the victim on the 20/03/2013. On the 13/03/2013 I went to the phsycologist Mokgoro for consultation. I then had some sessions with the pshycologist and I had some breakdowns and I was admitted by Dr Kgabo through the referrals of the pshycologist on 28/03/2013 until the15/04/2013.

28.

My psychologist made an appoint to see on the 27/11/2013 after the examination.”

[4]        During the evidence in chief of the appellant the following documents were submitted on his behalf to wit:

            4.1      Exhibit “E”: copies of two digital photographs of the bathroom at the place of residence of the appellant and the door of the aforesaid bathroom;

            4.2      Exhibit “F”: copies of the first page of the South African passport of the appellant bearing his photograph;

            4.3      Exhibit “F1”: copies of two pages of the aforesaid passport of the appellant bearing border date stamps of 23 and 24 February 2014;

            4.4      Exhibit “G”: a digital photograph of the appellant’s caterpillar (TLB)

            4.5      Exhibit “H”: a digital photograph taken of the window of the bedroom of the appellant;

[5]        Ms B evidence in chief is as follows: She knew the appellant because he was her friend. Around 07H00 on 8 March 2013, whilst she was at home, she received a call from the appellant. Ms B and the appellant had spoken the previous day and agreed that the appellant would wake her up at 07H00 the subsequent day and thereafter convey her to town for her to go to the bank and the post office.. After she had taken a bath, she waited for three hours until the appellant arrived at her place at 10H30. On his arrival he waited outside her premises and called her to signify his presence.

[6]        Just before going out of the house, Ms B applied lotion on her hands. The appellant was with one Bonthati, a gentleman, in a mazda sedan car. When she joined them inside the car, the appellant remarked to her: “you smell so nice”. She responded by saying she had just applied lotion on her hands. The appellant’s response was that: “that reminds me that I have not taken a bath”. When this trio reached the bus stop, appellant did not turn right to the direction of the town but he turned left and drove to his place of residence. She asked him where he was going, whereupon he said that he was going to take a bath. Ms B remark was “Okay”.

[7]        At the appellant’s home they found a lady who normally does the cleaning of that house (“the domestic worker”) together with a gentleman who is unknown to Ms. B. It was not the first time that Ms B had been to the appellant’s residence. She had been there before. This couple was watching television (TV) when the trio arrived. Ms B then joined them and set down. The appellant left for the bathroom to wash.

[8]        He (appellant) then came back and called Bonthati aside. After the two talked for a while, Bonthati and the appellant came to where the rest were watching TV. The appellant then told the two gentlemen (Bonthati and the unknown man), to go to the bank in town. Before their departure, the appellant asked Ms Bosilong what she would like to drink. She said: “Hunters Gold, if it is not there then Savanna will do.” She then suggested to accompany the two gentlemen to town, but both the appellant and Bonthati told her not to go with them to town. The appellant said that Bonthati would buy Savanna or Hunters Gold at Dumela bottle store before they could go to town. The two gentlemen did comply with the appellant’s instruction for they left for the local bottle store.

[9]        Ms B then noticed that the domestic worker was no longer there. She was gone. Ms B was left with the appellant, watching TV in the sitting room. He later left for the bathroom. Suddenly he came back and requested her to come to scrub his back. She refused. He repeated this request but she turned it down again. He emerged from the house passage and dragged her with one hand to the very same passage. At the latter place (passage), she sat down on the floor. The appellant and Ms B did not talk to each other during the dragging incident. At that stage he picked her up with both hands and walked towards the bathroom. Just at the threshold of the bathroom door he started to drag her again. Upon entry in the bathroom he shut the door behind them. She tried to open but he locked it.

[10]     Inside the locked bathroom Ms Bo sent a sms to her friend, Hloni, telling her what was happening. When he was bathing in the presence of Ms B, he was naked. She asked the appellant whether he seriously wanted to bath in her presence. He confirmed that. When he finished bathing, he requested her to apply lotion on his body but she refused. The appellant then dragged her to the room which is directly opposite the bathroom just across the house passage. After entry, he closed and locked the door.

[11]     He tried to give her the lotion again in order to smear him therewith on the back. She retorted: “I do not want to be here, unlock the door. I will not apply lotion on your body, I want to get out of this room.” He eventually applied lotion on his own body.

[12]     When he pulled her from the bathroom to the room, he had wrapped himself with a towel. He was again naked in the room when he applied lotion on his body, but thereafter he put on an underpant only. She asked him why he did not dress up, whereupon he said he was going to chill. She insisted that he had to unlock the door of the room for her to leave. At that stage she was standing at the window, facing away from the appellant.

[13]     He pushed her towards the bed and she fell and landed on the bed on her back. The appellant mounted her and started to kiss her with force. In the process, she closed her mouth and held her breath. She pleaded with him to dismount her because she had flu, was asthmatic and could not even breath. He then got off her body and she proceeded to the window again. He pulled her back onto the bed. The appellant then forced her to touch his penis. In response to this latest instruction, she folded her hands in a clenched fist form, but he unclutched her fingers so that she could touch him on his penis. He pulled her hand, whilst opening it (hand), towards his penis and she eventually touched it. In fact what happened is that as the appellant was pulling her hand, he just put it on his penis. She removed her hand from him.

[14]     The appellant now turned his attention on Ms B top and struggled to undress her of it. He tried to kiss her in the process. Having tried unsuccessfully to undress her top, he went for her jean (pair of pant) and tried to pull it out. He managed to unbutton it. He finally pulled her jean to her knee level. She struggled to put it (jean) up, but he totally undressed her off the jean. Her panty remained in its normal position on her body. Finally, he forcefully undressed her of her panty as well.

[15]     He walked to a table next to his bed and took off his underpant. It was at this stage that Ms B rushed towards the wardrobe where he had earlier hurled her jean. He intercepted her before she could get to her pair of pants and pulled her back to the bed whilst putting on a condom. She fell on the bed as she was being pulled. The appellant came on top of her after turning her to lie on her back. He raped her using a condom. Thereafter she asked him to unlock the door which he did. She eventually walked out of the house.

[16]     Outside the house she talked on her cellphone whilst crying, the appellant then joined her and asked: “What is wrong Didintle?” Because she was scared and overwhelmed, she responded: “Nothing is wrong, I have flu”. He repeated his question and she told him that there is nothing wrong. She wanted to leave, but he prevented her saying she should wait for the arrival of Bonthati and his friend.

[17]     After a long time Bonthati and his friend arrived. They were in possession of Savanna and they started to drink. She told the appellant that she had to go but he said she should wait to eat first. They were served with porridge and wors, but she did not eat much. She was then surprised to hear the appellant telling Bonthati that: “I am done with Didintle take her to wherever she needs to go.” She was then conveyed by Bonthati to town where she ran her errand at the bank and the post office. From there, he (Bonthati) conveyed her to her (Bosilong’s) place of residence.

[18]     Upon her arrival at home she did not attend the 17H00 part time school as she was supposed to do she slept instead. Her grandmother asked her if she was not going to school that afternoon. She informed her grandmother that she had changed her mind.

[19]     After the departure of her granny, Ms B sent to her friend, Toriso Twanya, an sms in which she explained what the appellant had done to her. Subsequent to that she sent another sms to the appellant in which she stated: “What you did today was uncalled for. I continuously kept on saying no, but you would not listen and when somebody says no, and you continue, it means rape”. The appellant responded with an sms also: “Okay, sorry dear”. He then called Ms B cellphone thrice but she rejected his calls.

[20]     She went to her immediate neighbour, Ms Motshabi, and told her everything that had happened, i.e. that the appellant had raped her. Upon getting the news, Ms Motshabi called Ms B mother who was in Pretoria. Ms B paternal uncles, being Bricks and Chappie, then arrived.

[21]     A day after the incident of rape, Ms. B noticed that she had sustained two marks on her right arm and one mark on her right breast. She testified that it is the appellant who caused these marks. Ms Khumo Motshabi also testified and confirmed that on the day of the incident Ms B did inform her that she had been raped by the appellant.

[22]     The appellant testified as follows: At the time of the incident he was staying at his parental home. His bedroom is directly opposite the bathroom. The latter (bathroom) has been fitted with a wooden door which is not lockable because it has neither a handle nor a lock. The photos of the door became part of the evidence for the defence. Ms B visit to the appellant’s home on 8 March 2013, was not the first one for in February 2013, she went there to study. This was at the time when the appellant had to travel to Botswana for a ritual celebration. Prior to the said trip, the appellant had requested one Obakeng to come to his home to remain there with Ms B in his (appellant’s) absence. When the appellant was waiting for his friend, Obakeng, he was with Ms B at his parental home. It is on that occasion that they kissed and hugged each other. In the process, the appellant fondled with her by touching her from her breast down to her thighs. She never offered any resistance or objection to the intimate touch.

[23]     The appellant confirmed Ms B testimony that per appointment, he collected her from her home in the morning of 8 March 2013 and that they drove straight to his place, with Ms B is concurrence so that he may take a bath before going to town. At the appellant’s home, Ms B joined Mr Dan Freedland and Ms Jonas (the domestic worker) at sitting room. She (B) then told the appellant that she needed cigarettes and intoxication liquor. The appellant instructed Mr Makwana (B) to go and buy these items. Messrs Dan Freedland and B then left together to make the necessary purchase of cigarettes and liquor.

[24]     The appellant informed the remaining people in the sitting room that he was going to bath. He further said to Ms B she was free to follow him if she had no problem about that. Ms B then voluntarily followed him into the bathroom. The door to this bathroom could not lock because it had no locking mechanism. After bathing, he walked to his bedroom with Ms B following him. She got seated on the bed. He smeared lotion on his body and put on a short pair of trousers.

[25]     The appellant and Ms B then started to kiss each other, they romanced, they had a foreplay by touching each other “until they were already hot,” said the appellant. She undressed herself of her jean. At that stage the appellant went to fetch a condom from a toolbox in the house garage. Upon his return from the garage, he saw Ms Jonas who was still watching the television inside of the house. Ms B was now lying on the bed clad in a T-Shirt and panty only. They then had consensual intercourse. She was the first to leave the bedroom after the sexual stint and the appellant later found her outside the house, standing next to a dog kennel. She was talking on her cellphone and she was just normal, no tears on her eyes/face. The appellant asked her if she was right and she confirmed that she was fine.

[26]     Whilst awaiting the arrival of Bonthati with cigarettes and drinks, Ms B fetched a chair and a small blanket from the house for them to relax on the grass lawn. She then stated that she was hungry whereupon the appellant instructed Ms Jonas to cook pap and “wors”. Bonthati eventually arrived with cigarettes and liquor. The food and the liquor were then consumed. Ms B also ate and drank. Thereafter the appellant instructed Bonthati to convey Ms B to Mahikeng town for her errands. For that purpose, he gave B his (appellant’s) wallet for him to provide Ms B with whatever she needed.

[27]     In the late afternoon, when the appellant woke up he realised that he had missed Ms B call. He responded to it with an sms: “Sorry dear.” The reason for him to dispatch this massage was that he is an apologetic person. Around 23H00 that day, he was arrested.

[28]     The second defence witness after the appellant was Bonthati. He was with the appellant in the car when they collected Ms B at her home in the morning of the day of the incident. These two gentlemen are friends. After their arrival at the appellant’s residence, he gave Bonthati his (appellant’s) wallet and instructed him to convey Ms B to Mahikeng town for her to visit the post office and the bank. For this purpose, Bonthati and Ms B travelled together to town in the appellant’s motor vehicle. Earlier, upon their departure from the appellant’s home for town, Ms B was in possession of Savanna beer. The appellant’s instructions were that when Ms B had finished her business in town he (Bonthati) had to deliver her to her parental home. He complied with all these instructions and finally dropped her at home. He confirmed that she did not inform him that she had been sexually violated.

[29]      The third defence witness, Ms Jonas, confirmed that she was employed at the appellant’s parental home as a domestic worker since 2012. She testified that as at the day of this incident, the appellant’s bathroom door didn’t have a lock. When the trio arrived with the appellant from Ms B home, they found her relaxing at appellant’s parental home. She then saw Ms B looking at herself in the mirror in the passage. The appellant, at that stage on a boxer pair of shorts, walked to the garage of that house. On his return (from the garage) he had a condom which he had taken from the tool box. Later this couple (the appellant and Ms B) got seated outside the house under a tree. She did not see Ms B ever crying or being upset when she was there. Ms Jonas wrapped up her evidence by saying that when Ms B left these premises with Bonthati for town, she carried beers.

[30]     Mr Friendland also testified for the defence. He was employed as a TLB driver by the appellant on the date of this incident. He had kept a toolbox in the garage of the appellant’s home. Inside it (toolbox) he had stored his clothing and condoms. He did see Ms B at that house on that day who was with five people. They were enjoying porridge, “wors” and intoxicating liquor. Subsequent to that, Mr Makwana and Ms B drove away in the appellant’s motor vehicle. According to Mr Friendland, the appellant’s bathroom door had no door handle.

[31]     Mr Onkwame, the last witness for the defence, is also a friend to the appellant. He knows that at the time when the appellant had driven to Botswana in February 2013, he left Obakeng and Ms B at his home so that they could look after it. Mr Onkwame told Court that he is aware that there is a day on which Ms B suggested to have sexual intercourse with the appellant for a price of R2000 00 for one round (session). He was also aware, at the date of this incident, that the appellant’s bathroom door was not lockable.

[32]     In its judgment, the trial court made the following findings: In regard to Exhibits C & D, (Ms B two statements to the police), it found no material contradictions between Exhibits C and D as well as between the two statements and her evidence in Court. The Court then mentioned that it would apply the cautionary rule to Ms B evidence because she was a single witness. The trial Court did acknowledge that “The State case is not without difficulties”. It then pointed out a single contradiction in Ms B evidence to the effect that initially she had denied that at one stage the appellant had left her in the bedroom and went elsewhere, but later during cross-examination by the defence she admitted this aspect, and stated that indeed he did leave her in the bedroom after undressing her of her panty. She said the appellant’s absence from the bedroom was for a short while and that upon his return he found her still not yet fully clad despite her attempts to dress up. She testified that she could not run out of the bedroom whilst naked.

[33]     Eventually, the trial court was satisfied that as a witness, Ms B appeared “comfortable, was clear, coherent, inviting and verbally impressive” in the witness box. It was accordingly satisfied that she has passed the test in section 208 of the Criminal Procedure Act[1].

[34]     The issue in this case is whether or not sexual intercourse between the appellant and Ms B was consensual. It has already been pointed out that Ms B and Ms Motshabi testified for the State whereas on the defence the appellant and four witnesses gave evidence. The trial court was therefore faced with two mutually destructive versions between the State and the defence. What is important is that Ms Motshabi testified mainly about a report which Ms B gave her. She is therefore not an eye witness to the act of rape.

[35]     The technique to resolve two irreconcilable versions was described in SFW Group Ltd & Another v Martell et Cie & Others[2].

“[5]       On the central issue, as to what the parties actually decided, there are two irreconcilable versions. So, too, on a number of peripheral areas of dispute which may have a bearing on the probabilities. The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarised as follows. To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’ candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established facts or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version , (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness’ reliability will depend, apart from the factors mentioned under (a) (ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it”

[36]     As to what is the correct approach where the court is faced with two contradictory versions, the SCA[3] has stated:

“[15]    The trial court’s approach to the case was, however, holistic and in this it was undoubtedly right: S v Van Aswegen 2001 (2) SACR 97 (SCA). The correct approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and, having done so, to decide whether the balance weighs so heavily in favour of the State as to exclude any reasonable doubt about the accused’s guilt. The result may prove that one scrap of evidence or one defect in the case for either party (such as the failure to call a material witness concerning an identity parade) was decisive but that can only be an ex post facto determination and a trial court (and counsel) should avoid the temptation to latch on to one (apparently) obvious aspect without assessing it in the context of the full picture presented in evidence. Once that approach is applied to the evidence in the present matter the solution becomes clear.”

[37]     The trial court perceived some averments in the appellant’s defence as improbable when it assessed the evidence. The decision of S v Shackell[4] is also a good guide when dealing with probabilities. At page 194G-J the Court made the following remarks:

“Though I am not persuaded that every one of these suggested inherent improbabilities can rightfully be described as such I do not find it necessary to dwell on each of them in detail. There is a more fundamental reason why I do not agree with this line of reasoning by the Court a quo. It is a trite principle that in criminal proceedings the prosecution must prove its case beyond reasonable doubt and that a mere preponderance of probabilities is not enough. Equally trite is the observation that, in view of this standard of proof in a criminal case, a court does not have to be convinced that every detail of an accused’s version is true. If the accused’s version is reasonably possibly true in substance the court must decide the matter on the acceptance of that version. Of course it is permissible to test the accused’s version against the inherent probabilities. But it cannot be rejected merely because it is improbable; it can only be rejected on the basis of inherent probabilities if it can said to be so improbable that it cannot reasonably possibly be true. On my reading of the judgment of the court a quo its reasoning lacks this final and crucial steps. On this final enquiry I consider the answer to be that, notwithstanding certain probabilities in the appellant’s version, the reasonable possibility remains that the substance therefore may be true. This conclusion is strengthened by the absence of any apparent reason why the appellant would, without any motive, decided to brutally murder the deceased by shooting him in the mouth at gunpoint blank range. As a consequence the matter must be decided on the appellant’s version.”

[38]     The evidence by Ms Motshabi, that Ms B complained to her that the appellant had raped her cannot serve as corroboration of Ms B evidence because that would amount to self-corroboration[5]. The contents of the J88-report (Exhibit A2) completed by Dr Mukeba in respect of the medico-legal examination of Ms B on 9 March 2013 at 01h00 does not support her evidence that she had been manhandled and raped on 8 March 2013. It could not serve as corroboration for Ms B evidence. Dr Mukeba has noted in paragraph 8 of part C of Exhibit A2 “no external soft tissue injuries noted” and in paragraph 3 of Part F in which he has dealt with gynaecological examination he remarked: “genitalia appears normal”.

[39]     During the alleged act of rape, the domestic worker (Ms Jonas) was present in the appellant’s premises. Ms B could not deny that but all she said was that she did not see her. Had Ms B screamed when the appellant was pulling her and picking her up in the house passage and during the rape, Ms Jonas, who is an acquaintance to her would have heard. Her reason for not screaming or calling for assistance, says Ms B, is because she was unaware that Ms Jonas was still present. In my view, a scream from Ms B could, in all likelihood have been heard by the appellant’s neighbours or any passerby.

[40]     Ms B, after the rape, walked out of the house and waited in the appellant’s premises whilst she was phoning her friend reporting to her what the appellant had done to her. That very same person to whom she talked at that stage, was not called by the State to testify about what Ms B had told her. Instead, the State called Ms Motshabi to testify about Ms B report to her. What is important is that Ms Motshabi was not the first person to whom Ms B complained. She is the second person. It is not clear why the State preferred Ms Motshabi instead of the person to whom she had made her complaint about rape.

[41]     Whilst she was standing infront of the house at the crime scene, the appellant approached and asked her if anything was wrong with her. She answered in the negative alleging that she had a problem with flu. Thereafter, Ms B remained at the scene of crime with the appellant, Ms Jonas, and Bonthati. These people ate food and “wors” which had been prepared by Ms Jonas on the appellant’s instruction, after she (Ms Bosilong) had told the appellant that she was hungry. Ms B testified that she did eat of that food and “wors” but she did not eat too much. These people then enjoyed drinks together, including intoxicating liquor. Two defence witnesses testified that when Ms B  left that house with the appellant’s driver, she took along some of this intoxicating liquor. Ms B  residence is a mere walking distance from the appellant’s home. She did not go away immediately to her place but chose to relax with the people (including the appellant) at the crime scene.

[42]     The next thing she did was to travel in the appellant’s motor vehicle to the bank and the post office in town. This behaviour by Ms B , after the act of rape,of not reporting the rape immediately, relaxing at the crime scene with her attacker and some people enjoying food and drinks provided by the appellant and finally, being ferried to town in the appellant’s motor car, is not consistent with the conduct of a person who had just been sexually violated. Infact her behaviour negates any suggestion of rape.

[43]     Ms Motshabi testified that when Ms B  arrived at her (Ms B) place of residence it was 14H00. This is contrary to the version of Ms B who told Court that she arrived home late than that. Ms Motshabi stated that only around 19H00 on that day did Ms B come to her place to tell her that she had been sexually assaulted. Ms B was unable to give the trial Court any valid reason why she took such a long time before she reported the appellant to the police.

[44]     When she arrived at her residence from town, she did not report rape to her grandmother. Instead, she changed her clothing and did not hand even her panty to the investigator of this case. Upon her arrival, she went to sleep instead of reporting rape. Only later when she woke up, did she send an sms to the appellant accusing him of raping her.

[45]     Two defence witnesses corroborated the appellant’s version that as at the day of the incident, the bathroom door at the appellant’s home was not capable of being locked. Therefore, the evidence of three defence witnesses has the effect of challenging Ms B version that she was unable to run out of the bathroom as the appellant was busy bathing because the bathroom door had been locked by the appellant. The trial court did not criticise any of the defence witnesses (except the appellant) in its evaluation of evidence. It is my view that the trial court should have accepted the version of the defence on the issue of whether or not the bathroom door was capable of being locked. The trial court never made any reference to the evidence of the defence (except that of the appellant) during the evaluation process. It seems to me that the trial court paid lip service to the defence witnesses’ evidence. This, in my view, is a misdirection on the part of the court. Had it pronounced on the demeanour, reliability and honesty of the defence witnesses, the court a quo would have realised that no reasonable court could convict under the circumstances. The defence’s case was solid against the single evidence of Ms B. The only aspect in the appellant’s version which raises one’s eyebrows was his response to Ms B accusation of rape. He sent her an sms: “Sorry dear”. Under normal circumstances, innocence will seldom apologise. He explained that the reason for his response to Ms B was that he is an apologetic person by nature even when he did nothing wrong. The appellant’s message (sms) and his justification therefore is bound to lead the Court to suspect him of wrong doing, but the ultimate test is proof beyond a reasonable doubt.

[46]     In its judgment, the trial court rejected the appellant’s version because, amongst others, he had apologised to Ms B when she accused him of rape. The trial court further criticised the defence for its alleged failure to put the appellant’s version over to Ms B during cross-examination. Whilst it is trite law that a party must put across to State witnesses in cross-examination the defence of the accused, it does not mean that each and every averment which forms part of the accused’s version should be canvased with the witnesses for the State during cross-examination. The problem which I have with the reasoning of the court a quo is that it placed too much emphasis on the defence’s alleged failure to canvass the details of the appellants defence during cross-examination of Ms B . Most of the suggested areas where the defence was alleged to have faulted are peripheral aspects which are not important in the case. In the process of naming all the questions which the defence failed to deal with when Ms B was being cross-examined, the trial court, erroneously stated that a particular aspect of the appellant’s defence was not put to Ms B when in fact that had been done. Ultimately, an unjustified inference was drawn against the appellant. In my view, it is not necessary for the defence, in cross-examination, to set out in full what the evidence of the defence will be. To hold otherwise would render a criminal trial to be a boring exercise of unnecessary repetitions.

[47]     It is my considered view that the trial court failed to follow the principles as enunciated in S v Scott-Crosley[6]

“But it is not necessary for an accused’s version to be put in all its detail to every witness who takes stand to give evidence for the State. The limits of the obligation to put the defence version to a State witness appear from the following passage in Phipson, Evidence (7 ed at 460) quoted in R v M:

As a rule a party should put to each of his opponent’s witnesses in turn so much of his own case as concerns that particular witness, or in which he had a share …. If he asks no questions he will, In England, though not perhaps in Ireland, generally be taken to accept the witness’s account… Moreover, where it is intended to suggest that the witness is not speaking the truth upon a particular point, his attention must first be directed to the fact by cross-examination, so that he may have an opportunity of explanation… failure to cross-examine, however, will not always amount to an acceptance of the witness’s testimony, e.g. if the witness has had notice to the contrary beforehand, or the story is itself of an incredible or romancing character…

It must also be emphasised that the failure to put a version, even where it should have been put, does not necessarily warrant an inference that the accused’s version is a recent fabrication. The words ‘in an appropriate case’ taken by the trial judge from S v Van As are important. As Davis AJA said of the passage in Phipson just quoted:

These remarks are not intended to lay down any flexible rules even in civil cases, and in a criminal case still greater latitude should usually be allowed.

The learned judge went on to say:

That at that stage the girls should have been cross-examined I have no doubt; indeed, I have difficulty in imagining why this was not done. Whatever the reason it was certainly unfortunate that he [the attorney for the accused] did not do so. But in the circumstances of this case I am unable to draw any inference adverse to the accused from his failure. When Lydia was recalled it must again be said that he should have taken advantage of the opportunity to cross-examine; but then it is only fair to say that the prosecutor, or at least the magistrate, should have put the story to her at that stage. And he might well also have recalled the complainant; compare Rex v Filanius (1916, T.P.D. 415 at p. 418), per MASON, J. The learned Judge, who delivered the judgment of the Court a quo, gave a number of points on which ‘severe criticism can be directed to the evidence of the appellant (the accused) and his witness (Campher)’. The first is the failure to put the defence case to the two girls; this he describe as ‘most significant’. But significant of what? Significant, as I would suggest under the circumstances of this particular case, of nothing but an error of judgment on the part of the attorney.”

[48]     When I take into account both versions (by the State and the defence) I am unable to find, as the trial court found, that the probabilities favour the State. In my view, the probabilities do not support the version of the State. Clearly, this was a proper case where the trial court should have found that the version of the appellant is reasonably possibly true.

[49]     In conclusion, the conviction cannot be sustained. Consequently:

            49.1     The appeal against conviction and sentence is upheld;

            49.2     The conviction and sentence are set aside.

            49.3     If the appellant is in custody, he should be released immediately.

_______________

SAMKELO GURA

JUDGE OF THE HIGH COURT

NORTH WEST DIVISION

I agree.

___________________

A.M. KGOELE

JUDGE OF THE HIGH COURT

NORTH WEST DIVISION

APPEARANCES:

DATE OF HEARING:          10 NOVEMBER 2017                                                         

DATE OF JUDGMENT:       13 SEPTEMBER 2018

COUNSEL FOR APPELLANT:                  ADV C ZWIEGERLAAR

COUNSEL FOR RESPONDENT:            ADV DG JACOBS – ADV P SEBOTHE standing in

ATTORNEYS FOR APPELLANT:             R S TAU ATTORNEYS      

ATTORNEYS FOR RESPONDENT:        DIERCTOR OF PUBLIC PROSECUTIONS:

                                                                 NORTH WEST

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