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S v Bila (A438/2004) [2005] ZAGPHC 184 (24 March 2005)

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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

CASE NO: A438/2004

DATE: 24/3/2005

not reportable




IN THE MATTER BETWEEN:

DICK TEHOVENE BILA APPELLANT

AND

THE STATE RESPONDENT


JUDGMENT

MALULEKE, J

1. This is an appeal against conviction for rape and sentence of ten years imprisonment imposed upon the appellant by the regional court magistrate, Benoni on 11 November 2002. The appellant was legally represented by Mr Modiga. He pleaded not guilty to the charge that he unlawfully assaulted and had sexual intercourse with N S, a 21 year old female, against her will on 23 August 2002 at Barcelona squatter camp, Benoni.


2. A lengthy and detailed plea explanation was submitted on behalf of the appellant. Briefly the basis of his defence was that he and complainant were co employees, there was a love relationship between them and that consensual sexual intercourse took place on Friday 23 August 2002 at appellant's house after they had been to a shebeen where they both consumed alcohol. At the insistence of complainant, a condom was used in the intercourse.


Factual background

3. The following facts are common cause:

(a) The appellant and complainant were both employed by Sherina Printers at Dunswart. They had known each other for some two months at the time of the alleged offence.


(b) They both lived in Daveyton. The appellant had a car and regularly conveyed complainant to her home after work, particularly when she worked late. 0n certain days they stopped at a shebeen-cum-bottle store for drinks until late in the evening.


(c) 0n Friday 23 August 2002 after work they stayed at the shebeen until after 20:00 when they left for Daveyton in appellant's car. They were accompanied by four friends who were also co workers and also lived in Barcelona which is the part of Daveyton where appellant lived.


(d) After dropping the four friends off, appellant together with complainant drove to appellant's home. They spent the night there and sexual intercourse with the use of a condom took place. In the morning appellant drove complainant to her house.


(e) Complainant's parental home is in Dobsonville, Soweto.


Issues

4. The case for the state is based on the evidence of the complainant (N S), the complainant's mother (L S), Dr Rikhotso (the district surgeon) and Prudence Nzitha, the police officer to whom the report was made. The whole case turns around the question whether there was a love affair between appellant and complainant and whether the complainant consented to the intercourse. The complainant's evidence is that the appellant and herself were friends and not lovers, she trusted the appellant. 0n the day in question she stayed with him at the shebeen from 17:00 until after 20:00. He was consuming alcohol and she was playing pool. After dropping off the four friends the appellant refused to take her to her place and forcibly took her to his home where he assaulted her with open hands and fists and had sexual intercourse with her against her will. Shortly before the rape she "fainted" for a short while due to a chronic medical condition. The complainant is a single witness on the crisp and crucial question of whether the intercourse was consensual or not.


5. It is trite that the evidence of a single witness must be approached with caution to avoid the risk of a wrong conviction. 0n close scrutiny, the evidence of the complainant reveals inconsistencies and improbabilities on some material respects, as for instance:

(a) Complainant's evidence is that she telephoned her mother at about 21:30 to 22:00 and told her that someone is refusing to take her home and is threatening or "promising" to kill her. The mother says complainant telephoned her at 22:30 and only told her that the man who was to take her home is refusing to do so. The mother denied that complainant told her that the man is "promising" to kill her.


(b) Her version that after dropping off the four friends the appellant stopped the car in a secluded area, went out of the car leaving his cell phone on the dashboard and heard her use his cell phone to call her mother after he had threatened to kill her and he did nothing about it is improbable in the circumstances. 0ne would expect that he would have grabbed the cell phone and reprimanded her or assaulted her or threatened her.


(c) Her version that when they got to his house, after 22:30 appellant allowed her to go to the toilet outside the house and she then tried to run away from him into the dark and he chased her and hit her with open hands and got her into the house is not consistent with her version that when appellant fell asleep after the intercourse she did not try to escape because "it was dark and I was scared", as she said.


(d) After the sexual intercourse she stayed awake crying in the dark until the morning when she woke him up at 05:00 and again at 06:00 and asked him to take her home, which he did. Under cross-examination she conceded that appellant had mentioned to her many times before and after the alleged rape that he intended to marry her. She says she did forgot to mention this in her evidence-in-chief because she was not asked by the prosecutor. This is a very material aspect of the matter and her explanation that she forgot to mention this and because she was not asked, is not to say the least satisfactory.


(e) She states that on the Sunday following the alleged rape the appellant came to her house to talk to her. She refused to speak to him and she chased him away and he left. Her mother was present in the house but she did not see the appellant. 0ne would have expected that complainant would have called her mother and showed her the man who had threatened to kill her and raped her two nights before.


(f) She testified that her handbag got lost or stolen at the shebeen before they left and that she had told the appellant about this. She does not explain how her bag went missing or what they did to retrieve it. The version of the appellant on this issue sounds more probable. His version is that the bag that was in the car on the front seat where complainant sat was mistaken by them to be complainant's bag and only when they noticed it was in fact his sister's bag which was in the car she want him to drive back to the shebeen to retrieve the correct handbag. The explanation for the lost bag is probably to be found in the fact that one or both of them was or were intoxicated.


(g) The only significant corroboration for her evidence is that her mother confirms that when she saw her in the morning complainant was crying and had a bruised eye and the police officer also confirms this. Dr Rikhotso also confirms that the bruising to her eye was consistent with an assault with a fist. However, the doctor could not find any signs of sexual intercourse or rape because she was sexually active and a condom was used, and more importantly he saw her two days after the incident. The swollen forehead and bruised eye could have happened within seven days prior to the examination, according to the doctor.


(h) Complainant was evasive on the question of alcohol consumption. She says she does take alcohol but on the day he was drinking and she was playing pool all the time. She does not know whether he was intoxicated or not. His version is that he bought beers for her. Her version is that she frequently stopped at this very shebeen with the appellant for drinks. Surely she would know when he was drunk. She was not candid on this point.


6. The appellant's version is that complainant attacked him and bit his cheek when he refused to go back to Dunswart to look for her bag and she later apologised for the tantrum. She agreed to have sexual intercourse with him if he used a condom which he did. He did not see any visible injuries on her that night nor when he dropped her off on the following morning. He could not explain how she sustained her injuries, except that he was later told that she had had a fight with another lady. The learned magistrate states in his judgment at p71 line 10:

"When the accused is asked to testify regarding this relationship that he relies on to plead to consent to sexual intercourse he confirms her version that they were only friends and only co employees. As stated in his description of the relationship he does not mention about having a love affair."


With respect the learned magistrate is completely misdirected on this point. At p46 line 7 at the beginning of his evidence-in-chief appellant says:

"Q: How well do you know her (complainant)?

A: As my girl friend.

Q: From when was she your girl friend?

A: It was two months since we started being involved, prior to the incident."


And at p49 line 18:

"Q: Ja, what happened?

A: And then she is my girl friend, I then started hugging her and I started sort of being playful with her so that she could calm down so that we can be able to sleep."


And at p53 line 10 at the beginning of the cross-examination of the appellant by the prosecutor:

"Q: Describe this relationship you had with her?

A: She was my girl friend."


And in the plea explanation the attorney stated at p2 line 15:

"... on the day in question they had a relationship, he was the boy friend to the complainant your worship."


The appellant has consistently maintained that there was a love relationship between him and the complainant.


7. The trial magistrate criticises the accused's version regarding the R200,00 the complainant asked for from him on the basis that this was not mentioned in his plea explanation. This criticism is, with respect, also not founded. A plea explanation in terms of section 115 of Act 51 of 1977 cannot have the full details of the accused's version. It is, in my view, incorrect to conclude that this is a fabrication because it was not stated in the section 115 statement. The trial magistrate also incorrectly criticises the appellant on the question of the "scuffle" over the handbag.


The trial magistrate in his judgment p72 line 18 states:

"The most serious discrepancy, however, in the accused's version, to my mind, is the fact that during the plea explanation it was specifically mentioned that there was no physical contact or argument or scuffle between the accused and the complainant when they had the argument."


At p3 line 18 the attorney states in the plea explanation:

"Your worship he will further say they entered inside the house and there was a little bit of a scuffle where the complainant was angry and accusing the accused as to why doesn't he want to go and collect the bag. But it was not so much a physical fight itself your worship."


8. It is trite that a statement in terms of section 115 of Act 51 of 1977 has no evidential or probative value to the same extent as evidence under oath. The ambit and purpose of section 115 was aptly stated in S v Seleke & Another 1980 3 SA 745 at 753G:

"Die doel van art 115 is klaarblyklik om vas te stel wat presies deur die beskuldigde in geskil geplaas word wanneer hy onskuldig pleit sodat onnodige getuienis uitgeskakel kan word. In die eerste plek word hy die geleentheid gestel om die grondslag van sy verdediging aan te dui ... Dit is duidelik dat hierdie artikel hoegenaamd geen vorm van kruisverhoor beoog nie. Inteendeel, wat beoog word is 'n objektiewe poging tot vasstelling van feite wat werklik in geskil is met, indien nodig, vrae ter opheldering."


9. Regarding the context within which section 115 statements may be used it was held in S v Makgatla 1977 9 BSC 79 85E that:

"Like in the case of any extra-judicial statement the accused may be cross-examined on it. Serious conflict between his evidence under oath and his plea explanation of plea can destroy his credibility provided the complaints have been properly put to him. The view that everything in the explanation of plea which is not admissible in terms of section 220 must be totally ignored ... cannot be supported. It is part of evidentiary material like any statement made by the accused which may be proved against him in evidence whether exculpatory or inculpatory or neutral. Its value for the prosecution depends upon the circumstances. This is in accordance with the general law of evidence and there is nothing in the Act which takes the explanation of plea out of this general class."


It is in this context that the learned magistrate has, in my view, misconstrued the statements in the plea explanation. Clearly in the plea explanation the appellant said there was a scuffle between him and the complainant. There is no serious conflict between the plea explanation and the evidence under oath on this point or on any other point. The evidence of the appellant on the "scuffle" is not improbable. The appellant's explanation of how the complainant may have sustained the injuries may not be convincing, but it is certainly not improbable. The appellant's explanation that the complainant may have reported a rape charge against him because of the scuffle over the lost bag or also because he did not have the R200,00 she required from him must be understood in the context that he could not have known what was in her mind. Her evidence is that he was surprised when she told him on Monday morning that she had laid a rape charge against him. She refused to tell him why she did so.


10. There is, in my view, a reasonable possibility that the version of the appellant may be true that there was a love relationship between the appellant and the complainant. There is a reasonable possibility that the innocent explanation by the appellant may be true.


What the test should be in such a case is eloquently stated in the following dictum by NUGENT, J and SCHWARTSMANN, J in S v Sithole & 0thers 1991(1) SACR 585 (WLD) at 590G H:

"There is only one test in a criminal case, and that is whether the evidence establishes the guilt of the accused beyond reasonable doubt. The corollary is that an accused is entitled to be acquitted if there is a reasonable possibility that an innocent explanation which he has proffered might be true."


The State has not in my view established the guilt of the appellant beyond reasonable doubt.


In the result I order that the appeal against the conviction be upheld. The conviction and the sentence are set aside.







G S S MALULEKE

JUDGE OF THE HIGH COURT


I agree




M N S SITHOLE

ACTING JUDGE OF THE HIGH COURT

A438-2004










HEARD ON: 24/03/2005

COUNSEL FOR APPELLANT: P J PILLAY

INSTRUCTED BY: LEGAL AID BOARD

COUNSEL FOR RESPONDENT: ADV MOGALE

INSTRUCTED BY: DIRECTOR OF PUBLIC PROSECUTIONS