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IN THE NORTH WEST HIGH COURT, MAFIKENG

CASE NO: CA 10/2012

In the matter between:

EMMANUEL CHAUKE ..................................................................Appellant

and

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

CRIMINAL APPEAL

HENDRICKS J; LANDMAN J

DATE OF HEARING : 10 AUGUST 2012

DATE OF JUDGMENT : 24 AUGUST 2012

COUNSEL FOR THE APPELLANT : ADV NEL

COUNSEL FOR THE RESPONDENT : ADV MUNYAI

JUDGMENT

HENDRICKS J

[A] Introduction:-

[1] The Appellant was convicted in the Regional Court, Taung on two counts of rape of minors and one count of robbery. He was sentenced on 22 August 2011 to fifteen (15) years; six (6) years; and three (3) years imprisonment for the respective counts, which sentences were ordered to run concurrently. He appeals, with leave of the court a quo, against the convictions as well as the sentence of fifteen (15) years imposed on count 1.

[B] The Facts:-

[2] The facts accepted by the trial court, can be succinctly summarized as follows:- On the day of the incident being 23 September 2007, the complainants in counts 1 and 2 respectively, were on their way to Mabana, Taung. They hitchhiked a lift from the Appellant. Reaching the place where they were supposed to alight, the Appellant did not stop but turned and drove on in an opposite direction, informing the complainants that he was going to fetch his friend at a tavern in Randstad Village. Upon their arrival there, the Appellant alighted and the two complainants remained inside the car. The Appellant spoke on his phone and then got back into the car, saying he is going to a tavern in Kholong Village. En route he threatened the complainants with a fire-arm and drove to another Village namely Mante Village.

[3] He drove into a veld and alighted from the car to relieve himself. When he got back into the car, he ordered the complaint in count 2 to undress and she refused. He then undressed her and raped her. After he had finished with her, he called the complainant in count 1 to the front seat but she refused. He then pulled her to the front seat. He ordered her to undress and she refused. He then undressed her of her pants and panties and then raped her also. After he finished, he took her cellular phone. He then drove to a certain place where the two complainants alighted and fled. They ran to the police station and laid charges against him.

Ad conviction:-

[4] The appeal against the conviction is premised on the fact that the two versions of the respective complainants are contradictory in nature and that the trial court erred in accepting the evidence. The learned Regional Magistrate was alive to the contradictions in the evidence of the complainants. She stated:- “They were both thoroughly cross-examined and the court does admit they had differences in their testimonies and it is for this court to make a determination that do those differences render their evidence inacceptable”. [sic].

[5] The Respondent contended that the contradictions are not material and therefore does not negate the versions of the complainants as witnesses in as far as the material aspects of their versions are concerned. This is indeed correct. The aspects of the evidence given by the two complainants which are said to be unsatisfactory relates in the main to peripheral issues and matters of detail. The learned Regional Magistrate found “Now bearing in mind the differences in the versions of the two complainants and after consideration of the differences, the court finds that they do not affect the crux of their version and they are found to be immaterial by this court”.

See:- S v Hadebe and Others 1997 (2) SACR 641 (SCA)

[6] Contradictions per se will not necessarily lead to the rejection of a witnesses’ evidence. It may well be indicative of an error. The trial court must weigh the evidence of a witness, look at the merits and demerits and determine at the end of it all where the truth lies.

See:- S v Mkhole 1990 (1) SACR 95 (A);

S v Dlamini and Another 2008 (1) SACR 501 (N).

[7] Of utmost importance is the medical evidence that was presented which indicate beyond any reasonable doubt that the two complainants were both sexually assaulted. This serves not only as corroboration for the respective versions of the two complainants but is also independent formal evidence. With regard to the complainant in count 1, the Appellant admitted that he had sexual intercourse with her but stated that it was consensual.

[8] It was submitted on behalf of the Appellant that the viva voce evidence of the witnesses differs materially from their previous statements made to the police. In my view, the differences are not material. I find the dictum by Olivier JA in S v Mafaladisa and Another 2003 (1) SACR 583 SCA quite apposite and I quote:-

“The judicial approach to contradictions between two witnesses and contradictions between the version of the same witness (such as, inter alia, between her or his viva voce evidence and a previous statement) is, in principle (even if not degree) identical. Indeed in neither case is the aim to prove which of the version is correct, but to satisfy oneself that the witness could err, either because of a detective recollection or because of dishonesty. The mere fact that it is evident that there are self contradictions must be approached with caution by the court. Firstly it must be carefully determine what the witnesses actually meant to say on each occasion, in order to determine whether there is an actual contradiction and what is the precise thereof. In this regard the adjudicator of fact must keep in mind that a previous statement is not taken down by means of cross-examination, that there may be language and cultural differences between the witness and the person taking down the statement which can stand in a way of what precisely was meant, and that the person giving the stamen is seldom, if ever, asked by the police officer to explain their statement in detail. Secondly, it must be kept in mind that not every error by a witness and not every contradiction or deviation affects the credibility of a witness. Non-material deviations are not necessarily relevant. Thirdly, the contradictory versions must be considered and evaluated on a holistic basis. The circumstances under which the versions were made, the proven reasons for the contradictions, the actual effect of the contradictions with regard to the reliability and credibility of the witness (are to be considered). The question whether a witness was given a sufficient opportunity to explain the contradictions and the quality of the explanations and the connection between the contradiction and the rest of the witness’ evidence, [are,] amongst other factors, to be taken into consideration and weighed up. Lastly, there is the final task of the trial Judge, namely to weigh up the previous statement against the viva voce evidence, to consider all the evidence and to decide whether it is reliable or not to decide whether the truth has been told, despite any shortcoming.”

[9] The learned Regional Magistrate in her careful, reasoned judgment also deals comprehensively with the Appellant’s version. Cogent reasons are advanced why the version of the Appellant cannot be reasonably possibly true. Her finding in this regard cannot be faulted.

[10] It was furthermore submitted on behalf of the Appellant that the trial court erred in not looking at the improbabilities in the evidence of the State witnesses (complainants in particular). In my view, the probabilities listed amount to nothing more than speculation or conjecture, and are not rationally connected or supported by the evidence. No weight can be attached thereto.

[11] Furthermore, it was contended on behalf of the Appellant that count 3, the count of robbery of the cellular phone of the complainant in count 1 was not proven. At best for the State, so it was submitted, can it be said that theft was proven and not robbery because on the version of the complainants, the Appellant asked for the cellular phone and/or was given the cellular phone to make a phone call and he did not return it to the complainant in count 1.

[12] Mr Munyai on behalf of the Respondent submitted that the evidence proves that the Appellant threatened the complainants with a fire-arm to induce submission. This happened before the sexual encounters he had with the complainants. By taking the cellular phone of the complainant in count 1 thereafter, constitute robbery. I am in full agreement with this proposition. More so because the said cellular phone was never recovered nor did the Appellant hand it back to the complainant in count 1 which makes his version that he borrowed it and wanted to return it improbable. I am of the view that the finding by the court a quo, that the State succeeded in proving the guilt of the Appellant beyond reasonable doubt, also on count 3 (robbery) was indeed correct.

[13] It was also contended on behalf of the Appellant that a negative inference need to be drawn from the fact that the police officers whom the complaints met along the way after they fled from the Appellant were not called as witnesses by the State. In my view, there is no room to draw any negative inference. The identities of these police officers were not established. Furthermore, the complainants were told by those police officers to report the matter at the police station, which they did. The evidence does not indicate that their ordeal was related to those police officers in any detail to serve as a first report to an independent person. If that would have been the case, it would have made all the difference. There is no difference between the police officers that the complainants met on their way to the police station and the police officers they met shortly thereafter at the police station.

[14] I am of the view that the finding by the trial court that the guilt of the Appellant was proven beyond any reasonable doubt cannot be faulted. The appeal against conviction should therefore fail.

Ad Sentence:-

[15] As already mentioned, leave to appeal was granted only in respect of the sentence of fifteen (15) years imprisonment on count 1. The court a quo, having carefully considered all the factors relevant to the impositioning of a suitable sentence concluded, quite correctly in my view, that there are indeed substantial and compelling circumstances present in this case in order to deviate from imposing the minimum sentence of life imprisonment.

[16] It was conceded, on behalf of the Appellant, that the sentence imposed are, although severe, not shockingly inappropriate. I beg to differ slightly from this concession. In my view the sentence is not severe but totally appropriate, just and fair. The learned Regional Magistrate quite correctly guarded against imposing a too severe sentence and therefore not only imposed a very lenient sentence of six (6) years imprisonment on count 2 (which is also a count of rape just as count 1), but also ordered that all the sentences should run concurrently. Her reasoning in this regard cannot be faulted and stand beyond any possible criticism. There is in my view no need whatsoever to interfere with the sentence imposed on count 1. The appeal against the sentence on count 1 must accordingly also fail.

[C] Order:-

[17] Consequently, the following order is made:-

[i] The appeal against the convictions and sentence on count 1 is dismissed.

[ii] The convictions and sentence on count 1 are confirmed.

R D HENDRICKS

JUDGE OF THE HIGH COURT

I agree.

A A LANDMAN

JUDGE OF THE HIGH COURT

ATTORNEYS FOR THE APPELLANT: DE BRUYN & STRAUS INC c/o Van Rooyen Tlhapi Wessels Inc

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