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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, GRAHAMSTOWN)

CASE NO: CA272/2009

DATE HEARD: 31/10/2010

DATE DELIVERED: 2/11/2011

In the matter between

VUYANI SIZANI ….............................................................................First Appellant

KWANELE NUZE ….....................................................................Second Appellant

vs

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

JUDGMENT

PICKERING J:

The first and second appellants appeared as accused numbers 2 and 3 respectively, together with accused no 1, before Somyalo JP on two counts of rape. On count 1 it was alleged that on 14 March 2009 and at or near Manyano Township, Indwe, the three accused raped the complainant, a fourteen year old girl per vaginum. On count 2 it was alleged that at the same time and place the three accused raped the same complainant per anum. Accused no 1 pleaded guilty to rape as charged on count 1 but not guilty to rape on count 2. Despite their pleas of not guilty to both counts the two appellants were convicted as charged. Accused no 1 was also convicted on both counts as charged. Each accused was thereafter sentenced to undergo sixteen years imprisonment on count 1 and fifteen years imprisonment on count 2, it being ordered that the sentence imposed on count 2 run concurrently with that imposed on count 1. With the requisite leave of the learned Judge President the erstwhile accused 2 and 3 now appeal against their convictions only. Accused no 1 did not seek leave to appeal.

Complainant, who was born on 1 July 1994 and was thus fourteen years and 9 months of age at the time of the incident, testified through the means of an intermediary. She stated that on the night in question she was in possession of R100,00 and was drinking liquor at a tavern known as Mtabe in Manyano Township, Indwe. She was in the company of a group of girlfriends including Xoliswa, Babalwa, Aphiwe as well as the three accused. She stated that she often visited taverns and drank there with adults and she conceded that on the night in question she was drunk. She denied, however, that she was heavily intoxicated. They remained at the tavern until closing time at approximately 10pm and then proceeded to town in order to purchase potato chips from a BP garage. At the garage Xoliswa and Aphiwe went to the toilet. When they emerged complainant entered. On exiting the toilet she met accused no 1 next to the petrol pumps. She stated that she knew him well and that he had previously proposed love to her but that she had rejected his proposal. Accused no 1 caught hold of her and pulled her, saying that he wanted to talk to her. He told her that he had long been waiting for her and pulled her in the direction of his home which was situated in a different area to her own house.

Xoliswa tried to intervene but accused 1 told her that she had been his girlfriend for a long time and Xoliswa and the others in whose company she had been then left. Accused no 1 pulled complainant towards the railway line. She then saw first and second appellants approaching. They met up with accused no 1 and complainant spoke to accused no 1 in so-called “tsotsi taal”. Complainant heard words to the effect that they intended to assault her. She started to walk away but accused no 1 tripped her and she fell. Accused no 1 then closed her mouth and strangled her whilst second appellant pulled her trousers and panties down, removing them from one leg. At this stage first appellant was keeping watch. Second appellant then put on a condom and raped complainant. First appellant, after also having put on a condom, raped her, followed by accused no 1.

Accused no 1 then said that they should move from that spot. Accused no 1 and first appellant each grabbed her by the arms and pulled her towards another place where it was darker. Second appellant followed behind. At this spot she was thrown to the ground and turned over by accused no 1 onto her stomach. The second appellant then proceeded to rape her anally, followed by the first appellant and then accused no 1. All three used condoms.

Having raped her in this fashion all three men ran away. Complainant herself then ran home and knocked at the door. It was now approximately 11pm. Her mother opened the door and asked what was going on and complainant reported to her that she had been raped.

She and her mother then went to sleep. According to complainant there was, in the course of the night, a knock at the window of the house, which they ignored. The following morning the two appellants arrived at complainant’s house. Her mother demanded to know why they had raped her. According to complainant first appellant said that they were apologising to her “if she says we did that.”

First appellant then attempted to give complainant’s mother the sum of R20,00 but her mother rejected it saying that she was going to lay a charge against them. First appellant then jumped up and down, holding his head and saying “Jesus, this girl.” The appellants then left.

Complainant and her mother proceeded to the police station. At some later stage, after having been to the district surgeon, she showed the police where the rapes had occurred as well as certain used and unused condoms which were lying at that spot. She stated that in consequence of having been strangled by accused no 1 she had marks on her neck and that she had shown these to the doctor who had examined her later that day. She said that she also had marks on her buttocks from the gravel where she had been lying on her back but she could not remember having shown these to the doctor.

She confirmed that she had made a statement to a policeman, Constable Mbutuma, at 14h00 on 16 March, that is, two days after the incident. She said, however, that at the time of making the statement she was still shocked and was confused as to the sequence of the events of that night. She stated further that she had made her statement in isiXhosa and that the contents of the statement had not been read back to her. She denied in particular that she had been asked whether she knew and understood the contents thereof as set out in the attestation clause. A number of discrepancies between her evidence and the contents of the statement were put to her in the course of cross-examination. Whereas in her evidence she had stated that at the time of the first rape first appellant had stood guard the statement reflects that this person was in fact second appellant. In her evidence she said that second appellant had pulled off her trousers and panties whereas the statement reflects that this was done by first appellant. In her evidence she alleged that second appellant was the first to rape her and that accused no 1 was the third whereas the statement reflects that accused no 1 raped her first and that second appellant was the third person to do so. With regard to the second rape she alleged in her evidence that second appellant raped her first, followed by first appellant and then accused no 1. The statement records that accused no 1 was the first and second appellant the second to do so. It then reads as follows:

“Vuyani (first appellant) never raped me for the second time, it was Sifiso (accused no 1) and Kwanele (second appellant).”

Complainant denied having said this to Constable Mbutuma and reiterated that first appellant had raped her on the second occasion.

Doctor Marais, a medical practitioner employed at Komani Hospital, conducted a physical examination of the complainant on 15 March 2009 and completed the requisite form J88. She testified that at the time of her examination of complainant the complainant was “very sad and tearful”. She had certain injuries to her private parts which were consistent with sexual assault. With regard to the alleged rape per anum she stated that there were abrasions and redness on the outside of the anal orifice and two tears at the entrance to the anal orifice. She stated that these injuries were consistent with having been caused by an erect penis. She was unable to state whether they were caused by actual or attempted penetration and said that they were not entirely conclusive of there having been actual penetration. Under re-examination she stated that she thought that there was penetration and that it “seems as if there was penetration.” Her report makes no mention of any injuries to complainant’s neck nor of any marks or abrasions on complainant’s buttocks.

That concluded the evidence for the State. At the time of the trial the complainant’s mother’s whereabouts were unknown and she accordingly could not be called to testify as to the report made to her by the complainant and as to the events of the following morning.

Accused no 1 as well as both the appellants testified in their defence. In his evidence accused no 1 largely confirmed the statement given by him in explanation of his plea. He stated that he had been in the company of certain friends and acquaintances on the night in question at a tavern known as Cheeza’s. At some stage late in the night after the tavern had closed he and his lady friend, Silelewa, proceeded to a spot near a drain where they drank liquor they had purchased earlier. They were joined by a group of persons including the complainant, Xoliswa and the two appellants. Complainant was drunk and lay down on the ground and went to sleep. They all then decided to walk to the BP Garage. Complainant woke up and accompanied them. From there they left for Tjoksville Township. According to accused no 1 the complainant was following behind them. She called out to them and accused no 1 and first appellant waited for her to catch up. They continued walking and, as they did so, first appellant tripped complainant causing her to fall down. First appellant asked accused no 1 to close complainant’s mouth and he did so. First appellant then raped her. He then asked accused no 1 to assist him in taking complainant to a darker spot. At that spot first appellant raped her again. When he had finished accused no 1 also raped her. Whilst he was doing so first appellant left. He then returned in the company of second appellant. Second appellant, after telling him to get off complainant, also raped her.

Both appellants then helped complainant to get dressed and first appellant left with her. Accused no 1 and second appellant stayed to urinate and lost contact with complainant and first appellant. According to accused no 1 he met second appellant the following day and second appellant told him that he had found first appellant and complainant sleeping at his home.

First appellant in his evidence confirmed that on the night in question he and second appellant were in the company of the complainant and a number of other persons at Cheeza’s tavern. Complainant purchased the liquor. At approximately 10pm they all left and proceeded to the BP garage. At the garage accused no 1 pulled complainant with him after she came out of the toilet. Complainant at that stage was very drunk and staggering. First and second appellant accompanied two of the girls, Xoliswa and Aphiwe, to their respective homes. One Shezi joined them. At Xoliswa’s home first appellant decided with Shezi to go back and look for complainant. They retraced their steps. They then found accused no 1 lying on top of complainant, raping her. They remonstrated with him but he ignored them. At that stage second appellant re-appeared. First appellant reported to him what had happened. Shezi then left. Accused no 1 picked complainant up and moved her to a darker spot where he again raped her. Thereafter first and second appellants picked complainant up and assisted her to dress. She appeared dizzy. They took her towards her home but, along the way, complainant started to scream accusing them of having raped her as well. On arrival at complainant’s home she knocked on the door which was opened by her mother. Complainant entered the house and the door was shut behind her. The appellants knocked on the door but were told to return in the morning. They did so. They told complainant’s mother that accused no 1 had raped complainant the previous night but she replied that according to complainant appellants had also raped her. She then woke complainant up. Complainant alleged that all three accused had indeed raped her. First appellant denied having offered complainant’s mother R20,00.

The second appellant testified that he was in the company of the complainant, accused no 1 and first appellant at the BP Garage. He, together with first appellant, Xoliswa and Aphiwe, left the garage proceeding towards the squatter camp. They left complainant behind with accused no 1. They proceeded to Xoliswa’s home where first appellant turned back saying he was going home. Second appellant and Xoliswa then accompanied Aphiwe to her home some 600 metres further. He then accompanied Xoliswa to her home. On leaving her there he set off for his own home. On the way he met up with first appellant who told him that accused no 1 was raping complainant. They both went to see what was happening. On arrival he found accused no 1 taking complainant towards a dark area where he proceeded to rape her. Second appellant tried to intervene verbally but to no avail. Once accused no 1 was finished the two appellants picked complainant up. Accused no 1 pulled her trousers up. Second appellant put her shoes on. The appellants then walked her home. She was drunk and staggering. Near her home complainant started to walk on her own and began screaming, accusing the appellants of having sold her out to accused no 1. She entered her house and the door was closed.

Constable Mbutuma was called to testify on behalf of first appellant. He stated that he had taken down the complainant’s statement at 14h00 on 16 March. At the time complainant was “not very shocked”, certainly not as shocked as she had been when he had first interviewed her on an earlier occasion. He stated that as complainant spoke to him in isiXhosa he wrote down what she said word for word in English. He confirmed that what was contained in the statement was strictly what he had been told by her. After she had finished making the statement he had read it back to her in isiXhosa and she had confirmed the correctness thereof.

Under questioning by Somyalo JP he stated that Indwe was a small police station and that, unfortunate as the situation was, there were no female police officers who could have dealt with the complainant instead of him.

The learned Judge President made very strong findings of credibility in respect of the complainant and the three accused. He stated that complainant was an excellent witness who emerged from her cross-examination with flying colours. She was, in his view, “a truthful, trustworthy, reliable witness who told the Court the truth as to what happened on that night.” As opposed to this he found that all three of the accused were “very poor” witnesses. Accused no 1, although having admitted to the rape of the complainant, did his best to minimize the role that he had played or exaggerated that played by the other two accused as well as exaggerating the drunkenness of the complainant. He found that first appellant was a very unsatisfactory witness who had to be reminded from time to time to speak up and who contradicted instructions given to his counsel in a number of respects. He found second appellant also to be a far from satisfactory witness and concluded by saying that the merits of complainant as a witness and the demerits of all three accused as witnesses were beyond question.

The learned trial Judge’s findings as to credibility and demeanour were assailed on appeal. It is trite that a Court of appeal is not at liberty to depart from the trial Court’s findings of fact and credibility unless they are vitiated by irregularity or unless examination of the evidence reveals that those findings are patently wrong. Those findings are presumed to be correct because the trial court has had the advantage of seeing and hearing the witnesses and is in the best position to determine where the truth lies. See for instance Rex v Dhlumayo 1948 (2) SA 677 (A) at 705; S v Hadebe 1997 (2) SACR 641 (SCA) at 645; S v Francis 1991 (1) SACR 198 (A) at 204C – F; S v Skoti unreported Eastern Cape High Court, Grahamstown, Full Bench Appeal case no CA77/09 and S v Leve 2011 (1) SACR 87(E) at para 8.

A note of warning has, however, recently been sounded in cases such as S v Marx [2005] 4 All SA 267 (SCA) where at 326, para 283 the following is stated:

“This Court has cautioned on more than one occasion, most recently in Medscheme Holdings (Pty) Ltd v Bhamjee, against according undue weight to the advantages that are said to be enjoyed by a trial court, and has said that the demeanour of a witness is no substitute for evaluating the content of the evidence, taking into account the wider probabilities.”

In the Medscheme Holdings case supra the following was stated at 20i – 21b, para 14:

“It has been said by this court before, but it bears repeating, that an assessment of evidence on the basis of demeanour (the application of what has been referred to disparagingly as the “Pinocchio theory”) without regard for the wider probabilities, constitutes a misdirection.  Without a careful evaluation of the evidence that was given (as opposed to the manner in which it was delivered) against the underlying probabilities, which was absent in this case, little weight can be attached to the credibility findings of the court a quo.”

In S v V 2000 (1) SACR 453 (SCA) the following was stated at 455f – h:

“In this regard the magistrate states that 'the accused was ill at ease when testifying'. Such conduct is not unusual nor surprising amongst accused persons or indeed witnesses generally who may be afraid or even overwhelmed at the experience of giving evidence in a court, possibly for the first time. (See the remarks of Diemont JA in S v Kelly 1980 (3) SA 301 (A) at 308B - G and H C Nicholas 'Credibility of Witnesses' in 32 (1985) SALJ at 36-7 which are particularly apposite in a case like the present where the appellant became emotional even while some of the State witnesses were testifying.)”

In the present case the learned Judge President dealt with the evidence of Mbutuma as follows:

“Without any attempt to criticize the police constable I raised some concerns relating to the circumstances surrounding the taking down of the statement, amongst others the fact that the statement was in Xhosa and taken down in English and secondly, the fact that, which was admitted by the police, that he is not trained in dealing with young female victims of sexual assault. Which fact the constable also admitted and thirdly, the fact that the statement was taken from a young female by a male constable, and fourthly, the fact that the statement was taken at a time when the victim was admittedly in a state of shock and trauma. A fact which the constable also to some extent conceded. The constable attributed some of these, what I would call short comings, to lack of resources, lack of personnel and all the other things that go with relatively small police stations in a country town. I am mentioning all of these because this may be relevant in considering the value and significance that I have to place on the statement when considering the evidence in its totality.”

Turning to the complainant’s evidence in this regard the learned Judge stated:

“Even when it came to the question of the statement made to the police which was in conflict with the evidence that she gave she was strong and firm that she did not say whatever to the policeman as indicated in her statement.”

No further reference is made in the judgment to Mbutuma’s evidence. In particular, no adverse comments as to his credibility are made. At the conclusion of his judgment the learned Judge President stated that he was “satisfied that complainant was in a position not only to identify the assailants but also to know which of the assailants did what at any particular time.”

It is apparent from the above passage that the learned Judge President must, by implication, have rejected the evidence of Mbutuma to the effect that he had in fact exercised due care in taking complainant’s statement and that he had indeed correctly transcribed the statement and read it back to the complainant and that she had confirmed it under oath. It is noteworthy, however, that Mbutuma’s evidence in this regard was never challenged under cross-examination. It was specifically never put to him that he had incorrectly transcribed what complainant had told him or that he was not sufficiently proficient in the English language to have correctly translated what she had told him in isiXhosa into English or that he had not read the statement back to complainant.

In my view, in these circumstances, the discrepancies between complainant’s evidence and her statement cannot, with respect, so easily be disregarded as they were by the learned Judge President. Mbutuma’s evidence was entirely clear and satisfactory. The learned Judge President gives no reason for having rejected it other than that complainant was “strong and firm” in her denial that she had told him what he said she had. I am well aware of the number of authorities dealing with the proper approach to discrepancies between a witness’s statement and the evidence he or she gave in Court, bearing in mind that the purpose of the statement is initially to obtain details of the offence in order to decide whether or not to institute prosecution and that the statement is not intended to be a precursor to a witness’s Court testimony. In these circumstances it is, as has been held, neither unusual nor surprising that discrepancies occur between a witness’s evidence and the contents of that witness’s police statement. See, inter alia, S v Bruiners en ‘n Ander 1998 (2) SACR 432 (SE); S v Mafaladiso en Andere 2003 (1) SACR 583 (SCA) and S v Govender and Others 2006 (1) SACR 322.

In S v Mafaladiso supra the following was stated at 593e – 594h (The judgment is in Afrikaans and I quote from the English head note thereof at 584h – 585d):

“The juridical approach to contradictions between two witnesses and contradictions between the versions 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 in degree), identical. Indeed, in neither case is the aim to prove which of the versions is correct, but to satisfy oneself that the witness could err, either because of a defective recollection or because of dishonesty. The mere fact that it is evident that there are self-contradictions must be approached with caution by a Court. Firstly, it must be carefully determined what the witnesses actually meant to say on each occasion, in order to determine whether there is an actual contradiction and what the precise nature thereof [is]. 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 the way of what precisely was meant, and that the person giving the statement is seldom, if ever, asked by the police officer to explain [his or her] 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, the question whether the witness was given a sufficient opportunity to explain the contradictions – and the quality of the explanations – and the connection between the contradictions and the rest of the witness’s evidence [must], amongst other factors, 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 and to decide whether the truth has been told, despite any shortcomings.”

It must also be borne in mind, as was stated in S v Xaba 1983 (3) SA 717 (A) at 730B – C that police statements are “as a matter of common experience, frequently not taken with the degree of care, accuracy and completeness which is desirable …”

In the present case, however, one is immediately struck by the care with which Mbutuma took the complainant’s statement. The statement comprises thirteen paragraphs in closely written handwriting over four pages of foolscap paper. It is, in my view, well written, grammatically sound, logical in lay-out and sequence and entirely coherent. Mbutuma’s evidence that he read the statement back to complainant and that she acknowledged the correctness thereof was, as I have remarked above, not challenged at all under cross-examination. The prosecutor instead asked him whether or not Mbutuma agreed with him that “due to the trauma complainant had gone through it would not surprise you that she cannot recall that you read the statement back to her.” Contrary to what was put to Mbutuma by the prosecutor, however, complainant never alleged that she was unable to recall this. She denied that this had occurred.

It was also put by the prosecutor to Mbutuma that he would not be surprised “if complainant confused the people who played roles due to the state, to the emotional state in which she was at the time you took the statement.” To these questions Mbutuma replied that he would not be surprised in the circumstances and that “that is the reason for me to take such time to interview her.”

The concerns raised by the learned Judge President regarding the taking of the statement from a young female rape victim by a male policeman are indeed entirely valid. It is regrettable that some police stations still do not have female police officers who can fulfil such a role. The fact that the statement was taken by a male constable, however, does not, in my view, of necessity adversely affect the weight to be attached to this statement in circumstances such as the present where it is clear that the male policeman acted with due sensitivity and care in recording the statement.

In my view, therefore, the learned Judge President erred in rejecting the clear and satisfactory evidence of Mbutuma as to the circumstances in which the statement by complainant came to be made.

It must be accepted, in my view, that complainant did indeed make the statement in the terms recorded therein and that it was properly and correctly translated and read back to her and confirmed by her under oath. Her denials in this regard must of necessity cast doubt upon the reliability of her evidence. It must obviously be borne in mind that she was to some extent in an emotional state at the time of making the statement. The contradictions and deviations between her evidence and her statement are, however, not merely minor in nature. There are material contradictions as to the circumstances of the incident and as to the roles played by each of the alleged perpetrators. These contradictions are of such a nature that they support the appellants’ evidence that complainant was heavily intoxicated. The most material of the contradictions, and one which cannot be wished away, is complainant’s statement to Mbutuma that first appellant had not raped her twice. This contradiction, to my mind, must cast very serious doubt over complainant’s evidence as a whole.

Complainant was a single witness whose evidence, in so far as it implicated the two appellants was not corroborated, despite the finding by the learned Judge President that it was to “a very large extent corroborated”. I should mention in this regard that complainant’s mother was not called as a witness because her whereabouts were not known at the time of the trial. Having regard to the above deficiencies in complainant’s evidence it cannot be said that her evidence was clear and satisfactory in all material respects.

Furthermore, I am of the view that the learned Judge President erred in rejecting the evidence of the appellants as being “very unsatisfactory.”

The fact that first appellant had to be reminded from time to time to speak up was not in the circumstances a proper basis upon which to determine his credibility.

In rejecting his evidence the learned Judge President stated further that he “to a very large extent contradicted in many instances what had been put by his counsel to witnesses.” The Judge President then mentioned “one of the examples”. This example was, however, in fact the only instance of such a contradiction. There were, as was conceded by counsel for the State, no other instances of such contradictions and the learned Judge President erred in this regard. It is clear, however, that his approach to first appellant’s evidence was coloured thereby.

The learned Judge President relied further in rejecting the evidence of the appellants upon the evidence of accused no 1. In my view, in circumstances where he had made harsh adverse findings in respect of the credibility of accused no 1, he erred in so doing. See: S v Dladla 1980 (1) SA 526 (AD).

In my view further, the evidence concerning the visit by the appellants to complainant’s house is also inconsistent with appellants having raped complainant. It is in my view quite improbable that the appellants would have accompanied complainant back to her home had they raped her. Furthermore, first appellant’s conduct the following day, in jumping up and down, holding his head and saying “Jesus this girl” is more consistent with the conduct of a person wrongly accused of rape.

The Court must be satisfied, on a holistic view of the evidence, that the version of the appellants cannot reasonably possibly be true and that the guilt of the appellants has been proved beyond reasonable doubt. Evaluating the evidence in this manner I cannot find that the appellants’ evidence may not reasonably possibly be true. In the circumstances they are entitled to their acquittal.

Accordingly I would allow the appeal and set aside the convictions and sentences of both appellants.

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J.D. PICKERING

JUDGE OF THE HIGH COURT

I agree, and it is so ordered

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L.P. PAKADE

ACTING DEPUTY JUDGE PRESIDENT

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P.T. MAGEZA

ACTING JUDGE OF THE HIGH COURT

Appearing on behalf of 1^st Appellant: Adv. Koekemoer

Appearing on behalf of 2^nd Appellant: Adv. Xozwa

Appearing on behalf of Respondent: Adv. Zantsi

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