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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

EASTERN CAPE DIVISION – GRAHAMSTOWN

                                                          NOT REPORTABLE

CASE NO: CA&R 414/13

In the matter between:

SHAUN GROOTBOOM                                                                                               Appellant

and

THE STATE                                                                                                              Respondent

APPEAL JUDGMENT

REVELAS J

[1] The [……..] old appellant was convicted of rape in terms of section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 1997 in the Hankey Regional Court on July 2013 and sentenced to a term of fifteen years’ imprisonment on 12 July 2013.  Leave to appeal was granted against both conviction and sentence by the trial Magistrate.

[2] The appellant and the complainant were incarcerated in the Patensie prison where they were both serving sentences when the incident giving rise to the present appeal occurred.

[3] It was common cause during the trial that at the time of the alleged incident, 28 July 2010, the appellant had been a carrier of the human immunodeficiency virus (HIV) and was aware of that fact.  The charge sheet accordingly made reference the provisions of “Sections 51 and 5 (sic) and Schedule 2 of the Criminal Law Amendment Act 105 of 1997 (the Act)”.

[4] Presumably the aforesaid wording in the charge sheet was intended to convey that in respect of the offence in question, a minimum sentence of life imprisonment was prescribed by the Act, since the appellant knew he was HIV positive when he allegedly sexually penetrated the complainant per anum.

[5] When the appellant was asked to plead, his legal representative suggested that the reading of the charge sheet be dispensed with since his client was aware of the allegations contained in the charge sheet.  The charge sheet was not read out to the appellant and it was also   flawed in that it purported to rely on section 5 of the Act, which has been repealed.  Further, no mention is made of any facts to be covered by the provisions of Part 1, item (a)(iv) of Schedule 2 (which is not mentioned), also and upon which the State wished to rely, to invoke the minimum sentence legislation.

[6] The appellant was therefore not properly warned that if he was convicted he could be sentenced to life imprisonment and the magistrate correctly held that the provisions relating to the minimum sentence of life imprisonment was not applicable in the present matter. In the light of my approach to this matter, the aforesaid discussion is a moot subject and merely referred to for purposes of record and edification.

The Evidence

[7] In concluding that the appellant was guilty as charged, the learned magistrate mainly relied on the testimony of the complainant who was a single witness, and the medical evidence.

[8] Summarized, the evidence was briefly the following:

[9] On the night of 28 July 2010, the complainant went to bed as usual at about ten o’clock.  He testified that he had noticed some days ago, that the appellant had come over to the cell he was sharing with about twenty to thirty other prisoners.  This concerned the complainant because, so he explained, he had previously opened two cases of rape against friends of the appellant and this apparently had upset the appellant (a fact not denied by the appellant).

[10] The complainant described how, since his arrival in the cell some days earlier, the appellant had slowly moved closer to his (the complainant’s) bed each night, by exchanging beds with other prisoners.

[11] On the night of 28 July 2010, so the complainant said, the appellant got onto a bed only one bed away from his bed. The appellant then exchanged places with the prisoner right next to him. A bit later, the appellant got into bed with him and pressed a sharp object against his neck. The complainant said he was too afraid to turn around and remained lying with his back to the appellant, who then told him to keep quiet and threatened him, saying that he would be killed if he said something.  The appellant then pulled down his own sleeping shorts and underpants, and then those of the complainant. Thereafter he inserted his penis into the complainant’s anus and had sexual intercourse with him, against his will.  Afterwards, the appellant ordered the complainant to have a shower and he got off the complainant’s bed and returned to his own bed.  The complainant said he complied with the appellant’s instruction and took a shower.  He had an upset stomach which also ached after the incident.

[12] The complainant said he reported the rape first thing to Mr Nelson, a prison guard, the following morning and later in the day he also reported the incident the head of prisons, Mr Brown. On 31 July 2010 he was taken to Dr Coetzer of Patensie who examined him. This was the doctor who gave evidence about his observations and the contents of the medico-legal examination report (J88) he had completed.

[13] During the trial it was common cause that the complainant had on two previous occasions reported that he had been raped, implicating four male persons of whom two, he said, were friends of the appellant.  The charges against them were withdrawn apparently due to a lack of evidence.  The complainant said he believed that he was raped by the appellant as punishment for having lodged the aforementioned complaints.  The appellant denied that the persons accused by the complainant were his friends, but stated that he had previously, in 2009, taken issue with the complainant because he had lodged false complaints against these persons.

[14] The appellant testified that the false rape allegations caused him to refuse to give the complainant a cigarette on a previous occasion in 2009, when he asked for one.  According to the appellant, the motive behind the complainant’s false accusations of rape against himself (the appellant) and others, was because the complainant wanted to be placed in a single cell, as opposed to a general cell.  The complainant was indeed placed in a single cell after the alleged incidents, and also after the alleged incident under consideration. The prison guard, Mr Nelson, confirmed that the complainant had been placed in a single cell for a few months after the reports he had made.

[15] The complainant dismissed the notion that he had lied about being raped in order to secure the advantage of being incarcerated in a single cell.  He insisted that he liked being with other prisoners in a general cell and being able to work and keep busy.  When he gave evidence at the trial, he had already been transferred to the Kirkwood Prison where he inhabited a general cell.

[16] Dr WA Coetzer made the following findings which influenced the magistrate’s reasoning: When the anus is forcibly penetrated and suddenly stretched, without exception, a tear would occur or the posterior of its opening.  The absence of marks on the remainder of the anal opening suggest that a soft, smooth object caused the penetration.  He concluded that anal penetration took place, that the anal injury was consistent with penile penetration, that the penetration was painful and that there were no signs that anal penetration was a usual occurrence.

The Magistrate’s Reasoning

[17] The magistrate concluded that he was bound to accept Dr Coetzer’s testimony unconditionally and therefore, that the complainant had been raped.  The only question remaining for determination was the identification of the perpetrator.  In this regard the magistrate took the following into account in his judgment:

[17.1] The incident was reported at the first available opportunity i.e. the next morning. 

[17.2]  There was no apparent motive to falsely implicate the appellant for the rather dubious privilege of being accommodated in a single cell which object had already been achieved.  There is therefore no link between the other two cases (which were withdrawn) and the present one from which the aforementioned motive could be inferred;

[17.3] Mistaken identity was out of the question because the complainant’s testimony was that the appellant climbed off his bed (the prisoners slept on stacked bunk beds) down its front,  and the complainant knew who was in his bed that night, and he had seen the appellant every day.

Discussion

[18] The magistrate reiterated in his judgment that the complainant was a single witness in respect of whom the cautionary rules should apply when evaluating his evidence.  Clearly, the evidence in this case certainly required a cautionary approach.

[19] In S v Sauls and Others 1981 (3) SA 172 (A) the following was said at 180E-G about single witnesses:

“There is no rule of thumb test or formula to apply when it comes to a consideration of the credibility of the single witness (see the remarks of Rumpff JA in S v Webber 1971 (3) SA 754 (A) at 758). The trial judge will weigh his evidence, will consider its merits and demerits and, having done so, will decide whether it is trustworthy and whether, despite the fact that there are shortcomings or defects or contradictions in the testimony, he is satisfied that the truth has been told”

[20] There were discrepancies in the testimonies of the witnesses who testified. There was a substantial discrepancy between Mr Nelson’s police statement and his evidence in court.  In court Mr Nelson testified that the complainant had reported to him on the morning of 29 July 2010, the day after the alleged incident, that the appellant had looked at him (the complainant) askance and he therefore asked to be placed in a single cell. He did not mention being raped the night before.  Thereafter he took the complainant to Mr Brown, the head of the prison, where he made a statement. In his statement to the police, Mr Nelson stated that the complainant had actually reported to him that morning that he had been raped by the appellant. In court, when the discrepancy was put to him, Mr Nelson insisted that the complainant never reported to him that morning that he had been raped the previous evening.  The magistrate did not regard this discrepancy as sufficiently damning to reject Mr Nelson’s evidence, but he described it in his judgment as “ietwat onaanvaarbaar”. The fact remains that one of the two versions has to be untrue.

[21] Although the magistrate was of the opinion that he gave due consideration to the cautionary rule with regard to his assessment of the complainant’s testimony as a single witness, there was another discrepancy, not raised during the trial, which casts a different light on the reliability of the complainant’s testimony as a single witness. It is a rather serious discrepancy between the complainant’s statement to the police and his testimony in court.

[22] In the two statements he made to the police sergeant and the head of the prison (Mr Brown) respectively, on 31 July 2010, the complainant made no mention of a sharp object being pressed to his neck by the appellant with a simultaneous threat to kill him, as he did in his testimony in court.

[23] In his police statement the complainant stated that on the night of 28 July 2010, he suddenly awoke (“ek het wakker geskrik”) when the appellant crept into bed with him.  This evidence is also different from his version in court.  The complainant further stated that he asked the appellant what he wanted, whereupon the latter responded that he should keep quiet. When the complainant indicated that he was not prepared to keep quiet, the appellant spoke in a louder voice and threatened him.  The complainant further did not say what the threat was.  He proceeded to describe how the appellant first removed his own sleeping shorts and then the complainant’s.  Thereafter he refers to the commission of the sexual act and the appellant’s instruction to him to take a shower.  

[24] In the penultimate paragraph of his statement, the complainant stated that the appellant had threatened him by saying that he should not tell anyone about what had happened or else he (the appellant) would stab him.  This threat appears to have been made after the rape had already taken place.

[25] The complainant said further in his statement that, although he still feared the appellant, he was unable to keep the incident a secret any longer and that is why he wished to make the statement.  He then referred to his physical discomfort as a result of the incident and mentioned that he had also heard that the appellant was ill, (presumably referring to his HIV status) and said that knowledge caused him concern.

[26] The complainant testified in court on 25 May 2011, almost a year after the incident. One would have expected something as serious as the use of a sharp object, a violent form of coercion to subjugate him, to have featured more prominently in his earlier police statement, yet this important aspect of his version is told only a year later.  This type of evidence, if absent in an earlier police statement, cannot be explained away by mere poor communication between the complainant and the officials who wrote down his statement or by his poor recollection of the facts.

[27] The discrepancy is substantial. In conjunction with the discrepancy in Mr Nelson’s evidence about whether the complainant reported the rape to him or not, held by the magistrate to be “ietwat onaanvaarbaar”, the complainant’s testimony as a single witness is rendered even less reliable. Had the magistrate’s attention been drawn to the discrepancy in the complainant’s evidence by either of the two legal representatives who acted on behalf of the appellant during the trial, he may perhaps have adopted a different approach to the complainant’s testimony.

[28] The discrepancy between his court testimony and his police statement was never raised with the complainant for comment.  In my view, it does not follow that such an oversight should favour the complainant, and not the appellant. The discrepancies dealt with above, suggest that the complainant’s testimony is unreliable, a failing which a single witness’s testimony cannot survive.  The appeal must therefore succeed.

[29] In the event, the following order is made:

[30] The appeal is upheld and the appellant’s conviction and sentence is set aside.

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E REVELAS

JUDGE OF THE HIGH COURT

Hartle J:    I agree.

 

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B HARTLE

JUDGE OF THE HIGH COURT

For the Appellant:               Mr O Mtini

                                                Justice Centre

                                                Grahamstown

 

For the Respondent:           Adv D Els

                                                Director of Public Prosecutions

                                                Grahamstown

 

Date Heard:                         12 March 2014

Date Delivered:                   26 March 2014

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