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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

                                                                               NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE, GRAHAMSTOWN

                                                                                              Case no: CA&R: 241/2013

                                                                                                               Date heard: 23.4.2014

                                                                                                        Date delivered: 18.9.2014

In the matter between:

THEMBELANI JACOBS                                                                                             Appellant

vs

THE STATE                                                                                                            Respondent

CRIMINAL APPEAL JUDGMENT

TSHIKI  J:

[1] The appellant herein, who was [……….] years old when he committed the offence, was convicted by the Aliwal North Regional Court Magistrate of an offence of rape in contravention of section 3 read with sections 1, 56(1), 57,58,59, 60 and 61 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007.  Having been granted leave by the trial Court, appellant has now appealed to this Court against his conviction.

[2] During the trial the appellant’s defence was that of consent to the sexual intercourse with the complainant.  It is common cause that the rape occurred in the home of the appellant on or about the 9th June 2012 in Jamestown Floukraal.

[3] The main ground of appeal is that the trial Court erred by not finding that the State failed to prove lack of consent by the appellant.  Therefore, the sexual intercourse between the appellant and the complainant was consensual.  In the alternative,  and should it be found that the complainant did not consent to the intercourse, this Court should find that the appellant lacked the element of mens rea as he thought that the appellant had consented to sexual intercourse.

[4] This, therefore, means that this Court has to evaluate the evidence of the various witnesses who testified during the trial with a view to establish whether or not the trial Court was correct in its finding that in the Court a quo the State proved its case beyond a reasonable doubt.

[5] Another interesting issue in this appeal is the effect of the State counsel’s sudden resilience from his earlier stance of supporting the conviction.  He had earlier filed heads of argument supporting the conviction, however, during the argument of the appeal he informed the Court that he was no longer supporting the conviction.  My interest though is the effect of the State counsel’s submissions in not supporting the conviction.  I have not been able to find any decided case or authority on this point.

[6] Except for what transpired at the home of the appellant when the latter was with the complainant alone which was the period when the sexual intercourse occurred, most of the facts of this case are common cause.

[7] During the argument of the appeal Mr D.P. Geldenhuys appeared for the appellant and Mr D. Els represented the State.

[8] The evidence of the witnesses can briefly be described as follows.  The first witness, the complainant L. M. told the Court that she knows the appellant and has had a love affair with him which ended some time before the rape occurred.  She is now in love with one B. with whom they were cohabiting in B.’s place of residence.  On the 9^th June 2011, appellant arrived when she was at B.’s place sitting around the fire.  The appellant was in the company of one T..  At some stage the complainant was pulled by T. an act she did not take kindly of.  Complainant then went to B.’s place and B. is her current boyfriend.  Appellant came to the complainant and demanded his shoes which the complainant was wearing.  She gave him his shoes.  These shoes were used by the complainant when the two were still in a relationship.  Appellant then left and complainant proceeded to B.’s home.  At some stage, complainant was again confronted by the appellant who demanded that complainant should go home with him.  When she resisted, appellant assaulted her with open hands and with fists.  Appellant forced the complainant to go with her to his place of residence.  They had to cross a river where she was assisted by T. in crossing the river.  As a result of the assault by the appellant, she was injured and was bleeding from her mouth.  Appellant forced her to go with him to his home where he raped her.  The complainant also refuted the allegation that she had discussed about her pregnancy with the appellant on the date in issue.  According to the complainant she was never pregnant by the appellant and that this issue was initiated by complainant’s grandmother on a certain day saying “the reason that the accused was assaulting you was maybe he (the accused) had impregnated you.”  In any event, this issue was ruled by the trial Court as irrelevant and therefore inadmissible.

[9] At some stage before proceeding to the appellant’s home, the appellant and the complainant went to T.’s sister one L. whose full name is T. B..  T. B. is also related to the appellant and is his maternal aunt’s child.  Her evidence is that on the 9^th June 2011 at night appellant, (referred to in the record as M.) T. and L. came to her home.  She asked the complainant what she wanted there because she has a boyfriend with whom she is cohabiting.  Complainant’s response was that the appellant had taken her away by force from the place where she found her.  The witness then turned to the appellant and asked whether he knew what he was doing was rape.  Appellant’s response was that she cannot ask that from him.  Appellant then told his companions that they should all leave the place and they left.  Asked about what she knows about the relationship between appellant and the complainant, when it was still existing, she told the Court that it was a stormy relationship characterized by assaults by appellant on the complainant.  On the following morning she met the complainant who reported to her that she had been raped by the appellant.  T. then organized her employer to call the police and it is how the appellant was arrested.  T. testified further that she did not see any injuries on the person of the complainant.  I must say that this would be strange because the complainant’s injuries and how they were inflicted were confirmed not only by the other witnesses but also by the doctor who examined her.  Those witnesses testified that those injuries were caused by the appellant when he was assaulting the complainant.

[10] The evidence of T. M. also confirmed that he knows the appellant, the complainant as well as B..  On the 9^th June 2011 at B.’s place appellant appeared after B. had conversed with the complainant.  Appellant grabbed the complainant by her hand and talked with her.  He could not make out what they were talking about but a quarrel ensued.  Appellant told her to walk with him to the sports field.  He noticed that appellant was assaulting her and that the quarrel was about an abortion.  Thereafter, they proceeded to T.’s sister’s place who is known as L., (whose full name is T. B.) and from there they left and went to their respective places. T. confirmed that he assisted the complainant by carrying her on his back when they crossed the stream because complainant was scared to cross the river on her own.  The following day he went to check the appellant and the complainant because they fought the previous night.  Appellant was later arrested.

[11] Appellant’s evidence is that he knows the complainant and he had a love relationship with her.  On the date in question he visited a farm in which there was the complainant and other people at B.’s house.  He saw the complainant, called her and grabbed her by her hand.  He asked her about her pregnancy and complainant agreed that she was pregnant with his child.  She told him she intended to abort the child in utero and appellant told her not to do the abortion but she insisted.  This made him upset and assaulted her with open hands and fists.  In my view, there was no justification for this unwarranted assault against the defenseless complainant.  Appellant then decided to take the complainant with him thus terminating her right to choose where she wanted to go to.  Her right to freedom of movement was abruptly and unjustifiably terminated by the appellant.  From that moment she had to be told by the appellant where to go to.  Appellant took her to his home and had sex with her.  In his evidence appellant says he never forced her to have sex with him.  In his evidence appellant did not dispute that during their love relationship he was constantly assaulting the complainant and that she has never reported him to the police for those assaults.  Appellant also conceded that L. (T. B.) warned him about the danger of his ill-treatment of the complainant but in his evidence appellant testified that it came as a surprise that L. warned her about such ill-treatment of the complainant.  Appellant also could not satisfactorily explain why another person (T.) would even assist the complainant in crossing the river if he was in good love relations with the complainant.  This conduct is inconsistent with people who are in a love relationship.

[12] In its evaluation of the evidence the trial Court accepted the evidence of the complainant that she was scared of the appellant.  After the appellant had made up the bed which in a normal love relationship it is usually made by the woman, appellant asked the complainant whether or not she was going to undress herself and get into the bed.  On the stroke of those rather threatening words from the appellant, complainant came and joined the appellant in the bed.  It is clear from this statement by the complainant that the atmosphere was not as pleasant as it would have been for people who are in a love relationship, as the appellant wanted the trial Court to believe.  Even the panties were taken off by the complainant at the appellant’s instance.  Thereafter, appellant had sex with her.

[13] According to the complainant she terminated her love relationship with the appellant for the reason that he was abusive and had ill-treated her by assaulting her frequently.  In my view, it is inconceivable that the appellant’s close relatives could for no apparent reason side with the complainant against their blood relative if what was said against the appellant was not true.  T. B. is the appellant’s aunt a blood relative of the appellant.

[14] On the demeanor of the complainant the trial Court regarded her as an impressive witness.  She answered the questions put to her in a satisfactory manner and that there is corroboration in her sequence of events.  The trial Court conceded though that there is one issue which is her response to the question posed by the appellant’s attorney.  She seemed to have answered in the affirmative when it was intimated to her that she was never forced by the appellant to go along with her.  It seems to me that the witness (complainant) could not have understood the question because she later clarified the misunderstanding by telling the Court that the appellant had forced her to go with him.  Her evidence is corroborated to some extent by that of T..  The trial Court, however, is critical of some portions of T.’s evidence.  His evidence at some stage seeks to make the Court believe that the complainant walked freely with the appellant.  T., however, does not deny that the appellant assaulted the complainant during their encounter on the date in issue.  It is the finding of the trial Court that the appellant was assaulted and forced by the appellant to go to his home.  T.’s evidence is also not criticized by the trial Court except for the fact that she testified not to have seen injuries on the complainant.  Appellant was evasive when he was asked by T. as to why he always assaulted the complainant.  His response was that he should not be asked such questions and that the complainant knew why she was there.  T. was able to explain the reason why he had to carry the complainant on his back.  The reason being that “she was still angry at the accused, they were not talking”. 

[15] On the adequacy of proof in a criminal trial the judgment in S v Van Der Meyden 1999 (1) SACR 447 at 448f-i Nugent J (as he then was) remarked as follows:

“The onus of proof in a criminal case is discharged by the State if the evidence establishes the guilt of the accused beyond reasonable doubt. The corollary is that he is entitled to be acquitted if it is reasonably possible that he might be innocent (see, for example, R v Difford 1937 AD 370 at 373 and 383). These are not separate and independent tests, but the expression of the same test when viewed from opposite perspectives. In order to convict, the evidence must establish the guilt of the accused beyond reasonable doubt, which will be so only if there is at the same time no reasonable possibility that an innocent explanation which has been put forward might be true. The two are inseparable, each being the logical corollary of the other. In whichever form the test is expressed, it must be satisfied upon a consideration of all the evidence. A court does not look at the evidence implicating the accused in isolation in order to determine whether there is proof beyond reasonable doubt, and so too does it not look at the exculpatory evidence in isolation in order to determine whether it is reasonably possible that it might be true … A court does not base its conclusion, whether it be to convict or to acquit, on only part of the evidence. The conclusion which it arrives at must account for all the evidence.”

[16] In the present appeal the trial Court was satisfied, notwithstanding that there was evidence from other witnesses which the trial Court referred to as being biased, that the State had proved its case beyond a reasonable doubt.  The trial Court commented on such evidence and compared it to the other evidence which proves the guilt of the appellant and concluded that on the whole it was satisfied that the State had proved its case.

[17] In this case the trial Court was mindful of the fact that at the time of the rape it was only the appellant and the complainant who were in the bedroom.  However, the trial Court seems to have been satisfied that with respect to the rape the complainant had told the truth and therefore, the appellant’s version could not be true.  This conclusion was arrived at after considering all the evidence and after having evaluated its merits and demerits.  The trial Court has also given its views about the credibility of the various witnesses.

[18] In my view, even the probabilities also support the trial Court’s conclusion.  Firstly, the doctor has found injuries on the person of the complainant an indication that some force was used in assaulting her.  The only obvious reason for the appellant to assault her was to make her succumb to his demands.  This culminated to the forceful penetration of her vagina when they were together in the appellant’s home.  The doctor found that her vagina was tender on examination.  Her clothing was dirty with soil stains.  As the doctor had recorded in the medical report it is clear that the complainant must have told the doctor that the appellant was her former boyfriend.  This is contrary to what the appellant has told the Court that their love affair was still existing at the time of the offence.  In any event, rapes occur even during the love relationship for as long as the other party, usually the female person, has not consented.  In my view, and in the circumstances as described by the complainant and other witnesses, complainant could never have consented to the sexual intercourse with the appellant.

[19] In S v Chabalala 2003 (1) SACR (SCA) 134 at 139 where Hefer AJA on proof in a criminal case held at i-j as follows:

“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.”

[20] A Court of appeal is not entitled to interfere with the trial Court’s findings of fact unless it is apparent from the evidence on record that the trial Court’s evaluation of the evidence of the various witnesses was characterized by a misdirection.  In the absence of such a misdirection the appeal Court has no justification to interfere in the trial Courts evaluation of the evidence and the findings of the trial Court.  An appeal Court’s approach to the findings of fact by a trial Court was crisply summarized in S v Hadebe and Others 1997 (2) SACR 641 (SCA) at 645e-f:  “In short, in the absence of demonstrable and material misdirection by the trial Court, its findings of fact are presumed to be correct, and will only be disregarded if the recorded evidence shows them to be wrong.”  (See also R v Dhlumayo and Another 1948 (2) SA 677 (A) at 705-6).  In my view, there has not been a misdirection by the trial Court in this regard.

[21] Similarly, Courts of Appeal will generally be hesitant to interfere with the credibility findings of a trial Court.  A Court of Appeal, however, will be more comfortable with such an intervention where a finding of fact does not essentially depend on the personal impression made by a witness’s demeanour, but predominantly upon inferences and other facts, and upon probabilities (per Navsa JA in Minister of Safety and Security and Others v Craig and Others NNO 2011 (1) SACR 469 (SCA) at para [58].  Even in this regard, I do not find any justification for interfering with the trial Court’s credibility findings relative to the witnesses who testified at the trial.

[22] Mr Geldenhuys’s submission that the trial Court’s rejection of the appellant’s evidence is not justified is not correct.  Not all the evidence of the appellant has been rejected.  For instance, the application of force by the appellant to the complainant was not rejected by the trial Court.  That evidence has been used by the trial Court as proof that force was applied to the complainant.  She had to succumb to the demands of the appellant throughout the time they were together on that day.   The complainant’s evidence that she was assaulted by the appellant is proved by the evidence of almost all the witnesses who testified to that effect in the trial.  There is no reason for this Court to interfere with the trial Court’s findings in this regard.

[23] This leaves me to deal with the attitude of counsel for the State who refused to support the trial Court’s conviction of the appellant.  I must say though that I am disappointed by the attitude of Mr Els who appeared for the State.  He had prepared well presented heads of argument in support of the conviction of the appellant which he filed for the Court to consider in his argument.  It is not known why he suddenly resiled from the contents of his heads of argument.  He did not even inform the Court even in chambers prior to argument that he was no longer going to argue in support of the conviction.  We were only surprised in Court when he told the Court he was no longer supporting the conviction of the appellant.

[24] In any event, the appeal Court is not bound by the arguments of counsel if it is of the view that the trial Court was correct in its finding whether of fact and or law.  As we have done herein we are of the view that Mr Els change of mind was not in the interests of justice and we reject it.

[25] For the above reasons I do not find any reason to not confirm the conviction of the appellant.  He has not been honest to the trial Court and his explanation was correctly rejected by the trial Court.  He was correctly convicted as charged.

[26] In the result, I make the following order:

[26.1]  The appeal is hereby dismissed and the conviction and sentence are hereby confirmed.

_________________________

P.W. TSHIKI

JUDGE OF THE HIGH COURT

 

Hartle  J:

 

I agree.

 

__________________________

B. HARTLE

JUDGE OF THE HIGH COURT

 

Counsel for the appellant                 :           Adv D.P. Geldenhuys

Instructed by                                    :           Grahamstown Justice Centre

                                                                            GRAHAMSTOWN

 

Counsel for the responden               :           Adv D Els

Instructed by                                     :           The Director of Public Prosecution

                                                                             GRAHAMSTOWN

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