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Zwengu v S (CA345/2014) [2015] ZAECGHC 116 (25 March 2015)

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NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, GRAHAMSTOWN)

Case No: CA 345/2014

In the matter between:                                                         

MBUYISELI ZWENGU                                                                                               Appellant

And

THE STATE                                                                                                            Respondent



Coram:                       Chetty J, Smith J and Malusi AJ

Heard:                        23 March 2015

Delivered:                   25 March 2015

Summary:                   Criminal Law - Appeal - Murder - Evidence - Assessment of Single witness - Trial Court's factual findings - Correctness - Appeal dismissed

JUDGMENT

CHETTY J:-

[1]        This appeal, with leave granted by the trial court, is directed against the appellant's conviction on two (2) counts of rape in contravention of s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act [1] . The victims of these dastardly offences were the appellant's partner (the complainant) and their infantile son (the infant), aged one (1) year and nine (9) months. The medical evidence adduced at the trial conclusively established that the victims had indeed been raped and on appeal before us, counsel for the appellant fairly conceded that the trial court's finding hereanent was unimpeachable. Consequently , the only issue which falls for decision is the correctness of the trial court's finding that the appellant was the perpetrator.

[2]        It is evident from the judgment  that the trial court was conscious of the fact that the evidence implicating the appellant in the commission of the offences rested exclusively  upon  the  testimony  of  the  complainant,  his  live   in  partner.  It  is furthermore apparent , both from the questions directed at the complainant and the appellant during their viva voce testimony , and the judgment itself , that the trial judge recognized that their relationship was an acrimonious one punctuated by repeated assaults perpetrated upon the complainant by the appellant. Given their fractured co­ habitation, the trial court assiduously analysed the evidence to determine whether the  complainant's  incriminatory evidence was  perhaps  not actuated  thereby. In a thorough appraisal and evaluation of the entire body of the testimony tendered, the court concluded  that the complainant was  an honest and reliable witness whose evidence  it  could safely  rely upon. The trial  court was  undoubtedly  correct  in its assessment of the evidence adduced.

[3]        It  is  common  cause  that  both  complainants  were  examined  by  a  district surgeon, Dr Tony Yoginathan Moodley shortly after midday on 22 December 2011. Clinical examination of the infant revealed bruising of the abdomen and back. The district surgeon  recorded that the  injuries were  consistent  with the  application  of blunt force to the body. Clinical examination of the complainant revealed bruising of the  right  thigh, right  arm  and  back  which, he  opined,  was  consistent  with  the application of blunt force. During his viva voce testimony the doctor stated that the blunt force  injuries to the complainant  could have been  inflicted with  a  pick axe handle whilst the blunt force  injury to the infant's hips could have been inflicted by the appellant holding the infant in the manner testified to by the complainant.  The medical evidence corroborates the complainant's testimony hereanent in all material respects and vouchsafes her reliability.

[4]        The trial court had more than sufficient reason to reject the  appellant's testimony . Mrs M’s unchallenged evidence was that the complainant arrived at her home at approximately 12 noon, was sober but highly agitated and incensed at what had befallen her child and immediately pronounced her intention to report the appellant to the police. That tittle of evidence is entirely incompatible with the appellant's testimony that the complainant and the infant had overnighted at Mrs M’s home and had in all probability been raped there. Mrs M’s testimony establishes the falsity of the appellant's evidence that the complainant and the infant were not at the common home when the offences were committed.

[4] It is furthermore inconceivable that, given the heinousness of the crime perpetrated upon the infant, the complainant would have falsely implicated the appellant and shielded the real perpetrator. The trial court's factual findings are in my judgment immutable and the appeal is devoid of all merit. In the result the following order will issue: -

The appeal is dismissed.



________________________

D. CHETTY

 

JUDGE OF THE HIGH COURT



Smith J

 

I agree.

 

_______________________

J. E SMITH

JUDGE OF THE HIGH COURT



Malusi AJ

 

I agree

 

____________________

T. MALUSI

ACTING JUDGE OF THE HIGH COURT


On behalf of the Appellant:                           Adv E. Theron

                                                                               PE Justice Centre

                                                                               North End, Port Elizabeth Tel: (041) 408 2800


On behalf of the State:                                  Adv J. Sesar

                                                                               Director of Public Prosecutions

                                                                               PORT ELIZABETH

                                                                               Tel: (041) 405 1500



[1] Act No, 32 of 2007