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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 DIVISION, GRAHAMSTOWN

CASE NO: CA&R170/16

In the matter between

MONWABISI PHILLIP MAHLAHLA                                                      Appellant

versus

THE STATE                                                                                               Respondent

APPEAL JUDGMENT

HARTLE J:

[1] The appellant was convicted in the regional court, Uitenhage, on a count of rape in contravention of section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, No. 32 of 2007.  He was sentenced to eighteen (18) years’ imprisonment.

[2] He appeals, with leave of the trial court, against both conviction and sentence.

[3] The complainant testified (with the assistance of an intermediary and through the medium of CCTV) that she was walking home alone from school on the morning in question (school was disrupted because of a strike) when the appellant followed her, grabbed her and forced her to the ground.  He throttled her, pulled down his pants as well as her jeans and her panties whilst sitting astride of her and set about to penetrate her.  Whether or not he succeeded is the subject of this appeal as will appear further below.  At some stage there was an intervention by two men and the appellant was forcefully removed off the complainant.  Both she and the appellant were taken to a nearby house and the police were summonsed.  She was in tears and angry.  Her mouth was also bleeding.   

[4] One of the men who intervened, M. M., as well as the resident of the house where the appellant and complainant were taken to until the police arrived, Mrs K., were also called to testify.  They broadly confirmed the appellant’s evidence as it related to their involvement and the complainant’s distressed condition. 

[5] M. related that he was obliged to pull the appellant off the complainant.  He had observed that the appellant was strangling the complainant.  It appeared to him that he was forcing himself upon her sexually.  He says so because the appellant was lying atop of her and his pants as well as the complainant’s were down to their respective knees.  One of the other men who had intervened stabbed the appellant to bring him to order.

[6] The appellant’s version is that he came across the complainant in a park and that they had conversed after he noticed that there was something wrong with her.  Her “takkies” were muddy and she looked dirty.    She told him that she had had problems with her boyfriend.  During their conversation, M. arrived with his friends and falsely accused him of raping the complainant.  The latter also stabbed him, according to the appellant for no reason at all.  M. told the complainant to say that he had raped her.   The appellant claims that there was bad blood between him and M. because of problems in the past between them which might explain a fabricated case against him. 

[7] He related, as if to explain away the complainant’s disheveled appearance, that she had fallen to the ground in shock (on which there was loose grass) when she saw M. stab him.  Under cross examination he claimed to know exactly where she lives and that he saw her daily when he passed her home, this in contradiction to his earlier testimony that she was a stranger to him.  He feebly suggested that she had lied about the rape because she had wanted him to get into trouble, but how or why she would do that he did not clarify.

[8] The trial court held that all the state witnesses were impressive witnesses who were not discredited.  The appellant’s evidence on the other hand was rejected as a nonsensical fabrication (“onsinnige versinsel”) which was entirely improbable and obviously false.

[9] There are two aspects of the state’s case which were under challenge in the appeal.

[10] Firstly, it was submitted that in considering the evidence led at the trial, the magistrate failed to have regard to the fact that M. had a potential bias against the appellant, and therefore a possible motive to give false evidence against him, based on the fact that it is common cause that there was a history of animosity between them. 

[11] I am satisfied however that the magistrate was correct to make short shift of M.’s supposed “kwade gevoelens” towards the appellant.  He carefully evaluated both accounts and found the appellant’s lacking in credibility and coming up short on the probabilities.  In my view the plaintive cry by the appellant that M. was the cause of the false complaint against him, because there was bad blood between them, was merely opportunistic.  Although M. had had difficulties with the appellant before, he was forthright enough to admit it and he denied that this was the reason for implicating the appellant.  I find no fault with the magistrate crediting M. as an honest witness, and his testimony as being reliable.

[12] I agree with the state’s submission that if the version of the accused were to have any credible basis, it would mean that M. had to get the co-operation of the complainant (who did not know him at all) in his scheme and that it is highly improbable that she would have been able to repeat his elaborate lie without being exposed.  Further, if on the appellant’s version he was supposedly trying to support the emotionally distraught complainant, it is hardly likely that she would turn on him and falsely implicate him as having raped her for no reason whatsoever.

[13] I agree too that Mrs K.’s objective account, that shortly after the incident the complainant was shocked and tearful, is more consistent with the spontaneous reaction of a person who had indeed experienced an extremely harrowing ordeal rather than that of a person complicit in a false complaint.  The appellant’s version also fails to plausibly explain the presence of grass in the private parts of the complainant, and the peculiar injuries she sustained which were recorded on the J88 medical report.  These aspects to my mind put paid to the notion that the complainant contrived a false complaint of rape against him.  The evidence as a whole supports the complainant’s testimony that she was raped on the basis as narrated by her.

[14] The second aspect concerns a discrepancy, according to the state between the complainant’s oral testimony and her police statement.  It was suggested that her evidence fell short and was rendered unreliable because two aspects disclosed in her oral testimony were left out of her statement to the police, the first being the allegation that her mouth was bleeding as a result of the attack upon her by the appellant, and, the second, that he had instructed her to assist him with the insertion of his penis into her vagina.   The trial court merely noted with regard to the criticism against her concerning these discrepancies that she had herself confirmed that these aspects had not been recorded in her police statement.  In the light of her explanation and attribution of these omissions to the person who deposed her statement, it can hardly be said that there is an actual contradiction.  In addition the statement was not read back to her.  (It was incidentally not even entered into evidence.)  That being the case, the challenge that her credibility has been brought into question thereby loses its force.  In any event the discrepancies were in my view not on material issues.

[15] Upon a review of all the evidence and the nuances of the matter, I am satisfied that the complainant’s evidence was properly assessed by the trial court to be reliable and in conformity with that of Mr. M.’s, Mrs K.’s and the medical report.  I find no basis to interfere with the trial court’s finding, against such an overwhelming case, that the appellant’s version was to be rejected as not being reasonably possibly true.

[16] There is however an aspect arising from the evidence which causes concern.  This pertains to the question whether the state proved beyond reasonable doubt that the complainant was indeed sexually penetrated by the appellant.  In this respect I tend to agree with Mr. Geldenhuys, who appeared for the appellant, that it does not appear upon an assessment of the complainant’s evidence itself even, that the appellant in fact managed to penetrate her.  Her testimony in this regard is that he tried to put his penis into her vagina but “didn’t get it right”.  He also told her to put his penis into her vagina but she “didn’t take it”.  Under cross examination she agreed that he did “not really” manage to penetrate her.

[17] The only other evidence which would have been of assistance in this regard is the medical evidence.  This consisted only of the so-called J88 report admitted into evidence without the benefit of oral testimony by the medical practitioner concerned.  The doctor’s entries confirm as a possibility that no penetration occurred because there was still a presence of a hymen but, on the other hand, it raises the possibility that the presence of erythema of the labia minora was suggestive of introitus, which supports legal penetration.  Still he concluded that there was only “possible attempted penetration”.  The trial court accepted - based on the complainant’s evidence that the appellant’s penis started to go in to her but that she wriggled (“het gewoel”), that there must have been penetration, although not very deep.  

[18] Mr Obermeyer, on behalf of the state, contended that the erythema of the labia minora, because it is situated beyond the entrance to the genitalia, as well as the presence of the grass, which was indicated inside the complainant’s genitalia on the sketch on the J88, constituted adequate evidence that there was penetration beyond the entrance of the genitalia, which is all that is required for a rape conviction to be sustained.  There is no other way that the grass could be at that location, so the argument went, apart from it being inserted during the penetration process.

[19] Whilst this is an attractive proposition, the inference that legal penetration had taken place (without the complainant’s positive testimony that this was the situation) is however not the only reasonable one that can be drawn in all the circumstances, that is that penetration, however slight, had occurred.

[20] It is a pity that the examining doctor did not testify. The Supreme Court of Appeal in S v MM[1] has criticized the general failure in our courts to call the medical practitioner who conducted the medical examination on the complainant, and the tendency for medical reports to be handed in without oral evidence in circumstances where such evidence is necessary for a just determination of the matter.  Wallis JA’s comments, as they appear in an extract from that judgment repeated below, are particularly apposite in the present matter:

“As appears to be an increasing feature of cases such as these, the doctor's report was simply handed in by consent and the doctor was not called to give evidence. That practice is, generally speaking, to be deprecated. It means that there is no opportunity for the doctor to explain the frequently subtle complexities and nuances of the report; to clarify points of uncertainty and to amplify upon its implications and the reasons for any opinions expressed in the report. That may make the difference between a conviction and an acquittal, or perhaps a conviction on a lesser charge. Depending on the areas where there is a lack of clarity, the lack of clarification may either benefit or prejudice an accused. Neither result is desirable. Magistrates and judges who are confronted with these reports, without explanation, do not have the requisite medical knowledge to flesh out their full implications. Unless therefore there can be no confusion, for example, in a case where the fact of rape is admitted and the only issue is one of identification of the perpetrator, it will generally be desirable for the doctor to give evidence in support of his or her report. In this case it was undoubtedly necessary, and the fact that the doctor was not called has rendered the consideration of this appeal far more complicated than it should have been.”

[21] Where in a matter such as this the possibility of penetration lies either way, it was even more essential that the doctor’s expertise be drawn on the confusion.  The reason why he did not testify is not justified in the record at all.  Absent his valuable evidence, and since the uncertainty remains, it is clear in my view that the benefit of the doubt in this regard should redound to the appellant.  I accept Mr. Geldenhuy’s submission that there is a lack of reliable and conclusive evidence that penetration indeed occurred. The evidence however justifies a finding on the competent verdict of attempted rape.

[22] In all the circumstances the conviction of rape falls to be set aside and substituted with a conviction for attempted rape only.

[23] Concerning the question of sentence, this aspect must obviously be revisited in the light of the default conviction.  Despite the personal circumstances outlined by Mr. Geldenhuys, the following aggravating factors bear repeating:

23.1   the appellant followed the complainant with the purpose of raping her, which suggests that the offence was premeditated;

23.2   in the process he strangled her and threatened to assault her with a stone to get her to submit to him;

23.3   the fact that a full penetration was not successful is not attributable to him, but rather to the complainant fighting him off and to the intervention of Mr. M. and the person accompanying him, who fortunately happened to be on the scene and were able to come to her assistance.  (Had they not arrived when they did and had it not been for their intervention the appellant might eventually have succeeded in overpowering the complainant penetrating her fully or hurting her some more.)

The lack of any further genital or physical injuries should therefore not be seen as a mitigating factor;

23.4   The appellant’s arrogance was reflected not only in the fact that he chased away the first person who came on the scene and asked him what he was doing to the complainant, but also in the fact that he refused to get off the complainant when faced with a group of men trying to stop him, even on pain of being stabbed to get him to come to his senses;

23.5   he resisted his arrest and had to be physically taken to Mrs. K.’s home to await the arrival of the police to take him into custody;

23.6   he showed no remorse and instead proffered a version which painted him as a “Good Samaritan” and the complainant as a blatant liar.  The magistrate in fact commented that he had done her actual harm (“werklike leed”) by his denial of the rape and rejection of the complainant’s evidence in court “deur so klomp onsin teenoor haar te verkondig”.  Despite the overwhelming case against the appellant, he persisted with his denial even to the probation officer;

23.7   the complainant was significantly traumatized by the incident, regard being had to the report of the social worker who prepared the pre-sentence report; and

23.8   offences of this nature, constituting violent sexual offences are rife and the community expects severe sentences to be imposed.

[24] When regard is had to all the relevant circumstances I consider a sentence of nine (9) years’ imprisonment to be appropriate in all the circumstances.

[25] In the result:

1.           The appeal succeeds to the extent that the conviction of rape is substituted with a conviction of attempted rape;

2.          a sentence of nine (9) years’ imprisonment is imposed in respect of the substituted conviction, backdated to the date of the original conviction.

_________________

B  HARTLE

JUDGE OF THE HIGH COURT

 

I AGREE

 

_________________

P T MAGEZA

ACTING JUDGE OF THE HIGH COURT

 

DATE OF APPEAL                :        29 March 2017

DATE OF JUDGMENT         :        20 May 2017

 

Appearances:

 

For the appellant :                   Mr. Geldenhuys, Justice Centre, Grahamstown.

For the first respondent:         Mr. Obermeyer, National Director of Public Prosecutions.

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