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FORM A

FILING SHEET FOR EASTERN CAPE HIGH COURT, MTHATHA JUDGMENT

PARTIES: Joseph Sekese

VS

The State

5. Case No: A104/08

5. High Court: EASTERN CAPE HIGH COURT, MTHATHA

DATE HEARD: 15^th May 2009

DATE DELIVERED: 4^th June 2009

JUDGE(S): Nhlangulela J, Petse J (concurring)

LEGAL REPRESENTATIVES –

Appearances:

5. for the Appellant(s): Mr. F. Ntayiya

6. for the Respondent(s): Adv. J. Neveling

Instructing attorneys:

1. Appellant(s): Fikile Ntayiya & Associates

2. Respondent(s): DPP

CASE INFORMATION -

1. Nature of proceedings : Civil- Appeal- Conviction- Rape

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION: MTHATHA) CASE NO: A104/08

In the matter between:-

JOSEPH SEKESE Appellant

And

THE STATE Respondent

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APPEAL JUDGMENT

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NHLANGULELA J:

­­Introduction :

[1] The appellant, an adult male, appeared before the regional court magistrate of Mthatha charged with nine counts as follows : murder of one Nicolas Nyoka, four counts of attempted murder of Captain Pumelele Adolphus Bambeni, Captain Maphelo Mbalane, Captain Mncedi Nkebe

and Inspector Nyaniso Kabalaza, unlawful deprivation of the freedom of one Nomalizo Sekese, unlawful possession of a firearm, unlawful possession of seven live rounds of ammunition and rape of the said Nomalizo Sekese. The offences with which the appellant was charged arose from an incident of 29 November 2000 in Mthatha. Having pleaded not guilty to all the charges and facing a full blown trial the magistrate found the appellant not guilty in respect of murder, attempted murders and unlawful possession of seven live rounds of ammunition. He was found guilty in respect of kidnapping, unlawful possession of a firearm and rape. Pursuant thereto, the magistrate imposed sentences which worked out to 8 years imprisonment effectively. With the necessary leave of the regional court magistrate having been granted, the appellant now appeals to this Court against the conviction for rape only.

[2] The issues for determination in the appeal arise from the grounds of appeal which read as follows :

“ 1. The Learned Magistrate erred in finding that there was

no motivation (sic) for the complainant to falsely accuse the appellant of rape, but still find that there existed as serious marital strife and acrimony at the time between the complainant and the appellant. The court should have found that such marital strife was enough motivation (sic) for the complainant to falsely accused the appellant of rape, especially in the light of the uncontroveted evidence that in the past the same complainant had also falsely accused the appellant of rape and the appellant had been acquitted on such charge.

2. The failure by the State to call Superintendent Nogqala, to whom the rape was allegedly reported by the complainant, should have resulted in a reasonable doubt with regard to the truthfulness of the complainant’s contention.

3. The learned magistrate misdirected himself in finding as a persuasive safeguard to the truthfulness of the complainant’s contention that the complainant had reported the allegedly rape shortly after its occurrence to the witness Nkebe, which contention was allegedly confirmed by Nkebe in evidence. A proper reading of the record shows the magistrate’ s finding on that score to be a misdirection on the evidence in that neither the complainant nor Nkebe ever contended in their evidence that the rape was ever reported to Nkebe by the complainant. This means that the conviction is partly based on alleged evidence which in fact was never given.

4. The learned magistrate erred in holding that the

finding of spermatozoa cells in the complainant’s vaginal fluids by the doctor confirms that the complainant was raped by the Appellant. Another court may find that the presence of the spermatozoa cells in the complainant’s vaginal fluids merely indicates that the Complainant had sexual intercourse with someone on the date in question, not necessarily the appellant. This is especially so in the light of appellant’s spirited denial that the spermatozoa in question were his and his offer to prove that fact beyond any doubt by offering his blood for DNA testing on the basis that it would exclude any possibility of spermatozoa in question being his.

5. The complainant’s contention that she was rescued from the appellant’s vehicle she immediately reported the rape to the witness Bambeni, which contention was not confirmed by Mr Bambeni in his own evidence, should have resulted in the magistrate entertaining a reasonable doubt regarding the veracity of the complainant’s evidence, the benefit of which should have been given to the appellant.

6. The learned magistrate erred in dismissing the appellant’s evidence that it was impossible for him to rape the complainant on the front passenger seat of a 3 series BMW motor vehicle whilst at the same time holding a gun whose barrel had been inserted into the complainant’s mouth. Another court may find such contention by the complainant to be improbable in the extreme.

7. The learned magistrate erred in rejecting out of hand the appellant’s contention that since he was emotionally disturbed on the day in question he was incapable of attaining an erection that would unable him to have sexual intercourse with a female”.

The background facts :

[3] The background facts of this matter appear from the record of the proceedings before the regional court magistrate, Mthatha. The evidence upon which the appellant was found guilty derives mainly from the oral testimony of Mrs Sekese, the complainants in all the attempted murder charges, one Nosibeka Florida Tyumrhe (Tyumrhe) as well as from some documentary evidence.

The evidence for the State :

[4] The complainant in the charges of attempted murder were members of the South African Police Services (the SAPS) attached to the National Intelligence Unit, Mthatha. Mrs Sekese, the complainant in the counts of kidnapping and rape, was at the relevant time of the commission of the offences the wife of the appellant. The complainant was also employed as the Inspector in the South African Police Services, attached to the Public Order Police Unit (POPS), Mthatha. The appellant was himself a policeman who was attached to the Radio Technical Unit of the SAPS, Mthatha. He held the rank of a Sergeant.

[5] The complainant testified that at mid-day of 29 November 2000 she was offered a lift in a police vehicle from the Police College to Mthatha Stadium. From there she got a lift in another vehicle of Sergeant Pinyana to her final destination (being her maiden home) at Zimbane Locality. There she alighted next to the livestock kraal of Mr Vuke’s homestead. As she was walking towards her home she was accosted by the appellant who produced a firearm forcing her to join him in his BMW motor vehicle. Threatened by the appellant that if she resisted the orders given to her she would be killed, the complainant succumbed to the order that she should turn away from her home and proceed to the appellant’s motor vehicle which had been parked at a distance away from the built up area. As she was being pushed at the barrel of a gun towards the place where the BMW was parked she saw Tyumrhe, an adult woman of the locality, and screamed to solicit some assistance from her; but such effort was in vain. Upon reaching the BMW the appellant bundled the complainant into the front passenger seat, locked her up and drove away along the local grave-yard towards Payne Farm. There he joined the N2 Road, in the direction of Butterworth, and drove on until he took an off-ramp to the direction of Qweqwe Locality. He then drove past that locality until he reached Qelana Locality where he stopped the vehicle near the local dam. The complainant recounted the trip to the dam as having been traumatic due to the high speed and reckless manner in which the appellant drove his vehicle. Pressed with urine the appellant prevented the complainant from leaving the vehicle to free herself. He pointed the firearm on the head of the complainant to stop her from opening the door.

[6] Whilst the complainant and the appellant were in the vehicle the appellant accused her of telling various people that he had killed his father, that she was going up and down with male police members in police vehicles and that she had caused him to be detained for two weeks on a false charge that he had raped her. The appellant then declared that he was going to kill the complainant on the basis of these accusations. Further, the appellant opened the hand bag of the complainant and upon discovering a condom out of the contents of the bag he hurled insults that she was a whore who was sleeping around with policemen. At about 6 pm the appellant opened his cellphone and spoke to one Zwai, his lawyer, and invited him to bring money and liquor. Zwai was also asked to bring Lebohang and Lehlonono so that they could hold a meeting near Cicira College. The appellant then drove the vehicle towards Mpeko Locality until it ran out of fuel as it was proceeding on a road near Tshemese Locality. When the invitees arrived they were sent away to fetch some fuel. The appellant then told the complainant that he was going to cut her breasts with the barrel of the gun into six pieces so that a picture thereof could be published in the morning news of the next day. He then forced himself onto her, undressed her shirt, pulled her panties down to the legs and produced his male member which he inserted into her vagina without her consent. As the appellant was having sexual intercourse he kept his firearm into the mouth of the complainant to prevent resistance. After satisfying his sexual lust the appellant put his gun on the forehead of the complainant whilst telling her that he was then going to: “take you now”. She closed her eyes in anticipation of a gunshot that would end her life. The shot was fired, but only to discover that it went through the driver’s window of the vehicle. The appellant then bragged that the gunpowder: “smelled so nice” and that he expected the same smell when a bullet has penetrated the complainant. Shortly thereafter Lehlonono returned in a van with one Nozulu with whom he filled up the fuel into the tank of the BMW. However, the BMW engine still did not start. Feeling that he would have to leave the vehicle on the road the appellant issued further threats that he was going to kill the complainant. He then pointed her with a firearm on the forehead but then withdrew it without firing a shot. He then evacuated the cabin of the vehicle to attend to the vehicle together with his two invitees.

[7] The complainant testified further that after having been left alone in the BMW vehicle she heard a series of gunshots which caused her to take cover below the dashboard. After some time she realised from human voices that there were members of the police present at the scene of shooting. After the shooting had subsided she was rescued from the BMW vehicle and transferred into a police van. It was at the scene of shooting that she reported to Captain Bambeni that she had been sexually abused.

[8] It is common cause that in terms of Exhibit “F”, the J88 medical report, it was medically proved that the vaginal fluids of the complainant were found to be contaminated with male spermatozoa.

[9] The evidence of Tyumrhe and the complainant in the charges relevant to kidnapping and rape was that the appellant took the complainant into his BMW vehicle forcefully in that the appellant was pulling the complainant whilst both of them were proceeding towards the appellant’s vehicle. It was alleged by the complainant and Tyumrhe that the appellant was carrying a firearm at all material times relevant to the alleged commission of kidnapping and rape. The police witnesses also did find the appellant at the scene of shooting carrying a firearm.

The evidence for the defence :

[10] The appellant had the following to say when he testified in chief. He was in company of Mr Nyoka (the deceased) and Wandile during the early hours of 29 November 2000. He drove with them in his BMW vehicle from Mandela Park to his place of work at the Radio Technical Unit to collect post. After collecting post from the office he saw the complainant being in a vehicle of Mr Mntonintshi. He recalled that the complainant had asked him to return a generator, which they had borrowed, to its owner. He was also reminded that the father of the complainant had asked him to pay a visit at Mpeko Locality. He then thought that he should go to the complainant’s maiden home in Zimbane Location to give her the generator and then ask her to accompany him to Mpeko Locality. The appellant then drove to a work-shop to fetch the generator which he received and then loaded it into the boot of the car. He then proceeded to Mandela Park where he picked up two crates of soft drink empties and loaded them into the back seat of the vehicle so that he could in due course buy soft drinks for his spaza shop. At about 1 pm he and his friends then drove to Zimbane Location. On arrival there he parked his vehicle in front of the homestead belonging to another friend of his, alighted from the vehicle and proceeded on foot towards the home of the complainant. He left his friends in the vehicle. After urinating against a tree he saw the complainant being driven in a motor vehicle of Superintendent Nogqala, one of his colleagues at SAPS. He saw the vehicle parking and the complainant alighting with her shoes and handbag in her hands. She walked back to the vehicle in which Superintendent Nogqala was who gave her a kiss through an open window and bade her a goodbye. After the vehicle had pulled away he approached the complainant and persuaded her to go with him to Mpeko Locality. She agreed. They then walked back to the appellant’s vehicle where he found out that his friends had left the vehicle. The appellant stated that he opened the doors of the vehicle using spare keys which were kept in the hand-bag of the complainant. They then drove to Mpeko Locality. On the way Superintendent Nogqala telephoned him and asked about his whereabouts with the complainant. The appellant was upset by the call so much so that he decided to take a rest at Qelani Locality which was enroute to Mpeko Locality. After resting for a while he then resumed the trip to Mpeko Locality but was not able to reach his destination because his vehicle ran out of fuel. He parked it at Tshemese Location. He telephoned Mr Zwai Mnqojane, his legal advisor, to bring petrol for his car. Mr Nyoka and Mr Lehlonono arrived in a van to deliver the fuel. Despite re-fuelling the engine of the BMW vehicle could still not start. As the appellant and his two companions were attending to the vehicle the appellant heard some footsteps next to him which were later on followed by a series of gunfire. As a result Mr Nyoka died of a gunshot. The appellant later found out that the footsteps he heard were those of the police.

[11] The appellant denied that he raped the complainant stating that he could not do so after having seen the complainant and Superintendent Nogqala kissing each other. He further testified that shortly after the complainant had boarded his BMW vehicle he smelt a foul smell which he said was the sort of smell that the complainant would have after sexual intercourse which, to him, was an indication that the complainant had just had sexual intercourse. It is apposite to mention on this score that there was a conflict between the evidence of the complainant and that of the appellant because the complainant also testified that the appellant had indeed made a remark about a foul smell. However, she said, concerning the foul smell, that the appellant made that remark as soon as he returned to the driver’s seat of his motor vehicle after having had sexual intercourse with her despite the fact that she had told him that she was in her menstrual cycle. He criticized the evidence of the complainant who implicated him in the commission of rape on the basis that she was being used by the members of POPS to deflect attention from a suspicion that they were criminally responsible for the murder of the deceased. He also criticized the evidence of the police witnesses on the basis that they had conspired to kill him to avoid being charged for murder and also to conceal the fact that Superintendent Nogqala had a love affair with the complainant. The appellant denied the correctness of the evidence of Tyumrhe that he pulled and grabbed the complainant all the way to the BMW vehicle on the basis that Tyumrhe had poor eye sight to have been able to observe anything. He also impugned the evidence of Tyumrhe on the basis that she showed biasness owing to the fact that she was related to the complainant. He also denied that the spermatozoa which were found by the doctor in the vaginal fluids of the complainant were excreted from his body. In short, the edifice of the appellant’s case was that all the State witnesses had in fact conspired against him and falsely implicate him in crimes that he had never committed.

The main reasons for judgment in the court a quo :

[12] The reasons for judgment show that when evaluating the evidence the learned magistrate had regard to the “total body of the evidence” as was enjoined to do so by judicial authority. See for example the following cases: R v Mlambo 1957 (4) SA 727 (A), S v Glegg 1973 (1) SA 34 (A). He also took into account the caveat that : “The criteria of proof beyond a reasonable doubt does not mean proof beyond all shadow of doubt” (cf S v Van Aswegen 2001 (2) SACR 97 (SCA) and R v Mlambo, supra). Finally, the learned magistrate found that the State had discharged the burden of proof resting on it, hence the appellant’s conviction for rape as charged. There are many other reasons for the judgment of the magistrate which do not necessitate citing at this stage. Not only did the magistrate convict the appellant for rape but also for kidnapping and possession of a firearm without a licence. It remains now to be determined if the appeal based on the grounds as identified in the notice of appeal can succeed. That should necessarily bring us to the submissions that were made by the legal representatives of the parties who appeared before this Court.

The legal submissions :

[13] As I understand the main submissions by Mr Ntayiya, the attorney who appeared on behalf of the appellant, the conviction for rape falls to be set aside because the magistrate failed to appreciate that as the complainant had been involved in a marital strife and acrimonious relationship with the appellant and laid a false charge of rape against him previously, the evidence of the complainant had to be treated with caution. Mr Ntayiya, submitted further that the absence of confirmation of the evidence of the complainant that she gave a report of rape immediately after the event to Captain Bambeni and Superintendent Nogqala should have led to a finding that the allegation of rape was not proved beyond reasonable doubt. He contended further that the failure by the State to prove by DNA test results that the spermatozoa that were found in the vaginal fluids of the complainant belonged to the appellant should have resulted in the acquittal of the appellant.

[14] Ms Neveling, counsel for the State, submitted that the conviction of the accused for rape was correct because the State had succeeded to discharge the onus of proof beyond reasonable doubt based on the entire evidence. According to counsel, an approach to the evidence in terms of which this Court will concentrate on the factual issues of spermatozoa and the report of rape, without regard to the entire evidence that was adduced at the trial, including the apellant’s version of the conspiracy theory which was rejected by the magistrate, would be at variance with the proper approach that a court should adopt in evaluating evidence presented before it to determine the innocence or guilt of an accused. She urged the Court to confirm the correctness of the approach of the magistrate because it was in compliance with the said approach. She submitted further that some of the grounds of appeal, as incorporated in the notice of appeal were, not correct to the extent that the magistrate did not make the findings that there was no marital strife between the appellant and the complainant; the complainant reported the rape to Superintendent Nogqala and Captain Nkebe; and that the doctor’s finding of presence of spermatozoa in the complainant’s vaginal fluids was proof that those spermatozoa belonged to the appellant. Finally, Ms Neveling, submitted that the appeal was flawed in that this Court is being asked on behalf of the appellant to find that the evidence on which the appellant was convicted for kidnapping and unlawful possession of a firearm was acceptable whilst, at the same time, it must find that the same evidence which also formed the basis for the rape conviction, should be held to be unacceptable.

The determination of the issues on appeal :

[15] The grounds upon which the appeal is based relate to factual findings made by a trial court which this Court should, as a point of departure, accept as correct unless it is persuaded such findings are not supportable on the evidence. This approach to the evaluation of the findings of fact on appeal and reasons for it was stated appositely by Smallberger JA in S v Francis 1991 (1) SACR 198 (A) at 204 c – e in the following terms :

“ The powers of a Court of appeal to interfere with the findings of facts of a trial Court are limited. In the absence of any misdirection the trial Court’s conclusion, including its acceptance of a witness’ evidence, is presumed to be correct. In order to succeed on appeal, the appellant must therefore convince the Court of appeal on adequate grounds that the trial Court was wrong in accepting the witness’ evidence – a reasonable doubt will not suffice to justify interference with its findings. Bearing in mind the advantage which a trial Court has of seeing, hearing and appraising a witness, it is only in exceptional cases that the Court of appeal will be entitled to interfere with a trial Court’s evaluation of oral testimony.”

[16] The submission on behalf of the State that some of the findings which are contained in the notice of appeal were not made by the magistrate compels an immediate response. It is provided in s 309B (3)(a) of the Criminal Procedure Act 51 of 1977 that every application for leave to appeal must set forth clearly and specifically the grounds upon which the accused desires to appeal. A fortiori the appellant was obliged to bring an appeal on the grounds which are based on factual findings as actually made by the magistrate. Where it is found that the grounds were formulated on incorrect findings such grounds should be treated as invalid; with the result that the appellant would be non-suited for the appeal. In this regard see the case of S v Burchell 1996 (1) SACR 488 (W). In the present case, it is stated in the notice of appeal that the magistrate erred in finding that there was no marital strife and acrimony between the complainant and the appellant; that the magistrate erred in finding that the complainant made a report of rape to Superintendent Nogqala and Captain Nkebe; and that the magistrate found that the spermatozoa which were found in the vagina of the complainant were those of the appellant. As correctly submitted on behalf of the State no such findings were actually made by the magistrate. Therefore, no appeal turns on the grounds relevant to such purported findings because they are invalid. Consequently, the grounds which appear in paragraphs 1, 2, 3 and 4 of the notice of appeal should be disregarded for the purposes of this appeal. In short, it follows that to the extent that the appellant sought to assail the judgment of the trial court on the basis of factual findings supposedly made by the trial court, which in fact are not borne out by the record, the case sought to be made by the appellant on the supposed grounds of misdirection is rendered stillborn.

[17] Ms Neveling’s submission that the proper approach to the process of evaluating evidence was adopted by the magistrate is correct. The appellant was convicted in respect of the charges of kidnapping, unlawful possession of a firearm and rape. However, the appeal was noted against the conviction for rape only. The appellant’s approach to this Court is somewhat preposterous because the evidence on which he was convicted for kidnapping and unlawful possession of a firearm is the same evidence that supported the conviction for rape. As correctly contended on behalf of the State, the evidence should be looked at as a chain. Although the complainant was raped during the middle of the night the acts of the appellant which constituted the crimes of kidnapping and unlawful possession of a firearm were contributory to the crime of rape. The acts of the appellant involved the taking of the complainant from Zimbane Location during midday, deprivating her of liberty by keeping her in the BMW vehicle until she was rescued by the police after midnight. The kidnapping and raping were achieved through the use of, inter alia, a firearm. These contributory acts are not just disjointed pieces of evidence that are unrelated to each other. They are component parts of a body of evidence which defines a series of crimes including rape. I find that the case of S v Hadebe And Others 1997 (2) SACR 641 (SCA) is applicable in this case. In that case Marais JA stated at page 645h – 646b as follows :

“ In assessing whether or not such is the case [whether or not the findings of fact made by the trial court were wrong] the approach which commended itself in Moshephi and Others v R (1980 – 1984) LAC 57 at 59F-H seems appropriate in the particular circumstances of the matter:

‘ The question for determination is whether, in the light of the all evidence adduced at the trial, the guilt of the appellants was established beyond reasonable doubt. The breaking down of a body of evidence into its component parts is obviously a useful aid to a proper understanding and evaluation of it. But, in doing so, one must guard against a tendency to focus too intently upon the separate and individual parts of what is, after all, a mosaic of proof. Doubts about one aspect of the evidence led in a trial may arise when that aspect is viewed in isolation. Those doubts may be set at rest when it is evaluated again together with all the other available evidence. That is not to say that a broad and indulgent approach is appropriate when evaluating evidence. Far from it. There is no substitute for a detailed and critical, examination of each and every component in a body of evidence. But, once that has been done, it is necessary to step back a pace and consider the mosaic as a whole. If that is not done, one may fail to see the wood for the trees.’” (The brackets are mine).

Also see: S v Radebe 1991 (2) SACR 166 (T) at 167i -168h and S v Van der Meyden 1999 (1) SACR 447 (W) at 450a-b.

Applying the above dictum to the case at hand, I find that the appellant was ill advised to note an appeal against the conviction for rape only.

[18] In so far as the grounds which are set out in paragraphs 6 and 7 of the notice of appeal, which address the issue of probability findings, it is propitious that a pronouncement should be made on them. Contained in these paragraphs is the complaint that the magistrate erred in rejecting the appellant’s evidence that it was impossible for him to rape the complainant whilst being on the front passenger seat and a barrel of a gun inserted into her mouth. It was also contended that the magistrate should have taken into account that the appellant was emotionally disturbed during the time of the alleged rape so much so that he was incapable of attaining an erection that would enable him to have sexual intercourse with a female.

These grounds prompt an investigation into the finding made by the magistrate that the evidence of the appellant was not reasonably possibly true. The magistrate is shown by the record to have given due weight to the version which was proffered by the appellant that the charge of rape was fabricated by the complainant in an attempt to obscure her adulterous relationship with Superintendent Nogqala. The magistrate also considered the version of the appellant that the charge was the product of a conspiracy which was hatched between the members of the police who had testified in support of the charges of the attempted murder. He then came to the conclusion that the versions were not inherently probable. The demeanor of the appellant in the witness box was also found to be unsatisfactory. I find no fault in the manner in which the magistrate treated the evidence of the appellant as well as the conclusion he reached that the appellant’s version of events should be rejected. I have also observed from the record that the magistrate did not merely conclude that since the story of the appellant was rejected, therefore, he was guilty of the crime of rape; the approach that was disapproved of by the then Appellant Division in S v Mtsweni 1985 (1) SA 590 (A). Instead, the magistrate went further to consider the evidence of the complainant. I gained the impression from the reasons for judgment of the magistrate that he was alive to the principle of law that the proper test for assessing the credibility of a witness in the position of the complainant was not whether she was truthful or indeed reliable in all that she said but whether on a balance of probabilities the essential features of the story which she told are true. See : Santam Bpk v Biddulph 2004 (5) SA 586 (SCA) at 592B – C and Mlifi v Klingenberg [1998] 3 All SA 636 (LCC); 1999 (2) SA 674 (LCC). Having found that the version of events as narrated by the complainant was plausible he then proceeded to convict the appellant. The magistrate was not obliged to deal exclusively with the alleged issues of far-fetched possibilities regarding the movement of the parties in the vehicle, emotional disturbance of the appellant and his incapacity to attain an erection. Whilst those probabilities appear to be true when looked at in isolation from the body of evidence their complexion changed immediately upon being weighed in the context of the entire evidence. Consequently, the appeal cannot succeed on the grounds as set out in paragraphs 6 and 7 of the notice of appeal.

[19] The argument that the evidence of the complainant, as a single witness and a complainant in a rape case, is not trustworthy is also not supported by the evidence. It is true that the allegation by the complainant that she reported the rape to Captain Bambeni was not confirmed by Captain Bambeni when he testified. In the past the courts were enjoined to apply the rule of caution that in cases involving complainants in rape case their evidence should be accepted if corroborated by other evidence implicating the accused in the commission of such an offence. Since the decisions in S v Jackson 1998 (1) (SCA) 470 (A) and S v M 1999 (2) SACR 548 (SCA) and the promulgation of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, the rigid application of the cautionary rule in sexual assault cases has been abolished. The reason for its abolishment is stated eloquently by Zeffert et al in The South African Law of Evidence, 5^th Edition at page 806 to be that the cautionary rule had been based on an irrational and outdated perception, which unjustly stereotyped complainants in sexual cases as particularly unreliable. However, in the light of the circumstances of this case the evidence of the complainant did require some corroboration in material respects implicating the appellant in the commission of rape. The finding made by the magistrate that the complainant was involved in a marital strife and acrimonious relationship with the appellant at the time of the commission of rape compelled the magistrate, as he did, to approach the evidence of the complainant with caution. See : S v Van der Ross 2002 (2) SACR 362 (C).

Mr Ntayiya contended that the failure of Captain Bambeni to confirm the evidence of the complainant that she gave him a report that she had been raped by the appellant immediately after the incident of shooting raised a doubt that the complainant was raped. There is a problem with this contention because that statement of the complainant was not placed in issue by the legal representative of the appellant during the trial. This issue was not canvassed either in chief or under cross-examination when Captain Bambeni testified. In the circumstances, the magistrate was correct in treating the evidence of the complainant as common cause. In that event there was no need to doubt the credibility of the complainant. Ms Neveling’s contention is that the evidence of the complainant was corroborated by the convictions of the appellant for kidnapping and unlawful possession of a firearm. She urged this Court to take a broad view of the evidence which confirmed that the magistrate did caution himself and ultimately found that the evidence of the complainant was reliable. I am in agreement with counsel for the State that the appellant was convicted on the basis of clear and satisfactory evidence of a single witness; the complainant. Consequently, the ground of appeal in paragraph 1 of the notice of appeal must also fail.

Conclusion :

[20] On the basis of the foregoing reasons, it is my judgment that the appellant was correctly convicted of the rape count.

The order :

[21] In the result, the appeal is dismisssed.

______________________________

Z.M. NHLANGULELA

JUDGE OF THE HIGH COURT

I agree : Petse ADJP

__________________________

X.M. PETSE

JUDGE OF THE HIGH COURT

Date heard : 15 MAY 2009

Date delivered : 04 JUNE 2009

Counsel for the appellant : Mr F. Ntayiya

c/o Fikile Ntayiya & Associates

No. 50 Madeira Street, Mthatha.

Counsel for the respondent : Adv. J. Neveling

Instructed by : The Director of Public Prosecutions

NPA House

Fortgale, Mthatha.

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