IN THE HIGH COURT OF SOUTH AFRICA
TRANSVAAL PROVINCIAL DIVISION
DELMAS CIRCUIT COURT
 Case No.  SH843/06
       Registrar Ref. No.  CC 17/08
Date:25/06/2008

THE STATE

versus

HECTOR THABO (PETERSON) SITHOLE...............................................Accused

JUDGMENT

[1]	The accused, Hector Thabo (Peterson) Sithole, was charged in the Regional Court, Benoni with offences of kidnapping (count 1) and of raping (count 2) a certain female person (“the complainant”), on the 30th October 2006.  The accused was legally represented with the assistance of the Legal Aid Board.  On 14 February 2007, the accused pleaded not guilty to both counts.  In explanation of his plea he alleged that the complainant accompanied him voluntarily to his place of residence in Barcelona where they had consensual intercourse.  On 10 April 2007, the regional court magistrate found the accused guilty as charged on both counts of kidnapping and rape.

[2]	The learned regional magistrate concluded that the evidence has established that ‘…the complainant was raped that night on two occasions by the accused and at least once by Mabuso Ngidi.’  She accordingly found that the rape is an offence referred to in Part I of Schedule 2 to the Criminal Law and Procedure Act, No. 105 of 1997 (“the Act”) for which the prescribed minimum sentence in terms of section 51(1) of the Act is imprisonment for life.  Upon conviction the proceedings were stopped and the accused committed for sentence by a High Court.  It is to be noted that the charge of rape that was put to the accused at the commencement of the proceedings in the regional court referred to section 51(2) of the Act and not to section 51(1).  The conclusion that I have reached in this matter makes it unnecessary to consider this issue any further.

[3]	Once I had considered the record of the proceedings and heard argument on the issue of the accused’s conviction of kidnapping and rape from counsel for the State, adv Sibaru, and for the accused, adv van der Westhuizen, I concluded that doubt exists whether the evidence established the accused’s guilt beyond reasonable doubt, and I accordingly required from the learned regional magistrate a statement as contemplated in section 52(3)(b) of the Act, and particularly for her ‘…to deal with the issue whether the conviction was not based on evidence of doubtful quantum.’  The reply received from the learned regional magistrate did not allay the concerns I had or took the matter any further.

[4]	I could not confirm the accused’s conviction of kidnapping and rape, and such was accordingly set aside on 18 June 2008.  I indicated to the parties that my reasons will be furnished in due course.  I also pointed out to the accused that the State would be at liberty in future to recharge him on the same set of facts should it elect to do so.

[5]	The following statement by Yekiso J in S v M 2008 (1) SACR 84 (CPD), at p 86 e – g, is, in my view, equally apposite to this matter:
‘Finally, may I point out that conviction of an offence referred to in Part I of Schedule 2 to the Criminal Law Amendment Act has a potential to attract a heavy punishment, particularly in the light of the seriousness of the offence referred to in the aforementioned Schedule.  Judicial officers ought to be vigilant in the assessment and the evaluation of evidence to eliminate a risk of conviction on the basis of evidence of doubtful quantum.  The complainants in matters of this nature, unfortunately, happen to be the most vulnerable members of our society.  But I have said it in the past, and I am saying it once again, the vulnerability of this section of our society should not be allowed to be a substitute for proof beyond reasonable doubt or to cloud the threshold requirement of proof beyond reasonable doubt.  Judicial officers ought to and are expected to evaluate evidence properly and objectively as a whole and against all probabilities in order to arrive at a just and fair conclusion.  Anything falling short of this test is nothing other than miscarriage of justice.’ 

[6]	The State led the evidence of the complainant, of Ms Nklanka Sibiya, who is a friend and relative of the complainant, of Ms Andele Skosana, who is a friend of the complainant, of Mr Mandla Sitwell Sibatha, who resided with the accused at the time in question, and of Ms Annelien Prinsloo, who is a registered nurse and who examined the complainant on the day after the alleged rape.  The State then closed its case.  The accused testified in his defence, whereafter he too closed his case.   

[7]	The complainant, who was 18 years old at the time, testified that on Monday, 30 October 2006, while she was in the company of her friend and relative, Sibiya, waiting for a taxi at a Caltex garage in Twatwa, the accused and his friend, Mabuso Ngidi, approached them.  The accused introduced himself and asked the complainant for her name.  She indicated that she did not wish the accused to ‘propose love to her’ whereupon the accused became angry and abusive towards her.  He insulted her and he wanted to hit her.  Ngidi then grabbed her by the hand;  he pushed her aside;  he inter alia told her to go with the accused and that the accused would kill her if she did not go with him; and he showed her his firearm.  During this time the accused was talking to Sibiya whereafter he joined Ngidi and the complainant.  While the accused was asking her what she intended to do, a golf motor vehicle emerged.  The accused grabbed her by the wrist and she walked with him across the street to the vehicle.  The complainant did not resist, because she was too scared since the accused told her that he was going to hit her and that ‘…the people from the Caltex garage will not do anything to him…’  She refused to get into the vehicle, but the accused inter alia told her that nobody will assist her, ‘…people know him’,  ‘…even the police officer there…’ is his friend, they drink liquor with him, he sells clothes to them, and, even if he was arrested, he would later be released by them since they were his friends.  The complainant got into the golf motor vehicle with the accused, and he told the driver that she was his girlfriend.

[8]	They were taken to a house in Barcelona where the accused said he stays.  They first sat for a while.  The accused said to her that he would wash her and gave her some of the clothes to wear that he was selling.  He told her that they were going to have intercourse whether she wanted to or not, because from then on she was his girlfriend.  He took off her trousers and also his own clothes.  She did not resist since he threatened to kill her.  They had intercourse and the accused used a condom.  The accused then left saying he was going to buy drugs.  In the meantime, while the accused was busy having intercourse with the complainant, Ngidi arrived.  When the accused left, Ngidi also had intercourse with the complainant without her consent.  He too used a condom.  The accused returned.  Two young boys and another male also arrived.  They used the drugs, whereafter the accused and Ngidi fell asleep.  The complainant went outside to the public telephones where she telephoned Sibiya.  While she was busy talking, the accused and Ngidi arrived.  Ngidi pulled her and they took her back to the accused’s residence.  Ngidi then left to buy food for them to eat.  The accused raped her again while Ngidi was away.  Upon his return, they ate.  She was cold and the accused gave her a tracksuit top to put on, which she retained.  He also offered her a pair of ‘tekkies’, which she refused.  The accused and Ngidi continued to use drugs.  Another man who also resided at that house arrived, and she was introduced to him as the accused’s girl friend.   He left.  The accused and Ngidi fell asleep and the complainant got an opportunity to get away.

[9]	The complainant went to Sibiya, who resided with their grandmother.  She told her about the rape.  The complainant and Sibiya then went to a friend, Daisy.  They accompanied the complainant to the police station where she laid a charge and gave a statement.  They also accompanied the police to the accused’s residence, but no one was present.  The next day the police took the complainant to a doctor.

[10]	Sibiya testified that the complainant is her sister’s daughter.  She also testified about the events at the Caltex garage on the morning in question, about the telephone call received from the complainant, about the complainant arriving at their grandmother’s home at about 10 pm on the evening in question where Sibiya was staying, and about Sibiya accompanying her to the police.

[11]	Skosana testified that the complainant told her the next day at school that she was raped by the accused.  She also confirmed that the complainant did not visit her on the night of the alleged rape.

[12]	Sibatha (Jojo) testified that on the day in question he saw the accused, Ngidi, and the complainant arriving together at the shack where he and the accused resided.  Sibatha then left to go and eat at his aunt’s house.  Upon his return, he found the complainant and Ngidi present and seated on a sofa.  Ngidi told him that the accused had gone to the shops.  When the accused returned from the shops, all three of them left.

[13]	Sister Prinsloo examined the complainant the day after the alleged rape.  The complainant was not suffering from ‘acute distress.’   Sister Prinsloo also did not find any evidence of sexual assault.  She concluded that the ‘…absence of injury however cannot exclude the possibility that forceful penetration could have occurred.’   

[14]	The accused testified in his defence.  His evidence in chief was simply to confirm the version which his legal representative had put to the State witnesses.  The accused’s version that was put to the complainant was that the accused was dealing in clothing and casual shoes; he knew the complainant; she was a client of his;  the complainant previously enquired from him about ‘Carvella’ shoes;  when they met at the Caltex garage at about 10 am on the morning in question – the accused in the company of Ngidi and the complainant in the company of Sibiya – she again enquired from him about the shoes;  he confirmed that he had them in stock and he invited the complainant to have a look at them;  she agreed and they proceeded to walk to his house leaving Sibiya and Ngidi behind;  on the way to his house the accused stopped a friend of his, Jabu, in a red golf motor vehicle and they were given a lift to the accused’s house in Barcelona;  at his house they were sitting and talking for a considerable while when he showed her the shoes and clothing;  when he ‘proposed love’ to her, she told him that she knew him from Soweto since her friend from school, Skosana, was the accused’s ex-girlfriend;  it was just past 6 pm when he asked her to sleep with him;  she agreed;  they had consensual intercourse;  he used a condom;  when the complainant wanted to go home she told him that she was cold and he gave her a tracksuit top;  he also gave her Nike ‘tekkies’ since he knew she liked Nike products;  at about 7 pm he walked her home;  when they passed Skosana’s home on the way, she wanted to say hello to her friend but he suggested that it was not a good idea since Skosana would become upset;  she nevertheless went inside Skosana’s house while he waited outside for a few minutes;  they thereafter continued walking to the complainant’s home;  and he left when he was satisfied that she was inside her home.  The accused was hardly cross-examined.  
                    
[15]	The learned regional magistratereferred to the correct approach to be followed in the assessment of the evidence [see:  S v Van der Meyden 1999 (1) SACR 447 (WLD), at p 448 f–i:  S v Chabalala 2003 (1) SACR 134 (SCA), at pp 139 – 140, para [15]], but, in assessing the evidence, failed to take various aspects into account, or some of them sufficiently and within the context of all the evidence into account, which aspects cumulatively and within the context of all the evidence cast reasonable doubt on the guilt of the accused.  Examples are:      
(a)	Sibiya did not see any firearm on Ngidi, and he did not show a firearm to Sibiya when he was making threats.  This, in the context of all the evidence, casts doubt on the complainant’s version regarding the threat that Ngidi had made to her.
(b)	Sibiya did nothing when she saw what was happening to her friend and relative at the Caltex garage.  Her reasons for not having done anything or for not having told anybody what was happening to the complainant are not plausible.  She first testified that she did not know what to do.  In reply to a question from the learned regional magistrate why she did not go to the police, she said:  ‘They threatened us.’  In reply to a suggestion from the prosecutor why she did not tell her grandmother, she replied:  ‘I did not go back home immediately…’   But the fact remains that she did go home later during the day.  Sibiya also testified that she went to her friend Daisy.  In reply to a question why she did not tell Daisy, she said:  ‘I was confused and scared.’  Under cross-examination she said that she considered going home and to tell what had happened, ‘but I thought that they will ask me a lot of questions.’  Then she said:  ‘My grandmother would have wanted us to go to the police station and at the police station they would have asked us a lot of questions.’   Viewed in isolation, her actions could be described as mere ‘…stupidity of not raising the alarm’ as was found by the learned regional magistrate, but, when they are assessed within the context of other evidence, such as the complainant’s own failure to raise alarm throughout the day, the telephone conversation between the complainant and Sibatha later on during the day, and the evidence of Sibatha, her actions of not raising alarm and her very unsatisfactory evidence for not having done so raise doubt as to the guilt of the accused.
(c)	The complainant alleged that she did not scream, shout or call for help when she was taken aside by Ngidi, because he ‘was gentle when he spoke to her.’   But, on her version, the accused had already been aggressive towards her, she was told to go with him otherwise she would be killed, and Ngidi was the one who showed her the firearm.
(d)	It was the complainant’s version that she never screamed or called for help since she was threatened that she would be killed.  However, when asked by the learned regional magistrate about the time when Ngidi entered the house while the accused was allegedly raping her for the first time, she replied:  ‘Well, when he entered Your Worship, this girl makes noise Your Worship, …’
(e)	It was the evidence of both the complainant and Sibiya that when the complainant telephoned Sibiya, she furnished her with directions how to get to the accused’s house.  The fact that nothing was mentioned about the rape and Sibiya was directed how to get to the accused’s house from which the complainant, on her version, just escaped, casts doubt on the guilt of the accused.  
(f)	Sibiya formed the view that ‘..maybe she is safe…’ after she had spoken to the complainant telephonically.  She did not suggest that the complainant sounded distressed or traumatized at that time.  Sibiya testified that the complainant was ‘scared’ when she arrived at her grandmother’s home on the evening in question where Sibiya stayed.  One would have expected her to have been distressed and traumatized.
(g)	The state witness Sibatha testified that ‘everything looked okay’ when he saw the complainant with the accused and with Ngidi on the day in question.  The three of them ‘…just walked out freely…’ when they left.
(h)	It transpired under cross-examination of the complainant that she indeed had a school friend, Skosana, and that she was the accused’s ex-girlfriend.  The complainant testified that the accused was the one who told her about Skosana when he wanted to give her the ‘tekkies’ and that is when she realised that he knew Skosana as well.  Skosana testified that when the complainant told her that she was raped and gave a description of the person who raped her, she told the complainant that she knew him and that he used to be her boyfriend.  One would have expected the complainant rather to have mentioned to Skosana that the accused claimed to have been Skosana’s ex-boyfriend.  Skosana also testified that she and the accused broke up their relationship during June – July 2006, and that there was ‘bad blood’ between them.  This was not long before the incident and her evidence should accordingly have been approached with caution.  The evidence relating to the accused’s ex-girlfriend supports the accused’s version to some extent.  
(i)	There were also contradictions between the version of the complainant and that of Sibiya, such as whether or not Ngidi drove off with the accused and the complainant in the golf motor vehicle from the Caltex garage.  	
(j)	The little cross-examination of the accused that there was, was unfair and based on a misapprehension of his version that was put to the complainant, namely that she, according to the accused, was a customer of him since before the day in question, and that on the day in question she agreed to his ‘love’ proposal.  It was never suggested by the accused that the day in question was the first time he had met the complainant.  But, by way of example, he was cross-examined as follows:
Prosecutor:	‘And you end up being in with a charge with rape?  Not a good track record for being a lover Sir?  Hê!’
Accused:	‘That means this lady – it was not our first time to meet Your Worship,  … [intervenes].’
Prosecutor:	‘Well,  then make up your mind!  Was it now your first time to meet her that day or was it not?  Because you just now told the court that it was your first time to meet her?  Make up your mind!  It is going to be a trying day hey?’
Accused:	‘I am a businessman who is selling clothes Your Worship, and concerning the relationship – the love relationship or the love issues – it was the first time on the day of the incident that I do that.  I met her at some stages Your Worship.’
The learned regional magistrate put the following to the accused earlier on during his cross-examination:
Court:	‘But it is your first meeting in your life … [intervenes].’
Accused:	‘No … [intervenes].’
(k)	The fact is that the accused’s version was rejected by the learned regional magistrate without his credibility as a witness and the reliability of his version having been tested.  It is a wrong approach to reject an accused’s version because the State witnesses are believed.  
(l)	Such untruths and improbabilities as there were in the accused’s version do not in themselves establish the guilt of an accused [see:  S v Steynberg 1983 (3) SA 140 (A);  S v Mtsweni 1985 (1) SA 590 (A);  S v Shackell 2001 (2) SACR 185 (SCA)].
(m)	The State case was not so overwhelming to render the accused’s version not reasonably possibly true [see:  S v Van Eck en ‘n Ander 1996 (1) SA 469 (SCA) at p 145 D – E).

[19]	I was unable tfind that the evidence as a whole established the guilt of the accused beyond a reasonable doubt.  The proceedings were accordingly, in my opinion, not in accordance with justice and the conviction of the accused was set aside.  	

								
P.A.  MEYER
JUDGE OF THE HIGH COURT

25 June 2008