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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

HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

(1)           NOT REPORTABLE

(2)           NOT OF INTEREST TO OTHER JUDGES

(3)           REVISED

 

CASE NO: A 247/16

1/12/2017

In the matter between:

 

N.I. MAPONE                                                                                                                    Appellant

 

and

 

THE STATE                                                                                                                      Respondent

 

JUDGMENT

1.          This is an appeal against the conviction of the appellant on 22 October 2015 in the Regional Court held at Benoni on one count of kidnapping and one count of rape and his sentences of life imprisonment in respect of the rape charge and two years imprisonment in respect of the kidnapping charge. The appellant was also declared unfit to possess a firearm.

2.          The relevant facts and circumstances are briefly the following. The complainant testified that at approximately 06:15 on 1 June 2015 she was on her way to find transport to work. The appellant, who had been her boyfriend, phoned her on her cell phone. She did not take his calls and eventually he joined her while she was still on her way. She said that he took her by the hand and told her to go with him to his residence. He suggested one route and she another. She said that he then slapped her and told her not to talk while he is talking. On the way an unknown person appeared but she said nothing to this person. She said that the appellant forced her to go with him and told her that he would give her money to go to work. They walked for between one to one and a half kilometres to the appellant's house. The complainant testified that when they arrived she told him that she did not want to enter his home and that he then pulled her jersey and threw her on the ground and kicked her in the stomach and slapped her. She said that she thought that the appellant was going to kill her. At that point another person whom she knew was walking past but she said nothing to him. The complainant testified that the appellant then took her into the house and closed the door with a sliding bolt.

3.         Inside the house he took her into his room and slapped her in the face which caused bleeding on the inside of her lip. He then undressed her and had intercourse with her without her consent. When he had finished somebody knocked on the door and she answered by asking who it was. The appellant told her to tell the person that he was not there and had left the previous day. She knew this person whose name was D. She told  D that the appellant wasn't there and had left the previous day.

4.          The complainant testified that the appellant was playing with her cell phone and telephoned P, who had been her boyfriend for the past week or slightly longer. The call did not go through to P. According to the complainant the appellant then had sexual intercourse with her again without her permission. He also licked her on her private parts.

5.         When he was finished the appellant took her phone and while he was checking it P phoned. The appellant gave the phone to the complainant and told her that she should tell P that she did not want him any more. She did so and told P that they should end their relationship and that they cannot continue with it any more. P's response was that it was fine and hung up. The appellant then told her to phone P back which she did. He told her that he had heard what she had said and hung up the telephone.

6.         The complainant testified that the appellant then had intercourse with her for the third time without her consent.

7.         Afterwards she went and sat in the kitchen· of the house and was angry at the appellant and did not want to speak to him. Through the window of the kitchen she then saw a person whom she didn't know riding on a bicycle and entering the yard of the house. That person did not come to the house but turned around and spoke to  D who was still in the street outside the house.

8.         She continued sitting in the kitchen and after a while the appellant came in and told her that she should come and sit with him in the bedroom. She did not want to go but he pulled her to his mother's bedroom. She told him that she was bored and wanted her cell phone to listen to music. He gave her the cell phone and she testified that she acted as if she was listening to the music but wanted to send a text message to her aunt. She wrote a message but could not find the number of her aunt. She then sent the message to P. According to her the message read "I am at Nxebo's house and I am dying, please come with the community". Nxebo is the appellant.

9.          As she was lying on the bed she saw P outside the window. She jumped off the bed and went to open the door. She saw P and his friend. According to her the appellant then came and said to her "oh so now you are laying charges against me". She said the appellant then ran away and P's friend said that if he did nothing wrong, why was he running away. She said the appellant stood in the street.

10.        According to the complainant she later told P what had happened inside the house and that she had been raped. At that point they were standing by a car with the appellant standing on the other side.

11.       It is not clear from the complainant's evidence whether the police ever arrived on the scene. At first she said that they did but it later appeared that they did not. Thereafter she went to the MediClinic for an examination and after that she was taken to the police station where her statement was taken.

12.       The complainant also testified that the appellant had slapped her on her back with an open hand but that she did not see it because she was dizzy.

13.       During cross-examination the complainant testified that she and the appellant had been in a relationship since 2012. However, the appellant had a child with another woman but this did not upset her at all.

14.       The complainant admitted to having laid criminal charges of assault against the appellant in March 2014 but denied that the charges were false and she denied that it was she who assaulted the appellant after she had found out that the appellant had made another woman pregnant. She admitted that she withdrew the charges against the appellant.

15.       At first the complainant denied that she laid a further charge of possession of stolen property against the appellant but later admitted that she had done so. That apparently happened the previous year during December 2014. She denied that she did so because of the fact that the appellant had made the other woman pregnant.

16.        Regarding her evidence that the appellant dragged her along by her wrist for quite a distance on the day in question, she said that she had bruises on her wrists. She could not explain why the nursing sister who examined her after the event and who had also testified, did not make mention of any such bruises. She also said that she informed the nursing sister about the kick on the stomach which were sore and tender but could not explain why the nursing sister had failed to mention this in her report.

17.       Regarding the door which she opened for P the complainant stated that it was the kitchen door which she had opened.

18.       When asked why she did not scream out or did anything when  D knocked on the door, the complainant said that he was the appellant's friend and could not help her. Regarding the other persons which they had passed she said that she did nothing because they did not notice her because they were on their way to work. Later she said that she did not call out because when she spoke the appellant had hit her.

19.        On questions as to why she did not escape through the kitchen door she said that the appellant was going to give chase to her "because the kitchen door makes a noise when you open it".

20.        It was put to the complainant that when she arrived at the appellant’s home, she took her cell phone and called her aunt. The complainant denied this. It was then put to her that she told her aunt that she was not going to work on that day but would come to her later on so that she, the aunt, could assist her in speaking to her supervisor. The complainant then changed her version and admitted that she had spoken to her aunt and had told her that she was going to come to her. She did not want to tell her aunt that she was at the appellant's house and that he was assaulting her because her aunt is paralysed and there was nothing that she could do. When again confronted with the appellant's version, the complainant admitted that she had called her aunt to say that she would come to her so that her aunt could speak to the complainant's supervisor. She made this telephone call from the bedroom after the appellant had raped her and while the appellant was still in bed. She said that the appellant gave her her celI phone when she indicated that she wanted to phone her aunt so that the aunt could speak to her manager. She also testified that the appellant wanted to speak to her manager but that she did not want him to do so.

21.        From the complainant's evidence it appears that this phone call might have happened soon after they arrived at the appellant's house and before she was undressed.

22.        The complainant denied that their sexual intercourse was consensual and also denied that they were relaxed and watching movies on the TV. At first she said that there was no TV in the house but when pressed on the issue she then admitted that there was a TV but said that it was not on.

23.        It was put to the complainant that while they were in the house there was a knock on the door and the male person said that he knew that she was there and that the complainant then jumped off the bed. The complainant admitted this and said that the person was P. She then denied that he had asked for her when knocking. She admitted that when there was a knock on the door she jumped off the bed and that the appellant had asked who it was. It was put to her that she then started dressing hurriedly but did not put on her panty or her bra which she stuck into her handbag. At first the complainant said that she was already dressed when P knocked on the door but then admitted that she did put her bra in her handbag. Later she again said that she had been completely dressed.

24.       It was put to the complainant that after the door been opened by her P asked her what she was doing there and told her that he had phoned many times and that she did not answer and that he told her that he thought that she had broken up with "this guy". It took the complainant a long time to answer the question but eventually admitted that P did ask her what she was doing there and she added that she then told him that the appellant had hijacked her. She said that she couldn't remember whether P had told her that he had phoned her many times. The complainant also admitted that while they were at the house her aunt telephoned to speak to the appellant and that she had taken the phone to the appellant to speak to her aunt.

25.         The appellant admitted that the police did not arrive at the appellant's residence.

26.         The next witness on behalf of the prosecution was Mr P M ("P"). He testified that on Monday 1 June 2015 he received a number of text messages from the complainant saying that she did not want him any more. He then received a telephone call during which she also said the same thing to him her. Late in the afternoon he received a text message from her to her uncle which was delivered to his phone. It stated that the uncle must come to the complainant's house with the community and that the appellant was kidnapping her.

27.       P then testified that he phoned Mr A M ("A") who was a teacher and a community leader. He drove with his vehicle to pick up A. On the way he contacted a police vehicle. P himself was a constable in the South African Police Services. On their arrival at the house of the appellant A knocked on the door and the appellant came outside followed by the complainant. According to him the complainant then told him that the appellant had injured her and had had sexual intercourse with her forcefully. A wanted to go into the house to talk about the matter but the appellant refused and went out of the yard and stood in the street. He said that the appellant ran away. He also testified that the police arrived at the scene. During cross-examination he changed his version and admitted that the appellant did not run away but remained in the street and was still in the street when he and A and the complainant left in their vehicle.

28.       During cross-examination A denied that he ever telephoned the complainant on that day.

29.       A also testified. According to him P told him that there "is a lady who was kidnapped and locked in a shack". P did not tell him who the person was or anything else regarding the matter. P also did not tell him that the woman was being killed or that she had sent such a message. In fact he could not remember that P ever told him that he had received a text message from the woman. He testified that on their arrival the complainant opened the door and emerged from the house. He said that the complainant was crying and that she and the appellant was wrestling with the door. According to him P was standing approximately 6 m away from him when he was at the door with the complainant and the appellant. He said that when he asked what the problem was and whether they could go inside and sit down to talk about the matter the complainant said that the appellant had grabbed her forcefully while she was on the way to work. He said that the appellant then walked away from the house and later on started to run.

30.       The version of the appellant was that on 1 June 2015 he and the complainant was still in a relationship. On that morning she came to his house while he was still sleeping. It was around 07:00 in the morning. After entering the house she went to the other rooms and informed the appellant that someone had told her that he was with the mother of his child. She thought that she would find the other woman with him if she came early to hi house. He then told her that there was no one and she decided to spend the day with him. He went back to the bedroom and got into bed and she came in and sat on the bed and took a cell phone and telephoned her aunt and told her that she was not going to work that day and whether her aunt could speak to her supervisor on her behalf. She then hung up and put the telephone into her bag and took off her clothes and with only her panties on got into bed with him. They then talked about the difficulties they had in their relationship because her family did not accept him although his family was happy with the relationship. They decided that they must come up with a plan for them to be together. They then became intimate and had intercourse.

31.       Afterwards they made something for themselves to eat and then watched a movie on the television. While doing so it there was an aggressive knock on the door and the complainant wanted to know who it was. The appellant then asked the person who he was and the person responded by saying that he was looking for the complainant and that he knows that she was there and that they should open the door. The appellant testified that the complainant immediately got off the bed and started to dress. He said that she was in such a hurry that she did not put on her bra nor her panties. She put her bra in her handbag.

32.       The appellant testified that he asked the complainant who the person at the door was and she told him that it was P. He asked her who this P was and she said that they would speak about it later. He then went to open the door because the person was banging so hard he thought that he might damage the door. As he was approaching the door the complainant stopped him and said it was better for her to open the door because that person would injure him. When she opened the door P was pushing the door from the outside and in this process she was hurt by the door hitting her on her lip.

33.       The appellant testified that after she had opened the door the complainant apologised and said to P that she was sorry. He asked her what she wanted there because she had told him that she had broken up with the appellant. All this occurred inside the house. He testified that after P had left the house A asked him what was going on between himself and the complainant and that he informed A that they were in a love relationship and had been so since 2012.

34.       At that point the complainant handed over her telephone to him telling him that her aunt wanted to speak to him. He told the aunt what was happening and gave back the phone to the complainant. Thereafter the complainant, P and A got into their car and left. According to the appellant the police never came to his home on that day.

35.       Me, Zoliswa Mapome, the sister of the appellant, also testified. She confirmed the relationship between the appellant and the complainant and said that at the time they were still in a relationship. She testified that the complainant was very jealous of the woman with whom the appellant had had a child.

36.       An accused person may be convicted on the evidence of a single witness but only if such evidence is satisfactory in all material respects. In the present matter I do not find the evidence of the complainant to be satisfactory in all material respects. I also find that there were so many discrepancies between the evidence of the complainant and the other state witnesses that serious doubt arises as to the credibility and reliability of the evidence of the state witnesses. With reference to the probabilities of the case the evidence of the complainant fell far short. Many aspects of her evidence were highly improbable and this has the result of placing a large question mark over her evidence. I shall refer to a few aspects in this regard.

37.        The evidence of the complainant that she was forcibly dragged by her wrists for more than a kilometre and that she had bruise marks on her wrists is questionable. The nursing sister who examined her reported no marks on her wrists and according to her report the complainant also did not inform her thereof.

38.        The complainant also testified that she was kicked in the stomach and that it was sore and tender. Again the nursing sister did not report anything of this nature and more importantly that she was informed of this injury by the complainant. These two issues raise a question mark as to the credibility of the complainant in respect of the alleged kidnapping and the assaults allegedly perpetrated upon her.

39.        A further aspect of great concern in the evidence of the complainant is the fact that after allegedly having been seriously assaulted by the appellant and forcefully kidnapped by him, and while she was fearing that he was going to kill her, she did not utter a word on at least two occasions when they passed bystanders. Her explanation that they were on the way to work, has a hollow ring to it. If she had been assaulted and was fearing for her life one would have expected her to at least try to get some form of assistance from anybody who was around.

40.        The same questions arises from the fact that she failed to call on the assistance of  D and later of the the person on the bicycle . Her explanations do not account for the fact that, according to herself, she had been seriously attacked and raped and was still fearing for her life at that stage.

41.        It would be recalled that at one stage the appellant was in his room and she was in the kitchen. She could very easily have attracted the attention of both  D and the person on the bicycle, yet she did not do so. But even more importantly, she herself could have escaped through the kitchen door which was not locked. Her explanation that she did not do so because the door was making a noise and that would have attracted the attention of the appellant, is not an acceptable explanation, especially coming from a person who was still fearing for her life. It is even more improbable having regard to the fact that there were at least two other persons right outside the house who could have protected her from the appellant.

42.        In the same vein the telephone call by the complainant to her aunt may be mentioned. The reason offered why she did not inform the aunt of her predicament was that the aunt was bedridden and could do nothing. This answer is hardly an acceptable excuse. The aunt may have been immobile but she had a telephone with her which she could use to call for assistance.

43.        The first call to the aunt should also be mentioned. I have mentioned that it appeared that this call, which the complainant reluctantly admitted to during cross­ examination, appears to have been made soon after she arrived at the appellant's house and before she had been undressed. The fact that she would at that point try to make arrangements to tell her supervisor that she would not be coming in for work is, in the light of her version, highly suspicious.

44.         In this regard another issue must be frowned upon. Regarding the alleged text message to P the complainant testified that she did not send it to the aunt because she could not find the aunt's telephone number. However, she had earlier telephoned her aunt when she wanted her to phone her supervisor. She thus had the telephone number of her aunt and her explanation why she sent a text to P has to be frowned upon.

45.        Regarding the text message itself it must have been clear to the prosecution that proof of this text message could be very important corroboration of the evidence of the complainant. The text message was not obtained and the transcript thereof was not presented in evidence. This failure creates serious doubt as to the veracity of the version relating to this text message and whether such a text message as testified to by the complainant, was ever sent to anybody.

46.       With reference to the probabilities further doubt is raised regarding this alleged text message. If such a text message had been sent to P, who was a police officer and the boyfriend of the complainant, he would, on the probabilities, have rushed to the scene and broken open the door in order to save the life of the complainant. Yet he did not do so. He went to pick up a community leader and on their arrival he remained behind while the community leader, A, knocked on the door and asked whether they could come in and discuss the problem. He did not try to arrest the appellant and it seems that he left it to A to do most of the talking. Furthermore, it appears from the evidence of A that P probably did not even inform him of the text message and also did not inform him that the life of the complainant was under threat. He only informed A that the woman was being held against her will.

47.         Furthermore, the complainant and P and A did not wait for the police to arrive. The version that the appellant fled the scene into the bushes was clearly untrue as it appeared during cross-examination that he remained present at his home when the three of them left by car and, more over, that they did so before the police arrived. If the complainant had really sent the text message to P indicating that her life was in danger and if they had thought that he had really raped her, there is no reason why they would not have remained at the scene and waited for the police and to assist with the arrest of the appellant. The appellant was only arrested more than a month later.

48.         Regarding the events inside the house many aspects detract from the truthfulness of the complainant's version. The fact that she was alone in the kitchen and did not even attempt to flee, has already been mentioned. So has her failure to call for help from the people on the outside of the house. Instead one finds that she goes back to the bedroom with the appellant where they both lie on the bed listening to music on their cell phones. They may even have watched a movie on the TV. In this regard I have mentioned that the complainant first lied about a television set being in the house.

49.         Of great importance is the evidence that the complainant dressed very quickly when P and A arrived and that she had even put her bra in her handbag. This means that she must have been rather surprised at the arrival of P and this is not compatible with her evidence that she had sent a text message to him. It is more probable that during her earlier messages to P and her telephone call to him he had realised that she was at the home of her ex-boyfriend and that he had gone there to confront her and her ex-boyfriend, the appellant. But what is more, if the complainant had not been dressed by the time that P and A arrived, that would mean that she had walked around in the house naked or half naked long after the alleged rape of which he testified. Again this does not tie in with the version of the complainant.

50.        I also find P's first response to the complainant quite strange. He asked her what she was doing there. This is hardly the response one would have expected if the evidence was true that she had informed him that she had been kidnapped and was being held against her will and had sent a text message in that regard.

51.        I have already referred to conflicting accounts by the complainant, P and A. Different versions were given as to what happened when P and A arrived at the house of the appellant. The complainant and P also differed as to when she told him that she had been raped. Their evidence as to the movements of the appellant after the arrival of P and A also differed. These and the other contradictions in the evidence of the State witnesses cannot be ignored and in my view the Magistrate erred in finding that these contradictions did not diminish or destroy the credibility of these witnesses. In my view the Magistrate also erred in finding that the complainant's evidence was consistent in respect of all material aspects and that her evidence was corroborated by the evidence of P and A.

52.        Having regard to all the evidence of the witnesses on behalf of the prosecution and the probabilities, inter alia, mentioned above, it cannot be found that the State has proven the case against the appellant beyond a reasonable doubt and that his version was not reasonably possibly true. I have already mentioned that the appellant's evidence contained no contradictions and was not inherently improbable. In fact, his version accorded with the probabilities and there is no reason why his evidence should not be regarded as truthful and reliable. I consequently find that the Magistrate erred in finding that his evidence should be rejected as not reasonably possibly true.

53.       Consequently I find that the appeal against the appellant's conviction in respect of both counts should succeed and that his conviction and sentence should be set aside.

54.        In the result the following order is made:

1.  The appeal succeeds and the conviction and sentence of the appellant are set aside and replaced with the following order:

"The accused is found not guilty in respect of both counts and is discharged."

 

 

 

 

C.P. RABIE

JUDGE OF THE HIGH COURT

 

 

I agree:

 

 

 

 

J. HATTINGH

ACTING JUDGE OF THE HIGH COURT

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