South Africa: Kwazulu-Natal High Court, Durban

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

APPEAL NO: A751/2016

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

In the matter between:

DUMISANE NGAMLE                                                                       Appellant

and

THE STATE                                                                                        Respondent

JUDGMENT

PETERSEN AJ:

[1]      This is an appeal against conviction and sentence with leave of the regional magistrate Oberholzer ("the court a quo").

[2]        The appellant, a 31 year old male at the time of the incident was charged with kidnapping (count 1) and a contravention of section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 ("Act 32 of 2007") - Rape (count 2). It is alleged that the appellant on 09 September 2013 at Carletonville unlawfully and intentionally deprived Zanele Mthetho of her freedom of movement by holding her hand and taking her to a veld. At the veld he is alleged to have unlawfully and intentionally committed an act of sexual penetration by sexually penetrating her vagina without her consent.

[3]        The appellant pleaded not guilty, disclosed the basis of his defence as consensual sexual intercourse on 08 September 2013 and was subsequently convicted on both counts. He was sentenced to twelve (12) months' imprisonment on count 1 and 10 (ten) years' imprisonment of which three (3) years' imprisonment was suspended for a period of five years' on condition that he was not convicted of a contravention of section 3 of Act 32 of 2007 (rape) or any attempt thereto, committed during the period of suspension. The sentence on count 1 was further ordered to run concurrently with the sentence on count 2. The appellant was therefore   sentenced to an effective seven (7)

years' imprisonment.

[4]         The appellant appeals the conviction on the following grounds:

1.       that the court a quo failed to apply or duly consider the cautionary rule applicable to a single witness;

2.        disregarded material discrepancies in the State's evidence;

3.        the conviction on the charges of kidnapping and rape constitutes a duplication of convictions.

[5]           Zanele Mthetho, the complainant, was walking home alone from school on the 09 September 2013 at around 14h00pm or 14h30pm followed by the appellant whom she knew by sight and as being in a relationship with a certain Motshidisi whom she knew. The appellant stopped her and after enquiring where she was going suggested they walk together as he was heading in the same direction. They continued walking and stopped near the local police station where he asked her to wait outside as he attended to something at the courthouse. When he returned he suggested the use of a shortcut through a veld behind the police station.

[6]        He stopped at a certain spot in the veld and told her that there was something he wanted to do. As she sat on a rock, he searched himself started touching her thighs and told her that he wanted to engage in sexual intercourse with her. He added that he was no longer in love with the person he was in a relationship with. After asking her to undress herself and her refusal to do so he threatened her with death. When she told him that she did not want to die he pulled or dragged her by the hand some twenty metres from the rock to a ditch in the veld where he tripped her. He forced her to the ground, closed her mouth and when she tried to scream her screams were muffled. As she lay on her back, he got on top of her as she begged him to leave her. He unsuccessfully tried to unbutton her T-shirt and proceeded to remove her school trouser and panty at the same time. He removed his trousers, placed a condom on his penis, inserted his penis in her vagina and engaged in sexual intercourse with her. She unsuccessfully tried to push him away as he lay on top of her. After a while he stood up, she put on her clothing, he put on his clothing and she left.

[7]       The appellant followed her along the route used by school children offering to get her a   baseball   jacket   and   a   tracksuit   which   she   declined.   She   met   two school acquaintances, one whom she knew as Rina. The appellant passed by and she eventually lost sight of him. The girls asked her why she had grass at the back of her head and she explained that the appellant had raped her. She was urged to report the incident at the police station. A taxi emerged which she boarded. She knew the taxi driver, a certain Themba and requested his help after reporting the rape to him. Themba asked for a description of the assailant and suggested that they go in search of him with the taxi. When she pointed out the appellant he ran off, jumped a fence and disappeared.

[8]        Themba dropped her at the police station where she reported the incident and after her father was called and arrived she relayed the story to him as well. A Warrant Officer Oosthuizen arrived and after relaying the story to him he requested her to point out where the incident had occurred. Once she did this he accused her of lying and enquired if she had been to school that day. He eventually took her to a friend Ulwethu who confirmed that she had been to school that day. He still persisted that she was lying and drove her home and left her there. When her father arrived he enquired where she had been and she reported that the police officer did not help her or take her to the Doctor. She asked her father if she could bath herself, he agreed and left. Her father arrived with a neighbour and they left for the police station at 23h00pm. They relayed to a female police officer that the Warrant Officer had not helped them and she advised them to return home as he would come to them. They returned home, the following day she went to school and the police officer still did not arrive.

[9]        Her father told her to report what happened to a teacher which she did. The teacher phoned a certain Warrant Officer Bhuboko who arrived and took her along with him to the police station. The same Warrant Officer was phoned and upon arrival asked why he had done what he did. They left for her home, her father was told that he had brought her. He took a statement from her and was told that she could now go to hospital. She went to Carletonville hospital where she was examined by a doctor.

[10]       According to Fanyana Joseph Selepe, the father of the complainant she reported to him what happened. He observed injuries to her elbows and her emotional state. The only issue taken with his evidence was the report made to him by the complainant that the appellant held her hand after the rape as they walked to the tarred road as a couple would.

[11]       Thabiso Mononyane testified that she met the complainant with the appellant. They were walking close to each other but not holding hands. The complainant's hair was untidy with some soil on it and she appeared frightened as she approached.

[12]        The appellant testified in his defence and called a defence witness, Motshidisi Moloi, his girlfriend. The appellant's evidence is that he knew the complainant as his girlfriend's friend. He disputes that he raped the complainant on the 09 September 2013. According to him he met the complainant on the 08 September 2013 in the street near his home, when she told him that she wanted to smoke dagga. He told her that he did not have dagga in his possession and suggested that they go to his shack to smoke dagga. They smoked dagga in his shack, he suggested that they engage in sexual intercourse and she agreed with one reservation, pointing out that he had a girlfriend. They eventually engaged in sexual intercourse that night and when they were done she insisted that he part ways with his girlfriend. When he pointed out that he had been with his girlfriend for four years she was angered insisting that he was using her and that she would show him what she would do. She thereafter left for home.

[13]         He saw the complainant the following day, when he met her at the gate of the police station and she requested him to buy her a cigarette. He bought the cigarette, lit it and she insisted that they walk behind the police station as she did not want her teachers to see her smoking. As they walked some girls from the area emerged and the complainant said she did not want them to see her walking with him holding hands. She left his hand immediately upon seeing the two girls. He walked past the girls and she joined them.

[14]        Motshidisi Moloi, his former girlfriend, testified that she knew the complainant who was a friend. The complainant in turn knew the appellant as she would see him visiting her home and at other times she would find her at the appellant's home.

[15]        The police officer Warrant Officer Oosthuizen was called as a witness by the court a quo. His evidence did not contribute in any significant way to the just decision of the matter.

[16]       In S v Francis 1991 (1) SACR 198 (A) at 198j-199a it was held that-

"The powers of a court of appeal to interfere with the findings of fact 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 circumstances that the court of appeal will be entitled to interfere with a trial court's evaluation of oral testimony."

[17]         The complainant's evidence called for a cautionary approach as a single witness to the alleged rape with reference to section 208 of Act 51 of 1977. Nothing more and nothing less. The dictum of De Villiers JP in R v Mokoena 1932 OPD 79 at 80, on the approach to the evidence of a single witness which has its origins in the following passage, is often misconstrued:

" Now the uncorroborated evidence of a single competent and credible witness is no doubt declared to be sufficient for a conviction by [the section,] but in my opinion that section should only be relied on where the evidence of a single witness is clear and satisfactory in every material respect (my emphasis). Thus the section ought not to be invoked where, for instance, the witness has an interest or bias adverse to the accused, where he has made a previous inconsistent statement where he contradicts himself in the witness box, where he has been found guilty of an offence involving dishonesty, where he has not had proper opportunities for observation, etc."

[18]          The reference in particular to the evidence being clear and satisfactory in every material respect was clarified by De Villiers JP in R v Nhlapo 1953 (1) PH H11 (A) at para 17 where he said that:

"it does not mean ... that an appeal must succeed if any criticism, however slender of the witness' evidence were well-founded".

In R v Abdoorham 1954 (3) SA 163 (N) at 165E Broome JP criticized the dictum "as a proposition of law", finding it "entirely unhelpful and accepted that a court "may be satisfied that a witness is speaking the truth notwithstanding that he is in some respects an unsatisfactory witness".

[19]       In a line of cases including, amongst others, R v J 1966 (1) SA 88 (SRA) at 89F and 90E-F and S v M 1992 (2) SACR 188 (W) 191A-B, S v J 1966 (1) SA 88 (LA) 89F-H and S v Snyman 1968 (2) SA 582 (A) 585H, the courts have held the view, correctly so, that the cautionary rules are "no more than guides, albeit very valuable guides, which assist the court in deciding whether the Crown has discharged the onus resting upon it", "the exercise of caution should not be allowed to displace the exercise of common sense", that and once a judicial officer has anxiously scrutinized the evidence of a single witness he should not be "swayed by fanciful and unrealistic fears" and that cautionary rules are rules of practice (so called judge-made rules) calling on the adjudicator of fact to warn himself to be cautious when evaluating evidence which experience has shown to require circumspection. In S v Teixeira 1980 (3) SA 755 (A) at 761 the court emphasized that, in evaluating the evidence of a single witness, "a final evaluation can rarely, if ever, be made without considering whether such evidence is consistent with the probabilities".

[20]       The court a quo was mindful of approaching the evidence in its totality. In evaluating the evidence the court correctly found that the only contradiction in the report to the complainant's father was whether the appellant held her hand as they walked to the tarred road as a couple. Save for this contradiction the report of the complainant was found to be consistent. Her father further corroborated her emotional state and the condition of her clothing on the day of the incident. The court a quo further found corroboration for the complainant's emotional state, the condition of her hair and clothing and the fact that an immediate report of rape was made to an independent witness Thabiso, who was not a friend of the complainant. The evidence of the complainant was found to be reliable insofar as it was corroborated by her father and Thabiso and remained consistent in respect of the rape allegation. The court highlighted the improbability of the complainant engaging in sexual intercourse with the appellant, feeling angered by being used by the appellant, and not reporting the alleged rape on 08 September 2013 but waiting until the following day. The court correctly found that absence of injuries was not indicative of consent or whether or not there had been a rape and that at most it was a neutral factor.

[21]     In respect of the defence of consensual sexual intercourse by the appellant, the court highlighted the failure of the appellant to call his mother, a possible alibi witness to confirm that the complainant had been at his home on the 08 September 2013 and drew a negative inference from such failure. The witness Rina was made available to the defence, was not called and any cross examination on her statements was correctly not accorded any consideration. The court raised the improbability of the appellant's version that the complainant had a motive to falsely implicate him because he did not want to leave his girlfriend, begging the question why she would wait until the 09 September 2013 to raise a detailed fabricated story. It should be added that save for the circumstances under which the complainant and appellant came to meet on the 09 September 2013, the common point from which the subsequent sequence of events followed was the police station. After the alleged kidnapping and rape, Thabiso confirmed the encounter with the complainant her emotional state and the immediate report of rape. In addition, when Themba the taxi driver assisted the complainant, the appellant ran away when he was pointed out. The evidence of Motshidis,i the girlfriend   of the appellant was rejected insofar as she claimed that the complainant knew where the appellant resided whilst the complainant had to make enquiries about where he lived to secure his arrest. The court a quo's dim view taken of the evidence of Warrant Officer Oosthuizen and in particular his behavior in disbelieving the complainant and not rendering any significant assistance to her was justified.

[22]    I can find no misdirection with the court a quo's evaluation of the evidence.

[23]      Mr van As for the appellant submitted that the conviction on the two charges constitutes a duplication of convictions. Our courts generally subscribe to two tests in determining whether or not there is a duplication of convictions; the evidence test and the single intent test. The "evidence test" proposes that it is necessary to determine whether the evidence necessary to establish the commission of one offence necessarily involves the commission of another offence. The "single intent test" proposes that if a person commits a number of offences, each one of which could be a separate offence, but if carried out constitutes a continuous transaction with a single intent, then a single offence is committed. There is no infallible formula or test to determine a duplication of convictions and the tests are merely guidelines. In the final analysis a court is to adopt a common sense approach which subscribes to fairness to the community or complainant as represented by the state and fairness to the accused.

[24]      The court a quo found on the complainant's evidence that while she initially walked freely and voluntarily with the appellant, this stopped when the appellant grabbed hold of her hand and took her against her will to the place in the veld at the ditch thereby depriving her of her freedom of movement. It is then that she was raped. The distance was noted as 20 metres after an inspection in loco.

[25]     The definitions of the two offences is a good starting point in considering Mr van As submissions on the duplication argument. Kidnapping is defined in Snyman Criminal Law 5th Edition, as follows:

"Kidnapping consists in unlawfully and intentionally depriving a person of his or her freedom of movement and/or, if such person is under the age of 18 years, the custodians of their control over the child."

The elements of the crime are identified by Snyman as follows:

"(a) the deprivation of (b) a person's freedom of movement (or the parental control in the case of a child) which takes place (c) unlawfully and (cf) intentionally."

[26]     Section 3 of Criminal Law (Sexual Offences and Related Matters) Amendment Act, Act 32 of 2007, provides that: