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IN THE HIGH COURT OF SOUTH AFRICA

(Northern Cape High Court, Kimberley)

Case Nr: K/S 37/1998

Case Heard: 31/05/2010

Date delivered: 25/06/2010

In the matter between:

Timotheus Moses APPELLANT

and

The State RESPONDENT

Coram: Kgomo JP et Williams J et Olivier J

JUDGMENT

Olivier J:

1. After careful consideration of the judgment of Kgomo JP I am, with respect, unable to agree with it. Insofar as any fact already mentioned in that judgment may be repeated in what follows, it is unavoidable in the particular context and essential for the purposes of coherence and the scheme of this judgment.

2. The appellant appeared in the Kalahari Local Circuit Division of the High Court in Kathu as one of six accused. They were charged with having broken into the house of the complainant with the intent to rape her (count 1), with having then raped the complainant in the house (count 2), and also with having sodomised the complainant’s husband (count 3) and having stolen meat, washing powder and flour (count 4) in the house. In addition the appellant, his brother accused 2 and accused 4 were charged (count 5) with having then again raped the complainant¹.

3. Accused 4 and 6 admitted having raped the complainant in the house, but pleaded not guilty to all other counts. All the other accused (including the appellant) pleaded not guilty to all counts, and the appellant and accused 2 raised alibi defences.

4. Only accused 2 was convicted on count 1 and count 5. All the accused (including the appellant, but excluding accused 3, who had been discharged at the close of the State’s case) were convicted on count 2 and count 4. On count 3 they were all convicted of assault.

5. The appellant and accused 5 were granted leave (on petition) to appeal against their convictions on count 2 (the rape inside the house). There was no appearance for accused 5 at the hearing of the appeal and no heads of argument had been filed on his behalf. His appeal was therefore struck from the roll.

6. In argument it was conceded that the appellant’s evidence and alibi defence had been correctly rejected and that he had indeed been present in the house of the complainant at the time of the events that had allegedly taken place there.

7. For the purposes of the appeal the question is therefore whether the trial court erred in finding that the appellant had been one of the persons who had raped the complainant in the house.

8. The following evidence is not in dispute for the purposes of the appeal:

1. During the evening of these events the appellant had been in the company of accused 2, 4, 5 and 6 before they went to the complainant’s house.

2. Accused 2 opened the door and they all entered. The complainant was raped in the house, on all probabilities more than once.

3. The complainant’s husband was then raped per anum by one of the intruders, and both the complainant and her husband were assaulted. Accused 2 threatened the complainant with a toy firearm.

4. The house was plundered and the items mentioned in count 4 stolen.

5. The complainant was then forced from the house by the group of men, but along the way to the scene of the alleged second rape some of the persons split from the group and went their own ways.

6. The complainant was then again raped. The attacker/s fled when Mr Hendrik Kitchen, who lived in a nearby house, threw stones at them.

7. The next morning the police arrived at a house where they found accused 2 and the appellant. When the police arrested accused 2, the appellant told them that he had been with accused 2 all the time.

9. The complainant’s husband was not able to make a contribution as regards the rape in the house.

10. The evidence of two young boys, Jacob Sammores and Ricardo Olivier, was also presented. Sammores testified that he had at some stage entered the house (but only as far as a light switch, where he turned the light on and off) and observed accused 2 having sexual intercourse with the complainant. Other than this both Sammores and Olivier had on their versions been outside the house.

11. Apart from the evidence of Sammores regarding what he had observed in the house, which evidence implicated only accused 2 directly as far as the rape in the house is concerned, the complainant was therefore for all practical purposes (and in any event in respect of the appellant) a single witness as far as that rape was concerned.

12. The complainant’s evidence in chief was that six persons had entered the house and had raped her, taking turns. She furthermore testified that, apart from the light that had at some stage been switched on and off, the room had been pitch dark.

13. In cross-examination, however, the complainant crucially conceded that she could not exclude the possibility that one of the men in the house may not have raped her.

14. When the trial judge questioned her on whether she had been raped by all the persons who had entered the house, she was no longer willing to commit herself to her initial version. When it was put to her that according to one of the accused some of the intruders had not raped her, she clearly avoided the issue of how many of them had indeed raped her, and instead simply answered: “Hulle was 6 in die huis”².

15. Furthermore the complainant’s evidence in chief was clearly irreconcilable with that of Sammores, according to whom accused 2 had twice raped the complainant in the house. The complainant’s version in chief left no room for one of the intruders having raped her more than once in the house. In fairness it must be said that, although the trial Court had accepted the evidence of Sammores, his evidence on this aspect was in my view far from satisfactory.

16. The trial judge made further findings which are in my view significant as regards the reliability (if not the credibility) of the complainant’s evidence:

1. It was found that the complainant was confused.

2. It was found that, although the complainant’s evidence had not been sufficient for the purposes of implicating any of the accused on the rape in the house, the complainant’s evidence had been corroborated, as regard’s accused 2, by the evidence of a police officer regarding the clothing of accused 2 and the toy firearm that had been found in his position.

3. On the basis of the evidence of Sammores that only five persons had entered the house, it was found that the complainant’s evidence that six persons had entered and had raped her, had been wrong.

4. Reference was made to the fact that the complainant had not in her statement to the police mentioned the names of any of the attackers, while her evidence had been that she had known accused 2 and 3, and had recognised them. Her initial explanation was that she had been confused and had not mentioned their names to the police. At a later stage she alleged that she had indeed mentioned their names to the police.

5. Lastly reference was also made to the complainant’s conflicting versions as regards at what stage she had seen and recognised the faces of accused 2 and 3.

17. It is against this background that it has to be considered whether, in the absence of any direct evidence that the appellant had raped the complainant, the available evidence would justify the inference, as the only reasonable inference and to the exclusion of all other inferences, that the appellant had raped the complainant in the house³.

18. The fact that the appellant’s evidence and his alibi had been rejected, with respect correctly so, would mean that there was then in effect no evidence by him⁴.

19. Although it may also to a certain extent strengthen the existing evidence against the appellant, it could not elevate evidence which would not otherwise have been prima facie evidence, to such status⁵.

20. As regards Kgomo JP’s reference to S v Nkomo⁶ the principles laid down there (and in the other cases referred to in this regard) are trite but cannot, to my mind, justify the appellant’s conviction in this matter. It was there held that, on the particular facts of that case, the absence of an explanation by that appellant confirmed or strengthened an inference which would in any event on the existing evidence have been justified (at least prima facie), viz that that appellant had not only been involved in the housebreaking, but also in the murder.

21. I am of the view that, in the present matter, the existing evidence alone would not in itself (and independent of the appellant’s false evidence and resulting failure to furnish an exculpatory explanation as regards the rape) have justified the inference that the appellant had not only committed theft in the house, but also rape.

22. It should be kept in mind that:

“While an accused person’s failure to testify may in appropriate circumstances be a factor in deciding whether his guilt has been proved beyond all reasonable doubt, this is only so where the State has prima facie discharged the onus upon it. A failure to testify will not remedy a deficiency in the State case such as the absence of apparently credible implication of the accused ...”⁷ (My emphasis)

23. Exactly the same principle would apply where an accused has given false evidence. The mere fact of untruthfulness would not justify an inference, beyond reasonable doubt, of guilt. The question would remain whether the fact of untruthfulness and the resulting absence of an exculpatory explanation, together with other credible evidence already prima facie incriminating the accused, would justify the inference of guilt beyond reasonable doubt⁸.

24. There was prima facie evidence of the presence of the appellant on the scene of the rape (and the other offences that were committed in the house) and, in the absence of any version on his part (as a result of the rejection of his alibi defence), that evidence would have become proof beyond reasonable doubt that the appellant had indeed been on that scene.

25. The same would not, however, apply to the issue of what had happened there, whether the complainant had indeed been raped by all the intruders and whether the appellant had therefore also raped her. The appellant’s presence on the scene where the rape, the theft and the attack on the complainant’s husband took place, would not in itself have constituted prima facie evidence that he himself had also raped the complainant in that house.

26. The question would therefore then remain whether, on the evidence as a whole and excluding the appellant’s untruthfulness, there had been prima facie evidence that the appellant had raped the complainant in the house. In my view this question should be answered in the negative.

27. The reasoning of the trial Court in convicting not only accused 2, but also the appellant (who had been accused 1) and the other accused on count 2, and in finding that the evidence of the complainant justified the inference that all of them had raped her, can be summarised as follows:

1. It was found, in the first place, that this had been the evidence of the complainant⁹. It was found that, although it had been dark and the complainant had (so it was found) made a mistake about a number of intruders, the absence of an acceptable explanation by the appellant, accused 2 and accused 5 for their presence in the house, justified the inference that each one of them had also raped the complainant there.

2. Secondly reference was made to the fact that the complainant had identified accused 2 as not only having been one of the intruders, but also as one of the persons who had raped her in the house, and to the fact that that evidence had been corroborated by the fact:

1. that a toy firearm similar to the one described by the complainant was later found in the possession of accused 2; and

2. that Sammores also testified that he had seen accused 2 raping the complainant in the house.

3. Accused 4 and 6 admitted having raped the complainant.

28. The reference to the complainant’s evidence is, with respect, an over-simplification. The darkness and the complainant’s evidence regarding the number of intruders were by no means the only, or even the most fundamental, problems in the complainant’s evidence. I have already referred to the vital concession that the complainant had been constrained to make, and to her evidence and that of Sammores about how many times she had been raped by any particular attacker. I shall in due course also deal with the contradictions of the complainant’s evidence regarding the rape/s on the second scene (which would of course also reflect upon her reliability as regards the events in the house).

29. In simply basing the finding against the appellant on the evidence of the complainant, the trial judge also seems to have lost sight of the findings which had elsewhere been made regarding the reliability of her evidence, and to which I have already alluded. The mere fact that in the end there had been no explanation by the appellant and accused 5 for their presence on the scene in the house, would not have meant that these problems in the evidence of a complainant could simply be ignored.

30. It is quite significant that the trial judge did not regard the evidence of the complainant, or even the evidence as a whole, as sufficient for a finding that any accused other than accused 2 had entered the house with the intention of raping the complainant. If it was reasonably possible that the appellant had entered the house without any intention of raping the complainant, is it not also reasonably possible that he indeed did not rape the complainant (at least just as reasonable as the possibility that he may, when he was already in the house and on the spur of the moment, have decided to also rape the complainant)?

31. It is equally significant that accused 3 was, despite the complainant’s evidence of having recognised him as one of the attackers, discharged at the close of the Sate’s case.

32. The fact that the complainant’s evidence had been corroborated as regards the clothing of accused 2 and the toy firearm, also does not take the matter much further. That evidence may have constituted corroboration for the complainant’s evidence that accused 2 had been one of the intruders and that he had raped her, and possibly also for her evidence regarding the use of a toy firearm. It could not, however, have served as corroboration that the complainant had been raped by all the intruders, which was a completely different issue¹⁰.

33. That the appellant had in the course of that evening been in the company of, inter alia, accused 2, that he had been present in the house where the complainant was repeatedly raped¹¹ and that he may have been part of the group which then left the house and took the complainant to the scene of the second rape/s would not, in my view, justify the inference, as the only reasonable inference and to the exclusion of all other possible inferences¹², that the appellant had raped the complainant in the house; especially not on the evidence of the complainant.

34. I revert now to the judgment of Kgomo JP. As regards the finding of the trial judge that the complainant had mistakenly testified that six persons had entered the house¹³, reference is made to the evidence of Sammores that he had at one stage entered the house. Mr Mashuga, who initially appeared on behalf of the respondent, also submitted that this would explain why the complainant testified that she had seen six intruders and would corroborate her evidence in this regard.

1. In this regard it should be kept in mind, in the first place, that Olivier’s evidence (which was accepted by the trial judge) left no room for Sammores having entered the house at any stage. According to Olivier Sammores had peeked through a hole to see what was happening inside (something which Sammores had in his evidence never mentioned).

2. Secondly this approach loses sight of the fact that, according to the complainant, the group of persons that forced her from the house consisted of all the persons who had initially entered the house. This would mean that, on her version, six persons would have left the house with her, which would leave no room for the possibility that Sammores may have been the sixth person observed by her in the house (unless, of course, Sammores had been one of the attackers, but that was not the case for the prosecution).

The evidence of Sammores was that only five men left the house with the complainant.

3. In any event (and as already mentioned) the trial judge’s reluctance to accept the complainant’s evidence as at least reliable was not only based on the problems in her evidence regarding the number of intruders.

35. Kgomo JP also makes reference to the fact that Olivier corroborated the evidence of Sammores regarding the number of intruders that had entered the house and that had later left the house with the complainant, about the light being turned on and off and about the complainant’s screams.

1. It should be kept in mind, in the first place, that Olivier conceded that he and Sammores had discussed the case and that a number of the aspects mentioned in his police statement were never observed by him, but were conveyed to him by Sammores. One of those aspects had indeed been his statement regarding the complainant’s screams.

2. Corroboration on the issues regarding the number of intruders, the light and the screams could in any event not have served as corroboration for the complainant’s initial evidence that everybody in the house had raped her¹⁴. It simply had no direct bearing on that issue.

36. Kgomo JP also alludes to the versions of accused 4 and 6 that not only they, but also everybody else in the house had raped the complainant, and he then comes to the conclusion that that evidence is in accordance with the other evidence and the probabilities, and should therefore be accepted for the purposes of this appeal. I cannot agree.

1. The only other evidence that has a direct bearing on who had raped the complainant in the house¹⁵ is that of Sammores and of the complainant. Sammores never saw any other accused than accused 2 raping the complainant, and I have already dealt with the problems in the complainant’s evidence regarding who had raped her in the house.

2. It should furthermore be kept in mind that the legal representatives of accused 4 and 6 at the trial conceded that their evidence had been untrustworthy, and it was also rejected as such by the trial judge. This finding by the trial judge was based, inter alia, on the false evidence of those two accused that Sammores and Olivier had been part of the intruders and had also raped the complainant.

This would mean that accused 4 and 6 had been found untrustworthy on precisely the issue in respect of which my brother now finds support in their evidence, namely who had been in the house and who had raped the complainant there.

3. In any event, the evidence of accused 6 that only four men entered the house (while accused 5 waited outside) was completely contradictory to the versions of both the complainant and Sammores.

37. Kgomo JP furthermore alludes to the evidence of Sammores that the appellant had also been one of the persons who raped the complainant on the second scene. It would appear as though my brother is of the view that the trial judge erred in not accepting this evidence of Sammores and in not also convicting the appellant on count 5.

1. It is, in the first place, trite that a Court of appeal will only interfere with the findings of a trial Court where they were clearly wrong¹⁶.

2. The findings of the trial court and the evidence taken into account in this regard can be summarised as follows:

1. Sammores testified that the appellant and accused 2 had raped the complainant on the second scene and that they were the only attackers on that scene. The complainant’s version, on the other hand, was that she had on that scene been raped by accused 2, accused 3 and an unknown person (therefore not the appellant). On her version there would have been three attackers.

2. The witness Mrs Sarah Kitchen testified that there were only two attackers on that scene and she identified accused 2 and 3 (again therefore excluding the appellant). Mr Hendrik Kitchen saw three persons fleeing the scene.

3. This meant that only Sammores placed the appellant on that scene.

4. It was found that Sammores had, however, been quite a distance from that scene and that the rape/s had occurred in the dark shadow of a house.

5. Sammores had also in his evidence made a mistake about whether the complainant had at the time been naked or not.

6. In the circumstances it was found that there was not sufficient and reliable evidence that the appellant had raped the complainant on that scene.

3. I am by no means convinced that any of these findings, or the conclusion reached in this regard by the trial judge, was wrong and it is of some significance that this was also never argued on behalf of the respondent.

4. Both Mr and Mrs Kitchen were found to have been credible witnesses and there is to my mind no basis upon which their versions should in effect be rejected in favour of that of Sammores.

5. The contradiction between Sammores and the complainant about whether she had been naked at that stage (and to which the trial judge also alluded) was not the only fundamental contradiction of the evidence of Sammores about those events. His evidence that the complainant had at the time of those rapes been standing in a bent position, was in complete contrast with the evidence of the complainant that she had been lying on the ground.

6. As regards paragraph [12] of the judgment of Kgomo JP the reference by accused 4 to his “friends” and the fact that the prosecution had decided to charge accused 2 could never serve as corroboration for Mrs Kitchen’s evidence that accused 2 had raped the complainant on the second scene. Even if it could, it could never constitute evidence against the appellant on count 5.

38. It follows that I cannot, with respect, agree with the statement in paragraph [26] of Kgomo JP’s judgment that the appellant had “been shown … to have raped the complainant” (presumably referring to the second scene). The statement that the appellant had furthermore been shown “also to have made common cause … to break into her house to commit an offence or offences” with respect loses sight of the fact that the appellant was acquitted on count 1, and this finding has not been criticised by Kgomo JP.

The facts in the case of S v Mafaladiso¹⁷ also referred to by Kgomo JP are, with respect, clearly distinguishable. In that matter the evidence of the complainant that four men had entered her house and that she had been raped four times was accepted and she was found to have been a “most impressive” and an “honest and reliable” witness.

39. The fact that the appellant lied about whether he had been roasting meat the next morning when he was arrested, and about the alibi defence that he had raised together with accused 2, could in my view at the most have contributed to the prima facie evidence that the appellant had been present in the house, but could not in my view justify a finding that the appellant had raped the complainant in the house.

40. As tempting as the inference that the appellant had also raped the complainant in the house may be, I am of the view that such an inference cannot be drawn on the evidence as a whole, and even if it is accepted that there is in effect no explanation on the part of the appellant for his presence in the house.

41. I believe that this approach is not overly parochial, but rather constitutes a proper application of the principles of our law regarding the evaluation of evidence, and particularly the drawing of inferences in criminal trials.

42. I am fully aware of the fact that “absolute certainty” is not the test, but at the same time a “mere suspicion, strong as it might be, is not adequate ….”¹⁸.

43. As regards the issue of common purpose, and the question whether that doctrine could be applied in the case of the common law crime of rape, I am of the view that the evidence in this case would in any event not have been sufficient to justify a conviction of the appellant on the basis of common purpose. There is no proof of a prior conspiracy and there is no evidence beyond reasonable doubt that the appellant had actively associated himself with the rape/s in the house.

44. For the same reason the appellant cannot in my opinion be convicted as an accomplice on count 2. There is no evidence of him intentionally facilitating, assisting or encouraging the commission of the rape/s in the house¹⁹.

45. In paragraph [36] of his judgment Kgomo JP comes to the conclusion that evidence to the effect that the appellant had been one of the persons who had taken the complainant from her house, would constitute proof that he had “facilitated, assisted or encouraged the commission of the second rape of the complainant”, that on that basis alone the appellant would be “guilty as an accomplice” and that “If the appellant walks free I have no doubt that it would constitute one of the worst failures of justice”.

1. The appellant was, of course, acquitted on count 5, which pertained to the second rape scene. This appeal does not concern that count and I therefore find it unnecessary to express an opinion on whether participation in the abduction of the complainant would have justified an inference of complicity in the rape /s on the second scene, save to refer once again to the fact that it was the State’s case that some of the persons who had left the house with the complainant split away and did not accompany her to the second rape scene.

2. In any event, and even if it is accepted that the appellant had at least up to a certain point been part of the abduction, I fail to see how that could serve as a basis for a finding that he had, through participating in the later abduction, “facilitated, assisted or encouraged” the rape/s which had occurred in the house prior to such abduction.

46. I am afraid that I also cannot, with respect, agree with Kgomo JP’s conclusion that the appellant would “unquestionably (be) guilty as an accessory after the fact, if he was neither a perpetrator nor an accomplice”²⁰. It is based on the finding that the appellant had not only told the police officer (the next morning when he and accused 2 were arrested) that he and accused had been together all the time, but also that they had been “away from the … scene”²¹.

47. There is simply no such evidence. Wessels repeatedly testified only that the appellant had said that he had been with accused 2 all the time, but never that he had also said that they had been away from the scene²².

48. In fact, and as counsel who later appeared for the respondent, Mr Cloete, in my view correctly submitted, what the appellant had said could be interpreted as an admission that he had been with accused 2 on the scene of the rape. This is precisely why Mr Cloete, as regards the question posed in paragraph 2.2 of the directive referred to in Kgomo JP’s judgment, in his heads of argument conceded that the evidence would not support a conviction as an accessory after the fact.

49. Of special importance in this regard is the evidence that, when Wessels informed accused 2 that he was arresting him as a suspect in a rape case, appellant reacted by saying that he had been with accused 2 all the time and that he would also accompany the police (“Hy het my meegedeel hy was die hele tyd saam met sy broer en hy gaan saam met ons kom”²³).

50. As regards the last sentence of paragraph [37] of Kgomo JP’s judgment, the fact that the appellant raised an alibi defence at the trial would not, with respect, in itself justify the inference (as the only reasonable inference) that that was also what he intended doing when he spoke to Wessels.

51. I am therefore of the view that the appeal should succeed and would make the following order:

The appeal is upheld and the conviction and sentence of the appellant Timotheus Moses are set aside.

__________________

C J OLIVIER

JUDGE

NORTHERN CAPE HIGH

COURT, KIMBERLEY

I concur:

__________________

C C WILLIAMS

JUDGE

NORTHERN CAPE HIGH

COURT, KIMBERLEY

For the Appellant: Adv A van Tonder

On behalf of: Legal Aid Board, KIMBERLEY

For the Respondent: Adv J J Cloete

On behalf of: Director of Public Prosecutions, KIMBERLEY

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