---

Reportable: YES / NO Circulate to Judges: YES / NO Circulate to Magistrates: YES / NO

IN THE HIGH COURT OF SOUTH AFRICA

(Northern Cape High Court, Kimberley)

Case No: K/S 37/1998

Heard: 08/03/2010 &

31/05/2010

Delivered: 02/07/2010

In the matter between:

TIMOTHEUS MOSES …......................................................Appellant

and

THE STATE …................................................................Respondent

Coram: Kgomo JP; Williams J et Olivier J

JUDGMENT

KGOMO JP

1. This appeal was originally argued before us on 08 March 2010. Having deliberated on the matter we were of the view that certain aspects were inadequately addressed by counsel and needed to be revisited intensively. We accordingly directed the following request to the Director of Public Prosecutions and the Director of the Legal Aid Board through the office of the Registrar:

“Dispatch this directive to the office of the DPP and the Legal Aid Board.---.

1. The appeal will be re-argued before the same panel of judges on 10 May 2010.

2. Supplementary Heads of Argument must be filed by both parties not later than Friday 30 April 2010 at 11h00 on any matter but in particular on:

2.1 The applicability of the doctrine of common purpose to rape cases. Reference must be made to both South African and Foreign jurisprudence. If the doctrine is applicable to rape cases whether appellant, on the evidence, can be convicted on that basis, whether as perpetrator or accomplice.

2.2 If the appellant’s conviction cannot be sustained on the basis as set out in para 2.1 (above) then, whether a conviction can be sustained on the basis of an accessory after the fact to rape or any other competent verdict, and if so what influence this should have on the sentence.

3. Because the issues raised involve complex issues of law (and fact somewhat) it is suggested that the DPP assign a senior State Counsel to lead Adv XX and that the Director of the Legal Aid Board give whatever assistance it can to Mr ZZ.” (names omitted).

We are indebted to Adv Hannes (JJ) Cloete, Senior State Advocate, who substituted Mr XX and Mr Van Tonder, for the accused, instructed by the Legal Aid Board, for their helpful supplementary argument.

2. Having read my judgment Olivier J has prepared a separate judgment which is concurred in by Williams J. I have read that judgment and I am of the respectful view that too parochial an approach is adopted in the evaluation of the evidence and does not quite accord with established principles enunciated by the Supreme Court of Appeal and/or the Constitutional Court which jurisprudence I will advert to during the course of this judgment.

3. The appellant was on 13 November 1998 convicted in the Kgalagadi Circuit Court (Kathu) by Steenkamp J (as he then was) of the rape of Mrs MV (or complainant), a 54 year old woman, and sentenced to 15 years imprisonment. Almost ten years later, on 03 June 2008, this Court on petition condoned the late filing of the application for leave to appeal and granted leave to appeal to the Full Bench. It is unclear how the application fell through the cracks since 25 October 2001 when appellant launched his application, but that is “water under the bridge” now. The Court refused appellant leave on counts 3 and 4, assault and theft, respectively. We have established that the appellant has already served his sentence.

4. The trite and salutary principle that has to be applied by an appellate Court is that where there has not been any misdirection on fact by the trial Judge, the presumption is that his/her conclusion is correct. The appellate Court will only reverse it where it is convinced that it is wrong. An appellate Court should not seek anxiously to discover reasons adverse to the conclusions of the trial Judge. However, the appellate Court is at large to disregard the findings of the trial Judge on fact in whole or in part on aspects on which the record clearly shows the reasons furnished to be unsatisfactory or where the Judge has overlooked other facts or probabilities. See: R v Dhlumayo and Another 1948(2) SA 677(A) at 705 – 706.

5. The appellant was arraigned with five others on various charges. Accused No 3, Mr J A, was discharged at the close of the State case as it was doubtful whether he was complicit in any offence. Attention is drawn to this issue because the complainant testified that six intruders invaded her house during the early hours of the morning and that she was raped by all of them. She recanted this categorical statement somewhat later and stated that she could not be sure that all of them raped her due to the moving scene and poor and sometimes fleeting visibility. The possibility exists that she may not have been raped by six culprits, but the probability is strong that she was raped no fewer than six times because accused No 2, Malouly (“Malouly”), had sexual intercourse with her twice.

6. It was common cause that the electric light was switched on and off by some of the intruders. That allowed the complainant a cursory glance at them and to make a quick mental tally. She correctly identified Malouly as tall, that he was wearing a grey sweatsuit (tracksuit) and was armed with what she believed to have been a shiny firearm, which he pointed at her whilst pushing her back into the house when she investigated a disturbance at the door. Her evidence was partly corroborated by the investigating officer, Sergeant Andries Wessels, who retrieved the apparel from Malouly’s house in his presence and what turned out to be a toy-pistol when Malouly tried to conceal it in the police van when he was taken into custody. This evidence on the weapon of intimidation was also corroborated by State witness Jacob Sammores who testified that: “Toe hou Piet die toy gun voor die tannie se bors.”

7. The evidence so far thus establishes that consensual sexual intercourse was out of the question and that Malouly, whose defence was an alibi, was present on the scene and was complicit in some criminal activity. More pertinently, Malouly and the appellant, who are related, were traced by Sergeant Wessels to Malouly’s house where the latter was fast asleep and the appellant roasting meat, highly probably stolen from the complainant’s home. The complainant and her husband testified that their meat was stolen by the intruders. The appellant falsely denied that Sergeant Wessels found him roasting meat. Roasting meat or possessing meat is not forbidden. The appellant therefore knew that the meat was not lawfully acquired. In fact the Court a quo specifically and correctly convicted the appellant, Malouly, accused 4 (Niklaas Saal), accused 5 (Samuel Adams) and accused 6 (Isak Louters) of the theft of “vleis en meel” on Count 4.

8. Significantly, and before he was a suspect, the appellant sought to persuade Sergeant Wessels not to apprehend Malouly stating that the two of them were in each other’s company, away from the crime scene. Sammores says the appellant and the four other convicted accused entered the complainant’s house. He and Ricardo Olivier waited outside, not really keeping a watch. The group therefore numbered seven. Sammores says after a while he entered the house (that therefore made six of them inside) and switched on the light. At that stage he observed Malouly in the sexual act with Mrs MV. Isak Louters sat on the bed and the others were scavenging in the house. He heard Mrs MV scream: “Julle maak my seer.” The five intruders later emerged at the same time, with Mrs MV held captive and one of them carried the meat.

9. Sammores says he went his way and returned later to check on the further occurrences. His verbatim account reads (“Mota” is an abbreviation for Timotheus, the appellant’s first name):

“Mnr Nekosie (PP): As jy nou sê jy het teruggekom, waarnatoe het jy teruggekom? --- Toe het ek gaan kyk. Ek het weer gaan kyk.

Wat het jy gaan kyk? --- Wat hulle met die tannie aanvang.

Kon jy enige iets sien? --- Toe sien ek hulle het weer die tannie – Piet het weer gemeenskap met die tannie.

Ja en wat gebeur toe? --- Daarna toe is dit weer Mota.

HOF: Was al die 5 mense daar by die huis of was hulle minder? --- Hulle was minder gewees.

Hoeveel was hulle? --- Net Piet en Mota ---.

Mnr Nekosie: So u sien toe vir Piet en Mota daar met die tannie gemeenskap hê. Wat doen u toe? --- Toe gaan ek weer terug na Ricardo toe. Van daarvan af het ons sommer huis toe gegaan en gaan slaap.”

10. Ricardo Olivier, who was called by the Court, after the State strangely dispensed with his evidence, corroborates Sammores in the respect that the appellant and the four other convicted accused entered the house of Mrs MV, that Sammores peeked into the house while the five intruders busied themselves therein (Ricardo never entered), that the light in the house was switched on and off, that the five accused emerged together from the house. He says accused 4 (Saal) parted company with the rest but the appellant, Malouly and Isak Louters (No 6) abducted Mrs MV. Isak was holding her. He does not know what happened further but he watched Sammores investigating what the latter three were doing to Mrs MV.

11. One of the charges related to the indecent assault of the complainant’s husband who was sexually penetrated per anus. He was blindfolded by the assailants and was therefore not in a position to identify them or those who defiled his wife. All the accused were acquitted on this count.

12. Accused 4 (Saal) pleaded guilty on Count 5 only, that he raped Mrs MV and said his “friends”, who remained anonymous in his guilty plea, were not in his company. However, the answer is reached by way of elimination and deduction because only the appellant, Malouly and him faced Count 5 of the rape that took place in the proximity of the house of Mr Hendrik Kitchen and his wife Sarah, who both testified for the State. Sarah saw only two men who were next to Mrs MV and identified them as Malouly and the erstwhile acquitted accused 3, J A. Her husband saw three men, whom he could not identify. He put them to flight by hurling missiles at them. The appellant could therefore not have relied on a worse alibi than Malouly, who played the leading role in the housebreaking and the rape.

13. Accused 6, Isak Louters, on the other hand pleaded guilty on Count 2 only, the rape inside Mrs MV’s house. He was prepared to go a bit further than Saal in his guilty plea by saying his unnamed friends entered Mrs MV’s house whereupon he raped her and his friends also had sexual intercourse with her.

14. The State, understandably, declined to accept the guilty pleas of accused 4 and 6. Accused 4 testified that he was in the company of Accused 5 and 6, Ricardo Van Vuuren (sic, in fact Ricardo Olivier) and Sammores. He says it was only the five of them at Mrs MV’s house and that the appellant and Malouly (accused 2) were not present, and were in any event not part of their circle of friends nor were they of their peer group. (The appellant, accused 4 and 5 were 18 years old; Sammores was 16 years; Ricardo was 13 years; Malouly 35 and accused 6 was 19 years). Accused 4 attributed just about every criminal activity that Sammores said Malouly had committed to Sammores. The roles were therefore simply reversed¹. He says the five of them entered the house and that Sammores raped the complainant first and they all followed. He went as far as saying after the complainant was raped Sammores and the 13 year old Ricardo abducted her and that he, accused 5 and 6 parted company with them and went to their respective homes.

15. Accused 6, Isak Louters, in essence repeated Accused 4’s evidence, except that accused 5, Sammuel Adams, waited outside and only four of them raped the complainant. Consistent with how the defence evidence was tailored, only the State cross-examined accused 6. Accused 6 explained that they relayed in this manner: when one of them was through with the sexual encounter the next one was called upon for his turn. This is what Mrs MV also said.

16. In his judgment Steenkamp J had this to say (translated):

“As far as the evidence of accused 1 [the appellant], accused 2 [Malouly], accused 4, 5 and 6 are concerned, Mr Van Vuuren for accused 1; Ms Bester for accused 2; Mr Erasmus for accused 4; and Mr Cloete for accused 5 and 6, conceded that their evidence cannot be admitted as being reasonably possibly true and that the Court can justifiably reject it. This concession was based on the fact that accused 4, 5 and 6 testified that accused 1 and 2 were not at the home of Mrs MV and in addition accused 4 and 6 testified that Ricardo Olivier and Jacob [Sammores] also raped Mrs MV.

It is evident that Ricardo is an innocent boy who did not even know the meaning of “gemeenskap” [sexual intercourse]. Counsel were mindful of the fact that it is highly improbable that this young boy, Ricardo, would rape Mrs MV along with the others. The accused’s evidence is further improbable as regards what they did or did not do the previous night. The evidence of accused 1 and 2 is also in conflict with that of Sergeant Wessels who has given credible evidence.

In light of these concessions by counsel, which were correctly made, it would be superfluous to evaluate their evidence any further. In the result the Court finds that their evidence is not reasonably possibly true and I reject same.

The evidence of Michael Jaars [an alibi witness called by Mr Van Vuuren on behalf of accused 1 and 2] is extremely improbable and in fact mendacious. It is apparent that he strove to protect his two brothers, accused 1 and 2.”

17. I cannot fault the trial Judge’s approach and conclusion, except that he should have held that he accepts the evidence of accused 4, 5 and 6 only insofar as it is not in conflict with that of Mrs MV, Sammores, Ricardo and the probabilities. After all they implicated themselves and were convicted on that basis. Otherwise they would probably have been acquitted. Michael Jaars’s evidence was concomitantly collapsed by the aforesaid concessions by counsel for the appellant and Malouly. See generally on the question of a failed alibi S v Thebus and Another 2003(2) SACR 319 (CC) at 349C – 354b. In S v Nkomo 1966(1) SA 831(A) at 833C-D the Court held:

“By falsely denying all connection with the burglary, accused No. 2 not only failed to give any explanation exculpating himself from complicity in the murder but, if anything, tended to confirm the above indicated inference against him. In this regard I am in entire accord with the observations of MALAN, J.A., in Rex v Mlambo , 1957 (4) SA 727 (AD) at p. 738, namely:

'If an accused deliberately takes the risk of giving false evidence in the hope of being convicted of a less serious crime or even, perchance, escaping conviction altogether and his evidence is declared to be false and irreconcilable with the proved facts a court will, in suitable cases, be fully justified in rejecting an argument that, notwithstanding that the accused did not avail himself of the opportunity to mitigate the gravity of the offence, he should nevertheless receive the same benefit as if he had done so.' ”

In S v Shabalala 1986(4) SA 734 (A) at 736 C-D the Court held that the “effect of the falseness of an alibi on an accused’s case is to place him in a position as if he had never testified at all. See R v Dhlomo 1961(1) PH H54.”

18. On the rape itself at the house of Mrs MV, Steenkamp J came to the following conclusion (translated):

“Pertaining to Count 2, Mrs MV testified that she was raped by six people. We know that only five people entered the house. It can, nevertheless, be inferred from her evidence that all those who were in the house raped her. Firstly, because she says so. Granted, it was dark and she made a mistake with the number of intruders. However, absent any cogent explanation forthcoming from accused 1, 2 and 5 concerning what they did in Mrs MV’s house, one is constrained to accept that they must have participated in the rape.” (My emphasis).

[19] This conclusion, as Mr Cloete correctly argued, is consonant with dicta in S v Rama 1966(2) SA 395 A at 400H – 401C, S v Williams 1970(2) SA 654 (A) at 657 H – 658 A and S v Steynberg 1983(3) SA 140 (A) in which latter case the Court concluded that “the line of thought in R v Mlambo 1957 (4) SA 727 (A) at 738B - D and the accepted point of departure in Goodrich v Goodrich 1946 AD 390 at 396 are completely reconcilable and that the proper application of the R v Mlambo approach often has satisfactory and correct results. But, said the Court, the application thereof obviously does not mean that, when an accused gives a false explanation about an act he perpetrated on someone about which he alone is able to give evidence, the inference must be made that he had the intention to commit the offence charged. That was not what was decided in the Mlambo case, the Court held. The nature and extent of the accused's lies are of great importance. In addition, all the other factors which appear, from the evidence, to be relevant to the adjudication of the question whether the inference that the accused had the intention to commit the crime should be placed in the scale; and this adjudication should be undertaken with due observance of the established rules of logic in connection with circumstantial evidence formulated in R v Blom 1939 AD 188 at 202 - 203.

[20] The following addition must be made, though, to Steenkamp J’s dictum quoted in para 18 (above). The admissions by accused 4 and 6 made against themselves and the assertion that all those who entered the house, irrespective of their identity, raped the complainant is consistent with the evidence and the probabilities. There are accordingly sufficient safeguards against the risk of admitting their evidence as pointed out earlier. Both counsel were ad idem that the reception of the evidence is in accordance with the rules of evidence and the law.

21. As adverted to in para 8 Sammores was indeed the sixth person who entered the house but he exited in due course. The complainant was correct with the number of intruders but erred on the number of her rapists. Regard must also be had to the fact that there is direct evidence emanating from Sammores that Malouly raped the complainant twice at her home. To maintain that Sammores did not enter Mrs MV’s dwelling is to suggest that the light-switch of this one-roomed shanty which he switched on and off is located outside the dwelling. Such suggestion is not only far-fetched conjecture, as it is not backed up by any evidence, but also absurd.

21. Sammores also observed the appellant having sexual intercourse with the complainant in the vicinity of Mr and Mrs Kitchen’s house. I am satisfied that Sammores could not have been remiss with the identification of the appellant both at Mrs MV’s home and at the second rape scene in the vicinity of the home of Mr and Mrs Kitchen because he had been in appellant’s company the whole evening and early morning and, in addition, he knew appellant well before the incident. See: R v Dladla and Others 1962(1) SA 307 (A) at 310B-E.

21. The court a quo therefore misdirected itself in acquitting appellant of rape on Count 5. I am unable to fathom why the Legislature has since 2000 failed to accept the salutary recommendation by the South African Law Commission that legislation ought to be introduced which authorizes the State to appeal against both a conviction on fact and Law. See S v Mabasa and Others 2005(2) SACR 250 (NCD) at 252a – 254a (para 4-9). However, the evidence relating to the acquittal remains admissible and is taken into account for purposes of adjudicating this appeal. There is overwhelming jurisprudence to the effect that there is no warrant for excluding admissible evidence. See: S v Nomzaza 1996(2) SACR 14 (SCA) at 16h where Vivier JA stated that:

“Verder is die algemene reël dat enige relevante getuienis by strafregtelike verrigtinge toelaatbaar is tensy dit deur `n bepaalde reël van die bewysreg uitgesluit word (S v Lwane 1966(2) SA 433(A) at 437G-H).”

In S v Dlamini; S v Dladla; S v Joubert; S v Schietekat 1999(2) SACR 51 (CC) at 98c-f the Constitutional Court, per Kriegler J, held:

“There is no warrant for creating a general rule which would exclude cogent evidence against which no just objection can be leveled. The trial court must decide whether it is a valid objection, based on all the peculiar circumstances of the particular case, not according to a blanket rule that would throw out good and fair evidence together with the bad.”

21. What must also be factored into the whole matrix is that the evidence shows the appellant to have gone about in the company of the entire group, visiting shebeens and making mischief along the way and never dissociated himself from their deeds. Both Sammores and Ricardo testified that all the convicted rapists remained inside the complainant’s house throughout and emerged together afterwards whereupon, amongst others, the appellant and his confidant, Malouly, abducted the complainant resulting in her being raped a second session. To surmise in the light of all the evidence that the appellant merely had sexual fantasies in the complainant’s house whilst his friends were raping her, Malouly twice for that matter, stretches credulity unthinkably. Moreover the appellant was later seen raping the complainant relative to Count 5. The time it took the intruders to rape the house occupants is difficult to work out but it must have lasted a considerable time – anything from before 04h00 to about 05h00.

21. The correct approach which a court should adopt in evaluating evidence has been lucidly stated as follows in S v Chabalala 2003(1) SACR 134 (SCA) at 139i – 140b (para 15):

“[15] The trial court's approach to the case was, however, holistic and in this it was undoubtedly right: S v Van Aswegen 2001 (2) SACR 97 (SCA) . The correct approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and, having done so, to decide whether the balance weighs so heavily in favour of the State as to exclude any reasonable doubt about the accused's guilt. The result may prove that one scrap of evidence or one defect in the case for either party (such as the failure to call a material witness concerning an identity parade) was decisive but that can only be an ex post facto determination and a trial court (and counsel) should avoid the temptation to latch on to one (apparently) obvious aspect without assessing it in the context of the full picture presented in evidence. Once that approach is applied to the evidence in the present matter the solution becomes clear.” (My emphasis).

21. There is sometimes a mistaken belief that circumstantial evidence must be treated with suspicion. There is no principle that decrees that direct evidence is inherently more reliable than circumstantial evidence. See: S v Reddy and Others 1996(2) SACR (1) (A) at 8c – 9f where the Court held:

“In assessing circumstantial evidence one needs to be careful not to approach such evidence upon a piece-meal basis and to subject each individual piece of evidence to a consideration of whether it excludes the reasonable possibility that the explanation given by an accused is true. The evidence needs to be considered in its totality. It is only then that one can apply the oft-quoted dictum in R v Blom 1939 AD 188 at 202-3, where reference is made to two cardinal rules of logic which cannot be ignored---. The matter is well put in the following remarks of Davis AJA in R v De Villiers 1944 AD 493 at 508-9:

'The Court must not take each circumstance separately and give the accused the benefit of any reasonable doubt as to the inference to be drawn from each one so taken. It must carefully weigh the cumulative effect of all of them together, and it is only after it has done so that the accused is entitled to the benefit of any reasonable doubt which it may have as to whether the inference of guilt is the only inference which can reasonably be drawn. To put the matter in another way; the Crown must satisfy the Court, not that each separate fact is inconsistent with the innocence of the accused, but that the evidence as a whole is beyond reasonable doubt inconsistent with such innocence.'

Best on Evidence 10th ed 297 at 261 puts the matter thus:

'The elements, or links, which compose a chain of presumptive proof, are certain moral and physical coincidences, which individually indicate the principal fact; and the probative force of the whole depends on the number, weight, independence, and consistency of those elementary circumstances.

A number of circumstances, each individually very slight, may so tally with and confirm each other as to leave no room for doubt of the fact which they tend to establish. . . . Not to speak of greater numbers, even two articles of circumstantial evidence, though each taken by itself weigh but as a feather, join them together, you will find them pressing on a delinquent with the weight of a mill-stone. . . .

Lord Coleridge, in R v Dickman (Newcastle Summer Assizes, 1910 - referred to in Wills on Circumstantial Evidence 7th ed at 46 and 452-60), made the following observations concerning the proper approach to circumstantial evidence:

The law does not demand that you should act upon certainties alone. . . . In our lives, in our acts, in our thoughts we do not deal with certainties; we ought to act upon just and reasonable convictions founded upon just and reasonable grounds. . . . The law asks for no more and the law demands no less.'” (My emphasis).

21. On the approach adopted in Olivier J’s segment of the judgment the consequence is that the appellant, having been shown not only to have raped the complainant but also to have made common cause with the convicted offenders to break into her house to commit an offence or offences, which turned out to be either housebreaking with the intent to steal and theft or theft or rape, must go scot-free merely because the complainant cannot be sure that all the intruders raped her, although she was raped repeatedly in a one-roomed dwelling. What the majority judgment says to the victims of rape is that: “The law does not protect you if there is proof that you were gang-raped or repeatedly raped by all or some men consisting of a group of five if there is no absolute certainty that each and everyone of them specifically raped you.” This surely would bring the law into disrepute.

In my view the appellant was a perpetrator in the rape incident and was correctly convicted.

DOES THE DOCTRINE OF COMMON PURPOSE APPLY TO THE CRIME OF RAPE

21. In S v Mafaladiso 2003(1) SACR 583 (SCA) the trial Judge convicted the appellants of rape having invoked the doctrine of common purpose. Four men broke into an old lady’s home. She was robbed and raped. The victim asserted that all four men raped her. Her police statement was not properly taken because there seemed to have been uncertainty whether she deposed therein that three or all four the accused raped her, hence their conviction on this doctrine. On appeal the SCA (Olivier JA, Nugent and Conradie JJA concurring) at 595b-e found that (translated):

“In the case at hand, it was unnecessary for the learned Trial Judge to have convicted the four accused on the basis of the common purpose doctrine. He should have convicted them on the basis that they were direct perpetrators. I will therefore refrain from expressing myself at all on the issue of whether a conviction on a charge of rape on the doctrine of common purpose is legally competent.” (My emphasis)

The evidence in the case before us seems to be much stronger than in the Mafaladiso case.

21. Mr Cloete has argued, with reference to Schedule 2 (Part 1) of the Criminal Law Amendment Act, 105 of 1997, that the Legislature has shown itself not to be averse to recognizing the doctrine of common purpose although this occurs in a sentencing setting. The aforementioned schedule stipulate in the rape context that a sentence of life imprisonment is competent:

“(a) when committed-

(i) in circumstances where the victim was raped more than once whether by the accused or by any co-perpetrator or accomplice;

(ii) by more than one person, where such persons acted in the execution or furtherance of a common purpose or conspiracy.”

21. In S v Kimberley 2005(2) SACR 663 (SCA) the question relating to common purpose in a rape case arose only in the sentencing context (see para 28 above). The Court was not called upon to decide whether the common purpose doctrine was applicable to rape cases and, understandably, did not express a view. At 669e – I (para 12) Zulman JA had this to say:

“As previously pointed out appellant 1 was found to be simply an 'accomplice' and not a co-perpetrator, nor was it found that he acted in the execution of a common purpose or conspiracy. An 'accomplice' (medepligtige) is one who takes part in the commission of the crime other than as a perpetrator (dader) and other than as an accessory after the fact (begunstige) (Burchell South African Criminal Law and Procedure vol 1 at 322). The matter is put succinctly by Joubert JA in S v Williams en 'n Ander 1980 (1) SA 60 (A) at 63A - B in these terms:

' 'n Medepligtige se aanspreeklikheid is aksessories van aard sodat daar geen sprake van 'n medepligtige kan wees sonder 'n dader of mededaders wat die misdaad pleeg nie. 'n Dader voldoen aan al die vereistes van die betrokke misdaadomskrywing. Waar mededaders saam die misdaad pleeg, voldoen elke mededader aan al die vereistes van die betrokke misdaadomskrywing. Daarenteen is 'n medepligtige nie 'n dader of mededader nie aangesien die dader se actus reus by hom ontbreek. 'n Medepligtige vereenselwig hom bewustelik met die pleging van die misdaad deur die dader of mededaders deurdat hy bewustelik behulpsaam is by die pleging van die misdaad of deurdat hy bewustelik die dader of mededaders die geleentheid, die middele of die inligting verskaf wat die pleging van die misdaad bevorder.'

(See also The Law of South Africa ( LAWSA ) first re-issue vol 6 paras 129 - 32 at 138 - 46, Snyman Strafreg (4de uitg) 254 - 57 and De Wet en Swanepoel Strafreg (4de uitg) ch 7 at 175 - 208.) So, for example, a woman who assists a man to rape another woman or who makes it possible for him to do so, cannot be held to have committed the act of rape ( S v Jonathan en Andere 1987 (1) SA 633 (A) at 643H - I).”

In a number of other cases reference has been made to Schedule 2 (Part 1) of the aforesaid Criminal Law Amendment Act as if the application of the common purpose doctrine is part of our established jurisprudence. See S v Gagu and Another 2006(1) SACR 547 (SCA) at 550f-551e and S v Vilakazi 2009(1) SACR 552 (SCA) at 559a-b.

21. Perhaps the most elaborate investigation into the question whether the common purpose doctrine applies to rape cases was undertaken by the Namibian Supreme Court in S v Gaseb and Others 2001(1) SACR 438 (NSC). The Court there, relying on a number of legal authors, came to the conclusion that the doctrine cannot be applied to crimes, like rape, that can be committed only through the instrumentality of a person’s own body or part thereof, and not through the instrumentality of another. According to this view if a perpetrator rapes a victim and his companions merely restrain the victim without him being involved in sexually penetrating the victim he, and even several others who raped the victim, cannot be convicted of common purpose even though they may have conspired before hand to rape the victim.

21. In terms of the Gaseb reasoning, I suggest, if five bandits conspire to rape a woman or a man to punish him/her for what may have passed between them on a previous occasion and in accomplishing this conspiracy the fifth co-conspirator is interrupted before the act, he will be exonerated even though the evidence establishes the conspiracy and the fact that the fifth bandit was present on the scene, and was waiting his turn. If he can be convicted of conspiracy to rape why can’t he be convicted of common purpose in the same way as a robber?

21. In my view the views expressed in the Gaseb case are over-fastidious. The definition for a perpetrator for robbery and rape is the same, whatever means is employed to commit the crime. The distinction is artificial and more perceived than real. The doctrine of common purpose ought to apply to rape cases, and I make the positive statement that it does apply to them. Whereas the Constitutional Court, like the SCA, has not expressed itself specifically on this issue the following dictum in S v Thebus and Another 2003(2) SACR 319 (CC) at 343(f) – 344(a) (para 40) should apply across the crime divide:

“[40] Common purpose does not amount to an arbitrary deprivation of freedom. The doctrine is rationally connected to the legitimate objective of limiting and controlling joint criminal enterprise. It serves vital purposes in our criminal justice system. Absent the rule of common purpose, all but actual perpetrators of a crime and their accomplices will be beyond the reach of our criminal justice system, despite their unlawful and intentional participation in the commission of the crime. Such an outcome would not accord with the considerable societal distaste for crimes by common design. Group, organised or collaborative misdeeds strike more harshly at the fabric of society and the rights of victims than crimes perpetrated by individuals. Effective prosecution of crime is a legitimate, 'pressing social need'. The need for 'a strong deterrent to violent crime' is well acknowledged because 'widespread violent crime is deeply destructive of the fabric of our society'. There is a real and pressing social concern about the high levels of crime. In practice, joint criminal conduct often poses peculiar difficulties of proof of the result of the conduct of each accused, a problem which hardly arises in the case of an individual accused person. Thus there is no objection to this norm of culpability even though it by passes the requirement of causation.”

21. The evidence shows that State witnesses Sammores and Olivier and the intruders understood that the group were looking for matches (to light something). This was clearly a false pretext to seek such a cheap and freely available commodity which they must have had in their possession (at that time of the night or morning). It is undisputed that as soon as Malouly forced Mrs MV into the house he summoned the others into the house (he whistled to them to enter). They closed the door, blindfolded Mrs MV’s husband, an act clearly designed to prevent him from identifying the culprits and preventing him from rendering any assistance to his hapless wife. Their sheer numbers at that time were also intimidating and stifled any resistance. I cannot imagine that it can be suggested that appellant should be given any benefit of the doubt. What doubt? See also S v Mgedezi 1989(1) SA 687(A) at 702H – 704A, which was applied by the trial Judge. In S v Molimi and Another 2006(2) SACR 8 (SCA) at 19J -20(a) para 33 the Court stated:

“It has long been accepted that the operation of the common purpose doctrine does not require each participant to know or foresee in detail the exact manner in which the unlawful consequence occurs. Were it otherwise, it would not be possible to secure a conviction simply on the basis that some event had happened during the execution of the common purpose, that all the participants in the common purpose had not more or less planned for. All that is required for the State to secure a conviction on the basis of common purpose is that an accused must foresee the possibility that the acts of the participants may have a particular consequence, such as the death of a person, and reconciles himself to that possibility. ”

21. On Olivier J’s reasoning if accused 4 and 6 had not admitted all the elements of the rape charge that took place at Mrs M’Vs house they too should have been acquitted. Williams J, who granted leave to appeal to the Full Bench on the rape charge and also concurs in the judgment of Olivier J, on denying appellant leave on the other charges stated that:

“Wat die diefstal en aanrandingklagte betref is daar na my mening geen redelike vooruitsig van sukses op appél nie. ---

Die aansoek om verlof om te appelleer teen die skuldigbevinding op aanklagte 3 en 4, die aanranding en diefstalklagtes word egter van die hand gewys.”

It is not clear to me where the distinction lies because the evidence shows that all the offences on which the appellant was convicted arose from the same set of facts and the drama played itself out in the same dark room or under the same “discotheque” lights “operated” by Sammores and some of the accused.

21. On the evidence of Sammores, Ricardo and the complainant, having regard also to the fact that appellant’s alibi defence has been rejected, it stands as an unshaken edifice that complainant was abducted. The evidence is further plain that the appellant was one of the abductors. See excerpt of evidence in para 9 (above). I am unable to understand why, therefore, it cannot be said at the very least that appellant intentionally facilitated, assisted or encouraged the commission of the second rape of the complainant. On that basis only he is guilty as an accomplice. If the appellant walks free I have no doubt that it would constitute one of the worst failures of justice.

21. In my view there is a final resort. On the facts set out hereinbefore the appellant is unquestionably guilty as an accessory after the fact, if he was neither a perpetrator nor an accomplice. Before he was charged the appellant sought to mislead Sergeant Wessels when he apprehended accused 2, Malouly, who is a rape perpetrator. He informed Wessels that Malouly was in his company, away from the scene of the crime, when the offences were said to have taken place. Not only that, he conspired with accused 2, 4, 5 and 6 to eliminate him and accused 2 from the scene. See: S v Phallo and Others 1999(2) SACR 558 (SCA) at 565i – 568b; R v Gani and Others 1957(2) SA 212 (A); S v Jonathan en Andere 1987(1) SA 663(A) and R v Victor and Another 1965(1) SA 249 (SRA) at 253G – 256F. To suggest that appellant meant to inform Sgt Wessels that Malouly was in his company on the scene of the crime is stretching it a bit because his defence throughout and consistently was an alibi.

21. Having regard to the entire body of evidence, the judgment of the Court a quo, the authorities cited and the correct approach to be adopted by an appellate tribunal, I am satisfied that relative to the essence of his judgment the learned Trial Judge did not misdirect himself on appellant’s rape conviction nor has the appellant convinced me that this Court should interfere in his conviction.

21. On a different matter; it cannot be left unremarked that paras 42 – 51 of Olivier J’s judgment rehashes the summary of the facts of the case dealt with above. I am of the respectful view that they are superfluous and their omission would not detract from the proper understanding or quality of the composite judgment. See S v Bhengu 1998(2) SACR 231(N) at 234h – j and S v Kok 2005(2) SACR 240 (NC) at 241i -242d.

21. In the premises I would dismiss the appeal.

_____________________

F DIALE KGOMO

JUDGE PRESIDENT

Northern Cape High Court, Kimberley

Olivier J:

41. 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. I respectfully differ from Kgomo JP’s remarks in this regard in the added paragraph [39] of his judgment. As regards the reference to the Bhengu case I say no more than that I sincerely believe that paragraphs [42] to [51] below set out the material facts in a manner and context different from Kgomo JP’s judgment and that their contents cannot simply be run down as “rehashing” or repetition.

41. 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 complainant².

41. 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.

41. 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.

41. 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.

41. 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.

41. 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.

41. 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.

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

41. 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.

41. 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.

41. 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.

41. 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.

41. 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”³.

41. 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.

41. 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.

41. 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 house⁴.

41. 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 him⁵.

41. 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 status⁶.

41. As regards Kgomo JP’s reference to S v Nkomo⁷ 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.

41. 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.

41. 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 ...”⁸ (My emphasis)

41. 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 doubt⁹.

41. 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.

41. 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.

41. 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.

41. 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 complainant¹⁰. It was found that, although it had been dark and the complainant had (so it was found) made a mistake about the 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.

41. 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).

41. 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 the complainant could simply be ignored.

41. 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)?

41. 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.

41. 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 issue¹¹.

41. 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 raped¹² 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 inferences¹³, that the appellant had raped the complainant in the house; especially not on the evidence of the complainant.

41. 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 house¹⁴, 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.

1. 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.

41. 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 her¹⁵. It simply had no direct bearing on that issue.

41. 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 house¹⁶ 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.

1. 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.

41. 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 wrong¹⁷.

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.

41. It follows that I cannot, with respect, agree with the statement in paragraph [27] 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 Mafaladiso¹⁸ 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.

41. 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.

41. 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.

41. 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 ….”¹⁹.

42. 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.

41. 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 house²⁰.

41. 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.

41. 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”²¹. 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 2 had been together all the time, but also that they had been “away from the … scene”²².

41. 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 scene²³.

41. 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.

41. 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”²⁴).

41. 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.

41. 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

---