Hlongwane v S (A377/2017) [2021] ZAGPPHC 800 (30 November 2021)

IN THE HIGH COURT OF SOUTH AFRICA(GAUTENG DIVISION, PRETORIA)

REPUBLIC

OF SOUTH AFRICA

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3)

REVISED

DATE: 30 NOVEMBER 2021

Case Number: A377/2017

In the matter between:

SELLO JEREMIAH HLONGWANE

Appellant

And

THE STATE

Respondent

JUDGMENT

JANSE

VAN NIEUWENHUIZEN J

[1] This is an appeal against the appellant’s conviction in the Sebokeng Regional Court on a count of housebreaking with the intent to commit a crime unknown to the State and a count of rape.

[2] It is common cause that the appellant on 17 December 2014 entered the residence where the victim was visiting and that he had sexual intercourse with her. The appellant, in his plea explanation, alleged that the victim was his girlfriend, that she invited him to the residence and that they had consensual sexual intercourse. All of these allegations are denied by the victim.

Evidence

[3] In proof of the case against the appellant, the State presented the evidence of the victim, of a certain Agnes Dimakitso Ndlovu (“Agnes”), the victim’s cousin and that of Dr Kalain.

[4] The victim testified that she visited her sister on the weekend that the incident occurred. The victim’s sister stays in a residence that is divided into two units and the second unit is occupied by her cousin Pene Ndlovu. The wall that divides the units does not reach the roof and it is possible to gain entrance from one unit to the other by climbing over the middle wall.

[5] The victim was in the company of three children and after watching some television, they all went to bed. The victim fell asleep and was awakened at 2:00 in the morning by someone touching her.

[6] The victim testified that a struggle ensued between her and the appellant, that the appellant overpowered her and that he eventually succeeded in raping her. Whilst the sexual assault was in progress the eldest child, Felicia endeavoured to unlock the door, but was told by the appellant that he will assault her should she proceed and she retreated. After the sexual assault, the appellant could not find the key to the unit’s door and instructed the victim to climb over the wall to her cousin’s unit.

[7] The victim was told by the appellant to remain in her cousin’s unit and to be still. The appellant left the unit and the victim heard him converse outside the unit. The moment she could no longer hear the voices, she ran from the unit and found Agnes and her boyfriend at the gate. She immediately informed them that the person that had just left the premises raped her.

[8] The victim was eventually taken to the police station and examined by Dr Kalian. She testified that the appellant and his sister were also present at the police station.

[9] Agnes testified and confirmed the version of the victim in all material respects. Agnes knows the appellant and immediately recognised him when he ran from Pele’s unit. When asked why he was running he stated that someone “is fighting him from the other street”. This evidence confirms the victim’s evidence that the door of her sister’s unit was locked and the appellant had to jump over the dividing wall into Pele’s unit to get away.

[10] Dr Kalain testified that he examined the victim on 17 December 2014 at 09:10. Dr Kalain explained the medical findings in the J88 medical examination form he completed during the examination. Dr Kalian’s findings in respect of the Gynaecological Examination appears in Section E and his conclusion reads as follows: “Multiple genital injuries consistent with forceful penetration.”

[13] Dr Kalain did not only confirm the victim’s evidence that she was raped, but also testified that the victim had a soft tissue injury on her shoulder, which confirms the victim’s version that a struggle ensued between her and the appellant prior to the rape.

[11] This concluded the evidence on behalf of the State and the appellant as well as his sister, Flora Hlongwane (“Flora”), who testified in his defence.

[12] The appellant testified that he was in a relationship with the victim for two months prior to the incident and that the only person who was aware of the relationship was Pene, the victim’s cousin. The appellant and the victim normally met at a garage or at the highway and he did not know the address of her sister’s place.

[13] On the day of the incident the victim phoned the appellant and invited him to her sister’s house. She told him that her sister was not at home and provided him with directions to her sister’s house. Upon his arrival he phoned the victim who told him he must come into the house and that the door is not locked. They watched television and then proceeded to have sexual intercourse. After the intercourse, the appellant got dressed. Shortly after he got dressed the victim’s sister arrived home and an altercation ensued. The victim’s sister accused the appellant of raping the victim.

[14] The victim’s sister decided to call the police and whilst she was busy phoning the police, the appellant left through the front door of the unit and proceeded to his parents’ house. The appellant testified that he did not run from the house and he denied that he saw Agnes and her boyfriend on his way out.

[15] Upon his arrival at his parents’ house, his sister saw him running into the house and she wanted to know what was wrong. I pause to mention that the appellant later on in his evidence-in-chief changed his version and stated that he was not running.

[16] The appellant told his sister what transpired, and she suggested that they go to the police station. Whilst the police officer was taking down his statement, the victim arrived and accused him of rape. He was arrested and could not finish his statement to the police officer.

[17] During cross-examination the appellant was asked why the victim did not show him where her sister’s house is. The appellant answered that the victim told him that her cousin, Pene, will show him where her sister’s house is. According to the appellant Pene did show him where the house was. When asked why it was then necessary for the victim to phone him to give him the address, the appellant first of all, said that he did not know which house on the property the victim stays in. When the fallacy of his answer was pointed out to him, he changed his version and stated that the victim most probably did not know that Pene had already shown him the house. Upon further questioning the appellant once again changed his version and stated that he asked for directions because he wanted to confirm that Pene had shown him the correct house.

[18] The appellant was confronted with the fact that he did not give a version to the police when his warning statement was taken down. The appellant, notwithstanding various attempts, could not give a satisfactory explanation.

[19] When asked to explain the injuries to the victim’s gynaecological area, the appellant provided a series of versions, none of which were convincing.

[20] The evidence of the appellant did not improve and he contradicted himself in various other aspects during cross-examination.

[21] Flora testified that she only saw the appellant, the morning before she went to work and that the appellant looked fine. This evidence contradicts the evidence of the appellant that Flora saw him when he was “running / walking” into the residence and that she there and then asked him what was wrong.

[22] On further prompting she told the court that the appellant actually did tell her what had transpired. It is not clear exactly when this conversation happened, i.e. when he got home in the early hours of the morning or when she saw him before she went to work.

[23] Be that as it may, according to her evidence the appellant, after being confronted by the victim’s sister, became agitated and said: “Okay it is fine. … I have raped her. Is it fine. You can do whatever you want to do”. After this revelation she advised the appellant to go to the police station and she accompanied him to the police station.

[24] Flora told the court that she was aware of the relationship between the appellant and the victim, because the appellant informed her of the relationship. This evidence is, once again, in direct contrast to the appellant’s evidence that only Pele knew about the relationship.

[25] Flora furthermore informed the court that the appellant already knew in October 2014 where the victim’s sister’s house is. When confronted with the appellant’s version that he did not know where the victim resided, she responded by saying that the appellant lied to court.

Judgment

[26] Having analysed the evidence in its totality, the court a quo found that the appellant’s version is not reasonably possibly true and convicted him as charged.

Grounds of appeal

[27] It was submitted on behalf of the appellant that the court a quo erred in finding that the appellant’s version is not reasonably possibly true. In the result, according to the appellant, the state did not prove its case beyond a reasonable doubt and the conviction should be set aside.

Test on appeal and discussion

[28] In S v Francis 1991 (1) SACR 198 (A) at 198j-199a the powers of a court on appeal to interfere with the findings of the court a quo was explained as follows:

“The powers of a Court of appeal to interfere with the findings of fact of a trial Court are limited. In the absence of any misdirection the trail Court’s conclusion, including its acceptance of a witness’ evidence, is presumed to be correct. In order to succeed on appeal, the appellant must therefore convince the Court of appeal on adequate grounds that the trial Court was wrong in accepting the witness’ evidence – a reasonable doubt will not suffice to justify interference with its findings. Bearing in mind the advantage which a trial Court has of seeing, hearing and appraising a witness, it is only in exceptional circumstances that the Court of appeal will be entitled to interfere with a trial Court’s evaluation of oral testimony”.

[29] Having carefully considered the evidence and the judgment of the court a quo, I am not convinced that the court erred in finding that the appellant’s version is not reasonably possibly true. The appellant contradicted himself in several instances and his evidence was in material aspects contradicted by the evidence of his sister. His version was, when compared to the evidence of the witnesses who testified on behalf of the State, so improbable that the court a quo was justified in rejecting his version. In my view, the appellant was correctly convicted as charged.

ORDER

[30] In the premises, I propose the following order:

The appeal against conviction is dismissed.

N. JANSE VAN NIEUWENHUIZEN

JUDGE OF THE HIGH COURT OF

SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

I agree

A. GRANOVA

ACTING JUDGE OF THE HIGH COURT

OF SOUTH AFRICA

DATE HEARD PER COVID19 DIRECTIVES: 7 October 2021

(Virtual hearing.)

DATE DELIVERED PER COVID19 DIRECTIVES: 30 November 2021

APPEARANCES

For the Appellant:

Advocate M.B. Kgagara

Instructed by: Pretoria Justice Centre -

Legal Aid South Africa

(BishopK@legal-aid.co.za)

Counsel for the Respondent:

Advocate K.M. Mashile

Instructed by: Office of the Director of Public Prosecutions, Pretoria

(Kmashile@npa.gov.za)