Mayekiso v S (CA&R34/21) [2021] ZAECGHC 79 (31 August 2021)

IN

THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

CASE NO.: CA&R34/21

In the matter between:

MONDE

MAYEKISO

APPELLANT

and

THE

STATE

RESPONDENT

JUDGMENT

GOVINDJEE AJ

Background

[1] The appellant was convicted by the Regional Court in Port Elizabeth on charges of rape and common assault on 21 October 2020. He was sentenced to an effective 10 years’ imprisonment, and appeals only against his rape conviction, leave to appeal having been granted by the court a quo.

The complainant’s version

[2] The complainant testified that she had attended a party in Greenbushes. She was waiting at a bus stop at approximately 5:30pm. A motor vehicle, driven by the appellant’s brother, stopped there. The appellant was sitting in the passenger seat and enquired as to the complainant’s destination. After answering, the complainant boarded the vehicle. When the vehicle stopped, the appellant indicated that the complainant should alight and go into his house. He also advised her that he would collect a motor vehicle from his garage.

[3] Instead, the appellant followed the complainant into the house and closed the door. He instructed the complainant to undress but she was reluctant to do so. He then pulled down her panties and allegedly raped her, while she was screaming. The complainant eventually managed to beat the appellant off her and ran to the door, which she could not open. At some point after the incident, she advised the appellant that she was HIV-positive. The appellant assaulted her near the front door by hitting her on the leg once with a chair. He then opened the door himself for her. The complainant, wearing only a T-shirt, ran outside and towards a neighbouring house. The appellant threw her pants outside as she departed. By this time the complainant had stopped screaming but was still crying. She had also soiled herself due to shock and received toilet paper from a couple who lived next door to the appellant’s residence (the Langfords), who advised her to go to the nearby police station. The complainant told the couple that she had been raped by ‘the man next door’, and Mr Langford testified to that effect.

[4] The complainant went to the police station and was taken to Dora Nginza Hospital. The J88 form admitted into evidence confirms that the complainant suffers from extensive warts on her backside. No medical evidence was led during the trial, but it is apparent from the J88 form that sexual penetration could not be excluded when the complainant was examined at the time.

The appellant’s version

[5] The appellant’s version of events was notably different. He and his brother were driving back from Sunday lunch, with the music loud and their windows down. They observed the complainant, who was carrying two bottles of Black Label beer in her hands. The appellant indicated, in a jocular way, that she could enter the vehicle. She did so and the brothers drove off without speaking to her further. The complainant followed the appellant out of the vehicle when it stopped outside his place of residence. A hair salon business was attached to the house and the two spent some time drinking together there, after the appellant checked that the house was secure. The conversation and conduct was flirtatious and the complainant was intoxicated. At some point the complainant advised the appellant that they should proceed more quickly, as she could not spend the night with him. The appellant took the discussion to mean that the complainant was willing to have sexual intercourse with him. The complainant asked for money, received R50 and proceeded with him, willingly, to the bedroom.

[6] The appellant left the complainant seated on the bed in order to fetch a condom from the shop side of the house. When he returned, the complainant was under the blankets in bed and naked from the waist down. He experienced a bad smell while undressing, but thought that this emanated from the room’s en suite bathroom. The appellant entered the bed and proceeded to touch the complainant’s vagina. Something was hanging from that area and felt wrong to him and his hand became exceedingly wet. Concerned, he confronted the complainant about a possible infection, and an argument developed. The complainant kept herself covered and refused to let him see that part of her body. She started crying because he was making fun of her sickness. During the argument, the appellant noticed that she had placed a watch of his inside her bra, grabbed the watch and advised her to leave.

[7] The appellant left the bed and went to open the front door of the premises. The complainant remained in the bedroom drinking beer. The appellant was angry that the complainant had not told him about her problem. He eventually pulled the complainant up by her upper arm and towards the front door, approximately ten metres away, and pushed her out of the house. She was carrying a glass of beer and her pants and fell near a step by the front door, screaming. The glass broke outside the door and the police had taken a photograph of this. The appellant admitted that he was wrong to have handled the complainant in that manner and to have thrown her out of the house while naked from the waist down. He suspected that the complainant had accused him of rape because she was embarrassed and concerned that he would report her for attempted theft.

The Magistrate’s Judgment

[8] The Magistrate found the evidence of the complainant to be reliable, despite noting that answers had been long-winded at times. She placed particular reliance on the evidence that the complainant had been crying and shouting, and that she looked upset, presumably to Langford, and was naked from the waist down when she exited the house. The Magistrate then noted that there was nothing unsatisfactory about the appellant’s evidence. At this point in the analysis, the Magistrate sought to resolve the two conflicting versions in respect of the actual rape. She did so by relying on the following improbabilities in the appellant’s version:

a. Why would the appellant have wanted to proceed with the agreed sexual intercourse even after noticing the bad smell?

b. It would be strange if the complainant had cried merely because the appellant had enquired about the problem with her skin.

c. The complainant would not have taken the appellant’s watch, hidden it in her bosom and proceeded with the sexual transaction knowing that the watch was likely to be found.

d. The complainant would not have continued to drink alcohol in the appellant’s room after having been humiliated by him.

[9] The Magistrate concluded as follows:

‘It is for these reasons therefore that the Court finds that the complainant’s evidence, even as a single witness and imperfect as it was, is the one that makes a lot more sense and it is sufficient proof to this Court by the state that what she had said happened is actually what had happened between the two of them on the date of the incident.’

[10] On this basis, the Magistrate rejected the appellant’s evidence in its entirety and found him guilty of rape.

Analysis

[11] It is trite that an appeal court’s power to interfere with the trial court’s assessment of oral evidence and its findings of fact and credibility is limited. In the absence of a material misdirection on fact the trial court’s conclusion is presumed to be correct. This is because the trial court may be in a better position than an appeal court, in that the presiding officer a quo may be more able to estimate what is probable or improbable in relation to the particular people whom she has observed at the trial. Bearing in mind the advantage which a trial court has of seeing and hearing the witnesses, it is only in exceptional cases that an appeal court is entitled to interfere with the trial court’s evaluation of oral testimony.[1]

[12] There may, however, be a misdirection of fact by the trial court where the reasons are either on their face unsatisfactory or where the record shows them to be such. There may also be such a misdirection where, though the reasons as far as they go are satisfactory, the presiding officer is shown to have overlooked other facts or probabilities. The appellate court is then at large to disregard the presiding officer’s findings on fact, even though based on credibility, in whole or in part according to the nature of the misdirection and the circumstances of the particular case, and to come to its own conclusion on the matter.

[13] In this instance the Magistrate misdirected herself by reverting to the balance of probabilities test and by failing to interrogate the evidence of the single witness complainant sufficiently. The correct approach was highlighted in S v Singh:[2]

‘Because this is not the first time that one has been faced on appeal with this kind of situation, it would perhaps be wise to repeat once again how a court ought to approach a criminal case on fact where there is a conflict of fact between the evidence of the State witnesses and that of the accused. It is quite impermissible to approach such a case thus: because the court is satisfied as to the reliability and credibility of the State witnesses, that therefore the defence witnesses, including the accused must be rejected. The proper approach in a case such as this is for the court to apply its mind not only to the merits and demerits of the state and defence witnesses but also to the probabilities of the case. It is only after so applying its mind that a court would be justified in reaching a conclusion as to whether the guilt of an accused has been established beyond reasonable doubt…’ (own emphasis).

[14] The concluding passages of the Magistrate’s judgment make it clear that she satisfied herself as to the appellant’s guilt because of certain perceived improbabilities in his version of events, so that the complainant’s version was accepted in totality and his version rejected. This approach is in conflict with the guidance offered by the Supreme Court of Appeal in S v Shackell, in respect of the effect of improbabilities in the accused’s version:[3]

‘Equally trite is the observation that, in view of this standard of proof in a criminal case, a court does not have to be convinced that every detail of an accused’s version is true. If the accused’s version is reasonably possibly true in substance the court must decide the matter on the acceptance of that version. Of course it is permissible to test the accused’s version against the inherent probabilities. But it cannot be rejected merely because it is improbable; it can only be rejected on the basis of inherent probabilities if it can be said to be so improbable that it cannot reasonably possibly be true.’

[15] Having adopted the incorrect approach, the court a quo failed to consider the probabilities of the case as a whole, and whether the guilt of the appellant had been established beyond reasonable doubt. As the court held in Mosephi and Others v R:[4]

‘There is no substitute for a detailed and critical examination of each and every component in a body of evidence. But. Once that has been done, it is necessary to step back a pace and consider the mosaic as a whole. If that is not done, one may fail to see the wood for the trees.’

[16] The proper approach is for an accused to be convicted if the evidence establishes his guilt beyond reasonable doubt. The logical corollary is that an accused person must be acquitted if it is reasonably possible that he might be innocent.[5] Before rejecting the appellant’s version on the probabilities, the court ought to have found, as a matter of probability, that the appellant’s version was simply not reasonably possibly true. The reasons advanced by the Magistrate for her conclusion demonstrates that this enquiry was not conducted properly. This failure constitutes a material misdirection, justifying this court’s interference with the Magistrate’s findings of fact so that a different conclusion is reached, based on the appellant’s version.

[17] Finally, it bears mention that the Magistrate’s decision is assailable for a further reason. The conclusion to be reached by a criminal court when assessing evidence and deciding whether to convict or acquit must account for all the evidence. Evidence may not simply be ignored.[6] In accepting the complainant’s version of events and rejecting the version of the appellant, no reasons are advanced in respect of the broken glass pictured outside the front door of appellant’s residence. That broken glass accords with the appellant’s version that the complainant had been drinking beer from a glass while he went to open the door, and that she was carrying the glass when he dragged and pushed her out of the house. This is fatal to the complainant’s version that she managed to push the appellant off whilst he was raping her and ran directly to the door.

[18] For these reasons, the appeal against the conviction of rape (count 1) must be allowed.

Order

[19] The following order is made:

a) The appeal against the conviction on count 1 is upheld.

b) The conviction and sentence on count 1 are set aside and substituted with the following:

“On count 1 the accused is found not guilty and discharged”.

A GOVINDJEE

ACTING

JUDGE OF THE HIGH COURT

I agree.

R E GRIFFITHS

JUDGE OF THE HIGH

COURT

APPEARANCES:

FOR THE APPLICANT : Adv Charles

INSTRUCTED BY : Legal Aid South Africa

Grahamstown

FOR THE RESPONDENT : Adv P Zantsi

INSTRUCTED BY : National Director of Public Prosecutions

HEARD ON : 25 August 2021

DELIVERED ON : 31 August 2021

[1] R v Dhlumayo 1948 (2) SA 677 (A).

[2] 1975 (1) SA 227 (N) at 228, cited with approval in S v Guess 1976 (4) SA 715 (A) 718-F-719A.

[3] 2001 (2) SACR (SCA) 194g-i.

[4] (1980-1984) LAC 57 and 59F-H.

[5] S v Van Aswegen 2001 (2) SACR (SCA)

[6] S v Van der Meyden 1999 (2) SA 79 (W).