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FORM A

FILING SHEET FOR EASTERN CAPE HIGH COURT, GRAHAMSTOWN JUDGMENT

PARTIES:

THE STATE

and

THOBANI NKAWU

Registrar: CASE NO: CC06/09

• Magistrate:

• High Court: EASTERN CAPE HIGH COURT, GRAHAMSTOWN

DATE HEARD: 30/3/09-1/4/09

DATE DELIVERED: 2/4/09

JUDGE(S): Plasket J

LEGAL REPRESENTATIVES –

Appearances:

2. for the Appellant(s)/State: Mr H. Obermeyer

3. for the Respondent(s)/Accused: Mr C. Schuring

Instructing attorneys:

Appellant(s)/State: Director of Public Prosecutions, Grahamstown Respondent(s)/Accused: Legal Aid Board

CASE INFORMATION -

2. Nature of proceedings : Housebreaking with the intent to rape and rape

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, GRAHAMSTOWN)

CASE NO: CC06/09

DATES HEARD: 30/3/09-1/4/09

DATE DELIVERED: 2/4/09

NOT REPORTABLE

THE STATE

and

THOBANI NKAWU

JUDGMENT

PLASKET, J:

[1] The accused is charged with two counts, namely housebreaking with the intent to commit rape in contravention of s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 and rape in contravention of s 3 of the abovementioned Act. He pleaded not guilty to both counts. His defence is an alibi.

[2] The summary of substantial facts state:

‘1. The accuse is the neighbour of the first complainant and her daughter (the second complainant)

2. During the night he broke into and entered their home while the first complainant was out

3. He then took her daughter from the house to a nearby river where he raped her from behind.

4. He returned to the house with the child and slept on a couch.

5. A medical examination of the complainant was performed the next morning. It was found that the complainant had redness and fissures/cracks to the anus, as well as a linear superficial cut along the peri-anal region.’

[3] The complainant in count 2, a 10 year old girl at the time, testified that on the evening of 13 September 2008, her mother went out, leaving her and her siblings alone at home. She heard one of the windows in the house being broken and the accused entered the house through it. He took the complainant from her bed, placed her on her mother’s bed and opened the door. He took her out of the house towards a cemetery. There she managed to break free and run away but he caught her. He took her to a dark area where he ordered her to undress and to kneel. When she had done so, he penetrated her per anum.

[4] He took her back to her house and told her to go to bed. He went to sleep on the sofa. Some time later, the complainant’s mother returned. The complainant let her in. The accused was still on the sofa. The next morning, she told her mother what had happened. She was later taken to a doctor and was medically examined.

[5] Her younger sister, Siyamthanda, also testified. She said that she awoke when the accused was in the house. She saw him place the complainant on her mother’s bed and then leave the house with her. Both of them returned later and the accused slept on the sofa. Siyamthanda is eight years old. She said in her evidence in chief that she saw the accused rape her sister. When she was asked to explain what she meant, she said that when she said that the accused raped the complainant, she meant that he went outside with her.

[6] The complainant’s mother confirmed that she had gone out, leaving her children at home. She had gone to a neighbour’s house to watch a movie. At a stage the accused came there looking for his brother. She is sure that he saw her.

[7] When she returned home, the complainant let her in. She saw that the accused was lying on the sofa. He told her that the complainant had let him in and that he had been too drunk to walk to his home (which was, she said, about five houses away). She said, however, that he appeared to be sober. She was surprised to find him there as he had never slept there before.

[8] The next morning, while the accused was still there, the complainant told her what had happened. She noticed that a window had been broken so that it could be opened and that there was broken glass inside the house. She went to call a friend and when she returned with her, the accused had left. She, along with her friend and the complainant, went to the accused’s home where the complainant told his parents what he had done. He denied this and she decided to go to the police. She did so and the complainant was medically examined.

[9] Dr. Riego De Dios testified that he had examined the complainant on 14 September 2008. He found a ‘linear superficial cut about 3 – 4 cms along the peri-anal region’. On examining her anus, he found redness and fissures or cracks. These injuries, he said, were consistent with the complainant having been penetrated anally. This evidence was not challenged.

[10] The accused testified in his own defence, as did his father. He testified in chief that on the evening of Saturday 13 September 2008, he had gone to a tavern with his friends at between 21h00 and 22h00 and that he only returned home from the tavern at about 06h00 the following morning. He denied having been at the house of the complainant, of having broken into it and of having raped her. He conceded, however, that he knew the complainant. Indeed, he stated when he was cross-examined that he and the complainant, her mother and sister saw each other regularly. He also said that he sometimes went to their house to smoke with the complainant’s mother. He knew, as well, that the complainant’s mother lived alone with her four children.

[11] When the accused was cross examined he gave detail of his night in the tavern. He told his mother, father, brothers and sisters that he was going to a tavern with friends before he left home. He left home, he said, at about 20h00 and went to a cousin’s house where they drank some wine. He later went to a tavern. This was at about 21h00. He met two friends there by the names of Lulama and Mandisi. They drank, spoke, listened to music and danced at that tavern and at another one for the entire night.

[12] When he returned home, he went to bed but was woken a while later by the complainant’s mother who knocked on the door. He opened the door for her and she accused him of having raped her daughter. She stabbed him on the chest. She insulted him continuously thereafter and made such a noise that neighbours arrived. They said that the complainant must be brought so that she could be inspected. Instead, the complainant’s mother left with the complainant. Later that day the accused was arrested. This version of events underwent something of a change during the course of cross examination. For instance, the arrival of the neighbours fell out of the picture and he said that his father intervened when he was stabbed to stop the complainant’s mother from stabbing him again. No mention was made of the continuous stream of insults that he had said the complainant’s mother had heaped on him. He also tried unsuccessfully to explain that he had been in a tavern all night.

[13] The accused was asked whether Lulama and Mandisi were going to testify in support of his alibi. He said that they would do so and he confirmed that they were at court. They were never called as witnesses. Instead, the accused’s father, Mr Gilbert Nkawu, was called.

[14] The purpose of his evidence was to support the accused’s alibi but his evidence differed in significant ways from the accused. For instance, he said that on 13 September 2008, the accused left the house at about 21h30 and said that he was going to join his brother at a tavern. Mr Nkawu said that the accused returned at about 04h30 and told him that he had been at a tavern. When he was cross examined, however, he said that the first time he saw the accused in the morning was when he opened the door for the complainant’s mother. He conceded that he had only heard the accused’s door open at 04h30 and had not spoken to him. His evidence also differed from the accused in relation to the arrival of the complainant’s mother. When she stabbed the accused, Mr Nkawu did not intervene because she did not try to stab the accused again. Instead he berated her and chased her out. Furthermore, the accused made no attempt, according to Mr Nkawu, to explain to the complainant’s mother that he could not have raped her daughter because he had been in a tavern the whole night.

[15] The complainant, her sister and her mother all impressed me as good witnesses who gave coherent and consistent evidence that was not discredited in cross examination. Their evidence was mutually corroborative. A great deal of their evidence was not challenged. I was also favourably impressed by the evidence of Dr. Riego De Dios. In any event, his evidence was not challenged and must be accepted.

[16] The following evidence is unchallenged and, given the quality of the witnesses for the State, who I have referred to above, must be accepted: (a) the complainant’s house was broken into; and (b) she was taken from her house and penetrated anally.

[17] I am mindful, before I proceed further, that the complainant’s evidence must be assessed with caution as she is young and a single witness as far as the rape is concerned. I am satisfied that her evidence was of a high quality but, in addition, her version is corroborated. In the first place, her evidence that the accused broke into the house is corroborated by her sister, as is her evidence that the accused took her out of the house. Her evidence that the house was broken into in the way she described is corroborated by her mother, who observed that the window had been broken and who saw broken glass inside the house. Her evidence that the accused returned with her to the house and went to sleep on the sofa is corroborated by her mother who returned home to find the accused on the sofa. Her evidence that she was penetrated anally is corroborated by the evidence of Dr Riego De Dios. I am satisfied, therefore, that approached on the basis of the caution that the law requires, her evidence can be accepted: there are more than adequate guarantees of its reliability.

[18] The central issue to be decided is the identity of the person who broke into the house and who raped the complainant. The complainant and her sister both stated that the accused was the person who entered the house and took the complainant from there. She stated that he raped her. Her mother found the accused on the sofa in the house on her return. All three witnesses testified that the light, from both the moon and the high street light nearby was adequate to identify the facial features of a person and that they were able to identify the accused in this way. In addition, the complainant stated that she was taken along the street by him and she was able to see his face by the light of the street lights along the way. She was also in his company for a significant period of time. The complainant’s mother spoke to the accused when she returned home and, on the following morning, he was still present when they woke up. They would then have been able to have seen him in day light.

[19] It is not in dispute that the accused was known to all three of the witnesses. He said that he saw them regularly. They lived within 30 to 40 metres of each other and the family frequented the shop at the accused’s home as regular customers. On some occasions the accused would go to the complainant’s house to smoke with her mother.

[20] In my view, the facts that I have set out above establish that the identification of the accused was reliable in the sense that the witnesses had a proper opportunity to identify him. I am also of the view that the possibility of them being mistaken is non-existent in the light of the fact that they knew him, spoke to him and spent a considerable period of time with him. Indeed, the only explanation for a wrong identification would be that the complainant’s mother had decided to falsely implicate him in the rape of her daughter and then coached her daughters, now 11 and eight years old respectively, to give false evidence. Not the slightest hint of such a conspiracy raised its head in the evidence of any of them and I am sure that it would have had they so conspired. Why the complainant’s mother or the complainant would want to implicate the accused falsely is beyond me: in the first place it would have involved the taking of a deliberate decision to allow the real culprit to escape scot-free and secondly it is improbable in the extreme in the light of the evidence of the accused that there were no problems between him and the complainant’s family and that he sometimes smoked with the complainant’s mother at her house. I may add that the accused’s father tried to raise a family feud as a possible reason for his son being implicated falsely but his attempt to do so was singularly unconvincing.

[21] What then of the evidence of the accused and his father? I have noted when I summarised their evidence that there were significant contradictions in their evidence as to times and who the accused was going to meet. Succintly put, the accused’s father’s evidence did not support his alibi with any conviction. It is noteworthy too that although the people in whose company he claimed to have been were present and available to testify, they were not called as witnesses.

[22] It is trite that there is no onus on an accused to prove his alibi. When a court assesses evidence in a criminal trial, it ‘does not look at the evidence implicating the accused in isolation in order to determine whether there is proof beyond reasonable doubt, and so too does it not look at the exculpatory evidence in isolation in order to determine whether it is reasonably possible that it might be true’. See S v Van Der Meyden 1999 (1) SACR 447 (W) at 448h-i. The same approach holds good when the accused raises an alibi as a defence. In S v Hlongwane 1959 (3) SA 337 (A) at 341A, Holmes AJA stated that the ‘correct approach is to consider the alibi in the light of the totality of the evidence in the case, and the Court’s impressions of the witnesses’.

[23] In assessing the evidence as a whole, a court may find that even though, viewed in isolation, the accused’s version may appear to be reasonably possibly true, when viewed within the context of the evidence as a whole, it cannot be. Thus, in S v Van Tellingen 1992 (2) SACR 104 (C) at 106d-f, a full bench held as follows:

‘Die Staat se bewyslas in strafverrigtinge is heelwat meer veeleisend as dié van ‘n litigant in siviele verrigtinge. Die onderskeid is herhaaldelik deur die Howe benadruk en dit gebeur dus dikwels dat howe genoop voel om te sê dat ‘n beskuldigde se weergawe nie verwerp kan word slegs omdat die Staatsgetuies se getuienis op ‘n balans van waarskynlikhede meer aanneemlik is nie. Dit beteken egter nie dat die waarskynlikhede irrelevant is in die opweging van die meedingende weergawes nie. Dit beteken ook nie dat slegs omdat ‘n beskuldigde se getuienis, in isolasie beskou, nie vatbaar vir kritiek is nie, daar geen sprake van ‘n positiewe verwerping van sy getuienis kan wees nie. Die gehalte en oorwig van getuienis tot die teendeel mag so oortuigend wees dat ‘n hof genoop voel om die moontlikheid dat die beskuldigde se weergawe waar mag wees uit te skakel. Alles sal van die trefkrag van die Staat se getuienis aan die een kant en dié van die beskuldigde aan die ander kant afhang. Daar sal gedurig onthou moet word dat die bewyslas deurgaans op die Staat rus.’

See too S v Bruiners en ‘n ander 1998 (2) SACR 432 (SE) at 439i-440a.

[24] In my view this is indeed such a case where the totality of the State’s evidence is so overwhelming that it can be concluded that the accused’s alibi, when placed in the context of the evidence as a whole, cannot be reasonably possibly true. When to this is added the contradictory evidence of the accused and his father and the failure to call the two people with whom the accused says he spent the night in question, his version must be rejected as false beyond reasonable doubt.

[25] I therefore accept the evidence tendered by the State and reject that tendered by the defence. In so doing, I conclude that the accused, having gone to the complainant’s neighbour’s house to look for his brother, saw the complainant’s mother there and knowing that her children were alone at home went there. His actions, once he broke and entered the house are susceptible to only one reasonable inference and that is that he broke in with the intention to rape the complainant. That he then proceeded to rape her – by unlawfully and intentionally committing an act of what s 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act calls ‘sexual penetration’ – has also been proved beyond reasonable doubt.

[26] In the result, I find the accused guilty as charged.

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C. PLASKET

JUDGE OF THE HIGH COURT

APPEARANCES

For the State: Mr H. Obermeyer of the office of the Director of Public Prosecutions, Grahamstown

For the accused: Mr C. Schuring instructed by the Legal Aid Board

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