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IN THE HIGH COURT OF SOUTH AFRICA

(VENDA PROVINCIAL DIVISION)

HELD AT THOHOYANDOU

Case No: CC53/01

In the matter between:

MAPULE PHITHELA Applicant

and

THE STATE Respondent

JUDGMENT: Delivered on 17 November 2008

SNYMAN AJ

[1] This is an application for leave to appeal against the conviction of the applicant in the regional court on 5 September 2001 of rape, the matter having been referred to the High Court of South Africa (Venda Provincial Division) in terms of the provisions of section 52(1) of the Criminal Law Amendment Act, No. 105 of 1997 for sentence, and against the sentence imposed. The matter was heard by Makgoba AJ on 26 October 2001 who, in terms of the provisions of section 52(2) of the said Act, confirmed that the proceedings in the regional court were in accordance with justice and the applicant was then sentenced to imprisonment for life. The applicant also applies for condonotion for the late filing of the application for leave to appeal. I am informed that my learned Brother Mr Justice Makgoba is not available to entertain this application and in terms of the provisions of section 316(2)(a) of the Criminal Procedure Act, No. 51 of 1977, I am therefore entitled to entertain this application. For the sake of convenience, and in view of the fact that Makgoba AJ confirmed that the proceedings in the regional Court were in accordance with justice, the proceedings in the regional court and the High Court will be referred to as the court a quo. This application was enrolled for hearing on 4 November 2008 but due to unforeseen circumstances the legal representative for the applicant could not attend Court, the matter was postponed to 11 November 2008 for argument and on this day judgment was reserved for today.

[2] The application for leave to appeal was filed on 18 June 2008, nearly 7 years after sentence was imposed. The applicant also filed an application for condonation for the late filing of the application for leave to appeal on the same day. The applicant filed a founding affidavit and the respondent did not file any answering affidavit. The applicant relies mainly on two grounds why the application for leave to appeal could not have been brought at an earlier stage, namely: firstly, after sentence was imposed he instructed Mr Sebola, who represented him when sentence was imposed, to prosecute the application for leave to appeal who advised him that he will have to wait for the transcribed records of the proceedings in the High Court to enable him to make proper preparations for the said application, and that the registrar of the High Court at Thohoyandou had delayed to furnish him with the said transcribed records which were only furnished or made available to the applicant approximately 8 years after the date of finalisation of the trial, and secondly, that after receipt of the said records Mr. Sebola demanded exorbitant fees which he was unable to pay.

[3] The applicant did not state the date when he had instructed Mr Sebola to prosecute the said application nor did he state when he had received the said transcribed records; he furthermore did not state when his current attorney of record from the Legal Aid Board was instructed to prepare the application for condonation for leave to appeal. On perusing the contents of the Court file, I found a copy of a letter from the registrar of this Court dated 7 November 2007 addressed to the Thohoyandou Justice Centre, in which the said Justice Centre was requested to “process the appeal” of the applicant and copies of the trial record at the regional court, the argument and sentence by the High Court Thohoyandou were attached. The present application for leave to appeal, and the application for condonation, were only filed on 18 June 2008, and the applicant did not advance any explanation whatsoever for this delay of 7 months. When this Court questioned Mr. Madzhuta (who appeared on behalf of the applicant) he stated that the only explanation he could give was that they (the said Justice Centre) had to peruse all the records, to consult with the applicant and prepare the said applications and heads of argument and that they did not have time to finalise the said applications at an earlier stage.

[4] In perusing the contents of the Court file, I also found the following documents:

1. a copy of a notice of application for leave to appeal and condonation with supporting affidavits submitted by the applicant personally, received by the registrar of this Court on 11 May 2005;

2. a copy of the transcribed record of the proceedings held on 26 October 2001 and signed by my learned Brother Mr. Justice Makgoba on 5 October 2007.

These two documents clearly indicate respectively that the applicant had the intention to apply for leave to appeal ( and for condonation) in 2005 (despite the fact that the completed transcript of the record was at that stage not available), and that the transcript of the record of the proceedings before Mr Justice Makgoba was finalised only on 5 October 2007.

[5] In argument Mr. Madzhuta submitted that, in view of the fact that the applicant cannot be blamed for the delay in the bringing of his application and that the applicant has a reasonable prospect of success in the appeal, condonation should be granted. Mr Makhera, on behalf of the respondent, argued that because the applicant only brought an application for leave to appeal in 2005, i.e approximately three and half years after sentence, this conduct amounts to an abuse of the Court, and furthermore argued that the applicant has no reasonable prospect of success in the appeal, and that the application for condonation should not be granted.

[6] It is trite law that an applicant seeking condonation for non-compliance with prescribed time limits must show sufficient cause why he should be excused from compliance with such prescribed time limits. The basic principles in deciding whether sufficient cause has been shown, were set out in Melane v Santam Insurance Co. Ltd 1962(4) SA 531 (A.D.) at 532 C – E: “In deciding whether sufficient cause has been shown, the basic principle is that the Court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefore, the prospects of success, and the importance of the case. Ordinarily these facts are interrelated: they are not individually decisive, for that would be piecemeal approach incompatible with a true discretion, save of course that if there are no prospects of success there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate for prospects of success which are not strong. Or the importance of the issue and strong prospects of success may tend to compensate for a long delay. And the respondent’s interest in finality must not be overlooked”.

[7] It is common cause that the applicant’s application was brought before this Court 7 years after sentence was imposed. The applicant states in paragraph 6 of his founding affidavit that he instructed his legal representative, Mr Sebola, to prosecute the application for leave to appeal who then advised him that they will have to wait for the transcribed records of the proceedings in this Court to enable him to make proper preparations for the said application. It is common cause that the said transcribed record was made available only towards the end of 2007. According to the applicant, his new attorney could only after such receipt of the record proceeded with the application for leave to appeal. In my view, the applicant’s submission is correct, and even if there was a long delay, the applicant cannot be blamed for such delay. Having due regard to all the circumstances I am of the view that the applicant always had the bona fide intention of pursuing his application for leave to appeal, and that his conduct cannot be regarded as an abuse of the Court.

[8] The respondent has of course an interest in the finalisation of this matter, but having said that, the importance of the conviction (and resultant sentence) of the applicant and the interests of justice, should not be overlooked. The applicant was convicted of rape and sentenced to imprisonment for life and this is an important issue for the applicant because if he was convicted not in accordance with justice, he would be a free man. Furthermore, in my view, and as it appears from my reasons later on in this judgment, the applicant has reasonable prospects of success in the appeal against the conviction.

[9] Having due regard to the totality of all the circumstances and in the exercise of my discretion, and in the interests of justice, I am of the view that sufficient cause was shown for the late filing of the application for leave to appeal. In the result condonation is granted to the applicant for the late filing of his application for leave to appeal.

[10] The court a quo correctly found that the witness Maguma did not corroborate the evidence of the complainant insofar as the alleged rape is concerned. But, in my view, the court a quo erred in finding that the evidence of Dr Numbi who conducted the medical examination, corroborated the evidence of the complainant as to the alleged rape, for the following reasons:

1. the J88 form completed by Dr. Numbi does not state that the complainant was raped or sexually assaulted; in paragraph 14 of the J88 form the doctor observed, and I quote “lesion of the genitalia shows evidence of penetration by “hard object” that might be a penis”. And in cross-examination he stated “I am not saying, I am not confirming that she had intercourse. What I am saying is that the lesion that I found are compatible with intercourse” (see record p.34 lines 21 – 23);

2. there is no evidence as to the time of his examination and such examination could therefore have been conducted at any time since sunrise (when the applicant and the complainant parted ways) until just before midnight of the same day, namely 1 January 1999. In the absence of the time of the said examination and in the absence of any evidence whatsoever what happened to the complainant between the time she left the applicant and the time of the said examination, the fresh tear of the complainant’s hymen and the fresh abrasion of the fourchette cannot be attributed to the applicant;

3. and, most important, the applicant stated that a different medical report was read to him; in cross-examination the applicant stated the following to Dr. Numbi: “The medical report was read to me in court and the contents of the medical report were not the same as you had explained before court now. What brought the difference?” Before Dr. Numbi could answer, the court a quo interrupted by asking the applicant when it was read to him. The applicant stated that it was read at Chilopse and the court a quo then stated: “I do not know what to say because I have never been to Chilopse in the first place. Are you suggesting that this is a different (my emphasis) medical report that was ever read to you in connection with this matter”, and the applicant answered in the affirmative. Dr. Numbi could not comment on this aspect (see record p.33 lines 13-30, p.34 line 1). This aspect was never investigated by the court a quo and in my view, the court a quo had a duty to have done that where the applicant was not represented by a legal representative. In view hereof it seems that there were two medical reports of which the contents differed; this is strengthened by the fact that the complainant never testified that she was examined by Dr. Numbi at the Louis Trichardt Hospital; she only testified that her mother took her to the Madumbija’s clinic.

[11] In the absence of any evidence to corroborate that of the complainant, there is only the evidence of the complainant (being a single witness) and the evidence of the applicant. As far as the alleged rape is concerned there are two mutually destructive versions and a court cannot reject the evidence of an accused merely because it is contrary to that of a complainant or state witness. It seems as if the court a quo accepted the applicant’s evidence insofar as it corroborates that of the complainant but where his evidence was contrary to that of the complainant it was rejected as not being reasonably possibly true. This is not the correct approach: as was held in S v Shackhell 2001(2) SACR 185 (SCA) in par. 30 at 194 g – i if the accused’s version is reasonably possibly true in substance, a court must decide the matter on the acceptance of that version, and of course a court can have regard to the inherent probabilities. Having due regard to all the circumstances, including the possible existence of two contradictory medical reports, I am of the view that the applicant’s version cannot be rejected as not reasonably possibly true and/or improbable and/or false, and that respondent therefore failed to discharge the onus that rests on it. I am therefore of opinion that another court might reasonably come to a different conclusion on the conviction of the applicant.

[12] Insofar as sentence is concerned, I deem it unnecessary to elaborate on each and every ground advanced by the applicant in his application for leave to appeal, suffice to state the following:

1. common sense and/or logic dictates that the applicant cannot be genuine remorseful and be disgraced by the commission of this offence, because he at all times denied having committed this offence;

2. the age of the complainant was never disputed by the applicant, it was not challenged by the applicant and in view hereof, the respondent proved the age of the complainant conclusively.

In my view, there are no substantial and compelling circumstances that warrant the imposition of a lesser sentence than the prescribed minimum sentence.

[13] In view of the aforegoing, the following order is made: leave is granted to the applicant to appeal to the Supreme Court of Appeal against his conviction of rape.

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MM SNYMAN

ACTING JUDGE OF THE VENDA HIGH COURT

Thohoyandou Justice Centre

Counsel: Mr A Madzhuta for the Applicant

Director of Public Prosecutions

Counsel: Adv RJ Makhera for the Respondent

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