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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

Case Number: A119/2018

In the matter between:

AZWINDINI MARUNGA                                                                                          Appellant

And

THE STATE                                                                                                         Respondent

 

JUDGMENT

FISHER J, (MAIER-FRAWLEY AJ CONCURRING:

 

INTRODUCTION

[1] The appellant was convicted of attempted rape in the Regional Court, Johannesburg on 8 February 2016. On the same day, he was sentenced to 6 years imprisonment. This appeal is against conviction and sentence with the leave of the trial court.

 

FACTS

[2] The facts as they emerge from the record are as follows. The complaint was employed by a company that was contracted to provide cleaning services on a 24-hour basis to the […] Mall. The accused was employed in a managerial position by such company. The appellant was the manager of the complainant. On 10 July 2014 the complainant, the appellant, and Mr Patrick Biyela (who has been referred to throughout the record as “Patrick” - which appellation I will retain for the sake of convenience) were all on night duty. This meant that they worked a shift which commenced at 23:00 and finished at 08:00 the following day.

[3] The appellant testified that the complainant had been employed on a casual basis and that her employment was not permanent. The appellant was responsible for employing casual employees and his testimony was that he would do so in order to fill temporary vacancies which occurred as a result of permanent employees taking leave. Patrick was employed in a supervisory position and the complainant fell under his supervision.

[4] On the early hours of the morning in question, Patrick instructed the complainant to fetch a vacuum cleaner from a downstairs office/store room facility and to then report to Entrance 2 of the […] Mall in order to perform her cleaning duties there. The evidence was to the effect that the appellant was in this office/store room and that thus it was unlocked. The implication was that the room was normally kept locked.

[5] The complainant testified that she duly descended the stairs and went into the office/store room in order to fetch the vacuum cleaner. This occurred, she said, at approximately 04:00. When she arrived at the office/store room she found that the appellant was there and the door unlocked.  She testified that they were alone together in the room and that the appellant took advantage of this situation by grabbing her, forcing her against a wall, pulling down the leggings she was wearing, touching her genitals and trying to insert his finger into her vagina. She states that he also fondled her breasts by putting his hand under her clothing. Her testimony was to the effect that she resisted his advances. She was, she said, able to struggle free and escape. She indicated that the door had been locked behind her by the appellant and that she managed to unlock it because the key was still in the door. She left the room with the vacuum cleaner in tow and went to her appointed station at Entrance 2.

[6] Patrick agreed that he had sent the complainant to the storeroom to obtain the vacuum cleaner. He  testified that he eventually went to find her as she was taking an inordinate amount of time. He stated that he met her ascending the stairs. He asked her why she had taken so long to fetch the vacuum cleaner but she ignored him and walked off. He noted that she looked angry.

[7] The version of the complainant was that she left the room, with the vacuum cleaner, and went directly to her appointed post at Entrance 2.  She made no mention of meeting Patrick on the way. She testified that Patrick later called her cell phone when she was at her post to check where she was. She said she made no report to him of the attempted rape during this call, as she was upset.

[8] Patrick however disputed that he had called her. He reasoned that there would have been no purpose to call her as he had already located her on the stairs.

[9] The version of the appellant was that he was not in the office at the time alleged although he had been there approximately 2 hours earlier. He says that at the time of the alleged incident, he was doing his usual patrol of the mall to check that the cleaning services were being performed properly. It is not disputed that he had a team of staff to manage on the shift.

[10] He said that he left at the end of the shift as usual. He surmised, he said, that the motive for the complainant making the false report was that she knew he was going to terminate her casual employment. She believed, he said, that if he were fired she would keep her position. It is not in dispute that he was suspended as a result of the charges and that she kept her position.

 

DISCUSSION

[11] The complainant was a single witness to the actual attempted rape described by her. However, she was not a single witness to what happened immediately after this incident. The evidence of the complaint had deficiencies which are, to my mind, material. She contradicted herself in relation to when she first reported the incident to Patrick and in relation to her subsequent report to the police. Her boyfriend, to whom she said she made the first report, was not called. It was simply said that they had broken off their relationship and she did not know where he was.

[12] Whilst paying lip service to the cautionary rule of evaluating the evidence of a single witness,[1] the Magistrate failed to take proper account of the inconsistencies in her evidence in relation to the reporting of the incident. This aspect is important and the Magistrate failed to give it sufficient weight. He also failed to reconcile the glaring inconsistencies in the State’s case as a whole with reference to the evidence of Patrick and the complainant.

[13] The Magistrate also misdirected himself in finding that Patrick had testified that, when he met her on the stairs, she was crying. There was no such evidence led. This is an important misdirection in that the way a victim of a crime presents directly after the event could be a relevant indicator that the crime occurred. The immediate aftermath of an alleged sexual assault (or any crime for that matter) must be accorded significance in that it is a material phase in the narrative.

 

CONCLUSION

[14] The version of the appellant cannot be disregarded as not being reasonably possibly true. The State’s case is such, that given the inconsistencies therein and given the misdirections of the Magistrate as discussed above, it cannot be said to serve as evidence of the charge which is beyond reasonable doubt.

 

ORDER

[15] I thus make the following order:

1. The appeal succeeds.

2. The conviction is set aside.

 

                   ______________________________________

                                                    FISHER J

                                            HIGH COURT JUDGE

                                        GAUTENG DIVISION, JOHANNESBURG

    

 

I agree,

 

                      

  ______________________________________

                                                    MAIER-FRAWLEY AJ

                                            HIGH COURT ACTING JUDGE

                              GAUTENG LOCAL DIVISION, JOHANNESBURG

 

 

Date of Hearing: 25 October 2018.

Judgment Delivered:  09 November 2018.

APPEARANCES:

For the Appellant                                     : Adv W Mahlangu.

Instructed by                                            : Tlou Bangiswani Attorneys.

For the Respondent                                 : Adv M Mashego.

Instructed by                                            : The DPP.

 

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