IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

In the matter between: 
JOSEPH COZETTE 
versus 
THE STATE

JUDGMENT

On 18 August 2003, the appellant, who defended himself, was found guilty by a Regional Court magistrate of Wynberg of the following offences: two counts of rape; assault with intent to do grievous bodily harm in that he assaulted the complainant by hitting her and dragging her by the hair and threatening her with a knife; and attempted indecent assault. He was sentenced to an effective 18 years imprisonment.

There have been considerable delays in prosecuting this appeat and appellant has lodged an application dated 23 September 2008 requesting the reinstatement of his appeal and condonation for the late filing of his heads.

After being sentenced on 18 August 20G3, the appellant applied on 1 April 2005 for leave to appeaf, which was granted. His appeal was not prosecuted and in February 2007 it was struck from the roll. With the assistance of his counsel, Ms Ruiters, he now applies for this Court's condonation and reinstatement of his appeal. He has explained the reasons for this and the State does not oppose the application for condonation.

The matter now turns on the prospects of success and a decision thereon will appear during the course of this judgment.

"Conviction of an offence referred to in part 1 of Schedule 2 to the Criminal Law Amendment Act has a potential to attract heavy punishment, particularly in the light of the seriousness of the offence as referred to in the Schedule. Judicial officers ought to be vigilant in their assessment and evaluation of evidence in order to eliminate a risk of conviction on the basis of evidence of doubtful quantum. The complainants in matters of sexual assaults on women and children unfortunately happen to be the most vulnerable members of our society, but the vulnerability of this section of our society should not be allowed to be a substitute for proof beyond reasonable doubt or to cloud the threshold requirement of proof beyond reasonable doubt. Judicial officers ought to and are expected to evafuate evidence properly and objectively as a whole and against all probabilities in order to arrive at a just and fair conclusion. Anything falling short of this test is nothing other than a miscarriage of justice."

In my experience it unfortunately happens in many trials that difficulties in the State's case are glossed over while the defence case is dissected almost sentence by sentence. Clear credibility and improbability issues relating to State witnesses are ignored or minimised. This analysis should be the other way round, in my view. Since the onus is on the State it is the State's version that shoufd receive as careful, if not more so, a scrutiny than the defence witnesses.

When the appellant pleaded to this charge, he said that the intercourse was with the consent of his wife.

On Monday, 12 August 2002, at about 09:00 he came to her house again, saying that he wanted to talk about the divorce. She said she "voel tevrede" about this. Her 20 year old daughter, Jessica, was sleeping in the complainant's room. Appellant took her by the hand and led her from the lounge to Jessica's bedroom and he asked for sex, but she refused. He replied that "my nee is vir horn a ja-woord". He then pressed her onto Jessica's bed, but she never fought back as she had on the previous occasion, because "ek kan nie meer baklei nie". He undressed her and had sex with her against her will. He then left.

appellant put it to her, knock something over to draw Jessica's attention to her plight?

Complainant then tried to contact the investigating officer, but he was off duty and she saw him only on the Friday. She did not go to a doctor and when asked why not, she replied, "Ek weet nie". In my view the second red flag was raised in respect of this. When Jessica awoke, why did she not tell her daughter about the rape? She did not tell her even during the period from the Monday to the Friday when she saw the police

Jessica gave evidence and she said that when she awoke, the appellant and the complainant were chatting normally.

Appellant was arrested on these charges on 23 August 2002, but according to the complainant he was released on bail during November 2002. She saw him on Christmas day and New Years day at her house and she said that, "Ek is bly dat hy gekom het, want dis die einde van die jaar" She saw him again on 5 January 2003 and he asked her to come home, but she refused. She also saw him at her cousin's house. Al! this to me seems to be inconsistent with that of a traumatised victim.

She reported the matter to the police. The accused pleaded not guilty to these charges.

On 11 August 2003 the complainant applied for a family violence interdict, and her application differs from her evidence in some important respects, as well as displaying a possible motive for laying the charges. No mention of this appears in the judgment, even though it clearly affects her credibility, and I quote from a portion of her application that she lodged for this interdict:-

"Maar hy pla my gedurig deur my te vloek, beledig en kritiseer, deur te se ek is die grootste hoer, ek is sleg wat nie die waarheid praat nie, beskadig ook my eiendom om ingang tot die wontng te verkry."

Then there is something completely new:-

"Ek vra die Hof om my assebiief te help, want ek is van plan om van horn te skei. Ek wil horn nie daar he op my perseel of in my woning nie." 
I think the magistrate should have had more regard to these contradictions, or to the new evidence, and he should have had some regard to a possible motive on the part of the complainant for laying a charge, because she was obviously desirous of wanting to get the divorce and have him out of her iife.

Inspector Pietersen was a State witness. He was on duty on 1 August 2002 when the complainant came to lay the first charge of rape, but his evidence is virtually worthless as he said that he could not remember what she said. Ms Williams, the prosecutor, elicited some highly prejudicial evidence from this witness, and I quote a short extract from the record (the transcript was not very clear);-

This was a clear reference to the Appellant.

This tactic is repeated during the cross-examination of the accused, and I quote from the record:-

According to his judgment this tactic by the prosecutor appears to have had the magistrate's tacit approval, because the appellant had himself raised this matter in his cross-examination of the State witnesses, obviously in an attempt to show that the complainant was in the habit of laying rape charges against him. In my view, this type of gravely prejudicial evidence should be shunned when an accused is undefended, even if he is the one who in ignorance raised it, and the prosecutor should not be allowed to pursue this avenue without laying a foundation for it. The magistrate should at the least have advised the appellant about the legal dangers his questioning was leading him into, and it is pure semantics to claim that the evidence is now admissible because the accused raised it himself. In my view, this highly prejudicial evidence threatens the whole fairness of the trial.

The district surgeon, Dr Theron, gave evidence which seemed to have dealt a body blow to the appellant's defence of consent. He found a fresh injury to the complainant's fossa navicularis. He describes this injury as typically one found in rape cases, and it was not an injury brought about during normal consensual sex.   However, as wilt be seen later in this judgment, this potentially damaging evidence disappeared as mist before the morning sun. The appellant tried to deflect the import of Dr Theron's evidence by suggesting En cross-examination that his new girlfriend had taught him a new style, or as he put it "seks kunse", and that is what caused the injury after his wife had not had sex for six months. Dr Theron did not agree. When appellant gave evidence, Ms Williams asked him about the "styles" he had learnt from his young girlfriend. When he tried to repty, she stopped him dead in his tracks, as will be seen from the following extracts from the record:-

The State interrupts him:-

The undefended accused was thus effectively prevented from explaining away a potentially fataf blow to his defence. Perhaps his explanation would have been unconvincing or crude, but that is not the point. His fundamental right to challenge and to adduce evidence in terms of Section 35(3)(i) of the Constitution was summarily dismissed by Ms Williams.
This violation of one of the vital components of a fair trial effectively undermined the whole concept of a fair trial guaranteed by the Constitution, and she should have been stopped by the magistrate. Her zeal has negated a potentially favourable witness for the State.

The complainant's daughter, Jessica, gave evidence for the State and if anything she exonerated the appellant compEetely on count 2, that is the second rape charge. I have already referred to red flags that had been raised in connection with count 2 namely, the complainant did not shout for help although Jessica was in the next room. But Jessicas evidence goes further than raising more red flags. She positively contradicted the complainant on important details. She testified that when she awoke the complainant and appellant had been sitting and talking, atl was normal between them. Hardfy the picture of a post-rape scene. She also contradicted the complainant in respect of the complainant's denial that she had prepared water for the appellant to wash himself after having had sex, as well as her denial that she had accompanied the appellant on "oujaar". Instead of finding that the State witness had now exonerated the appellant on count 2, as well as contradicting the complainant in other respects, thereby raising serious doubts about the complainant's overall credibility, the magistrate indulged in speculation that favoured the State, and 1 quote from the record:-

"Ek vind dit ook geensins vreemd dat die klaagster se dogter nie eers bewus was van enige verkragting nie. Ek glo dat die klaagster juis om enige verdere vernedering te voorkom, seker gemaak het dat haar dogter van niks agterkom nie om enige verleentheid ook vir die dogter te spaar."

This is pure speculation. There is no evidence that allowed the magistrate to make this finding.

The accused testified and his evidence was generally in harmony with his plea and his cross-examination of the State witnesses, which has already been set out herein above.

“
prosecutor shoufd not belittle an accused by insulting him, browbeating him or adopting an overbearing attitude which admits of no contradiction by the accused of what is put to him."

At page 540, paragraph B,

"Conduct of this kind offends against good manners, politeness and humanity,

At page 540, paragraph D,

"An accused must be given a fair chance to answer the questions put to him. His answer must not be interrupted from the bar. The next question must not be put before the previous one has been fully
I just want to quote one portion of the record which illustrates the prosecutor's attitude towards the undefended appellant:-

The magistrate should have intervened and stopped the prosecutor from badgering the undefended accused.

It is clear from my summary of the evidence that several red flags were raised alerting the magistrate to exercise caution. It is clear from his judgment that he was aware of his duty relating to single witnesses, but after an analysis of his judgment, I am of the view that he missed many of the red flags or he did not give them their due weight. But there are red flags other than the ones I've already referred to.

Firstly, there are strong indications of a possibly vengeful woman. J do not suggest that the complainant was in fact vindictive,   but   there   are   strong   signs   that   this   was   a possibility. I just want to give a few short quotations, to illustrate this point. The transcript is not always coherent, but the complainant says, and I quote:-

Here's another possible red flag, or another possible indication that the complainant might be vindictive, J am not saying she was, but the Court should have considered the possibility although the prosecutor stopped the witness.
I think that in the context of this case it was very important to know about the "ander vrou".

Another short extract from the record:-

"Maar jy het dan vir my in die voorkamer driekeer vir my gese jy gaan nie daai vroumens los vir my nie, en daar het ek jou gelaat."

A further quotation:-

These are ail indications that maybe the complainant was not feeling ail that happy about the situation, and I wish to emphasise again, I am not saying she was vindictive, my complaint is that the magistrate should have had regard to what the witness had said and he should have just paid it some heed. The love bite could also have been relevant to her motives.   Surely all this should have set warning bells ringing.

"Ek het verswak toe sak hy."

But this would then have left her hands and arms free. The whole attack lacks coherent and credible detail.

Thirdly, count 4 reads as foilows:-

"Klagte, onsedelike aanranding, deurdat op 15 Maart 2003 naby Lavendar Hill in die streek afdeling van die Kaap, u opsetlike en op 'n onsedelike wyse vir Veronica Kozette aangerand het deur haar teen haar wil jou penis in haar mond te druk."

The State thus alleges a completed act. However, in her evidence complainant said that:-

"Hy het probeer om sy penis in my mond te druk,"

'"n Bale goeie getuie, wie se getuienis kop en skouers uitstaan bo die weergawe van die beskuldigde. Niks wat sy gese het word as vaag of onwaarskynlik bevind nie."

In my view he could only have come to this concEusion after a very superficial evaluation of the State's evidence, and he ignored or did not give due weight to the red flags I have set out herein before.
The magistrate was alive to the potential credibility problems for the State. He himself described them as "aspekte wat moonttik vreemd gevind kan word". He referred to an article by Tania Novitz entitled "Issues in Law Raised and Gender 2 (sic)". According to this article, a woman caught in a circle of domestic viofence over time cannot easify escape from it and she tries to appease her abuser.   Three phases are set out:-
1.	Tension building.
2.	Acute battering.
3.	The contrition stage.

Firstly, apart from the tensions that arise from any arguments between couples, the evidence does not establish any of the three phases mentioned in the article, and there is especially no "acute battering" over a period of time. Jessica said that "hulle het baie gestry maar daar was geen fisiese geweld nie". Complainant herself only refers to the hair pulling incident and the slaps he gave her when she suffered a fit, and the appellant admits one assault with a mop. This is certainly not a "boek voorbeeld" as set out in the article, and the application of the article is entirely inappropriate.

Secondly this article is cardinal to the Court's judgment in rejecting the appellant's version and accepting the complainant's version. The magistrate places the article on the same footing as that of an expert witness, without the benefit of her expert testimony. Who is the authoress, what are her qualifications and experience?

Thirdly, since that article was used to explain away possible adverse credibility findings against the State, the question arises whether the magistrate should not have called the authoress of this article in terms of Section 167 of the Criminal Procedure Act.

To sum up, the undefended accused was badgered by the prosecutor and she did not allow him to present his case properly. This, and the cumulative effects of all the factors I have set out herein before, leads me to the reluctant conclusion that not only has the State not proved its case beyond reasonable doubt, but the appellant did not have a fair trial.   In the premises I propose the following order:-

I agree, the appellant's convictions and sentences are set aside