IN THE HIGH COURT OF SOUTH AFRICA 
WESTERN CAPE HIGH COURT, CAPE TOWN
CASE NO: A552/11
In the appeal of:

and

PROVISIONAL DETERMINATION DATED 7 AUGUST 2012

[1] This provisional determination concerns the question whether an appeal against appellant’s conviction in this court can be considered in the absence of leave to appeal against the conviction.
Introduction
[2] Appellant was indicted in the Regional Court at Paarl on a charge that he had raped a six year old girl on 3 June 1999. He was arrested on 9 September 1999, shortly thereafter. He was 18 years old at the time. His trial commenced on 12 July 2000. On 2 February 2001 the magistrate convicted appellant as charged and referred the matter to this court for sentencing in terms of the provisions of s 52(3) of the Criminal Law Amendment Act 105 of 1997.
[3] On 4 July 2002 Fourie J confirmed the conviction of appellant in this court in terms of s 52(3) of Act 105 of 1997 and sentenced him to 23 years’ imprisonment.
[4] On 11 August 2011, almost 9 years later, an application for leave to appeal against appellant’s conviction and sentence was launched on behalf of appellant. We deal hereunder with the reasons for this inordinate delay.
[5] On 12 September 2011 Fourie J dismissed appellant’s application for leave to appeal against his conviction but granted him leave to appeal against his sentence to a Full Bench of this court. We heard the appeal against sentence on 27 July 2012.
[6] Upon a perusal of the record of the proceedings in the regional court we formed the view that appellant’s conviction might not have been justified on the evidence before the magistrate. We accordingly requested counsel to address us on the question whether the conviction of appellant was in order and, if not, what procedure, if any, this court could follow in this regard. Counsel on both sides provided us with helpful submissions.

'(w)here the necessary leave to appeal is lacking this Court may, in appropriate circumstances, defer the hearing or determination of the appeal to enable the appellant to obtain such leave ..
It should be emphasised that either the hearing or the determination (judgment) can be deferred and, secondly, that the circumstances should be appropriate before this extraordinary procedure may be adopted. ’

Judgment on the merits of the appeal will therefore stand over to enable the appellants to apply, within twenty-one days of this judgment, to the Court a quo for the necessary condonation and leave to appeal. If that Court grants such leave and the order granting leave is lodged with the Registrar of this Court, we will be in a position to deliver judgment on the merits and to make an appropriate order as to costs. If the Court a quo refuses leave to appeal and the order refusing such leave is lodged with the Registrar of this Court, this matter will, without any further order of this Court, be deemed to have been struck off the roll with costs. ’

[11] We accordingly intend to make a provisional determination pending the outcome of an application by appellant in terms of the provisions of section 316 of the Criminal Procedure Act to the President of the Supreme Court of Appeal for leave to appeal against his conviction. Counsel for appellant assured us that if such determination is made in appellant’s favour, such an application would be brought as a matter of urgency. If leave to appeal is then granted by the Supreme Court of Appeal we will deliver a final judgment in the appeal against conviction on the basis of this provisional determination. If leave to appeal is refused we will proceed to deal with appellant’s appeal against his sentence.
The inordinate delay
[12] Before discussing the merits of appellant’s conviction we propose to deal with the reasons for the delay of 9 years between the date of appellant’s conviction and the date upon which his application for leave to appeal against that conviction was heard in this court. These reasons might be of assistance to the judges considering the appeal in deciding whether the delay should be condoned. It is also a factor which justifies the unusual procedure adopted by us. In our view, finally, we believe that appellant is entitled to a recordal of these unfortunate events.
[13] Judgment in appellant’s application for leave to appeal against his conviction and sentence was delivered on 12 September 2011, almost 9 years after his conviction and sentence. A number of relevant documents, forming part of the record, were placed before us for purposes of hearing the appeal. A perusal of these documents provides one with a fair amount of information in regard to the reasons for the delay. They paint a dismal picture.
[14] Appellant was incarcerated during the entire period. On 16 September 2004 he submitted an application for leave to appeal against his conviction and sentence and for condonation of his delay in bringing the application. Although drafted by a layman it was in proper form. Appellant explained that the reason for bringing the application late was that he was not a lawyer and knew nothing about legal procedures. His application was sent to the Registrar of this court (‘the Registrar’) under cover of a note dated 16 September 2004 by the head of Pollsmoor Prison.
[15] On 29 June 2006, ie almost two years later, Mr William Bale, writing on behalf of the Registrar, acknowledged receipt of the application of 16 September 2004. He advised appellant that he could engage the services of a legal advisor or deal with the matter in person or apply for legal aid. Apart from giving this advice, Mr Bale did nothing about the application.
[16] On 12 June 2007 appellant wrote to the South African Human Rights Commission Western Cape Province (‘the SAHRC’), asking for its assistance with his application for leave to appeal. He said that after receiving the advice from the Registrar, he had written three times to the Legal Aid Board for legal assistance. He had not received a response from the Legal Aid Board to any one of these letters.
[17] On 19 July 2007 the SAHRC wrote to the Legal Aid Board in regard to appellant’s complaint. A copy of the complaint was attached to its letter. The SAHRC requested the Legal Aid Board to advise it as to the status of appellant’s application. In the event that his application had been unsuccessful, the SACHR requested reasons for the refusal to be supplied to them before 3 August 2007.
[18] There is in the court record a copy of a power of attorney signed by appellant on 27 August 2007, authorising the Legal Aid Board to act on his behalf. It bears a stamp of the Legal Aid Board indicating that it was received by it on 21 January 2008.

[19] On 11 October 2007 the Registrar received a further letter from appellant. He said that following Mr Bale’s advice he had written several times to the Legal Aid Board requesting a legal representative but he had not received any answer from it. He had also filled in the LA1 form which was faxed to the Legal Aid Board’s office by an official of Correctional Services. He had not received any response to these communications.

[20] The High Court Unit Manager, Cape Town of the Legal Aid Board replied on 15 February 2008 to the letter of the SAHRC dated 19 July 2007 (ie almost 7 months later). I quote this letter in full:

I have been out of office for some months serving as an Acting Judge of the High Court and these letters were only brought to my attention recently.
Both matters above have been receiving attention and are part of numerous requests received for legal aid in out of time appeals. In all instances the complete High Court record must be obtained before an application for leave to appeal and condonation can be lodged in the High Court. The process of obtaining these records from the Registrar of the High Court has proved to be slow and we have had numerous meetings with the Chief Registrar and the Judge President in this regard and continue to attempt to speed up the process. Once the record has been received the application will be made in accordance with the High Court rules.
The complainants have been informed of the reasons for the delay’.
[21] On 15 July 2009 the Chief: Legal Research in the Ministry of Justice and Constitutional Development wrote to the Legal Aid Board in Cape Town in regard to appellant’s application. The letter reads as follows:
Thank you for your letter dated 9 June 2009 which arrived in our offices on 10 June 2009.
I am not sure what the “regional court proceedings” entail since it seems to have been a High Court matter. Be that as it may, I am also from my side in the process of liaising with Mr Bale asking him to expedite. As indicated, this matter has been outstanding since 2006. ’

[24] On 11 January 2010 and again on 1 March 2010 appellant wrote letters to the Registrar. In both letters he asked for information in regard to the progress of the matter. On 26 April 2010 Mr Bale of the office of the Registrar replied to the letter of 1 March 2010 as follows:

[25] On 5 April 2010 appellant again wrote to the registrar. He expressed his frustration caused by the fact that the Registrar referred him to the Legal Aid Board which did not answer his letters. Mr Bale of the Registrar’s office replied to this letter on 5 November 2010, ie seven months later. It reads as follows:
Hereby, acknowledge receipt of your letter dated 05 April 2010.
We regret to inform you that this application for leave to appeal cannot be processed because you do not have a legal representative Kindly let us know if you intend to engage the services of a private legal representative. If you cannot afford a private one you can still apply to the LEGAL AID BOARD for the appointment of one at the state expenses.
Should you wish to apply for legal aid, we have attached the forms for you. You should fill them up and send them to THE LEGAL AID BOARD, 85 NEDBANK BUILDING, ST GEORGES MALL, CAPE TOWN, 8001. ONLY if you are refused legal aid you can apply to the Judge that Sentenced you to deal with your application in person. Your application should be accompanied by the legal aid board letter refusing to assist you.
In future please forward your queries to Legal Aid South Africa’.
[26] On 18 October 2010 appellant again wrote to the Registrar, complaining about the lack of progress with his application. It appears from this letter that appellant had made various further attempts to find out from the Legal Aid Board what was happening with his application but without any success.
[27] On 11 August 2011 (almost one year later) an application for leave to appeal was launched by the Legal Aid Board on behalf of appellant. Judgment in this application was given on 12 September 2011.
[28] We propose to comment briefly on this delay. The documentation before us may not contain a full record of all the relevant events. It is at least clear, however, that appellant wished to appeal against his conviction and sentence. It is also clear that, powerless and vulnerable as he was, appellant was badly let down by the system of administration of justice.

[30] The letter written by the Cape Town Unit Manager of the Legal Aid Board to the SAHRC dated 15 February 2008 (see para [20] above), did not assist appellant at all. It seems in fact to be symptomatic of the Legal Aid Board’s conduct in this matter. The letter was written about seven months after receipt of that of the SAHRC. The excuse for the delay is, in our view, not acceptable. If the Cape Town Unit Manager of the Legal Aid Board elected to take a position as an acting judge his duties should have been delegated to others. His letter was moreover vague and evasive. It failed to deal specifically with any of applicant’s complaints. The letter appears to have had little effect. Appellant’s problems were not addressed and no progress was made with his application for legal aid.
[31] The Cape Town Unit Manager of the Legal Aid Board claimed that they were waiting for the record to be typed. If this was the reason for the delay in appellant’s case one would have expected that he would have been properly informed about this. Judging from his letters it seems that he was not. We find it difficult, in any event, to accept that it could have taken some five years to obtain a transcript of the proceedings in appellant’s case.
[32] The SAHRC’s intervention, at the request of applicant, was unfortunately not effective. Upon receipt of the unsatisfactory letter from the Legal Aid Board, the very body about which appellant was complaining, the SAHRC seems to have lost interest in the matter.

The merits of appellant’s conviction
[35] Three witnesses testified for the state. The complainant, Nombolela Masiza, her friend, Asepie Boois and her mother, Nonjamiso Masiza. The complainant was born on 1 June 1993. She had just turned 6 when the alleged incident occurred. Her testimony in court was presented through an intermediary and the services of an interpreter were used. The complainant was treated with sympathy and sensitivity by the magistrate, the prosecutor and the legal representative of appellant.
[36] The complainant testified that on the day in question her mother sent her and Asepie to fetch paraffin from a shop. She was then forcefully taken away by appellant while she was waiting in front of the shop for Asepie. Asepie was inside the shop to have the paraffin decanted into a container. There were people outside the shop, children and adults, who saw what happened. Asepie looked at her from inside the shop and she shouted at her to tell her (the complainant’s) mother. She was then taken away by appellant, whom she did not know and had never seen before. He dragged her by the arm to his home in the presence of other people. She called out for help but she was ignored. The complainant was adamant that Asepie and appellant never spoke to each other.
[37] The complainant testified that appellant told her his name. He undressed her, lay on top of her and inserted his penis into her vagina. She said it was painful. She did not testify as to the length of the period that she was in the house with appellant, neither did she testify that the appellant removed his own clothes or that she resisted, cried or shouted for help. She mentioned that at one stage appellant placed an axe next to her head and threatened that if she told her parents what had happened, he would kill her.
[38] Immediately after the incident complainant dressed herself and left. In response to a leading question she said she had difficulty walking. She initially testified that she went home and immediately told her mother what had happened. Later she said that she went home but that she did not tell her mother what had happened. At a later stage she testified that she went to Asepie’s home to play directly after the incident and that she cried when Asepie asked her what had happened. The complainant testified that she noticed after the incident that her panties were stained. Her mother saw this a few days later when she wanted to wash the panties. The complainant did not testify that she had complained to her mother of pain in her genital area or problems with a discharge or rash in this area. She said that she identified appellant when he came to ask for matches at their house.
[39] Asepie’s evidence was that she and the complainant collected the paraffin. After they had left the shop appellant, who was quite well known to her, appeared and first caught her (Asepie), the bearer of the paraffin. Then he let her go and grabbed the complainant. He asked her if the complainant’s parents were at home, to which Asepie replied that they were not. It was shown during her testimony that she knew that complainant’s mother was at home and accordingly this statement was untrue. According to Asepie appellant threatened to kill her if she told the complainant’s mother what happened.

[41] Asepie took the paraffin to complainant’s mother without telling her what had happened to complainant. According to her the complainant’s mother did not enquire about her daughter. According to the mother she did enquire and Asepie told her that the complainant was playing. Asepie testified that the complainant later came to her (Asepie’s) home and cried when she was asked what had happened, without telling her what it was. When appellant’s legal representative tried to question Asepie about these events he was stopped by the magistrate who told him he was splitting hairs and that it was just the way a child expresses herself.

[42] The complainant’s mother testified that she did not know appellant and had never seen him before. She had sent Asepie and the complainant to fetch paraffin from a nearby shop. Asepie returned with the paraffin but without the complainant. Contrary to the evidence of Asepie she said that she asked her where the complainant was and that Asepie replied that she, (the complainant) was playing. According to her the complainant returned a little bit later. She and her husband saw the complainant taking toilet paper that she rolled up to put in her panty in the area of her vagina. She said that the complainant complained about pain in the area below her stomach, but that she and her husband did nothing about it.

[44] When the mother was asked how it happened that the police knew who to arrest she said that appellant came to their home to ask for matches. The complainant saw him and hid. After appellant had left she told them that he was the person who had assaulted her. The mother contacted members of the community and told them that it was appellant who had raped her daughter. Members of the community caught appellant and brought him to their home. The police was then contacted.

[46] Appellant himself testified. His defence was an alibi. On the face of it his version was not improbable or contradictory. On 3 June 1999, the alleged date of the incident, he was 18 years old. He testified that he was with friends, where they listened to music and watched videos. He went home after 17h00. He denied raping the complainant, whom he did not know and he saw for the first time the day when he was arrested by the community. According to him the complainant’s family members asked him to accompany them to the complainant’s home on 9 June 1999, where he was asked to speak the truth by the presiding member of a committee. The complainant’s mother asked his name and then informed him of the charge against him. He denied any knowledge of the offence, but the complainant’s brother said they should call the complainant, who was playing outside. The complainant then related her version of the events.
[47] Appellant said that he knew Asepie and that she and her parents had visited his home. He admitted that he went to look for matches at the home of the complainant. He had been requested to do so by his friends, neighbours of the complainant, whom he was visiting. He did not see the complainant. He testified that when the members of the committee assaulted him, he admitted, under duress, that he had committed the crime of which he was charged. He denied that it was the truth, but he was bleeding so much that the complainant’s mother wanted him to be removed. The complainant’s father had a knife and threatened to cut out his testicles.
[48] The magistrate summarised the evidence in her judgment. The complainant, she said, made a good impression. She was thoroughly tested under cross-examination but in the main she adhered to her version. She remarked, however, that the complainant was a single witness and very young and that sufficient corroboration of her version would be required.
[49] In regard to the evidence of Asepie the magistrate said that her version of the incident differs to a great extent from that of the complainant. Despite the differences and other aspects of her evidence that were not satisfactory, she did not get the impression that Asepie wanted to mislead the court. The witness, she said, made a good impression and there was no reason not to accept her evidence.

[50] The complainant’s mother’s evidence, she found, was also acceptable. There were differences between her version and that of the two other witnesses but these were not material. As with Asepie, there was no reason for rejecting her evidence.

[51] After summing up appellant’s alibi evidence, she said that it is very easy for a person in appellant’s position to deny that he was involved in the incident. It follows logically from this, she said, that, viewed in totality, appellant could not make a bad impression as a witness. Upon closer analysis of his evidence, however, cracks appear in his version. She proceeded to describe some of these cracks. On the basis thereof the magistrate found that appellant was not truthful. We revert to the issue of these cracks below.

[52] The magistrate then discussed the question whether the complainant was raped. This depended upon a finding that penetration took place. In view of the fact that the hymen was intact, she said, there is, judging on the medical report alone, doubt whether there had been penetration. The evidence of the complainant, she said, was, however, clear and thoroughly tested. When it is considered together with the medical report, namely redness around the hymen, there are sufficient guarantees that a measure of penetration took place. She accordingly convicted appellant as charged.

[53] We have considered the evidence and the judgment of the magistrate. The magistrate correctly held that cogent corroboration of the complainant’s version was required. Upon a careful analysis of the evidence we are, however, of the view that there is very little reliable evidence to corroborate the complainant’s version that she was raped or that it was appellant that assaulted her. In coming to a contrary conclusion the magistrate indeed misdirected herself in certain material respects. We proceed to discuss them below.

[56] The magistrate found, correctly so, that there were material differences between the versions of complainant and Asepie, particularly in regard to the events immediately preceding the alleged removal of the complainant by appellant. The magistrate said that they differed to a large extent. Despite these differences she found that there was no reason for not accepting Asepie’s evidence and that she corroborated the complainant’s version.

[57] In our view this approach is fallacious. If Asepie’s version is accepted, which the magistrate said she did, then it contradicted the complainant’s evidence and did not corroborate it. Despite these contradictions the magistrate proceeded on the basis that she accepted the complainant’s evidence and ignored that of Asepie on this issue.

[58] The manner in which the magistrate ignored the possibility that Asepie was giving hearsay evidence (we referred to this above) also constituted an irregularity. We also find it difficult to accept Asepie’s evidence as to the reason why she did not report the incident to the complainant’s mother. She claimed that she had been threatened but on the complainant’s version there would not have been any opportunity for appellant to threaten her.

[59] In discussing and accepting the evidence of the complainant’s mother the magistrate appears to have given little weight to the contradictions and confusion as to what was said when Asepie and the complainant arrived at her home that afternoon.

[60]The magistrate’s rejection of the evidence of appellant was not justified. She held, as stated above, that so-called cracks appeared in his evidence which destroyed the good impression that he had made as a witness. The cracks mentioned by her were (i) that the complainant hid herself when he arrived at her house to look for matches, (ii) the identification of him by Asepie and (iii) that his evidence about the confrontation with the members of the community fits in with that of the mother.

[62] Before confirming appellant’s conviction Fourie J submitted certain questions to the magistrate to which she replied. Her answers did not add anything of substance to her judgment. Fourie J did not provide reasons for his decision to confirm the conviction. He did, however, remark that it was common cause that a rape took place. This remark might have been prompted by a concession of counsel who represented appellant at that stage. Having regard to the evidence and the judgment of the magistrate, however, it is quite clear that it was not common cause that a rape took place.

[63]We have much sympathy with the complainant and her family. She might well have been sexually molested by someone. The state has, however, failed to prove that she was raped or sexually molested or if she was, that it was appellant who raped or molested her.

[64]Having regard to the evidence in this case we conclude that there was no cogent corroboration of the complainant’s version that she was raped by appellant. We are accordingly of the view that there is a reasonable prospect that the Supreme Court of Appeal might grant leave to appellant to appeal against his conviction.
[65] In the circumstances we make the following order:

2 In the event of appellant applying to the President of the Supreme Court of Appeal for leave to appeal against his conviction, he is directed to include this provisional determination as part of his petition.

A.P. BLIGNAULT
N J YEKISO
E T STEYN