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29 May 2015 00:00
The Supreme Court of Appeal in Bloemfontein. (Photo: Madelene Cronjé)
The incredible difficulty sometimes faced by a gang-rape survivor in giving evidence adequate for a conviction of the perpetrators is graphically illustrated in a new decision by the Supreme Court of Appeal (SCA).
This case is also important because the appeal court strongly criticised two acting high court judges who heard a first appeal.
They failed to give a proper judgment, said the SCA, adding this was “egregious” and a “serious dereliction of duty” that should be referred to the judge president concerned for urgent attention.
Identified only as “P”, the woman who was attacked gave evidence that three men gang-raped her in November 2006, with at least one having raped her more than once. Her evidence that three men were involved was backed up by a witness who peeped through a hole in a door, saw her being raped by the three and then called for help.
P knew the first accused, Johannes Moya Mashigo, reasonably well by sight as he lived in the same street.
However, she saw the other two for the first time on the night of the attack.
She was walking from her sister’s place to her own home in the early hours of the morning when she was attacked. The women live off a courtyard, just metres from each other.
Mashigo and two other men approached P and asked where to find “Thulisiwe”. When she said she didn’t know, they said they would take P instead. One had a broken bottle with which he cut her face and they also threw stones at her before taking off her clothes and raping her.
When help arrived Mashigo was caught in the act, his co-accused was found at the gate and the third man escaped.
Giving evidence during the trial P confused the order of the rapes and contradicted herself about who raped her twice.
The SCA said she also contradicted herself in the statement she made to the police. The contradictions were “so material that they render her evidence unreliable when it stands alone”, said the appeal court. However, this did not mean she was dishonest or that she deliberately lied to the court.
“I ascribe her confusion about the events … to the trauma which she must have experienced as a victim. She was accosted by three hostile and violent men … who assaulted her severely and then gang-raped her. To expect her to give a clear and meticulous account of who did what first is to expect the impossible.
“Her confusion is, to my mind, understandable. Unfortunately, much as she has my sympathy, these contradictions render her evidence unreliable. On its own it does not pass muster.”
The witness who saw what happened and called for help gave evidence describing yet another sequence in which the rapes took place.
According to the second accused, who denied having raped P, he had left her with Mashigo to go home but heard noises and went back to investigate. He found people assaulting Mashigo and on his way out of the yard someone caught him and he was arrested.
He stuck to this story and the state couldn’t shake him.
The appeal judges said they had to decide whether the state’s evidence, “with all its imperfections, deficiencies and contradictions”, could satisfy the trial court that the guilt of the two accused was proved beyond reasonable doubt.
They “regretted” that, contrary to all the case law, the magistrate used the wrong approach to evaluate the testimony of the two accused, finding their evidence improbable and contradictory and adding that the court “cannot find it is truthful beyond reasonable doubt”.
In using this test — whether the court could find the evidence of the accused truthful beyond reasonable doubt — the regional magistrate “undoubtedly misdirected himself”, concluded the appeal judges. The test in a criminal trial was, in fact, whether the state had proved the guilt of an accused beyond reasonable doubt.
When the case was argued on appeal at the SCA, counsel for the state was asked to give a reason for why the magistrate rejected the evidence of the second accused but could offer no reason.
The person who had caught the second accused was, inexplicably, never called to give evidence, creating another major hole in the state’s case because only this witness could have said where and why the second accused was arrested.
Given all the circumstances, the appeal judges said they could not uphold the conviction of the second accused. His identification was unsatisfactory and his version was reasonably possibly true.
But Mashigo’s conviction and sentence will stand. The judges said the three men waited in the dark for the “poor and vulnerable complainant” and pounced on her like “hungry wolves”. They assaulted her with stones, one of them bit her and another scratched her face with a broken bottle. Their behaviour was “egregiously barbaric” and there was no reason to impose a lesser sentence than life imprisonment.
The judges then considered the appeal brought by the two accused before two judges of the high court in Pretoria. During July 2010, acting Judges James Goodey and Sammy Omar had upheld the magistrate’s convictions and sentences of both accused.
But they had done so with a judgment that “regrettably” was “no judgment at all”. It was “merely an order” that is “paraded as a judgment”. A cryptic five lines, it dealt neither with the facts nor the law. With a disconcerting absence of reasons for the decision the judgment thanked counsel on both sides and added that there was no reason to interfere with the magistrate’s conviction and sentence.
This amounted to a serious dereliction of duty by the two judges, said the SCA. No one would have understood the grounds on which the appeal was dismissed, a fact made all the more important because the SCA, having read the record, found serious problems with the magistrate’s reasoning that the judges hearing the first appeal “failed inexplicably to deal with”.
The “conduct of the two judges” was “so egregious that it cannot be countenanced”, said the SCA, and it could potentially erode public -confidence in the judiciary. They ordered that a copy of the appeal court decision should be sent to the relevant judge president “for his urgent attention”.
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