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[2017] ZAWCHC 52
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Honono v S (A448/2016) [2017] ZAWCHC 52 (5 May 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: A 448/2016
In
the matter between:
BALO
HONONO
Appellant
and
THE
STATE Respondent
Coram
:
Boqwana J et Kose AJ
Delivered:
05 May 2017
JUDGMENT
BOQWANA
J
Introduction
[1]
The
accused appeared before the Wynberg Regional Court for two counts of
rape. He pleaded not guilty and was convicted in
respect of
both counts. He was sentenced to 20 years imprisonment, with
the two counts taken together. He appeals against
both conviction and
sentence, with the leave of the magistrate.
Facts
[2]
The
facts giving rise to the conviction are that on 08 September 2014,
and at or near Philippi, New Cross Roads, the appellant raped
the
complainant, who was 13 years old at the time, vaginally and anally.
The complainant testified that she knew the appellant
just by
seeing him passing in the street. She initially stated that she
had never spoken to him, but then later testified
that at one point
the appellant had asked her and her friends which alcoholic beverages
they drank, to which they stated that they
did not drink. She
testified that on the day of the incident she was sent by her
grandmother, with whom she lived, to the
market after 4 p.m.
She went there with her three friends, M, W and S, who are all boys.
As they were about to reach
the gate of the market, she heard someone
calling her name. She stood still and turned around, but she
did not see the person
that was calling her.
[3]
M
(one of her friends) told her that someone was calling her. She
responded by saying that this person must leave her alone,
because
she was sent to the market to buy sausage and potatoes. As they
were about to reach the stands someone tapped her
on her shoulder and
said: “
didn’t
I call you
”
.
She answered: “
yes
you did call but
I
am sent here to buy these things and they are waiting for these
things at home
.”
This person asked her if she remembered when he had been attacked by
the community, to which she said yes.
He then said that the
complainant’s mother and father had been there when he was
being attacked. The complainant told
him that her parents had
not been there. During the time of the said attack her father was out
of town and she and her mother were
sleeping at home. He then
said that the complainant must not take her family’s side
otherwise he will do something
bad to her. He said he had
‘wanted’ her for a long time (suggesting that he was
interested in her). She
told him that she was scared of him.
He was too old for her. He took the plastic bag containing the
sausage and potatoes
that she had bought and said if she wanted it
back she would have to follow him.
[4]
She
was scared that if she went back home without the items that she had
gone to buy, her grandmother would get cross and ask her
where the
items were, so she followed him. Her friends had left when the
man tapped her on the shoulder and started speaking
to her.
[5]
She
followed this man to New Cross Roads and went to a house that had a
yard and a gate. They went through the gate and around
the
house. At the back of the house there was a toilet-like place
which was ‘unfinished’. This man said
she must kiss
him and she asked him why. He said if she did not want to kiss
him he was going to do something bad to her.
The complainant
kissed him as she was scared. She knew that the man was a
‘
skollie
’
or
a thug. At that time she had her school uniform tracksuit on.
She wore a shirt underneath the tracksuit top.
He then said she
must take off one side of her tracksuit pants. She refused and
he said he would do something bad to her
if she did not do it.
She got scared because he was always threatening her. She took
off one side of her pants as instructed.
He then said she must
lie down on her back on the ground and she did. He took off his
pants and underpants down to his knees.
He then lay on top of
her and took his penis out. He put it inside her vagina and
made up and down movements on top of her.
He thereafter took
his penis out and said she must turn around. He then put it in
her “bums” [anus]. She
started to cry because what
he was doing in her “bums” was sore. He then
said if she started crying and
people heard what they were doing then
he would really do something bad to her. She then stayed quiet
because he was a thug
and she did not know what he was going to do to
her. When he finished making the up and down movements, he told
her to put
her clothes on. She put on the one side of her pants
that she had taken off and he also put his underpants and pants on.
The ground where she lay was made of cement.
[6]
She
was not in a relationship with this man. She was anxious to go
home because her grandmother would be asking where she
came from.
After he finished what he was doing he accompanied her to the
gate and said he did not care if she told her family
what he had done
to her as he did not even stay there, he stayed in Mitchell’s
Plain. He gave her the plastic bag that
he had taken from her.
When he was about to leave after he had accompanied her home, he said
he was going to spoil her and
buy her nice things, to which she did
not respond. After that she crossed the road and ran home.
[7]
When
she got home it was starting to get dark. Her grandmother asked
her where she had been and she told her that some man
got her and
raped her. Her grandmother called her mother, who hurried to
the grandmother’s house. Her mother
also called her
uncle. The uncle came with his wife and kids. Her
grandmother told her to wash herself, because she
did not know what
to do. Her uncle said she must not go to school the following
day, but to the police station with her mother.
She testified
that she told the whole family what had happened. At the police
station she spoke to a lady by the name
of Plato (the Investigating
Officer). Plato asked if the complainant could take her to the
house where the rape incident
happened. When they got there
they found an old lady, the person who raped her was not there. The
complainant pointed
out the person who raped her, at the police
station, the following day of 10 September 2014. On 09
September (2014) after
coming back from pointing out the suspect she
was taken to Thuthuzela Clinic where she was examined by a doctor.
She confirmed
in court that the accused was the man that had
raped her.
[8]
In
cross-examination she was asked why she did not cry when he put his
penis in her vagina. She said that she was scared,
but
when she turned around and he put his penis in her bum it was “really
really” sore. She did not tell the
appellant that she did
not want him to do these things to her, because she was scared. She
had told him when he turned her
around that she did not want what he
was doing and told him that she wanted to go home. She looked
at him, and he told her
that she must look away. When
challenged about why she did not say that in her evidence in chief,
she stated that it was
because she did not know that she had to say
all the “
little
things
”
when
asked by the prosecutor. She stated that this person did not
assault her before – or during - the rape.
She repeated that when he said she must take off one side of her
pants, she told him that she did not want to and he threatened
her
and said he was going to do something bad to her. She was
scared because she did not know what weapons he had on him;
in her
mind he could take a knife and stab her. At the time when they
were passing the church, they were on the side that
was hidden from
the people and there were no people at the church.
[9]
She
did not know he would rape her, when he ordered her to follow him.
She thought he would give her the plastic bag back. When
asked
why in her police statement she did not mention a third friend, S,
she testified that Plato did not go to the third friend’s
place. She thought Plato did not include the third friend on
purpose because she did not go to this friend’s house
for a
statement, whilst she went to the other two. She knew about
that because at the time Plato went to her other friends’
houses she was there. She did not ask why Plato did not include
the third friend because she did not know how the procedure
worked.
[10]
She
testified that she did not mention in her testimony, as she did in
her police statement, that her friends did not wait for her
because
they said they were scared of this person, because she had forgotten
about it. She was also challenged about the
fact that she did
not mention that she put down the packet and that this man picked it
up. She was also challenged for stating
in the police statement
that he had sex but mentioned in her testimony that he made up and
down movements. To this she testified
that she thought Plato
was writing the statement the way she was supposed to.
[11]
She
was further challenged that she did not say that she pushed him off.
She stated that she did not know that she had to
mention every
detail. When asked about not mentioning a condom, she stated
that the prosecutor never asked her about that.
She did not
know that she did not have to wash her panty. Nobody told her
not to wash it. She also did not look to see whether
there was blood
on it.
[12]
She
testified that it is not correct that she said he was kissing her the
whole time and she told the prosecutor about that. She
did not know
she had to mention that he gave her something to wipe herself with -
she did not know that that was an important part.
She did not
read the statement before she came to Court. It was not her
grandmother that said she must go and wash
but her uncle (different
from her evidence in chief). It was put to her that she pressed rape
charges because she came home late
and had to have an excuse as to
why she was late, or else she was going to get a beating. She came up
with the story for that reason.
She said that was not true.
[13]
The
next witness, Dr Ashima Narula, testified that she examined the
complainant, who was brought to her by Sergeant Plato, on 09
September 2014. At the time of examination, the complainant was
13 years old. The complainant had an Implanon contraceptive
in
place since 20 June 2014. There was no history of illnesses,
but she had not had her menses since May 2014. She
had changed
her panty and there was no sign of external bodily injuries relating
to the incident. She experienced menarche
at the age of 9.
There was a tear between the labia majora and minora and it measured
about five millimetres.
[14]
The
complainant had last been sexually active in April 2014, and had had
no consensual intercourse in the last seven days prior
to the
incident. She did use a condom with her partner. The
fossa navicularis had some redness. Bruising of the
hymen was
noted. No bleeding and tearing of the vagina was noted, but
there was a whitish fluid oozing from the vaginal orifice.
The
hymen had an annular configuration, and no swelling or fresh tears
were noted. There were bumps and deep clefts
noted. Bumps
and clefts were compatible with the complainant being sexually
active. Dr Narula testified in her conclusion
that the absence of
severe injuries on gynaecological examination in a sexually active
female did not exclude the possibility of
forcible vaginal
penetration with a penis or an object.
[15]
As
regards anal examination there was faecal soiling noted,
hypo-pigmentation in the peri-anal region and some fissures and
cracks.
There were also fresh abrasions, swelling, redness and
bruising in the peri-anal region. On the orifice examination
one could see a deep, gaping hole and could visualise the faecal
matter in the rectum. The orifice had tears, swelling,
thickening and funnelling. The reflex annotation was less than
fifteen seconds and there was also shortening and inversion
of the
anal canal. There was also cupping, twitchiness and winking
noted. No faeces were noted in the rectum and there
was laxity
on pressure on the anal orifice. There was no thickening of the
anal verge and the sphincter tone or grip was
markedly decreased.
She testified that her findings were compatible with relevant
forcible anal penetration with a penis
or an object. The deep gaping
hole in the anus could be caused by a penis or an object.
[16]
Dr
Narula further testified that the approximate timeframe of injury
could be 72 hours. In cross-examination she testified that
extreme
force had been applied to the anus, to the point that it tore the
complainant’s internal sphincters. According
to the
doctor the injuries on anal examination proved that there had been
penetration.
[17]
The
next witness was S M Nz (‘Nz’), the complainant’s
grandmother. The complainant lived with her. On 08 September
2014 she
sent the complainant to buy sausage and potatoes at the market. She
noticed that time was passing and the complainant
was not coming back
home. She looked through the window and even phoned the
complainant’s mother.
[18]
The
complainant came back at approximately 17.30, put the plastic bag she
had on the table and went straight to her room.
Nz went to the
room and asked her where she had been; the complainant answered back
with teary eyes and was crying. She told
her that this other
man had raped her. Nz immediately phoned the complainant’s
mother. When the complainant’s
mother arrived, Nz told
her what the complainant had said. They asked the complainant
where this had happened and she told
them that this man had taken her
to some place in Gugulethu and had raped her in the toilet. She
thought that the complainant’s
mother had taken her to the
police station the following day, but she (Nz) did not go.
[19]
She
testified that the complainant came in in a hurry, put the stuff on
the table, went to her room and closed the door. When
she
entered the room she did not see the complainant crying, but she
looked like someone who did not want to talk. The complainant
mentioned that she had gone to the market with M and W, her male
friends. She told her that the boys had left her because
they
were also scared of this man and that she had told them to wait for
her.
[20]
She
testified further that the market is busy and there is a Universal
Church in the area. The complainant did not mention
the name of
the person who raped her; she had only referred to him as ‘this
other man’. The complainant told
her that this man told
her that “
one
day I was going to get you, one by one
”
.
Nz was shocked about what had happened to the complainant as she had
not encountered anything like this before.
[21]
The
next witness was Abigail Adil Plato (‘Plato’). She
testified that she was a detective working at Nyanga Family
Violence,
Child Protection and Sexual Offences. She was the investigating
officer in this case. She had been taken
by the victim (the
complainant) to the crime scene. The complainant had been
accompanied by her mother. They found an old
lady at the house, who
said that she knew the appellant (he did paintwork there) and had
also seen him with the complainant the
previous day, but did not ask
anything (from the appellant) because she thought it was one of his
friends. The appellant
had not been there when Plato and the
complainant went to the scene.
[22]
After
the complainant came to report the incident, she took her to the
doctor and from the doctor they went to do a ‘pointing
out’.
The complainant pointed out to her a toilet-like structure,
which she said was where the appellant had taken
her. She left
her phone number with the old lady they found at the premises, and
with her son. Not long after she had dropped
off the
complainant
and her mother the old lady’s son called, informing her that
the appellant was at the old lady’s house.
She asked
Sergeant Sakopha to go with her. The old lady said that the
appellant was the one who had been with the complainant
the previous
day at her house. They arrested the appellant and also told the
complainant that they had the suspect. Plato
took the
complainant to the holding cells. As they were walking the
appellant called her by name. At that moment the
complainant
identified the appellant as the man who had raped her.
[23]
The
complainant told her that she had been with W and M. She
obtained statements from them, but while preparing subpoenas
for them
to testify in court, their parents indicated that they were not
prepared to have their children come into the Court environment
and
testify as they were minors.
[24]
The
appellant testified that he knew the complainant. She was in a
relationship with his friend Ms who was about 25 or 24
years old.
According to him the complainant was lying when she said Ms was 16 or
17, as he had already gone to initiation
school. He testified
that he (the appellant) had been painting by a certain house.
While waiting for the paint to dry
he went to the market in order to
kill time. While standing there he saw the complainant.
He called her, and she said
she was coming back, because she was
quickly buying something at the market. He greeted and asked
her how she was and that
he had not seen her for a long time.
He asked her when last she had seen Ms, as he had not seen him in a
long time.
He told her that Ms was a troublemaker and that he
had been taken back to the Eastern Cape because of that. He
then told
the complainant that he (the appellant) would now proceed
with his advances towards her for them to have a relationship, as Ms
was no longer there. The complainant had said that it was fine,
they could continue having a relationship because it was not
like Ms
was going to come back and that there was no relationship between
them anymore. He asked her if she did not want
to see where he
(the appellant) lived. The complainant called the boys she was
with, but they did not notice her, they kept
on walking.
[25]
He
had walked with her to where he lived, which was opposite to where he
worked. They were having a conversation as they were
walking.
When the complainant was with Ms the appellant proposed his love to
her but at the time she said she was with Ms.
[26]
He
and the complainant went to the house where he was working. The
door had been open and the lady who owned the house, named
Nomathemba, was there. He showed her where he lived opposite
the house where he worked. He introduced the complainant
to
Mama Nomathemba, because that is what he always did. He
confirmed that there was a “bathroom-like” structure
outside the house, which according to him was quite visible. He
testified that when the complainant came back from the market
she had
a plastic bag with her. He stated that he was not a ‘
skollie
’
,
that he had never asked the complainant to kiss him on that day and
he had never threatened her. He testified further that
he had
never asked her to take her pants off, and that he had not put his
penis in her vagina or “bums”. He confirmed
that
she never cried whilst in his presence and he had never told her that
he would spoil her and buy her nice things. When
he left her
past four there was still light. The sun was still there.
He does not know where she was after he left
her. He further stated
that he did not know he would get into trouble just by talking to
someone.
[27]
In
cross-examination he testified that he did not know how old the
complainant was, but that she had told him she was going to be
eighteen. He wanted to have a relationship with her first and
that as time went on they would eventually have sex, ‘
it
will happen by itself
’
.
The complainant had told him that she loved him back. He
confirmed that the two of them were in each other’s
company on
08 September 2014.
Grounds
of appeal
[28]
The
grounds of appeal raised on behalf of the appellant are that:
(a)
The
magistrate did not test the complainant’s ability to understand
the import of the oath before she proceeded to admonish
her to speak
the truth;
(b)
The
magistrate erred by not attending the inspection
in
loco
so
as to allow the court to place her observations on record;
(c)
The
magistrate erred by stating that the only point in dispute between
the state and the defence was whether these two acts of penetration
took place without consent;
(d)
The
court erred by finding that Dr Narula’s evidence acted as a
guarantee for the trustworthiness of the complainant’s
evidence
or version;
(e)
The
court erred in finding that it was improbable for the complainant to
sustain injuries on her way home in quite a short space
of time, as
it did not attend the inspection
in
loco
.
So it would not know the distance travelled by the complainant
and how much time was needed to inflict such injuries;
(f)
The
court erred by finding that it was highly unlikely that a 13 year
old, even if sexually active, would consent to anal penetration
that
led to severe anal injuries, as observed by Dr Narula;
(g)
The
court erred by suggesting that the defence of the appellant was that
of consensual sexual intercourse, even though the appellant
was
adamant throughout the trial that he did not have sexual intercourse
with the complainant;
(h)
A
number of inconsistencies and improbabilities were evident from the
complainant’s evidence, particularly the suggestion
that she
followed an unknown person when she appeared to be in danger and that
she did not call for help or alert her friends or
community members;
(i)
As
regards sentence, it is submitted that the court was unduly harsh and
failed to accord sufficient weight to the appellant’s
personal
circumstances (which called for imposition of a sentence lesser than
20 years).
The
issue of taking of oath and admonition to speak the truth
[29]
In
terms of s162 (1) of the Criminal Procedure Act 51 of 1977 (‘the
Criminal Procedure Act&rsquo
;): “
Subject
to the provisions of
sections 163
and
164
, no person shall be
examined as a witness in criminal proceedings unless he is under
oath,…
”
.
[30]
In
terms of
s 164
(1): “
Any
person who,
is
found
not
to understand the nature and import of the oath or the affirmation,
may be admitted to give evidence in criminal proceedings
without
taking the oath or making the affirmation: Provided that such person
shall, in lieu of the oath or affirmation, be admonished
by the
presiding judge or judicial officer to speak the truth
.”
(Own emphasis)
[31]
In
S
v B
2003(1)
SACR 52 (SCA), the Court found that the notion that a finding was
required to be preceded by an investigation is too narrow
of an
interpretation of the section. The Court held that the section did
not expressly require that a formal enquiry be held and
an
investigation was not required in all circumstances in order to make
such a finding. For example it could happen that
when an
attempt is made to administer the oath or to obtain the affirmation
it came to light that the person involved did not understand
the
nature and import of the oath or affirmation. The mere
youthfulness of a child could justify such a finding. Nothing
was
required more than that a presiding judicial officer had to form an
opinion that the witness did not understand the nature
and import of
the oath or the affirmation due to ignorance arising from youth,
defective education or other cause. Although
preferred a
formally noted finding is not required.
[32]
In
my view the inquiry suggested in decisions that discussed the
provisions of
s164
do not necessarily require a formal inquiry of a
clinical nature, which would advocate for form over substance.
In my view,
what is required in the relevant section is an indication
that the presiding judicial officer enquired from a witness whether
he
or she understood the import of the oath.
[33]
In
the present case the presiding officer asked the complainant as
follows:
“
COURT:
……
L.
tell me how old are you now?
WITNESS:
I’m 14 Your
worship
COURT:
And in which grade
are you?
WITNESS:
Grade 9.
COURT:
And who do you live
with?
WITNESS:
With my mother and
father and grandmother.
COURT:
L. do you know
what it is to take the prescribed oath? If you do not know you
can just tell me
.
WITNESS:
I don’t know
Your Worship.”
(Own
emphasis)
[34]
It
is clear in my mind that the presiding officer’s questioning at
this stage was directed at finding out whether the witness
understood
what a prescribed oath is, and she answered in the negative. It
seems to me, what is envisaged by case law which
suggests that an
enquiry should be first held to establish whether the witness
understands the nature and import of the oath, was
established in the
present matter.
[35]
In
S
v Matshivha
2014
(1) SACR 29
(SCA) at para 11, Zondi AJA (as he then was) held that
“...
If
the judicial officer should find after such an enquiry that the
witness does not possess the required capacity to understand
the
nature and import of the oath, he or she should establish whether the
witness can distinguish between truth and lies and, if
the enquiry
yields a positive outcome, admonish the witness to speak the truth
.”
[36]
In
the present matter, after establishing that the complainant did not
understand what taking a prescribed oath means, the presiding
judicial officer carried on and asked the complainant the following
questions:
“
COURT:
Do you know what it
is to tell the truth?
WITNESS:
Yes, Your Worship I
know.
COURT:
And to tell lies do
you know what that is?
WITNESS:
Yes, Your Worship
COURT:
And who taught you
about truth and lies and what the difference is between them?
WITNESS:
My grandmother
taught me Your Worship. When you are telling the truth
Your Worship
if you’re telling something that you know that happened and if
you tell a lie Your Worship then you are telling
something that
didn’t happen Your Worship, something that didn’t exist.
COURT:
And if you tell your
grandmother a lie and she finds out that you lied to her what will
your grandmother do to you?
WITNESS:
She gives me a
hiding Your Worship or she shouts at me.
COURT:
So if you tell lies
you will be punished?
WITNESS:
Yes, Your Worship.
COURT:
So would it be the
right thing or the wrong thing to tell lies?
WITNESS:
It would be a wrong
thing Your Worship.
COURT:
And if you tell the
truth would that be the right thing or the wrong thing to do?
WITNESS:
It would be a right
thing Your Worship.
COURT:
L. today is Thursday
is that right?
WITNESS:
Yes, Your Worship
COURT:
If I (sic) L. it is
the weekend today would that be a truth or a lie?
WITNESS:
It’s a lie.
COURT:
And if I say L. you
are 30 years old would that be a truth or a lie?
WITNESS:
It’s a lie.
COURT:
L. do you understand
that if you tell the Court lies that you will be punished?
WITNESS:
Yes, Your Worship.
COURT:
Court is satisfied
that the witness is competent Court is just going to warn her in
terms of
Section 164.
L. the Court is going to warn you when
you testify that you must tell us the truth. Do you understand
that?
WITNESS:
Okay Your Worship.
COURT:
Do you understand?
WITNESS:
Yes, Your Worship
COURT:
L. the prosecutor is
first going to ask you some questions now. If there is anything
that bothers you, if you’re tired
you want to take a bathroom
break you can tell the Court, do you understand? --- Okay Your
Worship.
L. M.:
(warned) (through
interpreter)”
[37]
I
am satisfied that there was compliance with the provisions of both
s162
read with
s164
in this matter. Whilst the magistrate did
not ask many questions to establish if witness understood the import
of taking
the oath, she asked the witness as a starting point if she
understood the taking of a prescribed oath and the witness did not
know
and the magistrate then proceeded to the second inquiry to
ascertain whether the witness knew the difference between telling the
truth and telling lies and after she was satisfied she went on to
admonish the witness to tell the truth.
[38]
Turning
to the issue of the non-attendance by the court at an inspection
in
loco
.
I do agree with Mr Mtini who appears for the appellant that the
magistrate should have attended the inspection
in
loco
,
so as to place the court’s observation on record appropriately,
as per
Kruger
v Ludick
1947
(3) SA 23
(A) at page 31. This makes sense because it is the
court ultimately that must make a decision based on what it has
observed.
[39]
It
is noted that Mr Hartzenberg, who represented the appellant during
the trial, applied for the inspection
in
loco
to
be undertaken before the close of the defence case, which was
granted. The magistrate had initially agreed to attend the
inspection
in
loco
,
but later changed her mind, and noted that it was not necessary for
the court to do so at that stage. The parties went to
view the
crime scene and the areas observed were placed on record in detail by
Mr Hartzenberg. Photos and video footage depicting
the areas
visited were handed in in court as exhibits. Mr Hartzenberg
stated that it would be relatively easy for the court
to follow,
although it was windy on the day the inspection was conducted. Mr
Hartzenberg stated that what he placed on record
was what the
appellant wanted to show the court, so as to have an idea of the
location where the incident took place and the surroundings.
These
observations were confirmed by Ms Uys, the prosecutor, who was
present throughout the inspection
in
loco
.
Having placed those on record, the defence closed its case.
The court did not seem to place much reliance on the photos
and
video footage or what was observed by the parties during the
inspection. Its decision was mainly based on the evidence
led
in court. It does not appear to have been prejudicial to the
parties, particularly the appellant, in my view, that the
court did
not place the inspection observations on record itself, because his
legal representatives placed the defence’s
observations on
record in great detail, which was agreed to by the state. This
is not a case where the court’s failure
to attend the
inspection
in
loco
and
place its observations on record would lead to unfairness that should
vitiate the proceedings.
Assessment
of evidence
[40]
The
complainant is a single witness in the occurrence of the actual rape
incidents. The cautionary rule is therefore applicable.
Its
application in cases that involve single witnesses and minors is well
established and need not be restated. The
observations made by
the Court in
S
v Sauls and Others
1981
(3) SA 172
(A) at 180 E-G, have stood the test of time and are apt in
this case as well. As observed in
Sauls
supra,
the Court at the end of the day must be satisfied that despite the
shortcomings in the testimony of a single witness the
truth has been
told.
[41]
The
complainant was 13 when the incidents occurred and 14 when she
testified. She gave a sequential account of how she met
the
appellant at the market on the day of the incident, having been sent
to buy sausages and potatoes by her grandmother, after
school.
The appellant called her, whilst she was walking with three of her
friends. Much was made of whether there
were two or three
friends that accompanied her. Nothing much turns on that, in my
view. The point is, she was with
friends, who were boys, and
who were more or less the same age as she. The presence of
friends was confirmed by the appellant,
although he mentioned two
instead of three friends so did Plato and Nz who testified for the
state. It is possible that the
complainant was mistaken when
she mentioned three friends instead of two.
[42]
Another
issue was raised during her cross examination about whether she was
called by the appellant before she entered the market
or when she
came back. This turned out not to be particularly an issue, as
the appellant himself testified that he called
her as she was going
to the market and according to him she said she was going to quickly
buy something and come back.
[43]
It
is common cause that the appellant and complainant were not friends.
According to the accused he was friends with the complainant’s
then boyfriend, who was at that time living in the Eastern Cape.
It is submitted on behalf of the appellant that the complainant
initially stated that she knew the appellant by sight but later
stated that he once spoke to her and her friends about beverages
they
liked. Even if that were so, there is no evidence that the
complainant and appellant were close to each other or were
friends
before the day of the incident. Again, this discrepancy is not
material, in my mind.
[44]
An
issue was raised about how improbable it is for a person to follow
someone unknown to her, in full view of friends and people
in the
community, without alerting anyone that someone forcefully took her
bag and eventually ending up at the place where the
rape occurred.
[45]
One
has to read the complainant’s evidence in context to understand
why she followed the appellant. As I understand
the
complainant’s evidence: someone called her name, and she
did not see who it was. One of her friends alerted
her to this
person and she ignored him. Then as she came out of the market
someone tapped her shoulder saying “
did
I not call you”,
she
said “
yes,
but I am sent to buy these things, and they are waiting for these
things at home
.”
The appellant then reminded her about the time the community attacked
him alleging that the complainant’s mother
and father were
amongst the people that attacked him. When she denied that he
threatened to do something bad to her, if she
took her family’s
side. Then he told her that he had wanted a relationship with
her for a long time, and that she never
answered him. She said
she was scared of him and he was too old for her.
[46]
This
then is what resulted in her following him. He took the plastic
bag she was carrying and said if she wanted it back she
must follow
him. She followed him because she was scared to go home without
the plastic bag. At that time she did not
know she was going to
be raped. She followed because she wanted the plastic bag back.
There is therefore a plausible
explanation as to why she did
not cry out for help at the time he told her to follow him. She
testified that she did not
alert her friends because she thought the
appellant was going to let her go. It is the taking of the
plastic bag that resulted
in her obliging by following him as she did
not want to go home without it. She further testified that she
did not know what
the appellant would do to her and her family, as he
was a thug. She was therefore clearly scared of him.
[47]
It
appears that the appellant had a reputation. The explanations
given by the complainant as to why she followed him make
perfect
sense to me. She wanted the plastic bag back; she was
threatened by him during their exchanges; she did not know
what this
man could do to her and her family; she did not know if he had a
weapon in his possession or had friends that could hurt
her, and
further and most importantly, she did not know that she would end up
being raped. She was scared that if she turned
around he would
try and attack her.
[48]
When
they were at the house where the incident took place, he demanded
that she take one side of her pants off and threatened to
do
something bad to her if she did not do that. There is nothing
strange about her relenting and not screaming for help then
either.
She was threatened not to cry when she did. She gave a
clear account of how the rape occurred. She testified
that he
inserted his penis in her vagina and made up and down movements and
then inserted it again inside her anus, which was interpreted
as her
bum. At this point she cried because it was painful. This
reaction seems to be consistent with the findings
of Dr Narula that
the anal injuries were quite serious and suggestive of force used in
penetrating her anus, leaving a gaping hole.
The examination by
the doctor was conducted within 24 hours of the incident, with the
doctor stating that the tears and injuries
noted were still fresh,
indicative of penetration that would have occurred within a period of
72 hours prior to the examination.
[49]
The
doctor testified that vaginal penetration could also not be ruled
out, simply by virtue of the complainant being sexually active.
Some redness was noted in the vaginal area although there were no
serious injuries. It is trite that absence of injuries
does not
mean that rape did not occur.
[50]
The
complainant was extensively cross examined for over two days, and her
evidence was consistent in material respects. Yes,
there were
discrepancies and omissions between her police statement and her
testimony in court, which I have already alluded to
in my summary of
the evidence and some inconsistences between her evidence in chief
and her cross-examination. Those, to
a great extent, she
explained to have been either aspects she did not know were important
for her to mention or she thought Plato
took the statement in the
manner she did because that is how it was supposed to be done. She
also offered an explanation
regarding the alleged discrepancies or
omissions which did not sound far-fetched in my view. Whilst
her testimony was imperfect
it was consistent in material respects.
[51]
It
is common cause that the complainant was in the company of the
appellant on the day of the incident. It is also common
cause
that they went to house (where the incident occurred) together.
There are differences between the versions of the complainant
and
appellant on the issue of whether, inter alia, the two went inside
the yard to the toilet-like structure. The appellant states
that he
did not go to the toilet-like structure with the complainant. He
states that she stood at the gate. The appellant’s
evidence was vague on whether the complainant could see that there
was a toilet or a bathroom-like structure from where she was
standing. It is strange that the complainant could know that
there was a toilet-like structure at the back of the house (which
was
unfinished) if she did not enter the yard. This could also be
why his legal representative at the trial kept asking him
to confirm
whether they had walked from the corner to the opposite side, so that
they could see the structure, even without entering
the premises.
[52]
It
appears to have been convenient for the appellant to state that the
complainant stood at the gate and would not come in, as he
would have
had to explain why he went behind the house towards the toilet-like
structure with her if the idea was simply to introduce
her to the old
lady of the house, Mama Nomathemba.
[53]
It
seems to me that he had to admit to having been at the old lady’s
house with the complainant, because he would not have
been able to
get around the fact that the old lady had seen him with the
complainant on the day of the incident. He had to
offer an
explanation as to why she was in his company and why it was necessary
for him to take her there. His justification
that he wanted to
introduce her to the old lady whom he worked for does not stand up to
scrutiny, nor is it consistent with his
evidence that the
relationship was quite new, which is why he would not kiss her.
If it was new, why was it important for
her to be introduced to the
lady whom he regarded as a mother?
[54]
It
is significant that a different version, as to why the complainant
and appellant ended up going to the house where he was working,
was
put to the complainant. It was put to her that she had asked
him to show her where he was working. He showed her
where he
was working and they never entered the gate because the old lady of
the house was already at the gate. Then he introduced
her to
the old lady as his friend. He then told the old lady that he
would be accompanying the complainant home. When
he testified,
however, he stated that he proposed love to the complainant at the
market and he asked her if she did not want to
see where he lived.
She said it was fine. When they got there however, he did not
go with her to where he lived.
He alleges that the place where
he lived was opposite where he worked so he simply pointed to her
where he lived, and took her
to where he worked. He then left
the complainant at the gate and went in the house. This is
contrary to what was put
to her during her cross examination.
[55]
Crucially,
it was never put to her that she had said she loved him back and from
that day they had started a new relationship, so
that she could
comment. All this appears to have been contrived so as to offer
an explanation about why he took the complainant
with him to this
house. He also stated that he hugged her before he left her at
the robots when he testified. That
was also not put to her.
[56]
It
is important to note that the complainant’s grandmother noticed
that something was wrong with her. She was not herself.
She was teary. When asked what was the matter was she told her
grandmother that she had been raped. The fact that she did not
immediately break the news to her grandmother as she walked in the
door is of no moment. People behave in different ways when
they
are hurt. That she was raped cannot be discounted purely
because she did not burst out and tell her grandmother about
the rape
as she walked through the door.
[57]
The
complainant testified that the robots where he left her are not far
from her house. When he left her she ran. There
is no
evidence that anything happened between the robots and reaching her
house. It is highly improbable that she made up the rape
charges
simply because she came home late and had to offer an excuse.
She would have taken things too far - by going to the
police station,
being examined by the doctor and testifying in Court - simply because
she did not want to get into trouble for
coming home late.
Further there does not seem to have been any other male person in
contact with her after she was with the
appellant and before she was
examined by the doctor.
[58]
I
am of the view that, whilst the magistrate may have appeared to
mischaracterise the issues in dispute or may not have articulated
them clearly, she was correct about the conviction. A weighing
up of all the evidence, in my view, taking into account strengths
and
weaknesses and probabilities and improbabilities from both
sides, the balance of evidence favoured the state so as to
exclude
any reasonable doubt that the appellant is guilty of the offences he
was charged with. To that end the appeal against
the conviction
of the appellant must fail.
[59]
Turning
to sentence, the magistrate found that there were substantial and
compelling circumstances warranting deviation from the
life
imprisonment ordained and imposed a sentence of 20 years
imprisonment, taking both counts together. The magistrate wrote
a comprehensive judgment in this regard.
[60]
The
approach by an appellate court in an appeal on sentence was outlined
in the case of
S
v Malgas
2001
(1) SACR 469
(SCA) at 478 D-E as follows:
‘
... A court
exercising appellate jurisdiction cannot, in the absence of material
misdirection by the trial court, approach the question
of sentence as
if it were the trial court, and then substitute the sentence arrived
at by it simply because it prefers it. To do
so would be to usurp the
sentencing discretion of the trial court...’
[61]
The
court went on further to state at p 478I – 479A that:
‘
...The tests
for interference with sentences on appeal were evolved in order to
avoid subverting basic principles that are fundamental
in our law of
criminal procedure, namely, that the imposition of sentence is the
prerogative of the trial court for good reason
and that it is not for
appellate courts to interfere with that exercise of discretion unless
it is convincingly shown that it has
not been properly exercised...’
[62]
The
disparity between the sentence imposed by the trial court and that
this Court would have imposed must be sufficient so as to
warrant
interference by this Court.
[63]
It
is so that the appellant is a young man. It appears that there
was a discrepancy about his age, which was initially given
as 27
years old during the trial. Mr Hartzenberg corrected it during
sentencing, stating that the appellant had told him
that he was 29
years old. He was single, had no children, and had fixed
employment and a standard 9 education with no serious
health issues.
He was a first offender on the rape counts. The appellant is
relatively young and has the potential of being
rehabilitated.
[64]
The
seriousness of rape cannot be understated on any account.
Courts must at all times impose appropriate sentences and send
correct messages that rape cannot be tolerated, no matter what.
There is also the issue of the serious injuries that have
been
inflicted on the complainant anally. Dr Narula gave a
devastating account of how the penetration left a gaping hole
in the
complainant’s anal canal. The victim impact report also
records how the rape incidents impacted the complainant.
She
had difficulty using the bathroom for a long time, she struggled to
associate with her peers, with sleeping and did not
want to be alone.
She fears men, does not trust them and feels anxious and
fearful around them. She is irritable and fears
going to the shops.
Her mother and grandmother have a sense of guilt and blame
themselves for what happened to their daughter
and granddaughter.
[65]
The
magistrate took into account the appellant’s personal
circumstances and departed from the prescribed minimum sentence
of
life imprisonment. The court took into account the fact that, whilst
the appellant ought to have been sentenced for two counts,
the
respective counts stemmed from the same incident and took them
together for purposes of sentencing. The cumulative consideration
of
all the relevant factors indicate that the kind of sentence imposed
by the magistrate is not one that can be characterised as
being so
far removed to what this court considers as appropriate.
[66]
In
the circumstances, I am not convinced that the magistrate exercised
her discretion improperly even if she imposed a sentence
that this
court would not have preferred. Ultimately that is not the test. In
the result the appeal should fail.
[67]
In
the result, the following order is made:
1.
The
appeal is dismissed and the conviction and sentence are confirmed.
____________________
N
P BOQWANA
Judge
of the High Court
I agree.
____________________
N
KOSE
Acting
Judge of the High Court