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[2018] ZAWCHC 122
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S.R v S (A760/17) [2018] ZAWCHC 122 (18 September 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
REPORTABLE
CASE
NO: A760/17
In
the matter of:
S
R
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
DELIVERED: TUESDAY 18 SEPTEMBER 2018
KUSEVITSKY
AJ
:
[1] The Appellant was convicted in the
Wynberg Regional Court on 6 October 2016 on two counts of rape of an
8-year-old minor in
contravention of
section 3
of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007
, read
with the provisions of sections 94, 256, 261 and 281 of the Criminal
Procedure Act 51 of 1977 (“the Act”). He
was subsequently
sentenced to life imprisonment on each count, which sentence was
ordered to run concurrently in terms of section
280 of the Act.
[2]
Leave to appeal was granted by the court below against conviction and
sentence.
[3]
During the trial, it was the State’s case that the Appellant
had committed the rapes during 2013 and 2014, which offence
fell
within the terms of section 94 of the Act. The Appellant denied
the allegations and gave no plea explanation.
The grounds of
the Appellant’s appeal is unclear, although in the heads of
argument, counsel for Appellant questioned whether
the State in the
court a
quo
,
had succeeded in proving it’s case beyond a reasonable doubt,
given the cautionary rule that is applicable to a single,
child
witness.
[4] It is common cause that the
complainant was 9-years-old and in grade 3 when she testified at the
trial proceedings. Those proceedings
were held in camera and
conducted
via
an Intermediary. The Appellant is the husband of
the complainant’s grandmother. She refers to them as ‘
Mamma
and
Pappa
respectively’.
THE
FACTS
[5]
The facts underpinning the appeal are as follows. During 2013, while
the complainant and her cousin Z were playing ‘
housy-housy’
,
the Appellant asked if he could play with them. The complainant was 8
years old at the time and Z, approximately two years older.
Z went to
the bedroom and the complainant went home to her mother to fetch
money. On her return to her grandmother’s house,
she knocked on
the door and Z opened, dressed only in her panty. Z quickly ran back
to the bedroom where the complainant saw Z
and the Appellant under
the blankets having sex. Afterward, Z told the complainant that
she would hit her if she told anyone
what she had seen.
[6]
With regard to the 2013 incident, the complainant testified that she
was living at her mother’s home when her mother sent
her to
look for her brother at her grandmother’s house. Her
grandmother was not home but the Appellant was. She asked the
Appellant to make her a sandwich. While she was looking through the
window, which it later emerged, overlooked the park, the Appellant
approached her from behind, picked her up and threw her onto her
grandmother’s bed. She first laughed but then the Appellant
pulled down her pants and put his penis inside her vagina. She
explained that she was lying on her back and the Appellant was lying
on top of her. She testified that it was painful and she pushed
him off although she did not do that so well. He told her
that if she
was going to tell anyone, he would go to jail. She then returned to
her mother’s house. She did not tell her
mother because she was
scared that her mother would beat her.
[7]
She further testified that during the 2012 December holidays, she and
other family members were at the grandmother and Appellant’s
house and slept over because they were going to the beach the
following day. She was one of 5 children in the group. She
explained that her aunt and three of the children slept on a mattress
which was in the lounge. She slept next to Z on the top bunk
bed and
the Appellant slept on the bottom bunk. Her grandmother slept in her
own room. When everyone was asleep, the Appellant
climbed on top of
her, pulled down her pants, put his penis inside her vagina and she
shouted, but no one woke up. The Appellant
moved his penis in her
vagina. She pushed him off and he went back to his bed. She pulled up
her pants, said a prayer and went
to sleep. She did not tell anyone
because she was scared that no one would believe her.
[8]
She described a further incident which she said she could not
remember so well. It was M’s birthday. Her grandmother was
out
buying clothes for a religious holiday. She and Z were laying on her
grandmother’s bed watching movies. The Appellant
came to lay on
top of her and he had penetrated her, moving up and down, while Z was
also lying on the bed. She said that
her private parts hurt and
she pushed him off and continued watching movies.
[9]
The complainant further testified that her “
Pappa
”
raped her many times during 2013. In 2014, it emerged that the
complainant’s mother beat her often which caused her
school
authorities to arrange for a social worker to investigate. As a
result, the complainant was placed in the care of her grandmother,
the Appellant being the husband of her grandmother.
[10]
The complainant stated that during 2014, the Appellant would grab her
from behind during the day or he would lift her and push
her onto her
back if she was sitting on a chair, pull down his and her pants to
their knees, penetrate her vagina, making movements
up and down
inside her, raping her. She would then have to go to the toilet to
clean herself. She said it happened many times.
She also said that
the sleeping arrangements also changed in the house. Initially, she
would share the double bunk with M, where
she would sleep at the top
and M at the bottom and her grandmother and the Appellant would sleep
in their bedroom. This arrangement
changed however when M had a
baby and she slept in the bedroom with her grandmother and the
Appellant slept in the bottom bunk
bed with the complainant, on the
top. The complainant testified that the Appellant would go to the top
bunk and lay on top of her
and move up and down and rape her. She
also testified about instances when the Appellant would come up
behind her and push his
penis against her buttocks. She would push
him away and go to the toilet to wipe herself. This happened many
times and always occurred
when her grandmother and M were out.
[11]
The day she told her mother, she was at her mother’s house and
it was time for her to return to her grandmother’s
house. She
refused and lay underneath the blankets and started crying. Her
mother asked her why she was crying and she told her
that the
Appellant raped her. After asking her daughter what she thought rape
was, the complainant told her mother what it was.
Both she and her
mother cried. Her brother, sister as well as her step-father and his
friend were also present when she told her
mother during this first
report. The following day, her mother took her to a clinic where she
was examined by a doctor. They were
thereafter sent to the police
station.
[12]
When asked if she was upset or angry with anyone, she answered that
she was not cross with her grandmother. She saw her
grandmother
but she was scared that they were not going to listen to her, or that
they would be rude or angry with her. When asked
how she felt about
what had happened and how it had affected her, she stated that the
Appellant had hurt her. She said that she
felt sad and very angry and
bad inside.
[13] In evaluating her evidence, this
has to be viewed with due regard to the fact that she testified when
she was a 9-year-old
child living in Hanover Park in poor and dire
socio-economic conditions where children do not each have the
privilege of their
own bedroom and privacy and where they are
economically dependent on extended family for treats, such as being
taken to the beach
or getting to watch movies. Children reared in
those circumstances are often fearful of blowing the whistle and
jeopardizing their
access to those treats or fearful of being
chastised by unsympathetic adults who themselves don’t want to
jeopardize their
security by accusing a person who contributes to
their sense of security.
[14]
It is patently clear that her cousin, Z who was approximately two
years older than her, wasn’t prepared to blow the whistle
on
the Appellant, neither in relation to what the Appellant allegedly
did to her, nor what he did to the complainant. That is the
context
in which the evidence of Z lying or sitting on the same bed with the
complainant must be seen, at the time when incidents
of rape are
alleged to have taken place.
[15]
During cross examination the complainant said she heard and knew
about rape because many people spoke about it, including her
Aunty S,
who was about 3 years older than her and who had spoken about it in
2011. She did not tell S about her being raped because
whenever she
told S things, she would say it’s a joke and the complainant
must not lie.
[16]
After school, she used to speak with a male social worker about the
arguments and fights that took place at her mother’s
home
between her mother, her step-dad and the rest of the family. She
however did not feel comfortable telling that social worker
about
being raped because she felt that no one would believe her.
[17]
She denied the proposition put to her that she told M2 in the
presence of Z that she was going to make trouble for the Appellant.
In this instance, even if she had said that
after
she had been raped, in light of the Appellant having told her that if
she told anyone, he will go to jail, it would have been logical
for
her to conclude that when she told someone eventually, that she would
be making trouble for the Appellant.
[18]
She was told that Z, her cousin, would deny that she and the
Appellant had sexual intercourse, which was the incident which
the
complainant had described at the start of her evidence in chief.
Clearly flustered, she first answered that she did not feel
like
answering the question. She then agreed with what Z was going to say
by simply saying yes. In my view there can be no doubt
that she did
not feel comfortable disputing Z’s potential denial because Z
had been in denial all along and had picked fights
with her before.
[19]
She also denied the proposition that her grandmother would say that
she told her grandmother that a boy had touched her at
school. The
complexity of loyalty towards the Appellant by potential witnesses is
clear because the Appellant is the grandmother’s
husband. At
that point of testifying the complainant broke down and could not
continue with the cross-examination so the case was
postponed to a
later date. Any adult person, and no less in the case of a
child, would feel betrayed, scared and isolated
upon hearing that her
cousin that she played with and her grandmother that she lived with,
would be testifying against her.
[20]
The evidence in chief of the complainant was transcribed in 54 pages
while her cross examination spans 166 pages. The manner
in which this
child complainant was cross-examined leaves much to be desired and it
is apparent from the record that the questions
that were posed to her
were done, seemingly to confuse the witness and where answers were
elicited based on incorrect propositions,
these were hardly rectified
and the complainant left to answer, uncorrected.
[21]
This happened in an instance when the defence attorney posed a
question to her about the time when Z and the Appellant had
sexual
intercourse incorrectly without referring to her allegation that the
intercourse took place between the Appellant and Z
and not the
Appellant and the complainant. The defence attorney’s question
created uncertainty in the mind of the complainant
because it was a
complete distortion of her testimony.
[22]
Unfortunately, due to the length of time during postponements, which
aspect will be returned to, the prosecutor and Magistrate
did not
correct the defence attorney’s question. Although the
complainant gave evidence about the incident between the Appellant
and Z in response to the prosecutor’s question as to when the
first time was that the Appellant raped the complainant, it
ought to
have been clear to everyone listening that she did not describe the
first time that she was raped. The prosecutor failed
to point that
out to the complainant. That evidence was nonetheless helpful because
it sketched the background and context to Z’s
subsequent
behaviour of paying no heed to the Appellant raping the complainant
in her presence.
[23]
The questioning that followed the incorrect premise of the question
outlined above, then led to further inaccuracies being
put to the
complainant, who was by now, an undoubtedly traumatized child. She
began answering that she could not remember. Thereafter
the defence
asked the complainant why she had told the prosecutor that nothing
happened to her that day. She then answered that
nothing happened to
her but that something happened to Z. It would appear that the
defence attorney knew all along that her evidence
in chief was that
she wasn’t raped in that incident but was referring to Z and
the Appellant. Nonetheless he deemed it appropriate
to deliberately
create confusion in the mind of the complainant, a 9-year old child.
[24]
All too often this court, when exercising its appellate jurisdiction,
encounter that style of cross examination which presiding
officers
regrettably allow, namely the putting to witnesses, deliberately
incorrect versions of their evidence in chief with a
view to creating
confusion. That is not acceptable cross examination because it is not
fair to any witness, least of all to a child
witness. The defence
attorney again also incorrectly put to her that she said in her
evidence in chief that Z told her not to tell
anyone or else she will
beat her - and that she said she was going home, but the record
doesn’t reflect that she was on her
way home when it was said
during her evidence in chief. That incorrect question led the
complainant to once again say she doesn’t
remember because it
is most unlikely for a 9-year-old to correct an adult attorney in
court especially when the Magistrate and
prosecutor did not correct
him.
[25]
Fortunately, however, the Magistrate eventually did correct the
defence attorney and read out the relevant part of her testimony.
She
further testified that she was taught at school where on her body it
was wrong for her to be touched and that she had to tell
someone if
it happened and that she knew this in 2012. She explained that she
was confused by the defence attorney’s question
about whether
anything happened to her the day that she saw Z under the blankets
with the Appellant, hence she initially said in
response to that
question that she was also raped that day. In light of the
generalized and inaccurate nature of the questions
by the defence
attorney, her explanation is reasonable.
[26]
She said that she didn’t feel like speaking to anyone about Z’s
threat. She slept over at her grandmother’s
house on weekends
because her mother worked at a Club and her father also worked
nightshifts. It was also put to her that her grandmother
and M would
testify that she stole her grandmother’s money. This she
vehemently denied.
[27]
She further stated during cross examination that M slept under the
double bunk. In her evidence in chief she said M slept on
a mattress
on the floor, which technically is below the double bunk but the
defence attorney persisted in putting to her that she
said M slept on
the bottom bed of the double bunk. This led to her answering in a
confused manner until the prosecutor eventually
corrected the defence
attorney by repeating her answer to the defence attorney, namely that
M slept under the double bunk. By then
the complainant was hopelessly
confused about all the differences of opinion on what she had said.
She then said she can’t
remember where M slept followed by an
answer that M slept at the bottom.
[28]
She confirmed her evidence in chief that when the Appellant climbed
on top of her, she shouted but not so loud and no one woke
up. The
complainant agreed that if the Appellant climbed the ladder on the
double bunk, it would make a noise but she said it was
a little bit
of noise. She could also not explain why she did not shout louder. A
6-year-old child who is suddenly confronted by
her grandfather
climbing on top of her while she and everyone else was asleep could
easily have been too shocked and scared to
shout loudly and raise the
alarm. There is no
onus
on a victim of rape to raise the alarm. Each case has to be
considered on its own facts and circumstances when regard is had to
why the alarm wasn’t raised when the rape commenced. The
defence attorney asked her if the Appellant’s hands were on
her
pants or his when she shouted. She said that she did not know.
Thereafter he asked if the Appellant tried to stop her when
she
shouted and she said that he put his hands over her mouth. She was
then asked to explain her different answers and she said
quite
correctly, that the first question was about whether his hands were
on her pants or his, while the second question was about
whether he
attempted to silence her when she shouted. The defence attorney
resolutely refused to frame his questions specifically
and accurately
despite numerous requests from the Magistrate that he should do so.
[29]
The defence attorney then put it to the complainant that she wanted
the court to believe that the Appellant walked from her
grandmother’s
room in the dark to her bed, past the people sleeping on the floor
and climbed up the double bunk ladder to
her. The record
however doesn’t reflect the complainant having said the
Appellant walked from her grandmother’s
room in the dark to
where she was sleeping. It was further put to her that the Appellant
would say that on the night in question,
he slept in her
grandmother’s room and that he did not rape her. She denied it.
[30]
She was also asked on a separate occasion after the Appellant had
allegedly already raped her before, why she went inside his
home when
she went to look for her brother and he wasn’t there. She said
that she went inside to look out onto the park from
the Appellant’s
kitchen window. The Appellant’s and her grandmother’s
flat is on a top floor and she could see
the park from here. In this
regard one must remember that the complainant is a child who felt
scared to report the Appellant. She
lived in conditions of limited
resources, scarce parental attention and beatings by her mother,
hence it is quite conceivable that
she was compelled by those
conditions to follow her mother’s and all other family adult’s
instructions. There was no
opportunity for her to recoil and not go
back to the home of the Appellant.
[31]
Dr Ashma Narula who is a clinical forensic practitioner testified
that she examined the complainant and found that in her opinion,
the
injuries in the form of
inter
alia
,
healed tears, were compatible with forcible vaginal penetration with
a penis or an object. The injuries sustained could
have been
caused by one incident and in some victims, may take more than two or
three incidents.
[32]
The Appellant testified and his evidence amounted to a mere denial of
the allegations. He stated that he used drugs with the
complainant’s
mother and stepfather, and that it was he who was usually out of the
house and not his wife, complainant’s
grandmother. When
asked if the complainant was a child that made up stories, he stated
that he did not know about such incidents.
[33]
The defence thereafter called M2, the ten-year-old cousin of the
complainant, to testify. She was six years old when
the events
transpired. She was asked to testify about an incident when she and
the complainant were having a bath at her grandmother’s
house.
She stated first that the complainant told her she was going to make
trouble for her aunt and for the Appellant but not
for her
grandmother. She was also asked about where all of the different
family members slept the night during the December holidays.
She also
stated that the bunk bed was made of wood and was old and that she
would have heard if the complainant had shouted.
[34]
During cross-examination, she was asked several times why she
remembered this time in the bath and what was said to her, so
specifically. She could also remember exactly where everyone
had slept the night before the beach outing. Her answers were
unclear
and inaudible and she eventually said that she did not understand the
question. She later mentioned the trouble referred
to was about a
missing phone, then after court had adjourned for the day, she
testified that the ‘trouble’ referred
to, related to
allegations by the complainant that the Appellant had raped her.
[35]
S R, the complainant’s grandmother, testified that according to
her, the complainant did not always tell the truth. She
did quite
well at school and she was close to her grandmother. She stated that
she would have noticed if something was wrong as
her own daughter was
raped before. If she found out that the Appellant raped the
complainant, she would have reported the
matter to the police.
She also stated that she was firm, but that the complainant never
seemed unhappy. She also stated that
the complainant at some stage
said that a boy had touched her private parts. She testified that she
never had a good relationship
with the mother of the complainant who
never came to their house. She confirmed that the complainant
wanted to return home
and that her mother wanted her to return but
there were concerns by the social worker regarding the mother’s
need for help
for a drug problem. She also denied that it would have
been possible for the Appellant to have raped the complainant.
[36]
W P, who is the step-child of the Appellant, testified that she was
sleeping on the mattress that night before the outing,
and denied
that a rape of any sort occurred; that there was no shouting and that
she never heard any shouting on the night in question;
or that her
daughter was raped by the Appellant as this was denied by her
daughter.
[37]
Z P testified with the assistance of an intermediary. She denied ever
playing with the complainant or that they played ‘
house-house’
.
She also denied that the Appellant had raped her. During
cross-examination she stated that she and the complainant never
really
had a relationship, and that she in fact did not really like
the complainant because she thought the complainant was a
troublemaker
and that she still disliked her. It was put to her that
she could not deny that the Appellant did not rape the Appellant
because
she never lived at their house and was only there on
occasion.
[38]
At the conclusion of the trial, the Appellant was convicted on two
counts of rape and after hearing argument in mitigation
and
aggravation of sentence, the Appellant was sentenced to life
imprisonment, the court having found no substantial and compelling
circumstances to deviate from the minimum sentence.
[39] It is trite that the correct
approach to be adopted by an appellate tribunal has been enunciated
as follows by Marais JA in
S v Hadebe and Others
1997(2) SACR
641 (SCA) at 645e-f:
“
Before
considering these submissions it would be as well to recall yet again
that there are well-established principles governing
the hearing of
appeals against findings of fact. In short, in the absence of
demonstrable and material misdirection by the trial
Court, its
findings of fact are presumed to be correct and will only be
disregarded if the recorded evidence shows them to be clearly
wrong.
The reasons why this deference is shown by appellate Courts to
factual findings of the trial court are so well known that
restatement is unnecessary”. (See also R vs Dhlumayo and
Another
1948 (2) SA 677
(A) at 705-706)
[40]
During her judgment, the Magistrate systematically dealt with the
evidence of the defence witnesses, ultimately questioning
their
credibility as in some instances, particularly with regard to the
minor child witnesses on the one hand and the evidence
of the
Appellant and his wife on the other, that it appeared that they were
coached or the matter was discussed prior to them testifying,
with
the sole purpose of protecting the Appellant. When she dealt with the
evidence of the complainant, she found her evidence
unwavering as to
the events surrounding the rapes. Furthermore, those aspects of the
complainant’s testimony which seemed
unclear, which was dealt
with above, is perfectly understandable against the backdrop of her
tender age of 9 when she testified
and the fact that her evidence
took more than ten months to complete, together with the fact that
the defence elected to call her
family to testify that she was a
liar. In this matter, the complainant’s evidence
commenced in June 2015 and was adjourned
or postponed on no less than
seven occasions. In my view, it is undesirable for child witnesses in
rape trials, to have to endure
such lengthy cross-examination and
over such a long period of time. If indeed such postponements are
necessitated, they should
ideally only be limited to such instances
where the child witness need time to compose themselves, or are tired
and Magistrates
should ensure that rape trials where young children
are testifying, take preference and that their evidence is completed
within
the shortest time period possible.
[41]
The acceptance therefore by the Magistrate of her evidence in my view
cannot be viewed as a material misdirection and cannot
be faulted.
[42]
With regard to sentence, it is trite that an appeal court has to
determine whether there was any misdirection by the court
a
quo
in determining the sentence of the Appellant. Crimes against children
are endemic and on the rise. There is no room in our society
to be
complacent or to be anaesthetized by the prevalence of these heinous
acts perpetrated against children simply because of
the seemingly
frequent occurrence thereof. Just because it is frequent does not
make it normal and courts are to guard against
the notion that, in
the absence of serious physical injuries, that the crime of rape is
of a lesser degree. Courts have often found
that absence of severe
physical injuries amount to substantial and compelling reasons to
deviate from the minimum sentence. However,
it has to be accepted
that abusers seldom need to use force to ensure the submission of
their child victims. Sexual predators come
in various forms. On
the evidence, the Appellant also violated another minor child. It is
therefore clear that the Appellant
is a danger to society and his
conduct perpetuates the cycle of female oppression.
[43]
Rape by a family member, no less a person considered to be a
grandfather is the most reprehensible, vile act of domination
and
abuse imaginable. Their wanton acts of abuse strips the
innocence of their children and have their memories of their
ordeal
etched in their minds forever. The courts must not hesitate to show
its abhorrence of such behavior, in these and other
rapes where,
especially young children are involved.
[44]
The Magistrate rightly rejected that the Appellant’s argument
that as he was a first time offender, that this amounted
to
substantial and compelling circumstances.
[45]
The Magistrate also reiterated that the complainant was placed in his
and his wife’s care by the Social Services Department,
and that
he used this, not to protect her, but to continue to sexually violate
her and take advantage of her vulnerability, finding
that he showed
no remorse.
[46]
I cannot find that the Magistrate misdirected herself in this regard
and accordingly, I am of the view that the Appellant was
correctly
sentenced to life imprisonment.
[47]
In the result, the following order is made:
1.
The
appeal against conviction is dismissed and sentence is confirmed.
______________________
KUSEVITSKY AJ
ALLIE
J
:
I agree, and it is so ordered.
______________________
ALLIE,J