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[2013] ZAGPJHC 291
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Mnguni v S (A237/2013) [2013] ZAGPJHC 291 (21 November 2013)
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REPUBLIC OF SOUTH
AFRICA
IN THE GAUTENG HIGH
COURT
(LOCAL DIVISION
JOHANNESBURG)
CASE NO: A237/2013
In
the matter between
BHEKINKOSI
EMMANUEL MNGUNI
Appellant
and
THE
STATE
Respondent
Criminal law - Appeal
against conviction of rape and sentence of life imprisonment
-evidence of state witnesses analysed - material
defects in evidence
– court a quo erred in accepting evidence of state witnesses -
medical evidence found to be inconclusive
- appellant entitled to
benefit of doubt - conviction and sentence set aside.
J U D G M E N T
VAN
OOSTEN J:
[1]
The
appellant was convicted in the Roodepoort Regional court of rape and
sentenced to life imprisonment. The appeal is directed
against
conviction and sentence and is with leave of the court a quo.
[2] There are essentially
two issues for determination by this Court. The first is whether the
complainant had in fact been raped,
and if so, the second, whether
the appellant had raped her. The complainant in this matter was born
on 8 July 2000. She was therefore
9/10 years old when she was
allegedly raped and 12 years old when she testified. Her testimony
was given through an intermediary.
The State in addition to the
complainant, called a number of witnesses to testify. Central to the
issue as to whether the complainant
was raped is the evidence of Dr
Thompson who on 17 December 2010 conducted the medical examination on
the complainant. Concerning
the allegations of rape the evidence of
three further state witnesses is relevant for purposes of this
appeal: firstly, the complainant’s
mother, S Z, secondly, the
complainant’s close friend and the daughter of the appellant, Z
M, and thirdly, the appellant’s
common law wife, P M. The
appellant testified and called his second wife, G M, to testify in
his defence. His defence was a denial.
The Regional Magistrate
accepted the evidence of the state witnesses and rejected the version
of the accused as false. The evidence
of the defence witness she
further held, did not take the matter any further.
[3] A brief outline of
the evidence for the State is the following: the complainant, who was
a single witness as to the alleged
rapes, testified that the
appellant had raped her on altogether four separate occasions. The
first was in 2009 and the second,
third and fourth occasions in 2010.
The date June 2010 featured prominently in the evidence of all the
state witnesses which of
course marked the time of the World Soccer
Cup event taking place in South Africa. For the rest as will soon
become apparent, it
is difficult if not impossible to place the
events within a timeframe of any exactitude. The complainant made
reports concerning
the events to her mother, Z and Ms M, which is
what they dealt with in their testimony. I do not consider it
necessary to traverse
the evidence of the state witnesses in any
detail save to refer thereto where necessary. Lastly, I propose to
deal with the medical
evidence and in particular the weight to be
attached to the opinions expressed by Dr Thompson.
[4] The complainant was a
young immature child both at the time of the events occurring and
testifying. Due allowance for the child’s
inexperience,
imaginativeness and susceptibility to influence must therefore be
made in the evaluation of her evidence. Consequently
caution must be
exercised when considering the evidence of a child (see
R
v Manda
1951
(3) SA 158
(A) at 163C-E;
Viveiros
v S
2000 (2) ALL SA 86
(SCA). For reasons which will presently emerge the
present case is plainly one which calls for caution.
[5] The complainant
testified that she was at the appellant’s house in Snake Park
visiting Z there as she was accustomed to
do, when the first incident
occurred. It was in 2009. She knocked on the door, the appellant
opened, held her by the hand, opened
a drawer and took a knife in his
hand, pulled her to Z’s bedroom, undressed himself, took out
his penis, inserted it into
her vagina and raped her in ‘bumping
on top of me’. She went home and never reported the incident to
anyone as the
appellant had threatened to kill her should she do so.
In this regard she is contradicted by her mother who testified that
the
complainant had in fact in June 2010 mentioned three incidents to
her the first of which had happened ‘during Easter time
in the
year 2009’. Significantly, although she felt sad, she was
adamant that she experienced no pain, as opposed to the
subsequent
events when she did experience pain. The complainant’s evidence
in this regard cannot be reconciled with the medical
evidence. Dr
Thompson testified that only the tip of his small finger was allowed
on labia traction during his examination (which
it must be remembered
occurred 12 – 18 months after the first alleged incident). It
is clear from his evidence that penetration
by a male organ would
definitely have caused internal vaginal injuries and resultant pain
similar to a speculum that is used to
dilate the vaginal opening for
internal examination of the vaginal vault. For this very reason he
regarded it crucial not to use
a speculum without the complainant
being under anaesthetic. Regrettably the complainant’s version
as to the absence of pain
was not put to Dr Thompson but I am
satisfied that as a matter of plain logic the complainant’s
evidence in this regard,
on the probabilities, cannot be accepted.
[6] This brings me to the
second, third and fourth incidents as described by the complainant.
These incidents, on a plain reading
of her evidence occurred one
after the other in the course of a few successive days. The last of
the incidents she associated with
the World Cup and therefore in June
2010. There is considerable corroboration for this date to be found
in the evidence of the
other state witnesses. It has this
significance: although the medical examination was conducted some 6
months later, she made mention
to Dr Thompson of only one incident of
rape by ‘a known male’ who had ‘forced her into his
house and had non-consensual
sex with her’. Dr Thompson noted
at the time that the complainant was ‘emotional’, which
he was unable to explain
what he meant by it. Be that as it may, I
find it difficult to believe that the complainant, having regard to
the way in which
she gave her evidence, would only have mentioned one
incident if there in fact had been three successive incidents more or
less
in the same period of time.
[7] A striking feature of
the complainant’s evidence is the way in which she described
the incidents: each incident followed
exactly the same pattern. The
irresistible impression I formed is that it was a rehearsal of the
incidents in almost the exact
same wording. The Regional Magistrate
was impressed with her evidence and remarked that her evidence
‘emerged so naturally
from her and that points away from the
suggestion by the defence that she was coached into falsely
incriminating the accused’.
I am unable to agree. I say this
for the following reasons. The complainant’s mother was an
unsatisfactory witness. Her inattentiveness,
indifference and
ignorance in dealing on the one hand with the most disturbing overt
sexual misconduct conduct of the appellant
she had observed, which I
will revert to, and on the other the reports made to her by the
complainant, are aspects of concern.
But, it goes further. On the day
in June 2010 when the report was made to her by the complainant, she
demanded the truth from her
and assaulted the complainant in hitting
her with a belt which prompted the complainant to make the report.
She did report it to
some police officer who was doing his rounds in
the area where she lived and later to two other police officers who
had visited
her, but they, according to her, refused to take the
matter any further as they were of the view that there was ‘no
evidence’.
She left at that and it did not enter her mind to
have the complainant medically examined. It was only almost six
months later
when Const Mokwai of the Child Protection Unit of the
SAPS questioned her about an anonymous complaint they had received by
email
from Bethany House Trust concerning the alleged sexual abuse of
the complainant, that she reluctantly, adopting an attitude of ‘it’s
not anybody’s business’, became involved in the
investigation.
[8] It was only towards
the end of cross examination of the complainant’s mother that
she, for the first time, revealed the
following information:
‘
There is another day your
worship where I and Mr Mnguni went to buy groceries. I asked a
lift from Mr Mnguni and we travelled
with the kids of Mr Mnguni.
We came back from buying the groceries and Mr Mnguni had bought
chocolates for his kids and there
was another chocolate that he said
he bought it for N. The very same day from buying groceries with Mr
Mnguni I left my house to
G’s place but while still on the way
something came to my mind, that I must turn back home. I did
so. Having arrived
at home when I arrived at my home I noticed Mr
Mnguni touching the vagina of N and N at that time had bent her upper
part of the
body to the front part, bending to the front part of her
body. (As demonstrated by the witness before court.)
COURT: She was bent forward?
(Bent forward as she was being touched.)
MR MUSEKWA: Now what did you
see? -- I said to N if somebody does something that you do not want
you must inform me and never
allow any person to do anything to you
that you do not want.
Now did you ask accused what are you
doing to my child? -- I never enquired from Mr Mnguni what he was
doing. What I have
noticed, his penis was erected already.
…
Now, despite you seeing that accused
is touching the child you still allowed him to be with your child, to
play with your child,
to be in the company of your child? You
had no problem with it? -- Your worship as I have already explained
this is the manner
Mr Mnguni was used to when playing with the kids.
He would touch them in the vagina. All the kids there. And you had no
problem
with that (inaudible). When he touched your child’s
private part you had no problem with that? -- I did not have a
problem your worship about that because he was also touching his
kids’ private parts.
So to you it was normal, it must
continue? -- I do not know what to say your worship because he
was used to touch the kids
in that manner and it never came to my
mind that at some stage he would end up raping the child.’
I am accordingly not
satisfied that the real possibility of influence and suggestion can
be disregarded in the consideration of
the complainant’s
evidence. In the view I take of the matter I do not consider it
necessary to express any final views on
these aspects as the medical
evidence, as I now turn to deal with, is decisive of the matter.
[9] Dr Thompson’s
evidence in my view was less than satisfactory. As I will presently
deal with, he relentlessly pursued his
own cause, without providing
and enlightening the court with a balanced view concerning his
observations and opinions, as he, as
an expert witness was in duty
bound to do, It is at the outset of considerable assistance and
guidance to refer to the judgment
of the Supreme Court of Appeal in
Maemu v S
(147/11)
[2011] ZASCA 175
(29 September 2011), which
bears striking similarities to the present matter. In that matter the
appeal against a conviction of
rape which was based primarily on the
evidence of a young child was upheld as the medical evidence was
found to be inconclusive.
In this regard the following considerations
arose: the medical evidence likewise to the present matter, in the
Form J88 under the
subheading clinical findings, reflected that there
was a small cleft on the upper edge of the vaginal wall and recorded
that there
was possible penetration with an object. In the medical
evidence that was tendered no certainty was established as to the age
of
the cleft: whether it was old or fresh, natural or inflicted. In
addition the complainant was examined some two months after the
event.
[10] In the present
matter the examination was conducted some six months after the
alleged last event. Dr Thompson found two clefts
on the hymen (which
was annular in form and still intact) at position 3 and 9 o’clock.
These he opined, were characteristics
of old occurrences. No other
injuries were found. Based on the existence of the two clefts, Dr
Thompson concluded that his findings
were consistent with previous
vaginal penetration. He, unlike in
Maemu
, was not asked to nor
did he express any opinion on the nature of the object that could
have penetrated. More important however
is the obvious question
arising from his evidence that only the tip of his small finger was
allowed, which was
‘
Now if I tell you that the fact
that your finger could not go through, if I tell you that that fact
would suggest that no penis
could have gone in previously what would
you say?’
Regrettably, although a
flurry of words followed, no answer to the question was given. His
response to the question was as follows
‘
No. I will say to you that, now
I am going to put you through this. If you have a hymen and you
penetrate it, if you get there you
cause tears and that is proof that
something passed there. It does not have to pass further than that.
That is as far as it needs
to go for me to see that something
happened there. It does not have to be torn to shreds for me to
realise something
has passed
there
.
I just need to understand your
response Dr Thompson. Do I understand you that you are saying there
was penetration but not into
the vagina? -- No, no, no. Do not
mistake me now. I said what I saw, because I did not pass a speculum,
that something had injured
the hymen.
In other words
something had
penetrated the hymen
. They make a
distinction between hymenal opening and hymen, or vaginal opening and
vagina. There is no distinction. It is just
that this is the tissue
in front of it. Alright. It is all; this is part of the same complex.
So everything that you see there
is female genitalia. They just
distinguish for sake of description between clitoris and hymen and
that. The fact of the matter
is that is vaginal tissue. That is as
simple as it is. So whether you hit the hymen or whether you hit the
vestibule you have hit
the vagina. Bottom line. Once you have it the
hymen you have hit the vagina. Bottom line. It is just for us to
distinguish is it
in front
or is it deeper
. That is how we
distinguish. So if I talk to a colleague and I say to him the injury
is at the hymen he knows, he does not have
to go and dig down there
at the back to go and repair. He looks in the front and he repairs
the front. If I tell him it is on the
fourchette he knows it is
external and he asks me is it first degree then I say. Well that is
what you look for when you examine
a patient.’
[Emphasis added]
It is clear from the
excerpt of Dr Thomson’s evidence that he conflated legal
penetration and penetration beyond the hymenal
membrane. His
excitement and attempts to justify himself regrettably overtook sound
reason and objectivity. As his evidence progressed
he eventually
proffered the opinion that the clefts were ‘signs of healing’
and therefore supported a finding that
penetration occurred beyond
the hymen, which is what the court a
quo
found. His opinion is
self-destructive: he testified that a torn hymen does not heal
itself. For penetration to occur beyond the
hymen tearing will
result. This was not observed. At best his evidence does not take the
matter any further than that the clefts
constituted evidence of long
past penetration by an object. It does not prove ‘sexual
penetration’ as was found by
the court a quo, although it could
include that.
[11] In conclusion the
medical evidence, in my view, was inconclusive. In addition to the
aspects I have already referred to the
evidence shows that the
complainant was involved with a boyfriend at the time. The
appellant’s version is not free from criticism.
He alleged that
a relationship existed between P M
and
Cnt Mokwai. This was denied by both and the appellant was clearly,
for no apparent reason dishonest in this regard. In favour
of the
appellant however, is the attitude he displayed once he was informed
of the allegations against him in December 2010. It
is common cause
that he denied the allegations, that he asked for the complainant to
be medically examined, that the complainant’s
mother offered
the complainant be examined, that the complainant’s mother was
unwilling to a lack of funds, that the appellant
then offered to pay
for the costs of such an examination and the mother still refused for
no apparent reason.
[12] Upon consideration
of all relevant aspects a reasonable doubt as to the guilt of the
appellant in my view, cannot be excluded.
In
S v Chabalala
2003
(1) SACR 134
(SCA) para 15, the following was said concerning the
approach to be adopted in the determination of a case:
‘
The correct approach is to
weigh up all the elements which points towards the guilt of the
accused against all those which are indicative
of his innocence,
taking proper account of inherent strengths and weaknesses,
probabilities and improbabilities on both sides and,
having done so,
to decide whether the balance weighs so heavily in favour of the
State as to exclude any reasonable doubt about
the accused’s
guilt. The result may prove that one scrap of evidence or one defect
in the case for either party (such as
a failure to call a material
witness concerning an identity parade) was decisive but that can only
be an
ex post facto
determination and a trial
court (and counsel) should avoid the temptation to latch on to one
(apparently) obvious aspect without
assessing it in the context of
the full picture presented in evidence.’
The appellant therefore
should have been acquitted. It follows that the appeal must succeed.
[13] In the result the
appeal is upheld and the conviction and sentence are set aside.
FHD VAN OOSTEN
JUDGE OF THE HIGH
COURT
I agree.
N MANAKA
ACTING JUDGE OF THE
HIGH COURT
COUNSEL FOR THE
APPELLANT ATTORNEY JESSE PENTON
COUNSEL FOR THE
RESPONDENT ADV KT NGUBANE
DATE OF HEARING
21 NOVEMBER 2013
DATE OF JUDGMENT21
NOVEMBER 2013