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[2017] ZAGPJHC 3
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Nkomo v S (A94/13) [2017] ZAGPJHC 3 (31 January 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
GAUTENG
LOCAL DIVISION, JOHANNESBURG
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:NO
REVISED:
NO
31
January 2017
CASE
NO: A94/13
In
the matter between:
NKOMO,
BRUCE
Appellant
and
THE
STATE
Respondent
JUDGMENT
FISHER
J:
[1]
The appellant was charged with 1 count of kidnapping and 1 count of
rape in the Johannesburg Regional Court. The accused allegedly
dragged the 10 year old complainant to his flat where he raped her.
The incident is detailed in the charge sheet as having
occurred ‘
on
or about March and/or April 2007
’. The accused was
arrested on 14 April 2007 and remained in custody until he was
convicted on 24 May 2011.
[2]
The appellant was sentenced to life imprisonment on the rape charge
and 5 years on the kidnapping charge. The appellant
has
spent nearly 10 years in custody in consequence of the charges and
conviction.
[3]
The State called the complainant, N. N (who was 15 years of age
when she testified); the mother of the child N. M.; a social
worker
Patricia Mnyandu; and a nursing sister Nomawethu Douglas. The
appellant testified on his own behalf.
[4]
For ease of reference, I will refer to the State witnesses as the
child, the mother, the social worker, and the nursing sister
respectively.
[5]
The child, her mother, step-father and younger sibling lived in the
block of flats F[…] in Joubert Park. The child’s
family lived in flat number […] together with other tenants
(of which no details were given) and the appellant resided in
flat
[…] with other tenants who were both men and women.
Accordingly, the child and her family and the appellant lived
at
close quarters – there was one flat between them. In
addition, the child’s family and the appellant shared
shower
facilities which were situated across the passage from the flat in
which the family resided. It was not in dispute
that this
living arrangement had persisted for nearly 2 years at the time of
the alleged incident.
[6]
The accused and the family came into constant contact with one
another in that the mother kept a key to the hot water shower
(there
being a cold water and hot water shower) and the appellant had
constantly to engage with her to obtain access to the hot
water
shower in the early mornings before he left for his job.
[7]
The appellant was 23 years of age at the time of the alleged
incident. He was known to the child and her mother as a prophet
who would pray for people in the community.
[8]
The appellant testified that there was hostility between him and the
mother in that he had remonstrated with her in relation
to the fact
that she would lock the hot water shower, thus barring access to him
and others in the flats. He testified also
that the mother had
approached him to ask that he pray for her husband because he was
said to be was suffering from erectile dysfunction.
According
to the appellant, he refused to do so in the absence of her husband.
This also, according to the appellant, angered
the mother.
[9]
The mother, however, attempted at the trial to distance herself from
any knowledge of the appellant, stating she knew little
of him and
had had no dealings with him. The child also attempted to deny
knowledge of the appellant, save that she stated she
knew him to be a
prophet and would pass him from time to time at the flats.
[10]
In light of the close proximity in which the family and the appellant
lived, it is entirely unlikely that they would only have
had passing
knowledge of each other. Indeed, the evidence to the effect that
there was some hostility between the family and the
appellant in
light of the problems experienced with the sharing of the shower
facilities is overwhelmingly probable. It is
not unusual for
neighbours to find themselves at loggerheads, especially in
conditions which are overcrowded and where common
areas are
shared.
[11]
The appellant states that the charge was made falsely against him.
He contends that the mother, on an occasion threatened
him, stating
‘
You will see what I will do to you.
’
[12]
The appellant’s version of the enmity between him and the
mother appears to have foundation in the evidence and the mother
and
the child’s attempt to distance themselves from their knowing
the appellant is sinister in this context.
[13]
The State alleged that the events leading to the charge occurred as
follows: one late afternoon the child was playing with
two other
children on the steps of the flats when she encountered the
appellant. He offered her R10.00 which she returned by placing
it
under his door. The other children later went home leaving her
alone. It was then that the appellant forcibly dragged
her into
his flat whereupon he raped her. She felt pain in her vagina during
the rape. He then gave her R10.00 which she
accepted and she
left the flat. After the rape, she saw ‘
white stuff
’
coming from her vagina but there was no blood. After the
incident she went back to playing with her friends, who had
by then
returned. The child told no-one of the incident at this stage.
[14]
The timeframe in this matter is crucial to a determination of the
appellant’s guilt. The charge sheet as aforesaid
describes the incident as having occurred in March and /or April
2007. This failure to pinpoint a more exact date for an incident
of
this nature gives concern. Both the child and the mother
testified that the incident occurred at a stage when the mother
was
on leave and away in Newcastle, Kwa-Zulu Natal. The mother
confirms that she left for Kwa-Zulu Natal on 6 March
2007 and
returned 21 days later - this being the length of her leave from
work. Thus the incident, according to the evidence
of the
mother and the child occurred between 6 and 27 March 2007.
The child however made no report as to the alleged
kidnapping and
rape until the events of 13 and 14 April 2007. This is
central to this case, as are the circumstances
under which the report
was made.
[15]
The mother testified that the child spent long periods of time
living with the mother’s sister in Soweto.
The child
travelled between Soweto and Park Station alone and would walk from
the station in Soweto to her sister’s home,
which was
approximatley a 10 minute walk. There is no evidence as to
whether a similar arrangement was followed between Park
Station and
F[…] – but this appears likely. In any event, the
child was allowed an inappropriate amount of independence
given her
tender age. The mother testified that the child, at a stage,
became unruly and went missing on a number of occasions.
On one
such occasion she was reported missing and appeared on television as
a missing person. This evidence was given in
the context of the
child’s apparent post-traumatic stress after the rape, which
allegedly affected her behaviour and temperament.
What the
evidence of the mother reveals however is that the child was allowed
to catch trains and roam around the streets of Johannesburg
and
Soweto unattended even before the alleged rape. This is of
concern in this case. Indeed, the Magistrate in the trial
court
expressed some disquiet at the fact that the child was allowed to
travel in this manner.
[16]
The mother’s testimony was to the effect that the child was to
travel from Soweto to Johannesburg on Friday 13 April
2007.
The child, however, failed to arrive in Johannesburg at the time she
was expected. The mother was frantic.
She approached the
social worker who was the director of a care centre situated not far
from Flaming Hall. The social worker testified
that she knew the
mother and child in that she had had previous dealings with the
child.
[17]
The social worker and the mother spent from approximately 23h00 on
13 April 2007 to 04h30 on 14 April 2007 searching
for the
child during which period she was reported missing at the police
station. The social worker then retired to bed.
[18]
She was woken after 05h00 on 14 April 2007 with the news that
the child had been discovered at the flats. Thus the
child was
missing overnight from 13 to 14 April 2007.
[19]
There was consternation when the child was ultimately discovered.
As the social worker had been involved in the search
and knew the
family, the mother took the child to her office at approximately
05h30 on 14 April 2007. When at the office,
the mother
told the social worker that the child refused to disclose her
whereabouts overnight. She asked that the social worker
question the
child in an attempt to find out where the child had been.
[20]
It is extremely significant that it was made clear by the social
worker in her evidence that the child, upon such questioning
by the
social worker, explained as the reason for her being missing that she
had been dragged to flat number 506 by the appellant
and raped by
him.
[21]
The wheels were thus, on 14 April 2007, set in motion for the
examination of the child by the nursing sister, the report to
the
police of the rape, and ultimately the arrest and incarceration of
the appellant. It is clear that there is a glaring
anomaly in
the narrative: the child gave as her explanation for being missing
overnight on 13 / 14 April 2007 a kidnapping
and rape which the
child then testified occurred on an afternoon in March 2007 at
a time when the child’s mother was
away in Kwa-Zulu Natal.
[22]
The probability is that the child, when pressed to provide an
explanation, fabricated the version which led to the charge.
The enmity between the mother and the appellant was possibly a
catalyst for him being named as the perpetrator.
[23]
The evidence of the nursing sister who examined the child on the
morning of 14 April 2007 and prepared the Form J88,
which
was put into evidence, suggested that there had been penetration of
the child’s vagina with a blunt object. She
testified
that she found tears at the opening to the vagina which were ‘
old
’
and not ‘
fresh
’. She stated that she was not
able to age the tears as she was not an expert in that field but the
tears could have
been weeks or even months old. It is a
certainty, however, that they were not the result of a rape which had
occurred hours
before whilst the child was missing. Hence, a
further glaring incongruity in relation to the State’s version:
If the
reason for the child being missing overnight on 13 / 14 April
2007 was her kidnapping and rape, why, when she was examined
on
14 April 2007, was there no evidence of recent penetration.
Indeed, the nursing sister conceded that the tears found
on the
child’s vagina could have been self-inflicted.
[24]
The child was never asked at the trial as to her true whereabouts on
13 to 14 April 2007.
[25]
The appellant denied any knowledge of the rape and kidnapping.
He was able to indicate only that he knew that he was
disliked by the
mother and that she had threatened him.
[26]
In an overly lengthy, convoluted, and ill considered judgment,
which goes on for more than 70 pages, and which was handed
down at
intervals over 2 to 3 days, the Magistrate embarked on an evaluation
of the evidence which took no account of the glaring
incongruities in
the evidence. The judgment is replete with
non
sequiturs
and reveals a failure to consider the matter carefully
and competently. This has resulted is a miscarriage of justice
of
the worst order. There was no basis for the conviction and
this is obvious from a reading of the record.
[27]
In the circumstances, the following order is made:
1. The appeal succeeds
and the conviction and sentence are set aside.
2. The appellant is to be
released immediately.
FISHER
J
JUDGE
OF THE HIGH COURT
I
agree
MAKUME
J
JUDGE
OF THE HIGH COURT
Date
of Hearing:
31 January 2017
Judgment
Delivered: 31 January 2017
APPEARANCES
For
the Appellant:
Adv Y.J. BRITZ
Instructed
By:
Johannesburg Justice Centre
For
the Respondent: Adv Z
PECK
Instructed
By:
Office of the Director of Public Prosecutions
Johannesburg