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[2012] ZASCA 5
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MM v S (542/11) [2012] ZASCA 5; 2012 (2) SACR 18 (SCA); [2012] 2 All SA 401 (SCA) (8 March 2012)
REPORTABLE
THE SUPREME COURT
OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 542/11
In the matter between:
M M
….................................................................................................
Appellant
and
The State
…......................................................................................
Respondent
Neutral citation:
MM v S
(542/11)
[2012]
ZASCA 5
(8 March 2012)
Coram:
MTHIYANE DP, HEHER, MAJIEDT and WALLIS JJA
and NDITA AJA.
Heard
: 24 February 2012
Delivered
: 8 March 2012
Summary:
Criminal law –
rape on a seven year old girl– whether rape proved –
failure to call the doctor who examined the
complainant to explain
contents of medical report – conviction altered to one of
indecent assault – appropriate sentence.
ORDER
On appeal from:
Limpopo High Court, Thohoyandou
(Makgoba AJ sitting as court of first instance) it is ordered that:
The appeal is upheld to the extent that the appellant’s
conviction for rape is replaced by a conviction of indecent assault
and his sentence of life imprisonment is altered to one of ten years
imprisonment.
JUDGMENT
WALLIS JA (MTHIYANE DP and MAJIEDT JA concurring)
[1] This appeal is against the appellant’s
conviction of the rape of a seven year old girl and the sentence of
life imprisonment
imposed upon him for that offence. The alleged rape
occurred on Wednesday, 31 March 2004. The appellant was arrested
on 7 April
2004 and remained in custody pending his trial. The
trial was conducted before Makgoba AJ on 11 and 12 October 2004, on
which latter
date the appellant was convicted and sentenced. The
appeal is before us with leave granted by Mann AJ on 11 May
2009.
[2] Two disturbing features emerge from that brief
recital of events. The first is that it took four and a half years
for the appellant
to have his application for leave to appeal heard
and the second that it has taken nearly three more years after being
given leave
to appeal for his appeal to come before this court. That
is entirely unacceptable. In terms of s 35(3)(o) of the
Constitution
the appellant had a right to an appeal to, or review of
his conviction and sentence by, a higher court. Delays of this
duration
negate that right either wholly or in part. That this is
largely what has occurred in this case is apparent from the following
sorry litany of facts.
[3] The appellant sought leave to appeal within one
month of the conclusion of the trial. A request to process that
application
on his behalf made in December 2004 to the Justice Centre
in Thohoyandou, which had provided him with legal representation
during
his trial, appears to have gone unanswered. In February 2005
the appellant submitted a request to the high court to be furnished
with the complete court record. There was no response. Further
enquiries by the appellant in July and September 2005 went unheeded.
He resorted to a complaint to the Minister of Justice, who caused her
administrative secretary to write to the registrar of the
high court
in Thohoyandou in October 2005 to remind him that in terms of s 34
of the Constitution everyone has a right of
access to court and that
a public officer should not prejudice that right. The lack of
response prompted a reminder on 14 November
2005. Eventually on
12 December 2005 the registrar wrote to the appellant to tell
him that in 2004 he (the registrar) had
asked the Justice Centre to
assist him with his appeal. There was no apparent attempt by the
registrar to ascertain why the Justice
Centre had not done so. The
letter went on to add:
‘
Should
you wish to proceed with the matter without a legal representative,
feel free to confirm such intention with my office.’
[4] In December 2005 the appellant invoked the
assistance of the Public Protector, who wrote to the registrar. No
response was received
and the Public Protector wrote again in
February 2006. That prompted the registrar to send a copy of the
December letter addressed
to the appellant. Meantime apparently a
representative of the Justice Centre visited the appellant in January
2006 and in February
he was told that he would have to pay for the
court to prepare the record of proceedings. In March 2006 money was
deducted from
his account at the prison for this service but no
record was forthcoming. In May, after a further communication from
the Public
Protector, the registrar wrote to the appellant saying
that ‘transcribed records are obtainable from Sneller Verbatim
(Pty)
Ltd’ and that payments must be forwarded to their offices
prior to quotation. His cheque was returned. The appellant then
sought a quotation from Sneller for the preparation of the record and
in October 2006 was told R3 500 was required. He did
not have
this, but made unsuccessful attempts to raise the money with the
assistance of his family. In February 2007 he wrote to
the Judge
President of the high court in Thohoyandou and in May 2007 he again
wrote to the registrar asking that the State pay
for the
transcription of the record as he was in jail and his parents were
pensioners. That finally attracted an affirmative answer
in July
2007, while in June 2007 the Justice Centre was again asked to assist
him with his appeal. The record was finally produced
on 10 August
2007 but nothing happened thereafter. It appears from subsequent
correspondence that he was told that it had
been sent to the trial
judge for him to correct. Whether this is correct is unclear because
in dealing with the application for
leave to appeal Mann AJ noted
that the record was a simple one, with no inaudible passages, and the
judge’s notes were in
the file.
[5] The continued inaction prompted the appellant once
more to approach the office of the Minster of Justice. Nothing came
of this
and in February 2008 the appellant again wrote to the
registrar asking ‘how long it takes for the Judge to complete
his honourable
corrections of the record’. His next letter in
March 2008 starts somewhat plaintively:
‘
I
suppose you would be wondering what happened to me’;
and goes on to complain that six months have elapsed
with no progress or response concerning the judge’s ‘processing
his honourable corrections’. It ends by asking, ‘For how
long should I continue to wait?’ There was apparently
a further
letter in May because on 2 July 2008 the registrar wrote saying that:
‘
The
records of your case has been asked for. You will receive same as
soon as it is received.’
That was not a helpful response and it is no surprise to
find that the appellant then wrote an angry letter describing these
letters
as ‘accumulated empty promises’ and complaining
that between the registrar and the Legal Aid Board they were playing
‘hide and seek’ with him.
[6] There were then further delays
that are undocumented in the record but resulted in the application
only being heard on 4 May
2009 and judgment granting leave to
appeal being given on 11 May 2009. At least Mann AJ had a proper
appreciation of the need
for swift action. However once he had
granted leave to appeal the delays set in once again. In August 2009
the Thohoyandou Justice
Centre wrote to the registrar expressing
surprise that the records ‘regarding argument’ had not
been transcribed. The
fact that this was entirely unnecessary and
contrary to the rules of this court governing the preparation of
records appears to
have escaped them. By September 2009, however,
they had been prepared and sent to the Justice Centre with a letter
saying that
they ‘now owe our office a fully prepared record’
for this court. It was only in November 2009 that the registrar of
the high court sent the record to the registrar of this court. That
record commences with an indictment in an entirely different
case and
is followed by a statement of substantial facts and list of witnesses
in that other case.
1
No notice of appeal was delivered,
but in January 2010 an application to condone the late filing of the
appeal record and reinstating
the appeal was lodged together with
affidavits by the representative of the Justice Centre and the
appellant in which there is
no explanation at all for the failure to
lodge a notice of appeal.
[7] This sorry mess is attributable
to all concerned having no regard to the appellant’s rights and
the difficulties confronting
him, as a prisoner serving a life
sentence, in pursuing his appeal properly. No-one seems to have had
any regard for the need to
deal with applications of this sort
expeditiously. Nor was any regard paid to the provisions of the
Criminal Procedure Act
2
and the provisions of the rules of
this court in regard to the preparation and lodging of records and
the preparation of cases for
consideration by this court. In the
result some seven and a half years have elapsed since the appellant’s
conviction, during
which he has been incarcerated,
3
whilst he has tried steadfastly to
pursue the appeal that is his right. The one person who has not been
at fault in all this is
the appellant, most of whose letters have
been couched with studied courtesy and patience. To the extent that
his appeal has not
been pursued in accordance with the letter of the
law that non-compliance should be condoned. As to the rest the
registrar of this
court will be directed to send a copy of this
judgment to the Director-General of the Department of Justice for
consideration of
appropriate action against the registrar of the High
Court in Thohoyandou and to the head of the Justice Centre for
consideration
of the conduct of the officials employed in the Justice
Centre in Thohoyandou.
[8] I turn then to the merits of the appeal. The
appellant is alleged to have raped a seven year old girl in her own
home on the
afternoon of 31 March 2004. According to the
complainant she and two other girls, her cousin and a friend, were
looking for
locusts in a field when the appellant, who is her uncle,
called them. She was given a bag to carry and take inside the
homestead,
which she did. She said that the appellant followed her
into the home and shut the door. She then asked him for money to go
and
buy chips and he gave her 80 cents. She said that he then
undressed her, placed her on the sofa and ‘put his penis on my
private part’. She explained that he had removed the clothes
that he was wearing before doing this. As far as the other two
girls
were concerned she says that the appellant had ordered them to leave
before this incident occurred.
[9] The complainant’s evidence was very brief and
in some respects cryptic. She was not asked to explain what she meant
when
she said that the appellant placed his penis ‘on’
her private part. It is clear that this is the expression she used,
because the trial judge asked her, at the conclusion of her evidence
in chief, ‘what did he put
on
your private parts?’
Then, after the judge had asked her several leading questions, she
said that the appellant ‘did
evil things to her’ and when
asked to explain what type of things said: ‘He was raping me.’
Unfortunately there
was no attempt to explore with her what she
understood by this, nor is it clear, she having given evidence
through an interpreter,
whether this accurately reflected her
description of the incident. She was after all a child and children
do not usually use technical
language such as ‘rape’ to
describe sexual acts or ‘vagina’ and ‘penis’
to describe their private
parts.
4
Euphemisms of some or other sort are more usual. However, an
interpreter might well in the formal arena of a courtroom use the
more technical expression as an equivalent. It would have greatly
assisted in considering this appeal if some care had been taken
to
ascertain whether the statement that the appellant was ‘raping’
her was compatible with her earlier description
of the appellant’s
penis being placed ‘on’ her private part.
[10] There are a number of problems with the
interpretation of the evidence and this was complicated by the
defence attorney apparently
being oblivious to these nuances. Thus
she put to the complainant that the appellant would deny that he had
‘sexual intercourse’
with you, without explaining the
implications of the expression. Hardly surprisingly that attracted
the response:
‘
He did have sexual intercourse with me.’
What one cannot tell is whether this
reflected the actual words used by the complainant or was the
interpreter’s manner of
conveying a denial of the basic
proposition couched in the language of the cross-examiner. A perusal
of the record demonstrates
that the interpreter’s use of
English was uncertain. On occasions the interpreter added
explanations that clearly were not
a reflection of what the witness
had said. Once, having started to translate an answer, the
interpreter corrected the translation
halfway through from a literal
word for word translation to one that was more grammatically correct
in English. In the course of
doing so the word originally used to
translate what the witness said fell away.
5
On that occasion it did not in
substance alter the meaning of the answer but it reveals that the
interpretation may not have been
precise in rendering what the
witnesses actually said. All in all one is left with a measure of
uncertainty as to the accuracy
of the translation in relation to
critical issues in this case.
[11] In cross-examination the focus largely fell on
whether and to whom the complainant had reported this incident. She
initially
said that she had not spoken to anyone about it, but then
said that she had told her grandmother who was looking after her at
the
time. When confronted with the discrepancy she reversed her
position and said that she had not told her grandmother. From that
point on she maintained that she had not told anyone about the
incident. It was put to her that the appellant would say that she
had
gone into the house with him because she had asked him for money to
go and buy chips and that he gave her 80 cents, but
she wanted
two Rand from him. When she tried to take some more money he held her
by her tummy and pushed her out of the house.
When this happened she
knocked against a chair.
[12] The complainant’s cousin, herself a 13 year
old girl, gave evidence that largely corroborated that of the
complainant.
She confirmed that they were out looking for locusts;
that the appellant approached them and gave the complainant a bag to
take
into the house for him; that he followed her into the house and
closed the door and then, speaking through a window, he instructed
her and the other girl to leave. Contrary to the complainant’s
denial she said that on the following day the complainant
had told
her what had happened to her in the house. She denied the suggestion
in cross-examination that she had been present whilst
the complainant
went into the house and left with her.
[13] The complainant’s grandmother said that she
saw that the complainant had 80 cents with her when she returned from
playing
on the afternoon of 31 March 2004. She said that when she
questioned the child on where she obtained the money she was told
about
this incident involving the appellant. Her description matched
that of the complainant but a difficulty in translation emerged over
precisely what the appellant was said to have done to the
complainant. The grandmother’s evidence, as translated, was
that
she was told that the appellant had ‘slept over her’.
The interpreter explained that she used the Venda expression ‘u
lala’. This was not explored further. It was plainly
significant because it reflects the point already made that children
are inclined to use euphemisms to describe sexual matters. The
grandmother said that after learning of this she took the complainant
to the clinic because she observed that she was not well.
[14] There were contradictions in the grandmother’s
evidence regarding the reports made to her. The impression she gave
in
chief was that she learned of the incident from questioning the
complainant about the money in her possession. In cross-examination
she said that she initially received a report from the children the
complainant was playing with, and then further corrected that
by
saying that the report was made by the mother of one of these
children. It was only after receiving this report on the Thursday
(or
possibly the Friday) after the incident that she interrogated the
child and was told about what happened. What is certain,
however, is
that she learned of something that aroused sufficient concern for her
to take the complainant to the local clinic on
the Saturday morning,
from where she was referred to the Donald Fraser hospital for
examination by a doctor.
[15] As appears to be an increasing feature of cases
such as these the doctor’s report was simply handed in by
consent and
the doctor was not called to give evidence. That practice
is generally speaking to be deprecated. It means that there is no
opportunity
for the doctor to explain the frequently subtle
complexities and nuances of the report; to clarify points of
uncertainty and to
amplify upon its implications and the reasons for
any opinions expressed in the report. That may make the difference
between a
conviction and an acquittal or perhaps a conviction on a
lesser charge. Depending on the areas where there is a lack of
clarity,
the lack of clarification may either benefit or prejudice an
accused. Neither result is desirable. Magistrates and judges who are
confronted with these reports without explanation do not have the
requisite medical knowledge to flesh out their full implications.
Unless therefore there can be no confusion, for example in a case
where the fact of rape is admitted and the only issue is one
of
identification of the perpetrator, it will generally be desirable for
the doctor to give evidence in support of his or her report.
In this
case it was undoubtedly necessary and the fact that the doctor was
not called has rendered the consideration of this appeal
far more
complicated than it should have been.
[16] The doctor reported that he
observed bruising and abrasions on the medial aspect of the child’s
labia minoris.
6
The hymen was disrupted wide and
irregular and the posterior fornix
7
was visible, but the implications and
causes of this were not explained. Nor were the fact that the
complainant had a yellowish
discharge from the genital area and the
doctor observed ‘erosions ventrally’.
8
The firm conclusion was expressed
that the complainant had been the victim of sexual assault. The
report does not, however, say
that she was raped and judging by the
difficulties the doctor encountered with a physical examination
9
actual penetration would have been
difficult to achieve. Whether penetration occurred is fundamental to
the correctness of the conviction
of rape.
10
[17] The appellant’s evidence was in accordance
with the case put to the complainant by his counsel. He said that he
encountered
the complainant and her cousin on the road as he was
making his way home from the fields. The complainant asked him for
money to
buy chips and he was happy to give it to her as he had done
on previous occasions. When they came to the house he went in with
the complainant following him and the cousin in the entrance. He said
that he placed a chair against the door to prevent it from
closing.
He gave the complainant 80 cents from some coins he kept on a
shelf but she wanted more and tried to take it. He
stopped her by
holding her round the tummy and pushed her away out of the house. As
he did so she bumped herself against the chair
holding the door open
and started to cry. However she rapidly composed herself and he
watched her walk away with her cousin, showing
her the money she had
been given as they walked. He denied the allegations concerning the
alleged rape.
[18] The appellant’s conviction can only be
sustained if on a consideration of all the evidence his version of
events cannot
reasonably possibly be true. Whilst in many cases the
fact that an accused person gives a false version of events is not
decisive
of the merits of a conviction, in this case where the
falsity relates to events on a particular day at a particular place
involving
him and the complainant, if his version cannot reasonably
possibly be true its falsity lends strong support to the truth of the
complainant’s evidence.
[19] The objective and undisputed evidence shows that
the complainant was subjected to a sexual assault. She had been in
the house
with the appellant on the Wednesday afternoon. Both she and
he agree that she was tearful when she left the house because she had
been hurt while inside. By Thursday, or at latest Friday, her
grandmother realised something was wrong and took her to the clinic
on the Saturday morning. That is when the diagnosis of sexual assault
was made. The appellant was arrested on the following Wednesday,
which indicates that the complainant had identified him immediately
as the perpetrator. If the appellant’s story is correct
then
another man sexually assaulted the complainant at another time and
probably another place and for some inexplicable reason
this seven
year child has from the outset laid the blame on a close relative who
has always been kind to her and chosen to conceal
the identity of the
true perpetrator (or if unknown to her to say that she was assaulted
by an unknown man). The appellant’s
description of grabbing the
child by her tummy and her hurting herself by bumping against a chair
does not explain the injuries
in her vaginal area. His suggestion
that her grandmother put the child up to telling a dishonest story in
order to take revenge
for a dispute over the boundaries of a field at
a time when he was at best a youth in his teens is utterly
incredible.
[20] When the evidence is weighed in
its totality it amply supports the trial court’s finding that
the appellant’s version
could not reasonably possibly be true
and that the evidence of the complainant, when viewed with the
appropriate caution called
for because of her tender years and the
fact that on the assault itself she was a single witness, could be
accepted. Accordingly
a conviction was appropriate. The only issue is
whether that should be of rape or of indecent assault.
11
That depends on whether the evidence
was sufficient to show beyond reasonable doubt that penetration
occurred. In my opinion in
the light of the lack of certainty about
the purport of the complainant’s evidence and the absence of
any explanation from
the doctor of his clinical findings it was not.
[21] I accept for the purposes of
this judgment that Professor Milton
12
is correct in saying that the
slightest penetration is sufficient and that this includes any degree
of penetration, however minor,
into the labia, although neither Van
Leeuwen, whom he cites in support of this proposition,
13
nor the cases he quotes, supports
that proposition. It does, however, accord with the position in
England
14
and in the United States of America.
15
If the doctor’s report had been
unequivocal in saying that rape had occurred, that would have
overcome the concerns about
the complainant’s evidence and its
interpretation, but it is not. Abrasions and bruising of the surface
of the labia minoris
are no certain indication of penetration. They
are consistent with being external injuries alone. The disruption of
the hymen may
be an indication of penetration, but it is not decisive
unless directly linked to the sexual assault, which, in the absence
of
explanation by the doctor, it is not. In addition the
complainant’s evidence is that while she felt pain during the
assault
there was no bleeding. The presence of erosions ventrally,
the precise location of which the doctor did not indicate, takes the
matter no further. Doctors conducting examinations of this type are
usually aware of the requirement of penetration for rape and
when
they are satisfied that a sexual assault has involved penetration
they record that the victim was raped. Had he been called
as a
witness and said that there was penetration he would no doubt have
been cross-examined on his failure to say so expressly
in his report.
Counsel for the defence would have been foolhardy to insist on the
doctor being called in the light of the inconclusive
language of his
report. In the absence of evidence from the doctor as to the precise
nature of the sexual assault that he concluded
from his examination
of the complainant had been perpetrated upon her it would be unsafe
to say on the basis of his evidence that
penetration has been proved
beyond reasonable doubt. This is not a case such as
S
v F
,
16
referred to by my brother Heher JA,
where the fact of penetration was accepted and the only issue was
whether that was with the
accused’s penis or his finger.
[22] The question then is whether the lack of clarity in
the doctor’s report is overcome by the complainant’s
evidence.
I have already drawn attention to the limitations of her
evidence. When using her own words she expressly said that the
appellant
placed his penis ‘on’ not ‘in’ her
vagina. On the occasions when she used the words ‘raping’
and ‘sexual intercourse’ her understanding of these was
not explored to see whether she was, in the expression used
in the
American cases, ‘a person of understanding’ in regard to
their meaning. The fact that the cross-examiner did
not explore these
terms with her does not in my view take the matter anywhere. It was
for the prosecution to do so and to make
it clear that she understood
them and understood and intended their consequences. The difficulty
facing the cross-examiner in doing
so, when the version of her client
was a denial of any sexual acts, is apparent. Any attempt to explore
these questions could have
remedied the deficiencies in the
prosecution case and elicited detail that would be detrimental to her
client’s interests.
[23] The appeal must therefore succeed and the
conviction of rape be altered to one of indecent assault. As the
assault was perpetrated
on a child under the age of 16 years it
carries with it a statutory minimum sentence of ten years
imprisonment and no substantial
reason was advanced for departing
from that sentence in the present case. This was a violation of a
young child and involved both
an abuse of authority and an abuse of
trust.
[24] It is most unsatisfactory to have to reach a
conclusion on the basis of uncertainty concerning the meaning of the
medical report.
Had the doctor been called as a witness and his
evidence had revealed that penetration had occurred, then the
conviction of rape
would have been upheld and in the absence of
substantial and compelling circumstances the sentence decreed by the
legislature would
have remained in place. That would have given
satisfactory justice to his victim. On the other hand if the doctor’s
evidence
had made it clear that it could not be said with certainty
that penetration had occurred the trial judge would no doubt not have
convicted the appellant of rape, but of the lesser offence of
indecent assault and a substantial but lesser sentence would have
been imposed. Given current norms for the grant of parole the
appellant would probably have been released from prison by this time.
All of this demonstrates that the decision not to call the doctor was
erroneous. Regrettably this is too frequently a feature of
rape cases
and judging by the experience of the members of this court it is
increasingly rare for the doctor who examined the complainant
in such
cases to be called to explain the medical report. We were however
informed from the Bar that there is no instruction in
the office of
the National Director of Public Prosecutions that doctors should not
be called. That is a start to addressing the
problem and it may be
helpful to afford some guidance to prosecutors. In principle unless
there is no issue about the fact of rape
the doctor should be called
as a witness. Certainly wherever the implications of the doctor’s
observations are unclear the
doctor should be called to explain those
observations and to guide the court in the correct inference to be
drawn from them.
[25] In the result the appeal succeeds to the extent
that the conviction of rape is set aside and replaced by a conviction
of indecent
assault. The sentence of life imprisonment is set aside
and replaced by one of ten years imprisonment.
M J D WALLIS
JUDGE OF APPEAL
HEHER JA (dissenting, NDITA AJA concurring):
[26] I have read the judgment of Wallis JA. I disagree
only on the question of whether the State proved that the appellant
penetrated
the complainant (as is necessary to constitute the crime
of rape). As there was no direct evidence establishing the fact, it
was
necessary that, on a conspectus of all the circumstances, the
only reasonable inference was that penetration had occurred.
[27] What is required is penetration of the labia by the
penis albeit to a slight extent:
South African
Criminal Law and Procedure
3 ed (by J R L
Milton) Vol II 448, fn 122 and the authorities there cited.
[28] The complainant was a young child. Her evidence was
uncomplicated. The interpretation from the Venda language shows signs
of
deriving from a speaker who was not thoroughly at home with
English. Nevertheless there can in my view be no reasonable doubt
about
what happened to the victim.
[29] The appellant divested himself and the complainant
of their clothes. He took her to a sofa and lay down on top of her.
He placed
his penis ‘on’ (thus the interpretation) her
vagina. She felt pain in her vaginal region. She screamed. Afterwards
she did not bleed. She was able to walk home unassisted.
[30] In relation to what happened, the complainant used
the words ‘raping’ and ‘sexual intercourse’
(thus
also the interpretation). Neither expression was placed in
issue by the cross-examiner and no investigation was conducted by the
court to test the justification for their use.
[31] The complainant was medically examined, probably on
the second day following the incident. The doctor recorded his
findings:
1. The medical aspect of the labia minora was abraded
and bruised.
2. The hymen was ‘disrupted wide’.
3. The posterior arch of the vagina was visible.
It was not suggested by counsel that the injuries
derived from a non-traumatic cause (eg disease) or from the insertion
of a foreign
object (other than the appellant’s penis) such as
a finger, or were self-inflicted. In the absence of facts such
possibilities
were no more than speculation: cf
S
v F
1990 (1) SACR 238
(A) at 247i-248a.
[32] ‘Abraded’ means ‘worn by
friction’; ‘disrupted’ connotes disturbance by
breaking or shattering.
These are the unambiguous ordinary senses of
the words used by the doctor (common to the Shorter Oxford, Websters
and Encarta dictionaries).
The findings are consistent only with
penetration. If counsel for the appellant wished to test the
appropriateness of the words
chosen he should have asked for the
evidence to be led and not simply admitted the report. But he did not
do so. The doctor’s
examination was painful for the
complainant. Her vagina admitted only the doctor’s little
finger. Neither of those considerations
is, in my view, sufficient to
militate against the clear inference that the appellant attempted,
and, at least partially, succeeded
in achieving penetration.
[33] The inference is consistent with the manifest
intention of the appellant, an intention not interrupted or
frustrated or resisted
before he had carried out his purpose
[34] I would dismiss the appeal against the conviction.
As this is a minority judgment it is unnecessary to consider whether
the
sentence should stand.
____________________
J A Heher
Judge of Appeal
Appearances
For
appellant: M J Manwadu,
ThohoyandOu Justice Centre,
Care of Bloemfontein Justice Centre
For respondent: NR Nekhambele
National Director of Public Prosecutions,
Thohoyandou.
1
The
correct documents were filed with counsel’s heads of argument.
2
Act
51 of 1977.
3
He
has in all been in custody for almost exactly eight years.
4
When
asked where she had been injured the complainant merely pointed to
her private parts. The interpreter said ‘She is
pointing to
her private part my lord, vagina.’ This suggests that the
interpreter might have been concerned to use the
formal English
word. The complainant did not reply to this question by saying ‘on
my vagina’ yet elsewhere in her
evidence she is reflected as
freely and accurately using that expression.
5
The
result was that instead of saying that the appellant ‘undressed’
the interpreter rendered the answer as ‘he
took off the
clothes he was wearing’.
6
The
inner folds of skin forming the margins of the vaginal orifice.
7
The
rear of the arch shaped cavity in the interior of the vagina.
8
Ulceration
in the abdominal area.
9
His
note was originally that the vagina was ‘shut’ but he
deleted this and wrote ‘little finger’. Again
there was
no explanation.
10
Penetration
was a common law requirement and it is continued in the present
definition of the crime of rape in
s 3
of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act 32 of 2007
,
although that definition extends the scope of the crime to other
penetrative acts.
11
As
the offence was perpetrated before the enactment of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act the
offences are
those under the common law. Under s 261(1) of the Criminal
Procedure Act, as it read at that stage, indecent
assault was a
permissible verdict on a charge of rape.
12
J
R L Milton
South African Criminal law and Procedure, Vol II,
Common Law Crimes
(3 ed 1996) 448, footnote 122.
13
Simon
Van Leeuwen
Censura Forensis
1.5.23.12 (translated by
Margaret Hewett, 2001). The reference to
stuprum
in this
passage accords more nearly with the approach in Germany and some
other jurisdictions than with the view of Professor
Milton. See J M
T Labuschagne ‘Die Penetrasievereiste by Verkragting
Heroorweeg (1991) 108
SALJ
148.
14
J
C Smith
Smith and Hogan Criminal Law
(10 ed, 2002), 467.
15
James
L Rigelhaupt Jr JD
What constitutes penetration in prosecution
for rape or statutory rape
76 ALR 3d 163
(Annotation). The
author provides summaries of a vast number of cases from various
courts in the USA that reveal how difficult
it may sometimes be to
establish that penetration has occurred when the medical evidence is
inconclusive.
16
S
v F
1990 (1) SACR 238
(A) at 247i-248a.