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[2023] ZAKZPHC 38
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Khoza v S (AR 235/2022) [2023] ZAKZPHC 38 (28 March 2023)
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IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case no: AR 235/2022
In the matter between:
SIBANGANI ZAMA KHOZA
APPELLANT
And
THE
STATE RESPONDENT
ORDER
1. The appeal against
conviction is upheld.
2. The conviction and
sentence is set aside
APPEAL JUDGMENT
Mngadi J
[1] The
appellant appeals as of automatic right against conviction for rape
and sentence to life imprisonment
by Regional Magistrate sitting at
Madadeni (Mr M.I. Ntombela).
[2] The
charge alleged contravention of s 3 read with ss 156(1), 57, 58, 59
60 and 61 of Act 32 of 2007, also
read with
ss256
and
261
of the
Criminal Procedure Act 51 of 1977
. Further, read with the provisions
of
s 51
and Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
,
as amended. It alleged that the accused is guilty of the crime of
rape in that on or about 2017 the appellant did unlawfully and
intentionally commit an act of sexual penetration with [A… N…]
a seven (7) year old girl by inserting his penis into
her vagina and
finger on several occasions without her consent.
[3] The
appellant who was legally represented during the trial when the
charge was put to him pleaded not guilty.
His legal representative
placed on record that the appellant makes no admissions in relation
to the charge suffice to say the appellant
and the complainant knew
each other, the complainant was the biological daughter of the
appellant.
[4] The
state lead evidence from four (4) witnesses,nasmely; Ms S[....]
M[....](a school counsellor), [K…V….],
(the
complainant), F[....] V[....] (the complainant’s mother) and
Nikeziwe Buthelezi (the medical doctor).
[5] The
charge in the appeal record indicates bears the following details: RC
16/2018 as case number, State vs
Sibangani Zama Khoza, and then the
above-mentioned details of the charge. I will later point out the
discrepancies between the
averments in the charge and the evidence
presented by the State in support of the charge.
[6] Ms
S[....] M[....] testified as follows. She was employed as a school
counsellor working with children from
a number of schools under
Eshowe district. She knew the child [K… V…] the
complainant. The school principal of K[....]
P[....] S[....] where
the complainant was schooling asked her to attend to the complainant
as an emergency case. The principal
told her that the complainant’s
class teacher suspected something in the form of abuse to the
complainant. The principal
then on a Friday 8 September 2017 brought
the complainant to her. She sat down with the complainant. She
explained the nature of
her enquiries to her. She explained that she
was there to help children and to protect them, and that the
children, if they have
problems, discuss their problems with her. She
told the complainant that there are issues which are confidential she
was going
to disclose to her so that she would be able to get help.
It was then when the complainant told her that she was encountering a
problem with the appellant and told her that her father has a
tendency of having sexual intercourse with her. She asked her as
to
how long that happened. The complainant told her that had happened
for about a period of a year. She asked the complainant whether
it
was still continuing. The complainant agreed and told her that as she
was with her on a Friday, he had raped her on a Monday
of that week.
[7] Ms
M[....] testified that the complainant told her that she was staying
at her home with her mother, her father
and her younger sister. She
told her that it started when her father started chasing away her
mother, and when she had remained
with him it was then that he raped
her. She explained that in some instances her father used to go with
her and further raped her
in the nearby bushes. The complainant told
her that she did report to any person for the whole year because the
appellant threatened
to kill her and throw her body away, and kill
her mother and sister. Ms M[....] testified that she attended to the
home of the
complainant. She found that they occupied one room. She
fetched the complainant’s mother and she took the complainant
to
the hospital. The doctor in her presence and in the presence of
her mother examined the complainant. She explained to the doctor
why
she was there and that the complainant had confessed to her. The
doctor told her that there was some indication that the complainant
was raped and that she had been sexually penetrated.
[8] Ms
M[....] testified that prior to 8 September 2017 she had dealt with
the complainant. At that time, she
was in Grade 2 as she was then in
Grade 7. At that time, the complainant had sexually been abused and
the person that abused her
was arrested.
[9] Ms
M[....] under cross-examination testified as follows. The person
involved in the earlier abuse was not
the appellant. Asked whether
the complainant told her where the sexual intercourse incident did
took place, she said the complainant
told her that it took place at
her home, and that is all. The court then said to her and where else,
Ms M[....] said in a bush
and other incidents took place at a certain
place known as Ria. She said the complainant told her that it started
in July 2016.
She said she did not question the complainant about
where the last incident of 4 September 2017 took place. She said the
complainant
told her that it took place in bushes near her homestead.
The complainant in her home told her that it took place in the room
they
occupied. She stated that the complainant when she talked to her
was in a confident mood.
[10] The State
called [K…V…], the complainant. The Regional Magistrate
conducted a competency enquiry. The complainant
during the competency
enquiry stated that she was 14 years old. She was not schooling. She
left school in Grade 8. She was expelled
from school because dagga
was found in her bag. She attended church. She knew what to take an
oath was, It was swearing to abide
yourself that all you shall do or
tell is the truth or you know what it will be the truth. She knew the
consequences of to not
telling the truth. A person who takes an oath
but not tell the truth is punished. She goes to church and she
believes in God.
[11] The
complainant after she was sworn in testified as flows. During the
year 2016 she resided at Nyaneni area with her
mother, father and her
younger sister. She was in Grade 6. In July 2016, a date she did not
remember, she was at a water tap with
the appellant’s
girlfriend. A boy of Ngcobo family came to her. Her father’s
girlfriend left her at the water tap and
she was the last person. Her
father’s girlfriend reported to her father that she was with a
Ngcobo boy at the water tap,
she was in love with him. Her father,
after she had returned at her home, asked her about her relationship
with the Ngcobo boy
and assaulted her when she denied it. He told her
to come early from school the following day for him to take her to
the Ngcobo
family.
[12] She testified
that the following day she came back early from school. Her father
took her to the Ngcobo family. They
reached the road to the Ngcobo
family but they passed it, her father told her that they would use
another path to avoid dogs. He
told her that he loved her and asked
her whether she loved him. She said she loved him as a father. He hit
her with an open hand
accusing her of making a fool of him. He took
her along a footpath leading to the bush. They reached a spot with
rocks. He undressed
her, after he had told her to undress and she
refused. He undressed her of her skirt and panty. He instructed her
to bend down
and hold the ground. He undressed himself of his trouser
and under wear. She refused to bend over and he hit her forcing her.
He
took out his penis and he inserted it into her vagina. He had
sexual intercourse with her until he finished. She saw a whitish
discharge from her vagina. He gave her leaves and he told her to wipe
herself. They dressed up and left. He called her and showed
her a
knife. He placed it on her neck. He told her not to report the
incident, if she ever reports it, he would kill her and throw
her
body away where it would not be found.
[13] The
complainant testified that the following day when she came back from
school, the appellant instructed her to accompany
him to a sugar came
farm to collect sugarcane. The farm was close to their home. They
reached the sugar came farm. He instructed
her to undress and she
refused. He then undressed her, hit her and said there was no reasons
for her to refuse. He undressed himself.
He put his penis into her
vagina and he had sexual intercourse with her until he finished. He
collected leaves and gave them to
her to wipe herself. On this
occasion, he had spread his jacket on the ground and caused her to
lie on it when he was having sexual
intercourse with her. They
dressed up. They cut some sugarcane and they went back home.
[14] The
complainant testified that she did not remember the other incidents
because he was doing this on many occasions when
they were staying at
Nyaneni area and they then moved to stay in the township. She stated
that she could only remember the two
incidents although they were
many incident the appellant had sexual intercourse with her whilst
staying at Nyaneni area.
[15] The
complainant testified that in grade 7 in 2017 they moved to the
township to a one roomed home. In the township, the
appellant at
about 4 pm took her to maNtuli, a grandmother, to buy pies, on the
way he raped her. She testified that on a certain
day the appellant
caused her to hold a tree that had fallen down. He inserted his penis
into her vagina and he had sexual intercourse
with her. The
complainant was asked to clarify whether they went to maNtuli on one
occasion or they used to go to her to buy pies,
she said they went
there on several occasions and on all those visits or outings he had
sexual intercourse with her.
[16] The
complainant testified that the last incident before the appellant was
arrested happened as follows. The appellant
asked her to accompany
her to the clinic. In the clinic they found a long queue. She had to
leave school homework. He compelled
her to go with him threatening to
take her out of school if she refused. They left the clinic to make
copies of her mothers’
identity document and of her birth
certificate. They arrived at the shop and found that it closed, and
they then went home. He
told her he knew of a certain home where
copies are made. They arrived at that homestead but the gate was
closed and nobody opened
for them. They proceeded to a bush where the
appellant wanted to find a herb to induce vomiting. She waited
outside the bush and
he called her to come into the bush to assist
him to look for the herb. She remained outside until he came out.
They went back
home. When they were about to reach a footpath leading
to their home, he then took a footpath leading to the bush. He called
her
to follow him. They got inside the bush. He called her aside. He
entered the part of the bush with thick trees. They got under the
trees. He started touching her body and fondling her breast. He
undressed her of her skirt and a panty. He undressed himself of
his
trouser and underpants. He inserted his penis into her vagina and he
had sexual intercourse with her until he finished. He
gave her the
leaves to wipe her vagina. He had sexual intercourse with her in a
bend over position. They cleaned up and they went
back home.
[17] The
complainant testified that what lead to the arrest of the appellant
is that she reported to the school principal
that the appellant
indicated to her that he was going to take her out of school. The
principal told her that he was going to take
her to a social worker
and he took her to the social work the following day. She explained
to the social worker what the appellant
did that he raped her. The
social worker took her to the doctor at the hospital. The doctor
examined her and called the police.
The complainant testified that
prior to the appellant starting to have sexual intercourse with her,
and during the time he was
having sexual intercourse with her until
he was arrested, there was another male person who did a similar
thing to her. He did
it before the appellant did it to her.
[18] The
complainant under cross-examination testified that the four incidents
she testified about took place outside her
home, but the other
incidents she could not recall the appellant did rape her at her
home, he had assaulted her mother and chased
her away. Asked where in
the homestead did it take place, she said she cannot recall. Put to
her that the appellant was not told
about the Ngcobo boy by his
girlfriend but he found a letter in her school bag written by her to
the Ngcobo boy, she said she knew
nothing about that, and the
appellant did not ask her about the letter. She said there is no
letter that the appellant found in
her bag. The complainant denied
that she was making false accusations against the appellant because
he punished her for being naughty
and he chastised her for being busy
with boys. She denied that he confronted her about sleeping with the
Ngcobo boy and she admitted.
[19] F[....]
V[....] testified as follows. The complainant was her daughter and
the appellant was her father. She stayed with
her children at Iland
also known as Nyaneni. The appellant did not stay with them but he
also stayed at Island. The appellant stayed
with his girlfriend. The
appellant sometimes came to fetch the complainant to go to town. The
appellant eventually fetched her
and the children to stay together in
his house. Ms V[....] testified that the appellant told her that the
complainant was in a
love relationship with the Ngcobo boy. It was at
the time they had already moved in with the appellant where he
previously stayed
with his girlfriend. He told her in the presence of
the complainant and he beat her. The appellant then said he was
taking the
complainant to the Ngcobo boy home about 30 minutes away.
He refused to let her accompany them. They later at dark returned.
She
asked how did they go but she did not receive any reply. The
appellant used to go away with the complainant, at times visiting
farms to fetch crops. They then relocated to Madameni area near
Inkanyezi. The appellant continued taking the complainant to
accompany
him. She asked the complainant why she went away with the
appellant. She told her that she just went with him but not
willingly.
The stay with the appellant was not normal. If she refused
to let him go with the complainant he beat them until they ran away
to stay at other peoples’ houses. She used to run away first
and the children followed her.
[20] Ms V[....]
testified that the social worker told her of the allegations against
the appellant when he was arrested. The
doctor told her that the
complainant had been sexually abused. She knew that whilst they
stayed at Mbongelwane the complainant
was repeatedly raped on one
day.
[21] Ms V[....]
testified that the appellant showed her a letter, he said it was
written by the complainant to the Ngcobo
boy. It was addressed to the
Ngcobo boy. It appeared to her to be in the appellant’s
handwriting. The appellant showed her
the letter when he took the
complainant to the Ngcobo home. She testified that she heard that the
complainant had slept with the
Ngcobo boy at their home. She heard it
from the appellant at the time he showed her the letter. The
appellant confronted the complainant
about it and he beat her up. She
admitted it because he was beating her up. It was not correct that
the complainant was naughty
and that she was busy with boys. The
appellant approached her with the school backpack of the complainant
and the letter.
[22] Ms V[....]
confirmed that the appellant used to take the children to school and
fetch them. He started after there was
fear that children are
abducted. She confirmed that the complainant admitted writing a
letter to the Ngcobo boy. She remembered
the appellant going away
with the complainant’s younger sister to check whether the
letter belonged to the girl, the complainant
initially said it
belonged. The complainant admitted that she slept with the Ngcobo boy
as the appellant beat her.
[23] Nikeziwe
Buthelezi testified as follows. She was a medical doctor practising
since 2000. She examined the complainant
at Eshowe Hospital and she
completed the prescribed medical examination report (J88). She
recorded the following: ‘13 year
old brought in by the
department of Social Development, patient gives a history that since
July 2017 her father has been sexually
penetrating her almost every
month – and he has been verbally and physically abusive to her,
mother and her younger sister.
He doesn’t want her to talk to
other people. He would take her to the bush and abuse her there
sexually, or on the way to
clinic or to the neighbours. The last
incident was on the 04/09/2017, he asked her to go buy pie with him
to the neighbourhood.
On the way he took her to the bush and he
removed her underwear, and inserted his penis into her vagina’.
The doctor in the
medical examination form (j88) further recorded the
following: Clinically stable. Gunae exam > cleft on the posterior
fourchette,
no hymen noted, watery cream discharged noted, 2 fingers
inserted in with no discomfort to the patient and also speculum
inserted
with no discomfort to the patient , noted erosion on the
cervix and watery cream discharge on the posterior cervix. Sexually
penetrated
several times – evidenced by 2 fingers inserted,
speculum inserted, no hymen.
[24] Doctor
Buthelezi testified that the report where it states ‘July 2017’
contains a human error, it was July
2016, she thinks her mind was
already stuck in 2017. A cleft is a healed laceration. She said to
put her two fingers meant putting
in a diameter of 2.5cm, whereas a
vagina that has never been penetrated cannot even allow one finger in
it. The speculum is 7-8
centimetres and approximately 3 cm in width
but the complainant did not feel any discomfort or pain. She said
that at seven years
age a hymen sexually penetrated grows back
although not to its original size and shape if repeatedly opened
several times. She
testified that she worked since 2013 at the
gynaecology and obstetrics department making her to be familiarised
with different
conditions of vaginas. The doctor when asked whether
there had a document recording that it is July 2016 and not July 2017
as recorded
in the J88, she responded that she remembered the
complainant.
[25] The State
closed its case. The legal representative of the appellant closed the
defence case without leading any evidence.
The appellant confirmed
that it was his decision.
[26] The Regional
Magistrate indicated, correctly, that notwithstanding the appellant
electing not to testify, the State remained
with the duty to prove
the guilt of the accused beyond reasonable doubt and the onerous
burden is not made any easier by the accused
electing to exercise his
constitutional right to remain silent. He referred to
S v
Hlongwane
2002 (2) SACR 37
TPD as para [51] where it was held
that the exercise of the right to remain silent even after the close
of the prosecution case
does not result in any inference of guilty or
admission that he had no answer to the prosecution case. The duty of
the court to
scrutinise and weigh the prosecution evidence whether it
proves the guilt of the caused beyond reasonable doubt is not in any
lessened
by the accused’s election to remain silent. The
Regional Magistrate correctly pointed out that the evidence of the
complainant
is that of a child and a single witness. It required to
be approached with caution. He held that if a judicial officer has
anxiously
scrutinised such evidence with a view to discovering
whether there is any reasonable possibility of conscious or
unconscious fabrication
is satisfied that there is no such
possibility the evidence may be safely accepted. The learned Regional
Magistrate stated that
the complainant created a very good impression
to the Court, she was detailed in describing the incidents she
remembered. He found
that the evidence of the complainant finds
corroboration where it overlaps with that of her mother relating to
the appellant going
away with the complainant. He found that the
medical evidence made it clear that the complainant was raped several
times.
[27] It is clear
that the Regional Magistrate misdirected himself in regarding the
medical evidence as establishing that the
complainant was raped
several times. The said evidence established vaginal penetration.
Further, it is one aspect of the exercise
of caution to scrutinise
the evidence for signs of fabrication but not the only one. To make
it the only aspect would require the
accused to prove that the
evidence against him is fabricated which is not the legal principle.
The basic requirement is that the
evidence of a single witness is
required to be clear and satisfactory in all material respects. In
S
v Mokoena
1932 OPD 79
at 80 : ’Now the uncorroborated
evidence of a single witness competent and credible witness is no
doubt declared to be sufficient
for a conviction by the section, but
in my opinion that section should only be relied on where the
evidence of a single witness
is clear and satisfactory in every
material respect. Thus the section ought not to be invoked where, for
instance, the witness
has an interest or bias adverse to the accused,
where he has made a previous inconsistence statement, where he
contradicts himself
in the witness box, where he has been found
guilty of an offence involving dishonesty, where he has not had
proper opportunities
for observation, etc’.
[28] The evidence
of a child must be approached with caution in view of the risks
associated with the evidence of children.
In
S v Manda
1951
(3) SA 158
A at 162/3 the court held that discrepancies which in
other evidence may be of little importance in the evidence of a child
may
need to be seriously considered since the principle requires that
evidence of young children should be accepted with great caution.
The
danger inherent in reliance upon the uncorroborated evidence of a
young child must not be underrated. The imaginativeness and
suggestibility of children are only two of a number of elements that
require their evidence to be scrutinised with care amounting,
perhaps, to suspicion.
[29] The exercise
of caution must be evident from the judgment. It entails scrutinising
all the evidence with care, taking
note of inconsistencies and
discrepancies and seeking explanations, and according due weight to
unexplained discrepancies and inconsistencies.
In my view, the
evidence of the complainant exhibited numerous material
unsatisfactory features, in particular, the following:
1. She lied
in denying knowing anything about the letter addressed to the Ngcobo
boy.
2. She told
the doctor that the appellant started sexually abusing her after he
had chased her mother away but in her
evidence sexual abuse started
when the appellant said he was taking her to the home of the Ngcobo
boy.
3. The
complainant told the doctor that the last incident is when the
appellant went with her to buy pie but in her
evidence, she said the
last incident is when the appellant went with her to the clinic.
4. The
complainant inexplicable could not remember anything about the
incidents of sexual abuse that took place at her
home.
5. The doctor
wrote in the j88 in three places that the abuse took place in 2017 as
stated in the charge, it is an inconsistency
in the evidence of the
complainant whether the sexual abuse took place in 2016 or in 2017.
6. The
evidence reveals that the complainant alleged sexual abuse to stop
the appellant from taking her out of school,
which shows a motive
against the appellant.
[30] The charge
alleges that on or about 2017 the appellant did unlawfully and
intentionally commit an act of sexual penetration
with complainant on
several occasions without her consent. The school counsellor
interviewing the complainant on 8 September 2017
was told that the
appellant for a period of about a year had a tendency of having
sexual intercourse with the complainant. The
doctor in the J 88
completed on 8 September 2017 stated that since July 2017 the sexual
abuse started on three separate parts of
the J88. The charge alleged
sexual penetration of a vagina by a penis and a finger and that
complainant was seven years old. The
evidence lead showed that the
complainant was 13 years old, there was no evidence of a finger used
in the sexual penetration. It
was not explained during the trial why
it was claimed. Complainant was 7 years old, and why it was claimed
that a finger was used
in the sexual penetration. The charge,
referred to a complainant who is not the complainant. It alleged rape
on [A…N….]
These discrepancies were never explained
during the trial. The State counsel before us had no explanation for
this discrepancy
between the allegations in the charge and in the
evidence adduced in the trial.
[31] The
complainant was sworn in by the court after conducting a competency
inquiry. But during the competency enquiry there
were no questions
directed to establishing whether the complainant knew the difference
between truth and lies. Further, the complainant
said that a person
not telling the truth is punished, the complainant except to say that
she attended church and she believed in
God, she did not state that
once she has taken the religious oath it binds her to tell the truth.
In my view, the competency enquiry
did not establish the main
requirements of a witness to be sworn in that she knows the
difference between the truth and the lies.
She knows the nature and
import of a religious oath and she regards it as binding on her
conscious. It results in her evidence
to be inadmissible.
[32] The evidence
was that the class teacher noticed something untoward in the
complainant and she reported to the principal
who in turn called the
school counsellor. The class teacher and the school principal were
not called to testify. It is not known
whether they had any
interaction with the complainant.
[33] In my view,
the learned Regional Magistrate failed to approach the evidence with
the required caution. The discrepancies
in the complainant’s
evidence constitute material unsatisfactory features rendering unsafe
to rely on the evidence to convict
the appellant.
[34] I propose the
following order.
1. The appeal
against conviction is upheld.
2. The
conviction and sentence is set aside.
Mngadi J
I
agree
Mathenjwa AJ
APPEARANCES
Case
Number: AR
235/22
For
the Appellant: Adv
Andrews
Instructed
by: Legal
Aid South Africa
PIETERMARITZBURG
For
the respondent: Adv
Khanyile
Instructed
by: Deputy
Director of Public Prosecutions
PIETERMARITZBURG
Heard
on: 17
March 2023
Judgment
delivered on: 28
March 2023