About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Makhanda
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Makhanda
>>
2023
>>
[2023] ZAECMKHC 87
|
|
S v Khaphakati (11/2023) [2023] ZAECMKHC 87 (28 April 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
NOT REPORTABLE
Case no: 11/2023
In
the matter between:
THE
STATE
and
KHAPHAKATI
SITHEMBELE
Accused
JUDGMENT
Govindjee J
Background
[1]
Mr Khaphakati was charged with raping EJ
(‘the complainant’)
per
vaginam
on one occasion on Saturday 31
October 2020 near Stutterheim. He pleaded not guilty and, by way of a
plea explanation, denied any
sexual penetration of the complainant.
The evidence
[2]
Dr Dwyer testified regarding the contents
of a report following medico-legal examination completed by another
doctor who had since
retired. That report, understood in the light of
Dr Dwyer’s testimony, reflects that the complainant was
physically examined
at 20h30 on 2 November 2020. The examination
revealed a bruised posterior fourchette, two fresh clefts and
bruising on an irregular
hymen as well as a bloody discharge and
inflamed perineum. The examining practitioner had expressed the
conclusion that ‘sexual
penetration has taken place’. Dr
Dwyer indicated his clear support for that conclusion, adding that
the presence of bruising
suggested that the incident had occurred
within a period of five days from the date of examination.
[3]
The complainant, now 12 years of age,
testified in camera with the aid of closed-circuit television,
following admonishment and
via an intermediary. She had been staying
at the two-bedroom home of her aunt (‘Jeyi’), who lived
in a flat on a farm,
on the day in question. Mr Khaphakati was her
mother’s boyfriend and the couple had one child (‘IP’)
aged five.
Jeyi and the adults had cooked a meal during the day
before consuming liquor until the evening. Jeyi had slept with her
boyfriend
in their bedroom that evening. Jeyi’s child (‘AJ’)
had slept with the complainant on a bed in the other bedroom.
Mr
Khaphakati, the complainant’s mother and their child had slept
on a mattress at the foot of that bed, as confirmed by
the
complainant with the aid of a photo album.
[4]
The complainant alleged that Mr Khaphakati
had come to her during the night while she was on the bed, lowered
her panties to her
feet, instructed her to bend away from him and
proceeded to rape her. She had experienced pain when he did so. Her
immediate response
was to call to her aunt for help, but he had
closed her mouth with a blanket and his hand, threatening to bury her
alive if she
were to disclose to anyone what had happened.
[5]
The evidence of the complainant was that
the room was dark so that there was no visibility. She had identified
Mr Khaphakati when
he had spoken to her and threatened to kill her if
she told anyone what had happened. The complainant clarified that her
immediate
response was not to call her mother, as her mother would
always side with Mr Khaphakati. She also testified that her mother
was
awake at the time.
[6]
Mr Khaphakati had been sent to buy liquor
the following morning, which was a Sunday, but had returned without
the liquor. The complainant
did not want to leave with her mother, Mr
Khaphakati and their child that day. On the following day, her
grandmother had observed
her walking strangely and had questioned
her. Jeyi had taken her inside the house and made her show her
private parts to her. Jeyi
had observed redness and the complainant
had then told her that Mr Khaphakati had been the cause of that and
described that he
had raped her. Jeyi had then washed her and
accompanied her to the police station, after which she was medically
examined.
[7]
It was put to the complainant that she had
slept in the neighbouring flat, in which her grandmother stayed,
together with AJ and
another male child aged 16 (‘AM’) on
Friday night, the evening before the incident occurred. The
complainant denied
that, indicating that she knew AM who was only now
13. He never slept in her aunt’s home and was unrelated to
their family.
He did, however, sometimes sleep in the neighbouring
flat where her grandmother slept. It was also put to the complainant
that
the accused had heard AM invite the complainant and AJ to
accompany him to another farm. The complainant was adamant that she
had
slept in Jeyi’s home and denied any invitation to accompany
AM on Saturday morning. AM had merely invited AJ and the complainant
to accompany him to Jeyi’s gate, as he was going to travel to
another homestead on his own. Counsel for Mr Khaphakati confirmed
the
complainant’s version that the adults had been drinking after
the meal was prepared on the day of the incident.
[8]
The complainant testified that she had
fallen asleep before being approached by Mr Khaphakati on the bed,
and had woken up shocked
that he was busy lowering her panties. At
that stage she did not know who the person was and had not made any
noise. After having
lowered her panties, however, Mr Khaphakati
threatened to kill her by burying her alive if she made any
disclosure. She then recognised
his voice. He had been speaking in a
different manner than normal, softly and with a ‘bass’
voice. He then instructed
her to bend down and face her behind
towards him. When she wanted to cry out, he had closed her mouth
before she could make any
noise.
[9]
The complainant explained that she had
heard her mother going to urinate. She added ‘…and when
she comes back and gets
under the blankets she does not immediately
fall into a deep sleep’. She then testified that it had not
been so dark at the
time, and that she could see her mother was awake
based on her mother’s movements while in bed. AJ, sleeping next
to her,
had not woken throughout the incident. It was, however, too
dark to see the organ that had been inserted into her, which she had
felt and which had hurt her. She had also been facing away from her
assailant at the time. After raping the complainant,
Mr
Khaphakati had repeated his threat to her. She had not responded and
he had returned to the mattress where he had been sleeping
until
morning.
[10]
The complainant described that she had been
afraid to disclose what had happened the following day. That
disclosure only came after
she had been noticed walking with
discomfort, on Monday. Nobody had noticed her discomfort on Sunday.
The complainant appeared
incredulous when the defence version was put
to her. That version included the suggestion that AM may have
perpetrated the crime.
The complainant maintained that she had slept
in Jeyi’s house on both Friday and Saturday nights and denied
any physical
relationship with AM. The complainant concluded by
indicating that Mr Khaphakati had been drunk at the time of the
incident. She
had known him for a long period of time and spoken to
him before. His voice had not been so low or soft that she could not
hear
him clearly when he spoke to her that evening. Other than one
previous assault that she mentioned, there was no bad blood between
the two.
[11]
Jeyi testified that she was the
complainant’s mother’s sister and the mother of AJ. She
confirmed the Saturday sleeping
arrangements detailed by the
complainant and that the adults had been drinking earlier that day.
The adults had also tried to buy
alcohol on Sunday morning, leaving
the children behind, but were unsuccessful in their attempts.
Thereafter, her sister, Mr Khaphakati
and their child had left for
their home, which was located at a different farm. The two had been
in a relationship for a long period
of time.
[12]
Jeyi’s suspicions had been aroused
when the complainant had not been hungry that Monday morning. The
child’s grandmother
had noticed her walking with discomfort,
and called her. She had taken the complainant inside the house and
asked her what had
occurred. The complainant had then explained that
Mr Khaphakati had caused the problem and made a full disclosure,
including that
he had raped her from behind. While doing so, the
child was ‘not right in the face … [as if] she was
someone who had
fever’. Jeyi had questioned her as to how this
could have happened while everyone else was present, and the child
had explained
that she had not called for help because she had been
threatened. At some point she had inspected the child’s private
parts
and noticed redness. Without bathing her completely, she had
wiped her face and proceeded with her to the police station, and
subsequently
to the hospital. She had noticed nothing amiss the
previous day.
[13]
Jeyi testified that AM was only born in
2009 and was 13 years of age. He had never slept at her home. She
recalled the complainant
sleeping at her home that Friday evening. AM
would occasionally sleep at the grandmother’s flat during 2020,
which was right
next door to her flat, but AJ and the complainant
never did so.
[14]
Mr Khaphakati testified that he was 41
years of age and was completely uneducated and illiterate. He had
been raised on a farm where
he now worked. He had slept at Jeyi’s
house on the night in question, with the complainant’s mother,
as well as the
previous evening. The complainant had slept in the
room where they had slept on Saturday, but had stayed at her
grandmother’s
homestead the previous evening. He testified that
Jeyi and her boyfriend had also slept at that homestead, together
with the complainant,
AM and AJ on the Friday night.
[15]
Mr Khaphakati testified that he had slept
through the night on Saturday and denied raping or threatening the
complainant. He had
noticed nothing untoward with her the following
day. He had subsequently been arrested. He had no knowledge of who
could have caused
her injuries and no suspicions.
[16]
This position was maintained during
cross-examination. Mr Khaphakati had slept only with the
complainant’s mother on Friday
evening, while the others were
sleeping next door at the grandmother’s flat. He had omitted to
tell his counsel about that
and had waited to place that version
before court. He had been arrested for something unknown to him.
[17]
He confirmed the Saturday sleeping
arrangements as described by the complainant. He testified, however,
that neither he, nor anyone
else in the household, had been drinking
earlier that day because no liquor had been available for purchase.
Liquor had only been
obtained the following day. He had consumed this
before leaving for his home. The evidence was that he had known the
complainant
for a long period of time and there were no bad feelings
between the two. He conceded that she had been sexually penetrated
but
distanced himself from the version that had been put on his
behalf as to the possible involvement of AM, agreeing that placing
the blame on a child aged ten at the time was unfathomable.
[18]
When it was put to Mr Khaphakati that he
had perpetrated the crime, he responded by saying that he did not
agree, adding that ‘It
would have been fine if DNA was
present’. Mr Khaphakati also testified, in response to
questions from the court, that he
had a clear recollection of the
events of Saturday evening, including Jeyi joining her sister and him
on their mattress and conversing
with them before she had left to
sleep in her room. He had made a mistake in omitting this evidence
during his earlier testimony.
Mr Khaphakati felt hurt by the child’s
accusation and could not understand why she would place the blame
upon him.
Analysis
[19]
It
is trite that the evidence of young children should be accepted with
great caution. While no fixed rule in respect of corroboration
is
applicable, in
S
v Manda
,
the Appellate Division noted inherent dangers in relying upon the
uncorroborated evidence of a young child.
[1]
The imaginativeness and suggestibility of children have been held to
be only two of several elements that require that their evidence
be
scrutinised with care to the point of suspicion. A trial court must
fully appreciate the inherent dangers in accepting such
evidence.
[20]
While
her allegations of sexual penetration are supported by the available
medical evidence, the complainant in this matter is a
single witness
in respect of her identification of the accused as her rapist.
Section 208 of the Act provides that an accused may
be convicted of
an offence on the single evidence of any competent witness. There is
no rule of thumb test or formula to apply
when it comes to a
consideration of the credibility of the single witness.
[2]
The evidence must be weighed by considering its merits and demerits
before deciding whether, despite shortcomings, defects or
contradictions, the truth has been told. The cautionary rule that the
evidence of a single witness must be clear and satisfactory
in every
material respect does not mean that any criticism of that witness’
evidence, however slender, precludes a conviction.
[3]
The exercise of caution cannot be allowed to displace the exercise of
common sense.
[4]
The court is
entitled to convict on the evidence of a single witness if it is
satisfied beyond reasonable doubt that such evidence
is true, and
notwithstanding that the testimony was unsatisfactory in some
respect.
[5]
[21]
An
accused person may only be convicted if, after proper consideration
of all the evidence presented, his guilt has been established
beyond
reasonable doubt. It follows that an accused person must be acquitted
if it is reasonably possible that he might be innocent.
[6]
Before rejecting an accused’s version on the probabilities, the
court must be able to find, as a matter of probability, that
the
accused’s version is simply not reasonably possibly true.
[7]
Where there is a conflict of fact between the evidence of the state
witnesses and that of the accused, the court is required to
consider
the merits and demerits of the state and defence witnesses, as well
as the probabilities of the case, before concluding
whether the guilt
of an accused has been established beyond reasonable doubt.
[8]
[22]
It
is necessary to adopt a holistic approach to analysing the available
evidence in this matter.
[9]
In
S
v Chabalala
,
[10]
the Supreme Court of Appeal explained this as follows:
‘
The
correct
approach is to weigh up all the elements which point
towards the guilt of the accused against all those which are
indicative of
his innocence, taking proper count 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.’
[23]
Counsel were in agreement that many of the
facts were common cause. This includes the sleeping arrangement on
the night in question
and that Mr Khaphakati and the complainant’s
mother left for their residence the following day, without the
complainant.
The medical evidence that the complainant had been
sexually penetrated is clear and convincing. This was not placed in
dispute
and must be accepted. The real issue is the identity of the
rapist.
[24]
The complainant was a single child witness
in addressing that crucial question. Her evidence must be approached
with the appropriate
level of caution already described. The
complainant impressed the court with the manner in which she
testified. She was able to
do so in a composed, clear manner, during
her examination-in-chief and cross-examination. She had no difficulty
in displaying appropriate
thought and reflection when questions were
put to her, bearing in mind her young age. She explained when she did
not know an answer
or could not remember something, and testified
confidently in agreeing or disagreeing with statements put to her,
and in the manner
in which she explained her view. She conveyed the
general impression of a child speaking truthfully about an event that
she was
able to recall, displaying flashes of emotion when Mr
Khaphakati’s denial and allegations of another perpetrator were
put
to her. She was steadfast and clear in her identification of Mr
Khaphakati as the perpetrator.
[25]
This is not to suggest that her testimony
was flawless. In one notable instance her testimony appeared to be
fanciful and out of
kilter with the content of the balance of her
testimony and with her otherwise convincing mode of delivery. This
related to her
testimony that her mother was awake at the time of the
incident. In all other respects she provided a coherent, credible
recollection
of events which accord with the probabilities and was
unshaken during cross-examination. In particular, her identification
of Mr
Khaphakati was duly explained, including the sequence of events
as they occurred, the fact that she could not see who had removed
her
panties and her subsequent identification based on his voice and
statements of threat. It is common cause that the child knew
Mr
Khaphakati for a long period of time given his relationship with her
mother. She had conversed with him and it must be accepted
that she
was able to recognise his voice, even when it was reduced to a
whisper. It must also be accepted that there was no reason
for her to
implicate Mr Khaphakati falsely.
[26]
Jeyi was an excellent witness who testified
clearly, honestly and without any semblance of malice about the
events within her knowledge,
providing further clarity as to the
events of the day, including confirmation that the adults had been
drinking.
[27]
By contrast, it is readily apparent that Mr
Khaphakati’s version was riddled with weaknesses,
improbabilities and other elements
suggestive of his guilt. In
particular, his version changed markedly from the version put on his
behalf to his own testimony. Initially
taking no issue with the adult
consumption of alcohol on the Saturday, he then testified that there
was no alcohol available. The
complainant’s statement that he
had been drunk at the time of the incident was also left
unchallenged. The allusion to another
named perpetrator, AM,
allegedly 16 years of age, during cross-examination of the state
witnesses, fell by the wayside by time
he testified. He conceded,
rightly so bearing in mind that AM was only ten years of age at the
time, that AM could not have perpetrated
the crime. His averments
regarding the Friday sleeping arrangements appear to have been
designed solely to advance that angle,
but may be unequivocally
rejected considering the testimony of the complainant and Jeyi on the
point. It suffices to say that his
version in that respect was
completely unaligned with the probabilities, particularly in respect
of Jeyi herself, whose home was
a few metres away from that of the
grandmother. Mr Khaphakati also made mention for the first time,
during his evidence, that Jeyi
had been sitting with him and the
complainant’s mother before they had gone to bed.
[28]
Overall, he was a poor witness who appeared
to have stretched the boundaries of his imagination in an attempt to
conjure a version
that could be advanced. I accept that assessing the
demeanour of an unsophisticated witness from a different cultural
background
is an exercise that must be handled with care.
Nevertheless, it was readily apparent that Mr Khaphakati’s
demeanour was not
that of a person speaking candidly. As indicated,
that assessment is strengthened when considering his credibility,
including the
obvious motivation for speaking untruthfully, and the
probabilities.
[29]
Considering the evidence in its entirety, I
am satisfied that, in material respects, the complainant’s
evidence meets the
test of being clear and satisfactory in respect of
her identification of Mr Khaphakati as the person who raped her.
Despite her
tender age, and for the reasons described, including that
she knew him well, her identification of his voice may safely be
relied
upon. Her explanation of the nature of the threat she had
received was consistently expressed. This is unsurprising when
considering
the graphic manner in which it had been crafted, and its
repetition after the act.
[30]
The
complainant’s failure to report the incident at the first
available opportunity does not, on its own necessarily warrant
an
adverse inference.
[11]
Section
59 of the Sexual Offences Act provides that in criminal proceedings
involving the alleged commission of a sexual offence,
the court may
not draw any inference only from the length of any delay between the
alleged commission of such offence and the reporting
thereof. The
reason for this is that this might unjustifiably ignore due
consideration of psychological and other factors that
might have
contributed to any delay, so that s 59 should not be unduly
interpreted as still requiring that the complaint be made
at the
first reasonable opportunity. The present circumstances provide a
clear illustration of the point. It must be accepted that
the
complainant was scared, following the repeated manner in which she
had been threatened, and that she may not have reported
the incident
at all had her manner of walking not been observed, which was only on
the Monday. She then made a seemingly full and
frank disclosure to
Jeyi. No adverse inference is warranted considering the circumstances
of the matter in their entirety. Confirming
this approach, in
S
v Vilakazi
Dambuza JA, on behalf of the majority of the court, held as
follows:
[12]
‘
Firstly,
as Milton states, reluctance on the part of rape survivors, or some
of them, to report the rape at the first opportunity
is a firmly
recognised fact. It is also generally accepted that with young
children the reluctance is compounded. In this case
the complainant
testified that she was afraid of the appellant. I am persuaded that
the prospect of accusing her mother’s
friend who used to assist
her in her studies must have compounded the fear.’
[31]
Similar considerations would have been
applicable in the present circumstances. The totality of evidence,
including the medical
evidence, the testimony of the complainant and
her aunt, and the assessment of the accused’s denial and
evaluation of the
probabilities of the matter, provides a clear
picture of the events that unfolded. The suggestion that her mother
may have been
awake at the time is fanciful and must be rejected. But
that flaw in her evidence is insufficient, on its own, to conclude
that
the state has failed to prove its case.
[32]
Mr Geldenhuys
,
counsel for the accused, rightly confirmed that aspects of Mr
Khaphakati’s version were problematic and that there were
certain discrepancies in his evidence, particularly in respect of
whether he had been drinking on the Saturday. As for the actual
rape,
it was argued that his version was reasonably possibly true. Leaving
aside the complainant’s statement regarding the
state of
consciousness of her mother at the time, it was submitted that it was
improbable that Mr Khaphakati would have taken the
risk of raping the
child in front of her mother, bearing in mind that another child was
sleeping on the bed, so that the complainant’s
version was
improbable. Added to this was the fact that the complainant had
failed to report the complaint the following day, at
the first
available opportunity. It was counsel’s submission that these
factors cumulatively created sufficient doubt for
this court to
reject the complainant’s version and to find that the state had
failed to prove Mr Khaphakati’s guilt
beyond reasonable doubt.
[33]
These arguments have already been addressed
during the course of this judgment. The accused’s denial is, on
my analysis, simply
not reasonably possibly true given the overall
analysis of the merits and demerits of the available evidence
adduced. In coming
to this decision, it might be added that I reject
Mr Khaphakati’s version in respect of his own alcohol
consumption. The
probabilities favour the finding that he was under
the influence of alcohol at the time of the incident, and that this
reduced
his inhibitions to the extent that he was prepared to risk
perpetrating the crime despite the presence of other sleeping people
in the room. Notwithstanding due consideration of the dangers
associated with a single child witness testifying about events from
some time ago, I am satisfied that the complainant’s
identification of the accused may be safely relied upon so that the
state has proved beyond reasonable doubt that Mr Khaphakati is guilty
of rape as charged. It is not in dispute that Mr Khaphakati
knew that
he had the acquired immune deficiency syndrome or the human
immunodeficiency virus at the time.
Order
1.
The accused is found guilty of the crime of
rape as charged.
A GOVINDJEE
JUDGE OF THE HIGH
COURT
Heard
:
24-26
April 2023
Delivered
:
28
April 2023
Appearances:
For
the State:
Adv
M van Rooyen
Director
of Public Prosecutions
Makhanda
046 602
3000
For
the Accused:
Adv
D Geldenhuys
Legal
Aid South Africa
Makhanda
046 622
9350
[1]
S
v Manda
1951
(3) SA 158
(A) at 162E-163F. See
S
v Artman and Another
1968
(3) SA 339
at 340H.
[2]
S v
Weber
1971
(3) SA 754
(A) at 758.
[3]
R v
Bellingham
1955
(2) SA 566
(A) at 569, quoting
R
v Nhlapo
(AD 10 November 1952).
[4]
S v
Sauls and Others
[1981] 4 All SA 182
(A) at 187.
[5]
R v
Abdoorham
1954 (3) SA 163
(N) at 165, as quoted in
S
v Sauls
ibid.
[6]
S v Van
Aswegen
[2001] JOL 8267
(SCA);
S
v Van der Meyden
1999 (2) SA 79
(W).
[7]
S v
Shackell
2001 (2) SACR (SCA) 194
g-i
.
[8]
S v
Guess
[1976] 4 All SA 534
(A) at 537-538;
S
v Singh
1975 (1) SA 227
(N) at 228.
[9]
Van
Aswegen
supra.
[10]
S
v Chabalala
2003
(1) SACR 134
(SCA) para 15. Also see
S
v Dlamini
2019
(1) SACR 467
(KZP) para 25.
[11]
See PJ Schwikkard ‘Sections 58-60 and amendments in terms of s
68(2): Matters pertaining to evidence in D Smythe and B
Pithey
Sexual
Offences Commentary
(Rev Service 3, 2021) (Juta) 23-5.
[12]
S v
Vilakazi
2016 (2) SACR 365
(SCA) para 19.