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[2010] ZASCA 157
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Sindane v S (510/10) [2010] ZASCA 157 (1 December 2010)
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THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Case No 510/10
In the matter between:
THOKOZANE
PHILANE SINDANE
......................................
APPELLANT
and
THE
STATE
.............................................................................
RESPONDENT
Neutral
citation:
Sindane v The State
(510/10)
[2010] ZASCA 157
(1
December 2010)
Coram:
PONNAN, MHLANTLA et TSHIQI JJA
Heard:
22 November 2010
Delivered:
1 December 2010
Summary:
Rape ─ appeal against conviction ─
assessment of evidence totality of evidence to be considered ─
whether all
elements of offence proved.
___________________________________________________________
ORDER
_____________________________________________________________________
On appeal from
: KwaZulu-Natal High Court
(Pietermaritzburg) (K
Pillay and Van Zyl JJ sitting as court of appeal):
The appeal against conviction is dismissed.
JUDGMENT
_____________________________________________________________________
MHLANTLA JA
(PONNAN JA and
TSHIQI JA concurring):
[1] Does ‘rape’ mean rape is evidently what
we are called upon to decide in this case? The suggestion on behalf
of the
appellant being that when the complainant repeatedly used that
word during the course of her evidence she had no real appreciation
of its meaning or import. That question arises against the following
backdrop.
[2] The appellant, Thokazane Sindane, an educator, was
charged in the Regional Court, Pietermaritzburg with rape involving
his 19
year old domestic worker. The charge against him was based
upon an occurrence at his home on Sunday, 24 July 2005. On 17 April
2007, the appellant was convicted of rape and sentenced to ten years'
imprisonment. An appeal against his conviction was dismissed
by the
KwaZulu-Natal High Court (Pietermaritzburg), (K Pillay J, Van Zyl J
concurring). His appeal is before us with the leave
of that court.
[3] The complainant testified that on the day in
question, she had gone to church and on her return, found no-one at
home. The appellant
arrived and let her in. She prepared food for him
and thereafter carried on with her other household duties. She was
busy ironing
when the appellant approached her. He reminded her that
in the past he had told her that he loved her and reiterated those
feelings
for her. She ignored him and carried on with her work.
[4] She testified that the appellant then started
fondling her but she pushed his hands away. He grabbed her from
behind and threw
her onto the bed. He lifted her skirt, pulled her
panty aside and raped her. She cried and protested but no one heard
her because
the television set had been switched on and the volume
was high.
[5] After the incident, the complainant left the house.
She attempted to call her mother in order to report the incident but
could
not get through to her. She waited for the appellant's wife and
on her return made a report to her about having been raped by the
appellant. The appellant was confronted by his wife about the
allegation. Mrs Sindane berated him. She was upset and broke down
crying, which attracted the attention of their neighbours.
[6] The complainant testified that she had never had sex
before and that she was a virgin when the appellant raped her. She
was
taken to a doctor for treatment by Mrs Sindane, who by that stage
was hysterical, and two of her neighbours. She was advised by
them to
lie to the doctor about the true identity of her rapists. The advice
having been that if she had told the doctor that the
perpetrators
were unknown she would qualify for anti-retroviral treatment.
According to the complainant, Mrs Sindane thereafter
convened a
meeting with her (Mrs Sindane’s) relatives to discuss what
course to follow. She and certain other relatives later
accompanied
the complainant to her mother where they reported the incident.
[7] During cross-examination she admitted that the
appellant had stated that he wanted sex and was adamant that the
appellant had
raped her. She denied that she had falsely implicated
him to secure financial assistance for herself in the event that she
fell
pregnant.
[8] The complainant was thereafter examined by a
district surgeon, Dr Abdul Akoo, two days later. Dr Akoo testified
that the gynaecological
examination of the complainant was quite
difficult because she was very anxious. She would not allow him to
insert his fingers
into her vagina because it was very sore and
tender. He recorded in the J88 form that her vagina was very tender,
there was a slight
vaginal discharge and her hymen had a bruise. Dr
Akoo concluded that he could not exclude forced penetration, albeit
that he was
not 100 per cent certain. During cross-examination he
stated that if any forced vaginal penetration had occurred, then the
injuries
sustained by the complainant would be consistent with those
sustained by a virgin 48 hours prior to his examination of her.
According
to him, the tissue in her vaginal area, which has a good
supply of blood, heals quite fast. That, so he testified, may explain
the absence of tears 48 hours later.
[9] The appellant denied any involvement in the
commission of the offence. He testified that he had found the
complainant outside
the house crying. She did not tell him what was
troubling her despite his repeated enquiries. He informed his wife,
when she returned
from church, about the complainant's distraught
state. The former went to speak to the complainant and thereafter
told him that
the complainant had reported to her that she had been
raped by unknown boys. His wife subsequently took the complainant to
the
doctor. When they returned, his wife confronted him with the
allegation that he had raped the complainant. He denied the
allegation
contending that the complainant had falsely implicated him
as she knew that he would be able to cover her medical expenses if
she
became pregnant. He testified that he then decided to ‘stay
away from this matter and to involve [himself] not in this matter’.
[10] The trial court cautioned itself that the
complainant was a single witness and was mindful of the approach to
be adopted when
evaluating her evidence. The court accepted the
complainant's testimony and concluded that she had no reason to
falsely implicate
the appellant. It rejected the appellant's version
because it was 'so unlikely that it just cannot be true'. The trial
court accordingly
convicted the appellant as charged.
[11] The appellant appealed to the high court. In that
court, various arguments were advanced on his behalf, on appeal, but
the
question of whether the complainant understood the full import of
the word 'rape' when she used it in her evidence was never raised.
The court below held that the magistrate had properly evaluated the
evidence and that there was no basis for interfering with its
finding. It thus dismissed the appeal.
[12] This issue was raised for the first time in the
high court during the application for leave to appeal to this court.
The high
court appeared to have been persuaded that it had some merit
and accordingly granted leave to appeal to this court.
[13] The common law crime of rape is
defined as the unlawful and intentional sexual intercourse by a male
person with a female without
her consent.
1
The slightest penetration is
sufficient. Before us, the thrust of the argument on behalf of the
appellant was that the complainant
did not quite comprehend what the
word 'rape' meant especially since she had never had sexual
intercourse before the incident.
Counsel contended that it was
incumbent upon the State to have adduced evidence to prove that she
fully comprehended what the word
meant. Absent such elaboration, so
the contention went, an essential element of the offence, namely
penetration, had not been proved.
[14] That submission cannot prevail. It is necessary to
refer to the evidence in this regard. The record discloses the
following
twelve references to the word 'rape' during the
complainant's testimony:
'Prosecutor: How do you know him?
Complainant: I know him because he is the one who raped me. I was
employed by him.
. . .
Q: Yes?
A: The accused grabbed me from behind because I was facing the bed
and he pushed me onto the bed. He then raped me.
. . .
Q: With your clothes on?
A: As a matter of fact I was dressed in a skirt and panties, a long
skirt which eventually got torn during the struggle between
myself
and him. He then pulled the panty to the side, he then raped me. . .
. Two of the neighbours came and they enquired what
had happened and
the accused's wife then explained that her husband, one Thokozane,
had raped me.
. . .
Q: What did you tell the doctor then?
A: I said to the doctor that I had been raped coming from church by
unknown males.
. . .
Q: You were a virgin when the accused raped you?
A: Yes.'
[15] During cross-examination, the appellant’s
counsel used the word ‘rape’ repeatedly. The complainant
under
cross examination was adamant that the appellant had raped her.
She replied as follows to questions put to her:
'Q: But on the day in question he reminded you that he wants sex, is
it?
A: Yes, that is what he said.
. . .
Q: Before you arrived at accused home, after the church, had you been
raped by any boys?
A: No
. . .
Q: Why did you agree to say that you had been raped by unknown
persons?
A: I agreed because I did not want any serious infection.
. . .
Q: Then how did he rape you with his pants on.
A: I do not know when he took off his pants but when he grabbed me he
had his pants on.
. . .
Q: Accused denies that he ever raped you.
A: He did rape me.
. . .
Q: Accused also puts it to you that you mentioned him as the person
who raped you for convenience so that you can be treated in
case you
have contracted a disease?
A: I was raped by him.
. . .
Q: Accused says what you told the doctor about the person who raped
you was correct.
A: I was raped by him and he was intoxicated on the day in question.'
[16] A perusal of the record clearly shows that the
complainant, who was 21 years old when she testified, repeatedly
stated that
she was raped. There is nothing on the record to suggest
that she did not understand what the word ‘rape’ meant.
The
issue of penetration or what she understood by the word rape was
never canvassed during her evidence. There is not a shred of evidence
that suggests that the complainant did not appreciate or understand
the import of the word when she used it. In my view, on the
totality
of the evidence, there can be no doubt that she fully comprehended
what rape entailed. By the end of her evidence it became
common cause
that she had been raped. The only issue before the trial court was
the identity of the perpetrator. The appellant’s
defence in the
trial court, consistent with what the doctor had been informed on the
evening of the incident, was that some unknown
males were the
perpetrators.
[17] Moreover, as an educator the appellant was not an
unsophisticated person. If indeed the contact between him and the
appellant
had fallen short of penetration one would have expected him
to have raised that in his defence. I accept that there is no onus on
him, however one would have expected a person of his standing to take
issue with the allegation and dispute that penetration had
taken
place. He instead chose initially to become aloof and at a very late
stage, after he had already had two bites at the cherry
this
technical defence was opportunistically raised on his behalf.
[18] To all of that must be added the conduct of the
appellant's wife. She became very upset when she heard the
allegations. She
scolded the appellant. She cried and broke down. She
made a noise which attracted the attention of her two neighbours. She
ensured
that the complainant was taken to a doctor. She even reported
the matter to her relatives. It is clear that the appellant’s
wife was left in no doubt that something untoward had happened in the
house.
[19] Counsel for the appellant contended that the
medical evidence was neutral. There is no merit in that submission.
It is prudent
to consider the J88 form in greater detail. Dr Akoo
noted that the hymen was bruised and that the vagina was very tender
and sore
and there was a vaginal discharge. It is common cause that
the complainant had not been sexually active prior to the incident.
Those observations are all consistent with some kind of trauma to the
complainant’s vaginal area. It follows that the medical
evidence, far from being neutral, in fact corroborated the
complainant's evidence that a sexual assault had occurred. There is
nothing to gainsay her evidence that the trauma was caused by the
rape.
[20] In those circumstances, I am satisfied that the
State proved all of the elements of the offence and established the
guilt of
the appellant beyond reasonable doubt. The appellant's
version was correctly rejected as not being reasonably possibly true.
There
is therefore no basis to disturb the trial court's finding of
guilt.
[21] For these reasons the appeal against conviction is
dismissed.
_______________
N Z MHLANTLA
JUDGE OF APPEAL
APPEARANCES:
APPELLANT: L Barnard
Instructed by Ngubane Wills Inc
Pietermaritzburg;
Naude Attorneys, Bloemfontein
RESPONDENT: R Blumrick
The Director of Public Prosecutions,
Pietermaritzburg;
The Director of Public Prosecutions,
Bloemfontein
1
C
R Snyman
Criminal Law
4 ed (2002) p 445.