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[2022] ZAKZPHC 26
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Dulela v S (AR348/2021) [2022] ZAKZPHC 26 (15 June 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no: AR348/2021
In
the matter between:
LULAMA
DULELA
APPELLANT
and
STATE
RESPONDENT
Coram:
Koen et Chili JJ
Heard:
10 June 2022
Delivered:
15 June 2022
ORDER
On
appeal from
: the uMzimkhulu Regional Court (sitting as court of
first instance):
(a)
The appeal against conviction is dismissed.
(b)
The appeal against sentence is upheld, the sentence of life
imprisonment is set aside and is substituted
with a sentence of
twenty five years’ imprisonment antedated to 31 March 2021.
JUDGMENT
Koen
J (Chili J concurring)
[1]
The appellant was convicted in the regional court sitting at
uMzimkhulu on a charge of rape. It was alleged in the annexure
to the
charge sheet that s 51(1), Part 1 and Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
applied, as the appellant had
sexually penetrated the complainant victim more than once and was
therefore liable to a sentence
of life imprisonment. I also mention
that the complainant was an 11 year old female, her birth certificate
handed in by consent
reflecting that she was born on 20 October 2008.
The learned magistrate found, notwithstanding the State only having
charged the
appellant with one count of rape, that the appellant had
indeed raped the complainant both on 31 December 2018 and on 1
January
2019 and that these were clearly two separate incidents.
Having found that there were no substantial and compelling
circumstances
the magistrate on 31 March 2021 sentenced the appellant
to life imprisonment. The present appeal is against both conviction
and
sentence, pursuant to the appellant’s automatic right of
appeal by virtue of the provisions of section 10 of the Judicial
Matters Amendment Act 42 of 2013.
[2]
The State had adduced the evidence of the complainant and her mother.
The J88 completed in respect of a medical examination
of the
complainant by Doctor NE Manci was handed in by consent. This is a
practice unfortunately often followed, but which is to
be
discouraged, as it does not allow for clarification of the terse
notes recorded on the J88.
[3]
As regards the conviction, in short, the evidence of the complainant
established that the appellant was her mother’s boyfriend.
She
referred to him as uncle Babana. He would spend nights at their home.
On 31 December 2018 the appellant was at the complainant’s
home. Her mother left for town during the day. At some stage in the
afternoon, whilst her mother was away, the appellant sent her
siblings to a neighbour’s house to collect an aux cable. After
they left he called the complainant to the bedroom of the
two-roomed
structure where he penetrated her vaginally on the bed. She did not
report the incident to her mother on her mother’s
return home
that evening because she described the appellant as a violent person,
and she was scared that the appellant would fight
with her mother and
he would assault her mother or she would assault him.
[4]
On 31 December 2018, being New Year’s Eve, the complainant and
her siblings attended at a neighbour’s house with
her mother,
from which they later returned home. The complainant’s mother
was quite inebriated by the time she, the complainant
and the
complainant’s siblings returned to their home to sleep.
[5]
In the early hours of 1 January 2019, around 2 am, the appellant
returned to the home of the complainant. The complainant’s
mother let him in as the children were all sleeping. She was at the
time sleeping on a sponge/mattress with one of the neighbour’s
children. It seems that he managed to wake up the complainant’s
mother who then allowed him access. The appellant was sleeping
with
her mother and two of the complainant’s siblings on her
mother’s bed in the bedroom. At one stage the appellant
came to
her, woke her up, took her to where there is a carpet on the floor,
where he raped her again. She tried to shout for her
mother but the
appellant put his finger to her lips, and told her to shut up. After
having raped the complainant, the appellant
returned to the bed on
which the complainant’s mother was sleeping. The complainant’s
mother did not hear her probably
because she was drunk and tired. She
in fact slept through until 7am the next morning when she was woken
up by the appellant, who
was leaving. He never used to leave so
early.
[6]
Unlike the previous afternoon, after the first rape, when the
complainant had not reported the rape to her mother, the next
morning
the complainant reported the rape to her mother as she did not want
the appellant to continue treating her like that.
The
complainant’s mother thereafter reported the incident to the
police, and the complainant was taken to the doctor who
completed the
J88. The doctor recorded that he conducted a vaginal examination on
the complainant, noted a discharge, noted that
the hymen was
‘cracked’ at 7 o’clock, and concluded that a
‘sexual assault is highly likely’ and
is ‘likely to
have happened.’ Some specimen was also taken and handed to a
Constable Sinina, but there is no explanation
as to what this
specimen was or what the outcome of any examination thereof might
have revealed.
[7]
The learned magistrate who had the benefit of observing the
complainant testifying, although she had testified via CCTV camera
and was assisted by an intermediary, concluded that she was a good
witness who narrated to the court exactly what happened and
how the
two separate incidents occurred. Furthermore, that she did not
contradict herself, nor was she shaken under cross examination.
The
magistrate described the complainant as a ‘brilliant child’
who was quick to give good answers. She furthermore
found
corroboration for the complainant’s evidence in the
observations recorded by Dr Manci in the J88, particularly where
it
was noted that the hymen of the complainant was ‘cracked at 7
o’clock.’
[8]
The learned magistrate furthermore also found that the complainant’s
version was corroborated by her mother who confirmed
what the
complainant reported to her on the morning of 1 January 2019. It is
indeed so that the complainant’s first report
to her mother on
1 January 2019 was consistent with the version of the complainant in
all material respects. The complainant’s
mother also testified
that the appellant and his uncle later came to her home to apologise
for what had happened.
[9]
The appellant was the only defence witness. He testified that he was
not at the complainant’s house during the day on
31 December
2018 at the time when her mother had gone to town in uMzimkhulu. He
said that he was at a traditional ceremony at his
homestead preparing
goats and preparing to slaughter some cows. It was on his version
therefore a ceremony of some significance,
although he did not say
what exactly the ceremony involved. He did not however call any
witness who was present at that ceremony
to corroborate his alleged
alibi. He also denied that he had come to the complainant’s
mother some two days later as she
testified, with his uncle, to
apologise for what happened, although he admitted meeting with the
complainant’s mother in
the company of his twin brother (which
the complainant’s mother denied) after he heard of the
allegations against him, not
his uncle, and not to apologise. He did
not call his brother to corroborate this part of his version either.
He denied having sent
the complainant’s siblings to fetch an
aux cable and denied having raped the complainant.
[10]
The learned magistrate found the appellant to be an evasive witness
and pointed to what she considered to be a contradiction
in his
evidence as to whether the lights were switched on at the home of the
complainant on the evening of 31 December 2018 to
1 January 2019. She
pointed out that in his evidence he stated that the lights were on
but under cross examination said he did
not know whether the lights
were on. The evidence in this regard was however confusing, and might
have been misunderstood. The
appellant’s evidence was that it
was dark inside the house on his arrival, but that having woken the
complainant’s
mother, she switched the lights on and they
thereafter slept with the lights on. Further under cross examination
he said he did
not know whether the complainant’s family
normally slept with the lights on, or, that on that night he did not
notice that
they were on. The complainant testified that the lights
were on when they went to sleep. Her mother testified that the lights
are
always left on. But when the complainant was raped the lights had
seemingly been switched off. The complainant thought that the
appellant must have switched off the lights, although she did not see
him switch the lights off. Her mother however testified that
the
complainant had reported to her that the appellant had switched off
the lights. The complainant could not remember whether
at the time he
raped her, he had lit a phone, but she thought he did. Whether the
lights were on could be material to the complainant
having an
adequate opportunity to positively identify who was raping her. This
is significant in the context that the appellant
suggested that there
was another person who was at the complainant’s house that
night, stating that after he had entered
the house after the
complainant’s mother opened for him, there was a knock later on
the window and when he went to investigate
he did not see any person.
Whatever the position was with the lights, the complainant was in no
doubt that it was the appellant
who raped her, and the evidence of
another person knocking on the door, thus appears to be somewhat of a
red herring.
[11]
In argument it was submitted that the evidence of the complainant,
who admittedly was a single witness whose evidence had to
be
approached with caution, was not carefully scrutinised and that there
were ‘contradictions and inconsistencies in her
evidence’
which were not properly considered, and further that it was not
considered whether she might not be falsely implicating
the
appellant. Specifically, it was argued that the complainant was not a
reliable and satisfactory witness as she had testified
that the
appellant was present on 31 December 2018, but that no one was called
to corroborate that version. She can however hardly
be blamed for the
State not calling one of her siblings, particularly where her direct
evidence was that she was present at their
home, and the evidence of
her mother was that she and her siblings had been left there.
[12]
Furthermore, the appellant was critical of the complainant not having
reported the rape of 31 December 2018 to her mother when
she reported
the rape of 1 January 2019. The complainant did however, at a time
uncertain, report the first rape to the State,
resulting in the
allegation in the charge sheet that he had raped her twice. Her focus
at the time of reporting the rape to her
mother was more on stopping
the appellant from raping her, as he had done earlier that morning,
and the history of a prior rape
might have been of secondary
significance in the context of that complaint.
[13]
With reference to the photo album handed in by consent depicting the
floor of the house, it was suggested in the appellant’s
heads
of argument that it did not show any beds, hence that her evidence
that the first rape occurred on the bed was unreliable.
That point
was never pursued in the evidence. Furthermore a cursory perusal of
the photos reveals that the contention that there
was no bed, might
be factually wrong. But it is not for this court to become a witness.
This should have been raised with the complainant
and her mother in
cross examination. The complainant had also clearly testified that
the first rape occurred on a bed and that
there was a room with a bed
on which her mother slept. Her mother also testified that she was
sleeping on a bed where she was joined
by the appellant after he
arrived around 2 am on 1 January 2019. There accordingly was
sufficient corroboration of that fact.
[14]
It was further submitted in the heads of argument that it was highly
improbable that the complainant’s mother or siblings
would not
have heard the appellant raping the complainant on 1 January 2019 as
they were in the same area. The complainant’s
mother, on her
own version however, was well inebriated, and the other children,
keeping in mind that the complainant was the oldest
of the children
and they are younger, would not necessarily have woken up.
[15]
It is so that the doctor was not called to explain what was meant by
‘a sexual assault’ and whether the tears found
were fresh
or healed. The J88 did however refer to the tear to the hymen at the
7 o’clock position as being a ‘fresh’
tear, that
being what is printed on the pro forma document. Subject to my
remarks earlier that the State should not lightly dispense
with
medical experts to explain what they had found, the recordal that
there was a fresh tear stands. Furthermore, in the doctor’s
expert opinion, keeping in mind that the complainant was only 11
years old at the time, the cause thereof was likely to be from
a
sexual assault. It is not as though it was suggested that she could
have sustained the tear to the hymen from some other cause.
The
findings recorded in the J88 do have probative value, to be assessed
in the light of the totality of all the evidence
[16]
Most significantly in my view, the evidence of the complainant and
her mother was consistent in every material respect as it
concerns
the second rape. Although the complainant is a single witness in
regard to the first rape, and it is unclear as to when
that rape was
reported, there is no reason to conclude that the complainant’s
evidence should not be accepted also in respect
of the first rape.
The appellant has been convicted of one count of rape. That is
clearly established in respect of the second
rape. The first rape has
significance mainly in regard to the sentence imposed, that is that
the complainant had been raped twice.
It has not been shown that the
learned magistrate erred in concluding that the appellant had raped
the complainant on the two occasions
alleged. The appeal against
conviction must therefore be dismissed.
[17]
As regards
the sentence, the offence is a serious one involving the rape of a
girl of tender age. It undoubtedly calls for a lengthy
period of
imprisonment. The appellant was 38 years old and had no previous
clashes with the law, being a first offender. There
was no extraneous
violence, or threat, and no physical injury other than that inherent
in the offence. That is similar to the position
in
S
v Vilakazi.
[1]
Whilst there can be no doubt as to the seriousness of the offence,
courts are enjoined nevertheless to give due recognition to
the
varying differences in degree of seriousness that rape may take.
[2]
Furthermore the minimum sentence legislation does not provide for
cases falling between rapes attracting a sentence of life
imprisonment
and those attracting a sentence of ten years only.
[18]
The two
successive rapes within a 24-hour period makes this matter a serious
one. But it is also one where the general principles
of sentencing,
which courts are still required to apply, of themselves can
constitute substantial and compelling circumstances
permitting a
deviation from the prescribed sentence of life imprisonment. In my
view the trial court’s failure to give effect
to these
aforesaid considerations justify interfering with the sentence. The
sentence of life imprisonment is to that extent vitiated
by an
irregularity and is also inappropriate.
[3]
[19]
In my view an appropriate sentence would be one of twenty five years’
imprisonment.
[20]
Accordingly:
(a)
The appeal against conviction is dismissed; and
(b)
The appeal against sentence is upheld, the sentence of life
imprisonment is set aside and is substituted
with a sentence of
twenty five years’ imprisonment antedated to 31 March 2021.
________________________
KOEN
J
APPEARANCES
For
the appellant:
Ms
Anastasiou-Krause
(The
heads of argument having been prepared by Ms A Hulley)
Instructed
by:
PMB
Justice Centre
Pietermaritzburg
For
the respondent:
Mr
E S Magwaza
Director
of Public Prosecutions
Pietermaritzburg
[1]
S v
Vilikazi
2009 (1) SACR 552
(SCA) 55 to 57.
[2]
Rammoko
v Director of Public Prosecution
2003 (1) SACR 200 (SCA).
[3]
Cf
S v
Ivanisevic and another
1967 (4) SA 570
(A) at 575.