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[2022] ZAECGHC 9
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S v Blom (61/2021) [2022] ZAECGHC 9 (18 February 2022)
NOT
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION,
GRAHAMSTOWN)
Case
no:61/2021
Date heard: 16 February 2022
Date delivered: 18 February 2022
In the matter between
The State
and
Thembinkosi
Blom
Accused
JUDGMENT
GOVINDJEE, J
Background and evidence
[1]
The
accused was charged with raping TN M… (‘the
complainant’) on 14 December 2020 at his home in Scenery Park,
East London. He pleaded not guilty.
[2]
A
report
by an authorised medical
practitioner, completed following a medico-legal examination on 15
December 2020 (‘J88 report’),
was accepted into evidence
by agreement, coupled with an affidavit by the examining medical
practitioner, Dr YJ Mnyanda, in terms
of s 212(4) of the Criminal
Procedure Act, 1977
[1]
(‘the Act’).
[3]
That report confirms that the
complainant suffered
from pain, redness,
and fresh tears on the labia minora and the vaginal opening, as well
as swelling to the hymen. This was suggestive
of forceful vaginal
penetration.
[4]
The complainant testified via an appointed
intermediary and in a separate room containing appropriate
closed-circuit television
facilities. This followed an unopposed
application to permit this method of testimony given the age of the
complainant and the
possibility of undue mental stress or suffering
caused by testimony in open court.
[2]
That application was supported by the submission, by agreement, of a
confidential psychological report following examination of
the
complainant’s mental state and was based on the report’s
recommendations.
[5]
The clinical psychologist who had
interviewed the complainant had concluded that she would be able to
provide an account of her
experience despite her youthfulness and
distress, and that she understood what it meant to tell the truth and
the consequences
of telling lies. The court spent some time
establishing if that was indeed the case and, having satisfied
itself, admonished the
witness in terms of s 164 of the Act.
[6]
She testified that she and her friend
Simakuhle (‘Nana’) had visited the accused’s home.
He was known to her as
‘Tshawe’ but she confirmed knowing
his actual first name. He had initially asked them to lower their
trousers a bit,
and subsequently asked them to do so completely. The
complainant had not wanted to do so and the accused then removed her
trousers
and panty. The accused placed her on his bed, naked at least
from the waist down, and inserted his penis into her vagina. She was
lying on her back on his bed and he was on top of her, without his
trousers, which he had removed after taking off her clothes.
The
complainant could see the accused’s penis at some point during
the act, but then covered her eyes. She had cried because
of the pain
she experienced in her vagina. Nana was on the sofa during this time.
The two children went to Nana’s home, and
Nana reported what
had happened to her mother.
[7]
The complainant was able to clearly
identify the home of the accused and the bed where she alleged she
had been raped on photographs
submitted to court and accepted by the
defence. This was the same house that the complainant had pointed out
to the police.
[8]
When his version was put to the
complainant, the accused had no difficulty with accepting that the
two children had visited his
home on 14 December 2020. The accused
would deny undressing the complainant and raping her. When this was
put to the complainant,
she remained unshaken and was vehement in her
version that he had been the perpetrator. She testified that her
mother had told
her to come to court to narrate what had happened for
the matter to be closed, but the accused was lying if he suggested
that she
was not speaking the truth or that her mother had requested
her to lie to court. A report had been made to Nana’s
grandmother,
who had told the complainant’s grandmother what
she had heard, but the complainant could not recall the details of
that report.
[9]
Mrs Ntengo, Nana’s grandmother,
testified that the accused was her husband’s nephew. The
complainant and Nana had entered
her home. The complainant had been
shivering and the witness had heard that ‘Tshawe’ had
undressed the complainant
in his bedroom. The complainant had covered
her mouth while her friend narrated the story, also saying that this
had happened to
Nana herself. Mrs Ntengo had proceeded to the
accused’s home and, in his presence, informed his mother, who
had subsequently
passed away, what she had heard. The accused and his
mother had both then cried and the witness had left. The incident had
affected
their family because of the familial relationship between
the accused and her husband’s family. Prior to the incident,
her
relationship with the accused and his family had been very good.
The accused was the only ‘Tshawe’ known to the children
and to her, living in their neighbourhood. He would be seen in the
company of the children, loving them and buying sweets for them.
[10]
The complainant’s mother testified
that the complainant had reported to her on the day in question. When
engaged, she had
indicated that the accused had undressed her and
placed her and Nana on the bed after they had visited him to ask him
for money
for sweets. The mother had been emotional at the time and
had not wanted to hear about everything that had occurred. The
complainant
had been taken for medical examination at the Thuthuzela
Centre at Cecilia Makiwane Hospital and a case had been opened with
the
police. She had accompanied her child with forensic personnel
when the child had subsequently pointed out the accused’s home
and pointed towards the accused’s bed as the site where she had
been undressed and placed. The child had initially been reluctant
to
enter that home. The visit and pointing out were confirmed by the
photograph album accepted into evidence.
[11]
The
accused
testified that he was 43 years of age and unmarried. The complainant
was a friend whom he loved dearly. He had been happy
to see her and
Nana when they visited him. This had been on or about 3 or 4 December
2020, and not on 14 December 2020 as alleged.
His attention was drawn
to a song sung by a neighbour. The words of the song referred to
natural sexual intercourse between males
and females. It had been
some time since he had experienced sexual intercourse with a female.
He understood the song to be referring
to him. Was it being suggested
that he had a problem because he was not involved in a love
relationship? This led to what he described
as ‘evil thoughts’.
He would show that he could have sexual intercourse by using his
penis with these children. When
these thoughts arose, he picked up
the complainant and threw her into the air and caught her. He was
satisfied just by placing
her on his bed. His senses returned to
normal. These were young children, and they did not deserve what he
was going to do to them.
[12]
When the thoughts dissipated, he picked the
children up and took them to Nana’s home. Nana’s
grandfather was present.
He told him what had happened and asked for
prayers to combat the evil spirits that had wanted him to have sexual
intercourse with
children. The grandfather was very pleased and they
prayed together. After the prayer, Mrs Ntengo had arrived and told
him that
he needed help. She had then taken the complainant home and
the accused had left. He had been arrested the following week on 16
December 2020 and charged with rape. He felt pained by the accusation
which he denied.
[13]
The accused explained during
cross-examination that he would play with the children and support
them in their play activities. This
would usually be in the presence
of Nana’s grandfather. On this occasion the grandfather had not
accompanied the children
and his mind had been distracted by the song
he had heard. He had not seen the singer but heard a female voice
from near his gate.
His name was not specifically mentioned in the
song, but he assumed it was directed towards him because he did not
have a lover.
It was at this point that he wanted to prove his
manhood and do what he described as a ‘dirty thing’ by
having sexual
intercourse with the children. In the end he had not
done so. He accepted that it would become known if he had forced them
into
sex, given the respective sizes of their sexual organs. The
problem had been caused by the song and the accused had been mistaken
in not identifying the singer instead of focusing on the children. He
had wanted to prove that he could use his testicles and had
walked up
and down his house telling himself that his thoughts were wrong. He
had never reached the point of sexual arousal. He
then denied his
earlier version that he had placed the complainant on his bed. When
pressed, the accused admitted that he had taken
the child to the
bedroom even though this was wrong. His intention at that moment was
to have sexual intercourse with the child.
He had never undressed the
complainant or penetrated her and was amazed by the allegation.
[14]
When confronted with the J88 report, the
accused argued that the child may have been penetrated somewhere
else. The complainant
was lying by accusing him and the suggested
date was incorrect. He had reported the matter only because of his
evil thoughts and
felt overpowered by subsequent events. He had not
realised that he should have put more of his version to the various
state witnesses,
even though his counsel had given him the
opportunity to do so. Mrs Ntengo had been lying about seeing him
crying with his mother
and he could not fathom her intentions by
testifying against him. The complainant had also been lying and could
not possibly have
had the vaginal tears and injuries depicted in the
J88. The doctor did not know his or her work. He had stopped himself
from forcing
himself onto the complainant and could not understand
why he was being implicated by his friend, the six-year-old
complainant.
Applicable law and analysis
[15]
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.
[3]
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.
[4]
A trial court must fully appreciate the inherent dangers in accepting
such evidence.
[16]
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. S 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.
[5]
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.
[6]
The exercise of caution cannot be allowed to displace the exercise of
common sense.
[7]
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.
[8]
[17]
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.
[9]
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.
[10]
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.
[11]
[18]
It is necessary to adopt a holistic
approach to analysing the available evidence in this matter.
[12]
In
S v Chabalala
,
[13]
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.’
[19]
There is overwhelming evidence supporting
the state’s charge in this instance. The testimony of the
complainant, coupled with
the uncontested J88 report, confirms that
the complainant was sexually penetrated on the day that her mother
and friend’s
grandmother heard about the incident. This was on
14 December 2020 and her medical examination the following day
reflected fresh
tears and injuries. The accused admitted that the
complainant and Nana had visited him during December 2020 but took
issue with
the date of this visit. His evidence confirms that he had
experienced sexual desires in respect of the complainant, triggered
by
a suggestive song that he heard from outside. On his own version,
he grappled with himself in trying to move away from those thoughts.
On that version he managed to do so by playing with the child by
throwing her into the air and catching her. According to the
complainant, matters went much further. She was undressed, he
undressed himself, placed her on her back on his bed and raped her
painfully.
[20]
Despite her tender age of 6, the
complainant proved to be a remarkably composed, honest, confident and
reliable witness. She could
not remember details of the disclosure to
Nana’s grandmother after the incident but she was steadfast in
her identification
of the accused as her rapist and provided
independent recollection of the details of the events of that day. I
am satisfied that
this was not because of suggestion or a fanciful
imagination. The medical report confirms her testimony that she had
been sexually
penetrated.
[21]
By contrast, the accused was a poor
witness, contradicting himself in respect of whether he placed the
child on the bed and failing
to put much of his version of events to
the state witnesses, despite having the opportunity to do so. The
impression created was
that he had conceived of a version,
approximating the truth in some respects but stopping short of
acknowledging the full extent
of his conduct, as the case proceeded.
There is, for example, no reason why he would not have put his
version of returning the
children to Mrs Ntengo’s home if this
is really what had happened. Mrs Ntengo was a forthright witness who
had been on very
good terms with the accused and made no attempt to
testify in a way that was deliberately designed to implicate him. I
accept her
version that the children had not told her the full extent
of what had occurred as a first report,
[14]
that she had visited the accused and his mother on the day of the
incident and that they had wept in response.
[22]
The accused’s denial that he was the
perpetrator is difficult to believe given the totality of evidence,
including his own
admission of sexual intent. He had been alone with
the children in his home, and at some point in his bedroom with them.
He had
been triggered by the thought of sexual activity with them,
having not experienced sexual intercourse for some time. His bare
denial,
and suggestions that he had been alone with the children more
than a week earlier and that the child must have been raped somewhere
else during that time is not reasonably possibly true. Similarly, his
suggestion that the medical report was contrived is unquestionably
erroneous.
[23]
The complainant knew the accused very well,
including his clan name and first name and had identified him to her
mother without
difficulty. She had also easily identified the
accused’s house and bed as the scene of her violation. The
complainant’s
evidence has been scrutinised with care,
bordering on suspicion, and found to be that of a credible witness
testifying truthfully.
The totality of evidence, including the
medical evidence, testimony of the complainant and that of the other
state witnesses, coupled
with 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 accused’s denial
is simply not reasonably possibly true given the available evidence.
Notwithstanding
consideration of the dangers associated with a single
child witness, particularly one as young as six years of age
testifying about
events from more than a year ago, I am satisfied
that the complainant’s identification of the accused may be
safely relied
upon, for the reasons described. The state has proved
beyond reasonable doubt that the accused is guilty of rape as
charged.
Order
1.
The accused is found guilty of the crime of
rape as charged.
_______________
A.
GOVINDJEE
JUDGE OF
THE HIGH COURT
Appearances:
Counsel for the State: Adv
S. Mgenge
Director of Public Prosecutions
Makhanda
046 602 3000
Attorney for the
Accused: Mr H. Charles
Legal Aid South Africa
Makhanda
046 622 9350
[1]
Act 51 of 1977.
[2]
S 158(2)(
a
)
and ss 170A(1) and (3) of the Act.
[3]
1951 (3) SA 158
(A) at 162E-163F. See
S
v Artman and Another
1968 (3) SA 339
at 340H.
[4]
Ibid
.
[5]
S v Weber
1971
(3) SA 754
(A) at 758.
[6]
R v Bellingham
1955
(2) SA 566
(A) at 569, quoting
R v
Nhlapo
(AD 10 November 1952).
[7]
S v Sauls and Others
[1981]
4 All SA 182
(A) at 187.
[8]
R v Abdoorham
1954
(3) SA 163
(N) at 165, as quoted in
S v
Sauls
supra
.
[9]
S v Van Aswegen
[2001]
JOL 8267
(SCA);
S v Van der Meyden
1999 (2) SA 79 (W).
[10]
S v Shackell
2001
(2) SACR (SCA) 194
g-i
.
[11]
S v Guess
[1976]
4 All SA 534
(A) at 537-538;
S v Singh
1975 (1) SA 227
(N) at 228.
[12]
Van Aswegen supra
.
[13]
2003 (1) SACR 134
(SCA) para 15. Also see
S
v Dlamini
2019 (1) SACR 467
(KZP) para
25.
[14]
S 59 of the Criminal Law (Sexual Offences and Related Matters)
Amendment Act, 2007 (Act 32 of 2007) 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.