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[2022] ZANCHC 4
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Nyati v S (CA&R 32/2020) [2022] ZANCHC 4 (24 January 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
CASE
NO.: CA&R 32/2020
Date
heard: 22-02-2021
Date
delivered: 24-01-2022
Reportable:
Yes/No
Circulate
to Judges: Yes/No
Circulate
to Magistrates: Yes/N
In
the matter between:
Themba
Nyati
Appellant
and
The
State
Respondent
CORAM:
WILLIAMS J et EILLERT AJ
JUDGMENT
WILLIAMS
J:
1.
The appellant, Mr Themba Nyati, was convicted on a
charge of the contravention of s 3 of Act 32 of 2007 (rape, vaginal
penetration),
in the Regional Court, Kimberley and was sentenced to
17 years imprisonment. He now appeals against his conviction.
2.
It was common cause at the trial that the
appellant had on the evening of 2 October 2015 come across Mrs TL on
her way home with
her 4 year old granddaughter (the complainant), her
mentally disabled 15 year old child, and her inebriated adult son
Mannetjie.
The appellant who was well known to Mrs TL, being friends
with her children and often helping with yard work, offered to assist
with the complainant. He carried the complainant on his shoulders to
the house of Mrs TL.
3.
While Mrs TL was struggling to open the front door
which had jammed, the appellant walked around the house towards the
back door
with the complainant. In the meantime Mrs TL had her hands
full with her drunken son who had fallen down on the veranda. When
she
eventually managed to open the front door, the appellant returned
with the complainant from the back of the house. The appellant
helped
to get Mrs TL’s son into the house and left after about 15
minutes.
4.
A while later Mrs TL, with the complainant in tow,
confronted the appellant at his parental home and accused him of
penetrating
the complainant’s anus (sterre) with his hands. The
appellant denied the allegation. The above is the extent of the
common
cause facts.
5.
Mrs TL testified that when the appellant returned
from the back of the house he was busy pulling up his pants zipper
and told Mrs
TL that he had gone to urinate at the back of the house.
6.
Her evidence was further that after the appellant had left her home
that particular
evening she had noticed that the complainant appeared
to be very angry. When she enquired as to the reason for her being
angry
the complainant responded by saying that the appellant had put
his hands deep into her anus. Mrs TL had then pulled down her panty
slightly to check it for wetness. She explained that she was looking
for signs of semen. She then felt the complainant’s
vaginal
area. She demonstrated in court how she had done that by rubbing the
palm of one hand over the back of the other hand.
She stated during
cross-examination that she did not penetrate the complainant’s
genitalia with her fingers since that was
the doctor’s work.
She testified that she only felt in the area of the vagina but did
not detect any wetness or notice any
injuries.
7.
It also transpired during cross-examination that
Mrs TL had fallen in front of the appellant’s house while she
had the complainant
on her back. In the process she had fallen off
the back of Mrs TL. Mrs TL denied that the complainant had been
injured during the
fall.
8.
The complainant was examined by a medical
practioner, Dr Egnasi, during the early hours of 3 October 2015. She
was very agitated
and unco-operative and did not want the doctor to
touch her genitalia. After several hours of trying to calm her down
in order
for her to be examined, it was deemed best that the
examination be done in theatre under anaesthesia. The doctor
testified that
on examination he noticed a 5mm tear on the right
labia and a 2mm tear on the left labia, both superficial and not
bleeding. On
the hymen he noted tears at the 2 o’clock and 10
o’clock position which were superficial and not bleeding. These
tears
were all fresh. There was no evidence of anal penetration. His
conclusion was sexual assault with the tears as noted on the J88
medical form.
9.
During cross-examination the doctor considered it
improbable that the complainant had incurred the injuries to her
genitalia as
a result of a fall unless she had fallen, with her legs
open, directly onto something which had impaled the genitalia. He
conceded
however that it was possible that the injuries could have
been caused by an examination by a person with no medical background.
10.
Ms L Raymond, a captain in the South African
Police Service, who works as a forensic social worker within the
Family Violence, Child
Protection and Sexual Offences Unit also
testified in the State case. She had been tasked with obtaining a
statement from the complainant.
11.
Ms Raymond’s evidence was that she had two
sessions with the complainant. On the first occasion which was on 21
October 2015
the complainant was clingy and did not want to
participate or let go of her mother. On the following occasion on 16
November 2015
she was more at ease and participated during the
process. According to Ms Raymond, the complainant could not
distinguish between
colours but she could distinguish between the
truth and a lie and reality and fantasy. She also gave the names she
used for boys’
and girls’ private parts. She informed Ms
Raymond that the appellant touched her by her “pupenasi”
with one finger
and made movements with his finger. The incident
occurred, according to the complainant, at the back of the house
while her grandmother
was inside. Ms Raymond testified that with the
aid of gingerbread figures, the complainant identified her pupenasi
to be her vagina.
12.
The complainant testified through an intermediary.
At the time she was 6 years old. The crux of her evidence was that
the appellant
had carried her on his shoulders to her grandmother’s
house. When they got there he walked with her to the back of the
house.
He laid her face down on a chair and put his hand on her
buttocks. When asked to demonstrate with the male and female dolls
available
to child witnesses, she repeatedly demonstrated by placing
a finger of the male doll in the anus of the female doll. The
complainant
also denied that her grandmother had examined her genital
area after the incident.
13.
The appellant’s version was simply that he
had assisted Mrs TL to get home by carrying the complainant on his
shoulders. That
when they got to Mrs TL’s house he noticed a
light shining from inside at the back of the house and proceeded with
the complainant
towards the back door where he normally entered when
visiting with Mannetjie. Before he could reach the backdoor he heard
Mannetjie
fall and went to the front door to assist Mrs TL with
Mannetjie.
14.
He denied that he had in any way sexually
assaulted the complainant or that he had been pulling up his zipper
when he approached
Mrs TL as testified by her.
15.
The trial court rejected the version of the
appellant as improbable. The trial court found in essence that
certain discrepancies
between the evidence of the complainant and Mrs
TL could be expected, regard being had to the age and level of
maturity of the
complainant. That the complainant’s behaviour
immediately after the incident and her report to her grandmother
showed consistency.
The trial court also found that given the fact
that the complainant was lying face down when fingered from behind,
she could have
easily been confused in differentiating between her
anus and her vagina. The fact that the appellant was the last person
to be
with the complainant before the report and the fact that the
injuries to the complainant’s genitalia were still fresh were
found to be further corroboration for the complainant’s version
that it was the appellant who had sexually assaulted her.
16.
The only real issue in dispute on appeal was
whether the State had proven beyond reasonable doubt that the
appellant inserted his
finger into the vagina of the complainant.
17.
Mr Steynberg who appeared for the appellant argued
that the trial court had erred in not properly applying the
cautionary rule relating
to the evidence of young children. That the
complainant’s evidence and the first report to Mrs TL negate
the allegation in
the charge sheet that the complainant was
penetrated vaginally. Further that the complainant herself testified
during cross-examination
that the appellant had never taken her from
his neck until he put her down to assist Mannetjie who had fallen in
front of the house.
That this evidence of the complainant contradicts
and is incompatible with her earlier testimony that the appellant
laid her down
on a chair at the back of the house. Further that it
cannot be discounted that Mrs TL had inflicted the injuries to the
complainant’s
vagina when she examined the complainant after
the report. Therefore the argument is that if all the evidence was
evaluated in
totality, the trial court would not have come to the
conclusion that the appellant had inserted his finger into the vagina
of the
complainant.
18.
The contention is furthermore that the charge
appears to be contrived to conform with the medical evidence and not
the evidence
of the complainant and that it was not open to the trial
court to seek justification for this contradiction.
19.
In my view the above argument could have been
compelling had the complainant been an adult or even an older child
who would be presumed
to have a better understanding or experience of
the subject matter. I am satisfied that the trial court was alive to
the cautionary
rule applicable to the evidence of young children. The
judgment of the trial court is indicative thereof wherein it is
stated
inter alia
that:
“
Evidence (
of
child complainants
) must be considered
carefully”
and “
Relevant
considerations include the age and capacity of the child.”
(own
insertion)
20.
The trial court was also aware of the fact that
contradictions in the evidence of a young complainant does not
necessarily mean
that the complainant is unreliable. In her judgment
the trial court refers to the matter of
S
v Vilakazi
2016 (2) SACR 365
(SCA) in
this regard. The trial court’s judgment contains the wrong
reference to this matter but the gist of the reasoning
is found in
paragraph 18 of
Vilakazi
which states the following:
“
[18]
The fact that there were contradictions in the evidence of the
complainant does not necessarily mean that her evidence
is
unreliable. In Woji v Sanlam Insurance Co Ltd
1981 (1) SA
1020
(A) Diemont JA Dambuza JA (Shongwe JA, Theron JA and Mathopo JA
concurring) provided a helpful guide to approaching the evidence
of
young children. The guide highlights, as the focal point, the
trustworthiness of the evidence. At 1028A – E of the judgment
the learned judge said:
‘
The
question which the trial Court must ask itself is whether the young
witness' evidence is trustworthy. Trustworthiness, as is
pointed out
by Wigmore in his Code of Evidence para 568 at 128, depends
on factors such as the child's power of
observation, his power
of recollection, and his power of narration on the specific matter to
be testified. In each instance the
capacity of the particular child
is to be investigated. His capacity of observation will depend on
whether he appears ''intelligent
enough to observe. Whether he has
the capacity of recollection will depend again on whether he has
sufficient years of discretion
''to remember what occurs'' while
the capacity of narration or communication raises the question
whether the child has ''the
capacity to understand the questions put,
and to frame and express intelligent answers'' (Wigmore
on Evidence vol II
para 506 at 596). There are other
factors as well which the Court will take into account in assessing
the child's trustworthiness
in the witness-box. Does he appear to
be
honest
— is there a consciousness of the duty to speak the truth? Then
also
“
the
nature of the evidence given by the child may be of a simple kind and
may relate to a subject-matter clearly within the field
of its
understanding and interest and the circumstances may be such as
practically to exclude the risks arising from suggestibility''
(per SCHREINER
JA in R v Manda (supra)). At the same time the danger of
believing a child where evidence stands alone
must not be
underrated.'
21.
On the topic of discrepancies in the complainant’s evidence,
one of the main inconsistencies
in the complainant’s evidence
(other than that between her evidence and the charge sheet) which was
alluded to during argument,
is her “
confirmation”
during cross-examination that the appellant had never taken her
off his neck after entering the yard of Mrs TL until he assisted
Mrs
TL to pick Mannetjie up from the porch where he had fallen. Based on
this concession, the argument is that the complainant’s
allegation of anal penetration by the appellant cannot be true.
22.
This “
concession”
by the complainant needs some scrutiny. She
testified over the course of four days between 14 July 2017 and 24
October 2017. I glean
from the record that these were not full court
days since the complainant had difficulty concentrating for long
periods and would
appear drowsy during her testimony, resulting in
her eventually responding to questions during examination-in-chief
and later during
cross-examination with answers such as “
I
do not know”
or “
I
do not remember”.
The trial court
correctly, taking into account the age of the complainant, adjourned
the proceedings on these occasions, at times
at the behest of the
appellant’s legal representative, since no meaningful evidence
was forthcoming.
23.
On three occasions prior to the ‘
concession”
under
discussion, the legal representative had put the version of the
appellant to the complainant as being that he had not taken
her off
his shoulders on the premises of Mrs TL until he had eventually put
her down on the porch to assist Mannetjie. On the first
occasion the
complainant denied this version of the appellant. On the second and
third occasions that this question was put to
her, her response was
that she could not remember. When the version was put to her on the
final day of cross-examination she agreed
that the appellant had
never taken her off his shoulders until he put her down on the porch.
More importantly, in my view, she
even agreed to an incorrect and
misleading question by the appellant’s legal representative
that, in terms of her evidence,
besides putting his finger on her
back (“
by u rug”
), which was never the evidence of
the complainant, the appellant did nothing further to her.
24.
In these circumstances and in the context as
described above, I am of the view that very little, if any, reliance
can properly be
placed on the “
concession”
made by the complainant. Mrs TL in any
event testified during cross-examination that the complainant was no
longer on the appellant’s
shoulders when he came from the back
of the house to assist with Mannetjie.
25.
Another issue which needs some discussion is the
argument by appellant’s legal representative that it cannot be
ruled out
that the injuries to the complainant’s genitalia were
caused by the examination performed by Mrs TL. This argument is based
on the concession by the doctor that the injuries of the complainant
could possibly have been caused by an examination of the genitalia
performed by a layperson. The fallacy of this argument lies in the
fact that Dr Egnasi was never informed of the extent of the
examination as testified to and demonstrated by Mrs TL. The result is
that the concession was made in a vacuum and for the appellant
to be
allowed to use this baseless concession to thwart the State’s
case would be untenable.
26.
Whilst it is so that the complainant’s
report to Mrs TL and her evidence in court refer to penetration of
the anus and not
the vagina as contained in the charge sheet and that
the evidence of young children should be treated with caution, one
must be
mindful not to throw all common sense and reason out of the
window by taking an over-cautious approach to such evidence.
27.
The main consideration is the reliability or
trustworthiness of the complainant’s evidence. In this regard
safeguards for
her evidence can be found in the following factors:
(i) the appellant was the last person with her before the report was
made and
there is not even a suggestion that the injuries to the
complainant’s genitalia were present before her interaction
with
the appellant; (ii) according to the medical evidence the tears
to the complainant’s genitalia were fresh; (iii) there is
no
apparent reason why either the complainant or Mrs TL would falsely
implicate the appellant, had that been the case one would
have
expected their evidence to have been tailored to accord with the
charge sheet; (iv) there is no evidence that the complainant’s
report to Mrs TL had been induced by either suggestion or
intimidation; and (v) the likelihood of the complainant taking to
flights
of fancy regarding an incident which would normally be
outside of the realm of experience of such a young child is very
slim.
28.
In my view the trial court correctly found on an
evaluation of all the evidence that it was the appellant who had
caused the injuries
to the complainant’s genitalia and that the
State had proved its case in that regard beyond reasonable doubt.
In
the circumstances the following order is made:
The
appeal against conviction is dismissed.
________________________
CC
WILLIAMS
JUDGE
I
concur
_____________________
A
EILLERT
ACTING
JUDGE
For
Appellant:
Mr. H Steynberg
Legal
Aid
For
Respondent: Adv. K M Kgatwe
Office
of the Director of Public Prosecutions