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[2022] ZAECMKHC 30
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Ntentile v S (C.A &R 240/2021) [2022] ZAECMKHC 30 (31 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
Case
No.: C.A &R 240/2021
In
the matter between:
GCINIKHAYA
NTENTILE
Appellant
and
THE
STATE
Respondent
JUDGMENT
RAWJEE
AJ:
[1]
The appellant, a 38 year old male, was convicted of the
rape of a 12 year old child (first charge) and of sexual assault of a
28
year old female (second charge) and he was sentenced to life
imprisonment on the charge of rape and to four years imprisonment for
the sexual assault in the Regional Court, Port Elizabeth.
[2]
This is an appeal against the conviction and sentence to
life imprisonment on the first charge of rape of a 12 year old child.
[3]
The State relied on the evidence
of four witnesses - the complainant, who at the time of the trial was
15 years old and a single
witness to material elements of the
offence; the complainant’s aunt; the complainant’s mother
and the complainant’s
friend, Ms S.
[4]
At the commencement of the trial
the accused admitted the J88 report completed by Dr Moodley, the
photo album taken of the crime
scene, the DNA sample collection kit
and that the appellant was the father of the child born to the
complainant, who herself was
a child of 12 years of age. A poignant
fact that emanates from this case is that if the complainant did not
fall pregnant at the
age of twelve years old, the rapes she
experienced at such a tender age would have gone undetected and
unreported.
[5]
In July 2016, the 12 year old
complainant, a Grade 6 learner, who was attending primary school, was
playing outside with her friends.
The appellant called her to buy
cooldrink for him. She went to deliver the cooldrink to his home
together with her friend, Ms S.
She left the cooldrink in the lounge
and was about to leave when the appellant asked her if she left the
cooldrink in the lounge
at her home. She then took the cooldrink to
the kitchen. As she was coming back from the kitchen the appellant
caught her and pulled
her into the room and instructed her friend to
leave. He then took off her shorts and panty and raped her. He did
not use a condom
while raping her. He threatened that he would kill
her father if she told anyone about the rape. The appellant and the
complainant’s
father knew each other and drank together. She
saw Ms S when she left the house after the rape but said nothing to
her. Ms S testified
that she saw that the complainant was walking
differently. The complainant did not want to talk. They went to sit
with their friends
again. In October 2016, the complainant was busy
hanging clothes when he called her to go and buy him airtime. She
went to buy
airtime and picked Ms S up again before going to the
appellant’s house to give him the airtime. She went in and
found the
appellant topless. The appellant then pulled her by her
hand towards the room and Ms S tried to pull her away from the
appellant
this time, to no avail. Ms S left and he ordered the
complainant to go to the bedroom where he raped her. While he was
raping her
there was a knock on the door. The appellant went to open
the door and the complainant jumped out through a window. She feared
it was her mother looking for her and she was fearful the appellant
would harm her father if her mother found out she was being
raped by
the appellant.
[6]
In December 2016, the complainant
did not get her period. This was noticed by her mother. Her mother
had a pregnancy test done which
confirmed that the complainant was
pregnant. She was taken to the Mary Stopes Clinic to have an abortion
but could not follow through
with it as she was past the three-month
gestation period. She refused to tell her mother how she fell
pregnant. When they arrived
back home from the Clinic, the
complainant’s mother called the complainant’s paternal
aunt and asked her to come home.
Her aunt came to the house soon
after the telephone call and the complainant’s parents told her
that the complainant was
pregnant and that she was refusing to name
the father of the child. After her paternal aunt threatened to beat
her she identified
the appellant as the father and said she was
afraid to mention his name and report the rapes as he threatened to
kill her father
if she did. Her reports of the rapes were
corroborated by the evidence of her mother, her paternal aunt and her
friend, Ms S. The
evidence that the appellant was a drinking friend
of the complainant’s father; that he had seen her in school
uniform and
that he had a daughter the same age as the complainant
was not contested by the appellant. The complainant was then taken to
the
police station and then to the Thuthuzela Care Centre situated at
Dora Nginza Hospital for a medical examination. The complainant’s
medical records (“J88”) recorded her age as a minor; that
her last menstrual cycle was in August 2016; and that she
was 20
weeks pregnant.
[7]
The appellant’s
version is that the intercourse with the complainant was consensual
and that he did not know that the complainant
was only 12 years old.
I find this version of the appellant to be false
considering the evidence as a whole, in particular the evidence that
the complainant
had seen her in her school uniform.
[8]
Mr Charles, appearing for the
appellant, correctly conceded that he could not stand by his
submission that the appellant did not
know the age of the complainant
after having considered the evidence as a whole in particular that:
the appellant saw the complainant
in her school uniform and the fact
that he was a friend of her father’s. Moreover, the appellant
was a 38 year old male with
a daughter the same age as the
complainant.
Mr Kgatwe, correctly
submitted that it was common cause that the appellant saw the
complainant in her school uniform; that the appellant
was a friend of
the complainant’s father and the father of the child born to
her.
[9]
The trial court furthermore had
specific regard to the delay in reporting the rape and found that it
was not unreasonable. In the
matter of
S
v Connick and Another
2007
(2) SACR 115
(SCA) where the rape happened 19 years before charges
were laid refers. The complainant’s memory was triggered when
she met
Connick at his sister’s home 19 years later. After
meeting him there she told her husband about the rape and reported it
to the SAPS. The trial court found her explanation for the delay to
be reasonable and furthermore relied on the rape of the complainant
being corroborated by the evidence of other witnesses. While there
was a delay of 19 years in reporting the rape in
Connick
supra
, the rape
in this matter was reported a few months later. Furthermore, the
evidence of the complainant in this matter is similarly
corroborated
by other evidence in this matter in particular the pregnancy of the
complainant and the admission by the appellant
that he is the father
of the complainant’s child.
[10]
I am not convinced that the
trial court’s findings on credibility and on the facts are
wrong and the conviction for the rape
must stand.
[11]
I now turn to deal with the
appeal against the sentence of life imprisonment.
[12]
This court, as a court of appeal, can only
interfere with the sentence imposed by the court
a
quo
if a demonstrable misdirection on
the part of the learned magistrate is shown or where the sentence
imposed is vitiated by irregularity
or is disturbingly inappropriate
(See
S
v Malgas
2001 (1) SACR 469
(SCA)
at para 12
). Mr Charles did not
point to any demonstrable misdirection on the part of the learned
magistrate.
[13]
Mr Kgatwe, representing the
State, submitted that the sentence of life imprisonment is not
shockingly inappropriate having regard
to the following facts: the
complainant was 12 years old at the time of the incident; the
appellant raped the complainant more
than once; the appellant
impregnated the complainant and admitted to being the father of the
child; and the appellant showed no
remorse, maintaining that the
intercourse was consensual and therefore refusing to acknowledge and
take responsibility for his
wrong doing. Having considered the
factors of the
Zinn
triad,
the
trial court correctly found that there were no substantial and
compelling circumstances to deviate from the sentence of life
imprisonment.
[14]
I would accordingly make the following Order:
14.1
The appeal against the conviction on the count of rape and against
the sentence is dismissed.
A
RAWJEE
ACTING
JUDGE OF THE HIGH COURT
NORMAN
J:
I
agree. It is so ordered.
T
V NORMAN
JUDGE
OF THE HIGH COURT
Appearances:
For
Appellant:
Adv Charles instructed by Legal Aid Centre, Grahamstown
For
Respondent: Adv Kgatwe instructed by
National Director of Public
Prosecutions, Grahamstown
Date
Heard: 11
May 2022
Date
Delivered: 31 May 2022