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[2022] ZAECMKHC 51
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Habana v S (92/2021) [2022] ZAECMKHC 51 (16 August 2022)
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION
:
MAKHANDA
CASE
NO.: 92/2021
In
the matter between:
SINDILE
HABANA
Appellant
and
THE
STATE
Respondent
APPEAL
JUDGMENT
GRIFFITHS,
J.:
[1]
The appellant in this matter was convicted of rape as defined in the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act
[1]
by the Regional Court sitting at Somerset East and was sentenced to
life imprisonment. He has appealed against both his conviction
and
sentence.
[2]
He was charged with unlawfully and intentionally committing acts of
sexual penetration
with the complainant on diverse occasions between
February and June, 2016. Despite initially pleading guilty to the
charge, the
appellant, on the advice of his lawyer, changed that to
one of not guilty.
[3]
The state relied in the evidence of three witnesses, these being the
complainant,
one J[....], his mother, and a nursing sister. The
complainant was at the time of the commission of the offences 12
years of age.
He testified that he, and his younger brothers, lived
in a farm in the vicinity of where the appellant lived. The appellant
was
a domestic worker on the farm. During or about February 2016, he
and his younger brothers were visiting the appellant as they
apparently
did on occasion. Although it is unclear on his evidence,
it appears that they did this every so often and at some stages would
sleep over with him. It was common cause that the appellant was at
that time 19 years of age.
[4]
Although it is not clear on the complainant’s evidence, it
seems that on one
of these occasions he was sleeping on the bed with
the appellant when the appellant indicated that they should have sex
with one
another. They apparently undressed each other and kissed
after which the appellant asked him to insert his penis into the
appellant’s
anus. The complainant added that the appellant had
also indicated that he would give the complainant biscuits and some
money for
doing this. They apparently carried out this act without
the use of a condom. Over a period of time, they repeated this
sequence
of events and the appellant would give him biscuits and, at
the end of the month, some money. It also appears from his evidence
that he came to enjoy having intercourse with the appellant which it
seems, on every occasion, involved the complainant inserting
his
penis into the anus of the appellant. The complainant also testified
that, prior to these events, he had not indulged in sexual
intercourse of any kind, but that he was attracted to women, not men.
Ultimately, it was ascertained as confirmed by his mother
and the
nursing sister, that he had contracted HIV. Shortly before the
complainant was tested positive, the appellant also underwent
a test
for HIV but tested negative. The nursing sister however testified
that there was a window period and that he ought to have
come back
three months later for a second test to ascertain whether he was
indeed clear. The appellant did not return for the second
test.
However, it was later ascertained that the appellant indeed suffered
from HIV.
[5]
The appellant on the other hand, whilst agreeing that indeed they had
had sex in the
manner described on several occasions, maintained that
the initial approach had come from the complainant himself. They had
been
sleeping together on the bed, had started kissing each other,
and the complainant had thereafter voluntarily inserted his penis
into the appellant’s anus. The appellant maintained that this
was not fully sexually satisfying for him because the complainant’s
penis was small and not what he was used to. He did concede that he
had supplied the complainant with biscuits, had given him money
and
had allowed him to use his cell phone to watch movies. He also
conceded that they had not used a condom when indulging in sexual
intercourse and that when he had had sex with his partner over the
weekends, he had not used a condom. However, he maintained that
during the period that he and the complainant indulged in sexual
intercourse he had not been aware of his HIV status.
[6]
An aspect of the case which was not pursued at all during the
evidence of the complainant,
or the evidence of the appellant,
related to the fact that the appellant was apparently gay. During the
evidence there was reference
from both witnesses to the fact that the
appellant wore dresses, and women’s panties. The only
reasonable inference from
all this evidence was that he was not only
gay, but that he acted in many respects as though he were a female,
and not a male,
which, it was common cause, he was. In my view, this
was a significant aspect of the evidence which ought to have been
explored
more fully both with the complainant and with the appellant.
[7]
In convicting the appellant, the magistrate, in relying on the case
of
S
v SM
[2]
,
concluded in effect that this case was similar in that, as I
understand the reasoning, the appellant was in a position of
loco
parentis
to the complainant and thus subject to the same reasoning as set out
in that case which involved an extended period of grooming
by a
stepfather of his stepdaughter, ultimately leading to sexual acts and
finally sexual intercourse on a number of occasions.
The court in
SM
’s
case relied on an earlier case
[3]
in which Satchwell J described the concept of grooming within a close
family unit.
[8]
In my view, this case differs substantially from both
SM
’s
case and that of
M
. Those cases clearly involved sexual
grooming over some time within a relatively close family unit. This
was described more fully
by Satchwell J when she said:
“
[36]
However, writings on research into the 'grooming process' assist in
understanding how repeated physical or even sexual contact
between
the accused and one of his stepdaughters could culminate in rape.
South African courts have interpreted the absence of
evidence of
undue influence, threats or promises to persuade the child to allow
physical interaction as mitigating. Our courts
have not always had
the benefit of information on this grooming process and tend to look
for violence in the normal sense of the
word or undue influence on
the part of the perpetrator to persuade victims to 'allow' him to
start touching or fondling them.
[37] It has been
explained that the sex offender tends to rely on befriending a child
and gaining a hold over him or her, thus allowing
the offender to
control the victim. Grooming is difficult to define, but it is
explained as an ongoing process aimed at the child
accepting sexual
activities. 'Grooming is a transient feature that is difficult to
capture and virtually impossible to decide when
it begins and ends.
What is more certain is that grooming is neither new, nor restricted
to online behaviour. It is generally seen
as a cycle of abuse, and
can include for example befriending a potential victim to allow the
child to acquiesce to sexual activity.'
The grooming aspect involves
an aspect of deceptive trust created by the offender and manipulation
of the child by the adult. It
is the fact that one of the parties to
the relationship is in such a position of power over the other that
renders such sexual
activity morally wrong and punishable within the
realms of the criminal law.”
[9]
And later:
“
[39]
The accused occupied a position of power in relation to his
stepdaughter. She was vulnerable to his seniority in age and familial
standing, his affinity with her mother who was the only other adult
in the home, his role as
paterfamilias
in the home and family. This was
appreciated in
S
v Jansen
1999
(2) SACR 368
(C) where it was said at C 378
g
h
that '(r)ape of a child is an
appalling and perverse abuse of male power'; in
S
v
Swart
2000 (2) SACR 566
(SCA) where reference
is made to how the rapist 'exploited to the full the position of
power which he held over them'; in
S
v G
2004 (2) SACR 296
(W) where the
Court commented at 301
c d
,
'She was raped in the safety of her own home by a person towards whom
she was affectionate, and from whom she was entitled to
expect
protection. The accused has violated the trust which the complainant
and her mother placed in him'; in
S
v P
2000 (2) SA 656
(SCA) at 660G where
the Court commented how a grandfather had 'violated that love and
abused that position of trust'.”
[10]
Turning to the facts of this matter, it seems clear from the record
that the complainant was
under some stress in giving evidence, which
was exemplified by the fact that at one stage he began crying. He
seemed hesitant to
give much detail and had to be pressed by the
prosecutor to provide anything akin to a full exposition of what had
happened. This
is by no means to blame the complainant, who was only
12 years old when this occurred and 16 when he testified. However,
the distinct
impression one gains on a reading of his evidence is
that he suffered from a degree of guilt for having indulged in what
he referred
to as these “
dirty
” things, but more
so because he realized that these actions had resulted in his
contracting HIV. It must also be remembered
that he was a single
child witness to these events. As against this background, the
evidence that the appellant was both gay, and
apparently a
transgender of sorts who regarded himself more as a woman than a man,
a person who wore dresses over women’s
panties, becomes of
importance. A reading of the evidence of both the complainant and
that of the appellant, reveals that there
was in all likelihood a
degree of attraction by the complainant to the “womanly”
or feminine appellant. In this regard
the magistrate held that the
fact that the complainant testified to being more interested in women
than men was proof that he was
unlikely to have consented to sex with
a man. However, the question arises (which was never properly dealt
with in evidence) as
to whether the appellant was indeed a “man”
in the sense which the magistrate spoke of.
[11]
In the circumstances, was it correct for the magistrate to have
simply found that the complainant’s
version, whatever it indeed
was, was entirely correct and that the appellant’s version was
to be rejected? Whilst it may
well have been that the appellant was
overstating the facts when he said that the complainant had in effect
seduced him, in my
view there was no real evidence to gainsay the
appellant’s testimony to the effect that what occurred on the
first occasion,
and indeed subsequently, was consensual. The net
effect of the complainant’s evidence was that they began
kissing one another,
undressed each other, and the appellant had
asked him to insert his penis into the appellant’s anus. It
seems to me that
the offer of biscuits and money to some extent
followed these events and were consequent thereupon, not the
inducement thereto.
Certainly, in my view, on all the evidence this
is reasonably possible.
[12]
Furthermore, on the evidence as presented it can never be said that
there had been a grooming
process for a period of time prior to the
first act of intercourse. The evidence from both sides was that the
complainant and the
appellant were simply friends. There was no
evidence of a series of inducements over time from a person in a
position of power
over the complainant.
[13]
I am accordingly of the view that the magistrate misdirected herself
in the manner in which she
assessed the evidence of both the
complainant and the appellant. This being so, I am of the view that
the appeal against the rape
conviction should succeed
[4]
.
However, it is quite clear as conceded by the appellant in evidence
that he is guilty of the alternative of what used to be known
as
“Statutory Rape” pursuant to the provisions of section 15
of Act 32 of 2007 and that a conviction under this section
as a
competent verdict, would be appropriate. In this regard counsel for
the appellant sought to argue that should this court conclude
“
that
the appellant did not cause the act of penetration, then no act of
sexual penetration was committed…
”
In pursuing this argument, he contended that once this conclusion was
reached, the appellant cannot be convicted of the
competent verdict
under section 15. In my view, this argument is misplaced. Section 15
of the Act reads follows:
“
15
Acts of consensual sexual penetration with certain children
(statutory rape)
(1)
A person ('A') who commits an act of
sexual penetration with a child ('B') who is 12 years of age or older
but under the age of
16 years is, despite the consent of B to the
commission of such an act, guilty of the offence of having
committed an act of consensual sexual penetration
with a child, unless A, at the time of the alleged commission of such
an act,
was
(a)
12 years of age or older but under the
age of 16 years; …”
“
Sexual
penetration
” is defined as
follows:
“
'sexual
penetration'
includes any act which
causes penetration to any extent whatsoever by
the genital organs of one
person into or beyond the genital organs, anus, or mouth of another
person;
(a)
(b)
any other part of the body of one
person or, any object, including any part of the body of an animal,
into or beyond the genital
organs or anus of another
person; or
(c)
the genital organs of an animal, into
or beyond the mouth of another person and
'sexually
penetrates'
has a corresponding
meaning;”
[14]
Should counsel’s argument in this regard be accepted, then the
definition of sexual penetration
would have to be interpreted to be a
complete and definitive definition of sexual penetration for the
purposes of the Act. It was
clearly never intended to be. The words
“
includes
any act
”
and logic dictate that the purpose of this section is to include
certain further acts of penetration which might not have,
in the
ordinary course, been seen to have been regarded as sexual
penetration
[5]
. It was never
intended to exclude other forms of sexual penetration, consensual or
not.
[15]
As regards sentence, it is so that the appellant was a first offender
and was in custody awaiting
trial for about a year and 9 months. He
was also relatively youthful, being 19 at the time of the commission
of the offence. He
was unmarried with no children and was employed as
a farm worker earning R800 every fortnight. He is also HIV positive.
On the
other hand, whilst it was common cause that during the period
that he and the complainant indulged in such sexual encounters he
was
unaware that he had contracted HIV, the simple fact is that he must
have been aware of the possibility that he may have contracted
it
because he was gay and during that period he had been sleeping with
other men without the use of condoms. Despite his lack of
education
(having only achieved standard 5) it is simply untenable in this day
and age that any person would not be aware of the
dangers of
unprotected sex. He must have foreseen the distinct possibility that
he may have contracted the disease, and the possibility
that he might
infect the complainant. This, to my mind, is a clear aggravating
factor as is the fact that he persistently carried
out these acts of
intercourse with a 12-year-old over an extended period. This is
compounded by the fact that he was the older
and more mature party to
these acts and had a responsibility to prevent this happening in the
first place, or, at the very least,
after it had occurred on the
first occasion, to discourage its repetition. In the circumstances, I
am of the view that a sentence
of 12 years imprisonment would be
apposite.
[16]
Accordingly, the following order will issue:
1.
The appeal against both the
conviction and sentence is upheld.
2.
The order of the court
a
quo
is substituted with the
following:
“
(a)
The accused is found not guilty of rape but is convicted of
contravening section 15(1)(a) of the Criminal Law (Sexual
Offences
and Related Matters) Amendment Act (Act 32 of 2007);
(b)
The accused is sentenced to
twelve (12) years imprisonment.”
R
E GRIFFITHS
JUDGE
OF THE HIGH COURT
MAJIKI,
J. :
I agree
JUDGE
OF THE HIGH COURT
HEARD
ON
:
04 MAY 2022
DELIVERED
ON ;
16 AUGUST 2022
COUNSEL
FOR APPELLANT : Mr
Geldenhuys
INSTRUCTED
BY
: The Legal Aid SA
COUNSEL
FOR RESPONDENT : Ms Hendricks
INSTRUCTED
BY
: The Director of Public Prosecutions
[1]
Act
32 of 2007
[2]
2013
(2) SACR 111 (SCA)
[3]
S
v M
2007 (2) SACR 60
(W) at paragraphs 35 – 40.
[4]
During
argument the question was raised as to whether or not, on the facts
of this matter, the acts of penetration constituted
rape as defined
in the Act. I am satisfied, having received further heads of
argument from counsel in this regard, that such
acts did indeed
constitute rape as defined. See in this regard:
S
v Wentzel
2020
JDR 2254 (WCC) at paragraphs 37 – 40; Snyman: Criminal Law,
sixth edition at pages 349 – 351.
[5]
See
Wentzel
(supra) at paragraphs 42 – 44.